author: KELLY, Presiding Judge.

text:
    David B. STENSON, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Defendant-Appellant.
    Nos. 37472, 37473.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 31, 1977.

      Paul B. Hunker, Jr., Morris E. Stokes, St. Louis, for defendant-appellant.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
   KELLY, Presiding Judge.

These causes involve cross-appeals, one, an appeal by the defendant in the trial from an order of the trial court overruling the defendant’s motion for a judgment for the defendant in accordance with its motion for directed verdict at the close of the plaintiff’s case or, in the alternative, for a new trial, and the other, the plaintiff’s appeal from the trial court’s order directing a verdict for the defendant on the issue of punitive damages.

The parties on appeal shall be referred to as plaintiff and defendant, the positions they were in at the trial level.

The plaintiff’s evidence was thaf in December, 1972, he and his brother, James, lived on Whispering Winds Road in a mobile home park in St. Charles County and plaintiff was employed by his brother in a mobile home repair business. On December 29,1972, plaintiff was at his brother’s home located approximately one block from where the occurrence which gives rise to this litigation took place. It had been snowing that day, and two or three inches of snow had accumulated on the ground. During the afternoon, at approximately 2:30 p. m., James Stenson was driving his 1971 Ford pick-up truck southwardly over Boschert Drive in St. Charles County with the plaintiff riding with him as a passenger. Boschert Drive is a two lane street and is paved with asphalt and chat. As he was proceeding southwardly at approximately 25 m. p. h. with his windshield wipers and defroster working, the pick-up truck came to a sudden stop. Plaintiff was thrown forward and struck his head against the windshield sustaining injuries to his neck and back. James Stenson was also thrown forward into the windshield and the steering wheel. The steering wheel was cracked in two places by the impact. Plaintiff and his brother alighted from the pick-up truck and observed that the right rear wheel of the truck was completely under the ground, “clear up to the body, bottom of the body setting on the ground.” They observed some rock in the “hole” and after the truck was pulled out of the “hole,” they observed that the “hole” was about three feet deep from the level of the road to the level of the rock.

Both brothers testified that they had previously seen employees of the defendant digging a hole in the road where the truck sank into the “hole.” The excavation was about 6 feet by 8 feet and 4-5 feet deep. James Stenson testified that the men worked there for two days approximately one week prior to the occurrence, and he observed the words “Laclede Gas” written on the shirts of some of the men so engaged and that he also saw the Laclede name imprinted on the side of three trucks at the work site. He had passed the construction site many times and on one occasion observed that the workers had dug a hole about four or five feet deep to hook up to a gas main. He also observed red flags and stringers circling the construction site. The plaintiff testified that these men filled the hole when they had finished working there, but he did not see what it was they put in the hole although he did see that there was rock on top, and that the rock was level with the surrounding surface. James Sten-son testified that he did not see any of defendant’s personnel at the work site the week prior to the occurrence. During the week prior to the occurrence there were no barricades, flags or warning lights around the former construction site. The next time James Stenson observed any of defendant’s employees on the site was the Monday following the occurrence at which time he observed them filling the hole into which his pick-up truck had sunk with rock.

At the close of plaintiff’s case the defendant offered no evidence but filed a Motion for a Directed Verdict, together with a similar motion directed to the plaintiff’s claim for punitive damages. The former was overruled and the latter sustained. The cause was submitted to the jury and a verdict was returned for the plaintiff for $10,000.00. Defendant filed a Motion for Judgment in Accordance with its Motion for A Directed Verdict, or, in the alternative, for a new trial. Plaintiff filed a motion for new trial on the issue of punitive damages. The trial court overruled both parties’ motions and timely notices of appeal were filed by the plaintiff and the defendant.

Defendant’s appeal shall be considered and disposed of first. Defendant’s initial point is that the plaintiff did not make a submissible case for the jury. The thrust of this contention hinges on whether, at the time of the occurrence, there was an “excavation” in the road. Plaintiff’s petition alleged that the motor vehicle in which plaintiff was riding fell into an “excavation” made by the defendant and that the negligence and carelessness of the defendant was (a) that the said “excavation” was a dangerous condition created by the defendant, (b) that the location of said “excavation” exposed persons lawfully using the roadway to an unreasonable risk of harm of falling into the “excavation,” and (c) that the defendant failed and omitted to use ordinary care to take precautions to place barricades, ropes, flags, lights or other warning devices at or near the “excavation.”

The cause was submitted to the jury under Instruction No. 2, which is as follows:

“INSTRUCTION 2
Your verdict must be for the plaintiff if you believe:
First, defendant created an excavation located in a public street or close thereto, and
Second, that such excavation was so located in a public street or so close thereto that persons using the street in the exercise of ordinary care were exposed to a danger of falling into the excavation, and
Third, defendant knew or should have known of such danger, and
Fourth, defendant failed to use ordinary care to either barricade it or warn of it, and
Fifth, as a direct result of such failure plaintiff was injured.
The term ‘ordinary care,’ as used in this instruction, means degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. (MAI 22.02, modified, by plaintiff).” (Emphasis supplied)

Defendant’s claim of error rests upon the definition of the word “excavation” as “a cavity formed by cutting, digging or scooping ... an uncovered cutting in the earth.”

Defendant, in its brief, admits that it did make an excavation in Boschert Drive in connection with its business of furnishing gas service to subscribers, but it contends that once the excavation was filled to the street surface it ceased being an excavation and any injuries plaintiff sustained were the result of the subsidence of the fill in what was formerly an excavation. Defendant bases its argument on the definition of “excavation” found in 23 CJ. at page 179 and in the case of Bituminous Casualty Corporation v. Walsh & Wells, 170 S.W.2d 117, 121 (Mo.App.1943). The definitions of the term “excavation” in these two sources is too narrow and technical to be controlling here.

The definition quoted from 23 C.J. at page 179 failed to include that portion of the definition which evidenced the technical nature in which it was used there, viz. ‘‘in distinction from a covered cutting or tunnel.” We shall demonstrate hereafter that this technical definition of the term is peculiar to the engineering profession, and inappropriate to the facts in this case.

The Court in Bituminous Casualty Corporation v. Walsh & Wells, supra, distinguished the terms “excavation” and “tun-nelling” in construing whether an exclusion from coverage under a contract of insurance barred the defendants from recovering from plaintiff on their counterclaim a sum they had paid to the owner of a building on property which was damaged when defendants were constructing a sewer under the building and the building was thereby damaged. The exclusion in the insurance policy precluded from coverage collapse of or structural injury to any building adjacent to premises where the insured’s operations were carried on due to “excavation” below the natural surface of the ground. It was conceded that the tunnelling underneath the building was what caused the injury to the building which was the basis for the claim. In distinguishing the word “tunnel” from “excavation” the court, 170 S.W.2d l.c. 121[1] said:

“ ‘Excavation’ is defined in 23 Corpus Juris 179, as an uncovered cutting in the earth, in distinction from a covered cutting or tunnel. This, we think, is the common ordinary meaning of the word. A tunnel is not ordinarily spoken of as an excavation. Nor is the operation of constructing a tunnel spoken of as excavating. But however this may be, it is certain that the word as used in the provision under review here does not exclude from coverage injuries to the buildings or structures due to tunneling under them.”

This definition is not, however, the only definition of the term “excavation” and is not the more broad definition we believe is applicable to this case as we shall hereinafter observe.

Our research has led us to the following definitions of the word “excavation.”

