author: PER CURIAM.

text:
    STRUCTURAL SYSTEMS, INC., Respondent, v. Daniel J. HEREFORD, Josephine N. Hereford, d/b/a St. Louis Indoor Tennis Club, Appellants.
    No. 37607.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 14, 1978.

      Armstrong, Teasdale, Kramer & Vaughan, Frank N. Gundlach, Edwin L. Noel, St. Louis, for appellants.
    Manisealo, Clancy, Pittman & Bagot, George D. Pittman, Jr., Clayton, for respondent.
   PER CURIAM.

After a previous opinion was handed down in this case a rehearing was granted. The case was then reargued before a panel of which two of the three members were not on the panel to which the case was first submitted. Substantial portions of this opinion have been taken directly from the previous opinion.

Plaintiff contracted to build ah indoor tennis facility for defendants, but because they contended that the building was not constructed in a workmanlike manner defendants refused to pay the balance of $14,-402.69 remaining due on the contract price. Plaintiff filed this action to enforce a mechanic’s lien, and defendants filed a counterclaim in two counts. Defendants alleged in the first count that plaintiff did not construct the facility in a workmanlike manner, and they listed seven alleged deficiencies. The second count was based on an alleged breach of an implied warranty that the building would be “fit for use as an indoor tennis club.” In their brief defendants-appellants state that although the testimony pertained to other features, “their dissatisfaction with [plaintiff’s] work involves the east or upward most portion of the building for it is this side of the building that caused the immense water damage that is the basis of [their] defense to the mechanic’s lien action and [the basis for the] counterclaims herein.” A jury was waived. The trial court entered judgment in favor of plaintiff and against defendants on each count of the counterclaim. It is from this judgment that defendants have appealed. We affirm.

Respondent contracted to construct, according to plans and specifications approved by appellants, a building on land appellants had recently acquired from respondent which was to house four tennis courts and contain a pro-shop, a locker room and an office.

The lot on which the building was to be placed was not level, but respondent created a level area by excavating about six feet on the east side. This resulted in a rather steep embankment about six or seven feet in height .between the building and the eastern boundary of the lot, which boundary was only eleven feet from the building.

Appellants, and not respondent, were to construct the tennis courts, and the work on the four courts was completed, and play was commenced, about four months before respondent completed the building. During this time, several rains occurred and surface water ran down the embankment and eroded dirt which was deposited against the foundation wall of the building. When that deposit reached the level of the top of the foundation wall, the water then ran over the top of the wall and under the metal siding into the building. There is no contention that the construction of the wall was defective in permitting this to occur. Apparently because of this accumulation and because of inadequate drainage, water also seeped through cracks in the foundation and into the building.

In an attempt to correct the problem appellants later changed the conduits constructed by respondent to dispose of the water from the roof of the building, and also built an asphalt trench next to the building to carry away the water. There was evidence, however, that the asphalt was too near the top of the foundation wall and that the trench did not have sufficient slope to carry away the volume of water from the roof and the embankment. A short time before trial appellants constructed a wall of railroad ties near the property line and made what appears to be a wide concrete drainage ditch along the east side of the building. According to appellants this corrected the problem.

Respondent admits that “there is no question but that a substantial amount of water got onto the indoor tennis courts.” Appellants contend that the “water damage resulted from the failure to finish grade the east side of the property and the failure to excavate properly the area adjacent to the east wall of the building.” It thus appears that the crucial issue is which party was responsible to do whatever was necessary to the area immediately adjacent to the east side of the building to prevent the entrance of the surface water into the building.

The trial court found that “the water damage sustained by defendants resulted from defendants’ failure to finish grading [finish grade?] the east side of defendants’ property, the failure of defendants to properly excavate the area adjacent to the east wall of defendants’ building, the placing of asphalt in close proximity to the top of the foundation of the east wall of defendants’ building and the removal of the horizontal gutters from the east side of defendants’ building, all of which permitted water to flow over the top of the foundation to cause the water damage sustained by defendants.”

Upon review of this court-tried case “the * * * judgment of the trial court will be sustained * * * unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It is further stated that “appellate courts should exercise the power to set aside a decree or judgment on the ground that is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

As is most always true with the typical construction contract, it is difficult to determine its precise terms. We find no single instrument signed by the parties purporting to set forth directly or by reference all the terms of the agreement.

Several documents were introduced in evidence on the basis that they set forth terms of the agreement or constituted evidence of the intention of the parties. We shall review their material parts. A letter dated February 28,1968 from respondent to Mr. Hereford, one of the appellants, contains an “outline of the Design Criteria and Scope of Work” proposed to be done by respondent. Under “Scope of Work” there were twenty-one items, general in nature, such as “Grading for Building,” “Excavation and Backfilling,” and “Masonry Walls and Partitions.” The letter also included a paragraph entitled “Items Not Included” which listed “Site Grading for Parking,” “Paving,” “Landscaping,” and “Any items not mentioned in * * * Scope of Work.” There was no explanation of these items.

Another exhibit is an “Agreement for Purchase of Land” dated March 21, 1968. It provides for the purchase by appellants from respondent of the land upon which the tennis facility was to be built. It contains several provisions imposing obligations on the parties, three of which we shall mention. The first provides that the seller (respondent) “agrees to grade and level said Lot # 6 in accordance with its development plan, * * The second provides that the purchaser (appellants) agrees to enter into a contract to employ respondent to build a tennis facility “as developed on preliminary drawings and as described in attached letter hereto.” This refers to the previously mentioned letter dated February 28,1968. The third is as follows: “Purchaser also agrees to develop all areas in Lot # 6 that are not occupied by the building, the paving, the streets or Shady Creek Channel, into grass and shrubbery, and maintain these areas in good order.”

There is also a document entitled “Specifications For Indoor Tennis Court.” It contains many provisions. Appellants rely primarily on three of them to support their position that respondent had the contractual obligation to take such steps as were necessary to prevent the surface water damage which occurred. In that part entitled “Specifications For Materials and Labor to be used and employed in the erection and completion” of the building, under the subhead “Supplementary General Condition,” there are listed “Additional Conditions, Amendments and Omissions to the A.I.A. [American Institute of Architects] General Conditions” which, it is stated, are to “take precidency only over the articles or portions of A.I.A. General Conditions that are in conflict.” In their brief appellants point to Item B-5 of these “additional conditions,” entitled “Grades, Lines and Levels,” which provides that “the contractor will establish and maintain all grades, lines, and levels required in the construction of building.” (Emphasis added.) They do not point out what article or portion of the A.I.A. general conditions Item B-5 is supposed to be in conflict with, or how in the “construction of building” respondent was required to do more than it did to the embankment and the area to the east of the building.

Section 1 of the Specifications, entitled “Excavation,” under the subhead “Scope of Work,” provides that “The work to be done under this section of the Specifications includes all labor, material, tools and equipment and all operations necessary for or incidental to the completion of all earthwork, including excavation, filling and backfilling, grading, drilling and blasting and all other work necessary as shown on the plans and/or called for in the Specifications.” (Emphasis added.) In this same section, but under the subhead of “Grading,” it is further provided that the contractor “shall cut, fill and grade as required for all roads, walks, parking areas, truck approaches, and finish grade the entire property as indicated on the drawings.” (Emphasis added.) The reference to the “entire property” must be read in connection with the provision in the contract for the purchase of the land that appellants were to “develop all areas not occupied by the building, the paving, the streets * * * into grass and shrubbery * * and the letter dated February 28, 1968, that work for which respondent was not responsible included “Site Grading for Parking,” “Paving,” and “Landscaping.”

There was also introduced in evidence an exhibit consisting of ten large sheets containing detailed drawings. Appellants place considerable reliance on pages AA and A-2 of this exhibit. Page AA is a sketch showing the location of the building on the lot, and it shows an “asphaltic concrete” area on the west side with parking spaces. The area on the east side is labeled “Grass Area.” Appellants argue that “The inclusion of this term must mean that respondent agreed to make this a ‘grass area,’ otherwise there would be no need to include this in respondent’s plans.” If this were true it would logically follow that by placing the term “asphaltic concrete” on the west side and by showing the parking spaces, respondent was to construct the parking area and pave it. But, as noted, the letter dated February 28, 1968 specifically excludes from respondent’s contractual obligations “Site Grading for Parking,” “Paving” and “Landscaping.” Page A-2 is labeled “Elevations,” and at two places there is a term “Finished Grade,” of which further mention is made below. Without some other explanation we assume this refers to the grade that is to exist when the project is “Finished.” There is no indication on page A-2 as to who shall do the work, and as previously noted, other provisions expressly provide that grading shall be done by both parties to the contract.

Appellants’ expert witness, a contractor with extensive experience, testified that in construction projects of this nature there are two types of grading; final or rough grading and finished grading. Rough or final grading consists of moving the dirt to “where the final grade will be.” He was asked if he previously had had contracts where the owner wanted to exclude “all final [finish?] grade, exterior landscaping and development from the contract,” and he replied “Yes.” He then testified that “In situations like that, usually the contractor does what is called rough grading and the finish grading is part of the owner’s responsibility.” We note here, as previously set out, that in the Specifications (Exhibit No. 4) under the subhead of “Grading” it is provided that the contractor (respondent) shall “finish grade the entire property as indicated on the drawings.” We assume the term “drawings” refers to Exhibit No. 20, the ten large sheets. No place on those sheets do we find the term “finish grading.” As mentioned above we do find on page A-2 two references to “Finished Grade” and in each case the term refers to a line showing the contour of the final grade of the land. The references cannot be to the act of “finish grading” because one of the references is to the west side of the building where there is no question but that respondent had no responsibility to do any more than the rough grading. In addition, Exhibit 2 contains general provisions and must be construed with provisions in other instruments, and in determining the meaning we must consider the generally accepted practice in the industry as testified to by appellants’ expert witness. Respondent’s obligation to do “finish grading” pursuant to Exhibit No. 4 is specifically limited to those areas shown on the “drawings,” and we there find no such area.

