author: KELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Paul David RAINS, Appellant.
    No. 36265.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 11, 1976.

      Kenneth L. Waldron, John P. Lichteneg-ger, Jackson, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for respondent.
   KELLY, Judge.

Paul David Rains, appellant, takes this appeal from a judgment of the Circuit Court of Cape Girardeau County, entered upon a jury verdict finding him guilty of Burglary, Second Degree, § 560.070, RSMo 1969. Rains’ motion for new trial was timely filed, argued and denied. Allocution was granted and the trial court, having previously made a finding, after an evidentiary hearing, that appellant was a “second offender” within the meaning of § 556.280 RSMo 1969, sentenced him to imprisonment in the custody of the Missouri Department of Corrections. § 560.095 RSMo 1969. Leave was granted for Rains to appeal as a poor person and a timely notice of appeal was filed.

The evidence in the record offered on behalf of the state is that on the morning of March 1, 1974, the manager of a motel called police between 1:30 and 2:00 a. m. to report that the motel had been broken into by a man whom he described as being light-haired, 5' 6-8" tall, 165-180 pounds, and wearing a short jacket. When the police arrived, they gave Evans, the manager five or six photographs to look at, from which he chose the photograph of the defendant. The police then left, arrested the defendant approximately one-quarter mile from the motel and returned with him to the motel parking lot at about 2:30 a. m. After asking the defendant to stand up, the witness identified him as the man he had seen in the motel office some forty-five minutes before.

Defendant was charged with second degree burglary in violation of § 560.070 RSMo 1969. At the arraignment, held April 1, 1974, the trial judge gave the defendant fifteen days to file any pre-trial motions. A motion to suppress Evans’ in-court identification of the defendant as the burglar was filed on May 9,1974. A motion for disclosure, generally, of any evidence the state had which was favorable to the defendant was filed the morning of the trial, May 14, 1974. Both motions were denied without hearings as being untimely filed.

At trial, the state introduced, over defendant’s objections, a screwdriver found approximately 60 feet from the motel in a public alley, and testimony attempting to connect that screwdriver to the crime. Evans was allowed, without objection from the defendant, to make an in-court identification of the defendant. When the defense attempted to cross-examine the witness about the identifications made by photograph and on the motel parking lot, the state objected and the trial court sustained the objections. The defense was allowed to cross-examine Evans about his ability to view the burglar during the crime. An offer of proof as to testimony regarding the two pre-trial identifications was made out of the hearing of the jury, but it was not admitted.

Appellant raises seven points relied on for reversal of his conviction. They are that the trial court erred in:

1) overruling his motion for disclosure and his motion to suppress without a hearing on the merits;
2) precluding his counsel from any cross-examination or oral argument to the jury concerning the basis of the in-court identification and the circumstances and procedures used in the identification of the appellant by the state’s principal witness;
3) refusing to give the approved alibi instruction, MAI-CR 3.20;
4) admitting into evidence the state’s principal witness’ in-court identification of the defendant;
5) admitting into evidence a screwdriver found in a public alley some distance from the scene of the burglary, and
6) failing to sustain his objection to testimony relative to the ownership of the building which was hearsay;
7) failing to sustain his motion for judgment of acquittal at the close of all of the evidence because the evidence adduced by the state is insufficient to establish that the motel allegedly burglarized was the property of Quentin Parrish and that there was any personalty belonging to Mr. Parrish kept or deposited in the building as alleged in the Amended Information on which the cause proceeded to trial.

Appellant’s first point is without merit. On April 1, 1974, when he was arraigned, the trial court, pursuant to the provisions of Rule 25.06 that any defense or objection capable of determination without trial of the general issue may be raised before trial by motion, and within such time before trial as the court may fix, entered an order granting the defendant 15 days to file motions and set them for argument on May 6, 1974. By this same order trial of the cause was set for May 14, 1974. On May 9, 1974, appellant’s attorney filed a Motion for Disclosure requesting the trial court to order the prosecuting attorney to disclose to him “all evidence material to guilt or punishment in his files, or otherwise known to him, which is or may be favorable to said defendant at the trial of this cause, . . ” (Emphasis supplied). On the morning set for trial the trial judge conducted a pre-trial conference commencing at 8:30 a. m. at which he heard evidence relative to the second offender allegations in the Amended Information and made his findings thereon. It was during this pre-trial conference that defense counsel advised the trial judge that with respect to his motion for disclosure he had, “last Friday,” gone by the prosecuting attorney’s office and saw 5 or 6 photographs purporting to be scenes of various areas of the building where the offense occurred and that these were the only items disclosed to him. The prosecuting attorney acknowledged his obligation to show defense counsel any favorable evidence he might possess and offered to him a copy of a lab report he had received from the Southeast Missouri University laboratory which reported that an examination of appellant’s clothing revealed no glass in said clothing. Defense counsel replied: “That’s fine. We’d like to have that in evidence. We don’t object to that at all, Judge.” During the state’s case and while defense counsel was cross-examining Detective-sergeant James Crites of the Cape Girardeau Police Department, an officer who investigated the burglary, this laboratory report and the fact that no particles of glass were detected in appellant’s clothes he was wearing at the time of his arrest was developed, and the report itself was marked as “Defendant’s Exhibit 4,” admitted into evidence at appellant’s request, and passed to the jury for inspection. The trial judge, as appellant contends, denied appellant’s Motion for Disclosure on the ground it was untimely filed.

The proceedings under review on this part of appellant’s first point occurred prior to July 1, 1974, when the newly adopted Criminal Rule 25.31 and 25.32 — providing for requests or motions for discovery and disclosure by the state to the defendant without court order — went into effect. Pri- or to that date there was no general right to discovery in criminal eases. State v. Tressler, 503 S.W.2d 13, 17[4] (Mo.1973), cert. denied 416 U.S. 973, 94 S.Ct. 2000, 40 L.Ed.2d 563; State v. Mitchell, 500 S.W.2d 320, 324[9] (Mo.App.1973). The trial court was authorized to set a pre-trial, date for the filing of motions and objections and appellant has not presented to the trial court, nor to this court, any explanation or reason why his counsel did not comply with the trial court’s order. Nor has appellant’s counsel revealed that he has any reason to suspect or to know that the prosecuting attorney has, or had, any evidence other than the laboratory report which is or might be favorable to his defense. He argues: “The State (sic) failing to disclose resulted in great prejudice to the defendant. The State’s principal witness testified that entry (sic) gained to the hotel by breaking a door glass. The evidence (laboratory report) which the prosecutor made available affirmatively showed that no particles of glass were contained in defendant’s clothes.” This same laboratory report, which according to the record was received by the prosecutor on the day prior to the pre-trial conference — Monday, May 13, 1974 —and was, during the cross-examination of Sgt. Crites, identified, marked, read from and passed to the members of the jury for their inspection and examination. Any prejudice which the appellant might have suffered was removed by this act of his counsel in getting the laboratory report in the record and before the jury.

We hold that under the facts of this case the trial court did not err in overruling appellants’ Motion for Disclosure which was untimely filed.

Because of the result we reach in this case, and likelihood that it will be retried on remand, we consolidate the second alleged error contained in appellant’s first point with those trial errors alleged in points 2 and 4, because they all rest on the question of appellant’s identity as the culprit in this burglary.

Appellant’s contentions on these points refer to the failure of the trial court to afford him a hearing on his motion to suppress the in-court identification of Mr. Evans prior to trial, admitting into evidence Mr. Evans’ in-court identification, and the refusal of the trial court to permit him to cross-examine Mr. Evans relative to a photographic identification procedure and a “one-on-one” confrontation on the motel parking lot some time thereafter, both within an hour after the burglary was reported to the police. Our source of information on these points is the offer of proof made by the appellant’s counsel at the time his cross-examination was cut-off by the respondent’s objection and testimony of the arresting officer, and while it is not extensive, it is sufficient to aid us in our ruling.

Appellant’s attack in this court is based upon his constitutional right to due process of law guaranteed to him by the 5th and 14th Amendments to the Federal Constitution, and despite the fact we have concluded that his Motion' to Suppress was filed out of time and therefore in violation of Rule 25.06, we are aware of no Rule nor appellate decision of the courts of this state requiring that the hearing on the motion be conducted out of the presence of the jury. As the state points out in its brief, appellant interposed no objection at trial when Mr. Evans’ in-court identification came in.

Nevertheless, we conclude that there is merit to appellant’s contention that there was prejudicial error committed when the trial court precluded him from cross-examining Mr. Evans concerning the procedures employed at the time he was shown a photograph of the appellant and the “one-on-one” identification on the motel parking lot, and for this reason we must reverse and remand this case for a new trial.

During the cross-examination of Mr. Evans, appellant’s counsel sought to interrogate him about whether when the police officer arrived at the scene of the burglary they brought with them 5 or 6 pictures for him to look at. The prosecuting attorney objected on the grounds that this was immaterial and irrelevant and the trial court sustained the objections. The next question was: “Q. The police said nothing to you?" The prosecuting attorney then said: “Objection, Your Honor.” The Court said: “Sustained.” Further attempts were made by defense counsel to develop this line of inquiry and finally the prosecuting attorney asked if he could approach the bench. Permission was granted, a colloquy out of the hearing of the jury took place wherein objection was again interposed by the prosecutor on the grounds that this evidence was immaterial because counsel had permitted the in-court identification to come in without objection and therefore waived any objections he might have, and he again was sustained by the trial court. Appellant’s counsel argued that this evidence was admissible on the issue of whether the witness’ identification was based upon his independent judgment, his memory and his credibility and whether his identification was based upon the photograph. The objection was sustained on the grounds that these matters could have been raised by a timely motion and because they had not been they were waived, and for the further reason the evidence came in without objection. Defendant’s counsel was then advised by the trial judge that he was precluded from going into the “basis for the identification,” and instructed counsel that he was not to inquire regarding the parking lot identification.

