text:
    Ray TAFT, Appellant, v. W. A. WOLMA, Appellee.
    No. A 3870.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 29, 1976.
    Marshall I. Yaker, El Paso, for appellant.
    Cheryl Wilson, San Antonio, for appellee.
   PER CURIAM.

On September 3, 1976, appellant filed his motion seeking an extension of time for filing the record in his appeal from a judgment signed on July 7, 1976, after a non-jury trial. No motion for new trial was filed. The cost bond was timely filed on August 6, 1976.

The motion for extension of time is not supported by an affidavit from either the court reporter or the County Clerk. We have been advised by appellant’s attorney that the record was requested on August 26, 1976. As explanation for this delay of fifty-six days in requesting the record, it is stated that appellant’s present attorney was only recently retained to prosecute this appeal.

Rule 376 requires the appellant to promptly request his transcript and Rule 377 requires the same with reference to the statement of facts. In Patterson v. Hall, 430 S.W.2d 483 (Tex.1968), the Supreme Court considered the meaning to give to the relative term “promptly.” It was held that such term means a reasonable time when all attendant facts and circumstances surrounding the act to be performed are considered. The following rule was adopted:

We hold, therefore, that when a timely motion is made for an extension of time in which to file a transcript or statement of facts, supported by proof that the clerk of the trial court or the court reporter, as the case may be, could not, after request was made, prepare the part of the record requested in time for filing with, the clerk of the court of civil appeals within sixty days after entry of judgment or order overruling the motion for new trial, the court of civil appeals, in deciding the question of ‘good cause’ for the extension, has a duty to decide, in the light of all attendant facts and circumstances, the preliminary question of whether the request for the record was made within a reasonable time after notice of appeal was given.

Although Rule 386 has now been amended and superseded in part by Rule 21c, appellant still has an obligation to promptly request the record or “reasonably explain” his failure to do so. Appellant has wholly failed to offer such an explanation by his motion for extension of time.

The motion for extension of time is denied.

      . All rule references are to Tex.R.Civ.P.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Murray HARRIS, Defendant-Appellant.
    No. 36651.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Kent Karohl, David M. Korum, Kirk-wood, Thomas P. Howe, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Christopher R. Brewster, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Murray Harris, appellant, was found guilty in the Circuit Court for the City of St. Louis of unlawfully possessing and dispensing phemetrazine, a Schedule II Controlled Substance in a two count Substitute Information, § 195.020 Y.A.M.S., and on Count I was sentenced to a term of seven years and on Count II to a term of five years in the custody of the Missouri Department of Corrections, said sentences to be served consecutively and not concurrently under the terms of § 546.480 Y.A.M.S. This appeal followed.

The jury verdict in this cause was returned into the trial court on September 19, 1974. According to the transcript of the record filed in this court appellant’s Motion for Judgment of Acquittal, or in the Alternative, for a New Trial, was not filed in Circuit Court until October 16, 1974. Rule 27.20 requires that a Motion for New Trial be filed before judgment and within ten days after the return of the verdict. This same Rule permits the trial court upon application of the defendant to extend the time for filing a Motion for New Trial for an additional period of thirty days. The Motion in this case was not filed until twenty-seven days after the return of the verdict. The record does not reflect that the appellant requested, or that the trial court granted, any extension of time for filing the Motion for New Trial beyond the original ten day period provided in the Rule and therefore the appellant’s Motion for New Trial was not timely filed, having been filed some seventeen days late.

The provisions of Rule 27.20(a) fixing the time within which a Motion for New Trial shall be filed are mandatory. Any Motion for New Trial filed beyond the time provided in Rule 27.20(a) is a nullity and preserves nothing for review. State v. Tucker, 451 S.W.2d 91, 92[1, 2] (Mo.1970); State v. Laden, 536 S.W.2d 880 (Mo.App.St.L. 1976).

Nevertheless, we glean from the record that the consecutivé sentences imposed by the trial court were imposed “under § 546.480 of the Revised Statutes of Missouri.” § 546.480 RSMo. 1969, under which mandatory consecutive sentences were imposed, is unconstitutional. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). The trial court must exercise discretion in imposing sentences where verdicts of guilty on multiple count informations or indictments are involved, and where it is evident that it has not exercised its discretion in imposing sentences by reason of the directive of § 546.480 RSMo. 1969, a remand for the purpose of affording the trial court an opportunity to exercise its discretion in that respect is appropriate, even though that point is not preserved for review. State v. McCollum, 527 S.W.2d 710, 714[5] (Mo.App.1975); State v. Jones, 534 S.W.2d 556, 558[6, 7] (Mo.App.1976).

The judgment is reversed and the cause is remanded for the limited purpose of resen-tencing by the court, after the exercise of its discretion whether to impose the sentences consecutively or concurrently.

SIMEONE, P. J., and GUNN, J., concur.


author: RENDLEN, Judge.

text:
    GUILD MANAGEMENT CO., a Missouri Corporation, Plaintiff-Respondent, v. Zale OXENHANDLER et al., Defendants-Appellants.
    No. 36659.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Susman, Stern, Agatstein, Heifetz & Gallop, Sylvan Agatstein, Richard Sheehan, Pat Simons, St. Louis, for defendants-appellants.
    Friedman & Fredericks, Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

Defendants bring this appeal from plaintiff’s judgment for $57,750, including interest, in an action for real estate sales commission tried to the court without jury. We affirm.

In February, 1971, defendant-sellers engaged plaintiff-real estate broker to assist in selling two buildings in Clayton, Missouri, for an agreed fee of $50,000 per building, due on closing. No minimum or final sale price was required as a condition to payment of the fee, though an asking price of between $3,100,000 and $3,400,000 was suggested for the building known as 7711 Bon-homme. Plaintiff procured a buyer who purchased the “Bonhomme” building under contract of October 30 with closing November 19, 1971. Defendants refused to pay the commission, relying on plaintiff’s letter of October 26,1971, which they argue modified the agreement and waived the commission.

The trial court determined plaintiff had performed all the terms of its agreement and the purported modification or waiver was without consideration. Defendants concede in their brief that but for the October 26 letter plaintiff would be entitled to its fee and we accept facts thus admitted as true. Baker v. Baker, 274 S.W.2d 322, 327[19] (Mo.App.1954); Politte v. Wall, 256 S.W.2d 283, 284[1] (Mo.App.1953). The case turns on the October 26 letter’s meaning and its effect on the parties’ prior agreement.

Plaintiff, initiating conferences with possible buyers, generated the interest of Liberty Loan Corporation, which it formally registered as a prospect by letter to defendants of May 7, 1971, as follows:

In accordance with your request, I enclose herewith general details and specifications on the 7711 Building, Clayton, Missouri. This is submitted to you in connection with the interest of Liberty Loan Corporation to purchase or lease the said building. This office has been working with the said company which was first directed by the chairman thereof, Mr. David Lichtenstein, and subsequently with Mr. Everett Best. Our endeavors in this regard are following your previous instructions and authorization to offer the said building for sale or lease, and accordingly, if any deal is consummated, we expect to be protected on our fee and commission, being $50,000.00, as agreed, for a sale or a standard leasing commission upon consummation of a lease. Please indicate your acceptance and ac-knowledgement of this memorandum covering the above points.

On May 10 at defendants’ request, plaintiff prepared a letter containing general information on 7711 Bonhomme, which was sent to Liberty Loan over defendant Zale Oxenhandler’s signature. Shortly thereafter, by his own request, Oxenhandler became the primary in negotiations with Liberty.

We find the situation of the parties immediately prior to October 26 as follows: Plaintiff had tendered a buyer and was entitled to its fee, contingent upon final sale; defendants were not bound to proceed but 7711 Bonhomme had only one tenant occupying approximately 1250 square feet or 1.56% of the building’s available 80,000 square feet while annual expenses exceeded $150,000; financial realities pressured defendants to sell; defendants at their own request had assumed conduct of negotiations, including determination of the final price and being privy to all details knew (1) a sale was imminent for less than $2,900,000 and (2) there was no real prospect for a sale exceeding that amount.

In this setting Zale Oxenhandler approached plaintiff’s president, Arthur Loomstein, requesting “relief” from the fee. Loomstein testified he knew Oxenhan-dler wanted a fee adjustment but Loom-stein refused any modification of the $50,-000 contract. Here are portions of the testimony demonstrating the parties’ conflicting positions in this phase of their relationship. Defendant Zale Oxenhandler testified:

“I had to do [sic] tell him [Loomstein, plaintiff’s president] I can’t go any further, we’ll have to forget the commission and let me make a deal and he said well, best of luck, and I said I’d have to have something in writing and he said he’d get something . . . But he evidently changed his mind." (Emphasis ours.)