Appellants argue that the terms of the agreement are to be construed strictly against the party who prepared it. See John Deere Company v. Hensley, 527 S.W.2d 363 (Mo. banc 1975). We accept this principle, but we are to determine the intention of the parties as evidenced by the language used, Ward v. Gregory, 305 S.W.2d 499 (Mo.App.1957), and in making that determination we are to consider the surrounding circumstances and conditions. McIntyre v. McIntyre, 377 S.W.2d 421 (Mo.1964). When there is more than one instrument, as here, we must construe them together, Elliott v. Richter, 496 S.W.2d 860 (Mo.1973), and contradictions must be harmonized if reasonably possible. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973). We do not find actual contradictions as much as we find it necessary to dovetail the various provisions into a single contractual obligation on the part of respondent, and in doing so we fail to find any contractual obligation on respondent to perform any more work on the east side of the building than it did. In the absence of contractual duty, it was the responsibility of appellants to protect their own property.

Appellants’ remaining two points are that the trial court erred in (a) not finding that respondent breached its implied warranty to design and construct a building reasonably fit for use as a tennis club, and (b) in finding for respondent “on its petition to enforce mechanic’s lien” because respondent “failed to perform in a workmanlike manner.”

The trial court found that the work was done in a workmanlike manner because it granted a mechanic’s lien against the property subject to a deed of trust. These last two points are premised on the fact that the area east of the building was not finish graded by respondent, and that because of that failure damage from surface water resulted. We have ruled that respondent had no duty under the contract to perform that work east of the building.

We find substantial evidence to support the judgment of the trial court and that it is not against the weight of the evidence. We also find that the trial court did not erroneously declare the applicable law.

The judgment is affirmed.


source: Caselaw Access Project

author: STEWART, Presiding Judge.

license: Public Domain

text:
    STIX & CO., INC., Respondent, v. FIRST MISSOURI BANK & TRUST COMPANY OF CREVE COEUR, Appellant.
    No. 38455.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 14, 1978.

      Charles Alan Seigel, Gunn & Gunn, St. Louis, for defendant-appellant.
    Theodore Ponfil, Richard S. Marx, Clayton, for plaintiff-respondent.
   STEWART, Presiding Judge.

Plaintiff-respondent, Stix & Co. (Stix) is a securities brokerage company. Defendant-appellant, First Missouri Bank and Trust Company of Creve Coeur (Bank) is a banking corporation. Stix filed suit in the circuit court against Bank in two counts seeking damages arising out of a stock transaction. Bank filed a counterclaim in two counts for malicious prosecution of civil actions. Upon motion of Stix the court dismissed Bank’s amended counterclaim as premature. The court’s action was designated as an appealable order under Rule 81.06 and Bank has duly appealed.

Before we can define and discuss the issues in this cause we must first determine the standard of our review. Stix urges that the cause “[sjhould be and was no doubt treated by the court . as a motion for summary judgment” under the provisions of Rule 55.27(a). Bank contends that we must review the amended counterclaim as we would any pleading seeking relief and that we are confined solely to the allegations of the questioned pleading.

Plaintiff’s motion to dismiss was in the usual form of such motions merely stating that the “[cjounterclaim fails to state a cause of action and fails to state sufficient facts upon which relief can be granted.”

The court’s order reads:

“The question raised in this motion is whether the dismissal of the Federal Court actions in question constitute a ‘termination in favor’ of First Missouri Bank & Trust Co. of Creve Coeur to allow them to maintain a malicious prosecution action. It is the court’s opinion that it does not. It is, therefore, the order of the court that plaintiff’s Motion to Dismiss Defendant’s Amended Counterclaim is sustained. This is designated as an appealable order pursuant to 81.06 Missouri Supreme Court rules.”

Stix contends that there were matters other than the counterclaim before the court upon which the court sustained the motion to dismiss as a motion for summary judgment and that we should also consider these matters. Stix directs us to what is designated as an order of the United States District Court with a Memorandum of Law attached dated February 24, 1975, in a case styled Stix & Co. Inc. v. First Missouri Bank & Trust Co. of Creve Coeur, (Federal Suit) and an order and memorandum of the same court dated April 14, 1975, with respect to the same case. None of the documents is under the seal of the United States District Court. The first order purports to dismiss Count I of plaintiff’s petition with prejudice. The second order dismisses Count II and Count III with prejudice. The latter memorandum states that the dismissal of Count III is because of lack of subject matter jurisdiction. The transcript before us contains no basis for the inclusion of the orders and memoranda of the Federal Suit in the transcript on this appeal. These documents were not made exhibits to the counterclaim, and the record does not show that they were offered in evidence in support of the motion to dismiss. Like the abandoned pleading which appears in a transcript, unless the record reveals that the documents were properly made part of the record we cannot say that they were before the trial court and they are not now before us. Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597[1-4] (1953). See also Dugan v. Trout, 271 S.W.2d 593, 599[12] (Mo.App.1954).

We also note that the court did not give notice to the parties that he would consider the motion to dismiss as a motion for summary judgment and give Stix the opportunity to submit evidentiary matters in accordance with Rule 74.04. Laclede Gas Company v. Hampton Speedway Co., et al., 520 S.W.2d 625, 629[3] (Mo.App.1975). We may not treat the action of the court as a summary judgment.

Under the circumstance, the nature of our review is the same as that accorded pleadings seeking affirmative relief. We are limited to a review of the pleading that is attacked. McDonough v. Aylward, 500 S.W.2d 721, 722[1] (Mo.1973). We must assume as true all facts well pleaded and any inferences fairly deducible from the facts pleaded; we construe the pleading favorably to the pleader giving him the benefit of every reasonable and fair intendment in view of the facts pleaded. Jacobs v. Jacobs, 272 S.W.2d 185, 188 (Mo.1954).

Frustrating as it may be, we must make our determination solely upon the amended counterclaim, which we will refer to as counterclaim. We may not look to the orders and memoranda of the United States District Court’s Bank’s abandoned motion to dismiss plaintiff’s petition and the exhibit attached (plaintiff’s petition in the District Court) or to Bank’s original counterclaim.

The elements of the cause of action for malicious prosecution, civil or criminal, are concisely stated in Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo.1972) l.c. 483:

“(1) the commencement of a prosecution against plaintiff; (2) its legal causation by defendant; (3) its termination in favor of plaintiff; (4) the absence of probable cause therefor; (5) the presence of malice; and (6) damage to plaintiff therefrom.”

The parties agree that the primary issue on this appeal is whether Bank’s counterclaim pleads that the Federal Suit filed by Stix has been terminated in favor of Bank.

Termination in favor of the party bringing the action for malicious prosecution means the final disposition of the cause forming the basis of the action in favor of the party against whom the original action was brought and adversely to the party bringing the original action. Termination may be effected by final judgment on the merits, dismissal of a cause by the court with prejudice and by abandonment of the action. McFarland v. Union Finance Co., 471 S.W.2d 497, 499[3] (Mo.App.1971). Wheie an action has been dismissed but the party asserting the claim intends to continue to assert the claim the action has not been disposed of adversely to the party asserting the claim. This is particularly evident when the cause is in fact reasserted by the commencement of another suit. Hales v. Raines, 162 Mo.App. 46, 141 S.W. 917, 920[4] (1911). A dismissal for lack of subject matter jurisdiction is not res judicata as to the merits of the cause and we may look behind the judgment recital in order to determine the cause of the dismissal. Sheen v. DiBella, 395 S.W.2d 296, 303[7] (Mo.App.1965). See also Rule 41 Fed.R. Civ.P. It follows that a cause dismissed for lack of subject matter jurisdiction has not been terminated in favor of the party bringing an action for malicious prosecution based upon that dismissal.

In determining whether there has been a termination of Stix’s claim against Bank we consider the following guiding principles. A party can have but one recovery for one wrong. Haley v. Byers Transport Co., 394 S.W.2d 412, 416[5, 6] (Mo.1965). The essential ingredients of a single cause of action are plaintiff’s primary right and defendant’s wrongful violation of that right. Hales v. Raines, supra at page 920. A pleader may make two or more statements of a cause of action alternatively or hypothetically in one count or in separate counts and if any one of the statements of the claim is sufficient the pleading is not bad by reason of the insufficiency of one or more of the alternative statements. This holds true under our rules of civil procedure (Rule 55.10) and under the Federal Rules of Civil Procedure (Rule 8(e)(2)). A voluntary dismissal is without prejudice unless otherwise stated. Fed.R.Civ.P. 41(a)(1). VAMR 67.01.

To determine whether Bank’s counterclaim alleges a termination of the Federal Suit in its favor we first look to Bank’s counterclaim to determine the nature of the claim or claims made by Stix in its Federal Suit.