By way of offer of proof appellant’s counsel examined Mr. Evans, out of the presence of the jury, and developed that when the police arrived at the motel they brought with them 5 or 6 black and white photographs — “mug shots” — which they gave to him and from which he selected one as the burglar he had seen earlier. The six photographs shown to him were of “all types of people; some had different hair than others, and they were all white males. The photos were from the chest up — ‘just a face.’ ” One could not tell from the picture how tall the subjects were nor, “within pounds,” how much they weighed. He could not see the names of the men on the pictures because “they covered that up” when they showed him the pictures. All one could get from the pictures were the facial features. At the conclusion of the offer of proof, the objection of the prosecutor was interposed to the offer of proof and in sustaining the objection the trial judge said: “. . .Iam not going to preclude you from testing this witness’ memory, Mr. Waldron, but I am going to sustain that portion of the offer of proof that concerns the identification process through the use of the photograph and the one on one identification on the parking lot and all questions relating to those two subjects . . .”

We find that the error here is occasioned by the failure of the prosecuting attorney, and the trial judge, to distinguish between interrogation involving the admissibility of in-court identification testimony and the proper scope of cross-examination available to defense counsel to test identification testimony. Although appellant may have waived the question of whether the in-court identification of the appellant by Mr. Evans because of some possible tainting by the procedures employed in this case through his failure to file a timely Motion to Suppress and/or failure to object to the evidence when it came in, he did not thereby waive his right to cross-examine the witness relative to these procedures so that the jury as the ultimate trier of fact could judge for itself the credibility and validity of the identification of appellant as the burglar by the sole eye-witness.

There is no authority cited by the state to support the denial of cross-examination on the subject of a defendant’s identification as the perpetrator of a crime. Mr. Evans’ identification of appellant as the burglar in this case is the only evidence implicating appellant in this crime. It is the crux of the prosecution’s case. Respondent relies on the general principle enunciated in a number of Missouri cases that a trial court has broad discretion in limiting cross-examination where the witness’ testimony involves the credibility of the witness, United States v. Brown, 482 F.2d 1226, 1229[6] (8th Cir. 1973), State v. McAllister, 468 S.W.2d 27, 30[6] (Mo.1971), State v. Johnson, 486 S.W.2d 491, 496[4] (Mo.1972), and others. We have no quarrel with this general principle, but we conclude that although appellant’s counsel was permitted some cross-examination relative to Mr. Evans’ ability to observe the burglar for a short period of time in the lobby of the motel he should also have been permitted to cross-examine him about the circumstances surrounding the photographic display and the one-on-one confrontation on the motel parking lot.

While the courts of this state have approved the identification procedures employed by the police officers in this case, they remain cognizant of the innate suggestiveness of the methods and have required trial courts, when appropriate pre-trial motions questioning the procedures have been filed, to conduct an evidentiary hearing and make a preliminary finding that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), Anno. 39 A.L.R.3rd 487, 39 A.L.R.3d 791, 39 A.L.R.3d 1000.

The Oklahoma Court of Criminal Appeals in Davis v. State, 467 P.2d 521, 523 (1970) considered the right of a defendant to conduct cross-examination and the pre-trial procedures employed and concluded that in the light of Simmons, supra, the defendant should be allowed to cross-examine witnesses relative to the pre-trial identification of the defendant whether by photograph or lineup because the weight and credibility to be given to the testimony of witnesses making court-room identifications is a matter for the jury’s determination and a refusal to allow such cross-examination constitutes error so prejudicial as to require reversal. In Davis the defendant had interposed an objection to the in-court identification testimony at trial, but we do not believe that distinguishes Davis, supra, from this case on this point. United States v. Dickens, 417 F.2d 958, 962[5] (8th Cir. 1969) recognized that the right of a defendant to engage in cross-examination is an essential requirement for a fair trial, and where it has been abridged, prejudice need not be shown to justify reversal.

In this case, although Mr. Evans had opportunity to observe the burglar in the lobby of the motel under what he categorized as good lighting conditions — i. e. light from a clock and also from a cigarette machine— the evidence that the police officers answered the report of the crime within minutes and armed with five photographs, among which was one of this appellant, coupled with the one-on-one confrontation on the parking lot, together with the surrounding circumstances, are matters counsel had a right to interrogate the witness on.

We hold that the trial court erred in precluding cross-examination on the identification procedures under the facts of this case, that said error was prejudicial and the appellant’s conviction must be reversed and remanded for a new trial.

Appellant’s point that the trial court erred in refusing to give the alibi instruction — MAI-CR 3.20 — is without merit because there was no evidence in the record to support the giving of the instruction and although requested, the instruction was properly refused.

Appellant’s contention that the trial court erred in admitting into evidence the in-court identification is, on this record, without merit. However, because we are reversing the case and remanding it for a retrial on the grounds stated, we direct the trial judge to conduct a pre-trial evidentia-ry hearing on the issue of whether the identification procedures and the circumstances under which they were conducted were impermissibly suggestive so as to render the in-court identification inadmissible on those grounds and to make a finding thereon. We take this tack, not because we have concluded that the trial judge erred in overruling appellant’s untimely motion to suppress without a hearing in the first instance, but because the ends of justice will be best served and all of the facts will be developed in an evidentiary hearing on the issue of admissibility.

Appellant’s next point is directed to the admission into evidence of a Phillips screwdriver found in an area approximately 60 feet from the motel building in the general direction in which the burglar made good his escape. This screwdriver was found in a gravel driveway open to the public just east of one of the two motel parking lots there. There was evidence in the case that the north door to the motel had pry marks on it and that Sgt. Crites had compared the marks he saw on the door and the screwdriver and he found them comparable. On cross-examination the Sergeant testified that there was no way he could positively say the Phillips screwdriver in evidence was the one used in this occurrence.

Testimony concerning any physical object connected with a crime tending to show the manner in which the crime occurred may be admitted into evidence, and this rule of evidence has a special application when the articles, instruments, or weapons indicative of the crime are found near the scene of the crime subsequent to the commission of the crime upon the theory they may tend to explain the crime, although not otherwise connected with the accused. State v. Parr, 296 Mo. 406, 246 S.W. 903, 905[3] (1922), State v. Henderson, 510 S.W.2d 813, 821[9] (Mo.App.1974). We hold this rule applicable here and rule this point against appellant.

Appellant’s next two points shall be considered simultaneously because they both are directed at the question whether the prosecution established the ownership of the building which was burglarized. The amended information on which the cause proceeded to trial contained the following allegations:

“Paul David Rains, did then and there wilfully, unlawfully, and feloniously and burglariously break and enter a certain building known as Parrish’s Downtown Motel, . . . , the property of Quentin Parrish, with the felonious and bur-glarious intent to steal, take and carry away certain goods, wares, merchandise or personal property of the aforesaid Quentin Parrish then and there kept or deposited in the said building . . . ”

Mr. Parrish did not appear and testify at the trial. The only evidence in the record to support these allegations came in during Mr. Evans’ testimony when he was permitted, over objection that it was hearsay, to testify that Homer Quentin Parrish of Car-bondale owned the motel since Mr. Evans had been employed as manager of the motel, over a period of almost six years.

The cause was submitted to the jury on an MAI-CR 7.32 instruction in which the name Quentin Parrish was inserted in the appropriate blank space as owner of the building “broken into.”

The Supreme Court in State v. Burke, 462 S.W.2d 701, 707 (1971) held that § 560.070 RSMo 1969 is stated in general terms and should be construed as at common law. The usual holding is that an information for burglary must allege the ownership of the building burglarized; otherwise, it is fatally defective. State v. Wright, 339 Mo. 41, 95 S.W.2d 1159, 1161[5] (1936); State v. Carey, 318 Mo. 813, 1 S.W.2d 143, 146[6] (1927). However, proof of the ownership of a building burglarized does not refer to the title but the occupancy. State v. Harrison, 285 S.W. 83, 87[14] (Mo.1926), “There are only two reasons for requiring the ownership of the house to be stated in an indictment for burglary: (1) for the purpose of showing on the record that the house alleged to have been broken into was not the dwelling house of the accused, inasmuch as one cannot commit the offense of burglary by breaking into his own house, and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.” 13 Am.Jur.2d Burglary § 37 (1964).

Appellant’s objection was that Mr. Evans’ testimony was “hearsay” with respect to the ownership of the motel; however, there is nothing in this record to support his statement and we may not assume that Mr. Evans’ testimony was based upon anything other than his own knowledge. He, as manager of the motel, may well have sufficient knowledge of this fact, and in the absence of any cross-examination to cast doubt on whether it is hearsay, we cannot so conclude.

In State v. Jackson, 411 S.W.2d 129, 131[4] (Mo.1967), where in a burglary case, the defendant contended that the state did not prove corporate existence of “Metal Goods Corporation, as alleged in the information,” the court held that there was sufficient evidence of same when the general credit manager testified that Metal Goods Corporation was a Missouri corporation which owned the building which was burglarized and the contents thereof. We too believe that Mr. Evans’ testimony was sufficient in this case to make a submissible case on that issue and that the trial court did not err in either admitting it into evidence nor in overruling appellant’s motion for acquittal at the close of all the evidence.

Reversed and remanded.

CLEMENS, P. J., and STEWART, J., concur.

      . We are, however, of the opinion that it is the better practice to conduct the evidentiary hearing on a timely filed motion to suppress identification evidence out of the presence of the jury.


source: Caselaw Access Project

license: Public Domain

text:
    Harold V. KAELIN and Lorna Kaelin Plaintiffs-Appellants, v. Frank NUELLE d/b/a W. F. Nuelle & Sons, Defendant-Respondent, and Mabel Cathey, Defendant-Appellant.
    Nos. 36001, 36002.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 11, 1976.

      Goldenhersh & Newman, St. Louis, for Harold V. Kaelin and Lorna Kaelin.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for Mabel Cathey.
    Hiram W. Watkins, Clayton, for defendant-respondent.
   KELLY, Judge.