“1 a: the act or process of excavating b : the removal of superposed material (as earth or buildings) from the remains or structures of an age or civilization earlier than the present 2 : a cavity formed by cutting, digging or scooping 3 : an uncovered cutting in the earth — distinguished from tunnel b : the material dug out in making a channel or cavity.” Webster’s Third New International Dictionary.
“1. Act or process of excavating.
2. A cavity formed by cutting, digging or scooping.
3. Engin. a. An uncovered cutting in the earth, in distinction from a covered cutting or tunnel.”
Webster’s Standard International Dictionary.
“1. The act or process of excavating, a making hollow or cleaning out by digging, scooping or cutting.
2. A cavity or hollow formed by scooping, cutting or digging. Engin. An open earth-cutting, as distinguished from a tunnel.” Funk and Wag-nail’s New Standard Dictionary.
“The word ‘excavation’ is defined generally as meaning the act or process of excavating; a making hollow or cleaning out by digging, scooping or cutting; and it also means a cavity or hollow formed by cutting, digging or scooping.
“The word has two principal meanings, and in engineering an ‘excavation’ is an uncovered cutting in the earth, in distinction from a covered cutting or tunnel, while ‘cavity’ or ‘hole’ is the ordinary definition or the one usually employed, and it has been said that there is a vast difference between the scope of the ordinary definition and the engineering or scientific definition.
“In construction operations, the term has been said to have its plain and natural meaning of hollowing out or digging out and removing whatever material was encountered in order to expose the cavity required by plans and specifications, and to include the removal of rock or ledge.” 32 A C.J.S. Excavation p. 856.

For decisions construing the term “excavation,” see: Orr Ditch & Water Co. v. Justice Court of Reno Tp., 64 Nev. 138, 178 P.2d 558, 560-561 (1947); Commonwealth v. Ko-zak, 184 Pa.Super. 287, 133 A.2d 584, 586[2] (1957); Rochez Bros. Inc. v. Duricka, 374 Pa. 262, 97 A.2d 825, 827 (1953). The court in Orr noted the distinction when the word “excavation” is used in its ordinary sense and when it is used in the engineering or scientific sense. At 178 P.2d l.c. 561, the court stated: “It is apparent, therefore, that there is a vast difference between the scope of the ordinary definition and the engineering or scientific definition.”

Plaintiff’s cause of action sounds in negligence and is based upon the failure of the defendant to use ordinary care to barricade or warn persons using the street of the excavation which was located in the street so that said persons were thereby exposed to danger of falling into the excavation. Obviously if, as defendant contends, there was no excavation to barricade or to warn persons using the street to beware of, plaintiff could not make a submissible case under his theory of negligence.

We believe that once a gas company has made an excavation in a public street for its own purposes that excavation continues to exist until such time as the gas company has fulfilled the duty cast upon it by the law to restore the public street to its normal condition and to take care of its work insofar as the rights of the public to the use of the street are concerned that such restoration is permanent in character. Sudduth v. Kansas City Gas Co., 234 Mo.App. 527, 123 S.W.2d 589, 593[7] (1938), certiorari granted State ex rel. Kansas City Gas Co. v. Shain, 345 Mo. 233, 132 S.W.2d 1015 (1939); Oklahoma Natural Gas Company v. Hancock, 272 P.2d 450, 452[2] (Okl.1954). Until such time as the street has been restored to its normal condition there is no error in continuing to refer to the area which has been excavated as an “excavation.”

Whether defendant had fulfilled its duty to the public and the excavation it has admittedly created ceased to be an “excavation” was, we believe, a question for the jury. If we employ the term “excavation” in its ordinary sense, i. e. as a cavity formed by cutting, digging or scooping, and apply the presumption which arises that a condition once created continues to exist until the contrary is shown to defendant’s admission that it had created an excavation in the public street, we must search the evidence in the record to ascertain if there is any evidence, direct or circumstantial, which would defeat plaintiff’s claim that there was an excavation in the street at the time he was injured. State ex rel. Senior Estates of Kansas City, Inc. v. Clarke, 530 S.W.2d 30, 33[3] (Mo.App.1975).

As we have heretofore stated, defendant put on no evidence whatsoever. James Stenson’s testimony was that when he passed by the site of this occurrence about a week prior to the incident he observed defendant’s employees digging that hole and putting service in for 13 Boschert Drive, that these employees of the defendant worked there for approximately two days, and during that period they had flags and red stringers around the working area. In the week preceding the incident he continued to pass by the site to get his lunch and to return to his home in the evening. He also passed the site in the morning and again after lunch to return to work. In the week after the defendant’s employees left the scene he observed no barricades, flags, warning lights or strings of any kind in the area. The excavation was off on the right-hand side of the road, halfway on Boschert Drive and halfway off the road, in a driveway. On cross-examination he testified that he saw these same employees of defendant trenching under the street, which street was 20 feet wide, and that he was on the road when the truck came to a sudden stop. He could not see the surface of the road because it was under three inches of snow at the time. However, prior to the time the right rear of the pick-up truck sank into the excavation, the right front wheel of the truck had gone over the excavation.

David Stenson, the plaintiff, testified and corroborated his brother’s testimony that employees of the defendant had been seen in the week prior to December 29, 1972, digging a hole across the street from No. 13 Boschert Drive. He saw them four or five times a day — “every time I went out there.” He also saw three or four Laclede Gas Company trucks there. He saw them over a period of a couple of days. The hole was on the right side of Boschert Drive. As he was riding as a passenger in his brother’s truck he did not observe any hole in front of or to the side of the truck. The street was completely covered with snow although he could see the asphalt surface of the street in some places, but the ground on each side of the street could not be seen because of the snow. On cross-examination he testified that the defendant’s employees had finished their work about a week prior to the date of the occurrence, December 29, 1972. When asked if they had filled up the hole when they finished, he replied, yes; but, he further testified, that he did not see what they had put in the hole, although he did see that there was “rock on the top,” and it was then level with the surrounding surface. He did not recall driving over the area after this was done, because he did not use that route to get to and from where he lived in the mobile home court.

Both brothers testified that when they alighted from the truck after it had suddenly stopped, the truck was in a hole up to its axle so that one could hardly see the right rear wheel. After the truck was towed out of the hole they were able to determine that the hole was three feet deep from the level of the surface to the level of the rock in the hole.

Trial counsel for defendant, in cross-examining the plaintiff, inquired:

“Now, when your rear wheel hit this excavation, you went down; did the car or truck suddenly sink or what kind of a feeling did you experience?” (Emphasis supplied).

We conclude that from this evidence the plaintiff made a submissible case on whether there was an “excavation” at the site of this occurrence and the trial court did not err in denying defendant’s motion for a directed verdict at the close of plaintiff’s evidence nor in denying its motion for judgment in accordance with its motion for a directed verdict, or, in the alternative, for a new trial on this point. We rule this point against the defendant.

Defendant’s final point is directed against the plaintiff’s verdict director — Instruction No. 2 — set out hereinabove. It contends that the instruction “contained or necessarily inferred facts required to be found which were unsupported by the evidence.” These facts are (1) that the defendant created a dangerous condition that was an excavation in the street at the time of the alleged occurrence and (2) if plaintiff was injured, it was the result of a subsidence and his injuries would not have been caused by a failure to barricade or warn of an excavation. The thrust of defendant’s argument in support of this point is essentially the same made in support of its first Point Relied On. In disposing of that point we have likewise disposed of this sub-point of defendant’s second Point Relied On.

In support of this sub-point, defendant argues that if it was guilty of any negligence whatsoever it had to be its failure to fill what had been an excavation, and not the failure to barricade or warn of the excavation. While failure to fill an excavation properly could constitute a submission of negligence, we believe that it was not error to submit plaintiff’s theory of failure to barricade or warn of an excavation. As we have held, defendants had a duty to restore the road to the same condition that it was before defendant made its excavation in the public street, and if it failed in this duty, then the excavation still existed, and if it did, then it was a jury question whether the failure to barricade or warn plaintiff of the excavation was the proximate cause of plaintiff’s injuries. We rule this point against defendant.

Turning now to the plaintiff’s appeal, he contends that the trial court erred in directing a verdict for the defendant on the issue of punitive damages. In support of this Point plaintiff relies on Sharp v. Robberson, 495 S.W.2d 394 (Mo. banc 1973) for the proposition that a party may, in the same case, recover both actual compensatory damages predicated on ordinary negligence, as well as punitive damages predicated upon the defendant’s conduct which manifests such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted.