Count I of Bank’s amended counterclaim alleges that Stix filed an action in three counts against Bank and others in the United States District Court for the Eastern District of Missouri. Bank alleges that Count I of Stix’s Federal Suit charged that Bank and others conspired to violate section 12 of the Securities Act of 1934 by circulating in commerce an unregistered stock certificate. Factually it charged that Bank placed an order with Stix, as broker, to sell 25,000 shares of stock of Arboreal Associates Inc.; that Stix, as ordered, sold the shares to Dopier and Company who in turn sold it to Horvat, Maniscalco & Co.; that Stix paid Bank for the stock and Bank delivered the stock certificate to Stix who delivered it to Dopier. Thereafter Dopier advised Stix that the stock could not be transferred because it was not registered as required under the Securities Act of 1933.

Bank, in its counterclaim, further alleged that the District Court dismissed Count I of the Federal Suit with prejudice.

Count II of Bank’s amended counterclaim alleged that Count II of Stix’s Federal Suit was based upon the same set of facts set out in Count I of the Federal Suit and further charged that under those facts Bank, among other things, used instruments of transportation or communications in interstate commerce to employ a device, scheme or artifice to defraud plaintiff in violation of the Securities Act of 1933 (15 U.S.C. § 77q). Bank alleges that Count II of Stix’s Federal Suit was dismissed with prejudice.

Bank, in both Count I and Count II of the counterclaim, alleges that Stix dismissed its “[Fjederal suit in its entirety” after Counts I and II had been dismissed with prejudice. The voluntary dismissal would constitute a dismissal of Count III without prejudice. Fed.R.Civ.P. 41. In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213, 219[7, 8] (8th Cir. 1977).

We hold that Counts I and II constituted two statements of but one claim because each count is based on the same set of facts and Stix could have only one recovery arising for the one wrong.

At this point, the manner in which the case comes to us prevents us from making a final determination of the issues sought to be determined. The counterclaim does not contain a statement of the basis of Stix’s claim in Count III of Stix’s Federal Suit. Stix was not confined to alleging only one claim in the alternative or hypothetical form in its action but was at liberty to join as many claims independently or alternatively as it had against Bank. Fed.R.Civ.P. 18(a). Thus we may not assume that Count III of the Federal Suit was but an alternative statement of Stix’s action arising out of the transaction alleged in Counts I and II of that action. We have scanned Bank’s counterclaim and its brief and its reply brief and find no allusion to the substance of Count III of the Federal Suit. Appellant’s reply brief to the contrary argues, “There is not support for the contention that Counts I, II and III of Plaintiff’s Amended Complaint constituted but one cause of action.”

Confined to the present state of the record, we must hold that the single cause of action stated in Counts I and II of Stix’s Federal Suit was dismissed with prejudice. It follows that upon the face of the counterclaim, according it every favorable inference, Bank has alleged that the action in the Federal Suit, which constitutes the subject of the counterclaim was terminated in its favor. A concession by Bank as to the accuracy of the memoranda purportedly filed in the Federal Suit would have resulted in a different conclusion on our part.

On the record before us we have no alternative but to reverse and remand this cause for further proceeding.

Judgment reversed and cause remanded.

DOWD and REINHARD, JJ., concur.

      . “(a) . . . Every defense, in law or fact, to a claim in any pleading, whether a claim, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
      “(6) failure to state a claim upon which relief can be granted,
      “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.”


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William HOWARD, Defendant-Appellant.
    No. 38338.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 14, 1978.

      Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Joseph R. Aubuchon, Asst. Pros. Atty., Daniel Bueseher, Pros. Atty., Union, for plaintiff-respondent.
   SNYDER, Judge.

Defendant-appellant was charged in two counts with assault with intent to kill. He was found guilty by a jury of assault with intent to kill without malice on both counts and sentenced to consecutive sentences of six months and one year in the custody of the Sheriff of Gasconade County. The offense occurred in Franklin County but a change of venue was granted to Gasconade.

Since no question has been raised as to the sufficiency of the evidence only a brief statement of the facts will be necessary.

The evidence showed that defendant, using a .32 caliber automatic, shot John Del-main, Jr. in the hand and Gerald McCubbin, an off-duty St. Louis County police officer, in the side and arm. The shootings occurred at approximately 1:00 a. m. on March 9, 1975 as the culmination of a dispute over a parking space at Skelly’s Restaurant in the City of Pacific.

Officer Paul Prince of the Pacific police department testified without objection that after his arrest and after a Miranda warning, defendant twice volunteered the statement that, “They will send me up.” Upon cross-examination by defendant it was brought out that Officer Prince in a statement made before the trial had said that defendant made the statement, “They will send me up this time.”

Marshal James A. Ray of the Pacific police department testified without objection that when defendant was in a Pacific jail cell he had made the voluntary statement to the Marshal, “It looks like I goofed.” Marshal Ray further testified, without objection by defendant, that ten days to two weeks later defendant had told him about the shooting incident at Skelly’s. This conversation occurred at defendant’s residence when the Marshal was making a routine patrol and was invited inside by defendant. When defendant started to tell him about the incident the Marshal said, “We better not discuss it¡ I might have to testify in the case.” Defendant then said, “It’s common knowledge,” and proceeded to tell the Marshal about the shootings.

There was a motion to suppress the testimony of both Marshal Ray and Officer Prince as to the statements made to them by defendant. The motion, grounded upon an alleged failure of the police to advise defendant of his rights, was denied by the trial court.

Defendant attempted to cross-examine Marshal Ray as to additional conversation the Marshal had with defendant at his residence wherein the Marshal said something to the effect that anyone with good sense would be frightened of John Delmain, Jr. and Alan Dunlap, a companion of Delmain on the night in question. The state’s objection to evidence of this further conversation was sustained.

Defendant called Officer James Bausch as a witness and attempted to interrogate him as to John Delmain, Jr.’s reputation for turbulence and violence. The state’s objection to the testimony was sustained based upon failure to lay a sufficient foundation since there was no evidence that defendant knew of Delmain’s allegedly bad reputation for turbulence and violence.

Defendant contends that the trial court erred in: (1) failing to sustain defendant’s motion to suppress Officer Prince’s testimony as to statements of defendant; (2) failing to sustain defendant’s motion to suppress Marshal Ray’s testimony as to statements of defendant; (3) refusing to permit defendant to cross-examine Marshal Ray as to a portion of his conversation with defendant at defendant’s residence; (4) refusing to permit Officer Bausch to testify as to the reputation of John Delmain, Jr. for violence and turbulence; and (5) refusing to submit common assault instructions on both counts of the information.

The state contends that defendant’s first two assignments of error are not preserved for review. They relate to the trial court’s failure to sustain defendant’s motion to suppress the testimony of Marshal Ray and Officer Prince as to the statements made by defendant. We agree.

When a motion to suppress evidence is denied and the evidence subsequently offered at the trial, defendant must then object to the admission of the evidence with a proper statement of the reasons for the objection, present the matter in his motion for a new trial, and brief the issue on appeal in order to preserve it for appellate review. State v. Simone, 416 S.W.2d 96 (Mo.1967).

Defendant raised no objection during trial to the testimony of either Officer Prince or Marshal Ray as to the statements made by defendant. In fact, defendant cross-examined Officer Prince at some length concerning his testimony about defendant’s statements. Therefore defendant has not preserved his first two points for appellate review. Absent plain error under Rule 27.20(c), V.A.M.R., the issue should not be considered. State v. Hampton, 509 S.W.2d 139 (Mo.App.1974), citing State v. Stevens, 467 S.W.2d 10, 19[7] (Mo.1971) [cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971)].

The admissions of defendant to Marshal Ray and Officer Prince that defendant had “goofed” and that, “They will send me up,” and the further admission about the shooting by defendant at his residence, did not constitute plain error. They were voluntary statements made after defendant had been given the Miranda warning. Defendant was not being interrogated, but instead made the statements spontaneously. The Fifth Amendment does not prohibit “volunteered statements of any kind” from being used as evidence against a defendant accused of a crime. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Hampton, supra; State v. Stevens, supra.

Appellant cites State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975) in support of his contention that it was error to admit evidence of defendant’s statements to Officer Prince and Marshal Ray. The case here is distinguishable from State v. Stevenson, supra in that here defendant was not in an interrogation room, but in his cell in the one case and at his own residence in the other. Officer Prince was merely waiting for defendant to finish initialling the Miranda card and to return it and the pen. Defendant said twice, “They will send me up.” They were spontaneous statements of a voluntary nature, not a confession as in Stevenson. Here there was not the “subtle compulsion” present in the Stevenson case.

Evidence of defendant’s statements to Marshal Ray is even less subject to attack than evidence of the statements to Officer Prince. Defendant’s statement to the Marshal at the jail about “having goofed” was made during or just after an exchange of greetings. The two were acquaintances and the conversation was a casual one completely foreign to the arrest or any other official procedure. Defendant’s statements to the Marshal about the shootings were also entirely voluntary. Defendant was not in custody, but in his own home. He was even cautioned against talking by the Marshal and warned that the Marshal might have to testify in the case. In spite of this, defendant talked freely about the crime. The Stevenson case is clearly distinguishable. We hold against defendant on his first two points.

Defendant next contends it was error for the court to refuse to permit defendant to cross-examine Marshal Ray as to his conversation with defendant occurring after the conversation about the shooting. Defendant offered to prove that the Marshal had said that anyone with good sense would be frightened when confronted by Dunlap and Delmain. The state’s objection was properly sustained by the court.

