author: PER CURIAM

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest ROBINSON, Defendant-Appellant.
    No. 38106.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

      Theodore F. Schwartz, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, William F. Arnet, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Stephen H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   PER CURIAM

Defendant appeals his felony conviction for transporting a female through the State for the purpose of prostitution — a § 563.070 RSMo 1969 violation.

Defendant’s brief is flagrantly deficient and preserves nothing for review. The statement of facts is only a verbatim reproduction of some of the questions and answers of one of the witnesses. It does not comport with the Rule 84.04(c) requirement that the brief contain “a fair and concise statement of facts.” This failure warrants dismissal of the appeal. State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

Defendant’s brief has raised five points of alleged error, each one of which is faulty in some substantial respect. The first point simply states that “the evidence was insufficient as a matter of law to sustain a judgment of conviction.” This does not satisfy the requirements of Rule 84.-04(d) that points relied on must briefly and concisely state why the trial court’s ruling is erroneous. Robinson v. State, 551 S.W.2d 309 (Mo.App.1977); State v. Redd, 550 S.W.2d 604 (Mo.App.1977); State v. Starkey, 536 S.W.2d 858 (Mo.App.1976).

Four of the five points of alleged error are not supported by any authorities. Such points are therefore deemed abandoned and preserve nothing for review. State v. Paige, 550 S.W.2d 582 (Mo.App.1977); State v. Halliburton, 531 S.W.2d 554 (Mo.App.1975).

The fifth point raised by defendant which does have citations listed under it attacks the State’s verdict directing instruction, but does not set fourth the instruction challenged — a Rule 84.04(e) violation which also fails to preserve anything for review. State v. Gibson, 540 S.W.2d 952 (Mo.App.1976), cert. den. 430 U.S. 907, 97 S.Ct. 1177, 51 L.Ed.2d 583 (1977); State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).

Defendant has not sought to invoke plain error under Rule 27.20(c), nor do we see need to apply it in his behalf, for we find no substantial manifestation that injustice or a miscarriage of justice will result if we do not. State v. Meiers, 412 S.W.2d 478 (Mo.1967); State v. Gibson, supra; State v. Gordon, 536 S.W.2d 811 (Mo.App.1976); State v. White, 529 S.W.2d 22 (Mo.App.1975). There were sufficient corroborating circumstances here to establish defendant’s guilt of the crime charged.

When the defendant was first observed by an employee in a St. Louis County hotel he was standing in a hallway listening into closed rooms along the hallway. The defendant was then observed entering and leaving one of the rooms by the employee. When confronted by the hotel employee as to what he was doing, defendant first denied being in the room and refused to divulge his name; he was not registered in the hotel. Police were soon summoned by hotel personnel. Defendant was arrested and charged with burglary. After properly being given his Miranda warnings, defendant denied any burglarious intent in the hotel and volunteered an oral statement that he had driven a Janice Daniels to the hotel for the purpose of procuring prostitution; that arrangements had been made to meet a “client” at the hotel. The defendant also voluntarily wrote a statement to the same effect and gave it to police. Police were taken by the defendant to defendant’s automobile parked outside the hotel where Janice Daniels was sitting.

The factors establishing defendant’s guilt of the crime charged are: 1) his suspicious and surreptitious behavior in the hotel hallway; 2) his entry into an unoccupied hotel bedroom; 3) his denial of having entered the room when he was observed doing so; 4) his confession that he had driven a woman to the hotel for the purpose of prostitution; 5) the presence of the woman in defendant’s automobile outside the hotel.

As stated in State v. Colton, 529 S.W.2d 919, 922 (Mo.App.1975):

“It is well established in this state that full proof of the corpus delicti, independent of a confession, is not required. State v. Skibiski, 245 Mo. 459, 150 S.W. 1038 (1912); State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396 (1951); and State v. O’Neal, 436 S.W.2d 241 (Mo.1968). If the state comes forward with evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in a confession both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved.”

Only slight corroborating facts are sufficient to establish the corpus delicti, State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396 (1951), and the facts here are sufficient. Defendant’s statement that he had driven Janice Daniels to the hotel for the stated purpose will be presumed as true, even though the State may have failed to prove the transportation. State v. Hall, 312 Mo. 425, 279 S.W. 102 (1926). See State v. Smith, 431 S.W.2d 74 (Mo.1968).

The judgment is affirmed.

All judges concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John Milburn SWEAZEA, Appellant.
    No. 38236.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 16, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Steven H. Goldman, George F. Meyer, Jr., Asst. Pros. Attys., Clayton, for respondent.
    Crouppen, Walther, Zwibelman & Walsh, P. C., Robert Walsh, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of robbery first degree (§ 560.135, RSMo. 1969) and burglary second degree (§ 560.045, RSMo. 1969). The court sentenced him to concurrent terms of 20 and 10 years. Defendant appeals, contending he was denied time to employ counsel.

The court appointed a public defender to represent him and the cause was set and thereafter continued and reset several times. Eight months after arrest, on the day of trial, defendant filed several motions, including a motion to dismiss counsel and for continuance. Defendant testified he had encountered difficulty in communicating with his family and his appointed attorney while in jail and that he had been seeking a bondsman and now wished to hire a private attorney. The motions were denied and trial and judgment followed.

Defendant now raises two points. First, that the trial court erred by denying his motions to dismiss court-appointed counsel and for continuance, in violation of his right to counsel. Because defendant did not specify these errors in his after-trial motion, we limit our consideration to determining whether the alleged errors constitute plain error under Rule 27.20(c), VAMR; State v. Ward, 518 S.W.2d 333[2] (Mo.App.1975).

Relief for plain error is limited to those exceptional circumstances where a defendant’s rights have been affected by trial errors and a miscarriage of justice cannot be avoided. State v. Minor, 548 S.W.2d 598[1] (Mo.App.1977). A defendant has a constitutional right to secure counsel of his own choosing but no absolute right to be represented by any particular attorney. State v. Jefferies, 504 S.W.2d 6[1, 2] (Mo.1974); State v. Williams, 419 S.W.2d 49[8-10] (Mo.1967).

Eight months elapsed between the dates of defendant’s arrest and trial. He does not show he took any prior steps to employ private counsel. Missouri courts have determined that lesser periods of time satisfy the “fair and reasonable opportunity” test. Jefferies, supra, (3½ months); State v. Lee, 521 S.W.2d 180[3-5] (Mo.App.1975) (2 months); State v. Hollins, 512 S.W.2d 835[5] (Mo.App.1974) (6 months); State v. Burns, 537 S.W.2d 860[2] (Mo.App.1976) (4 months). Even after eight months defendant was unable to give the trial court reasonable assurances that private counsel would appear. He was given a reasonable opportunity to secure counsel of his own choosing. He does not contend appointed counsel was ineffective nor that his defense was prejudiced by not having private counsel. Jefferies, supra, [4]. We find no plain error.

Second, defendant contends the trial court erred in overruling his objections to portions of the state’s closing argument as going beyond the scope of the evidence and inflammatory. The remark complained of was: “. . .if you acquit him [defendant] on this kind of evidence, your telling him: ‘Hey, look, you can rob this old man.’ ”

“The control of argument as well as determining whether it improperly influenced a jury must be, and is, left to a large extent to the sound discretion of the trial judge.” State v. Wallace, 504 S.W.2d 67, 72[10] (Mo.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 76 (1974). An appellate court is not to reverse absent abuse of discretion. State v. Brauch, 529 S.W.2d 926[7-9] (Mo.App.1975).

The trial judge had an opportunity to hear the remark complained of in context and to observe its effect on the jury. He found the remark unobjectionable. Even assuming error, not every instance of improper argument is ground for a new trial. State v. Roberts, 535 S.W.2d 119[5] (Mo.App.1976). The prosecutor’s comments were not so blatantly objectionable as to deny defendant a fair trial. Furthermore, the state had a strong case and that tended to mitigate the prejudicial effect of any improper argument. State v. Connell, 523 S.W.2d 132[14] (Mo.App.1975). The trial court did not abuse its discretion.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Aaron ADAIL, Appellant.
    No. 37479.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 16, 1977.
    Crouppen, Walther, Zwibelman & Walsh, P. C., Robert J. Walsh, St. Louis, for appellant.
    Paul Robert Otto, Bruce Anderson, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., George R. Westfall, Asst Pros. Atty., Clayton, for respondent.
   SMITH, Judge.

Defendant appeals from four convictions of armed robbery and the resultant 20 year terms to be served concurrently. Defendant was tried by a jury and sentenced by the court under the Second Offender Act.

Defendant raises three contentions on appeal: (1) that the court erred in allowing testimony by witnesses regarding line-up identification; (2) the court erred in denying defendant’s motion to suppress identification because the line-up was tainted; (3) the court erred in allowing testimony of another crime. We affirm.

Although no attack upon the sufficiency of the evidence has been made, it is necessary to set out the rather novel factual situation giving rise to the convictions.