Mr. Loomstein testified quite differently:

“Q. [Direct examination]: . . . Pri- or to the time it [the October 26 letter] was dictated, until the last time you spoke with Mr. Oxenhandler, did you ever have any agreement ... to waive any fee earned by Guild Management? “A. [Loomstein]: No. Never.”
* * * * * *

In response to questions by the court Loom-stein testified:

“THE COURT: Did he say at that time why he needed the letter . . . what he wanted in [it] and if he did why he wanted that in it?
“A. [Loomstein]: Oh, there were so many conversations and Mr. Oxenhandler says so many things in our conversations, but I’m sure ... of what he was after. He wanted an adjustment in the fee so he could get as much as he could and negotiate my fee and I told him I would not do that. (Emphasis ours.)
“THE COURT: If I understand it correctly your fee was to be Fifty Thousand Dollars ($50,000.00)?
“A. [Loomstein]: Right and I told him that he was making enough and if I could help him get more than that, and if he was to get more then I should get more.
“THE COURT: And what did he [Zale Oxenhandler] ask you to put in that letter, what specifically?
“A. [Loomstein]: I don’t recall everything specifically . . . because if he had done that he could have written the letter and asked me to sign it.”

Thereafter the following letter of October 26, 1971, (“something in writing” requested by Oxenhandler) was sent by plaintiff to defendant:

This letter will confirm our verbal modification to our previous agreement dated May 7, 1971.
It is understood that you plan to offer the 7711 building to Liberty Loan Corporation at a price of $800,000 above the first Deed of Trust (2,100,000) which includes the balance on existing contracts to complete the building.
If a sale is consummated at a higher price than above, we will then negotiate a reasonable and appropriate commission to be paid to Guild Management Company.
Please indicate your acceptance and ac-knowledgement of this agreement below. (Emphasis added.)

Defendants admit receipt of the letter.

The trial court found that by this letter the parties attempted to modify their original agreement but concluded the modification failed for want of consideration since “defendants were obligated to pay to plaintiff the sum of $50,000.00, contingent upon the final sale . . . immediately before the October 26, 1971 letter, and an offer by defendants to negotiate, contingent on a particular sale price,, was not an agreement to do more than defendants had already agreed to do. . . .” Citing R-Way Furniture Co. v. Powers Interiors, Inc., 456 S.W.2d 632 (Mo.App.1970), the court ruled “consideration is not present where one party merely agrees to do that which it was already legally liable to do for a greater consideration, nor is it present where one party agrees to do less than it is already obligated to do for the same or greater consideration.”

Defendants contend: they retained the option of accepting or rejecting Liberty as a purchaser and had they opted for the latter could have effectively thwarted plaintiff’s claim for fees; that when they offered plaintiff the choice of accepting modification or losing its fee because there would be no sale, plaintiff accepted the modification and in reliance defendants contracted to sell; and that entering this sales contract provides consideration for the commission contract modification.

Though we rule the case on other grounds, the trial court’s conclusion that the purported modification failed for want of consideration appears to have merit. Defendants, retaining control of matters concerning terms of sale and price, knew or had reason to believe a sale for $2,900,000 (or less) was imminent. The October 26 letter confirms that plaintiff also knew defendants planned to offer the building at $2,900,000. In this context, no benefit flowed to plaintiff if it accepted or rejected defendants’ request to waive its fee. Plaintiff’s Hobson’s choice was either to accept defendants’ demand and waive its fee or to reject the demand and be denied the fee by defendants’ refusal to sell to Liberty. Similarly no real benefit to plaintiff could be anticipated under the terms of the October 26 letter, if we accept defendants’ interpretation of the letter, by which plaintiff would waive its fee on a sale price of less than $2,900,000 but “negotiate a reasonable and appropriate” fee if the building per chance sold for more than that amount. Both knew the latter condition would not be met, and indeed four days later the $2,850,000 price was contracted. We recognize consideration may be found if a promisee in reliance on a new promise changes its position; however, defendants’ assertion they would not have sold the building without a waiver of fees has a hollow ring, given the staggering overhead and absence of other serious prospective buyers. While it is correct, as appellants point out in their brief, that “the consideration sufficient to support a contract may be . a loss or detriment to the prom-isee,” Feinberg v. Pfeiffer Co., 322 S.W.2d 163, 167[6] (Mo.App.1959), there could be consideration under this theory only if we make the attenuated assumption that defendants would refuse to sell to Liberty on the slender hope a buyer for more than $2,900,000 might some day appear. However, without ruling this principle’s application here, we affirm the judgment for other reasons.

When the trial court reaches the correct result for reasons other than those adopted or perceived by the appellate court, the judgment will be affirmed. Household‘ Finance Co., Inc. v. Watson, 522 S.W.2d 111, 113[2] (Mo.App.1975); White v. Smith, 440 S.W.2d 497, 511—512[21] (Mo.App.1969). Defendants’ interpretation of the October 26 letter as a waiver is both strained and unrealistic. The letter does not state plaintiff waives its fee but rather that an appropriate fee would be negotiated if “a sale is consummated at a higher price [than $2,900,000].” There is no statement that a lesser fee would be accepted if a lesser price were obtained. If, as Oxenhandler testified, Loomstein intended to waive the fee, he manifested a marked change of intention when writing the letter, for instead of waiver, quite a different proposal appeared, one not suggested in the testimony of either party.

The parties testified to the conflicting meanings each assigned the letter but “[w]e cannot decide the case on the basis of what the parties may have intended to say. Our function is to determine what the parties intended by what they did say.” Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 479[9] (Mo.1963) cert. den., 375 U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 276 (1963); Willman v. Beheler, 499 S.W.2d 770, 775—6[10] (Mo.1973).

“[A]n undisclosed or secret intention of one of the parties cannot be used to vary or contradict the intention expressed in the written instrument.” McIntyre v. McIntyre, 377 S.W.2d 421, 426[11] (Mo.1964). If plaintiff intended to waive its $50,000 fee, it could have stated this vital fact; and if defendants expected such an agreement, upon receipt of the apparently contrary letter, they should have sought explicit language waiving the commission before consummating the sale. In their discussions Oxenhandler sought a fee adjustment and Loomstein refused. Had a waiver been agreed, as defendants now insist, defendants would not have left the matter to chance, seeking later to rely on the letter’s vagaries. Nor can we say waiver was a matter “so clearly within the contemplation of the parties that they deemed it unnecessary to expressly stipulate with reference thereto . . . .” Conservative Federal Savings & Loan Ass’n v. Warnecke, 324 S.W.2d 471, 479[2] (Mo.App.1959); Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93, 98[11, 13] (Mo.App.1974).

The parties intended different things when the October 26 letter was written. Loomstein testified that he refused to modify or waive the fee but Oxenhandler wanted “something in writing” so he could close the deal. Oxenhandler testified he wanted a “waiver” and Loomstein wished him “best of luck” and “said he’d get something . . . But he evidently changed his mind.” There was no meeting of the minds to be reduced to writing because neither party accepted the demands or proposals of the other. The letter does not contain the “stated” intention of either. Oxenhandler, having read the letter, admits Loomstein “evidently changed his mind,” thus acknowledging it contained no waiver. Loomstein on the other hand admitted he never intended to be paid an additional commission, yet the letter mistakenly or by design deals with that proposition as though agreed by the parties.

“To be effective as a modification, the new agreement must possess all the elements necessary to form a contract.” Smith v. Githens, 271 S.W.2d 374, 379-80[18] (Mo.App.1954). Since there was no meeting of the minds, there was no contract of modification. “ ‘Where parties assume to contract, and there is a mistake with reference to any material part of the subject matter, there is no contract, because of the want of mutual assent necessary to create one. In this connection, it has been said that mistake does not so much affect the validity of a contract as it does to prevent its inception, and that mistake may be such as to prevent any real agreement from being formed, so that the apparent contract is void both in law and equity.’ ” Fulton v. Bailey, 413 S.W.2d 514, 518[3, 4] (Mo.1967).

Appellants contend an ambiguous contract should be construed strongly against the party drawing it. McIntyre v. McIntyre, 377 S.W.2d 421, 426[12] (Mo. 1964). That rule of construction is to be applied only when other means of construction fail, Robson v. United Pacific Insurance Co., 391 S.W.2d 855, 861[6] (Mo.1965); McIntyre v. McIntyre, supra; Katz Drug Co. v. Kansas City Power & Light Co., 303 S.W.2d 672, 680[6] (Mo.App.1957), and is not controlling in this case. Here there was no modification agreement because the parties intended different things and neither conceded the other’s position. There was no meeting of the minds before the October 26 letter and the letter did nothing to bridge this gap. As there was no agreement modifying or rescinding the brokerage fee contract, when defendants sold their building, plaintiff was entitled to its fee. The judgment is affirmed.

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

      . Defendants place the meeting of the parties leading to the contract later, sometime prior to May 7, 1971. The trial court’s findings, supported by substantial evidence, indicate February, 1971, as the month the oral agreement was reached.

      . Defendant Selig S. Oxenhandler (Zale Oxen-handler herein) is the spouse of defendant Joyce Oxenhandler and they are the only stockholders of defendant Selig Building Company, a Missouri corporation.

      . Plaintiffs president testified that Oxhandler said the annual charges were “eating him up.”

      . Defendant Zale Oxenhandler testified he informed Loomstein, plaintiffs president, of other prospective purchasers but no price appears to have been mentioned and Oxenhandler admitted none of the prospects moved to the Clayton area.

      .Defendants in their brief state: “[W]hen relief was requested by Oxenhandler from the commission obligation it appeared that the purchaser was ready to make the purchase . ” (Emphasis ours.) The testimony of defendant Zale Oxenhandler indicates the “relief’ sought was waiver of all fees.