The evidence plaintiff contends entitled him to submit his case to the jury for punitive damages is the “leaving a partially unfilled (to the extent of some 3 feet) unfinished (i. e. no top layer of asphalt or concrete) excavation in wintertime without barricades, flashing lights, or other warning devices, when snow might well cloak the appearance of same and snow did so cloak same . . .’’He argues that this conduct of the defendant involved a high degree of probability that harm will result to another even though there be no intent to injure.

The law with respect to punitive damages is that in order to justify the infliction of punitory damages for the commission of a tort, the act complained of must have been done wantonly or maliciously. It is where the act which might properly be characterized as negligence also manifests such reckless indifference to the rights of others that the law will imply that the injury resulting from it was intentionally inflicted; or, where there is conscious negligence tantamount to intentional wrongdoing, where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. Sharp v. Robberson, supra, l.c. 397.

The burden of proof on the question of punitory damages, like that on the issue of negligence, was on the plaintiff and the holding that he made a submissible case on “ordinary negligence,” i. e. the mere omission of the duty to exercise care, does not cause us to also hold that evidence made a submissible case on the issue of punitive damages.

We have held that plaintiff made a sub-missible case against the defendant on the issue of “ordinary negligence” because his evidence was that the defendant did not restore the public street to the same condition it was in prior to creating the excavation therein. Plaintiff’s evidence was that to the naked eye it would appear that the excavation had been filled, but, of course, his evidence was also that he could not determine the weight-bearing capabilities of the fill under the subsurface because it was not visible to the naked eye. That it was not filled so that the public road was restored to the same condition it had been in prior to the making of the excavation was apparent from the fact that the right rear wheel of his brother’s truck sank into the hole.

However, to make a case for punitory damages plaintiff had to do more. He adduced no evidence that the defendant knew that the excavation was not properly filled nor that the surface of the street was not restored, but nevertheless, did nothing about it. He did not produce any evidence that defendant’s employees knew or had reason to know that by reason of the underlying soil, subsidence could be expected, nor that regular inspections of the site were not made by defendant after completion of its work to ascertain whether the filling in the excavation had subsided or the weight-bearing qualities of the underlying filling was insufficient but, nonetheless, did nothing to correct the condition.

Plaintiff relies on Reel v. Consolidated Investment Co., 236 S.W. 43 (Mo.1921). In Reel, however, the defendant had knowledge that the elevator was dangerous unless the cables were renewed for one month prior to the date of the accident, but notwithstanding that knowledge it continued to operate the elevator until it fell with plaintiff therein when the two wire cables by which it was raised and lowered broke. It was in this context that the court held that the defendant, through its agent Reed, the defendant’s engineer, not only knew the elevator cables were so worn and broken that they were likely to give away at any instant while in use, but that it also knew and appreciated the imminent danger necessarily incident to their further use; and that its failure to renew them during a period of six weeks was not, and under the circumstances could not have been, the result of mere inadvertence, but of an utter indifference to the rights of those whose lives and limbs were thereby daily and hourly imperiled, equivalent to intentional wrongdoing. The record in Reel is not subject to the infirmities of the record here, and for that reason Reel is inapposite.

The negligence which will support an award of punitive damages is more flagrant in nature than that which will support an award of compensatory damages for “ordinary negligence,” i. e. the mere omission of the duty to exercise care. “Ordinary negligence” is the antithesis of willful or intentional conduct. Sharp v. Robberson, supra, l.c. 397. We hold that plaintiff’s evidence did not support a submission on punitory damages and that the trial court did not err in directing a verdict for the defendant on that issue.

The judgment of the trial court is affirmed.

SIMEONE, C. J., and GUNN, J., concur.

      . Defendant has not, on appeal, directed the question of submissibility to the damages issue in the case and for that reason we believe no purpose would be served by relating in detail plaintiff’s evidence in support of his claim for injuries, etc.

      . We mention this only because there is authority for the proposition that where one, without special authorization from the authorities renders the use of a public street hazardous to public use by doing anything upon or' below the surface is guilty of a nuisance and the basis for liability under those circumstances is the wrongful act in rendering the public street hazardous; negligence is not an element. Since defendant offered no evidence we do not know from the record whether it had such special authorization. However, since plaintiff pled and submitted his case on the negligence theory we presume defendant had such authorization. 39 Am.Jur.2d Highways, Streets and Bridges, § 359, p. 743.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Charles Cecil SHIELDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38434.
    Missouri Court of Appeals, St. Louis District.
    June 7, 1977.
    Robert C. Babione, Public Defender, Thomas Motley, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

By this, his fourth Rule 27.26 motion, movant Charles C. Shields challenges a 1964 conviction and forty-year sentence for armed robbery. That sentence was imposed under the Habitual Criminal Act on the basis of seven previous convictions. Mov-ant’s present motion challenges one of them, contending that in 1955 in Scott County he was denied counsel, a free transcript and the right to appeal, and that the 1955 conviction was improperly used to enhance his 1964 conviction.

The trial court granted an evidentiary hearing. Movant testified that in 1955 he represented himself because he had no money and the attorney appointed to consult with him did not do so during the trial. Court records of that conviction show that although movant had requested to represent himself, counsel was appointed to represent him.

In denying movant’s motion the trial court found not only that movant’s testimony was unworthy of belief but also that the ground alleged in his motion could and should have been raised in an earlier motion.

Rule 27.26(d) provides that a successive Rule 27.26 motion shall not be entertained where the ground presented in the successive motion could have been raised in a prior Rule 27.26 motion. Movant failed to meet his burden of establishing that the ground raised in this successive motion could not have been raised in a prior motion. Nolan v. State, 484 S.W.2d 273 (Mo.1972).

Judgment affirmed.

DOWD and SMITH, JJ., concur.

      . Previous denials: State v. Shields, 441 S.W.2d 719 (Mo.1969); Shields v. State, 491 S.W.2d 6 (Mo.App.1973); and Shields v. State, denied December 21, 1973.

      . Affirmed, State v. Shields, 391 S.W.2d 909 (Mo.1965); cert. den., 382 U.S. 966, 86 S.Ct. 457, 15 L.Ed.2d 369.


author: PER CURIAM:

text:
    CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. Ralph SWEARENGIN, Defendant-Appellant.
    No. 10494.
    Missouri Court of Appeals, Springfield District.
    June 20, 1977.
    Lyndel H. Porterfield, Asst. City Atty., Springfield, for plaintiff-respondent.
    John B. Newberry, Springfield, for defendant-appellant.
   PER CURIAM:

Defendant-Appellant was convicted in Municipal Court of the City of Springfield “with violation of Section 22-84 of the Code” of said city [driving while intoxicated]. Defendant appealed to the Circuit Court of Greene County and was there, after due proceedings, again found guilty and sentenced to pay a fine of $250 with $50 waived if he attended and completed “the alcohol related traffic offender program.” Defendant then appealed to this court and the transcript on appeal was filed on January 6, 1977.

Rule 84.05(a), V.A.M.R., mandates that an appellant shall file his brief on appeal “within 60 days after the date on which the transcript on appeal is filed.” Had defendant complied with this rule, his brief would have been filed on or before March 7, 1977. This was not done and respondent, 100 days-plus after appellant’s brief was due, has moved us, per Rule 84.08, V.A.M.R., to dismiss the appeal for failure of appellant to comply with Rule 84.05, supra. We sustain respondent’s motion for the reasons many times stated and explained in such cases as Cully v. Franklin, 539 S.W.2d 751 (Mo.App.1976); In re Beyond Valley of The Dolls, 483 S.W.2d 807 (Mo.App.1972); Capoferri v. Upham, 456 S.W.2d 793 (Mo.App.1970).

The appeal is dismissed.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry Joe GREENHAW, Defendant-Appellant.
    No. 10522.
    Missouri Court of Appeals, Springfield District.
    June 21, 1977.

      John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ortrie D. Smith, Gerald D. McBeth, Ewing, Ewing, Carter, McBeth & Smith, Nevada, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.

      . Defendant’s first notice of appeal was not timely filed and dismissed. State v. Greenhaw, 542 S.W.2d 788 (Mo.App.1976). Thereafter, we permitted defendant to file notice of appeal out of time. Rule 28.07, V.A.M.R.

   BILLINGS, Chief Judge.