The extent of cross-examination is largely within the discretion of the trial court. This is particularly true as to collateral matters. State v. Knicker, 424 S.W.2d 605 (Mo.1968); State v. Johnson, 486 S.W.2d 491 (Mo.1972). Absent a clear showing of abuse of discretion, appellate courts will not interfere. State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651 (Mo.1953); State v. Vansandts, 540 S.W.2d 192 (Mo.App.1976). We find no abuse of discretion here.

Marshal Ray’s opinion as to the fearsome qualities of Delmain and Dunlap would not have been admissible as evidence in the direct testimony of Marshal Ray. No more may it be received in answer to defendant’s cross-examination unless it is found to be relevant or unless it should be allowed, as defendant contends, under the rule of curative admissibility. “Evidence otherwise inadmissible is frequently admitted because of the fact that similar evidence has been introduced by the adverse party; and accordingly, the introduction by one party of part of a conversation, writing, or transaction may entitle the adverse party to introduce the whole thereof, provided it is relevant and material to the portion previously introduced, and explanatory thereof.” (31A C.J.S. Evidence § 190 p. 509). The rule is based upon the fairness of permitting a party to cure the admission of improper evidence by his opponent.

We have held that evidence of the conversation between Marshal Ray and defendant relating to the actual shootings was not improper. Even if it were, Marshal Ray’s opinion of the fearsomeness of Delmain and Dunlap is not relevant or material to the portion of the conversation about the shootings nor does it in any way explain the happenings at the parking lot.

Defendant cites Kelley v. Hudson, 407 S.W.2d 553 (Mo.App.1966) in support of his position. The state also cites Kelley and with more justification. The case is not authorization for admitting this challenged testimony. In Kelley, one side of a conversation was admitted through plaintiff’s cross-examination. Plaintiff objected to admission on redirect examination of defendant’s responses in that conversation on the identical subject which was already in evidence. The cases are distinguishable. Defendant here offered evidence of a statement which was not relevant to the chronological description defendant had given Marshal Ray; neither was it relevant to any other issue in the case. Second, and closely related to the relevancy requirement, the language of the Kelley case would seem to require the challenged statements to “fill out and explain the sense of” the conversation already in evidence. The essence of the conversation was a description of the event; Marshal Ray’s personal feelings about Delmain and Dunlap do not help to explain the sequence of events. The purpose of the rule, which is to make certain both sides of a conversation are in evidence when to admit only one side would create an unfair impression for the trier of fact, would not be served by application to this situation. We have no half-truths or false impressions created by Ray’s testimony; there was no “relevant remainder” here which the jury needed in order to examine and weigh defendant’s statements “in light of the whole truth”. Kelley v. Hudson, supra, at page 556. We find no abuse of discretion by the trial court in refusing to admit the questioned evidence.

Defendant next claims the court erred in refusing to permit Officer Bausch to testify as to the reputation of John Del-main, Jr. for violence and turbulence. The court sustained the state’s objection to this testimony on the ground that there was no evidence defendant knew of the bad reputation of Delmain and therefore Officer Bausch’s testimony was not admissible. There was no error. Evidence of a victim’s reputation for being of turbulent or violent disposition is not admissible unless the defendant knew of the reputation, and such a reputation cannot be proved by specific acts of violence. State v. Smart, 328 S.W.2d 569 (Mo.1959). See also State v. Blair, 305 S.W.2d 435 (Mo.1957) and State v. Carroll, 333 Mo. 558, 62 S.W.2d 863 (Mo.1933).

Although the rule we adopt is set out in homicide cases, it is equally applicable to assault cases. This rule is logically consistent with the rationale for self-defense: defendant’s reasonable belief that he is endangered. Unless the trier of fact knew that defendant was aware of the victim’s reputation, of what value is the third party’s testimony? Self-defense must rest on the defendant’s knowledge. Nothing in the transcript shows defendant knew of a reputation of John Delmain, Jr. for turbulence and violence. Absent such knowledge, Officer Bausch’s testimony was properly excluded.

Finally defendant claims error in the trial court’s refusal to submit instructions on the lesser offense of common assault on both counts of the information. The state contends that this point has not been preserved for review. We agree.

“A motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor.” Rule 27.20(a), V.A.M.R. Defendant’s motion for a new trial reads as follows:

“5. The Court committed prejudicial error when the Court refused to submit to the jury for their deliberations as to Count I that the Defendant could be found guilty of common assault.
(a) By failing to submit to the jury, for their consideration as to Count I, a proper instruction on common assault, the jury was deprived of their right and duty to consider a lesser degree of the offense for which the Defendant was on trial.”

A similar paragraph was included in the motion as to Count II. The language does not satisfy the requirements of the rule. Defendant fails to point out in the motion any specific facts or grounds which would support or require a common assault instruction. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Cheek, 413 S.W.2d 231 (Mo.1967); State v. Luttrell, 366 S.W.2d 453 (Mo.1963).

We have not been requested to review this point under the plain error rule. Rule 27.20(c), V.A.M.R. The evidence, however, reveals that no manifest injustice or miscarriage of justice will result from the ruling.

“Whether requested or not, the Court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; * * Section 546.070(4), RSMo 1969. “Upon an indictment for assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; * * Section 556.230, RSMo 1969. These sections must be read in the light of a long line of Missouri cases which clearly hold: (1) an instruction on common assault is not mandatory with every count charging a more serious assault, and (2) an instruction on common assault is required only if there is evidence to support such a submission. “The test of whether an instruction on a lesser, included offense is required is whether ‘the evidence shows that a defendant may not be guilty of the offense charged, (stealing) but may be guilty of an offense (tampering) necessarily embraced in the charge’. State v. Leigh, 466 S.W.2d 685[2] (Mo.1971). ‘Before instructions on the included or lesser offenses are compelled, however, there must be evidentiary support for such offenses.’ State v. Washington, 357 S.W.2d 92[6-8] (Mo.1962). See also State v. Walker, 505 S.W.2d 119[5-8] (Mo.App.1973).” State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975).

“It is not mandatory, however, in all cases to instruct on a lesser offense or an offense included within that charge. An instruction on the lesser or included offense is required only if there is evidence to support such a submission. Where the evidence so clearly shows the commission of the more serious crime as charged that no other interpretation of the defendant’s conduct is reasonably possible, and there is nothing to justify a finding of common assault only, a defendant charged with felonious assault is not entitled to an instruction on common assault.” State v. Watson, 364 S.W.2d 519, 522 (Mo.1963). Defendant has not pointed out to us, nor have we been able to find in a thorough reading of the transcript, any evidence to support a common assault submission.

Defendant fired a handgun into an occupied automobile only a few feet away from him. He shot a second victim at close range. The jury chose to find him guilty of the offense of assault with intent to kill without malice aforethought. An assault with a “little knife” was held to require an instruction on assault to do great bodily harm, but not common assault, in State v. McCloud, 522 S.W.2d 631 (Mo.App.1975), the court saying at page 632, “Under the facts of this case appellant was either guilty of assault with intent to do great bodily harm, or he was guilty of no offense by reason of self-defense. There is no evidence to justify or require an instruction on common assault.” See also State v. Ayers, 305 S.W.2d 484 (Mo.1957). Here the assault was with a gun, a much more deadly weapon than a “little knife”. The McCloud reasoning applies here, but with more force. The instructions were properly refused.

The judgment is affirmed.

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


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Respondent, v. Sammie Lee MERRITT, Appellant.
    No. 38626.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 14, 1978.

      Karl F. Lang, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   McMILLIAN, Judge.

Appellant Sammie Lee Merritt appeals from a judgment of conviction entered by the circuit court of the City of St. Louis upon a jury verdict finding him guilty of stealing property having a value of at least fifty dollars. §§ 560.156, 560.161, RSMo 1969. Pursuant to § 556.280 RSMo 1969, the trial court sentenced appellant to four (4) years imprisonment. For reversal appellant contends that the trial court erred in failing to grant a mistrial when evidence of other crimes was put before the jury that did not come within any of the recognized exceptions. For the reasons discussed below, we find this point was not preserved for review and, accordingly, affirm the judgment.

No question is raised as to the sufficiency of the evidence; therefore, only evidence which is necessary for our decision will be given. On June 6, 1975, appellant was observed driving a truck from a garage carrying parts removed from a 1973 Pontiac owned by one Minnie Liddell. An inspection of the garage revealed that in addition to Mrs. Liddell’s stripped Pontiac, there were two other stripped automobiles, a Lincoln Continental and a Buick Electra. Appellant was charged only with stealing parts from the Pontiac.

During direct examination, the prosecutor handed the police officer an exhibit which had been previously identified as a photograph of the 1973 Pontiac with the front end, wheels and tires removed. The prosecutor asked, “What do you see there, officer?” The officer replied, “I see three stripped automobiles that were later reported stolen.” Defense counsel immediately approached the bench and asked that “the cars were reported stolen” be stricken as hearsay. In addition, defense counsel requested a mistrial. The trial court denied the mistrial; however, the trial court failed to rule on the motion to strike.

We note that defense counsel’s objection at trial if it was in fact an objection, was to strike the police officer’s testimony referring to the other two cars as stolen as hearsay. Appellant in his motion for a new trial and on appeal, however, argued that the trial court erred in overruling the motion for a mistrial because the testimony included evidence of other crimes. The hearsay objection made at trial in no way called the trial court’s attention to this additional objection. Because appellant has advanced inconsistent theories to support his objection to the testimony, this point has not been preserved for review. “. To preserve an overruled objection for appellate consideration, the objection made to the trial court must be the same or substantially the same as that set forth in the motion for new trial and that relied on in the brief on appeal. . .” State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977) citing State v. Jones, 515 S.W.2d 504, 506 (Mo.1974); see also State v. Healey, 562 S.W.2d 118 (Mo.App.1978); State v. Sanders, 539 S.W.2d 458, 464 (Mo.App.1976.)