These are consolidated appeals in which the plaintiffs in the trial court, Harold and Lorna Kaelin, sought damages for personal injuries sustained by Mr. Kaelin as a result of the alleged negligence of defendants Frank K. Nuelle and Mabel Cathey. At the conclusion of all of the evidence the trial court sustained the motion of defendant Frank Nuelle for a directed verdict and submitted the case to the jury against Mrs. Cathey on failure to keep a careful outlook or on failure to swerve. The jury after deliberations returned a verdict for Mr. Kaelin on Count I of his petition awarding him damages of $47,500.00 but found in favor of the defendant on Mrs. Kaelin ⅛ claim for loss of consortium under Count II of the petition. Mr. Kaelin filed a Motion for New Trial as to the trial court’s ruling on defendant’s Nuelle’s directed verdict. Mrs. Kaelin filed her Motion for New Trial as to the trial court’s ruling on defendant Nuelle’s directed verdict and a Motion to Set Aside the jury verdict in favor of Mrs. Cathey on Count II of the petition and for judgment in her favor against Mrs. Cathey or, in the alternative for a new trial on the issue of damages only, or as another alternative, for a new trial against both defendants. Defendant Cathey also filed her Motion for Judgment in accordance with her motion for a directed verdict, or, in the alternative, for a new trial on Count I of plaintiffs’ petition, or, in the alternative, for reduction of judgment. In due time these motions were argued and denied. These appeals followed.

Because of the points presented on review in this court and the necessity to state the facts in the case in light of the issues, it is sufficient at this stage of this opinion to state that the occurrence in evidence took place at approximately 2:00 a. m. on June 19,1970, on Highway 1-55 in the City of St. Louis in the vicinity of the Poplar Street Bridge exit on a portion of the Highway just north of where the highway commences to dip down to go under a railroad overpass and the Poplar Street Bridge. There were two separate collisions; the first between a pick-up truck, the property of Mr. Nuelle, and the Kaelin automobile, a 1963 Dodge fourdoor, and the second, a few minutes later, between Mrs. Cathey’s 1969 Pontiac Convertible and the Kaelin motor vehi-ele. The evidence is that Mr. Kaelin sustained serious bodily injuries and his motor vehicle was extensively damaged. The damages as such are not in issue on this appeal.

Because of the nature of the points presented for review we shall hereinafter state the facts more in detail as we consider each appeal separately.

I.

THE KAELIN APPEAL ON THE DIRECTED VERDICT FOR NUELLE

The issue presented in this appeal is whether the plaintiffs pleaded and proved that defendant Nuelle was guilty of negligence because he either knew or should have known that there was a likelihood that his pick-up truck would be stolen, but he nevertheless negligently failed to secure the vehicle and its keys from theft, and that such conduct was the proximate cause of the collision which caused the Kaelins’ injuries and damages. As plaintiffs state in the argument portion of their brief, “the issue on this point is pure and simple ‘forseeability.’ ” We affirm.

The granting of a directed verdict at the close of the plaintiffs’ evidence is a drastic action which should be taken only when all the evidence and reasonable inferences therefrom are so strongly against the plaintiff that reasonable men could not differ. When the party having the burden of proof has adduced substantive evidence on a pleaded issue, that issue should be submitted to the jury and it is reversible error to direct a verdict against that party. In deciding whether the plaintiffs in this case adduced substantial evidence which would require that their theory of Mr. Nuelle’s negligence be submitted to the jury, it is our duty to view the evidence before the trial judge who directed the verdict against the plaintiffs in a light most favorable to the plaintiffs and indulge in all reasonable inferences from the evidence in their favor. Except when unreasonable or opposed to physical laws, plaintiffs’ evidence must be taken as true. However, we must find substantial evidence supporting plaintiffs’ claim; a mere scintilla of evidence is not sufficient. Eyler v. Allison, 500 S.W.2d 49, 50[1-6] (Mo.App.1973).

Viewed in light of the foregoing principles, the evidence adduced by plaintiffs at trial was that Frank Nuelle was the owner of the pick-up truck with which Mr. Kaelin collided head-on. Mr. Nuelle operated a service station at 3808 Enright Avenue, which actually faced on Spring Avenue, a north-south street. The office portion of the service station was situated on the north side of the service station building and within the office there was, in addition to a desk, a cash register and “things of that sort.” The door to the office had three locks; two on the door itself and one on an iron grating over the door. Immediately to the south of the office were two garage stalls; these stalls had no doors on them. To the south of these stalls were two more garage stalls, but these had doors on them which could be locked, and the keys to these doors were kept in Mr. Nuelle’s pockets.

Mr. Nuelle had operated this service station for forty-three years, and since 1930 had customarily parked a pick-up truck in the unlocked garage stall closest to the office in such a manner as to prevent anyone from obtaining entry into a supply room situated next to the office in the service station. Five years prior to this occurrence, Mr. Nuelle began experiencing thefts at the service station, and during that period his business was burglarized eight or nine times. His pick-up truck had been “stolen” twice prior to June 18, 1970, and on one occasion the truck was found at the corner of the alley but its motor had not been started. On the other occasion he found the truck in the vicinity of Sarah and Washington, 3 or 4 blocks from his place of business. In 1967 someone had attempted to steal a customer’s car from one of the locked garage stalls by crashing the car through the door of the stall.

At about 8:00 p. m. the evening of June 18, 1970, Mr. Nuelle parked the pick-up truck in its customary position in the garage stall closest to the service station building, turned off the ignition, removed the keys and locked both doors and the window vents. He left the premises and did not return until the following morning when he discovered that the pick-up truck was gone from where he had left it. He called the Ninth District police station and reported that the truck had been stolen.

Sometime after Mr. Nuelle left the premises on the night of June 18, 1970, someone stole his pick-up truck and at approximately 2:00 a. m. on June 19, 1970, while operating the truck in a southerly direction over and along the northbound inside lane of Highway 1-55 without any headlights and at a high rate of speed, collided head-on with the Kaelin automobile which was then being operated by Mr. Kaelin northbound on the same highway.

Following the collision witnesses testified that they observed the driver of the pick-up run from the truck, cross the highway and flee the scene.

Later the same morning both vehicles were towed from the scene of the collision to the premises of the Metropolitan Towing Service where two of Mr. Kaelin’s brothers testified they saw the Nuelle pick-up truck that same day and each said that when they viewed the truck there were ignition keys in the ignition of the truck and denied seeing any jumper under the hood or under the dashboard of the truck.

There is no issue presented on this appeal with respect to the injuries and medical expenses sustained by Mr. Kaelin nor the property damage to the Kaelin vehicle.

Briefly stated, plaintiffs’ argument is that defendant Nuelle either knew or should have known, in the exercise of ordinary care, that by leaving the pick-up truck in an unlocked garage stall, and by reason of his past experience that 1) his place of business had, on 8 or 9 occasions, been burglarized, 2) this same truck had been removed from this same open garage stall on two prior occasions, 3) an attempt had been made on one occasion to steal a customer’s car from one of the locked garage stalls, and 4) he nevertheless left the keys to the truck in the ignition knowing that someone might steal his truck and operate it in a negligent manner so as to injure someone, and more particularly, Mr. Kaelin.

We have examined the authorities cited by both parties on this appeal and for those who are interested with the numerous decisions where the question of the liability of a motorist who left the key to his motor vehicle in the ignition of the motor vehicle for damage or injury caused by a stranger operating the motor vehicle are treated, we would refer them to an extensive annotation in 45 A.L.R.3rd 787. We will not, however, unduly lengthen this opinion by extensive citation therefrom.

Plaintiffs cite Gower v. Lamb, 282 S.W.2d 867 (Mo.App.1955), and Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52 (1952), as authority that under their evidence they should have been permitted to submit their theory of defendant Nuelle’s negligence to the jury. Defendant Nuelle relies on Gower, supra, for its contention that plaintiffs did not make a submissible case, and points out that the court in Zuber held that absent actual knowledge of the practice of third parties using the vehicle— in Zuber, an earth moving tractor — the defendant-owner was not responsible to injured parties by reason of the unauthorized operation of the vehicles which were left unattended in a public place in such condition that the machines could be started and operated by curious and intermeddling members of the public. We agree with defendant Nuelle’s analysis of these two cases.

Gower held that a motorist leaving his automobile on a public thoroughfare in an urban area with the keys in the ignition, but with the motor turned off, and who left the car unattended while he stepped into a nearby alley and relieved himself, was not liable for damages to plaintiffs’ parked car which was collided with by defendant’s motor vehicle being operated by a thief who stole defendant’s ear in the interim. See also Restatement of Torts, Second, § 302B, Illustration No. 2, pp. 89-90.

We hold that here, where the only evidence is that defendant Nuelle parked his pick-up truck in a garage stall, on private property, locked the doors of the truck and left it there with a key in the ignition, the plaintiff, as a matter of law, failed to adduce sufficient evidence of negligence o” proximate causation to make a submissible case even though there was some evidence that defendant Nuelle’s place of business had, over a period of 5 years, experienced some eight or nine burglaries and this same pick-up truck had been removed from the premises for a short distance on two prior occasions. The trial court committed no error in directing a verdict for Mr. Nuelle and we rule this point against plaintiffs.

II.

THE CATHEY APPEAL

Defendant Mabel Cathey’s first point in this appeal is that the trial court erred in failing to sustain her motion for directed verdict at the close of all of the evidence for the reason that the plaintiffs failed to make a submissible case of negligence on the disjunctive theories of failure to keep a careful lookout or failure to swerve upon the reasonable likelihood of collision. She further contends that by reason of this infirmity in plaintiff’s case she is entitled to a new trial. Her second point is that because Mr. Kaelin failed to make a submissible case on one of the disjunctive theories upon which he submitted his case to the jury, she is entitled to a new trial. Her third point is that the trial court erred in denying her trial counsel the right to comment, in closing argument, on the failure of Mr. Kaelin to meet his burden of proof that Mrs. Cathey had the ability to avoid the collision after she could have seen the Kaelin automobile. Her final point is that the trial court erred in striking from her Answer an allegation that Mr. Kaelin had received payment for sums he was legally entitled to recover as damages from the operator of the pick-up truck, that this sum should be deducted from the total damages awarded, and in rejecting evidence to this effect.