      . From the October 26 letter: “It is understood that you plan to offer the 7711 building to Liberty Loan Corporation at a price of $800,000 above the first Deed of Trust ($2,100,000),” i. e. $2,900,000.

      . It cannot reasonably be suggested the parties believed that Liberty would pay more than $2,900,000 when defendants’ offering price was then $2,900,000.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Hollice CARTER, Defendant-Appellant.
    No. 37234.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 20, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      James C. Jones, Kent Fanning, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Douglas Mooney, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas M. Daley, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted by a jury of Attempted Burglary Second Degree, Sections 560.045, 556.150(3) RSMo 1969 and sentenced to two years imprisonment. He raises three points on appeal: (1) that the trial court erred in denying his motion for a judgment of acquittal at the close of all the evidence because the state’s evidence showed, if anything, a completed act of burglary, not attempted burglary; (2) even if the state’s evidence showed attempted burglary, the trial court erred in denying defendant’s motion for acquittal because there was insufficient evidence of intent to commit attempted burglary; and (3) that the trial court erred in giving its instruction No. 6 because it did not follow MAI — CR 7.22, and 2.06, and thus did not sufficiently separate the elements of the offense of attempted burglary. We have examined these contentions and affirm defendant’s conviction.

A detailed discussion of the facts is required due to defendant’s challenge to the sufficiency of the evidence.

Paul Houston resided at 5760 Highland Avenue, St. Louis, on August 26, 1974. At about 1:00 p. m. he left for work. This residence had two doors. Only the north door was ever used; the other was kept nailed and bolted shut, and faced south opposite an alley. It had a glass window protected by an iron mesh grate. There was a screen door outside of this door kept locked by a “fishhook.” Above was a roof which extended outward over slab concrete, forming a porch. This roof was supported by two braces made of 2' x 4's which pointed up from the bolted door. The screen door, the bolted wooden door, the window, and iron grate were all intact when Houston left for work.

At 3:17 p. m. Officer John Thomas responded to a call directing him to go to 5760 Highland and investigate a report of prowlers attempting to gain entrance. Officers Hughes, Loehr, and Simora were travelling together in a police van a block away from the Highland address. They also responded to the broadcast and arrived there less than a minute later. They stopped the van about fifty feet from the Houston residence. There the officers saw three black youths, including the defendant, standing on the concrete porch in back of the bolted door.

The testimonies of the officers conflict as to what defendant was doing at this time. According to Officers Hughes and Loehr, defendant was holding the screen door open. A second youth was holding onto a supporting 2' x 4' with his right hand, the left hand was on top of the porch roof bracing his body, and his feet were swinging up against the bolted door below the window area. He was being supported by either a third youth as Officers Hughes and Loehr testified, or by defendant himself, as Officer Simora testified. One youth was using a metal object (referred to as a barbecue spicate) to push in the iron grate which guarded the window. The officers began to alight from the van. Defendant turned around, saw the officers, and called out, “The police.” All three youths began to run. The police apprehended defendant and the other two youths after a short chase.

The officers examined the porch area. The screen door was partly open. The window glass on the bolted door was completely broken out. The metal grate over the window had been pushed in and pried back on three sides. The bolted door was still shut. The officers called Paul Houston at work. When he arrived he noticed the screen door was open and that there was a hole in it. He also saw the glass was completely broken out and the metal grate was ripped on three sides and hanging down. He looked inside his home and nothing was disturbed.

Defendant’s first contention is that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the state’s evidence showed, if anything, a completed act of burglary. Thus, he argues, he could not be convicted of attempted burglary.

The elements of burglary are breaking and entering a dwelling house with intent to commit a felony or steal therein. State v. Brunson, 516 S.W.2d 799, 801[1] (Mo.App.1974); § 560.045 RSMo 1969. Defendant argues that he fulfilled the requirement of “entering” in addition to that of “breaking” due to the fact that he had access to the inside of the house. He relies on the facts that the glass on the bolted door was completely broken in, the metal grate was hanging down, and that the victim testified that “someone could get in there if they wanted to.”

Our law holds that the presence of any part of the burglar’s body within the premises is sufficient entry to fulfill that requirement of burglary. State v. Watson, 383 S.W.2d 753, 756[4] (Mo.1964); State v. Tierney, 371 S.W.2d 321, 323[3] (Mo.1963). It does not hold that “ability to enter” is synonymous with “entry in fact.” Here there was no showing that any part of defendant’s body was inside the house at anytime. Hence entry, an essential element of the completed crime of burglary, State v. Pigques, 310 S.W.2d 942, 945[2] (Mo.1958), has not been shown. The authorities relied on by defendant focus on the issue of what amount of force is necessary to constitute “breaking” and “entering.” State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Bradley, 485 S.W.2d 408 (Mo.1972); State v. Rhodes, 408 S.W.2d 68 (Mo.1966). They do not define “entry.”

State v. Pigques, supra, also heavily relied on by defendant, does not support his theory but in fact states the general rule that some part of the body must intrude within the premises in order to constitute “entry” as a matter of law. Defendant’s first point is without merit.

Defendant’s second point of appeal is that there was insufficient evidence of intent to commit attempted burglary because the intent to steal or commit a felony has not been proven. Intent to commit the crime is one of the elements of an attempted crime, State v. Miles, 510 S.W.2d 787, 790[4] (Mo. App.1974). The intent required by the burglary second degree statute is “intent to commit a felony or to steal,” § 560.045, and is thus incorporated by the attempt statute, § 556.150. Since intent is a state of mind, there is no direct proof of it. Thus the rule is that intent may be inferred from the circumstances, State v. Faber, 499 S.W.2d 790 (Mo.1973), 22 C.J.S. Criminal Law § 75(3) (1961), and becomes a question of fact for the jury. Here the evidence shows that defendant was either holding open the screen door which had been locked, or holding up his companion who was attempting to swing his feet through the bolted door. Another youth was using a barbecue spicate to pry away the metal grill from the window of the bolted door where the glass was completely broken out. There was a hole in the screen door and damage to both doors. All this indicates a concerted effort to enter the house, not merely to injure the property, and consequently the inference is reasonable that the intent was to steal once entry was gained. The jury could reasonably conclude this to be the object of the youths’ exertions, and indeed every reasonable hypothesis of innocence is excluded by this evidence. Evidence of tampering with and prying open a door permits the inference of the requisite intent so as to sustain a conviction of attempted burglary. State v. Taylor, 445 S.W.2d 282 (Mo.1969); State v. Newman, 391 S.W.2d 207 (Mo.1965).

Finally defendant contends that instruction No. 6 given by the trial court was a prejudicial deviation from the MAI-CR 7.22 as modified by 2.06 and 2.12 because it did not sufficiently separate the foments of the offense. The portion of the instruction objected to was, “If you find . the defendant and others attempted but failed to break into and enter the dwelling place of Paul Houston . . .” The instruction contended for by appellant reads, “If you find . . . the defendant and others attempted but failed to break into the dwelling place of Paul Houston . and attempted but failed to enter therein . .”' (Emphasis supplied).

Defendant argues that because the words “break into” and “enter” are separated by a number of words in MAI-CR 7.22 it is necessary to emphasize that these are two distinct requirements and that it was prejudicial not to use the words “and attempted but failed to” before the word “enter.” We believe that the failure to use the words “and attempted but failed to” before the word “enter” was a deviation from MAI-CR 7.22 as modified by MAI-CR 2.06 and constituted an error.

Rule 20.02(c) states that MAI-CR pattern instructions must be used when available. Rule 20.02(e) states that violation of the above rule is error and that the prejudicial effect therefrom is to be judicially determined. However, we have determined that this technical deviation was not prejudicial to the defendant. Both elements of the crime are sufficiently separated by the conjunctive “and” in the phrase “attempted but failed to break into and enter.” (Emphasis added). The jury was also instructed that it must find the defendant guilty of “each and all of the foregoing,” [submitted elements]. This phrase was held to have saved a faulty instruction in State v. Adams, 531 S.W.2d 763, 764[1] (Mo.App.1975). Immediately thereafter in this case, the jury was further instructed “[bjurglary in the second degree is the breaking and entering of the dwelling house . . . (Emphasis supplied). Thus the jury was advised that it was required to find both elements in order to convict the defendant.

In summary, we do not believe the instruction as given was prejudicial or in any way misleading. The error in the instruction did not affect its substantive meaning.

The judgment is affirmed.

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

      . For comment on this case, see 24 Mo.L.Rev. 371 (1959).


author: GUNN, Judge.

text:
    Elizabeth STOGSDILL, Plaintiff-Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    Nos. 37374, 37375.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 27, 1976.
    Motion for Rehearing and for Transfer Denied Sept. 30, 1976.

      Kortenhof & Ely, Frank E. Strzelec, St. Louis, for appellant.
    Charles J. McMullin, St. Louis, for respondent.
   GUNN, Judge.