Defendant Terry Joe Greenhaw was convicted of first degree murder and sentenced to life imprisonment for the shotgun slaying of his 16-year-old pregnant and estranged wife. We affirm.

Because of the nature of defendant’s various assignments of trial errors, it is necessary to set forth the facts in some detail even though the defendant only questions the sufficiency of the evidence to support his conviction insofar as it relates to his defense of mental disease or defect excluding responsibility.

Defendant, 21 years of age at time of trial in 1975, and Lee Ann Ayers were married in June, 1973. She was pregnant when they separated four months later and divorce proceedings, initiated by the defendant, were pending in February, 1974. Lee Ann, then six-months pregnant, was living with her parents in El Dorado Springs, Missouri, and the defendant was residing in Clinton, Missouri, with his maternal grandparents.

Sometime before Friday, February 22, 1974, the defendant prepared a letter to his grandparents. He wrote he was going to see Lee Ann at her parents’ home Friday morning and when no one else was there he was going to kill her by strangulation or knifing. He said he planned to buy a .12 gauge shotgun and a box of shells and kill himself after he killed his wife. This letter was later found on March 2, as described infra.

Friday morning, February 22, the defendant borrowed his grandfather’s pickup truck for the purpose of going to El Dorado Springs. He was to return the truck by 1 p. m. that day. Before leaving Clinton he went to a Wal-Mart store and purchased a .12 gauge shotgun and a box of Federal, No. 6 shot, shotgun shells.

Lee Ann knew the defendant planned to come to El Dorado Springs Friday morning and did not want to meet him at her parents’ home. She left him a note on the door telling defendant she had gone downtown and would be at the cafe or drugstore. She accompanied her mother to the cafe where Mrs. Ayers was employed. The note was dated “2-22-74.”

Lee Ann was in the cafe when the defendant arrived there about 11:30 a. m. They sat in a booth talking for twenty minutes or so before leaving the cafe together. Lee Ann told her mother she had some errands to run and would return in about thirty minutes. Lee Ann was wearing her gold-rimmed, tinted, prescription glasses.

About 1:30 p. m. two transient telephone cable installers found gold-rimmed, tinted, prescription glasses on a gravel road a short distance west and north of El Dorado Springs. One of the workmen stuck the glasses in his pocket and later put them in the motel room where he was staying.

The morning of February 23 Mr. Ayers notified the El Dorado Springs police his daughter was missing and the circumstances of her disappearance. Later that day he notified the Cedar County Sheriff’s office of Lee Ann’s disappearance after leaving the cafe with the defendant. He also contacted a member of the Missouri Highway Patrol and juvenile authorities. Police in Clinton and Kansas City, as well as the Federal Bureau of Investigation, were alerted.

On February 23 the defendant’s grandfather reported his pickup truck was missing. The defendant had not returned the truck and the grandfather had not seen or heard from the defendant since he left with the truck the day before.

The night of February 23 the defendant checked into a Clinton motel, volunteering to the clerk that his car was stuck in the city park. He spent that night, the following day, and a second night at the motel.

By March 2 the missing girl was the subject of a search by city, county, state and federal authorities. The defendant could not be located by officers. On that day the grandfather’s truck was found stuck in a field near Clinton. Inside the truck was an empty Federal, No. 6 shot, shotgun shell box and defendant’s letter to his grandparents.

On March 4 Cedar County officials had an arrest warrant issued for the defendant, charging him with the abduction of Lee Ann. This information was placed into the computer of the National Crime Information Center.

Early in the morning of March 8 the telephone worker, by reason of an article in a newspaper concerning the missing girl, took the gold-rimmed glasses to the El Do-rado Springs police station. The glasses were taken to Mrs. Ayers who identified them as belonging to her daughter. Officers began searching the area where the glasses had been found and at 9:30 a. m. one of them found a fired Federal, No. 6 shot, shotgun shell nearby.

At 9:45 a. m. that morning, Blue Springs, Missouri, police officer and city juvenile officer Vasquez saw four individuals walking along a state highway within the city limits. Because it was a school day and the foursome appeared to the officer to be in their mid-teens, the officer thought they were truants and asked them for identification. In checking the names of the quartet by radio, the officer was advised that three of the persons had “juvenile jackets” and that defendant was wanted for the abduction of his wife by Cedar County authorities. The officer asked defendant if he knew of the warrant for his arrest. The defendant replied “no.” The officer then radioed his dispatcher, requesting confirmation that the warrant was still outstanding. Cedar County officials were called and they advised the warrant was still active and “it might be a possible homicide.” The officer placed the defendant under arrest and read him Miranda warnings. The officer asked the defendant if he knew the whereabouts of his wife and the defendant told him he thought she was out of the state.

The defendant was transported to the Blue Springs police station where he was booked and searched. In his billfold was the note Lee Ann had left for him on her door on February 22. The defendant had circled the date and above it had written “she died.”

At 11 a. m., March 8, Lee Ann’s body was found in a roadside ditch near where her glasses and the expended shotgun shell had been found. She had been shot in the neck at close range by a shotgun.

Cedar County officers notified Blue Springs officers of the homicide and asked them to find out if defendant had a shotgun. He was again given Miranda warnings and when asked if owned a shotgun he told the interrogating officer of his purchase of the shotgun. He said he had hidden it and the remaining shells near Clinton and drew a rough map of the location of the gun and shells. The officer asked the defendant if he had killed his wife. The defendant said he did not want to talk about killing his wife but would talk about anything else.

Officers found the shotgun and 24 Federal, No. 6 shot, shotgun shells where defendant said he had hidden them. The empty shotgun shell found near the body had been fired by the defendant’s shotgun.

Defendant was thereafter charged with the murder of his wife and entered pleas of not guilty and not guilty by reason of mental disease or defect excluding responsibility. He was examined on two occasions by doctors at the state facility at Fulton and by a psychiatrist of his own selection. By way of defense at trial, the defendant’s grandmother and psychiatrist testified. Their testimony was directed towards the defense of not guilty by reason of mental disease or defect excluding responsibility.

Defendant’s first point is that the testimony of his expert medical witness rebutted the statutory presumption of sanity contained in § 552.030(7), V.A.M.S., by a preponderance of the evidence and thus his conviction cannot stand.

The applicable portion of § 552.030(7), reads: “All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury." (Emphasis ours).

The defendant’s psychiatrist voiced the opinion that at the time of the killing the defendant had a mental disease or defect excluding responsibility for his conduct. Conceding this testimony to be substantial evidence, and absent contrary evidence by the state, the statute requires resolution of the sanity issue by the jury because the presumption remains in the case. State v. King, 526 S.W.2d 58 (Mo.App.1975). In such a situation a jury could reject the testimony of a psychiatrist and the presumption alone would support a conviction. Here, the state, in addition to the presumption, countered with testimony of a psychiatrist who was of the opinion that defendant was free of mental disease or defect excluding responsibility on the date of the killing. The defendant’s argument ignores the statutory presumption as well as the state’s rebutting evidence on the issue of mental disease or defect excluding responsibility. The point is denied. State v. Thornton, 532 S.W.2d 37 (Mo.App.1975).

Defendant complains the trial judge was guilty of an abuse of discretion in asking a series of questions of defendant’s psychiatrist following lengthy direct and cross-examination of the witness.

We have carefully reviewed the questions the judge directed to the witness and are of the opinion no reasonable jury could have obtained any impression other than that the court was seeking to clarify the doctor’s earlier testimony and to elicit more specifically the basis of his expert opinion.

“[T]he questions by the court asked of appellant did no more than tend to explain or add to the understanding of the testimony already given. Such questions by the court are proper where the purpose is to develop more fully the truth and to clarify testimony already given.” State v. Cain, 485 S.W.2d 60 (Mo.1972); State v. Snow, 541 S.W.2d 11 (Mo.App.1976).

Defendant made no objection to the court’s questions. The general rule requires an objection to preserve such alleged error. Bova v. Bova, 135 S.W.2d 384 (Mo.App.1940); 98 C.J.S. Witnesses § 347 (1957). In any event, no prejudicial error appears in the record. The point is denied.