On October 8, 1974, two students at Northwest High School in the City of St. Louis were robbed at gunpoint in the City. (The City robbery). This crime occurred at 8:00 to 8:15 a.m. The robbers, using a pistol and two sawed-off shotguns, took watches, sunglasses, a ring, a leather coat and money from the victims. One victim, Arlee Hayes, identified the three robbers at a line-up. These three, all black males, were Harold Guy, Archie Teycial, and defendant. Hayes positively identified defendant in court as one of the robbers. This robbery was not one of those for which defendant was on trial, and Hayes’ identification was the only in-court identification of defendant as a participant in any of the robberies on October 8. The other victim could not identify the robbers, but did identify from a picture the automobile in which defendant, Guy and Teycial were apprehended as the automobile used by the robbers. This automobile identification was confirmed by Hayes.

At approximately 8:25 or 8:30 a.m. on October 8, a group of students were assembled at the corner of Pasadena and Sylvan in St. Louis County. That location is within 3 miles and ten minutes driving time of the site of the City robbery. Some of the group were Normandy High School students and junior high students waiting for buses to school; the rest were children going to nearby Garfield Elementary School. Three black males were seen by a witness, Mr. Patrick, to exit from a car near Garfield school, take a sawed-off shotgun and pistol from the trunk of the car, and proceed toward the Pasadena/Sylvan intersection. The witness stated he saw the three men return in three to five minutes, put coats in the trunk and drive off. He identified the car as the same one portrayed in the photograph identified by the City victims. Several students at the Pasadena/Sylvan intersection testified they were robbed of money and leather coats by men with sawed-off shotguns or a pistol. The students’ testimony and that of a school administrator, Mr. Greer, warrant the conclusion that the three men split up at the time of the robberies, with two of them robbing one group of students and the other man robbing a second group nearby. The students testified they saw two men or one man robbing them or other students. Mr. Greer testified that when the robbers saw him two of them ran from one group of students, the third man ran from the second group and the three ran together to a car. All three were carrying coats. Mr. Greer recognized Harold Guy, whom he had taught, and a second man, whose name he could not remember, but he believed Teycial sounded familiar. He did not recognize the third man although defendant would fit the general description of the third man. All three entered a car belonging to the Guy family which Mr. Greer identified as the same one seen by Mr. Patrick and the City robbery victims. None of the witnesses to the County robbery could identify all three men. Several identified Guy or Teycial, or both, at a line-up on October 8. One student identified defendant, at that line-up as the man who robbed him but was unable to make a positive in-court identification because it had been “too long.”

At 9:30 a.m. on October 8, police officers stopped the automobile identified by the various witnesses. Guy, Teycial and defendant were in the car. A search of the truck yielded two sawed-off shotguns and a leather coat.

Defendant objected on hearsay grounds to the testimony of the various witnesses concerning their line-up identifications of Guy, Teycial and defendant. He broadened his attack here and in the trial court somewhat to assert that such testimony is not admissible at all in the absence of an in-court identification by the witness. The hearsay contention is disposed of by State v. Pitchford, 324 S.W.2d 684 (Mo.1959) [1, 2]. The testimony of the witness who made the identification is not hearsay. He is testifying concerning facts of which he has personal knowledge and is subject to confrontation and cross-examination. Defendant has presented us with no authority which precludes testimony of an extrajudicial identification in the absence of an in-court identification. State v. Sigh, 470 S.W.2d 503 (Mo. banc 1971) [2], State v. Nolan, 171 S.W.2d 653 (Mo.1943) [5], and State v. Buschman, 325 Mo. 553, 29 S.W.2d 688 (1930) support the conclusion that such testimony is admissible. Further, it is reasonable that such testimony would be admissible. The identification made at the line-up occurs much closer to the time of the crime than the trial (here the same day vis-a-vis 10 months later). If done under non-suggestive circumstances, such an identification may well be more reliable than one made at the time of trial. We find no basis for concluding that such identification is inadmissible. The inability of the witness to make an in-court identification goes to the weight of the witness’ testimony but not to its admissibility.

Defendant filed a motion to suppress identification which, after hearing, was denied. No objection to the admission of such testimony was made during the trial as to any witness except the one witness who identified defendant in the lineup. Only the admission of the testimony of that witness has been preserved. Defendant contends the testimony was improperly admitted, because the line-up was tainted and suggestive. The line-up was viewed individually by the witness and no suggestions or statements were made to him by the police. The participants in the line-up were four men, all suspects. After viewing the line-up, other witnesses to the County robberies had returned to the room where the witness was waiting prior to viewing the line-up, and some light discussion occurred as to who the returning witness had selected. Defendant was identified by only one witness and that witness identified no one else. While we do not advocate procedures which allow comparison of thoughts between witnesses, some of whom have not yet viewed the line-up, we find no suggestiveness in the identification here. Obviously, the witness who identified defendant did not base that identification upon suggestions from other viewers as only he identified defendant. This is reasonable as he was robbed by the single man, not by two men, as the other witnesses were. That all four men were suspects also does not indicate suggestiveness. State v. Jones, 528 S.W.2d 14 (Mo.App.1975). It appears from the record that one man was not identified by anyone, defendant was identified by only one witness whom he had robbed, no witness identified more than two men, and those who identified two men were in the group robbed by those two, Guy and Tey-cial. The identification was made shortly after the crime, the witness had adequate time to view defendant in broad daylight under circumstances where he would be inclined to notice and remember a man holding a sawed-off shotgun on him. We find no error in the court’s action in denying the motion to suppress and in admitting the testimony of identification.

Defendant’s remaining point is that the court erred in admitting evidence of the City robbery as that was evidence of a separate crime. Such evidence is admissible if it tends to establish motive, intent, absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or identity. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954). We find here the evidence tends to establish a common scheme or plan and identity of the robbers. The City robbery occurred between 15 to 30 minutes before the County robbery at a location 3 miles and ten minutes distant by car. Both sets of robberies were of school children on their way to school. A major item taken in each robbery was a leather coat. The same vehicle was identified at each site; the same three men armed with the same weapons were identified at each site. Given the proximity in time and place and the similarities of the crimes the evidence of the City robbery was admissible as evidence that the defendant and his companions had embarked upon a common scheme to rob school children at both sites and that the robberies in the County were committed by the same people identified in the City.

Judgment affirmed.

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


author: BILLINGS, Chief Judge.

text:
    Douglas W. THOMPSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10716.
    Missouri Court of Appeals, Springfield District.
    Aug. 29, 1977.
    George R. Wilhoit, Jr., Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Douglas W. Thompson’s motion to vacate sentence and judgment entered in 1961 for first degree murder was denied by the Circuit Court of Butler County, Missouri. Three days later a notice of appeal was lodged in the clerk’s office but without payment of the required docket fee or an order of court waiving the same.

Rule 81.04, V.A.M.R., provides: “No appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment . appealed from becomes final.” The rule also requires the payment of a docket fee at the time of filing of a notice of appeal and forbids acceptance by the clerk of the notice of appeal unless the docket fee is deposited therewith.

“Until the docket fee has been paid or waived, there can be no valid filing of a notice of appeal.” State v. Worl, 531 S.W.2d 294 (Mo.App.1975).

The notice of appeal in the instant case not having been timely filed, we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo.1966); State v. Keeney, 536 S.W.2d 518 (Mo.App.1976).

Appeal dismissed.

All concur.


author: PER CURIAM:

text:
    Byron C. COHEN et al., Respondents-Appellants, v. ARCHIBALD PLUMBING AND HEATING COMPANY, Defendant, and Gas Service Company, Defendant, and "Bud” Barker, d/b/a Barker Painting Company, Appellant-Respondent.
    Nos. KCD 27542, KCD 27533.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      James H. Ottman and Charles R. Wall, Kansas City, for appellant-respondent; Shook, Hardy & Bacon, Kansas City, of counsel.
    Glenn E. McCann and Stephen D. Manz, Kansas City, for respondents-appellants.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   PER CURIAM:

Cohen, et al. [called herein “Cohen”], obtained a judgment upon verdict for $29,-000.00 against Barker submitted on the res ipsa loquitur doctrine as the result of an explosion of lacquer and lacquer thinner which occurred during the construction of an apartment complex. Cohen had sued also Archibald Plumbing and Heating Company and Gas Service Company, but these parties were dismissed upon the court’s sustaining of motions for directed verdict. No issue is presented as to the propriety of the direction of verdicts.

Barker presents points applicable to the res ipsa loquitur submission saying first that the giving of Instruction No. 2 on that doctrine was error because the evidence showed that two or more instrumentalities could reasonably have caused the explosion and fire, only one of which was under the management and control of Barker. As to the applicability of the doctrine, Barker says also the court erred in finding as a matter of law that the fire and explosion was an occurrence which does not ordinarily happen if those in charge use due care, and that Barker possessed superior knowledge or means of information as to the cause of the explosion or fire, when several different causes were equally probable, some of which Barker had no more knowledge than Cohen. Other points relating to evidence are that the court erred in excluding testimony of Barker’s expert witness, Dr. Fowler, based upon his tests and a hypothetical question, excluded on the ground that the conditions were not shown to be substantially the same; and that the court erred in permitting Cohen’s expert witnesses, Clark, Yackie, Hyder and Means, to give their opinions as to the cause of the explosion and fire because no proper foundation had been laid, and the opinions were not based upon sufficient competent evidence (facts) but were upon guesswork and conjecture.