Mrs. Cathey’s first two points depend on whether a submissible case was made against her on the theories of negligence submitted to the jury. In determining whether a submissible case was made for the jury and whether the trial court erred in not sustaining a defendant’s motion for directed verdict at the close of all of the evidence, the plaintiff must be given the benefit of any and all reasonable inferences to be drawn from the evidence which is not in conflict with plaintiff’s theory of the case and defendant’s evidence must be disregarded unless it aids plaintiff’s case. Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1974).

Viewed in this light, the evidence most favorable to plaintiff herein is that some short time after the Nuelle pick-up truck had collided head-on with the Kaelin motor vehicle, and while both of these vehicles were still on the highway, a second northbound automobile driven by defendant Cathey collided with the Kaelin automobile causing Mr. Kaelin to be thrown out of his car and onto the highway.

Highway 1-55, at the collision scene, is a six lane divided interstate highway, separated by a center rail so that there are three northbound and three southbound traffic lanes, each lane described as between 12 to 15 feet in width. There is also an exit ramp, 8 to 10 feet in width, located next to the easternmost northbound traffic lane for access to the Poplar Street Bridge. The lighting conditions at this location are good. One of the witnesses — Mrs. Clancy— testified that she could observe Mr. Kaelin slumped over the wheel of his car following the first collision from a distance of 150 feet, looking north to south. The surface of the highway was dry. As one proceeded northwardly over and along the northbound traffic lanes of 1-55 the highway is elevated but as it approaches the Poplar Street Bridge it dips downgrade so the motorists driving thereon can pass under a railroad overpass and the Poplar Street Bridge; the degree of grade of this dip is not specified in the evidence.

The first collision between the Nuelle pick-up truck and Mr. Kaelin’s 1963 Dodge occurred on that portion of the Highway which is downgrade, but just where is subject to conflicting evidence. There were four persons on the scene at that time: Mr. Kaelin, Mr. and Mrs. Clancy, and the driver of the pick-up truck. The latter departed almost immediately after the collision. Mr. Kaelin could shed no light on where the first collision occurred with respect to what was referred to by counsel as “the crest of the hill,” i. e. where the highway commences its downward grade. Mr. Clancy estimated that the Kaelin automobile came to a stop 80 or 90 feet north of the “crest of the hill,” after the initial collision. Mrs. Clancy estimated that when she saw the Cathey car as it was coming over “the crest of the hill” the Kaelin auto was “5 car lengths” or “100 feet” north of the crest of the hill. The Nuelle pick-up truck came to a stop in the median lane, that closest to the divider, facing southwardly, and up against the divider. The Kaelin car was sitting facing somewhat northeast, partly in the median lane and partly in the center lane for northbound traffic. Again the evidence does not establish exactly how much of the Kaelin car was in the middle traffic lane. There is conflicting evidence on whether the Nuelle pick-up truck came to a stop some distance south of the Kaelin vehicle following the initial collision. Mrs. Clancy testified that the pick-up truck did not go past the Kaelin car — but that both cars came to a stop. According to Mr. Clancy, however, after the first collision the pick-up truck proceeded some distance south of the Kaelin car before it came to a stop.

With this scene thus set, Mrs. Cathey was proceeding northwardly in the middle northbound traffic lane of Highway 1-55 at a speed of between 45 and 50 m. p. h. in her 1969 Pontiac convertible which was equipped with power steering and power brakes in good working order. The tires on her car were in good condition. She was driving with her “city beam” headlights on. There was no other traffic either to her left or her right. There was nothing to obstruct her vision. After she came over the crest of the hill she saw a dark unlighted object partly in the middle lane and partly in the lane next to the divider about a car length away. She immediately applied her brakes, did not change the direction of her travel, and the left front of her auto came into collision with the right rear of Mr. Kaelin’s car, knocked it in a counter-clockwise direction until it came to a stop facing east and west on the highway, partly in the median and partly in the center northbound traffic lanes. At the time of impact she had slowed her automobile slightly, perhaps as much as 5 m. p. h. She never saw the pick-up truck prior to the collision with the Kaelin car.

Plaintiff has the burden to make his case on the theory of law he chooses to submit to the trier of fact, in this instance the jury, and in doing so he must remove it from the field of conjecture and establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence. Berry v. McDaniel, 269 S.W.2d 666, 670[5] (Mo.App.1954). To make a submissible case on the theory of failure to keep a careful lookout plaintiff must adduce substantial evidence that (1) the defendant saw, or in the exercise of the highest degree of care could have seen plaintiff, and (2) that the defendant at that time and place where he saw or could have seen plaintiff could have, in some manner, acted so as to avoid the accident or injury. Creech v. Riss & Company, 285 S.W.2d 554, 562 (Mo.1955); Stegall v. Wilson, 416 S.W.2d 658, 662[2] (Mo.App.1967); Page v. Baxter, 503 S.W.2d 32, 34[2] (Mo.App.1973). The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon the public streets and highways of this state is that they may acquire knowledge of the presence of other persons and objects on such public streets and highways and an awareness of dangerous situations and conditions. It is only by reason of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 771[2] (Mo.1965).

Nor is this heavy duty lessened any by the fact the operation of the motor vehicle is during the nighttime, for a motorist has a duty to maintain a lookout at night for other travelers upon the street or the highway and his liability extends to discoverable as well as discovered peril. McFarland v. Wildhaber, 334 S.W.2d 1, 3[4] (Mo.1960).

To fulfill this duty, the motorist is required to look in such an observant manner as to enable him to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under the same or similar circumstances. Mormino v. United States, 249 F.Supp. 981, 982[3] (E.D.Mo.1966). Whether the failure to keep a careful lookout in any direction at a particular time or place constitutes negligence depends on the conditions and circumstances then and there existing, and is usually a jury question. Coulter v. Bi-State Development Agency of Missouri-Illinois Metropolitan Dist., 434 S.W.2d 793, 795[3] (Mo.App.1968).

Mrs. Cathey contends however, that plaintiff failed to make a submissible case because 1) there was no evidence that Mrs. Cathey could have seen the Kaelin’s car before she reached the crest of the hill and 2) there was no evidence that thereafter Mrs. Cathey had the ability to avoid the collision. The thrust of this argument is that the first time Mrs. Cathey could see the Kaelin automobile, which was dark and unlighted at nighttime, was when Mrs. Cathey came over the crest of the hill, at a time when it was at most 100 feet north of the location of the Kaelin auto.

We conclude, from the evidence in this record viewed most favorably towards plaintiffs’ theory of the case, that the jury could as it obviously did, find that Mrs. Cathey could or should have discovered Mr. Kaelin and the automobile within which he was then and there positioned had she been keeping a careful lookout in time to swerve and avoid coming into collision with the Kaelin automobile and thereby injuring Mr. Kaelin.

While the parties to this suit persistently referred to that portion of Highway 1-55 where it commenced to dip down to go under the railroad overpass and the Poplar Street Bridge as the “crest of the hill,” it is clear from the evidence that one proceeding northwardly over and along that portion of the highway from some distance south of the scene of the occurrence is travelling on a level portion of the highway which is elevated above the level of the land surface to where the dip commences. However, since the parties have chosen to identify the beginning of the downgrade as the “crest of the hill,” we shall also do so.

To make his ease against Mrs. Cathey, Mr. Kaelin must borrow the best from conflicting evidence in his own case as well as inferences which a jury might, we believe, cull from defendant’s evidence favorable to his theory. He must establish from this evidence that there was sufficient time and distance for Mrs. Cathey to be alerted to his perilous position and still avoid colliding with his car. We are here dealing with seconds in time and inches in distance.

There is evidence in the record that following the collision between the pick-up truck and the Kaelin auto, the pick-up truck came to a stop 40 to 50 yards — 120 to 150 feet — north of the crest of the hill. Mr. Hutson, defendant’s witness, testified to this on cross-examination after his recollection had been refreshed by use of a statement he had given to an investigator who had called on him at his home in December, 1970. Mrs. Cathey testified that after the first collision both the pick-up truck and the Kaelin car came to a stop and that the pick-up truck did not proceed southwardly beyond the Kaelin auto. There is nothing in this record to indicate that the pick-up truck changed its position between collisions, but rather, that it continued to face southwardly and remained up against the metal divider on the west side of the northbound traffic lanes. The Kaelin car was astride the line dividing the median lane from the center traffic lane for northbound traffic, partially blocking the center lane. Whether the Kaelin car was in front of or to the rear of the pick-up truck prior to the second collision is not clear. However, Mr. Hutson testified that the Kaelin car was thirty feet north of the pick-up truck when he came upon the scene. No one testified to the length of the pick-up truck, but if the Kaelin car came to a stop in front of the pick-up truck following the first collision it would then have been less than 150 feet north of the crest of the hill by the length of the pick-up truck. There was evidence that a passenger car was 20 feet in length, and we believe that it would have been permissible for the jury to conclude that a pick-up truck could be 20 feet long also. If so, then the Kaelin car would be sitting either 130 or 100 feet north of the crest of the hill prior to the time Mrs. Cathey came upon the scene. These distances would of course vary depending upon whether the Kaelin car was abreast of or north of the pick-up truck at the time Mrs. Cathey ran into it.

Plaintiff adduced no evidence relative to stopping distances nor what distance it would require for defendant Cathey to have swerved her car and have avoided colliding with the Kaelin car. Mrs. Cathey did. However, her expert’s opinion as to stopping and swerving distances were based upon hypotheticals assuming speeds of 50-55 miles per hour and that to avoid colliding with the Kaelin car Mrs. Cathey would have to swerve a distance of 7 feet. He opined that because of the brightly lit overhead highway signs in the vicinity of the occurrence it would require a reaction time of 1½ seconds for a driver to adjust her eyes to the darker area below. Based on these factors, he concluded that Mrs. Cathey could have brought her car to a stop within 251 feet at 50 m. p. h. and within 289 feet at 55 m. p. h. He further testified that at 50 m. p. h. the Cathey automobile would have travelled 180 feet while swerving 7 feet, and at 55 m. p. h., 231 feet. He further conceded that with good vision and a clear road the average reaction time for a driver is ¾ to 1½ seconds under emergency conditions.