Defendant’s next two points assert the trial court erred in denying his motion to suppress evidence. He first contends his being stopped by the Blue Springs police officer was an unlawful seizure and all evidence seized as a result of the arrest which followed should have been excluded at his trial. The second prong of his Fourth Amendment attack on the lower court’s ruling is that his arrest was unlawful because it was based upon an invalid arrest warrant and therefore evidence obtained as the result of the arrest was tainted.

Defendant’s points do not reveal the specific items of evidence of which he complains. Neither does the argument portion of his brief. His motion to suppress sought exclusion of “ . . . [A]ll property, documents, writing, maps, notes, articles of clothing, ammunition, guns, ballistic test results, statements made by defendant, and any other property, of whatever nature, taken from defendant or located by virtue of statements or diagrams prepared or given by defendant subsequent to the time of defendants [sic] arrest . . . .”

In view of the gravity of the offense for which the defendant was convicted, we have, in the exercise of the discretion afforded us by Rule 84.08, V.A.M.R., decided to undertake review of these alleged constitutional infirmities, ignoring the defendant’s violation of Rule 84.04, V.A.M.R.

Defendant argues Officer Vasquez violated his Fourth Amendment rights by stopping him and his companions; that the stopping, without probable cause, was an illegal seizure; and, the illegal stopping-seizure and subsequent arrest contaminated “any evidence” thereafter obtained.

We are of the opinion that the officer’s inquiry for identification, involving at most a momentary detention, was reasonable under the circumstances and did not do violence to the defendant’s constitutional rights. The officer saw four individuals who appeared to be juveniles in their mid-teens, walking along the highway, within the city limits of Blue Springs, on a day when school was in session and at a time when juveniles were supposed to be attending school. In addition to his duties as a police officer, Officer Vasquez was also city juvenile officer. He thought the foursome were juvenile truants.

At the suppression hearing, the defendant acknowledged the three persons with him were “younger” than he was and were “possibly” juveniles under the age of 17 years. Defendant said he was “high” on a drug and that he and his companions had caught a ride from Kansas City to Blue Springs, en route to Springfield by way of Clinton. He stated the officer got out of his car and “asked us if we had any identification.” The defendant displayed his driver’s license. The officer asked him to wait in front of the car with the others while he used his car radio. The officer returned then arrested the defendant, advising him he was wanted for kidnapping.

The defendant’s reliance on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to support his contention that he was unlawfully seized by the officer prior to his arrest, is misplaced. Terry v. Ohio was a “stop and frisk” situation in which as a result of the frisk a weapon was found and the defendant arrested. In footnote 16, page 20, 88 S.Ct. page 1879, the court stated: “We thus decide nothing today concerning the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” (Our emphasis).

In concurring in Terry, Mr. Justice White said: “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” 392 U.S. at 34, 88 S.Ct. at 1886.

In Missouri school attendance is compulsory for children between the ages of seven and sixteen years. § 167.031 and § 167.051 RSMo 1969. Parents or guardians who violate the statutes are subject to prosecution for a misdemeanor. § 167.061 RSMo 1969. The juvenile courts are vested with jurisdiction of children whose parents or other persons legally responsible neglect or refuse to provide “education which is required by law.” § 211.031 RSMo 1969. In certain school districts city or county police are by statute deemed to be ex officio school attendance officers. § 167.071 RSMo 1969.

Here, one who was not only a police officer but also the city juvenile officer saw four young people walking along the highway in Blue Springs. They appeared to be juveniles. School was in session. The officer stopped his car and asked the four for identification. The defendant showed, him his driver’s license. A radio check revealed defendant was wanted by Cedar County officials. The officer then arrested defendant.

In our view, the actions of Officer Vasquez were reasonable. He had reasonable grounds to believe defendant and his companions were truants and to direct questions to them concerning their identity. His request for identity information, which was given to him, did not result in a “seizure” of the defendant’s person in violation of the Fourth Amendment.

We turn now to the defendant’s contention that his arrest was unlawful because the arrest warrant was based upon an insufficient complaint and consequently evidence thereafter obtained was tainted and subject to suppression.

The complaint and warrant have not been filed with us. Defendant’s brief sets forth what purports to be a copy of the complaint filed with the magistrate which was the basis for the arrest warrant of March 4, 1974, of the defendant for kidnapping. We are referred to Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), by the defendant in support of his contention and agree that under the decision in that case a complainant seeking an arrest warrant must set forth sufficient facts from which the magistrate can base an independent judgment of probable cause, rather than simply a conclusion of the complainant that one committed a crime. Defendant argues the complaint signed by the sheriff of Cedar County is insufficient as a matter of law to authorize the issuance of the arrest warrant.

We do not deem it necessary to rule defendant’s contention regarding the invalidity of the arrest warrant because at the moment of defendant’s arrest in Blue Springs there was in fact probable cause for his arrest. Whether an “arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

In State v. Kerr, 531 S.W.2d 536 (Mo.App.1975), the court said:

“Case law has established that when a law enforcement agency or officer requests another such agency or officer to arrest a suspect on a particular charge, the arresting agency or officer then has probable cause to sustain the validity of the arrest; that validity of the arrest is determined by existence of probable cause for the arrest in the demanding authority, and invalidity of an existing arrest warrant does not render an arrest invalid when the arresting and demanding authorities otherwise have probable cause for the arrest. State v. Owens, 486 S.W.2d 462 (Mo.1972); State v. Ford, 495 S.W.2d 408 (Mo. banc 1973); and Young v. United States, 344 F.2d 1006 (8th Cir. 1965), recognize that an arresting officer need not have personal knowledge of the facts constituting probable cause in order to make a valid arrest upon the request of one who possesses probable cause. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Dearinger v. United States, 378 F.2d 346 (9th Cir. 1967); State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970) (reversed on other grounds); and Whiteley v. Warden, supra, recognize that an arrest, although backed by an invalid warrant, is a lawful arrest if the demanding authority had probable cause for the arrest.”

The court in United States v. Stratton, 453 F.2d 36 (8th Cir. 1972), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800, said:

“We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause. The arresting officer himself need not possess all of the available information. As stated in Stassi v. United States, 410 F.2d 946 (5th Cir. 1969), ‘The officers involved were working in close concert with each other, and the knowledge of one of them was the knowledge of all. United States v. Romero, 2d Cir., 249 F.2d 341, 374’ Id. at 952, n. 7.”

In State v. Morris, 522 S.W.2d 93, 96 (Mo.App.1975), the court stated “that when a police officer makes an arrest on the basis of a message received over the police radio, the question of probable cause is to be adjudged upon the full information which caused the message to be sent and not on the message alone.” The court held this rule applied equally to telephone communications between police officers. Thus, an officer who receives directions to arrest from other officers who have probable cause can make a valid warrantless arrest. State v. Owens, 486 S.W.2d 462, 465 (Mo.1972); State v. Granberry, 530 S.W.2d 714, 725 (Mo.App.1975); State v. Bradley, 515 S.W.2d 826, 828 (Mo.App.1974).

The collective knowledge of the officers in the instant case demonstrate probable cause for the defendant’s arrest. Information in their possession at the moment of arrest included the following: defendant and his wife were having marital problems, a divorce was pending and they were living separate and apart; she was afraid of defendant and did not want to meet with him alone at her parents’ home; she was last seen on February 22 with the defendant and told her mother she would return in thirty minutes; her glasses were found an hour and one-half later on a country road; the defendant was to have returned his grandfather’s truck by one o’clock that day and the truck was found abandoned eight days later; the defendant could not be found; the defendant had prior to February 22 written he was going to buy a certain gauge shotgun and shells and kill his wife; the letter was found in the truck, along with an empty shotgun shell box; a search by area law enforcement officers had failed to locate the missing wife; a fired shotgun shell of the same brand, gauge and size shot of the shell box found in the truck was found near where the girl’s glasses had been found.