Cohen appeals (consolidated Case No. KCD 27533) contending that the verdict was grossly inadequate, indicating mistake and abuse of discretion by the jury, Cohen’s evidence as to damages being uncontradict-ed, thus showing the verdict not to be supported by substantial evidence. This contention may be rather summarily disposed. In the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 (1931), the court said, “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.” The Cluck pronouncement has been the unvaried rule through a long line of cases. See Boyd v. Margolin, 421 S.W.2d 761, 767 (Mo.1967); Ferguson v. Boyd, 448 S.W.2d 901, 903[1, 2] (Mo.1970). The matter of inadequacy of the verdict was presented to the trial court in Cohen’s motion for new trial, which was overruled. This court then is powerless again to weigh the evidence. Cluck, supra, 40 S.W.2d, page 560[5]; Kirst v. Clarkson Construction Company, 395 S.W.2d 487, 491[6-8] (Mo.App.1965) [a property damage case]; Strickner v. Brown, 491 S.W.2d 253, 255[3, 4] (Mo.1973). Here, Cohen’s testimony was that the difference in the fair market value before and after the explosion and fire was about $60,000.00. The jury’s award was about one-half that amount. There was evidence that the building was only 80% to 90% complete at the time of the explosion and fire. The jury had before it photographs of the damage to the building, as well as testimony describing the damage. Under all the evidence, it was for the jury to determine the nature and extent of damage and to fix the amount thereof. Cohen’s appeal on the basis that the damages were inadequate is ruled against them.

In essence Instruction No. 2, submitted against Barker, required the jury to find that Barker controlled lacquer and lacquer thinner, and the spraying thereof, in Building No. 9; that vapors became ignited and exploded in that building; that the explosion was the result of Barker’s negligence; and as a direct result plaintiffs sustained damage. By Point I.A., Barker contends that this instruction was error (on the theory of the doctrine of res ipsa loquitur) because the evidence showed that two or more instrumentalities could reasonably have caused the explosion and fire, only one of the instrumentalities being under the management and control or the right of management and control of Barker. The contention is without merit because in order to be held not to have made a prima facie case under the res ipsa loquitur doctrine plaintiff’s own evidence must show that there were two or more instrumentalities which could have caused the injury, the defendant not being liable for one of them. Here, the evidence of Cohen showed only one reasonable cause — the accumulation of lacquer and lacquer thinner vapors which when mixed with air in proper proportion, would explode and cause fire. It was Barker’s evidence, through his expert witness, Dr. Frank Fowler, who gave his opinion that the explosion and fire was a result of an accumulation of natural gas, a theory which Cohen’s evidence tended to exclude. In this situation, Cohen was entitled to go to the jury upon the submitted theory of Instruction No. 2, and it was up to the jury to determine whether there was another cause of the incident, as Barker’s evidence tended to establish. Robinson v. Southwestern Bell Telephone Company, 434 S.W.2d 249, 254, 255 (Mo.App.1968); Lober v. Kansas City, 74 S.W.2d 815, 823 (Mo.1934); Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 969, 974 (1936).

It should be noted that Barker’s argument that plaintiffs must exclude those causes over which the defendant exercised no control or right of control, is not the law in this state. That statement was in Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 18 (1943). See Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 81 (1948), where it was said, “That statement, unless qualified in its application, is too broad.” And see also Walsh v. Phillips, 399 S.W.2d 123, 128[11] (Mo.1966), citing Adam Hat Stores v. Kansas City, 316 S.W.2d 594, 600[7] (Mo. banc 1958), “[A] plaintiff in a res ipsa loquitur case is not required to exclude every other reasonable theory of nonliability on the part of a defendant.” Long v. Spanish Lake Service, Inc., 507 S.W.2d 935, 938[8] (Mo.App.1974), cited by Barker, is in error in quoting the Charlton case statement in view of the pronouncements, supra, of the Supreme Court on the subject.

Barker next says, by Point I.B., that the court erred in finding as a matter of law that the explosion and fire was an occurrence which does not ordinarily happen if those in charge use due care. Cited are those cases on the general rule that the occurrence of an explosion and fire does not give rise to a presumption (inference, see Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693 (1931); 167 A.L.R. 658, 668) of negligence or to its cause: Craddock v. Greenberg Mercantile, Inc., 297 S.W.2d 541 (Mo.1957); Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692 (Mo.1952). Craddock was a specific negligence case, but the court did, 297 S.W.2d, at page 547[3-12], state the general rule that the mere occurrence of a fire does not prove, or raise a presumption of negligence or the cause of the fire. The Kansas City Stock Yards case was also one of specific negligence as submitted to the jury, although plaintiff complained on appeal that the trial court erred in sustaining a motion to make the petition more definite and certain, thus depriving plaintiff of the res ipsa loquitur doctrine. The court quoted the rule 250 S.W.2d at page 700, “ ‘The rule of res ipsa loquitur is infrequently applied to cases involving fires, and to a lesser extent to explosion cases. [Citing cases.] The reasons are not difficult to perceive. The cause of a fire is generally unknown, fires commonly occur where due care has been exercised as well as where due care was wanting. ⅜ *.’ ” These rules are not applicable to this case because, under Cohen’s evidence, the thing that exploded, the lacquer and lacquer thinner vapors, which were allowed to accumulate within Building No. 9, was under the control and management of Barker’s employees. 31 Am.Jur.2d, Explosions and Explosives, § 107, p. 879; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777, 781 (1930); Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601 (1946); Crystal Tire Co. v. Home Service Oil Co., 465 S.W.2d 531, 533[2] (Mo.1971); McGowen v. Tri-County Gas Company, 483 S.W.2d 1, 3 (Mo.1972), and cases there cited. Because the entire operation was under the control and management of Barker and his employees, who were engaged in doing the mixing, spraying of lacquer and lacquer thinner, and clean up operations toward the close of the day when this explosion and fire occurred, Cohen not even being then present, the required element of the doctrine of res ipsa loquitur of defendant’s superior knowledge or means of knowledge [McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (1932)] is satisfied. Without question, in the jury’s determination upon this record, the explosion and fire would not have occurred if due care had been used to prevent the accumulation of lacquer and lacquer thinner vapors within this building, and the court did not err in submitting the case to the jury under Instruction No. 2.

On October 27, 1969, a little more than four months after the explosion and fire occurred, Dr. Fowler conducted tests with a gas scope, an instrument designed to detect the explosive probabilities of vapors in air, in the second floor apartment above the half basement area where Cohen’s undisputed evidence was that the explosion occurred. The building had then been rebuilt, and the windows where the test was conducted were open. The same Glidden paint was being used; the same spray gun was used in spraying woodwork with lacquer. It was a fair day with moderate temperature, and in Dr. Fowler’s opinion a difference of a few degrees would have made no difference insofar as his testing was concerned. Dr. Fowler was, however, not permitted to give further testimony describing the tests on objection by all defendants that the conditions on October 27, 1969, were not shown to have been the same as those on June 19, 1969; that there was no showing that the temperature, barometer reading and humidity were the same; and that the tests were irrelevant and immaterial. Further objections were (on a lack of showing of similar conditions) that the tests were made when one-half of the building had been sprayed with lacquer the same day of the explosion and the other half had been sprayed the previous day [presumably a condition tending to support an inference of greater concentration of lacquer and thinner vapor, which witnesses testified was prevalent in the whole area]; that the windows were not shown to have been closed at the time of the test as the evidence showed they were at the time of the explosion [presumably a condition to show the percentage of lacquer and thinner vapor to air — which evidence showed to be of an explosive character when vapor-to-air was within 1% to 6% proportions]; that the test was conducted in part on the second floor of the apartment, when the evidence showed the explosion took place in the lower basement area; and that part of the test was conducted by spraying lacquer into a closet when there was no evidence of that operation at the time of the explosion. It is obvious that the trial court did not err in excluding the evidence of the tests, and the offer of proof thereon, in the absence of a showing of test circumstances substantially similar to those existing at the time of explosion. The lack of the evidence above outlined related to the critical and technical physical conditions existing which would be conducive to an explosion occurring, or if shown adequately, that an explosion would not have occurred with similar concentrations of lacquer and thinner vapor under all the circumstances. The matter of the admission or exclusion of experimental evidence rests in the first instance in the discretion of the trial court, and the discretion in this regard will not be interfered with on appeal unless it is manifest that it has been abused. Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918, 921[3-5] (1933); Lietz v. Snyder Manufacturing Company, 475 S.W.2d 105, 107[2] (Mo.1972), and cases cited. Judicial discretion in any manner exercised by a trial court “is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. It is, however, a principle deep within our law that on appeal from a trial court’s discretionary ruling it is presumed that the ruling is correct, and that the burden of showing abuse of that discretion is on the appellant.” Anderson v. Robertson, 402 S.W.2d 589, 593[3, 4] (Mo.App.1966). Here, because of the technical nature of an explosive mixture of air and lacquer and lacquer thinner vapors, and all of the factors which could possibly enter into the making of an explosive mixture of these elements, reasonable men “could differ as to the propriety of the action taken by the trial court” because of which it cannot be said that the trial court abused its discretion. Robertson, supra, page 593[3, 4], and cases cited. It should be noted that although the evidence of Dr. Fowler’s gas scope tests was rejected in consequence of which his testimony was not thereby bolstered, he was permitted to give his opinion that the explosion was not caused by the lacquer or spraying operations because the spraying had been completed many minutes before the explosion, and that it would not have been possible for the lacquer fumes to have remained in any explosive condition for that length of time. A jury issue as to the cause of the explosion and fire was thus created. Under all of the circumstances it cannot be said that the trial court erred in sustaining objections to the gas scope tests conducted by Dr. Fowler.