In deciding this issue plaintiff is entitled to the benefit of defendant’s evidence when it is consistent with his theory of the case. Price v. Nicholson, 340 S.W.2d 1, 4[1] (Mo. banc 1960). We are of the opinion that under this evidence plaintiff made a submissible case against Mrs. Cath-ey, because while the jury was not bound by her expert witness’ testimony, it could, nevertheless, reason from it, without resorting to guesswork and conjecture, that if, as her counsel conceded by his hypothetical questions propounded to the expert witness, she had swerved a distance of 7 feet once she saw or in the exercise of the highest degree of care could have seen the Kaelin auto sitting partially in the middle lane in which she was proceeding northwardly, she could have avoided the collision and damage and injuries to Mr. Kaelin.

The jury could have computed that if Mrs. Cathey was travelling at a speed of 45 m. p. h. she was travelling 66 feet per second. Allowing her the average reaction time of ¾ seconds, she would have travelled a distance of 49.5 feet between the time she first saw, or in the exercise of the highest degree of care should have seen, the Kaelin car astride the median and center northbound traffic lanes while it was approximately 130 feet north of the crest of the hill, and she could have commenced turning the steering wheel of her car to swerve to the right and avoided colliding with the Kaelin auto. This would leave her approximately 80.5 feet to swerve a distance of 7 feet, a distance her counsel concedes would have avoided the collision by reason of the inclusion of this figure in his hypothetical questions. If, as her expert opined, she could at 50 m. p. h. swerve 7 feet in 70 feet, it would appear logically that it would take her a shorter distance to swerve that same 7 feet at 45 m. p. h. The Supreme Court of Missouri has said in Brown v. Callicotte, 73 S.W.2d 190, 193[1] (1934): “It is too generally and well known to require formal proof that present day automobiles respond quickly and accurately to the touch of the driver’s hand on the steering wheel. The necessary impulse may be supplied in an instant.” We hold, that under the facts in evidence, whether Mrs. Cathey was negligent in failing to keep a careful lookout was a jury question and the trial court did not err in so concluding.

Defendant Cathey’s second point, that a failure on Mr. Kaelin’s part to make a sub-missible case on one of the disjunctive theories submitted against Mrs. Cathey entitles her to a new trial is found to be without merit by reason of our holding with respect to her first point and we therefore rule both Points I and II against Mrs. Cathey.

Mrs. Cathey’s third point is that the trial court prejudicially erred in denying her trial counsel the right to comment in closing argument on the failure of Mr. Kaelin to meet his burden of proof by producing evidence to show that Mrs. Cathey had the ability to avoid the collision after she could have seen the Kaelin automobile.

We have reviewed the argument of Mrs. Cathey’s counsel and we are at a loss to understand the ruling of the court in the context in which it was made. This incident in the argument came about when Mrs. Cathey’s counsel was arguing the content of his expert’s testimony on stopping and swerving distances-. He then argued that plaintiffs’ counsel had termed this testimony “ridiculous” — actually the term used was “incredible” — and proceeded to argue: “. . . Why didn’t the parties who have the burden of proof bring in some evidence to show you that cars can be swerved or can be stopped in that distance, and they have the burden of proof.” The objection was: “I object to that argument of counsel, placing the burden of something not required by law. It’s an improper argument to the jury.” The trial court sustained the objection; but following a conference at the bench out of the hearing of the jury plaintiffs’ counsel moved for a mistrial for the reason defendant’s counsel had placed the burden on plaintiff to submit evidence with respect to stopping distances which he contended was not required of plaintiff in this lawsuit. Defendant’s counsel then responded: “The burden is on the plaintiff to prove their case and I have a right to argue that to the jury.” The trial judge thereupon ruled: “That part of the objection will be overruled, but the objection to the last statement, has been sustained.” Defendant’s counsel did not request a clarification of this ruling and in the absence of such we are unable to determine whether the trial judge reversed his prior ruling sustaining the objection as originally stated or overruled it. On appeal it is the burden of the appellant to have made a record in the trial court to support its allegations of error and not leave the reviewing court to grope for meaning in rulings of this kind. We therefore rule this point against Mrs. Cathey.

Defendant Cathey’s fourth and final point is that the trial court erred in striking from her First Amended Answer an allegation that Mr. Kaelin had made a claim and received payment of approximately $9,500.00 for damages, to which he was legally entitled, and had executed a release and covenant barring him from asserting any further claim on account of this occurrence against this defendant, because he had recovered said sum from the American Family Insurance Group for damages from the operator of the Nuelle pick-up truck. In the alternative, defendant Cathey also sought to have this sum of money deducted from any judgment Mr. Kaelin might obtain against her.

We have searched to no avail the transcript of the record for a copy of the motion to strike referred to in this point and-the trial court’s ruling on this motion. From a reading of the transcript of the pre-trial conference conducted on the morning of trial prior to the impanelling of the jury, we deduce that Mr. Kaelin had previously filed a written Motion to Strike that portion of Mrs. Cathey’s First Amended Answer which alleged that since the Nuelle pick-up truck was being driven by a thief at the time of the first collision Mr. Kaelin “proceeded” against his own insurance carrier, the American Family Insurance Group, under the uninsured motorist coverage of his insurance policy, and collected from it $9,500.00 which he was in fact entitled to recover from the operator of the Nuelle pick-up truck because of the bodily injuries he had sustained in the collision; that Mr. Kaelin had executed a release or covenant barring him from asserting any further claim on account of the occurrence against her; or in the alternative, if the release and covenant aforesaid did not bar Mr. Kaelin’s claim against her, then the sum of money he had received constituted a full and complete satisfaction of any claim he might have for his injuries and damages and thereby extinguished any claim he might have against her. As a third alternative, she further alleged that if the money Mr. Kaelin had received was not a full and complete satisfaction for his injuries and damages, then that sum should be deducted from any award or recovery plaintiff might obtain against her. What evidence was presented in support of this motion, if any, we are not privy to, and so far as we have been able to discern, copies of the alleged release or covenant were not attached to the Answer of Mrs. Cathey as exhibits. However, during the pre-trial conference aforesaid, it was made clear that Mr. Kaelin did file such a Motion and it was sustained by some judge other than the one before whom the case came for trial.

Defendant Cathey, during the pre-trial conference, through her counsel advised the trial judge that she proposed to ask Mr. Kaelin about this matter because it was his position that the driver, whoever he was, was at least a joint tort feasor and if Mrs. Cathey was held liable she was entitled to credit or reduction of verdict for any amount which was paid to Mr. Kaelin by a joint tort feasor, and that this payment was the same as if it were made by a joint tort feasor. He also advised the trial judge that he would be entitled to an Instruction on the point, MAI 7.01 and 7.02. Mr. Kaelin’s counsel took the position that his Motion to Strike had been sustained and that since his client had paid a premium he should be entitled to keep his money, and for the further reason that should Mr. Nuelle be held liable in the case and his insurance carrier had to pay the judgment, the proceeds received by Mr. Kaelin would have to be returned to the American Family Insurance Company. The trial court stated that that part had already been ruled on by the ruling on the Motion to Strike. Counsel for defendant Cathey then announced: “With such a ruling, I make an offer here, to preserve our point so we can raise it on appeal.” The objection of Mr. Kaelin was then sustained.

With the record in this state, we rule this point against defendant Cathey. If any evidence was ever presented in the trial court as to the nature of any documents signed by Mr. Kaelin upon receipt of the monies paid to him by his insurance carrier under the uninsured motorist provisions of his insurance policy, it has not been made a part of this record on appeal. Furthermore, the general rule in this state is that payments made under a policy of insurance by the insured’s own insurance company to a plaintiff for which the plaintiff has paid a premium do not inure to the benefit of the tort feasor. No money here was received from the driver of the pick-up truck nor for any liability assumed on his behalf; rather, it would appear that the plaintiff received these funds by reason of a contract of insurance between himself and his insurer and defendant Cathey is not thereby entitled to any benefits thereby. This rule, the Collateral Source Rule, is applicable here and we are shown no reason for distinguishing payments made under the provisions of an insurance policy covering one injured by an uninsured motorist from other instances where it has been brought into play. Collier v. Roth, 434 S.W.2d 502, 506[5] (Mo.1968).

We affirm the judgment of the trial court on Count I of Mr. Kaelin’s Second Amended Petition as to defendant Cathey.

III.

THE LORNA KAELIN APPEAL

Lorna Kaelin, the wife of plaintiff Harold V. Kaelin, joined her husband in this cause and in Count II of plaintiffs’ Second Amended Petition brought suit against both defendants for loss of consortium and damages. The trial jury, although returning an award of damages for Mr. Kaelin against defendant Cathey on Count I of the Second Amended Petition found in favor of Mrs. Cathey and against Mrs. Kaelin on the second count. On appeal Mrs. Kaelin contends that she was, as a matter of law, entitled to a judgment against Mrs. Cathey on her loss of consortium count or to a new trial on the issue of damages only. The case of Pietrowski v. Mykins, 498 S.W.2d 572, 580[9] (Mo.App.1973) is controlling here and having affirmed Mr. Kaelin’s judgment against Mrs. Cathey on her cause of action, we now hold that the judgment on Count II must be set aside and Mrs. Kaelin have a new trial limited to the issue of damages only.

We affirm the judgment of the trial court on Count I of plaintiffs’ Second Amended Petition but we reverse and remand the judgment on Count II of said petition for proceedings in accord with our holding.

CLEMENS, P. J., and STEWART, J., concur.

      . Defendant Nuelle’s evidence with respect to the keys in the ignition and the manner in which the truck was started are in conflict with plaintiffs’ evidence, but because of the posture in which this point is presented we disregard Nuelle’s evidence on this point.