Since the officers investigating Lee Ann’s sudden and unexplained disappearance had probable cause to believe she was the victim of criminal action by the defendant they could direct the Blue Springs officer to arrest him. His arrest of the defendant without a warrant was valid even though he personally did not have knowledge of all the facts establishing probable cause for a warrantless arrest. The arrest being lawful, the search of defendant as an incident thereof was permissible and items seized proper evidence. The points are denied.

The defendant’s next point avers the judgment of the trial court should be set aside for the reason the prosecuting attorney was without authority to file an information, and therefore the information he did file was invalid and without force and effect.

Again, we are confronted with the point failing to inform us what action or ruling of the trial court is sought to be reviewed. Rule 84.04(d). Looking to the argument portion of the defendant’s brief and pre-trial colloquy of counsel in the transcript, we are able to glean that at defendant’s first preliminary examination on the murder charge the hearing magistrate found “no probable cause.” Thereafter, a new murder complaint was filed and a second preliminary hearing resulted in defendant’s being bound over to circuit court. The prosecutor’s information, charging the defendant with the first degree murder of his wife, was filed in circuit court and trial followed.

The case cited by the defendant in support of his contention is persuasive authority against him. In State v. Thomas, 529 S.W.2d 379 (Mo.1975), the defendant complained that since he was originally discharged at a preliminary hearing the state could not thereafter obtain an indictment against him for the same offense. In rejecting this contention, the supreme court adopted the general rule found in 21 Am. Jur.2d, Criminal Law, § 450, at 452-453, which states that a discharge at a preliminary hearing does not bar the filing of a new complaint with another magistrate and does not bar a prosecution of the alleged offense by indictment.

The defendant argues the ruling in Thomas limited the state in the instant case to seeking an indictment. The rule permits alternative methods of proceeding after a discharge at a preliminary hearing. The point is denied.

The defendant next alleges the trial court erred in overruling his objection to the testimony of the state’s expert that pellets taken from the victim’s body were size 6 shot based on comparisons with a shot chart provided by Federal.

The witness, a ballistics expert of the Missouri Highway Patrol laboratory in Jefferson City, testified he weighed the shot [removed from Lee Ann’s neck] and by dividing the total weight by the number of shot he was able to arrive at an average weight of 1.85 grams per pellet. He stated that by checking various manufacturer weight charts as to size of shot he was able to arrive at a conclusion the shot was No. 6 and within the range “probably for a Federal Ammunition number 6 shotgun pellet.”

Defendant argues the witness’ reliance on a shot size chart is hearsay and denied him Sixth Amendment rights to confrontation and cross-examination.

In 31 Am.Jur.2d, Expert and Opinion Evidence, § 66, at 575, the rule is stated as follows:

“The rule restricting the use of scientific and medical books as evidence does not restrict the scope of opinion testimony of expert witnesses although their opinions may, in some degree, be founded on scien-tifie books or may have been reached through a study of standard publications on the subject in hand. Experts, in giving opinion testimony, may refer to scientific authorities and state the result thereof. Such reference is not deemed an introduction of the books in evidence, but rather, to be a means of enabling the witness to refresh his memory or to corroborate his own opinions. Thus, it is held that the expert may certify his testimony by reference to books or documents covering matters of law, medicine, or other branch of science.”

As noted by Wigmore, to allow an expert to rely upon published or reported data is a matter of necessity and to rule otherwise would set impossible standards with regard to proof. 2 Wigmore, Evidence, § 665b (3rd Edition 1940).

Here, by reason of his expertise in the ballistics field, the witness could have simply testified that because of the weight of the shot it was his opinion the pellets fell within the range of No. 6 shot of Federal, without any reference to a chart. Weights of various brands of shotgun shot were within the witness’ field of ballistics and his peculiar knowledge as an expert in that field. We do not find error.

This brings us to defendant’s final assignment. He urges reversal because the court failed to give a manslaughter instruction.

Defendant was tried after March 1, 1975, and under the Amended Notes on Use to MAI-CR 6.02, an instruction on manslaughter should have been given, in addition to instructions on murder in the first and second degree. However, this point is not mentioned in defendant’s motion for new trial and as a result has not been preserved for review. State v. Newman, 514 S.W.2d 527 (Mo.1974); State v. Merritt, 540 S.W.2d 183 (Mo.App.1976).

In his brief the defendant does not seek review under the plain error doctrine found in Rule 27.20(c), V.A.M.R. Nevertheless, we have concluded to review the failure of the trial court to give a manslaughter instruction to determine whether such omission resulted in manifest injustice or miscarriage of justice. If not, even though error, reversal is not warranted. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Brown, 543 S.W.2d 796 (Mo.App.1976).

Rule 20.02(e), V.A.M.R., provides that the giving or failing to give an MAI-CR instruction is not per se prejudicial. The jury was instructed upon both murder in the first and second degree and returned a verdict of first degree murder. Under the instructions given, the jury could not have considered second degree murder until they first acquitted the defendant of murder in the first degree. If a manslaughter instruction had been given, the jury could not have considered that offense until they had acquitted the defendant of both murder in the first and second degree. Not having taken the first step in reducing the offense, the jury could not, under the instructions, have considered a manslaughter instruction, even if given.

Defendant does not attempt to point out any prejudice by reason of the omission of the manslaughter instruction, nor does he set forth any facts which, prior to March 1, 1975, would have necessitated such an instruction.

We have re-reviewed the transcript in its entirety. We conclude the error in failing to give a manslaughter instruction did not result in manifest injustice or. miscarriage of justice and the plain error doctrine is not applicable.

Judgment is affirmed.

All concur.

      . Inter alia, their testimony indicated defendant had a “drug problem” since age 12.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Wesley Dale JONES, Defendant-Appellant.
    No. 10502.
    Missouri Court of Appeals, Springfield District.
    June 21, 1977.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul Crider, Jr., Public Defender, Timothy H. Battern, Asst. Public Defender, Rol-la, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Wesley Dale Jones was convicted of forcible sodomy and sentenced as a habitual criminal to 28 years imprisonment. At the close of the state’s evidence he requested a mistrial because of a report that members of the jury panel had observed him shackled and escorted by two officers en route to the courtroom the morning of the trial. The request was denied as was his motion for new trial which alleged the same matter. We affirm.

No evidence was offered by defendant in support of his allegation, either at the time of his motion for a mistrial or motion for new trial. The allegation does not prove itself and the assignment of error is without merit. State v. Fields, 487 S.W.2d 560 (Mo.1972), and cases cited therein; State v. Warriner, 506 S.W.2d 103 (Mo.App.1974).

“It is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another, and the jury is aware of this. This is necessary to prevent an escape and possible injury to others in an escape attempt.” United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

We have examined the record as required by Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    Betty Lou KEY, Plaintiff-Respondent, v. Helen O. GREGORY, Defendant-Appellant.
    No. 10191.
    Missouri Court of Appeals, Springfield District.
    June 21, 1977.
    Max H. Glover, Webb City, for defendant-appellant.
    Charles M. Edwards, Myers, Webster & Perry, Webb City, for plaintiff-respondent.
   HOGAN, Judge.

Plaintiff Betty Lou Key sought and obtained specific performance of an installment contract for the sale of land. Defendant appeals.

In January 1968 Cecil F. Gregory and Edwin A. Key were osteopathic physicians practicing in Webb City. At some time in January the two physicians and their wives entered into the contract sued upon, which is of the “contract for deed” or “bond for title” variety. By the terms of the agreement, Dr. and Mrs. Gregory were to convey two lots in an unspecified block of Byers and Ball’s Addition to Webb City, Missouri, “including the drugs and fixtures therein contained” to “E. A. Key, D.O., and Betty Lou Key, husband and wife.” The agreed selling price was $75,000, to be paid as follows: $10,000 at the time of execution of the contract, and the balance at the rate of $1,000 per month until fully paid with interest at the rate of six percent per annum on the unpaid balance. The contract recites that the vendee’s debt shall be evidenced by a promissory note in the amount of $65,000.