Barker contends that the testimony of Clark, Yackie and Hyder as to the cause of the explosion and fire should have been excluded because they did not have sufficient facts or other competent evidence to support their opinions. Each of these witnesses were and had been long-time firemen (27 to 28½ years) with the St. Joseph, Missouri, fire department. Each had had extensive university training, self study, and on-the-job training, designed to determine the cause and origin of fires. Clark testified that when he arrived at the scene, the north wall of the west side of the building was blown out, with the force hitting the bottom part of the wall. There was lacquer odor in all parts of the building, and he knew that lacquer thinner and vapors, which are heavier than air and would settle to the lowest point, would explode very violently when properly concentrated with air and ignited. He did not smell natural gas which will rise in the air [it was Dr. Fowler’s testimony, for the jury to believe, that new pipes would absorb the odorizer in the natural gas, so that it could not be smelled). At the time he was there, the windows of the building were closed. With respect to causation, Clark testified: “This explosion in the area of the East Side Apartments was a low type explosion, because it blew the bottom part of the wall out. Now a gas explosion could possibly blow a wall from the top and lay it out this way, but this wall was kicked out from the bottom. So it had to be vapor fumes that was heavier than air and settled to the lowest point. * * * Lacquer thinner fumes will settle to the lowest point. Q Did you find evidence of such an explosion in the northwest corner of the apartment you fought fire in? A Yes, judging from the way the wall was blown out into the courtyard.”

Yackie’s opinion was of similar import, except that he added, “Flammable liquids are almost always followed by a heavy fire. A natural gas explosion 99 out of 100 times will blow itself out.” The fire did not blow itself out, but continued as a heavy fire. He eliminated electricity because it was off and natural gas because there he saw no damage to the gas pipe, no smell of gas, or a fire from leaking gas.

Hyder directed the firefighting activities. He smelled a paint or lacquer odor — very strong vapors — on both sides of the building, and all the windows were closed. The explosion was localized into one area of the building, which was not compatible with explosions he had investigated which occurred as a result of an accumulation of natural gas. Based upon his personal observation at the scene, his knowledge he obtained in fighting the fire, his training, background and experience, his opinion was that the explosion was a result of ignition of a mixture of air and vapors from Class I flammable liquids of which lacquer thinner is one.

Obviously each of these ranking firemen gave their expert opinions based upon personal observation, knowledge and long experience, and the court did not err in receiving their testimony. See the analogous cases where firemen were held to have been properly permitted to testify as to the cause and origin of explosions and fires: McCon nell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 299[12] (Mo.1968), and the there cited case of State v. Turnbough, 388 S.W.2d 781, 785[6, 7] (Mo.1965); Capra v. Phillips Investment Company, 302 S.W.2d 924, 930, 931 (Mo. banc 1957); and Fair Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 237 Mo.App. 511, 175 S.W.2d 930, 936[5] (1943). See also 32 C.J.S. Evidence § 546(82), p. 308.

Witness Eldon A. Means was a consulting physical chemist produced who testified for Cohen as to the cause of the explosion and fire. He examined the building eight days after the explosion and fire, and gave his opinion, based upon a hypothetical question, that the explosion was caused by vapors from the lacquer thinner. Barker contends that the hypothetical question did not contain proper facts: That the question required him to assume that paint cans were in the northwest apartment of the bottom floor on the day of the explosion where he saw them eight or nine days later, when there was no evidence that on June 19,1969, the cans were in the same location and in the same number as he later saw them. There was direct evidence that there were paint and lacquer cans present in that area of the building when the explosion took place. A fair reading of that portion of the question means only that Means assumed that there were paint and lacquer cans present in the apartment at the time of the explosion, not that they were in the exact location and number as he later saw them. Barker then says that there was no evidence for Means’ assumption that lacquer thinner was being used by painters to clean up, but that fact was shown by admissions against interest of Barker which was read into evidence. Nor is it material that Means did not know how the painters used their spray guns, or that he did not make tests as to lacquer drying time, or the level of concentration of lacquer vapor to air in a room during spraying operations, so long as the facts hypothesized are fairly submitted as based upon evidence. Here, a reading of the entire hypothetical question reveals that it was sufficiently based upon facts tending to support Cohen’s theory of recovery. Odum v. Cejas, 510 S.W.2d 218, 222[2, 3] (Mo.App.1974), and cases cited. The matter of permitting the answer to such a hypothetical question is for the trial court to determine, and the omission of some facts, if so, or a violation of general rules, does not necessarily preclude an answer. Schmitt v. Pierce, 344 S.W.2d 120, 130 (Mo. banc 1961). Here, as the record shows, Barker was given more than ample opportunity to expand the hypothetical question, and many of his suggestions were incorporated therein. The trial court did not err in receiving Means’ opinion.

The judgment is affirmed.


author: PRITCHARD, Judge.

text:
    Donald Gene McROBERTS, Respondent, v. LaDorna Marlene McROBERTS, Appellant.
    No. KCD 27676.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      Thomas D. Cochran and Joe F. Willerth, Independence, for appellant; Piedimonte & Cochran, Independence, of counsel.
    Robert G. Neds, Jr., Raytown, for respondent; Gladney & Neds, Raytown, of counsel.
    Before SWOFFORD, P. J., and PRITCH-ARD and DIXON, JJ.
   PRITCHARD, Judge.

In this appeal from a decree of dissolution awarded the husband upon his prayer, the principal issue is whether the court was mandatorily required to grant the wife’s prayer for a decree of legal separation under § 452.305 2 (Laws, Mo. 1973, p. 470, § 2, eff. Jan. 1, 1974), which is “If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.” Subdivision 1 of this statute provides, “The circuit court shall enter a decree of dissolution of marriage if * * * (2) The court finds that there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken; * * (Italics of the word “shall” added.) A decree of dissolution was entered upon the court’s finding under latter quote.

To be read in connection with the above provisions of § 452.305 is § 452.360 3: “No earlier than ninety days after entry of a decree of legal separation, on motion of either party, the court may convert the decree of legal separation to a decree of dissolution of marriage.” (Italics added.)

The Uniform Marriage and Divorce Act, from which Missouri has taken the greater part of its Dissolution of Marriage Act, §§ 452.300 (L.Mo.1973), et seq., contains provisions dissimilar to § 452.305 and § 452.-360, supra. § 302 of the Uniform Act provides that the court shall enter a decree of dissolution if it finds that the marriage is irretrievably broken and “(b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects.” (Italics added.)

§ 314(b) of the Uniform Act, in contrast, provides: “No earlier than 6 months after entry of a decree of legal separation, the court on motion of either party shall convert the decree to a decree of dissolution of marriage.” Other states have provisions similarly following §§ 302 and 314 of the Uniform Act: Colorado, Montana, Kentucky and Arizona, but none have the apparent mandatory direction for entry of a decree of legal separation if a party requests it.

It does appear that the provisions for the mandatory entry of a decree of dissolution upon a finding that the marriage is irretrievably broken, and the like mandatory direction for the entry of a decree of legal separation, under § 452.305, supra, are ambiguous and in irreconcilable conflict. In this situation, there must be applied the existing case law rules for statutory construction. One of these is that “[T]he entire act must be construed together to carry out the legislative intent and all the provisions of the act must be harmonized, if reasonably possible, and effect must be given to every word, clause, sentence, paragraph and section of the act.” Gilbert v. Edwards, 276 S.W.2d 611, 617 [8] (Mo.App.1955), and cases cited; 82 C.J.S. Statutes § 346, pp. 705, et seq.; 2A Sutherland, Statutes and Statutory Construction, § 46.-06, p. 63. There is another and more appropriately important rule which is here applicable: “ ‘ “The law is well settled that, where there is an irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control, unless there is some special reason for holding to the contrary.” State ex rel. Greene County v. Gideon, 273 Mo. 79, 87, 199 S.W. 948, 949.’ ” Jacoby v. Missouri Valley Drainage Dist., 349 Mo. 818, 163 S.W.2d 930, 938[2-4] (banc 1942). The provision for legal separation is last in order of position to that for a decree of dissolution, so giving effect to the Jacoby rule of construction, it follows that the mandatorily required decree of dissolution upon the court’s finding that the marriage is irretrievably broken must be deemed to be modified by the second provision requiring that a decree of legal separation be decreed if a party so requests. This construction of the statute so as to ascertain the legislative intent to give priority effect to a request for legal separation is buttressed by the provision of § 452.360, subd. 3 supra, which gives the court authority to convert the decree of legal separation to one of dissolution of marriage on the motion of either party, which can mean only that the further legislative intent was to give the parties a “cooling off” period for their marital differences for a ninety day period.