This case involves two appeals which we shall treat separately. The first appeal is from a jury verdict awarding plaintiff-respondent $2,500 under a group accidental death policy issued by defendant-appellant; the second is from the trial court’s order awarding plaintiff’s attorney $400 as costs for expenses in taking a deposition of one of defendant’s witnesses. We affirm as to the $2,500 jury verdict and reverse as to the $400 attorney’s expenses.

,We initially deal with the appeal from the jury verdict awarding plaintiff $2,500 in which the defendant raises three points of alleged error: 1) that plaintiff failed to make a submissible case under the insurance policy provisions and that the judgment was contrary to Missouri law; 2) that the plaintiff’s verdict director contained a misstatement of the law and did not meet the brevity and simplicity requirements of Rule 70.01(e); 3) that the trial court erroneously admitted certain photographic evidence.

The principal in this case is Odis Stogsdill whose life was abruptly interrupted by a shotgun blast administered by his wife, Wilma Stogsdill. The dispute in this case centers on the $2,500 accidental death benefit provision of a standard life and accident group insurance policy issued by the defendant insurance company and covering the life of Odis Stogsdill. Plaintiff was the named beneficiary of the proceeds of the policy, and defendant concedes that plaintiff, as named beneficiary, is entitled to $2,500 under the standard life provisions of the policy covering Odis. But defendant challenges plaintiff’s right to $2,500 accidental death benefits, charging that Odis was the aggressor in a brouhaha leading to his death. Defendant asseverates that since Odis was the aggressor in a family imbroglio, defendant’s motion for directed verdict should have been sustained. Defendant argues that as a matter of law an aggressor killed in the course of his aggression has voluntarily assumed the risk of being killed, and a beneficiary may not, therefore, recover accidental death benefits.

In answer to defendant’s initial contention that the judgment on the jury verdict was contrary to Missouri law and that the trial court thereby erred in not sustaining defendant’s motion for directed verdict, we first indite some basic legal tenets. First, in reviewing the trial court’s action in denying defendant’s motion for directed verdict we view the evidence in the light most favorable to the plaintiff. Dollar v. Ozark Engineering Company, 500 S.W.2d 727 (Mo.App.1973); a directed verdict, being a drastic action, should be granted only where reasonable men in an honest and impartial exercise in their duty could not differ on a correct disposition of the case. McCarthy v. Wulff, 452 S.W.2d 164 (Mo.1970); Eyler v. Allison, 500 S.W.2d 49 (Mo.App.1973). Second, in a question involving accidental death insurance the plaintiff need only establish that the insured’s death resulted from violent means to create a presumption of accident. Connizzo v. General American Life Ins. Co., 520 S.W.2d 661 (Mo.App.1975). This purely procedural and wholly rebuttable presumption has the effect of shifting the burden of going forward to the defendant, but the ultimate burden of proof by the preponderance of evidence abides at all times with the plaintiff. Di Paoli v. Prudential Insurance Co., 384 S.W.2d 861 (Mo.App.1964); Ward v. Penn Mutual Life Insurance Company, 352 S.W.2d 413 (Mo.App.1961).

The evidence in this case was undisputed that Odis Stogsdill died a violent death from a shotgun wound; therefore, the presumption of accident was established and the burden of going forward shifted to the defendant. Thus, a directed verdict as sought by the defendant at the closing of the plaintiff’s case would be error. But going further, in determining if a death is accidental for insurance policy purposes where the insured has voluntarily exposed himself to peril, the keystone is whether death is unforeseeable and unexpected or whether a natural or probable consequence of the insured’s actions. Where the danger to which the insured has caused himself to be exposed is by reason of resistance to his own aggression, the foreseeability of death is determined by the character of the aggression and of the resistance likely to be employed in repelling that aggression. Winston v. General American Life Insurance Co., 469 S.W.2d 51 (Mo.App.1971); Perringer v. Metropolitan Life Ins. Co., 241 Mo.App. 521, 244 S.W.2d 607 (1951); Podesta v. Metropolitan Life Ins. Co., 150 S.W.2d 596 (Mo.App.1941). Thus, the mere fact that the insured may have been the aggressor in an altercation ultimately leading to his death does not preclude recovery by a beneficiary. If the beneficiary proves that the resistance offered by the person being assailed was not of the kind or degree that should have been reasonably anticipated by the insured from the character of the initial aggression, the beneficiary may be entitled to recover under the provisions of the accidental death policy. Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277 (Mo.App. 1942). The converse situation, where the insured’s assault invites deadly retaliation, would preclude accidental death benefit recovery. Di Paoli v. Prudential Insurance Co., supra; Podesta v. Metropolitan Life Ins. Co., supra; Russell v. Metropolitan Life Ins. Co., 149 S.W,2d 432 (Mo.App.1941). If reasonable minds differ as to the foreseeability of death resulting from the insured’s action, a jury question exists. Camp v. John Hancock Mut. Life Ins. Co., supra.

There were two questions for jury consideration in this case: 1) Was Odis the aggressor in the assault? 2) If Odis was the aggressor, were his actions such that death was a foreseeable consequence? There was ample evidence that he was not the aggressor. Plaintiff’s evidence was that Odis entered his home on the evening of his death in “a pretty good mood” and was apparently attacked by two of Wilma’s children by a-previous marriage; that Odis was struck several times with a long metal flashlight by one of his stepsons and was not faring very well in fending off his attackers when Wilma shot him in the back. Defendant’s evidence was that Odis had arrived home in the evening in a mordacious and bellicose mood and began striking Wilma and her children, rendering Wilma unconscious; that when Wilma regained her senses she shot Odis as he was struggling with her sons. There was also evidence that Odis’ elbow struck the shotgun during the melee causing it to accidentally discharge. In any event, there is a palpable conflict of evidence as to whether Odis was the aggressor vel non, and we leave the evidentiary conflicts for jury resolution. Lamb v. Heiligers, 532 S.W.2d 820 (Mo.App.1975). Thus, it was for the jury to resolve whether the feral attack made against Odis could have been reasonably anticipated so as to preclude recovery of accidental death benefits by the jury or whether Odis was in fact the aggressor. The jury’s finding was favorable to plaintiff.

As to the second part of its argument that the trial court erred in failing to sustain its motion for directed verdict, defendant asserts that plaintiff failed to make a submissible case, in that the group insurance policy covering Odis’ life was not introduced into evidence. At trial plaintiff introduced a certificate of insurance and booklet published by the defendant outlining the group insurance policy benefits, including the double indemnity provisions for accidental death. The group policy was not introduced. Defendant for the first time on appeal argues that the plaintiff failed to make a case, because the policy was not introduced. Defendant’s argument in this regard arises too late for our consideration. The authority of this court to review allegations of error is recited in Rules 78.07 and 84.13(a) V.A.M.R. To be reviewable, allegations of error must first have been presented to the trial court with a degree of specificity and definiteness to sufficiently apprise the court of the particular acts or rules alleged to be erroneous. Skelton v. General Candy Co., 539 S.W.2d 605 (Mo. App.St.L.Dist.1976); Pasley v. Newton, 455 S.W.2d 43 (Mo.App.1970). “The office of a motion for a new trial is to gather together the rulings complained of as erroneous, and solemnly and formally present them, one by one, in black and white to the judge in order that he have a last chance to correct his own errors without the delay, or expense, or other hardships of an appeal. This much is required. Less does not preserve the rulings for review.” Fruit Supply Co. v. Chicago, B. & Q. R. Co., 119 S.W.2d 1010, 1011 (Mo.App.1938). Since the trial judge was never presented with an opportunity to rule on this question under consideration raised initially in defendant’s brief, it was not preserved for review. Schneider v. Southwestern Bell Telephone Co., 413 S.W.2d 16 (Mo.App.1967).

Defendant next assails plaintiff’s verdict directing instruction which provides:

“Your verdict must be for plaintiff if you believe that Odis Stogsdill’s death was the result of an accident, unless you believe plaintiff is not entitled to recover by reason of instruction 3.
“The term ‘accident’ as used in these instructions means either that the deceased Odis Stogsdill was not the aggressor in the altercation, or, if he were, he could not reasonably foresee death at the hands of his wife Wilma Stogsdill, and the terms [sic] applies even if the shooting was intentional.”

Defendant argues that the instruction is argumentative and confusing, is not simple and brief as required by Rule 70.01(e) V.A. M.R. and is a misstatement of the law. We believe that plaintiff’s verdict director complies with Rule 70.01(e) V.A.M.R. Defendant has not indicated in what manner the instruction is argumentative and confusing, and we do not perceive it to be so on its face. Nor, can it be said that the instruction is not simple and brief; we note that it is no more complex than defendant’s own converse Instruction No. 3 referred to in the footnote. Neither does it appear in the candescence of our previous discussion concerning the definition of accidental death where the insured is the aggressor that plaintiff’s verdict director is a misstatement of the law. The key element in determining whether death is accidental is its foreseeability. Aggression by the insured is but a circumstance to be considered in this determination; it is not dispositive of the issue as defendant implies. The issue of deadly encounter and the foreseeable results therefrom, and, indeed, whether Odis was in fact the aggressor, were jury questions under the evidence and not conclusions to be assumed in the instructions as defendant urges.