Other pertinent provisions of the contract were: 1) that the vendees should pay the real property taxes due on the premises for the year 1968 and thereafter; 2) that the vendees “presently occupy said premises together with C. F. Gregory, D.O., and that possession of said premises shall not change until the delivery of the Warranty Deed”; 3) that the vendees should obtain a policy of insurance on Key’s life, payable to the vendors as security for payment of the vendees’ obligation, and 4) that the vendees should insure the premises against loss by fire, etc., and deliver a copy of the policy of insurance to the vendors. Then follows the contract provision which is the basic subject of controversy in this case:

“It is understood and agreed by and between the parties hereto that time is of the essence of this contract and that in the event [the vendees] should become delinquent for as much as 30 days in the payment of any installment specified hereunder then [the vendors] are hereby [sic] relieved of the obligation of delivering [sic] of the Warranty Deed as herein contemplated and in such event all monies heretofore paid shall be construed [sic] as rent and [the vendees] shall have no further interest in and to said premises, other than as a tenant of [vendors]: Provided, however, that in the event the payments are promptly made and the same are completed then the Warranty Deed heretofore mentioned shall be delivered to [the vendees] as evidence óf the transfer of title.”

At the outset, we should note that a) there - is no question that the vendees defaulted; b) notwithstanding their default, the vendees have paid, not including taxes and insurance, $83,000 toward the purchase price; and c) that the balance due and-owing on the contract at the.time of trial, including interest, was $5,633.28.

To resume our brief narrative, it appears that Dr. Gregory and Dr. Key practiced together at their clinic for several years; the contract payments were regularly made and the transaction appears to have proceeded as the parties intended. Inferably, Dr. Gregory’s health declined in 1971,’ at which time Dr. and Mrs. Key tendered the “total pay off” due on the note and asked that the warranty deed be executed. The vendors refused, because, in. defendant Gregory’s words, “it was not called for in the contract.” The matter of prepayment was not further pursued. In December 1971 Dr. and Mrs. Key separated; Mrs. Key testified “my husband left.” She moved to Joplin, obtained employment there as a nurse, and, as we understand her testimony, did not thereafter communicate directly with her husband.

Dr. Gregory died in December 1972. Dr. Key continued to operate the clinic, but at some time late in 1973 or early in 1974 began having difficulty complying with the obligations of the contract. We do not know the source of Dr. Key’s troubles; his testimony suggests that he developed an ulcer, and was “practicing in and out due to ill health”; counsel for plaintiff attempted to suggest that Dr. Key’s difficulties had a more sinister origin. In any event, Dr. Key did not pay the real property taxes on the clinic for 1973, which became delinquent January 1, 1974, and “had to let” the life and property insurance policies lapse at some time not detailed in the record. The last installment payment to Mrs. Gregory was made in February 1974.

The principal factual controversy on trial concerned the events of default. As noted, the record does not show when Dr. Key “had to” let the insurance policies lapse. Mrs. Gregory’s evidence was that she “had nothing to do with” the life insurance policy required by the contract. In 1973 or 1974— we do not know when — Mrs. Gregory received a notice from an insurance agent that the clinic was no longer insured, and in May 1974 she paid the premium due. She became aware that the 1973 property taxes had not been paid when she received a notice from the Jasper County Collector’s Office, in “June or July” of 1974. She testified, “There was no one at the clinic,” when she received the notice of delinquency, and she paid the taxes July 3,1974. She had the building repaired in March 1975. Mrs. Gregory’s testimony was that she did not discuss the clinic with Dr. Key until after the default. As far as plaintiff was concerned, Mrs. Gregory said she “had no communication with Mrs. Key whatsoever,” and made no attempt to contact her because Dr. Key “was the one that was using the Clinic and he was making the payments.”

Dr. Key’s recollection was that after it became apparent to him that he could no longer meet the terms of the contract he called his wife, advised her that he would no longer be able to pay her “alimony” and that she would have to take over the payments on the clinic. Plaintiff answered, “Go to hell,” and hung up. The defendant produced a witness, a Mrs. Lawrence, who testified she overheard this telephone conversation, but the plaintiff categorically denied ever having such a conversation with her husband. It is to be borne in mind that Dr. Key and his wife had separated in 1971, but for whatever reason, their marriage was not dissolved until October 9, 1974. In any event, Dr. Key “closed” the clinic in April 1974. He and Mrs. Gregory “agreed” that he should have and retain the furniture and fixtures remaining in the clinic, according to Mrs. Gregory, as consideration “for the down payment.” Dr. Key stored the furnishings at Carterville, surrendered the original copy of the contract to Mrs. Gregory, and entered a hospital.

The default was declared on April 2,1974, when defendant Gregory, as an individual and as executrix of Dr. Gregory’s estate, directed a letter to Dr. Key and the plaintiff, which read:

"Notice is hereby given that you are in default in the Contract for Deed covering the above property. The payment which was due on March 1, 1974, was not received by midnight, April 1, 1974, and I hereby elect to terminate your rights under said contract. Demand is hereby made for you to quit, surrender and relinquish possession of the premises and property known as the Key Clinic . . on or before the 1st day of June, 1974.”

On April 25, 1974, plaintiff, by her attorney, advised Mrs. Gregory’s attorney that the letter of April 2 was the first knowledge she had of the default. Mrs. Gregory was advised that plaintiff would either “catch up the payments or pay off the balance” due, whichever Mrs. Gregory considered preferable. By letter dated May 31, Mrs. Gregory advised the plaintiff she would insist on forfeiture.

Thereafter, this action was commenced. Plaintiff stated — and it is not disputed— that she offered to join her husband as a plaintiff, but he declined. Dr. Key was then made a party defendant, but the action against him was dismissed after he assigned his rights in the contract to the plaintiff on October 7, 1974. After trial, but before the entry of judgment, it was stipulated that the defendant had a) paid the sum of $802.04 in real property taxes for the years 1973 and 1974; b) that defendant paid a property insurance premium in the amount of $422.02; c) that defendant paid out the sum of $3,497 for repairs on the clinic, and d) that the balance due on the contract as of October 1,1975, including interest, was $5,633.28. On October 7,1975, the court filed a memorandum opinion, and entered judgment ordering: 1) that defendant convey the realty described in the contract to plaintiff within 30 days and 2) that plaintiff contemporaneously pay defendant the balance due on the contract plus the amount advanced by defendant for taxes, insurance and repairs.

Considering the record as a whole, we have the tentative view that the trial court’s decree is fully supported by the controlling precedents. In this case the amount which the surviving vendor would realize as damages is grossly disproportionate to her actual loss, and the general principles laid down in Plymouth Securities Co. v. Johnson, 335 S.W.2d 142, 152[7-9] [10] (Mo.1960), would appear to justify setting aside the forfeiture and ordering specific performance upon condition that plaintiff reimburse defendant in the amount of her actual damage. And, while we realize that specific performance should not be decreed on behalf of a vendee unless the vendee is able and willing to perform, Domyan v. Dornin, 356 S.W.2d 70, 72[4] (Mo.1962), we think the contract duty owed by the vendors ran jointly to both vendees and in the circumstances we believe the surviving vendor had a duty to notify the plaintiff directly of her intention to declare a forfeiture. Tinnon v. Tanksley, 408 S.W.2d 98, 104[10] (Mo.1966). There is evidence justifying the conclusion that plaintiff knew nothing of the default until she was notified by letter dated April 2, 1974, and that she then tendered full performance. Perhaps Dr. Key’s dealing with the defendant, had he been the sole vendee, would have amounted to a rescission of the contract, but he was not authorized to abandon the plaintiff’s rights without her consent, Gage v. Gage, 515 S.W.2d 793, 795[1] (Mo.App.1974), and there is no showing that plaintiff assented to or even knew of defendant’s dealing with her husband. In fact, the contrary is clearly established.