Accordingly, judgment is affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Rosalor MAJOR, Defendant-Appellant.
    No. 37023.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 14, 1978.

      Robert E. Heisler, Richard Fought, David M. Johnson, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Presiding Judge.

Defendant was convicted by a jury of two counts of assault with intent to kill without malice. He was sentenced to three (3) years imprisonment on Count I and two (2) years on Count II. Defendant appeals from the judgment entered upon the verdict of the jury. We affirm.

We consider first defendant’s attack upon the sufficiency of the evidence to sustain the conviction. We view the evidence and all favorable inferences reasonably deducible therefrom in the light most favorable to the State and all evidence to the contrary will be disregarded. State v. Franco, 544 S.W.2d 533, 534[1-4] (Mo.banc 1976); State v. Mills, 495 S.W.2d 715, 716[1] (Mo.App.1973).

The evidence supports the following statement of facts. On the evening of December 13, 1973, six police officers went to the vicinity of a house located at 1528 Hogan Street in St. Louis to make an undercover purchase of drugs. Officer Lewis went down the outside basement steps to the door and knocked on the door while the other officers stood back. When asked what he wanted, Lewis replied, “Four dime bags.” The person on the other side of the door told Lewis to put his money through the hole in the door. Lewis responded that he wished to see the drugs first. The person then told him that they did not have anything. Following this, all of the officers approached the door. Sgt. Hamilton, Officers Hawkins and Morgan were in the lead. Officer Lewis was in the rear. Sgt. Hamilton knocked on the door, identified himself as a police officer and requested the occupants to open the door. Immediately following Hamilton’s request a shot was fired through the door from the inside. The police returned the fire and forced the door open. While they were forcing the door three more shots were fired from inside the building. Five to ten seconds passed from the time the first shot was fired until the officers gained entry. The first of the officers who came through the door saw defendant facing the door with a gun in his hand. Defendant turned to run and as he did so he dropped the gun and kicked it away. There were several other persons behind defendant who were in the act of fleeing as the police came into the room. Defendant was apprehended and placed under arrest. An examination of the gun revealed that it was in proper working order and contained two live and four spent cartridges. At least one shot fired from the gun struck the door. Tests also revealed that defendant had recently handled a gun. A search of the apartment lead to the discovery of a quantity of narcotics.

Defendant testified on his own behalf that he went to the Hogan Street address in search of his brother. He stayed and listened to the stereo. He stated that he heard shots fired and ran to the steps within the basement leading to the first floor where he was apprehended. He testified that he had not held or fired a weapon that evening. He said he had not handled a weapon since his discharge from the military service two years before this incident.

Defendant argues that the conviction cannot stand because no one testified that defendant fired the gun and because Officer Lewis did not see the gun in defendant’s hand.

A conviction may be sustained upon circumstantial evidence when the facts are consistent with each other and inconsistent with every reasonable hypothesis of defendant’s innocence. The evidence, however, need not be absolutely conclusive of guilt nor demonstrate an absolute impossibility of innocence. State v. Franco, supra.

The first three officers who entered the room saw defendant with a gun in his hand. Officer Lewis was in the rear and at the top of the stairway leading down toward the basement door at the time the officers broke in and saw defendant. The fact that Lewis testified that he did not see the gun in defendant’s hand could be readily explained and in any case went only to the weight of the evidence. The jury could reasonably find that defendant was in the basement at the scene of the assault; he was seen holding the gun that had fired a shot that struck the door through which the policemen entered; and three other shots had been discharged from this gun. There were highly incriminating circumstances other than defendant’s presence at - the scene. State v. Burks, 521 S.W.2d 11, 14[2-6] (Mo.App.1975). The circumstantial evidence in this case was more than adequate to sustain a conviction on the charge submitted.

The next issue for our consideration concerns rebuttal testimony produced by the State. After defendant testified that he had not handled a weapon for two years the State presented evidence of scientific tests tending to show that defendant had handled a weapon just prior to his arrest. Defendant complains that the opinion evidence of Dr. Steven Morris based upon the neutron activation test made of swabs taken from defendant’s hand was inadmissible because there was no proper foundation for its admission in that there was no evidence from which the court could determine that the test was properly administered.

The record before us shows that Dr. Morris fully described the procedure employed in conducting the neutron activation analysis of the swabs used to wipe defendant’s hands. Dr. Morris testified that the analysis was performed by passing the chemically treated swabs through the core of a nuclear reactor where they were bombarded with neutron particles. The swabs were then analyzed and a determination of the amounts of barium and antimony was made. Both elements are present in the gunshot residue left on the hands of a person who has handled or fired a weapon. Dr. Morris testified that in his opinion the amounts of each substance found in the swabs indicated that defendant had recently handled or fired a weapon.

The neutron activation analysis as a scientific means of determining the presence of gunshot residue is now generally considered reliable and accurate and its results are admissible when there has been a proper foundation for its admission. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976). The issue raised by defendant in this case, as we read it, goes to the manner in which the test was administered. The ready solution to that issue is succinctly answered in Johnson where the court said at 501, “Objections to the manner in which the analysis was conducted go to the weight rather than to the admissibility of the evidence.” This contention is without merit.

Other issues sought to be raised are not properly before us for review.

Defendant’s Point Relied On I reads: “The trial court erred in permitting the State to introduce over appellant’s objection evidence of certain seized controlled substances in that the State did not sufficiently disclose the test results of such physical evidence as requested by Appellant’s Motion to Inspect which was sustained prior to trial.”

We do not find this specific issue raised in defendant’s motion for new trial. Defendant has not identified the assignment of error in the motion for new trial that forms the basis of this contention.

Paragraph 3 of the Motion reads:

“3. The Court erred in allowing the State’s witnesses to comment on alleged drugs that were seized in the raid on the apartment in which defendant was arrested.”

This statement was insufficient to alert the trial court to a contention that defendant was not afforded the results of tests of controlled substances. It fails to point out the witnesses or class of witnesses who testified and the nature of their testimony or the reason the testimony is claimed to be erroneous.

Much the same can be said for paragraph 5 of the Motion for New Trial, which reads:

“5. The Court erred in refusing to grant defendant a mistrial, when the State introduced evidence that was ordered given to the Defendant in Defendant’s Discovery Motion, but was not turned over to Defendant.”

The statement fails to identify the evidence which was introduced which defendant had not obtained.

Rule 27.20(a) requires a motion for new trial to “[s]et forth in detail and with particularity . . the specific grounds or causes therefor.” The motion here does not preserve this point for our review. State v. Gray, 360 S.W.2d 642, 645[2, 3] (Mo.1962); State v. Hill, 371 S.W.2d 278, 281[2 — 5] (Mo.1963).

Point Relied On II reads:

“The trial court erred in permitting the State to introduce over appellant’s objection evidence of certain seized controlled substances in that such testimony constituted evidence of another crime and therefore could only be irrelevant and highly prejudicial to appellant who was tried for a distinctly different offense.”

The allegation of error raised by defendant in this point is raised for the first time on appeal. This objection was not made at trial nor presented to the trial court in the Motion for New Trial. An allegation of error not presented to the trial court in a Motion for New Trial cannot be raised for the first time on appeal. State v. Fields, 536 S.W.2d 56, 57[1] (Mo.App.1976); State v. Webb, 544 S.W.2d 53, 54[1, 2] (Mo.App.1976).

Point Relied On III reads:

“The trial court erred in overruling defendant’s Motion to Suppress all Physical Evidence in that such evidence was obtained by means of a warrantless entry unsupported by any clear showing of probable cause.”

This specific issue was not raised in defendant’s Motion for New Trial.

Paragraph 1 of the Motion reads:

“1. The Court erred in overruling defendant’s Motion to Suppress All Physical Evidence.”

As stated above Rule 27.20(a) requires the Motion for New Trial to “[s]et forth in detail and with particularity . the specific grounds or causes therefor.” This statement fails to state any reason why it was error to overrule the Motion to Suppress and, as a result, preserves nothing for review. State v. Anderson, 375 S.W.2d 116, 119[5] (Mo.1964).

Point Relied On IV reads:

“The trial court erred in permitting State’s expert witness to testify over appellant’s objection on a subject which was beyond the scope of her expertise.”

The point does not “ . . . isolate and formulate the precise issue to be reviewed . ” State v. Murphy, 508 S.W.2d 269, 276[8, 9] (Mo.App.1974). Nor does it advise the Court of the nature of the testimony and why it was beyond the scope of her expertise. This point is in violation of Rule 84.04(d) and provides us with nothing to rule upon. State v. Atkins, 545 S.W.2d 656, 658[3] (Mo.App.1976).

Finding no reversible error the judgment of the trial court is affirmed.

REINHARD and STEPHAN, JJ., concur.


author: STEPHAN, Judge.

text:
    Malcolm MYERS, Appellant, v. Charles MORENO, Chairman, St. Louis Civil Service Commission, et al., Respondents.
    No. 38822.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 21, 1978.

      Ernest L. Keathley, Jr., St. Louis, for appellant.
    James R. Hartung, Asst. City Counselor, St. Louis, for respondents.
   STEPHAN, Judge.

This is an appeal from a decision of the circuit court affirming an order of the St. Louis Civil Service Commission dismissing appellant’s case for failure to prosecute.