Defendant further argues that the trial court erred in allowing plaintiff to introduce photographs of the deceased purportedly showing the position of his body after the fatal shooting. Defendant charges that the photographs were inflammatory, prejudicial, without probative value, and the accuracy of the photographs was not determined through testimony of the photographer taking the pictures. The admission of photographic evidence rests in the sound discretion of the trial court. Long v. Hooker, 443 S.W.2d 178 (Mo.1969); State ex rel. State Highway Com’n v. Thelnor, Inc., 485 S.W.2d 443 (Mo.App.1972). Even though photographs are gruesome and depict serious injuries they need not be excluded if they satisfy the rules as to the admission of demonstrative evidence. McWilliams v. Wright, 460 S.W.2d 699 (Mo. 1970); State v. Thresher, 350 S.W.2d 1 (Mo. 1961). The photographs must be sufficiently verified, must fairly and accurately reflect the situation, and must be likely to be of sufficient assistance to warrant their use. Reed v. Shelly, 378 S.W.2d 291 (Mo.App. 1964). The photographs here were verified as being fair and accurate representations of the scene depicted by an eyewitness to the shooting and were important as evidence to support plaintiff’s theory of the decedent’s position at the time he was shot. It is not necessary, as defendant contends, that the photographer’s identity be made known to the court or that he be present to verify the photographs’ authenticity so long as a competent and knowledgeable witness can attest to their veridicality. See State v. Sanders, 365 S.W.2d 480 (Mo.1963). The trial court properly exercised .its discretion in admitting the contested photographs into evidence.

We therefore, find no prejudicial error in the judgment in favor of plaintiff for $2,500 for the accidental death benefits and affirm that judgment.

The second appeal relates to the order of the trial court taxing as court costs certain expenses of plaintiff’s attorney in attending the deposition of Wilma Stogsdill in Mtn. View, Arkansas. The total amount taxed as expenses was $400 ($200 for out of pocket expenses and $200 for plaintiff’s attorney’s time). On two occasions prior to the deposition in question defendant gave plaintiff’s attorney notice that Wilma Stogsdill would be deposed; however, on each occasion the scheduled deposition was cancelled in advance. Upon receiving notice of the third deposition plaintiff objected in a hearing before the circuit court. The court ordered plaintiff to attend but provided that counsel’s expenses would be taxed as costs. Plaintiff’s attorney traveled to Mtn. View, Arkansas, and the deposition was taken by the defendant.

Rule 57.03(h)(1) V.A.M.R. provides that if a party giving notice of a deposition fails to attend and the noticed party does attend, the court may order the party giving notice to pay the other party’s reasonable expenses, including attorney's fees. In addition, Rule 61.01(f) V.A.M.R. allows the trial court, where a party fails to appear at a deposition after being served with notice, to “make such orders in regard to the failure as are just.”

It is primarily under the foregoing rules that the plaintiff seeks to justify the trial court’s order. Under the facts of this case, however, these rules are inapposite. On each of the two occasions in which the deposition was cancelled, plaintiff’s attorneys were notified in advance; therefore, they were not forced to attend a deposition at which the other party failed to appear. Plaintiff’s attorney alleges in his motion to tax expenses as costs that he was forced to cancel appointments and dockets, but he does not allege any pecuniary loss as a result thereof. Therefore, the trial court could not have properly awarded damages for expenses arising from these previous cancellations.

It is manifest that the court was not empowered to tax as costs the expenses incurred in attending the foreign deposition which the noticing party did attend. Ordinarily attorney’s fees are not recoverable as costs of litigation in the absence of statute. Edwards v. Smith, 322 S.W.2d 770 (Mo. 1959); In re L. G., 502 S.W.2d 33 (Mo.App. 1973). The relevant statute regarding the taxation as costs expenses of depositions is § 492.590 RSMo 1969. This statute limits costs and expenses of taking depositions to those enumerated — none of which could be construed as encompassing attorney’s fees. If the two prior notices for depositions had not been given, the plaintiff could not have been awarded the foreign deposition costs under any theory. The fact that two prior depositions were cancelled does not change this result, as plaintiff’s attorney in attending the Mtn. View deposition incurred no expenses other than those normally incident to attending a foreign deposition; therefore, the order of the trial court taxing these expenses as costs must be reversed.

Judgment for $2,500 for accidental death benefits in favor of plaintiff is affirmed; judgment of $400 for attorney’s expenses is reversed.

SIMEONE, P. J., and KELLY, J., concur.

      . Instruction No. 3:
      “Your verdict must be for the defendant if you believe that Odis Stogsdill was killed as a result of his being the aggressor and voluntarily and culpably provoking and engaging in an altercation with another person under such circumstances as to charge him with reasonable anticipation that his aggression would be met by such forceable resistance as to put him in danger of death or great bodily harm.”


text:
    Alvin DYER, Plaintiff-Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Respondent.
    No. 37396.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.

      Elmer C. Oberhellmann, St. Louis, for plaintiff-appellant.
    Joel Monson, Kortenhof & Ely, Frank Strzelec, St. Louis, for defendant-respondent.
   DOWD, Judge.

Plaintiff, Alvin Dyer, sued General American Life Insurance Company under an individual accident insurance policy number K-93,803 A. This policy provided that an indemnity of $100.00 per month should be paid to the insured, Alvin Dyer, if accidental injuries should, within 20 days after the accident, “wholly and continuously disable the Insured and prevent him from performing every duty pertaining to his occupation.” Such indemnity was to be paid as long as the insured was totally disabled, but not more than 24 months. After 24 months, the company agreed to pay the monthly indemnity “only so long as the Insured shall be wholly and continuously disabled and prevented by such injuries from engaging in any substantially gainful occupation, business, or employment for which he is or may become qualified.”

The plaintiff voluntarily dismissed two of his claims against defendant and proceeded on his claims for: (1) punitive damages for the defendant’s tortious breach of a duty of good faith in failing to pay plaintiff indemnities under policy number K-93,803 A; (2) punitive damages for the defendant’s breach of insurance policy number K-93,803 A; and (3) accelerated disability benefits under the insurance policy. The trial court dismissed plaintiff’s remaining claims, ruling that the claims failed to state a cause of action against defendant. Plaintiff has appealed.

We have summarized the facts stated in plaintiff’s petition in the light most favorable to plaintiff, considering all facts well pleaded as admitted and giving plaintiff the benefit of all favorable inferences which could be drawn from such facts. Collins v. Vernon, 512 S.W.2d 470, 475 (Mo.App.1974).

On November 5, 1968, plaintiff’s back was injured while in the course of his employment. At the time of plaintiff’s injury, plaintiff was insured under several of defendant’s policies, an individual accident insurance policy number K-93,803 A and a group policy, through plaintiff’s employer McDonnell Douglas Corporation, providing life insurance (Policy G-5546), accidental death and dismemberment insurance (Policy ADD-1357), accidental accident and sickness insurance (Policy SAH-1296), and hospital expense insurance (Policy GH—1244). Such policies were incorporated in plaintiff’s petition.

Subsequent to the accident which injured plaintiff’s back, plaintiff developed “degenerative disk disease of the low back, post-surgical with possible arachnoiditis.”

On March 4, 1969, plaintiff filed notice and proof of disability with defendant under one of plaintiff’s insurance policies. Thereafter, plaintiff received a monthly indemnity for 24 consecutive months.

In February of 1973, plaintiff applied for payment of further monthly indemnities. In this same month, plaintiff was examined by a doctor of defendant’s choosing. The doctor wrote defendant that, in his opinion, plaintiff’s back disease rendered plaintiff unfit for work, totally and permanently disabled by social security standards. Plaintiff’s petition appears to assert that plaintiff had been declared totally and permanently disabled by the Social Security Administration in March of 1973 and by the Veteran’s Administration in April of 1973.

In March of 1973, defendant denied any obligation to plaintiff under policy number K-93,803 A. Plaintiff wrote to defendant on April 17, 1973 and protested the defendant’s actions. On July 2, 1973 defendant wrote plaintiff and explained that plaintiff’s claim under policy number K-93,803 A had been re-evaluated in view of communication with plaintiff’s former employer. Defendant stated that it had learned that plaintiff had worked for a period of over 8 months subsequent to plaintiff’s injury in 1968. Because defendant did not believe that the plaintiff had been “wholly and continuously disabled” within the terms of the policy, the defendant explained that it would not pay disability benefits under policy number K-93,803 A. Our review of this action must determine whether plaintiff’s petition stated a cause of action under the facts thus pleaded.

Plaintiff’s first point on appeal is that his claim against defendant for tor-tious breach of defendant’s duty of good faith does state a claim upon which relief can be granted. Whether an insurer is liable in tort for the insurer’s bad faith refusal to pay disability benefits to an insured has never been decided in Missouri. Missouri law does recognize an insured’s recovery in tort against his liability insurer for the insurance company’s bad faith refusal to settle suits brought against the insured. The elements of the tort appear to be that: (1) the liability insurer has assumed control over negotiation, settlement, and legal proceedings brought against the insured; (2) the insured has demanded that the insurer settle the claim brought against the insured; (3) the insurer refuses to settle the claim within the liability limits of the policy; and (4) in so refusing, the insurer acts in bad faith, rather than negligently.