We decline to go further however, and would have it clearly understood that our tentative conclusions are stated ex gratia in recognition of the fact that our duty to review the record runs basically to the litigants rather than to their counsel. Although there is certainly no dearth of easily available literature dealing with specific enforcement of installment land contracts, defendant’s counsel has contented himself with the presentation of three abstractions in his brief. They are: “1. The trial court erred in refusing to give effect to a ‘time is of the essence’ clause when there were no unusual facts to take this case out from under the general rule. 2. The court erred in granting specific performance to one who breached the contract and did not tender performance. 3. The court erred in not upholding a liquidated damages clause providing that past payments could be kept as rent and that such a clause did not represent a penalty or forfeiture.” Counsel has cited 11 Missouri cases decided between 1869 and 1963; he has quoted the language of a good many of these decisions, but he has made no effort whatever to show why the cases he cites should be controlling, nor to demonstrate in what manner he conceives the trial court misapplied the principles stated in the cases he cites. The net effect of the brief is to request that we search the record for error prejudicial to the defendant.

We will once again state that despite the broad language of Rule 73.01, para. 3(a), V.A.M.R., we do not, in bench-tried cases, review the whole case on our own initiative to determine what result we would have reached if we were sitting as trial judges, nor will we voluntarily search the record for error. The term “de novo”, if it ever was appropriate, no longer describes our review of bench-tried cases. Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo. banc 1976); Schlanger v. Simon, 339 S.W.2d 825, 828[1—3] (Mo.1960); Pfoten- hauer v. Ridgway, 307 Mo. 529, 532-533, 271 S.W. 50, 51[1][2][3, 4] (1925).

Further, we will reiterate that voluntary findings of fact such as those made in this case are not reviewable and present no question for review other than as a general finding, Conley v. Crown Coach Co., 348 Mo. 1243, 1251, 159 S.W.2d 281, 285[8] (1942), and a defendant may not on appeal assign as error a specific finding of fact or conclusion of law, or the lack thereof, when such findings were not made at the request of one of the parties. Swetnam v. U.S. By-Products Corp., 510 S.W.2d 829, 830[1] (Mo.App.1974). We have, as we believe our statement of the facts and ex gratia holding show, carefully reviewed the record. We decline to go further. The judgment is affirmed.

All concur.

      . The contract incidentally includes some medical supplies and equipment, but the parties have treated the contract as an agreement for the sale and purchase of real property, and we shall so regard it.

      . The two lots conveyed are the site of a medical office building variously referred to as the “clinic”, the “Gregory Clinic” or the “Key Clinic.” We shall refer to the property as the “clinic” as did the parties.

      . The note was apparently executed; it is referred to in correspondence between the parties dated August 26, 1971. (Plaintiffs Exhibit 6) The note was not produced at the trial.

      . See, e. g„ Note, 43 U.M.K.C.L.Rev. 199 (1974); Note, 29 Mo.L.Rev. 222 (1964); Comment, Installment Contracts for the Sale of Land in Missouri, 24 Mo.L.Rev. 240, 246-257 (1959); Annot., 55 A.L.R.3d 10 (1974).


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Jackie Lynn WOOD, Appellant.
    No. 10369.
    Missouri Court of Appeals, Springfield District.
    June 22, 1977.

      Ralph R. Bloodworth, Jr., Poplar Bluff, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Appellant Jackie Lynn Wood was found guilty by a jury of buying and receiving a 1952 Willys Jeep automobile, knowing the same to have been stolen and with intent to defraud. § 560.270 RSMo 1969, V.A.M.S. He was sentenced to a prison term of two years.

On this appeal defendant presents the single contention that the trial court erred in failing to sustain his motion for judgment of acquittal made “at the end of the State’s case and at the end of all of the evidence because nowhere in the case is there any evidence that the defendant bought the jeep knowing it to have been stolen.”

Whether the evidence at the close of the state’s case-in-chief was sufficient to support the conviction need not be determined because defendant did not move for a judgment of acquittal at that stage of the trial but proceeded to introduce evidence on his own behalf. State v. Benfield, 522 S.W.2d 830, 831[1] (Mo.App.1975).

At the close of all the evidence defendant did, by motion, attack the sufficiency of the evidence to support the conviction. That contention is renewed here. In determining its validity, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). All evidence unfavorable to the state must be disregarded. State v. Summers, 506 S.W.2d 67, 69 (Mo.App.1974). The submissibility of the case will be determined upon the basis of all of the evidence, including those portions of the defendant’s evidence which favor the state. State v. Sykes, 372 S.W.2d 24, 25[2] (Mo.1963).

It is true, as defendant points out, that one of the elements of the offense is that he had actual knowledge of the stolen character of the jeep at the time he received it and that mere possession of the stolen property raises no presumption of such guilty knowledge. State v. Webb, 544 S.W.2d 53, 57[8] (Mo.App.1976). Knowledge of the stolen character of the property may, however, be inferred from the facts and circumstances in evidence. State v. Taylor, 422 S.W.2d 633, 636[1] (Mo.1968).

In late July, 1974, an “army 1952 model Willys Jeep”, owned by Floyd Jones, was stolen. In September, 1974, at the request of law officers, Jones inspected a jeep at the Wayne County courthouse. It had numerous features, described in detail by Jones, which enabled him positively to identify it as the one stolen from him. The vehicle had undergone several changes between its theft and its recovery. It had been painted “a sorry red and black.” The data plate on the dashboard had been chiseled off and so had the identification number.

Jones testified that the reasonable market value of the jeep at the time it was stolen was $1500.00. There was testimony that its value, in its altered condition at time of recovery, was $1200.00.

Law officers had found the jeep concealed in a brushy, wooded area behind the rural home of defendant’s mother-in-law. The latter testified that defendant kept it there “whenever he was not at home.” After the officers had taken the jeep to the courthouse, defendant telephoned one of them and told him that the jeep was his and that he, defendant, had owned it for two years. Defendant told another witness that he had owned the jeep since 1973.

Testimony of defendant’s wife and a written statement from defendant showed that defendant bought the jeep in Wayne County, about August 3, 1974, from one Tom Wilhite for $100.00 but the title was not transferred to him. Defendant’s wife also testified that defendant and defendant’s brother had worked on the jeep after defendant acquired it. Photographs of the jeep were introduced into evidence.

Although the foregoing evidence clearly justified the jury in finding that defendant bought and received the jeep, defendant argues that the jury could not reasonably have found that he did so with actual knowledge of its stolen character.

One of the “more frequent factors” from which guilty knowledge may be inferred is “inadequacy of price”. State v. Ham, 104 S.W.2d 232, 233[2] (Mo.1937); State v. Cacioppo, 373 S.W.2d 479, 481[2] (Mo.App.1963). The jury was entitled to find that $100.00 was a “suspiciously low price” for a vehicle worth $1500.00. See State v. Taylor, 422 S.W.2d 633, 636 (Mo.1968). Moreover, defendant’s false statements that he had owned the jeep since 1973, State v. Simone, 416 S.W.2d 96, 101[16—18] (Mo.1967), State v. Eggleston, 27 S.W.2d 726, 728[2, 3] (Mo.App.1930), and his conduct in concealing the jeep in the brushy, wooded area, State v. Weinberg, 245 Mo. 564, 150 S.W. 1069, 1071[2] (1912), are circumstances which, coupled with the inadequacy of price, warranted the jury in making the required finding of guilty knowledge.

Defendant does not claim that the evidence was deficient with respect to a showing of the element “with intent to defraud.” The evidence already summarized would support a finding of that element. See State v. Ciarelli, 366 S.W.2d 63, 67-68 (Mo.App.1963).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert E. HARRIS, Defendant-Appellant.
    No. 10454.
    Missouri Court of Appeals, Springfield District.
    June 22, 1977.
    Kerry Koboldt, Pros. Atty., Rolla, for plaintiff-respondent.
    Jay V. White, Rolla, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Robert E. Harris was jury tried and convicted of driving while intoxicated in violation of § 564.440, RSMo 1969, and assessed a fine of $400.

There is no merit in defendant’s single point that Judge Eugene E. Northern did not have jurisdiction to try the case. Defendant had earlier disqualified Judge Emory W. Allison and Judge James Ruddy had been assigned by the supreme court to try the case. Thereafter, the supreme court terminated Judge Ruddy’s transfer and designated Judge Northern to hear the case.

The record shows compliance with Rules 30.13 and 30.14, V.A.M.R. Judge Northern had jurisdiction and the judgment is affirmed.

All concur.