      . Mrs. Cathey’s counsel argues that this evidence by Mr. Hutson cannot be afforded any probative value as substantive evidence of the facts stated therein because it came in by way of impeachment. Rogers v. Fiandaca, 491 S.W.2d 560, 565[2] (Mo.1973) and Woelfle v. Connecticut Mutual Life Insurance Co., 234 Mo.App. 135, 112 S.W.2d 865, 873[11] (1938). We conclude from reading the transcript that the evidence came in by using the statement to refresh the witness’ recollection and not by way of impeachment and the rule of those cases is not controlling here. In our calculations we have not considered Mr. Hutson’s testimony relative to the position of the Kaelin car with respect to the pick-up truck following the second impact because there is no evidence how far northward that impact may have moved the Kaelin car.


author: WEIER, Presiding Judge.

text:
    REED, ROBERTS ASSOCIATES, INC., a Corporation, Plaintiff-Respondent, v. Stewart BAILENSON, Defendant-Appellant.
    No. 36799.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 11, 1976.

      Shifrin, Treiman, Bamburg & Dempsey, Richard B. Dempsey, Clayton, for defendant-appellant.
    Lewis, Rice, Tucker, Allen & Chubb, Mark T. Keaney, St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

This is an appeal from a decree enjoining defendant for a period of three (3) years commencing on January 8, 1974 from (1) soliciting or acting to solicit any of plaintiff’s customers, (2) making statements to plaintiff’s clients to divert their business from plaintiff, and (3) engaging in consultation service in unemployment compensation and workmen’s compensation matters within the states of Michigan, Illinois or Missouri. Appellant seeks a reversal of the trial court’s judgment on the theory that the non-competition contract is void for lack of consideration either as an original contract or as a modification, that it is unreasonable and therefore should not be enforced in a court of equity, and that it is no longer in force since defendant has not been an employee of plaintiff’s company since 1971. We affirm the findings of the trial court.

There is little conflict in the evidence. Plaintiff is engaged in the nationwide business of rendering unemployment insurance advice and service to private employers. Defendant commenced employment in the service department of plaintiff’s St. Louis office on August 1, 1967. Prior to this initial employment he signed a non-competition agreement similar to the one in dispute. Defendant’s duties included interviewing clients, performing annual audits, and helping clients in special problem situations. Defendant was moved to plaintiffs Chicago office in the summer of 1971 and finally to its Detroit office in May of 1972. During his employment defendant signed a total of three non-competition agreements, the original agreement dated July 24, 1967, the second dated December 13, 1968, and the third, June 11 and 14, 1973. Until his resignation on January 8, 1974 defendant’s duties with plaintiff remained substantially the same.

Defendant is currently employed as vice-president of the service department of James E. Frick, Inc., plaintiff’s competitor. In this position defendant performs services on a nationwide scale similar to those he performed for plaintiff. Defendant has performed work in Missouri, Illinois, and Michigan, as well as other states, since he began his present employment. In addition, while in his present position defendant presented a program on unemployment compensation in June of 1974 to a hospital administrators meeting in St. Louis at which clients of plaintiff were present.

The June 1973 Non-Competition Agreement which was enforced by the trial court provides in part:

“I, the undersigned, do acknowledge that I have been employed by Reed, Roberts Associates, Inc. (Reed, Roberts) to perform such services as Reed, Roberts may direct, at a mutually agreed upon weekly salary, which employment may be terminated by me or Reed, Roberts upon one week’s notice in writing, and which employment is further subject to the following terms and conditions to which I voluntarily agree:
“1. I acknowledge * * * that I have or shall become acquainted [with Reed, Roberts’ business], and with employees of Reed, Roberts who perform specialized and technical services and who come in contact with Reed, Roberts clients. * * During the course of my employment, I have learned and shall continue to learn, the names and addresses of Reed, Roberts clients, many of whom are serviced on a national basis and shall become acquainted with the executives and administrative employees of such clients.
“2. By reason of the foregoing, I do agree,
⅜ ⅜ ⅞: ⅜ sfs ⅝:
(b) that I shall not, at any time, either directly or indirectly solicit or conspire to solicit any of Reed, Roberts’ clients, no matter where the principal office of such client shall be located.
(c) That for a period of three years from the date of termination of my employment, no matter the manner thereof, I shall not either directly or indirectly be engaged in nor in any manner whatsoever become interested, directly or indirectly, either as employee, partner, agent, stockholder, director or officer of a corporation or otherwise, in any business of the type and character engaged in by Reed, Roberts, within the geographical limits of the region wherein I may have been employed at any time by Reed, Roberts, such region being more fully circumscribed below.
(d) That Reed, Roberts shall be entitled to an injunction in any suit for such relief, should I breach the foregoing provisions hereof.”

This agreement was signed by both plaintiff and defendant in June of 1973.

Defendant contends that all three non-competition agreements are void for lack of consideration. Consideration is something moving from one party to the other; it can be in the form of a legal benefit or detriment. Melton v. ACF Industries, Incorporated, 404 S.W.2d 772, 777[6-9] (Mo.App.1966). “A valuable consideration ‘may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, loss or responsibility given suffered or undertaken by the other.’ ” Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522, 533[1] (Mo.1964). Clearly the defendant has given sufficient consideration to support a contract by his agreement to perform services as an employee of plaintiff and to refrain from competition with plaintiff for a period of three years after termination of his employment. Plaintiff likewise agreed to employ defendant and pay him a weekly salary, the amount to be mutually agreed upon. American Pamcor, Inc. v. Klote, 438 S.W.2d 287, 290[3] (Mo.App.1969).

The trial court in its findings of fact determined that defendant signed the contract relied upon by plaintiff “in consideration of his employment and continued employment by plaintiff.” Parties to employment contracts while they are still executo-ry and before a breach occurs, by a later agreement, frequently rescind, alter or modify the agreement, or replace it with a substitute. This later agreement is usually referred to as a secondary contract. See Anno. 158 A.L.R. 231. A continuance by employee in the employment of employer where he is under no obligation to remain and the continuance by the employer of the employment where continuance is not required supplies adequate consideration for a secondary contract. In City Ice & Fuel Co. v. Snell, 57 S.W.2d 440 (Mo.App.1933), the employee, who had been employed July 1, 1931, signed a contract with a restrictive clause on November 3, 1931, and left the employment June 16,1932. Lack of consideration for the secondary contract of employment was raised as a defense in defendant’s answer. The mutual promises of the parties as to continued employment were held to be sufficient consideration, p. 442[4]. So also in the companion case of City Ice & Fuel Co. v. McKee, 57 S.W.2d 443, 447 (Mo.App.1933). See also Birch v. Glasgow Savings Bank, 114 Mo.App. 711, 90 S.W. 746 (1905), where mutual understanding and intention that future services of a 24-year employee were to be performed was adequate consideration to support an agreement to pay salary during the employee’s vacation.

Here, we are not considering a contract of employment for a definite term where a party brings about a modification during the term without any consideration. The prior contracts between plaintiff and defendant could be terminated by either party. As found by the trial court, the third contract upon which suit was brought was based upon the consideration of continued employment.

Petitioner’s second contention is that the third contract expands the obligations of defendant without any change in the obligation of plaintiff thereby becoming void as a substitution or modification of an earlier agreement. It is clear that an enforceable modification of a contract which is not completely performed must contain a change in the consideration from both parties. If one party only agrees to do those things which he is obliged to do while the other gives additional consideration, the modification is void. R-Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 637[4, 5] (Mo.App.1970). This last or 1973 non-competition agreement differed from the others in two respects. Defendant’s post-employment activities were restricted as to region rather than state, and both parties signed the agreement. As previously explained, however, the 1973 contract was supported by the mutual promises of continued employment and this contention must be ruled against defendant.

Petitioner also contends the non-competition agreement was not reasonable. In order to be enforceable a covenant restraining an employee must not only be legally valid but also reasonable as to the employer, the employee, and the public. Prentice v. Williams, 324 S.W.2d 466, 469[3] (Mo.App.1959). Reasonableness is determined by the limitations on both time and area contained in the agreement. The test applied is “whether the area in which the restriction is to be enforced is larger than reasonably necessary for the protection of the covenantee.” Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 152[6] (1949). Application of this test requires “a thorough consideration of all surrounding circumstances, including the subject matter of the contract, the purpose to be served, the situation of the parties, the extent of the restraint, and the specialization of the business.” R. E. Harrington, Inc. v. Frick, 428 S.W.2d 945, 950[3] (Mo.App.1968). The burden of proving the reasonableness of the restriction is on the party claiming its benefit. Prentice v. Williams, supra at 470[4].

Defendant signed a non-competition agreement when he was hired. No one continued as an employee of plaintiff who did not sign the original and subsequent agreements. Defendant became acquainted with plaintiff’s clients and had access to extensive information concerning their accounts. This client contact and information was valuable to plaintiff and potentially valuable to defendant’s new employer. Non-competition agreements are common in this service industry because it is recognized that those who engage in it have a valuable interest to protect. The restriction was imposed by the trial court for three years but only extended to the three states where defendant’s offices were located and not to all those with which he had any contact. It is clear that “an employer has a proprietary right in his stock of customers and their goodwill” and the courts will protect this asset against appropriation by an employee by enforcement of reasonable restrictive covenants .not to compete. Mills v. Murray, 472 S.W.2d 6, 11[1, 2] (Mo.App.1971). Similar restrictions have been upheld. House of Tools & Engineering, Inc. v. Price, 504 S.W.2d 157 (Mo.App.1973). In view of the circumstances we cannot say this restriction is unreasonable.

It is elementary that the purpose of an injunction is to restrain actual or threatened acts which constitute a real injury. Cissell v. Brostron, 395 S.W.2d 322, 325[1] (Mo.App.1965). Therefore, in an action for an injunction to enforce restrictive covenants of a non-competition agreement it is not necessary to prove damages to be entitled to injunctive relief. American Pamcor, Inc. v. Klote, supra, 438 S.W.2d at 291[7]; Thompson v. Allain, 377 S.W.2d 465, 467[3] (Mo.App.1964). Here, breach of the agreement was clearly shown by defendant’s action in taking employment as a national coordinator with a competitor of plaintiff. Petitioner’s contentions that there was insufficient evidence of damage and that his rebuttal testimony concerning damages should have been admitted are clearly without merit.