The provisions for legal separation here are not without its problems as are succinctly set forth in the article “The Dissolution of Marriage Law — Lurking Quirks” by Sylvan Agatstein, 32 J. of Mo. Bar 146 (1976). It is there stated with respect to legal separation, “ ‘when regrettably a marriage has irretrievably broken down, (the objective is) to enable an empty shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.’ It is clear that this objective cannot reasonably be met when one party to a dissolution of marriage action may arbitrarily, willfully, or otherwise, require the preservation of the marriage relationship although the marriage is irretrievably broken.” Illustrations set forth by Mr. Agat-stein relate to problems in legal separation of a surviving spouse having inheritance rights in a thereafter deceased spouse’s estate, even though having had a division of marital property (authorized in legal separation, § 452.330); the inability of a spouse to convey real property without the other spouse joining in the conveyance; and the desirability of continuing the still existing statute for separate maintenance, § 452.-360(3). This court is limited to the construction, supra, of the statute as enacted, and any corrective legislative measures must be addressed to the General Assembly.

No complaint is made by the wife as to a division of marital property except that the judgment required that the $240.00 attorney fee awarded her be deducted from the sale proceeds of the property. This was obviously an error, because it would result in one-half of the attorney fee being deducted from the wife’s one-half share. That part of the decree dividing marital property is affirmed, except that upon the remand herein the deduction for attorney’s fee allowance is directed to be deleted.

The court charged the costs against the wife. The evidence showed she then had no income. The husband’s income was about $825.00 per month, plus payroll deductions for savings bonds which he cashed each month. The equal division of marital property ordered sold would have netted each party about $7,000.00. Under the evidence, the husband would have been relieved by the decree entered dividing property of the mortgage payment on the home, a ear payment, a personal loan, and an award of $180.00 per month temporary maintenance, all of which would increase the net income available to him. The means of the parties were disparate, and the court therefore erred in charging court costs against the wife. Under the record, the court costs should be taxed against the husband. Crooks v. Crooks, 197 S.W.2d 678, 685 (Mo.App.1946).

At the time of the hearing, the wife had no income; she was 43 years of age; she had worked some in her mother’s gift and jewelry store; and although she testified that when she was working she was very tired, became depressed and was unable to work full days, she produced no medical evidence as to her claimed physical incapacity. Because maintenance is award-able upon a decree of legal separation (§ 452.335), which is below directed to be entered, the wife should be given the opportunity to present evidence anew as to her physical capacity and need for maintenance thereafter.

That part of the judgment dissolving the marriage is reversed, and the case is remanded with directions to delete the allowance of attorney fees from the computation of property divided; to charge the husband with prior court costs below; to enter a decree of legal separation effective as of the date of the mandate upon this opinion; and to give opportunity to the wife to present evidence upon the issue of her right to maintenance upon the decree of legal separation.

All concur.


author: DIXON, Judge.

text:
    Paul THOMASON and Shirley J. Thomason, Plaintiffs-Appellants, v. Walter L. MILLER and Colville M. Miller, Defendants-Respondents.
    No. KCD 27988.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      William A. Peterson, Robert L. Rasse, Robert H. Ravenhill, Rasse & Rasse, Marshall, for plaintiffs-appellants.
    W. R. Schelp, Robert L. Langdon, Gary R. Bradley, Bradley, Skelton & Schelp, Lexington, for defendants-respondents; Harris & Reid, Marshall, of counsel.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Plaintiffs sought recission of a real estate contract and cancellation of a deed and deed of trust on a theory of fraud as to the boundary line of the property involved. The court, sitting without a jury, found for the defendants. Plaintiffs appeal, contending that the trial court’s refusal to find in accordance with their proffered findings of fact and conclusions of law, was error. The thrust of plaintiffs’ argument is that all of the elements of actionable fraud are present by unassailable proof. They concede that if any element is not supported by the proof, then the judgment must be sustained. The plaintiffs concede also that this court reviews under Rule 73.01. The rule has been explicated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976):

“ . . . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence,
Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

Considering the evidence by that standard, it may be summarized as follows:

Plaintiffs, who at the time resided in Springfield, Illinois, contacted a real estate agent in Marshall, Missouri, indicating their desire to purchase a business. The real estate agent, after his initial solicitation by the plaintiffs to find such a property for them, went to the defendants’ business and asked if their business and property were still for sale. The business had been listed with the agent’s broker for some period of time prior to 1971. After obtaining a price from the defendants and an agreement to sell, the agent contacted the plaintiffs and they, in turn, authorized him to make an offer for the purchase of the defendants’ drive-in restaurant equipment, a separate residence, and the real estate upon which the business and residence were located. After negotiations between the parties in which the agent participated, the parties reached agreement for a sale price of $60,-000; and, on September 28, at the suggestion of the real estate agent, they went to the office of an attorney who prepared a contract. The contract called for the defendants to provide an abstract; and, at the specific suggestion of the real estate agent, a provision was added to the contract to require a survey of the property. At the request of both parties, the surveyor made the arrangements for the survey. The cost of the survey was to be divided between the buyers and the sellers. Such a survey was made and was dated October 15, 1971. The survey clearly reveals that the residence encroaches over the north boundary line of the property owned by the defendants. The survey contains a “note” which, in unmistakable terms, calls attention to the encroachment. The surveyor filed the survey in the Recorder’s Office, but the date of filing is not apparent in the record, the surveyor testifying merely that he would have filed it as soon as he was paid for the survey. The defendants’ portion of the survey cost was paid on November 5, 1971. The attorney who handled the matter divided the cost of the contract between the plaintiffs and the defendants, and the defendants paid for the drafting of their deed to the plaintiffs. Plaintiffs did not have the abstract examined.

The sale was closed on November 5,1971, at the office of the attorney. The plaintiffs, defendants, real estate agent and his broker, and the lawyer were present. At that time, the testimony is undisputed that the survey was in the possession of the attorney, and a copy of it was given to the real estate agent at that time. The contract provided for a $15,000 down payment which was paid, and a promissory note, secured by a deed of trust in the amount of $45,000. This original note and mortgage called for semi-annual payments of principal and interest. The plaintiffs entered into possession and thereafter operated the business located on the premises. In 1972, the plaintiffs were delinquent in their payments, and the defendants offered and the plaintiffs accepted a change in the terms and provisions of the note and deed of trust. The original note was cancelled, and the plaintiffs executed a new note providing for payments of $500 per month of both interest and principal. In 1973, the plaintiffs again became delinquent on the monthly payments and continued in their delinquency until they filed the present suit for recission and cancellation in May of 1974. There is some indication that the business had declined because of a change in location of a highway. The delinquency continued after the filing of the suit, and the defendants sought to foreclose the deed of trust because of the nonpayment of the note. The trial court entered a temporary restraining order against the foreclosure action.

The evidence with respect to what statements were made about the boundaries of the property is sharply conflicting. Plaintiffs contended either the agent or the defendants informed them that some red flags marked a boundary and that the north boundary was about 20 feet north of the house. The agent and the defendants denied that any red flags were ever mentioned or visible on the premises and denied giving any specific information about the location of the north boundary. The evidence is likewise conflicting as to exactly what occurred with respect to the survey immediately before and at the time of closing. The plaintiffs claim that they inquired at the time of closing about the survey and were told that it had not been completed. The defendants, on the other hand, claimed that when the survey was delivered to them some few days prior to the closing that they learned for the first time of the encroachment and called the real estate agent. The defendants say that the real estate agent said he would “take care of it” and that he would give the buyers a copy of the survey. The real estate agent denies that conversation, but admits that at the time of the closing the attorney gave him a copy of the survey. The attorney testified that the survey was in his hands at the time of closing. He did not recall giving a copy of the survey to the plaintiffs. The attorney likewise indicated that, at a meeting on the day prior to the closing when the plaintiffs and the defendants were present, the survey was in his hands, although he was not asked the specific question as to whether the survey was discussed on that date. At the time the note and deed of trust were renegotiated, the plaintiffs were represented by counsel who advised them to have the abstract brought to date and examined; but they did not do so, and the plaintiffs claim that they did not have actual knowledge of the encroachment until the spring of 1974.

The plaintiffs’ petition in this case is based upon a general theory of fraud by means of active misrepresentation, the plaintiffs claiming that the “agent” of the defendants — the real estate agent — misrepresented the location of the north boundary. When the evidence was concluded and the plaintiffs submitted their proposed findings of fact and conclusions of law to the trial judge, the plaintiffs’ theory was different than the pleaded theory of their petition, for they cited the trial judge to cases involving recission on a theory of constructive fraud. Among these cases was Ellenburg v. Edward K. Love Realty Co., 332 Mo. 766, 59 S.W.2d 625 (1933), in which the court upheld recission in a situation where the defendants were completely innocent in their representations and had no intent or knowledge of the falsity of the statements they were making as to the state of the title involved in that ease but which, in fact, was not as represented. Whichever theory is applied to the facts of this case, whether it be one of actionable fraud by direct misrepresentation or so-called constructive fraud on the part of the defendants by reason of the acknowledged error with respect to the north boundary line of the property, the essential and determinative issue is the reliance of the plaintiffs upon the mistake or misrepresentation.