The damages recoverable in such an action equal the amount of money which the insured was forced to pay on the claim not settled by virtue of a judgment of liability in excess of the policy limits. Zumwalt v. Utilities Insurance Co., 360 Mo. 362, 228 S.W.2d 750 (1950); Landie v. Century-Indemnity Co., 390 S.W.2d 558 (Mo.App. 1965).

Such Missouri cases, involving third party insurance, are clearly distinguishable from the case at bar; but plaintiff asks us to take this opportunity to extend the tort of bad faith to situations involving an insurer’s bad faith refusal to pay disability benefits to an insured. We find that the determination requested by the plaintiff is unnecessary to our holding and expressly decline to rule upon whether or not the tort of bad faith should be extended to first party insurance.

Plaintiff has failed to allege facts indicating bad faith on the part of defendant and, therefore, his claim would not state a cause of action for bad faith should such an action be recognized in first party insurance situations. The pleadings in this case included defendant’s explanation to plaintiff presenting defendant’s reason for denying disability payments under policy number K-93,803 A. Defendant wrote plaintiff that communication with plaintiff’s former employer had revealed that plaintiff had worked on a full-time basis for a period of over 8 months in the same job classification and for the same pay subsequent to plaintiff’s accident. Defendant explained that, for this reason, defendant believed that plaintiff had not been wholly and continuously disabled. As plaintiff maintains in his reply brief, whether post-accident employment terminates the insurer’s obligation to pay benefits for total and continuous disability is ordinarily a question of fact. The fact finder can balance the insured’s evidence of disability against evidence of post-accident employment to determine whether the insured was only able to work at substantially reduced performance, through the aid and assistance of coworkers, or at the price of further physical harm. Cox v. Washington National Insurance Company, 520 S.W.2d 76, 79 (Mo.App. 1974). Thus, whether the plaintiff before us is totally and continuously disabled under policy number K — 93,803 A is a matter upon which reasonable minds might differ. Under such circumstances, we cannot say that the insurer’s decision to deny liability amounts to bad faith. This is so in spite of any medical evidence indicating the plaintiff’s disability is total and permanent. If there is an “open question of fact or law determinative of the insurer’s liability, the insurer, acting in good faith, may insist on a judicial determination of such questions without being penalized therefor.” Cox v. Washington National Insurance Co., supra at 81.

In his reply brief, plaintiff asserts that defendant evinced bad faith by refusing to pay lifetime disability benefits under policy K — 93,803 A while paying disability benefits under another policy. Plaintiff claims that the conditions for disability payments under both policies are identical but for the latter policy’s provision to terminate benefits after 24 months. Plaintiff’s pleadings did not specify the policy number of any insurance policy meeting this description nor was any such insurance policy incorporated into plaintiff’s pleadings. Apparently, plaintiff meant to raise this matter in his allegation that defendant denied disability benefits under policy number K-93,803 A after previously declaring plaintiff permanently and totally disabled. However, the pleadings alleged no facts which would support such a statement. The statement is a mere conclusion by the pleader, unsupported by factual allegations, and must be disregarded. Henkel v. City of Pevely, 488 S.W.2d 949, 951 (Mo.App.1972); Collins v. Vernon, 512 S.W.2d 470, 475 (Mo. App.1974).

Plaintiff’s second point on appeal is that his petition did state a cause of action for punitive damages. While plaintiff’s petition appears to request punitive damages if breach of contract or if the tort of bad faith is found, plaintiff restricts his appeal to the claim for punitive damages arising out of tort. Since we agree with the trial court that plaintiff did not set forth a cause of action for bad faith, plaintiff’s claim for punitive damages also fails.

We note, however, that an allegation of bad faith on the part of an insurer is insufficient, in itself, to state a claim for punitive damages. The pleadings must also allege facts indicating that defendant maliciously, wilfully, intentionally, or recklessly injured the plaintiff by his tortious act. Zumwalt v. Utilities Ins. Co., supra at 756. Punitive damages require a showing that defendant committed a wrongful act, knowing it to be wrongful, without just cause or excuse. Yost v. Household Finance Corp., 422 S.W.2d 382, 385 (Mo.App.1967). We believe that the defendant’s conduct complained of in plaintiff’s petition falls short of such a standard.

In a third point raised on appeal, plaintiff argues that the trial court erred in dismissing plaintiff’s claim for accelerated disability benefits. We agree with the trial court that plaintiff’s request for immediate payment of future monthly benefits based upon plaintiff’s reasonable life expectancy does not state a claim upon which relief can be granted. As plaintiff observed in his brief, present Missouri law precludes the recovery of future, periodic disability benefit payments. Allen v. National Life and Accident Ins. Co., 228 Mo.App. 450, 67 S.W.2d 534 (1934).

Plaintiff’s final argument on appeal is that the trial court erred in ruling that Missouri’s “Vexatious Delay” Statute, §§ 375.296; 375.420 RSMo 1969, was the exclusive remedy available to the plaintiff for additional damages against the insurer beyond contract damages. No such ruling by the trial court is before us, and an appellate court does not review legal propositions not expressly decided by the trial court. South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 590 (Mo.App.1975).

For the foregoing reasons, we affirm the trial court’s dismissal of plaintiff’s fourth amended petition.

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

      . Defendant’s brief stated that plaintiff had also obtained an individual sickness policy number K-93,803 S.

      . Plaintiffs petition asserted that plaintiff was paid under policy number K-93,803 A. This was contradicted by a letter sent by defendant on July 2, 1973 which was incorporated into plaintiff’s petition. The letter indicated that disability benefits were not paid for 24 months under policy number K-93,803 A. Plaintiff also asserted that he was declared totally and permanently disabled under disability provisions substantially the same as those provisions found in policy number K-93,803 A. The petition alleged that these similar provisions were embodied in policy number G-5546. Policy G-5546 is a life insurance policy and contains no language similar to the above quoted disability provision in policy number K-93,803 A. Policy number SAH-1296 provided for a weekly indemnity for total disability caused by accidental injuries only if the injuries did not occur during the course of employment. Therefore, plaintiff did not allege the existence of any insurance policy which provided for disability payments on the same terms as those provided in policy number K-93,803 A. Documents which are not pleaded nor before the trial court are not part of the transcript on appeal and cannot be considered in our opinion. Collins v. Vernon) supra at 473. However, a favorable inference could be drawn from plaintiffs petition that plaintiff received benefits from defendant under some policy of insurance.

      . Defendant’s brief indicates that payments for disability were made under a sickness insurance policy number K-93,803 S.


author: STEWART, Judge.

text:
    Fred S. ANHEUSER, Plaintiff-Respondent, v. OSWALD REFRACTORIES COMPANY, INC. (Now EMO Corp.), Defendant-Appellant.
    No. 36585.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 3, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Gerald R. Ortbals, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, St. Louis, for defendant-appellant.
    Norris Allen, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Plaintiff brought an action to recover $5,000.00 which he had paid to defendant as part of the purchase price for a cabin cruiser. In a court-tried case plaintiff had judgment as prayed with interest. We reverse and remand.

On November 13, 1970, defendant’s boat, Teri-Ho II, enroute to Memphis, Tennessee, and then to New Orleans, Louisiana, tied up at Hoppie’s Landing in Kimmswick, Missouri, on the Mississippi River. Plaintiff came aboard to visit with Mr. Oswald, agent of defendant. Plaintiff expressed a desire to purchase the boat. Plaintiff agreed to purchase and defendant through Mr. Oswald agreed to sell the boat for $25,000.00. Before plaintiff agreed to purchase the boat he took a trial run on the river with a Mr. Fabick who was referred to as the Captain of the boat.

After a trip to Cape Girardeau to keep a prior engagement the Teri-Ho II returned to Kimmswick where possession of the boat was turned over to plaintiff. Plaintiff gave defendant’s Mr. Oswald a check for $5,000.00, dated November 14, 1970. The check cleared the bank on November 16 or 18.

On November 20, 1970, Mr. Oswald and Mr. J. Soulard Johnson went to Kimmswick where the boat was located and where plaintiff lived.

Plaintiff was presented with two documents. He signed the following document:

“November 20, 1970
Mr. Harold Oswald
Oswald Refractories Company, Inc.
1750 S. Brentwood Blvd.
St. Louis, Missouri 63144
Dear Mr. Oswald:
I hereby confirm the fact that I do not wish to proceed with the purchase of the cruiser TERI-HO II and you are hereby released from the agreement made between the writer to purchase the boat and yourself.
This will serve to authorize you to remove the boat from Hoppie’s Marina at Kimmswick, Missouri to proper storage and care for winterizing so that no damage accrues to the engines and other water system.
(typed) Fred S. Anheuser
WITNESS:
(Signed) J. Soulard Johnson”
(reverse side) (handwritten)
“May 20, 1974
The original of this photostat was signed by Fred S. Anheuser and witnessed by me at Kimmswick, Missouri and delivered to Harold Oswald, on or about the date shown on the face, the day I witnessed it.
(signed) J. Soulard Johnson)

After plaintiff signed the document defendant took possession of the boat. No part of the $5,000.00 was ever remitted to plaintiff.