On May 24, 1974, appellant Malcolm Myers was dismissed from his employment as a photographer with the City of St. Louis. The dismissal followed a series of articles in the St. Louis Post-Dispatch which alleged that a number of full-time city employees, named in the articles, were devoting less than forty hours a week to their jobs. The city, in its notice of dismissal, charged that appellant was “unable or unwilling to perform the duties of his position in a satisfactory manner” and had “omitted to perform . . . acts it was his duty to perform.”

On June 3, 1974, appellant, who is black, filed a notice of appeal to the St. Louis Civil Service Commission and stated his belief that the dismissal was ordered for “racial, religious or political reasons.” A hearing date was set. On June 10, 1974, appellant filed a motion for discovery requesting certain items and information including every photographic film negative taken by appellant, the “date Log of each such negative from the date his employment . began until May 24, 1974 . . ” The motion also asked for the name and address of each employee of the city against whom allegations “similar” to those against appellant had been made and the records showing disposition of each such case. The city voluntarily provided appellant with some of the information and documentation requested but not the foregoing. Upon appellant’s request, a hearing was held before the commission on the city’s refusal. As a result of that hearing, the commission denied appellant’s request that the city be ordered to comply.

On January 20, 1975, appellant filed a motion for additional discovery requesting:

“8. Each photographic film negative or print together with the date log of each such negative or print, taken by employee, Malcolm Myers, in his capacity as Photographer I in the Department of Building & Inspection of the City of St. Louis, from January 1, 1973 through May 24, 1974;
“9. State the name, address and race of each employee of the City of St. Louis, who was subjected to disciplinary action by the City of St. Louis in the year 1974, after having been named in any one or more articles of a series of articles in the St. Louis Post Dispatch, written by Louis Rose or one or more other St. Louis Post Dispatch reporters and published in the St. Louis Post Dispatch during the years, 1973 and 1974 on the subject of the activities of St. Louis City employees during and between the hours of 8:00 A.M. and 5:00 P.M. on Mondays through Fridays.”

When the city indicated that it would not comply with the motion for additional discovery, appellant on January 28, 1975 requested another hearing before the commission and asked that the hearing on the merits set for February 7 be continued until this motion had been heard and decided.

On February 3, 1975, the commission notified appellant’s attorney by letter that it was denying his request for a hearing on the motion for additional discovery. It then made an equivocal reference to the request for continuance, which will be discussed in detail below. Neither appellant nor his attorney appeared for the hearing before the commission on February 7, 1975. The letter of February 3 was read into the record, and the commission dismissed the case with prejudice for failure to prosecute. In the petition for review filed in circuit court, appellant alleged that the commission’s letter failed to advise that “ . the hearing on the merits was still set for February 7, 1975 . . . ”

Appellant’s principal contentions here are: (1) that the failure of the commission to grant him a hearing on his motion for additional discovery deprived him of property rights without due process; (2) that the material requested in the second motion was properly discoverable; and (3) that the commission, in dismissing the case when appellant failed to appear for the hearing, “erred in setting aside the continuance it granted on February 3, 1975 without first notifying the appellant . . . ”

We consider first the question of the dismissal by the commission of appellant’s case which, for reasons hereinafter set out, we hold to have been improper. Our review is governed by Chapter 536, RSMo, and is limited by § 536.140 in this case to a determination of whether the commission’s actions violated constitutional principles or statutory requirements, was arbitrary and capricious, or constituted an abuse of its discretion. The question, however, does not arise as appellant frames it. Had the commission dismissed the cause without a hearing after clearly granting a continuance in its letter of February 3, it would be a simple matter to find its order arbitrary and unreasonable. The question is, rather, whether the commission’s action violated any of the standards of § 536.140 in view of the letter which may or may not be read to have granted a continuance of the hearing.

Initially, we note that Missouri law recognizes the “inherent right and power of a court, of its own motion and independently of statute or court rule, to dismiss an action for failure to prosecute . ” Bindley v. Metropolitan Life Insurance Co., 335 S.W.2d 64, 69[1] (Mo.1960); Salle v. Holland Furnace Co., 337 S.W.2d 87, 90 (Mo.1960). In the absence of any express limitation in statute or regulation, an administrative body acting in a judicial capacity must be presumed to have the same power. It is also true, however, that as a matter of policy Missouri law favors the disposition of cases on their merit when possible. Human Development Corporation v. Wefel, 527 S.W.2d 652, 655[2] (Mo.App.1975). The reason is simply that “ . the purpose of all courts is to do justice, . ” and the end of justice is best served when all litigants have had a chance to be heard. Savings Finance Corporation v. Blair, 280 S.W.2d 675, 678 (Mo.App.1955). It follows from this principle that “an appellate court is less likely to interfere when the trial court has set aside a default judgment than when it has not . . . ”

Levee District No. 4 of Dunklin County v. Small, 281 S.W.2d 614, 618 (Mo.App.1955).

The commission’s letter of February 3 was an attempt to notify the appellant of the date on which the hearing on the merits was to be held. We review the adequacy of that notice, for “ . . the first requirement of procedural due process is that adequate notice be given.” Valter v. Orchard Farm School District, 541 S.W.2d 550, 557 (Mo.1976). Although § 536.067, RSMo prescribes the form and content of notices which institute administrative proceedings, there are no formal requirements relating to supplemental notifications concerning changes of time, location, etc. Consequently, adequacy of such notices must be measured by such general principles as “ . . . due process of law is not satisfied unless the notice given is sufficient to make it reasonably probable that the party proceeded against would be apprised of what is going on . ,” In re Barger, 365 S.W.2d 89, 97 (Mo.App.1963) and “ . . . the notice should have been one reasonably calculated to apprise the plaintiff of the setting of the . . . case for disposition . . W. M. Crysler Company v. Smith, 377 S.W.2d 134, 139 (Mo.App.1964).

The record shows that on November 26, 1974 appellant’s attorney was notified by letter from the commission that the hearing was set for February 7, 1975. On January 28, 1975, the attorney requested a hearing on his motion for additional discovery and a continuance of the main cause. On February 3, the commission denied the request for a hearing on the motion and continued:

“With regard to a continuance of the hearing, it will be necessary for the Commission to reset this at the end of the docket, which at the present time is in the month of June. Kindly advise me if you wish the matter continued until the first available date at the end of the Commission’s docket.”

This part of the letter is certainly susceptible to a reading that the commission was granting a continuance until June and would, upon request, move the case back further to the first available day; or that the commission would grant no continuance unless further advised by appellant’s attorney. The first sentence leads one to believe that the continuance has been granted; the second leaves this in doubt. There is enough patent ambiguity in the letter to warrant a reasonable belief that the date of the hearing had been changed. In view of this ambiguity and the importance of the interests here involved, we hold that the notice given to the appellant was inadequate. We believe it “reasonably probable” that the recipient of such a letter, under the circumstances in which appellant’s attorney read it, would be misled as to when he was to appear for the hearing. The commission’s order dismissing the case is therefore void as a violation of due process.

We now turn to appellant’s contentions relating to his claimed right to a hearing on his motion for additional discovery. Appellant predicates his claim upon certain provisions of Rule XIII, § 3(a) of the commission. A review of the transcript in the circuit court reveals that the first reference to this rule appears in a letter from appellant’s counsel to the circuit court reporter ordering the preparation of the transcript. The letter, dated some twenty-nine days after the notice of appeal was filed, requests the reporter to include in the transcript St. Louis Civil Service Rules IX, XI, and XIII, §§ 1 through 8. The letter then continues that, “With this letter, I am including a copy of the City of St. Louis Civil Service Rules.” The court reporter complied with the request, though noting that there are nine sections in Rule XIII but only §§ 1 through 8 were requested. There is no indication in the record that the circuit judge was aware of the content of the rule or of its inclusion in the transcript. However, as before noted, the assistant city counselor representing the commission approved the transcript without objection. Assuming but not deciding that such act made the rule a part of the record in this ease, we address the issue whether the commission should have granted appellant a hearing on his second discovery motion. We hold that the commission’s denial of such a hearing was not error, deprived appellant of no rights to which he was entitled, and that the circuit court properly so held.

Rule XIII, § 3(a) provides:

“Hearings on matter involved in the administration and enforcement of Article XVIII and these rules not involving disciplinary action, shall be held upon receipt in writing, within (10) days after the effective date of such action, of a request for such hearing, in which is set forth the point at issue and reasons for the request.”

Neither this nor any other rule included in the transcript at appellant’s instance secures to him any prehearing discovery rights. We are cognizant of appellant’s right under Chapter 536, RSMo to take depositions, but this does not include other methods of discovery. This court recently said in National Advertising Company v. State Highway Commission, 549 S.W.2d 536, 541 (Mo.App.1977):

“Depositions, subpoenas and subpoenas duces tecum are provided for. Sections 536.070 and 536.073. Interrogatories are not mentioned. In the absence of such provision we must construe the statute to authorize only those methods of discovery specifically enumerated, and to exclude those not expressly mentioned. Giloti v. Hamm-Singer Corp., 396 S.W.2d 711 (Mo. 1965) [1, 2], Depositions and interrogatories are not the same.”

Appellant’s second discovery motion demands the production of certain items and documents and seeks information, the latter by way of interrogatory. Since appellant lacks access to such discovery mechanisms, the commission’s refusal to hold a hearing on the motion was proper.

The cause is remanded to the circuit court for remand to the Civil Service Commission for a hearing on the merits.