Critical to the determination of that issue is the status and responsibility of the real estate agent and the lawyer. The real estate agent was solicited by the plaintiffs to act for them in finding a business for them to purchase, and he undertook that agency. He then solicited the defendants to become their agents for the sale of property, and he became their agent for that purpose. He suggested that a survey be made and made the arrangements for the survey. He thus became the dual agent of the plaintiffs and the defendants with their knowledge and apparent consent. Whittlesey v. Spence, 439 S.W.2d 195, 199 (Mo.App.1969). The attorney, likewise, was manifestly the agent of both plaintiffs and defendants in the preparation of the contract, for it is acknowledged that he was paid by both for that work. So far as the record appears, he continued to act in a dual capacity through the closing of the transaction. In Fuchs v. Leahy, 321 Mo. 47, 9 S.W.2d 897, 900 (1928), the court adopted a statement from a text book with respect to dual agency to the effect that misconduct of the agent cannot be imputed to one principal rather than the other, and that principle was affirmed in T. J. Moss Tie Co. v. Stamp, 25 S.W.2d 138, 141 (Mo.App.1930), where the court said:

“Furthermore, where two or more principals employ the same agent, the misconduct of the agent cannot be imputed to any one of the principals who is not actually at fault, since each of the principals is under an equal duty to supervise the agent, and protect his own interest.”

It is well settled that the knowledge of an agent is the knowledge of the principal. Rainey v. Foland, 555 S.W.2d 88 (Mo.App.1977). [Filed August 8, 1977],

Applying the principles of agency to the record of this case, the judgment of the trial court is amply supported by the record.

The trial court could have found that either the real estate agent or the lawyer were dual agents. There was really no evidence to the contrary. The finding of such an agency relationship would require that the knowledge of such an agent be imputed to the principal. There can be no dispute that the lawyer knew of the encroachment. As to the real estate agent, he claimed he did not carefully examine the survey; but if the defendants’ evidence is believed, as the trial court could have, the real estate agent knew of the problem three or four days prior to the closing and promised defendants that he would advise the plaintiffs. The defendants were then not guilty of any misrepresentation by concealment of the survey results. If the plaintiffs had been misinformed by the real estate agent, as to the boundary as they claimed, he was their agent as to the survey and his knowledge was their knowledge. Likewise, as a dual agent, his actions cannot be imputed to either principal.

Thus, reviewing this record under Rule 73.01 and Murphy v. Carron, supra, the evidence is sufficient for the trial court to have found that the plaintiffs failed to show reliance upon either fraudulent misrepresentations or the constructive fraud theory of Elienburg in the closing of the contract.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Charlotte Maxine WILKERSON, Respondent, v. Orville Russell WILKERSON, Appellant.
    No. KCD 28450.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Joseph Y. DeCuyper, Hsiang-Lin Lee, Snowden, Crain & DeCuyper, Kansas City, for appellant.
    David D. Lodwick, Excelsior Springs, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

In this proceeding for dissolution of marriage, the trial court rejected a proposed property settlement agreement as unconscionable. The husband appeals with respect to that aspect of the case. Affirmed.

The dissolution suit was filed April 24, 1975. Concurrently the wife moved for an injunction against harassment by the husband, and she testified in connection therewith in open court that the husband had threatened her and put her in fear of bodily harm. Based upon her testimony, a restraining order was issued as prayed.

Thereafter the parties through their attorneys negotiated for a property settlement and on October 16, 1975, a property agreement was signed by both parties. The agreement provided that the husband was to receive the farm owned by the parties which they agreed had a fair market value of approximately $30,000, subject to a deed of trust on which the balance due was $16,-000; the farm machinery, equipment, tools and animals; a 1971 one-ton truck; a 1963 half-ton pickup truck; a 1975 ¾-ton truck; and all rights in his retirement or pension plan. The wife under the agreement was to receive $6,500 in cash; certain furniture, appliances and household goods; one horse; a 1971 Chevrolet; and payment of $500 as attorneys fees. The husband was to pay the mortgage debt on the farm and trucks and obligations to other creditors aggregating $2,623.08.

That agreement having been submitted to the court for approval, a hearing was held with respect thereto on October 22, 1975. The trial court opened the session by saying that he had gone over the property settlement and stated, “I feel that it’s unconscionable and I will ask that you — I am re-submitting it back to you and asking that you re-submit to me an amended one.” At that point the husband’s attorney inquired whether the parties could put on evidence with respect to the question of unconscionability. The court declined to accept evidence and stated that if the parties did not want to submit a revised agreement, then the court would make its own order pursuant to Sec. 452.325(3). (All statutory references are to RSMo 1969). The husband’s attorney then requested a hearing for that purpose and a hearing date was set for October 27, 1975, at which time the court announced there would be a complete hearing covering both the dissolution of marriage and also a division of the property.

The hearing so set was held, and the wife testified as to the continuing arguments which had occurred between the parties, threats by the husband that he would leave and give no support to the child born of the marriage unless the wife agreed to a property settlement he deemed to be fair, that pressures had been exerted upon the wife’s daughter of a previous marriage to induce the wife to submit to the husband’s terms, that the wife had been subjected to harassing phone calls, and that she had been embarrassed by various acts which had occurred at her place of employment and in connection with her co-workers. At this hearing there was also introduced into evidence financial statements on behalf of both parties and testimony was submitted in amplification. At the close of the hearing the court ordered a division of property which was essentially the same as that contained in the agreement of October 16, 1975, except that the cash amount to be paid to the wife was increased from $6,500 to $10,000.

The husband raises four points on this appeal: (1) the first point alleges that the court erred in granting the restraining order in April, 1975. The husband withdrew this point at the time of oral argument, and it therefore need not be further considered. (2) Points II and III allege error by reason of the court rejecting the separation agreement before hearing evidence and in denying the husband’s request that evidence be heard at that time. (3) Point IV urges that the ultimate rejection of the separation agreement as unconscionable was not supported by substantial evidence and was against the weight of the evidence.

I.

The husband argues that the trial court abused its discretion in undertaking to pass upon the separation agreement on October 16,1975, without the taking of any evidence. He further argues that he had a right to insist upon the presentation of evidence, citing in connection therewith Sec. 402.2-302. That statutory reliance can be disposed of summarily by pointing out that the section cited is part of the Uniform Commercial Code and has no relevancy to proceedings for dissolution of marriage.

It is true that Sec. 452.325-2 provides that the terms of a separation agreement are binding upon the court unless it finds that the agreement is unconscionable “after considering the economic circumstances of the parties and any other relevant evidence produced by the parties.” It must be pointed out, however, that the trial judge here did have the benefit of considerable evidence at the hearing of October 22, 1975. He had heard evidence from the wife on April 24, 1975, concerning threats made to her by her husband; he had the property agreement itself; and probably he also had financial statements submitted by each of the parties. As to the last of those items, some doubt must be expressed. The transcript of the proceedings on October 27, 1975, reflects that financial statements had been submitted by the parties at some point in advance of that hearing, but the record fails to show just when those statements were filed. The wife’s brief in this court makes the flat statement that the financial statements were submitted to the court in advance of trial at the same time that the separation agreement was filed. Nevertheless, this statement in the brief is not rooted in, but stands outside, the record and therefore cannot be considered. For purposes of this appeal, it must be assumed that the financial statements were not before the court on October 22, 1975.

Notwithstanding any shortcomings in evidence which may have been true at the time of the October 22 hearing, any such lack of evidence was completely supplied at the October 27 hearing. At the latter hearing, full financial statements were unquestionably before the court and introduced into evidence. Moreover, that data was supplemented by the oral testimony and explanations of both parties. With all of the evidence bearing upon the economic circumstances of the parties then before the court on October 27, the court proceeded to reiterate and readopt the ruling previously made on October 22, stating as follows: “I still do not feel that this was a fair agreement at that time; I still do not feel that it was a fair division at this time.” If there was any error in ruling on October 22 without having the full economic circumstances of the parties before the court, any such error was harmless because remedied on October 27.

II.

Whether a property settlement is unconscionable is a question which depends on the particular facts of each individual case. In the present case the court had before it the full picture of income, expenses, assets and debts of both the parties. Having that entire financial picture, the court felt that the settlement agreement of October 16,1975, was unfair and oppressive to the wife. Although the wife had the benefit of counsel in the negotiation of that proposed agreement, her testimony was that she felt under compulsion to accept the husband’s terms because of pressures which he was bringing to bear upon her and she wanted out of the situation at whatever price it took.

A finding of unconscionability involves in its very nature a large measure of discretionary judgment. In this regard, as in other matters calling for determination by a trial judge in a court tried case, Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976) holds that the judgment of the trial court should be sustained unless it erroneously declares or applies the law, is not supported by substantial evidence, or is against the weight of the evidence. In the respect last mentioned, Murphy further admonishes all appellate courts to exercise that power with caution and to give deference to the trial court unless the appellate court has “a firm belief that the decree of judgment is wrong.” We cannot so state here, and the judgment must therefore be affirmed.