Mr. Oswald died on June 23, 1971. “Subsequent to Mr. Oswald’s death” attempts were made to sell the boat. The boat was finally sold at a private sale for $20,000.00. The date of sale does not appear in the transcript.

In May of 1971 plaintiff filed a petition to begin this action. A statement of the substance of the pleadings is necessary to our discussion.

Plaintiff alleged that on November 20, 1970, he executed a copy of an “agreement to set aside the agreement to purchase said boat . . . ” and that defendant advised plaintiff at that time when plaintiff’s check was honored by the bank on which it was drawn defendant would remit the part purchase price of $5,000.00. The letter of November 20,1970, which is set out above, was made a part of the petition by reference. Plaintiff prayed judgment for $5,000.00 and interest from December 3, 1970.

Plaintiff had also alleged that the boat was found to be “in a mechanical condition less favorable than said boat had been reported to be” and that this was reported to defendant. There was no proof of these issues and whatever issue these allegations sought to raise was abandoned by plaintiff.

Defendant’s answer admitted the agreement of purchase; that it received $5,000.00; that no part of the $5,000.00 was returned to plaintiff. It denied all of the other allegations set out above.

The trial court came to the following conclusion:

“In view of the fact that there was an agreement to buy the boat by the plaintiff and that he made a part payment, and there is no dispute as to the amount that plaintiff agreed to pay for the boat, defendant had the remedy of insisting on the payment for the boat, which was then in the possession of the defendant, on which part payment had been made. “Defendant also had the right, since it is a reasonable inference from the evidence that plaintiff wished not to go forward with the deal, to call off the deal and rescind the contract.”

The court then found that the seller, having elected to accept the buyer’s choice of returning the boat, had elected between the remedy of affirming the contract and seeking to recover the purchase price and of disaffirmance and restitution.

The court also concluded that defendant had elected the remedy of cancellation under the Uniform Commercial Code Section 400.2 — 703(f).

The court also found that defendant had not pleaded or proved that it had complied with the resale provisions of Section 400.2— 706.

In our review of this case we are governed by Rule 73.01. As interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law.

There was in this case a valid contract of sale. Plaintiff agreed to purchase the boat and pay $25,000.00. Defendant agreed to sell and delivered possession of the boat to plaintiff. Plaintiff became obligated to pay to defendant the sum of $25,-000.00. He had paid $5,000.00. Defendant could have enforced payment. It was plaintiff who wanted to repudiate the transaction. The letter of November 20, 1970, did “confirm” that fact and we believe constituted a cancellation within the definition of Section 400.2-106(4) of the Uniform Commercial Code which reads:

“(4) ‘Cancellation’ occurs when either party puts an end to the contract for breach by the other and its effect is the same as that of ‘termination’ except that the cancelling party also retains any remedy for breach of the whole contract or any unperformed balance. (L.1963 p. 518 § 2-106)”

As the court noted cancellation is listed as one of the remedies available to the seller under section 400.2-703. However, the effect of cancellation must be consistent with the code definition. The official comment under 400.2 — 703 is also enlightening:

“1. This section is an index section which gathers together in one convenient place all of the various remedies open to a seller for any breach by the buyer. This Article rejects any doctrine of election of remedy as a fundamental policy and thus the remedies are essentially cumulative in nature and include all of the available remedies for breach. Whether the pursuit of one remedy bars another depends entirely on the facts of the individual case.”

Basic to our determination is the letter of November 20, which must be read in the light of the above code provisions and comments along with 400.2-720:

“Unless the contrary intention clearly appears, expressions of ‘cancellation’ or ‘rescission’ of the contract or the like shall not be construed as a renunciation or discharge of any claim in damages for an antecedent breach. (L.1963 p. 546 § 2-720)”

The code comment under this section reads:

“This section is designed to safeguard a person holding a right of action from any unintentional loss of rights by the ill-advised use of such terms as ‘cancellation’, ‘rescission’, or the like. Once a party’s rights have accrued they are not to be lightly impaired by concessions made in business decency and without intention to forego them. Therefore, unless the cancellation of a contract expressly declares that it is ‘without reservation of rights’, or the like, it cannot be considered to be a renunciation under this section.”

The plaintiff testified that the agreement in the letter expressed his decision not to go through with the purchase of the boat. The plaintiff had originally accepted the boat. It is apparent from the letter that plaintiff subsequently determined that he did not want the boat. There is no evidence of record that would warrant revocation of his acceptance. Defendant obtained permission to take back the boat to' protect it and to thus avoid further damage to plaintiff.

It is significant that the letter does not provide for the return of the $5,000.00, nor does it expressly provide for a waiver of any of the other remedies which are available to the defendant. In fact, defendant has tenaciously held on to the $5,000.00 and has sought to defeat plaintiff’s claim to any part of this money.

While the Uniform Commercial Code has not eliminated the concept of “election of remedies” it has rejected it as a fundamental policy. Applying the facts of this case to the provisions of the code we cannot say that defendant elected, as his sole remedy, the cancellation of the sale. Under these circumstances we cannot say that plaintiff has carried his burden of proving that he is entitled to the return of $5,000.00 upon this theory.

Defendant would have us determine that it is entitled to retain the $5,000.00 because it was an earnest money payment or, alternatively, that the subsequent sale of the boat for $20,000.00 ($5,000.00 less than the agreed purchase price) established the damages to which it was entitled. We cannot agree with either contention.

It appears that the parties have misconceived the nature of this action. Both seem to have approached the case as a common law action, although some brief reference is made to the Uniform Commercial Code. This action is governed by that code and in particular that part of the code which has been adopted in Missouri as chapter 400.2 “Uniform Commercial Code— Sales.”

We are of the opinion that § 400.2 — 718 governs this action. At the expense of brevity, but in the interest of clarity we set out that section verbatim:

“(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as. a penalty.
(2) Where the seller justifiably withholds delivery of goods because of the buyer’s breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds
(a) the amount to which the seller is entitled by virtue of terms liquidating the seller’s damages in accordance with subsection (1), or
(b) in the absence of such terms, twenty per cent of the value of the total performance for which the buyer is obligated under the contract or five hundred dollars, whichever is smaller.
(3) The buyer’s right to restitution under subsection(2) is subject to offset to the extent that the seller establishes
(a) a right to recover damages under the provisions of this article other than subsection (1), and (b) the amount or value of any benefits received by the buyer directly or indirectly by reason of the contract.
(4) Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subsection (2); but if the seller has notice of the buyer’s breach before reselling goods received in part performance, his resale is subject to the conditions laid down in this article on resale by an aggrieved seller (section 400.2-706). (L.1963 p. 545 § 2-718)”

The parties have not directed us to any Missouri cases which discuss this section and we have found none in our independent research. Where extant, we shall look to other jurisdictions for guidance.

It is clear that subsection (1) was intended to abolish the concept of earnest money forfeiture. Liquidated damages are permitted by agreement within the limitations set forth. There is no evidence in this case to warrant a finding that the parties had agreed upon liquidated damages within the provisions of 400.2 — 718(1).

Defendant argues that the sale of the boat, at private sale, sometime after Mr. Oswald’s death at a price of $5,000.00 less than the price agreed upon by plaintiff established defendant’s damages at that sum. Plaintiff counters that it was incumbent upon defendant to plead and prove that defendant had given plaintiff reasonable notice of the sale in accordance with 400.2-706.

The only case we have been able to find which discusses this problem is Aleo Standard Corporation v. F. & B. Mfg. Co., 132 Ill.App.2d 24, 265 N.E.2d 507 (1970). The court acknowledged that it was blazing the trail when it held that failure to notify the purchaser of the sale was an affirmative defense which must be pleaded and proved by the purchaser. We cannot agree with the conclusion of that court. The right to sell is a remedy extended to the seller by the code (400.2-703 & 706). We hold that when a seller avails himself of the remedy afforded by 400.2-706 he must comply with all of the terms of that section and the burden of showing compliance is upon the seller. In this case there was no finding upon this issue. Plaintiff testified over objection that he had received no notice. Defendant offered no proof. As this case now stands defendant has not pleaded or proved that he complied with 400.2-706 and it may not recover the difference between the sale price and the contract price. See Portal Gallarles, Inc. v. Tomar Products, Inc., 60 Misc.2d 523, 302 N.Y.S.2d 871 (Sup.Ct.1969). We also note that there was no evidence that the boat was sold because of the failure of plaintiff to complete the purchase. There was no evidence concerning the manner in which the boat was used from November 1970 until the time of sale.

There was no agreement for liquidated damages. The rights of the parties are governed by subsection (2)(b) and (3) of 400.2-718.

Preliminary to a further discussion we take cognizance of the language of the opening clause of subsection (2) which states that the remedies are available “where the seller justifiably withholds delivery of goods . . . ” We do not find this language restrictive but are of the opinion that it contemplates the situation which we have before us. Defendant gave plaintiff possession of the boat. When plaintiff advised defendant that he did not want to complete the purchase the boat was turned over to defendant. At that point there had been a cancellation of the contract as contemplated by 400.2-720, as previously discussed. The parties then stood in the same position as though the seller had withheld delivery of the goods. Thus we hold that subsection (2) is applicable to this case. Plaintiff is entitled to restitution of his past payment within the limitations set forth in subsection (2)(a) and (2)(b).