STEWART, P. J., and REINHARD, J., concur.

      . In an affidavit filed with the circuit court appellant’s attorney explained his failure to appear: he interpreted the letter of February 3 as granting a continuance; he believed that the notification requested in that letter concerned merely the time at which the continued hearing was to be rescheduled; he received a telephone call from the commission shortly before the hearing was scheduled to begin on February 7 informing him that the hearing was about to commence; he explained his misunderstanding about the letter of February 3 and asked for a continuance, inasmuch as he was scheduled to appear shortly in federal court; and the attorney for the city refused to agree to such a continuance. We need not weigh the propriety or credibility of the affidavit for the reason that we hold the letter to be ambiguous on its face. We do note, however, that the affidavit was included in the transcript which was approved by counsel for both parties.

      . If there were any other St. Louis Civil Service Rule which made such provision, we could not take judicial notice of it. Abbott v. Civil Service Commission of the City of St. Louis, 546 S.W.2d 36, 37[1] (Mo.App.1976).


author: CLEMENS, Presiding Judge.

text:
    Margaret O’DONNELL, Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION et al., Respondents.
    No. 39190.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.
    Joseph B. Lavin, St. Louis, for appellant.

      Rick V. Morris, Acting Chief Counsel, Charles B. Fain, Labor and Indus. Relations Comm., Jefferson City, for respondents.
   CLEMENS, Presiding Judge.

Plaintiff Margaret O’Donnell, formerly employed by defendant H. A. Pope and Sons, Inc. (Pope), has appealed from the denial of unemployment compensation benefits. Plaintiff quit her job rather than accept re-assignment. The issue is whether she quit for “good cause.” Section 288.050, RSMo.1969. We conclude she did not and affirm the denial of unemployment benefits.

For two years plaintiff had worked for Pope as a cook, “a general kitchen worker.” She was re-classified as a “manager-trainee,” and for the next two years worked at different cafeterias, getting experience in several areas of kitchen work. When the last operation closed, Pope had no other “trainee” positions available and re-assigned plaintiff to her former position as a cook at another location. As such, plaintiff’s compensation would be increased slightly and her working hours would be shortened, but plaintiff quit and applied for unemployment compensation.

In her appeal from the initial adverse ruling, plaintiff pleaded that the change in employment from trainee to cook would be “detrimental to my image.” At the hearing plaintiff explained: “I just liked the position that I had, you know, being the trainee.” Her supervisor testified plaintiff had told him her objection to a transfer was that “she would be working with people who she had worked with before as a supervisor and now would be working with them in their same peer group.” There was no evidence plaintiff had objective reasons for quitting.

Based on this evidence, the Industrial Commission held plaintiff had “left her work voluntarily without good cause.” On plaintiff’s appeal to the circuit court, Judge Hart filed a comprehensive memorandum distinguishing the out-of-state cases on which plaintiff relied, and concluded: “The question in this case is whether the petitioner had good cause to leave her employment because she could no longer work as a manager-trainee. I have concluded that she did not. ... I can’t say as a matter of law that petitioner had good cause to leave her employment.” Two Missouri cases on unemployment compensation support Judge Hart’s conclusion.

Citizens Bank of Shelbyville v. Industrial Com’n, 428 S.W.2d 895 (Mo.App.1968) concerned the rights of a clerical employee to unemployment benefits. She quit because her supervisor “gave her ‘the cold treatment every morning’ ” and would “just speak to me when it had something pertaining to the bank.” In denying compensation we declared: “The law excludes from benefits employees who leave their employment without good cause (§ 288.050, subd. 1[1]). We must interpret the words ‘good cause’ by their plain and rational meaning in the light of the purpose of the Employment Security Law . . . We hold that good cause for voluntary unemployment is limited to instances where the unemployment is caused by external pressures so compelling that a reasonably prudent person would be justified in giving up employment . The quitting must be for such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the ‘compensated unemployed.’ ... A harmonious relationship with a supervisor helps to make an employee’s work pleasant. But the Employment Security Law was designed to avoid the menace of economic insecurity, not to make work pleasant for employees.”

In Bell St. Bank v. Ind. Com’n Div. of Emp. Sec., 547 S.W.2d 841 (Mo.App.1977), four employees quit and sought unemployment benefits. Their stated reasons were three proposed changes in employment: wage payment dates, sick leave benefits and working hours. In ruling against the employees’ right to benefits the court held an employee must demonstrate “a genuine desire to work and be self-supporting.” The court ruled that “good cause” for quitting did not embrace “every ‘reason’ which appeals to an employee’s head or heart.” The court concluded: “To constitute good cause, the circumstances motivating an employee to voluntarily terminate employment must be real not imaginary, substantial not trifling, and reasonable not whimsical, and good faith is an essential element. The standard as to what constitutes good cause is the standard of reasonableness as applied to the average man or woman, and not to the supersensitive.”

Applying the principles of these two cases, we conclude plaintiff’s subjective reasons for refusing re-assignment and quitting her job did not constitute “good cause” and she was not entitled to unemployment compensation.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    Lavern STOUT, Appellant, v. Vernis STOUT, Respondent.
    No. 38608.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.
    Hale W. Brown, H. William Brown, Jr., Kirkwood, for appellant.
    Wayne L. Cummings, Belleville, for respondent.
   McMILLIAN, Judge.

This appeal arises from an action instituted by Vernis Stout against his former wife, Lavern Stout, to partition a certain parcel of realty currently held by both as joint tenants with the right of survivorship. Judgment was entered granting the partition and appeal was taken to this court.

On October 29, 1969, Lavern and Vernis Stout were divorced. On this date both signed a quitclaim deed to the above mentioned realty stating that they were owners of the fee as joint tenants with the right of ■survivorship. This deed was filed in Jefferson County on November 18, 1969. Appellant contends, however, that on the date the deed was signed both parties impliedly agreed not to partition or sell. Upon this contention revolves the only issue to be resolved on appeal; that is, whether the phrase “joint tenants with the right of sur-vivorship” contained in the deed amounts to an agreement not to partition. We hold that such words do not form the basis for such an agreement, and accordingly, affirm the trial court’s order granting partition.

By way of introduction it would do well to briefly point out the historical development of the law in this area. At first, according to English common law, partition by court order was obtainable only by co-parceners; that is, by co-heirs who had received undivided interests in land by inheritance. Therefore, initially the law did not allow partition of a joint tenancy. See I American Law and Property § 4.92 (A. J. Casner ed. 1952); Ames v. Cheyne, 290 Mich. 215, 287 N.W. 439, 440 (1939). As the law developed, however, statutes in most states were passed which authorized the right to partition. In § 528.030 RSMo 1969, Missouri created the statutory right to partition joint tenancies as well as tenancies in common.

As to the issue raised here the general rule in Missouri is that in the absence of an agreement, expressed or implied, not to partition the right to do so is absolute. Mack v. Mack, 286 S.W.2d 385, 388 (Mo.App.1956). As applied to the present situation appellant’s argument fails. There was absolutely no evidence presented at trial to prove that Vernis Stout had expressly or impliedly agreed with Lavern Stout not to partition the parcel of realty involved. Appellant argues, however, that the fact that the title was in joint tenancy with the right of survivorship is in itself an implication that there was an agreement not to partition. This argument is patently without merit. In Missouri, by statute, there is an absolute right to partition, § 528.030 RSMo 1969. The phrase “with the right of survivorship” is meaningful only to control the disposition of the fee upon death of one of the joint tenants. Such a phrase does not, as a matter of law, indicate by implication or otherwise an agreement not to partition.

Further, even if we were to find that the agreement here not to partition was made, the agreement would be invalid as an unreasonable restraint upon the alienation of property because it contained no limitation upon time or an express contingency which might terminate the agreement. See Mack v. Mack, supra. The Missouri Supreme Court stated in Haeussler v. Missouri Iron Co., 110 Mo. 188, 19 S.W. 75, 77 (1892):

“. . . The civil law refused to enforce agreements perpetually waiving the right of partition. Domat says: ‘It is always free for every one of those who have anything in common among them to divide it, and, although they may agree to put off the partition to a certain time, yet they can make no such agreement as never to come to a partition; for it would be contrary to good manners that the proprietors should be forced to have always an occasion of falling out by reason of the undivided possession of a common thing.’ Domat’s Civil Law by Strahan, pt. 1, bk. 2, tit. 5, § 2, art. 11. And Mr. Freeman, in his work on Co-Tenancy & Partition, (section 442,) maintains that this is the rule in England and the United States. Restraints and fetters upon the alienation and enjoyment of property are opposed to the common law, and especially to the jurisprudence of to-day, which, in the United States, at least, has almost wholly lost the spirit and genius of the feudal system and feudal tenures. . (Emphasis added.)

Applied here, the agreement would be invalid as it did not contain a limitation of time or an express contingency. Consequently, appellant’s argument is without merit.

Judgment affirmed.

CLEMENS, P. J., concurs.

SMITH, J., concurs in result.


author: SMITH, Judge.

text:
    Earl FINGERS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 38953.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.

      James E. Wynne, William E. Johnson, St. Louis, for plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Paul Otto, Jefferson City, Terrence J. O’Toole, Asst. Circuit Atty., George A. Peach, Circuit Atty., Edward W. Rogers, James W. McCartney, St. Louis, for defendant-respondent.
   SMITH, Judge.