Finally, petitioner contends that his employment with plaintiff terminated in 1971, and that because of the limitation of three years, the non-competition agreements are no longer in effect. This contention is based on separate W-2 federal tax forms sent to defendant while at the Detroit office from plaintiff and Reed, Roberts, Inc. — Pennsylvania Division, a company with a different IRS number from plaintiff’s. Evidence was presented that this division is a wholly owned subsidiary of plaintiff. The contract contained the provision that since defendant would be employed by Reed, Roberts, or in the names of subsidiaries or affiliates, the agreement would apply to employment by them and could be enforced by the parent company. Furthermore, the determination of employee status in Missouri is based on the degree and right of control exerted over details of his work. Talley v. Bowen Construction Co., 340 S.W.2d 701, 706[9] (Mo.1960). Although a circumstance, tax records should not be the sole basis upon which this relationship may be determined. Clearly defendant was controlled in his work by plaintiff until January 1974. Shortly before the trial defendant admitted in his deposition he did not believe he was employed by anyone other than plaintiff from 1971 to January 8, 1974. The necessary employment relationship did exist through January 8, 1974; therefore the non-competition agreement was clearly in force.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: SIMEONE, Presiding Judge.

text:
    Lorraine LICARE, Plaintiff-Appellant, v. Vincent F. LICARE, Defendant-Respondent, and Midwest Diesel Service, Inc., a corporation, Garnishee.
    No. 37061.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 11, 1976.
    Taub & Klein, Jerry A. Klein, St. Louis, for plaintiff-appellant.
    Shaw, Howlett & Schwartz, Clayton, for defendant-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by plaintiff-appellant, Mrs. Lorraine Licare, from an order of the circuit court of the County of St. Louis entered on March 25, 1975, sustaining defendant-respondent, Vincent F. Licare’s, motion to quash garnishment and reducing the amount of the garnishment requested, $1555.62, to $455.62.

Cutting through the labyrinth of facts raised by the plaintiff-appellant, Mrs. Li-care, in this “divorce” proceeding, the essential question presented on this appeal is whether the court in its order erred in reducing the amount of the garnishment for “alimony pendente lite” to $455.62. We believe it did and, hence, for reasons hereinafter stated, reverse the order of March 25, 1975.

In February, 1972, Mrs. Licare filed her petition for “divorce.” Thereafter, she filed her motion for “alimony pendente lite, suit money, and attorney’s fees.” In due time, and on June 9, 1972, the circuit court of St. Louis County entered its order granting Mr. Licare custody of the four minor children and granting Mrs. Licare “temporary custody” of the children on weekends and summers. In paragraph eight of that June 9 order, the court ordered Mr. Licare: “. . .to pay to plaintiff the sum of

$250 per month as and for temporary alimony and as and for support of the minor children while in plaintiff’s temporary custody. In addition, defendant [husband] is ordered to pay as temporary alimony and child support all sums when due by way of payments on the deed of trust, insurance and taxes on the jointly owned home occupied by plaintiff.”

On December 1, 1972, Mrs. Licare sought garnishment in aid of execution under this June 9 order for the months of August, September, October and November, 1972— amounting to a total of $1000.00. To this December 1, 1972 special execution, Mr. Li-care filed on December 22,1972, a motion to quash contending that “. . . said indebtedness does not exist and that said order fails and on its face does not show that said indebtedness exists.” This motion was overruled on December 29, 1972. Finally, on this garnishment seeking $1000.00, $544.38 was actually realized by the garnishment obtained on defendant’s bank account, leaving a balance of $455.62 for moneys due for August through November, 1972, at $250.00 per month.

On March 6,1973, plaintiff was granted a divorce and in the decree was awarded $350.00 per month “as and for alimony."

Then on January 7, 1975, Mrs. Licare sought a second garnishment seeking money due (1) for the months of August through November, 1972, (2) for December, 1972, and January and February, 1973, in the amounts of $250.00 per month, and (3) for $350.00 for the month of March, 1973, under the divorce decree entered March 6, 1973. Again, Mr. Licare filed his motion to quash the garnishment because “. Defendant is not indebted to Plaintiff and . any and all indebtedness heretofore existing has been satisfied, adjudicated and settled.” Evidence was taken on this motion. On March 25, 1975 the trial court made an order sustaining the motion,

“. . . in that said garnishment is hereby reduced to the amount of $455.62. The garnishment covers a period from August, 1972 through December [sic], 1972. The Motion to Quash this garnishment is res judicata as to that period. $544.38 was heretofore collected on a previous garnishment [December 1, 1972] and a figure of $455.62 represents the remainder due for that [?] period of time. The period from January, 1973, through February, 1973, was not the subject matter of the previous garnishment, and the Court feels that no amount of child support was ordered during that period. The Court further finds that the defendant is current in any and all alimony .payments pursuant to the Court’s Order of March 6, 1973. Costs against defendant.”

Following the entry of this order, Mrs. Licare duly appealed. In this court-tried hearing, we reach our own independent conclusions giving due deference to the trial court in matters of credibility. After examining the entire record, we are convinced that Mrs. Licare is entitled to the following amounts under the order of June 9, 1972 following her motion pendente lite:

August, 1972 — $250.00
September, 1972 — 250.00
October, 1972 — 250.00
November, 1972 — 250.00_ $1000.00
December, 1972 — 250.00 January, 1973 — 250.00 February, 1973 — 250.00_ $1750.00

In addition to the above amounts, she is also entitled under the “divorce” decree entered on March 6, 1973 to the additional sum of $350.00 for the month of March 6, 1973 to April 6, 1973. The total, therefore, to which she is entitled is $1750.00 plus $350.00, or $2100.00.

As stated, Mrs. Licare originally sought execution for August through November, 1972, at $250.00 per month, or a total of $1000.00. She collected $544.38, leaving a balance of $455.62. Under the June 9 order she was also entitled to $250.00 for December, 1972, and January and February, 1973, or a total of $1205.62. When $350.00 awarded under the March 6, 1973 “divorce” decree is added thereto, plaintiff sought and is entitled to $1555.62, the amount requested in the January 7,1975 garnishment.

The trial court reduced the amount because it erroneously held that (1) Mrs. Li-care was not entitled to “alimony pendente lite” for January and February, 1973, because “no amount of child support was ordered during that period,” (2) the December, 1972, garnishment covered the period from August through December [sic], 1972, thus reducing the amount owed from $1000.00, and (3) Mr. Licare was current in alimony payments pursuant to the divorce decree entered March 6, 1973. In these three respects, the trial court erred.

We disagree with the trial court that the appellant, Mrs. Licare, was not entitled to the amount claimed because she was not awarded “alimony” but child support, and that since she did not have the children during January and February, 1973, she was not entitled to any amount. While the June 9, 1972 order was somewhat ambiguous, we believe the order was for “alimony” pendente lite in the sum of $250.00 per month. We also disagree that Mr. Licare was current in the alimony payments as of March 6, 1973. The evidence was clear that Mrs. Licare did not receive the first $350.00 payment until May, 1973, for the period from April 6, 1973, to May, 1973. She was entitled to that $350.00 payment for the period from March 6, 1973, to April 6,1973. Execution may issue anytime after the rendition of the judgment. The decree for the $350.00 alimony was due from the date of the decree, March 6, 1973. Burtrum v. Burtrum, 210 S.W.2d 364[13] (Mo.App.1948); 27A C.J.S. Divorce § 240, p. 1153 (1959).

Hence, in view of the fact that Mrs. Li-care is entitled to the above amount, we must reverse the order of the trial court entered March 25, 1975, sustaining the respondent’s motion to quash and reducing the amount of the garnishment to $455.62.

The judgment is reversed, and the cause remanded with directions to overrule the motion to quash garnishment and to award Mrs. Licare the amount of $1555.62.

KELLY and GUNN, Jr., JJ., concur.

      . The petition for divorce was filed in February, 1972, and the motions were filed prior to the adoption of the recently enacted “no-fault divorce law.” §§ 452.300-452.415, RSMo Supp. 1973.

      . This amounted to approximately $59.00 per month.

      . This was the amount due as of the time she filed her first garnishment on December 1, 1972.

      . This was the amount claimed under the January 7, 1975 garnishment based on the June 9, 1972 pendente lite order.

      .
      $ 455.62 ($1000.00 for Aug. to Nov., 1972, less $544.38)
      250.00 Dec. 1972
      250.00 Jan. 1973
      250.00 Feb. 1973
      $1205.62
      plus 350.00
      $1555.62
      alimony due from March 6, 1973 to April 6, 1973 under divorce decree

      . This must be erroneous because if the garnishment covered August through December, 1972, the amount would be $1250.00, not $1000.00, and the court ruled that the remainder of $455.62 is the remainder due after $544.38 had been paid, making a total of $1000.00 — $250.00 per month for four, not five, months.

      . If the court intended that a portion of the $250.00 payments be for support of the children, it should have designated what that portion was. Kinsella v. Kinsella, 60 S.W.2d 747, 748 (Mo.App.1933).


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David Joe ADKINS, Defendant-Appellant.
    No. 36850.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 11, 1976.

      Lawrence 0. Willbrand, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Jack Gallego, Pros. Atty., Troy, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for second degree murder. § 559.020 RSMo 1969. The jury fixed his punishment at 75 years imprisonment. We affirm.

The jury could have reasonably found that on April 15, 1974, the defendant and Miss Debbie Heitman, the deceased herein, were students at the same high school, which recessed at 3:15 p. m. Shortly after 3:30 p. m., Mrs. Jean Meyer noticed a ear parked in the gravel driveway in front of her house. The deceased was seated behind the steering wheel and the defendant occupied the passenger’s side, where the door was ajar. The occupants were “slapping at one another at arms length.” Mrs. Meyer thought it was necessary to notify someone that “something strange” was occurring so she called her mother, as she continued to observe the car and its occupants. After the slapping the defendant emerged from the auto. When he reentered, the struggling resumed and the horn sounded. Mrs. Meyer then realized that the struggle was serious and agreed that her mother should call the sheriff. The defendant alighted from the auto again, looked around, and fled. As he ran from the car, Mrs. Meyer saw a flash and thought the defendant was carrying a knife. She made several attempts by phone to obtain additional help, but failed to reach anyone. Within moments, Mrs. Meyer halted some neighbors who were returning home, and with their assistance an ambulance was summoned. Defendant could still be seen running in the distance.