All concur.


text:
    In the ESTATE of Mary BENNETT, Deceased. Grace WHITE, Dorothy Bennett Brooks, William A. Bennett, Lee Bennett and Gerald Bennett, Petitioners-Appellants, v. Stephen A. LOVEJOY, Guardian of the Persons and Estates of Joseph Lionel Smith and Cinthia Ann Smith, and Walter L. Mulvania, Executor of the Will of Mary Bennett, Deceased, Respondents.
    No. KCD 28597.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Joseph L. Flynn, Dale, Flynn, Bauman & Liles, St. Joseph, for petitioners-appellants.
    Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for respondent guardian and infants.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Petitioners appeal from an order of the Circuit Court dismissing a petition for heir-ship originally filed in the Probate Court of Atchison County and appealed to the Circuit Court. The sole issue is the statement of a cause of action under the pleadings. The order dismissing is reversed and the cause reinstated for hearing.

This case was, on motion of the respondents, consolidated with KCD 28494, an original circuit court litigation involving the same parties and controversy; but this court has determined that orderly procedure requires the issues be decided in separate opinions.

Mary Bennett died January 31, 1975. She left a will making specific bequests and devises of a substantial nature, which are not here in question. The residuary clause of the will provided that all of the residue of the estate was to go to her daughter, Lucy Smith. Lucy Smith predeceased Mary Bennett, dying in 1973 while domiciled in Oregon. Prior to her death, Lucy Smith had adopted two children, Joseph L. Smith and Cinthia A. Smith. Petitioners are the sister and nieces and nephews of Mary Bennett’s husband who predeceased her.

The application for letters testamentary listed the adopted children of Lucy Smith as heirs at law of Mary Bennett. Petitioners then filed in the probate court a petition to determine heirship in the estate of Mary Bennett, a hearing was held, and the probate court found that the adopted children of Lucy Smith were heirs of Mary Bennett. The proceedings were apparently not reported. Petitioners then appealed to the circuit court, and the transcript certified to the circuit court contained only the pleadings and the order of the probate court. When the appeal was lodged in the circuit court, the respondents filed a motion to dismiss. The circuit court sustained the motion to dismiss, and petitioners appeal. The issue thus becomes one of whether the pleading of the petitioners stated a cause of action. Aside from the legal conclusions pleaded and the facts as to the death and will of Mary Bennett, the petitioners pleaded only one issue. They asserted that after the death of Lucy Smith and before the death of Mary Bennett, the Smith children were adopted by Stephen Love joy, and were thus not heirs of Mary Bennett at her death. If the facts were so proven, the children would not be the heirs of Mary Bennett who would have died intestate as to the residuary portion of her will. Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645 (Banc 1953); Annot., 37 A.L.R.2d 326 (1954); Commerce Trust Co. v. Duden, 523 S.W.2d 97 (Mo.App.1975). The motion to dismiss should not have been sustained. More importantly, if the petitioners can prove those facts, the issues in case No. KCD 28494 will be moot. The order dismissing petitioners’ petition in this case No. KCD 28597 should be reversed and the cause remanded for an evidentiary hearing on the issues raised.

All concur.

      . Respondents’ motion raised the issue of the obvious misnomer of counties in the application for appeal, and the probate court’s order allowing the appeal which erroneously designated the circuit court as the “Circuit Court of Buchanan County.” The appeal was properly lodged in the Circuit Court of Atchison County. Respondents also contended that paragraph 9 was a “misstatement of law.” Both of these grounds were abandoned in the brief.


text:
    STATE of Missouri, Respondent, v. Alton M. PERKINS, Appellant.
    No. KCD 28634.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

Defendant was tried and convicted under an indictment charging robbery first degree in the first count, rape in the second count, and sodomy in the third count. On this appeal, he raises the single contention that the trial court erred in refusing his motion for severance. He argues in support that Rule 24.04 allowing joinder of these three counts is an unconstitutional enactment in violation of Article V, § 5 of the Missouri Constitution.

State v. Baker, 524 S.W.2d 122 (Mo.banc 1975) contradicts defendant’s position. Burnside v. State, 552 S.W.2d 339 (Mo.App.1977); State v. Brannom, 539 S.W.2d 747 (Mo.App.1976). Defendant relies upon the views expressed in one of the concurring opinions in the Baker case, which disagrees with the majority of the court with respect to the validity of Rule 24.04. However, this court has no choice but to follow and apply the majority view expressed in Baker. State v. Toney, 537 S.W.2d 586, l.c. 596[9] (Mo.App.1976).

Affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    DAMON ALARM CORPORATION, Plaintiff-Respondent, v. The ECONOMIC DEVELOPMENT CORPORATION, Defendant-Appellant.
    No. KCD 28660.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Richard L. Colbert, North, Colbert & Fields, Kansas City, for defendant-appellant.
    Bernard Eveloff, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Presiding Judge.

Initiated in the Magistrate Court and appealed to the Circuit Court, this suit on a contract resulted in a judgment by the Circuit Court sitting without a jury for plaintiff in the amount of $508.75. The single dispositive issue is the validity of the contract.

The purported agreement was marked as an exhibit but is not contained in the transcript and has not been filed in this court. Enough appears from the testimony to permit the disposition of the claim of invalidity. The agreement was a standard form and was executed by both parties. It provided for the installation and servicing of a “central station burglar alarm and hold up alarm system as specified on the schedule on the reverse side.” Nothing was shown on the schedule on the reverse side. The defendant paid an installation charge and monthly charges of $27.50 as provided in the agreement for 25 months. The agreement was for five years. Thirty-three months remained of the five-year term when the plaintiff removed the system at the request of defendant. Defendant had not paid the $27.50 for the last two months the “system” was in place. Plaintiff gave as a “profit” figure one-half of the 33 remaining payments or $453.75. The judgment is for that profit figure and the $55.00 in payments due when the “system” was removed. Plaintiff admitted there was no acceleration clause in the contract. The termination clause was recited in evidence. It provided for a right of cancellation when a fire or other catastrophe destroyed either the plaintiff’s ability to render service or the defendant’s business. Although the evidence is conflicting as to how the cessation of service occurred, it was, in fact, terminated when the equipment was removed by the defendant. As noted, there was no acceleration clause and in view of the ultimate disposition of this appeal, there is no necessity for relating the conflicting claims as to the reason for the removal of the equipment.

The initial point presented by defendant is that the trial court erred in finding for plaintiff because the contract was invalid because it was uncertain and incomplete. The point was presented to the trial court on the specific ground that the contract was uncertain and incomplete because the equipment was not described in the schedule. The trial court concluded that since there had been performance under the agreement that was “not an issue” in this case. The court, in effect, declared the law to be that the admitted performance for 27 months of some sort of “service” removed the defense of invalidity of the contract because of its incompleteness as to the portion of the agreement which was still exec-utory.

Bengimina v. Allen, 375 S.W.2d 199 (Mo.App.1964), is very close on its facts to the instant case and declares the law to the contrary. There, the plaintiff was to install coin operated musical equipment. The agreement recited, “The following equipment is to be installed,” and none was listed. Some sort of equipment was installed and removed on the defendant’s demand. The trial court denied recovery, and, on appeal, that ruling was affirmed. The court said, 1. c. 203:

“It is essential to a contract that the nature and the extent of the obligations be certain. If an offer is so indefinite as to make it impossible for a court to decide just what it means, and to fix exactly the legal liability of the parties, its acceptance cannot result in an enforceable agreement. 17 C.J.S. Contracts § 36(2), pp. 647-651; Burger v. City of Springfield, Mo.Sup., 323 S.W.2d 777.
It is the general rule and the law in Missouri that ‘A written agreement may be uncertain because of blanks left therein, ‘_17 C.J.S. Contracts § 36(2), p. 654; and that ‘A writing is incomplete as an agreement where blanks, as to essential matters, are left in it unless they can be supplied from other parts of the writing itself’. 17 C.J.S. Contracts § 65, p. 742. Also see Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, which quotes the foregoing statements with approval.
In Huttig v. Brennan, supra, the subject of intended contract was certain property which was only generally referred to in the writing but left for identification and description by exhibits to be attached and ‘made a part of the contract’. The exhibits ‘were not then or ever attached’. Under the authority of the rule that a writing is incomplete as an agreement where blanks as to essential matters are left in it, the court held that the document concerned was not a contract and stated, ‘In short, if one of the parties is not bound, neither is. Therefore, if there was no agreement or understanding as to what property respondent and Quinby were contracting for, there was no meeting of their minds on the essential part of the contract’.
In this case, as in the Huttig case, the blank space left in the writing amounts to a fatal omission that prevents it from being a contract. Since no item of equipment to be furnished by plaintiffs is. named or identified, there was no understanding or agreement as to what the parties were contracting for and there was no meeting of their minds of the subject matter — an element essential to a valid contract.”

The specific issue of performance of the agreement for a portion of the term was also considered and ruled in Bengimin a:

“Plaintiffs also suggest that part performance of the terms of the writing has caused it to be a valid bilateral contract and enforceable as such. This argument is based upon the fact that some variety of automatic machine was actually installed and operated in defendants’ premises until February 1,1960, on which date the equipment was removed on defendants’ demand. The rule of law which governs the instant question is stated in 17 C.J.S. Contracts § 100(3), pp. 802-803, as follows: ‘While partial performance has been held to satisfy the requisite of mutuality, where the contract is signed by the party to be charged, at least to the extent that the contract is completed, mere part performance of a contract which is not binding on the parties does not make it binding as far as it remains executory’. Also see Solace v. T. J. Moss Tie Co., Mo.App., 142 S.W.2d 1079, wherein the foregoing quoted statement from C.J.S. is cited and relied upon. We necessarily rule that the suggestion has no merit.”