Earl Fingers appeals from the action of the trial court in dismissing without an evidentiary hearing his motion to vacate five guilty pleas. The action of the trial court was upon the motion of the state to dismiss Fingers’ Rule 27.26 motion, and followed appointment of counsel and argument of the motion to dismiss. We affirm.

No evidentiary hearing was required unless Fingers’ motion met the following requirements: (1) it alleged facts, not conclusions, warranting relief, (2) those facts raised matters not refuted by the files and records in the case, and (3) the matters complained of resulted in prejudice to mov-ant. Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977); Smith v. State, 513 S.W.2d 407 (Mo. banc 1974).

Fingers’ motion alleged ineffective assistance of counsel in five particulars. Two of those are based upon a contention that he was “coerced and scared” into pleading guilty because his counsel advised him and suggested that Fingers’ family advise him that if he went to trial he would receive a sentence of 25 years or more. It is counsel’s obligation to advise his client of counsel’s opinion of the potential punishment which might be imposed upon trial. Stewart v. State, 542 S.W.2d 544 (Mo.App.1976). Such advice does not constitute coercion, even when coupled with a strong suggestion that defendant plead guilty and receive a lesser penalty. Fingers’ plea occurred during the selection of a jury on a charge of robbery, and two charges of assault with intent to kill with malice arising from the shooting and pistol whipping of two victims of that robbery. He pled also to two other robberies occurring within a few days of the robbery for which he was on trial. Under the circumstances of the crimes related by the prosecutor at the time of the guilty pleas and acknowledged by Fingers in open court, the opinion of counsel was not unwarranted. We find no facts alleged which would warrant relief on mov-ant’s coercion allegations.

Movant, in bald conclusory language, alleges his counsel failed to investigate the case. This is not a fact allegation. It further fails to state in what regard counsel failed to investigate and what an investigation might have disclosed that would have been helpful at trial. The allegation is insufficient to require an eviden-tiary hearing. Smith v. State, supra.

The remaining two allegations were based on the contention that Fingers was misled into pleading guilty because of assurances that he would receive a maximum of 10 years imprisonment. In fact, he received three 10 year terms for the robberies, to run concurrently, and two five year terms for the assaults, to run concurrently to each other and consecutively to the terms for the robberies. In short, he received a total of 15 years. The court explained carefully to movant the range of punishments possible and that the court could assess whatever punishment it chose within that range. Movant stated his understanding of this. The prosecutor recited the nature of five crimes involved and the state’s recommendation of punishment, which was identical to that ultimately assessed by the court. The court expressed some doubt that the recommended punishment was adequate in view of the number and seriousness of the crimes involved. Following this dialogue, the court once again advised Fingers that the court was not bound by the prosecution’s recommendations although it usually followed them. The court then stated that although the recommendations were not “very heavy” it would follow them. After this statement, the court once more asked movant if he understood what he was doing in pleading guilty and whether he was doing so voluntarily. Movant answered in the affirmative. The record of the guilty plea proceeding totally refutes movant’s contention that he was misled into pleading guilty.

Judgment affirmed.

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


text:
    Lionel CRAWFORD and Karen Crawford, Plaintiffs-Appellants, v. Ernest CHILDRESS, Defendant-Respondent.
    No. 39188.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.
    Howard, Singer & Meehan, Raymond Howard, Kenneth R. Singer, St. Louis, for plaintiffs-appellants
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, Mark F. Haywood, St. Louis, for defendant-respondent.
   McMILLIAN, Judge.

Appellants Lionel and Karen Crawford appeal from a judgment entered upon a jury verdict in favor of respondent Ernest Childress in the circuit court of the City of St. Louis. For reversal appellants argue that the trial court erred in giving respondent’s contributory negligence instruction, thus allowing the issue of appellant Lionel Crawford’s contributory negligence to be submitted to the jury. For the reasons discussed below, we disagree and accordingly affirm the judgment of the trial court.

Appellants brought this action against RX Delivery Service, Inc., and respondent for damages sustained as a result of an automobile accident. Before trial appellants dismissed their actions against RX Delivery Service, Inc. The accident occurred at the intersection of Union Boulevard and Wells Avenue at 1:30 a. m. on October 18, 1972. Appellant Lionel Crawford (hereinafter referred to as appellant; Karen Crawford was not involved in the accident and sought damages for loss of consortium) was driving north on Union Boulevard; respondent was driving west on Wells Avenue. There were no passengers in either vehicle. It was raining at the time of the accident and the pavement at the scene was wet. At the time of the accident there was no stop sign, traffic signal or other traffic control device for northbound vehicles on Union at this intersection. There was, however, a stop sign for westbound traffic on Wells Avenue.

At trial appellant testified that he was driving north on Union Avenue in the lane next to the center line and, as he approached the intersection of Union Boulevard and Wells Avenue, was traveling approximately 25 miles per hour. At the time of the accident there were no other vehicles in the immediate area other than appellant’s and respondent’s cars. Appellant stated that, as he approached the intersection, he saw the headlight beams from a vehicle coming toward the intersection from the east on Wells (going west) and then saw respondent’s car run into the intersection without stopping. Appellant further stated that when he first saw respondent’s car, he sounded his horn and turned his steering wheel to the left to avoid respondent’s car, but that respondent continued westward through the intersection and the two cars collided. Appellant testified that after the accident he talked with respondent and that respondent smelled of alcohol and looked “a bit dizzy.”

Respondent admitted having two beers at some time between 8:30 p. m. and 1:00 a. m., on the night of the accident. Respondent, however, testified that he was driving west on Wells and did stop at the stop sign at the intersection of Wells and Union. Respondent stated that a row of hedges prevented him from looking toward the south (the direction from which appellant’s car approached the intersection) and, after his first stop at the stop sign, he drove into the intersection four to six feet and stopped again in the curb lane on Union. At this point respondent saw appellant’s car heading north on Union in the lane next to the center line. According to respondent, appellant changed lanes, driving into the curb lane, and struck respondent’s car. Respondent further testified that the speed limit on Union Boulevard at the time of the accident was thirty or thirty-five miles per hour, that appellant’s car was going faster than thirty or thirty-five miles per hour when he first saw it, and that appellant approached the intersection at a speed of about fifty miles per hour.

Respondent offered a contributory negligence instruction, alleging appellant had been driving at an excessive rate of speed. Appellant objected to this instruction at trial on the ground that there was no evidence of excessive speed. The jury verdict was returned in favor of respondent and against appellants. Appellants’ motion for judgment or in the alternative for a new trial alleged there was no creditable evidence of contributory negligence and was overruled by the trial court. This appeal followed.

Appellants argue that the trial court erred in giving the contributory negligence instruction to the jury because there was no substantial evidence that appellant was driving at an excessive speed or that appellant’s speed was the proximate cause of the accident. To decide whether respondent’s contributory negligence instruction is supported by substantial evidence, we consider the evidence in the light most favorable to respondent and disregard all unfavorable evidence, e. g., Hood v. Heppler, 503 S.W.2d 452, 455 (Mo.App.1973); citing Janicke v. Hough, 400 S.W.2d 645 (Mo.App.1966). The issue of negligence, in this case contributory negligence, based upon excessive speed may be proved either by direct testimony or by proving facts which are of such a nature and so related that the conclusion of excessive speed may be reasonably inferred, e. g., Russell v. Kotsch, 336 S.W.2d 405, 409 (Mo.1960); Powell v. Watson, 526 S.W.2d 318, 326 (Mo.App.1975). Unlike the Powell case in which there was no testimony by a witness as to the speed of the car involved, in the present case respondent testified that appellant’s car was going faster than the speed limit, which respondent believed to be thirty or thirty-five miles per hour, and was approaching the intersection at fifty miles per hour. There was additional testimony that it was raining at the time of the accident and that the pavement at the scene was wet. After reviewing the record, we believe there was substantial evidence to support a reasonable inference of excessive speed, e. g., Powell v. Watson, 526 S.W.2d 318, 326 (Mo.App.1975); cf., Kratzer v. King, 401 S.W.2d 405, 407 (Mo.1966) (failure to keep a careful lookout). Therefore, the trial court did not err in giving the contributory negligence instruction to the jury.

Appellant also argues that the trial court erred in giving the contributory negligence instruction because there was no evidence of proximate cause. It is, however, unnecessary to consider this allegation of error because it was not properly preserved for review. The specific theory of appellants’ objection to the contributory negligence instruction at trial and in the motion for judgment or for a new trial was that there was no evidence of excessive speed; appellants’ brief on appeal advances another theory of objection, lack of proof of proximate cause. Appellant may not urge instruction errors on appeal that differ from and were not included in the specific objections made to the trial court, whether before submission of the case to the jury or in the motion for new trial. Rules 78.07, 84.13(a), V.A.M.R.; e. g., Helming v. Adams, 509 S.W.2d 159, 168 (Mo.App.1974); Robinson v. St. John’s Medical Center, 508 S.W.2d 7, 11 (Mo.App.1974).

Accordingly, judgment is affirmed.

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

      . Instruction No. 5:
      “Your verdict must be for defendant Ernest Childress on plaintiffs Lionel Crawfords’ and Karen Crawford’s claims for damages whether or not defendant Childress was negligent if you believe:
      “First, plaintiff Lionel Crawford drove at an excessive speed, and
      “Second, plaintiff Lionel Crawford was thereby negligent, and
      “Third, such negligence of plaintiff Lionel Crawford directly caused or directly contributed to cause any damage plaintiffs Lionel Crawford and Karen Crawford may have sustained. (MAI 32.01, 17.01, 17.03)”