The sheriff arrived and observed the deceased lying on the front seat of the auto, covered with blood. One breast was exposed and the zipper of her slacks had been torn loose. Mrs. Meyer quickly related what she had observed. She gave a description of the defendant and indicated to the sheriff the direction in which he was seen running. The sheriff pursued the defendant to the railroad tracks. Using the patrol car speaker, the sheriff identified himself and ordered the defendant to halt, but the defendant threw a glowing object (later retrieved and identified as a knife), and continued to flee. Following a continued pursuit and repeated orders to stop, the defendant was apprehended. He attempted to discard a wet and blood-stained handkerchief but the sheriff told him to put it back into his pocket. The defendant was sweating and had blood smeared from his hands to his elbows.

The sheriff and defendant returned to the Meyer residence where defendant was identified without hesitation. He was placed in the custody of the deputy. The defendant then informed the deputy as to where he threw the knife and together they retrieved it. The knife’s leather sheath was recovered outside of the auto, near the open door of the passenger’s side.

The deceased was transported to the hospital and examined by the emergency room surgeon, the coroner, and the chief medical examiner. It was found that her blouse had multiple tears and was pulled to her neck. The zipper of her slacks had been torn open. She had multiple stab wounds of the face, neck, chest and abdomen, with the massive bleeding due to a deep stab of the left jugular vein, penetrating through the carotid artery. The arms and hands also showed slash wounds: on the posterior side, in the palm, and in the armpit. In total, there were approximately 30 stab wounds randomly directed in a 360 degree distribution around the body. The wounds were classically recognized as those experienced in a struggle, as though warding off or defending oneself.

Numerous character witnesses testified to the defendant’s reputation for peacefulness and good conduct. None had seen him on the day in question. On his own behalf, the defendant offered testimony of complete innocence of the crime. He stated that when he left school on the day in question all the busses had left the premises. On previous occasions, he always called his father for a ride. On this day the defendant hitchhiked. He was dropped off at the road leading to the Meyer residence, which was about a mile before the road on which defendant lived. The driver, however, continued in the direction of the road leading to defendant’s house. Defendant noticed that the car in front of the Meyer house had the motor running. As he looked in he observed the victim covered with blood. He felt for a pulse, as he learned to do in a first-aid course. He then walked to the other side of the car, seized the knife, and fled from the scene. He explained that he did not attempt to obtain help at any of the nearby houses because he did not know if anyone was at home. Defendant denied having any blood on himself when he was apprehended, but this was rebutted by testimony from the sheriff and expert police laboratory witnesses. Additional State’s evidence also indicated that the defendant was seen walking toward the school parking lot when the busses were still parked on the premises. Other rebuttal witnesses followed.

The court instructed on first and second degree murder, rejecting defendant’s request for instructions on manslaughter and self-defense. The jury found defendant guilty of second degree murder and fixed his punishment at 75 years imprisonment.

Defendant makes no contention that the evidence was insufficient to support a conviction of second degree murder. His first assertion on appeal, however, is that the court erred in refusing to instruct on manslaughter. Defendant argues that State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971), as quoted in State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), requires the court to instruct on manslaughter in second degree murder cases on the basis of the evidence which supports a second degree murder instruction. It is correct that where the pleadings and evidence warrant the submission of first degree murder in homicide cases tried after March 1, 1975, additional instructions on second degree murder and manslaughter must also be given to the jury. See MAI-CR 6.02, Notes on Use 6. However, contrary to defendant’s assertion, “this requirement was not instituted by Ayers.” State v. Mudgett, 531 S.W.2d 275, 281 (Mo. banc 1975). The automatic submission requirement is prospective in application only, and does not apply to cases tried prior to March 1, 1975. State v. Mudgett, supra; State v. Eiland, 534 S.W.2d 814 (Mo.App., 1976). The homicide and trial in this ease occurred prior to March 1, 1975, and, therefore, we do not apply the “automatic submission” requirement.

At the time of trial in the instant case it was the duty of the trial court to instruct on lesser degrees of homicide unless the court could declare, as a matter of law, that there was no evidence to support such submission. State v. Ayers, supra, 470 S.W.2d at 538. Whether the defendant was entitled to a manslaughter instruction “depends on whether from the evidence introduced the jury could have found that he unjustifiably and inexcusably killed deceased without premeditation or malice.” State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974).

The record in the present case demonstrates that if defendant’s evidence is to be believed, he is not guilty of any offense. However, if the State’s evidence is accepted, the acts are consistent with murder only. “ . . . When a homicide is committed in circumstances of great barbarity and cruelty, such brutal malignity will supply the place of malice, and make the act of killing equivalent to a deliberate act of slaughter ...” State v. Duestrow, 137 Mo. 44, 38 S.W. 554 (1897). Also, the Supreme Court in State v. Mudgett, cited with approval State v. Clough, 327 Mo. 700, 705, 38 S.W.2d 36, 38 (Mo.1931) where the court in Clough said:

“The authorities are fairly harmonious in holding that, in order for a homicide to be reduced from murder to manslaughter, there must be a sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control. It is not the assault or the provocation alone that reduces the grade of the crime, but it is the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent, and therefore the crime is not murder, but manslaughter

Here the evidence does not support “a sudden unexpected assault . . . tending to excite the passion beyond control.” The slapping episode had terminated and the defendant had emerged from the auto. At this time the victim was still alive. The defendant then reentered the auto and engaged in a second struggle with the victim.

Accordingly, we declare, as a matter of law, that there is no evidence which would tend to support a verdict of manslaughter. Therefore, the trial court correctly refused to submit an instruction on manslaughter.

Defendant’s second contention is that the trial court erred in refusing to instruct on self-defense. This court recently reiterated in State v. Young, 510 S.W.2d 732, 734 (Mo.App.1974), the requisite proof necessary to support an instruction on self-defense, as held by the Missouri Supreme Court in numerous decisions:

“ . . . This quantum of proof has been variously defined as ‘substantial evidence,’ State v. Rose, Mo., 346 S.W.2d 54; State v. Baker, Mo., 277 S.W.2d 627; State v. Singleton, Mo., 77 S.W.2d 80; ‘evidence putting it in issue,’ State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; ‘any theory of innocence . . . however improbable that theory may seem, so long as the most favorable construction of the evidence supports it,’ State v. Kinard, Mo., 245 S.W.2d 890; ‘supported by evidence,’ State v. Robinson, supra [Mo., 328 S.W.2d 667]; ‘any theory of the case which his evidence tended to establish,’ State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914; ‘established defense,’ State v. Sumpter, Mo., 184 S.W.2d 1005; and ‘evidence to support the theory,’ State v. Shiles, Mo., 188 S.W.2d 7.” State v. McQueen, 431 S.W.2d 445, 448 (Mo.1968).

“Taking human life in self-defense is an affirmative, intentional act,” founded in real or apparently real necessity. State v. Singleton, 77 S.W.2d 80, 83 (Mo.1934); State v. Parker, 403 S.W.2d 623 (Mo.1966). When self-defense is in issue, it is important to determine who was the aggressor and the reasonableness of the actor’s fear.

Considering the defendant’s testimony first, there is no indication that the stabbing was an intentional act of defendant taken while acting “under at least an apparent necessity, in order to save himself from death or great bodily harm.” State v. Parker, supra. Defendant not only failed to make any claim that he thought it necessary to use deadly force, but he also disclaimed doing the homicidal act at all. See State v. Singleton, supra. There is no evidence from defendant’s testimony, which constituted a claim of innocence, that he acted under real or apparent necessity.

However, “where evidence in the case other than the defendant’s testimony raises an issue of self-defense the court must submit that issue to the jury, even though such defense is inconsistent with the defendant’s testimony and arises upon facts and circumstances denied by him.” State v. Singleton, supra, 77 S.W.2d at 84; State v. Gaultney, 146 S.W. 1153 (Mo.1912). The State’s evidence does not in any way raise this issue. Concisely stated, the evidence indicates that defendant and deceased were slapping at one another, defendant removed himself from the place of struggle, and then reentered and renewed the struggle, stabbing the deceased approximately 30 times.

The force used in self-defense must not exceed the bounds of what is necessary or reasonably appears necessary for defense or prevention. 40 C.J.S. Homicide § 131. If the slayer’s act is clearly excessive or entirely disproportionate to the assault made on him, the law will deem him the aggressor. 40 C.J.S. Homicide § 131. Further, where the accused continued or renewed the struggle when he had an opportunity to abandon or decline further, he became the aggressor, irrespective of whether he was at fault with the original difficulty, and is not justified in claiming self-defense. 40 C.J.S. Homicide § 133. One who is the aggressor in the difficulty in which he killed another cannot claim self-defense unless he previously withdrew from the altercation so as to have shown his intention in good faith to decline further combat. State v. Sherrill, 496 S.W.2d 321, 325 (Mo.App.1973); 40 C.J.S. Homicide § 117.

Rather than desisting, defendant returned to the “slapping”, using brutal and excessive force. There is no evidence in the record, or inferences therefrom, that warrant an instruction on self-defense.

The trial court correctly refused to submit a self-defense instruction. The judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.


author: PER CURIAM:

text:
    Ray Dean SNETHERN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10177.
    Missouri Court of Appeals, Springfield District.
    May 12, 1976.
    David G. Neal, Eminence, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Movant-appellant appeals from the dismissal of his pro se Rule 27.26 motion. On November 7, 1974, appellant entered pleas of guilty to burglary and stealing charges. The court conducted a lengthy interrogation, accepted the pleas of guilt, and sentenced appellant to a three-year term of confinement.

The motion consisted of conclusions rather than facts. Further, the transcribed plea proceeding refutes the allegations raised by appellant or shows that they were waived.

The motion was wholly inadequate, did not require an evidentiary hearing, and negated the need for appointed counsel. Bolden v. State, 530 S.W.2d 505, 507[4] (Mo.App.1975).

An opinion would have no precedential value. Affirmed pursuant to Supreme Court Rule 84.16(b).

All concur.