It follows that the trial court erroneously declared the law or erroneously applied the law, which requires reversal. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

This court enters the judgment the trial court should have entered. Rule 84.14. There is no dispute that plaintiff was entitled to the two months payments due when the equipment was removed.

The judgment is reversed, and the cause is remanded to enter judgment for plaintiff for $55.00.

All concur.


text:
    Dorothy L. BROYLES, Petitioner-Respondent, v. Kenneth Frank BROYLES, Respondent-Appellant.
    No. KCD 28678.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      Albert Copaken, Sylvia Copaken, Kansas City, for respondent-appellant.
    M. Craig Gassing, Brown, Buckley & Gassing, Sedalia, for petitioner-respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

The husband appeals from that portion of a marriage dissolution decree which awarded maintenance and attorney’s fees to the wife. We modify the decree and affirm.

The parties were married August 19, 1972. At that time the wife owned and operated a restaurant which netted her approximately $15,000 per year. Very shortly after the marriage, in October, 1972, the parties commenced a trucking business. Because of that new business and at the husband’s request, the wife disposed of her restaurant in November, 1972.

In order to help finance the new trucking business, the wife mortgaged a farm owned by her for the sum of $10,000. Two trucks were purchased, both of which were titled in the husband’s name. During the period that the trucking business was in operation, the husband worked on the two trucks to keep them in operating repair, but other than that he continued his employment as a truck driver for Ben Franklin Truck Lines from which employment he received, according to the wife’s testimony, approximately $300 a week take-home pay. The wife worked out of the home in finding trucking jobs for the two trucks and directed the two drivers employed by the partnership.

The wife testified that the business operated profitably from November, 1972, until the spring of 1974. The husband by his testimony cast some doubt upon whether or not the operation was profitable. Regardless of whether or not the business was profitable; the cash flow of the partnership did not permit payment of the outstanding bank loan, and in order to avoid a foreclosure of the farm which had been given as security, the wife negotiated a sale of that farm for $16,000. The proceeds of that sale were used to pay off the bank loan, to satisfy back taxes owed by the wife and for debts and expenses. The wife also used up a small inheritance she received from her father. In any event, the partnership business came to an abrupt halt in April or May, 1974, when the husband sold both trucks. He also previously had sold an automobile which had been titled in the wife’s name but which she held for her son. The proceeds of the sales of these vehicles were retained and used by the husband for his own purposes.

Subsequent to the separation of the parties, the wife took a job as a top stitcher for Town & Country Shoes in Sedalia, Missouri. She suffered injuries in an automobile accident about a month before the trial which disabled her from working at the time of trial, and she had a cumulated indebtedness of approximately $6,000 to $7,000. The husband had a period of illness, during which time he consumed his cash assets, and he filed a petition in bankruptcy. He now works at a job as a truck driver for City Products Corporation in Kansas City, Missouri, and also does some automotive repair work on the side.

The husband relies upon four points for reversal. With respect to the review of the issues so raised, Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) teaches that the judgment of the trial court should be affirmed unless the trial court misstated or misapplied the law, unless the judgment is not supported by substantial evidence, or unless the judgment is against the weight of the evidence; and in the last respect, the appellate court must act with caution and only if it can reach a firm belief that the judgment is wrong.

I.

The husband argues first that the trial court erred in failing to make any finding with respect to the wife’s ability to support herself through appropriate employment. He argues that a finding in this respect is mandatory under Sec. 452.335-1.

Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976) and Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977) bear heavily to the contrary. Those cases hold that with respect to the division of marital property, the various factors which Sec. 452.330 require to be taken into consideration need not be the subject of findings of fact or conclusions of law in the absence of specific request by counsel. Those cases further hold in the absence of such request all fact issues are considered found in accordance with the result found by the court, under the provisions of Rule 73.01(2)(a). Although those cases involve a division of marital property, whereas the present case involved the allowance of maintenance, the same reasoning employed in the two cases cited fully applies here. Just as in Stark and Schulte, so also here neither party submitted any request for the making of findings of fact or conclusions of law.

II.

For his second point the husband alleges that there was no substantial evidence to support the awards to the wife of $5,000 as maintenance in gross, $75 per month as periodic maintenance and $300 as attorney’s fees. In support of that position the husband argues, first, that the wife had sufficient property and ability to support herself so as to defeat the propriety of any allowance. The evidence favorable to the wife shows that her needs totaled $500 per month, whereas her income as a top stitcher immediately before her accident produced only $134 bi-weekly. Even that income was cut off at the time of trial because of her accident. Obviously her ability to support herself at the time of the trial was totally inadequate to maintain her requirements. If and when she becomes physically rehabilitated and can earn more money, the occurrence of those eventualities will create changed conditions which would give rise to a right by the husband to have a reduction in the periodic maintenance.

With respect to the property owned by the wife, the record shows only her ownership of household furniture with a fair market value of approximately $1,200 and an automobile. That property is of course insufficient to cut off her claim for maintenance. The husband claims that she also has valuable additional real estate which should be taken into account. As will be discussed under part III of this opinion, no proper evidence is before this court with respect to the alleged real estate holding and therefore cannot be given consideration as mitigating against the maintenance allowance.

The husband further attacks the monetary awards to the wife on the basis that he does not have sufficient ability to pay them. The record shows that his present rate of take-home from salary has been reduced to approximately $150 to $175 per week. However, the record also shows that he also supplements those earnings by doing extra automotive repair work. Still further, whatever his total present earnings are, the trial court was not limited to consideration of simply those earnings which could well represent a purely temporary situation, and the court was entitled to consider the husband’s earning power represented by his higher rates of pay earned in the past. In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976); Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976).

Concerning the $5,000 award, that was a reasonable measure to offset the wife’s present indebtedness which contrasts dramatically to her comfortable financial status just prior to the marriage. D_ E_ W_v. M_ W—, 552 S.W.2d 280 (Mo.App.1977). However, that award must be considered in the light of the fact that the husband went through a period of illness during which he apparently consumed all of the liquid assets available to him and the further fact that he has recently undergone bankruptcy. The dissolution decree should properly take the economic situation of the husband and his ability to pay into account. Brown v. Brown, 537 S.W.2d 434 (Mo.App.1976); McM. v. McM., 506 S.W.2d 14 (Mo.App.1974). In fairness to the husband, the decree in this case should be modified so that the $5,000 maintenance in gross can be paid in installments of $100 per month. D_ E_ W_ v. M_ W_, supra.

Finally, under this heading, the husband calls attention to the following comment made by the trial court: “I do caution you fellows to prepare these cases before you try them. There is a lot of discovery that could have been obtained here that was not. I know answers would have been clarified to some extent.” The husband interprets this to mean that the trial court felt the evidence to be insufficient for decision. That conclusion does not follow. Although the evidence could have been sharper and in more detail, it was sufficient to support the decree. Furthermore, whatever incompleteness there was in the evidence could have been remedied by the husband himself, and he cannot now be heard to complain of his own lack of diligence in preparation and proof.

III.

As his third point, the husband asserts that the wife has a half interest in 240 acres of cultivated farm land reasonably worth $700 to $1,000 per acre. The facts upon which the husband relies to support that assertion appear solely by way of allegations contained in the husband’s notice of appeal to this court and exhibits attached to that notice. Those documents and the related facts were not presented in any way to the trial court and are not conceded to be true by the wife. The record on this appeal cannot be supplemented by the extraneous matters to which the husband now attempts to refer, and they cannot be considered by this court. Collins v. Vernon, 512 S.W.2d 470 (Mo.App.1974); Dyer v. General American Life Ins. Co., 541 S.W.2d 702 (Mo.App.1976); Davis v. Long, 521 S.W.2d 7 (Mo.App.1975); Spires v. Lawless, 493 S.W.2d 65 (Mo.App.1973); City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25 (Mo.App.1968).

IV.

As his fourth point, the husband objects to the admission into evidence of two uncancelled checks which were offered as having some connection with the purchase of the trucks when the trucking partnership was begun between the parties. Even if the objection to this evidence was well taken, that avails the husband nothing. On a court tried case such as this, it is practically impossible to predicate reversible error on the erroneous admission of evidence. The party advancing the contention must demonstrate the absence of sufficient competent evidence to support the trial court’s decree. Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 170[6] (Mo.App.1975). As already fully set forth in this opinion, there is sufficient competent evidence to support the result reached by the trial court. Any error in the admission of evidence in question is therefore harmless. Bashor v. Turpin, 506 S.W.2d 412, 421[8] (Mo.1974).

The decree is modified to provide that the $5,000 lump sum amount is to be paid to the wife in monthly installments of $100, which will be in addition to the $75 per month to be paid until further order of the trial court. In all other respects the judgment is affirmed. ■ Costs will be taxed to the husband.

All concur.

      . All statutory references are to RSMo Supp. 1973.