Subsection (2)(a) as discussed above is not applicable because there was no agreement for liquidated damages. By subsection (2)(b) defendant is entitled to at least $500.00. Subsection (3)(a) also provides for the alternative right of the seller to set off against the buyer’s right of restitution any damages which he can establish under the provisions of the code. A general discussion of this question can be found in Neri v. Retail Marine Corporation, 30 N.Y.2d 393, 334 N.Y.S.2d 165, 285 N.E.2d 311 (1972). This is not a retail sale and thus the provisions concerning loss of profits which are discussed in Neri would not be applicable. However, the court points out that incidental damages could be considered. There was some evidence that defendant suffered some such damage by reason of the fact that he had to send a man to Kimmswick to get the boat. The extent of damage was not fully developed.

In view of the fact that the parties have misconceived their rights under the governing statute justice requires that they be given an opportunity to retry the case in accordance with 400.2 — 718. The cause is reversed and remanded. The parties are to have the opportunity to amend their pleadings to conform with the provision 400.2-718(2)(b) or (3).

CLEMENS, P. J., and DOWD, J., concur.

      . Mr. Oswald died before the trial. Thus the contents of the second document were excluded under the Dead Man’s Statute, V.A.M.S. 491.010.

      . “[by defendant’s counsel] Q. And this agreement purports to cover your decision not to complete the purchase of the TERI-HO. Is that correct?
      [by Mr. Anheuser] A. Yes.
      Q. Did you ask that any written agreement be included in there about the earnest money?
      A. No.
      Q. So you signed the agreement without
      that. Is that correct?
      A. Correct.”

      . (3) “Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.”


author: PER CURIAM.

text:
    Thomas J. NIEMANN, Plaintiff-Appellant, v. CARPS, INC., et al., Defendants-Respondents.
    No. 36660.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 3, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      John J. Cole, Joseph S. Von Kaenel, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for plaintiff-appellant.
    Louis B. Susman, Burton H. Shostak, Joseph Chused, Fred E. Arnold, Kortenhof & Ely, Greensfelder, Hemker, Wiese, Gale & Chappelow, Ralph C. Kleinschmidt, St. Louis, for defendants-respondents.
   PER CURIAM.

Plaintiff, a general creditor of defendant, Carps, Inc., brought an equitable action seeking the appointment of a receiver for defendant, Carps, Inc., an injunction prohibiting payment or disbursement of the funds and assets of Carps, Inc., and an accounting of the funds and assets of Carps, Inc. The trial court dissolved a temporary restraining order that had been issued at the time suit was filed and sustained defendants’ motion to dismiss the petition, without prejudice.

We find plaintiff did not file a timely notice of appeal, and thus we do not have jurisdiction. Perryman v. Perryman, 507 S.W.2d 671 (Mo.App.1974).

Upon filing of the petition, August 27, 1974, the trial court issued a temporary restraining order that defendants refrain from paying or disbursing the funds or other assets of defendant, Carps, Inc. On September 10, 1974, the trial court dissolved the temporary restraining order and sustained defendants’ motion to dismiss the petition. Thereafter between the dates of September 18, 1974, and September 26, 1974, various defendants filed separate motions for assessment of damages on the injunction bond which had been filed on issuance of the restraining order.

On September 20, 1974, plaintiff filed “Motions to Vacate and Set Aside Order of Dismissal, for Leave to File Amended Petition and for Rehearing and Reconsideration.” On October 10, 1974, the trial court overruled plaintiff’s motions. On October 16, 1974, plaintiff filed “Second Motions to Vacate and Set Aside Order of Dismissal, for Leave to File Amended Petition and for Rehearing and Reconsideration.” On November 8, 1974, plaintiff filed a notice of appeal from the order of dismissal entered on September 10; the notice recited that plaintiff’s motion to vacate the order had been overruled on October 9, 1974. (The transcript shows the order to have been made on October 10.) Finally, on June 16, 1975, the trial court overruled plaintiff’s second motion to vacate, noting the “Court does not feel there is any provision in the Rules for such Motion.”

Three issues surround the jurisdictional question in this case: (1) Was the judgment of September 10, dissolving the temporary restraining order and dismissing plaintiff’s petition, a final order for purposes of appeal? (2) Did the filing of plaintiff’s second motion to vacate postpone the finality of the September 10 dismissal order? (3) Should this court hear plaintiff’s appeal pursuant to Rule 81.07(a)?

Plaintiff contends that the action of the court on September 10,1974, was not an appealable order because at the time the court overruled its motions to vacate and set aside the order of dismissal on October 10, 1974, the court had pending before it motions by the defendants for assessment of damages on the injunction bond. This precise issue was thoroughly discussed and ruled adversely to plaintiff’s contention recently in J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, (Mo.App.St. L.District 1976). The court there concluded that the dissolution of the restraining order and dismissal of the petition is a final judgment for the purposes of appeal and the proceeding to assess damages against an injunction bond is an independent action on the bond after the final judgment has given rise to that cause of action. The judgment of September 10 was a final appealable order.

The transcript reveals that on October 16, 1974, plaintiff filed a second motion to vacate the order of September 10, 1974. Defendant urges that the second motion to vacate further postponed the finality of the judgment of September 10, 1974.

The motions to vacate are treated as motions for new trial. Rule 81.05(a); Kuhn v. Bunch, 529 S.W.2d 200 (Mo.App.1975). Rule 81.05(a) further provides that when a motion for new trial is ruled before the expiration of 90 days the judgment becomes final and appealable on the “date of the disposition of the motion.”

To paraphrase Perr v. Perr, 227 S.W.2d 490 (Mo.App.1950), when the plaintiff’s motion to vacate was ruled upon on October 10, 1974, the judgment of September 10 became final and the court had no further authority to disturb that order or its finality. The second motion to vacate, as the trial court ruled, was a nullity. The judgment became final and appealable on October 10,1974. The notice of appeal filed on November 8, 1974, was untimely and did not confer jurisdiction on this court.

Plaintiff alternatively asks us to treat the notice of appeal as a motion to file an appeal within six months after the time for filing the appeal has expired under the authority of Rule 81.07(a). This we may not do. The notice of appeal filed in this case did not comply with the requirements of the rule. It did not give notice to the respondents that plaintiff was seeking relief under Rule 81.07(a); it did not specifically allege that there was merit in appellant’s claim and it did not allege that the delay was not due to appellant’s culpable negligence. Having no jurisdiction we must dismiss the appeal.

All Judges concur.


text:
    STATE of Missouri, Respondent, v. George Everette WHITE, Appellant.
    No. 36863.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 3, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      James C. Jones, G. Jeffrey Lockett, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Michael Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

In a jury-waived case defendant was found guilty of operating a motor vehicle without the consent of the owner. § 560.-175(1) RSMo.1969. He was sentenced under the Second Offender Act to four years imprisonment. We affirm.

Defendant challenges the sufficiency of the evidence to support the judgment because the State did not prove that defendant was driving the stolen car and because the State failed to prove the element of intent to operate a motor vehicle without the owner’s consent.

In a court-tried criminal case the findings of the court have the force and effect of a jury verdict, and in like manner if there is substantial evidence to support the finding we will affirm. Rule 26.01(b); State v. Daniels, 487 S.W.2d 465, 469 (Mo. 1972). In making the determination we view the evidence in the light most favorable to the State. State v. Gardner, 518 S.W.2d 670 (Mo.App.1975).

On December 27, 1973, at about 2:00 p. m., Mr. Dale Henry parked his car in a lot at 4900 Washington Blvd. in the City of St. Louis. When he returned to the lot at 5:00 p. m. the car was gone. He did not give defendant or any other person permission to operate the car.

At 11:00 p. m. that same evening Officer Hawkins and his partner were operating a patrol car westwardly on Washington Blvd. They came to a stop at the intersection of Washington with Euclid Ave. As they stopped Officer Hawkins saw an automobile going south on Euclid as it came to Washington Blvd. It made a right turn onto Washington Blvd. without stopping for the stop sign. Hawkins saw only one person in the car. The police stopped the automobile. When Officer Hawkins got out of his car and approached the left side of the vehicle, defendant was seated behind the wheel. The area was well lighted. The car was in view at all times. The officer did not see anyone leave the car from the time he first saw it until he approached defendant who was seated behind the steering wheel. The car driven by defendant was the car Mr. Henry had parked earlier that day.

Defendant took the stand in his own behalf. He testified that a person whom he knew only as Rob was driving the car. When the car was pulled over Rob got out of the car and ran. Defendant then got out of the car and was outside when the police came up to him. He did not drive the car and he was never behind the wheel.

The question of credibility of the witnesses was for the trier of the facts. State v. Landess, 485 S.W.2d 140[5] (Mo.App.1972). It is obvious that the court did not believe defendant.

There was sufficient evidence to warrant a finding that defendant was driving. The trial court could certainly infer from the fact that he was driving a car of a person who did not give him permission, that he intended to drive the car without the owner’s permission. See State v. Crawley, 478 S.W.2d 344, 345[l-2] (Mo.1972).

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . “Q. Can you say certainly there was no more than one person in the automobile?
      A. I say positively there was only one person in the car.”