author: GUNN, Judge.

text:
    Ann Marie BAILEY, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
    No. 40516.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer Denied March 16, 1979.
    London, Greenberg & Fleming, Burtom M. Greenberg, Thomas F. Flynn, St. Louis, for appellant.
    Jack L. Koehr, City Counselor, John J. Fitzgibbon, Assoc. City Counselor, St. Louis, for respondent.
   GUNN, Judge.

This appeal arises out of a wrongful death action brought by Ann Marie Bailey, mother of the decedent, against the City of St. Louis in its capacity as operator of an ambulance service. The trial court sustained the City’s motion for summary judgment based upon the doctrine of sovereign immunity. On appeal, plaintiff contends that the City was not entitled to summary judgment as a matter of law because a genuine issue of material fact existed as to whether the operation of an ambulance service was a governmental or proprietary function. Further, plaintiff claims that the City is liable in tort to the extent that it is required by statute to carry liability insurance. We affirm.

On October 15, 1977, plaintiff gave birth-prematurely to a baby boy. The child was unable to breathe normally, and mouth-to-mouth resuscitation was administered by the police officers who responded to the call for aid. The police also summoned a St. Louis City ambulance and informed the dispatcher that an emergency child-birth respiratory case was involved. The arrival of the ambulance took twenty minutes. The ambulance driver and attendants, City employees, were instructed by the police to continue mouth-to-mouth resuscitation or institute other artificial life support methods to maintain the child’s life as he and his mother were conveyed to the hospital. Plaintiff alleged that during the trip, the ambulance attendants failed to take any action to sustain the baby’s life and failed to radio the hospital that they were bringing in a respiratory failure victim. Upon arrival at the hospital, the child was diagnosed as not breathing and having no pulse. Efforts to revive him proved futile, and he was pronounced dead with the cause listed as respiratory failure. Plaintiff grounded her suit against the City of St. Louis in seven counts of negligence, including the tardy ambulance response time to her emergency call, the lack of artificial resuscitation equipment, the untrained ambulance personnel and the failure to notify the hospital of the nature of the baby’s problem so that emergency assistance could be prepared in advance of his arrival. The City’s motion for summary judgment claimed that the operation of the ambulance service was an exercise of its governmental function and, hence, that it had no tort liability. In support of the motion, the City relied on Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677 (1950), a case which holds that the City of St. Louis’ operation of a hospital is a governmental function, immune from suit in tort. The accompanying affidavit of Dr. Wochner, Director of Hospitals for the City of St. Louis, stated that the ambulance service was “. . . connected with and incident to . . . ” the City hospital system. The first matter before us, then, is to determine whether the ambulance service’s status as either a governmental or proprietary operation presents a genuine issue of material fact. Rule 74.-04(c).

On appeal, we review the record in the light most favorable to the party against whom the judgment was rendered. Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.1978); Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328 (Mo.App.1977). We recognize that summary judgment is a harsh remedy; consequently, the moving party has the burden to show by unassailable proof that there is no genuine issue of fact. Edwards v. Heidelbaugh, supra. Yet, the party confronted by a proper motion for summary judgment may not sit idly by. Rule 74.04(e) states that the party adverse to summary judgment may not rest upon mere allegations or denials in his pleadings but must set forth, by affidavits or otherwise, specific facts which show that there is a genuine issue for trial, (emphasis added) See, Seliga Shoe Store v. City of Maplewood, supra. Plaintiff has failed to meet her burden of rebuttal and presented neither case law nor affidavits to refute those of the City. Instead, she professes that summary judgment was granted before she had the opportunity to make any meaningful discovery to establish the proprietary nature of the City’s ambulance service. However, Rule 74.04(f) provides a means by which the court may order a continuance to permit affidavits to be obtained, or depositions to be taken, or discovery to be had. We have no indication that this remedy was sought. Therefore, on what it had before it, the trial court properly determined that no question of material fact existed concerning the ambulance service’s status as a governmental functionary.

Plaintiff also argues that the trial court erred in granting summary judgment on the basis of sovereign immunity because the City was liable in tort to the extent that it was required by statute to carry liability insurance. To reach this conclusion, plaintiff adverts to §§ 190.052-190.195, RSMo Supp.1975, which regulate ambulances, ambulance personnel and emergency services. Section 190.100 defines “person” to include “. . . any governmental agency other than the United States or the State of Missouri;” e. g., the City of St. Louis. The Act regiilates through licensing “persons” who furnish, conduct, maintain, advertise or otherwise engage in the ambulance business. § 190.105, RSMo Supp.1975. Among the qualifications for a license is procurement of insurance coverage for each ambulance owned or operated by the licensee. Section 190.120, RSMo Supp.1975 provides in pertinent part:

“No ambulance license shall be issued under sections 190.100 to 190.195, nor shall such license be valid after issuance, nor shall any ambulance be operated in Missouri unless there is at all times in force and effect insurance coverage for each and every ambulance owned or operated by or for the applicant or licensee, providing for the payment of damages in an amount as prescribed by the board issued by an insurance company licensed to do business in the state of Missouri:
(1) for injury to or death of individuals in accidents resulting from any cause for which the owner of said vehicle would be liable on account of liability imposed on him by law, regardless of whether the ambulance was being driven by the owner or his agent; and
(2) For the loss of or damage to the property of another, including personal property, under like circumstances.
* * * * * *
(3) Every insurance policy required by the provisions of this section shall contain a provision for a continuing liability thereunder to the full amount thereon; that the liability of the insurer shall not be affected by the insolvency or the bankruptcy of the assured; and that until the policy is revoked the insurance company will not be relieved from liability on account of nonpayment of premium, failure to renew license at the end of the year, or any act or omission of the name[d] assured. Such policy of insurance shall be further conditioned for the payment of any judgments up to the limits of said policy, recovered against any person other than the owner, his agent or employee, who may operate the same with the consent of the owner.” (emphasis added)
* * * * * *

As this statute was in effect on October 15, 1977, plaintiff concludes first that the City was required to carry insurance on each of its ambulances. From here she seeks to make the quantum jump that the required insurance was to cover any tort committed in connection with the operation of the ambulances. Finally, plaintiff postulates that any immunity which the City may have had was waived at least up to the amount of insurance required by the State Board of Health.

The City counters that § 190.120 refers only to liability insurance for vehicular accidents and not to alleged negligent acts unrelated to the actual driving of the ambulance. We must agree. Plaintiff’s theory is not congruent with the intent of the Legislature which was to require licensees to obtain insurance coverage for “each and every ambulance,” as opposed to each and every ambulance attendant. Such insurance is intended to cover those who drive the vehicle, whether or not the owner, an agent, an employee or merely a person who operates the ambulance with consent. The accidents referred to in § 190.120 are for the negligent operation of the ambulance, not negligent or maladroit administration of emergency care as complained of by plaintiff. Consequently, § 190.120 does not provide the basis for legislative waiver of sovereign immunity. Inasmuch as plaintiff’s claim arose before August 15, 1978, the date from which sovereign immunity was prospectively abrogated, the City of St. Louis is protected from plaintiff's claim by reason of the doctrine and the reasoning elaborated in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). Strong v. Curators of Univ. of Mo., 575 S.W.2d 812 (Mo.App., E. Dist., 1978). See also, Wheeler v. St. Clair County Hosp. District No. 1, 557 S.W.2d 233 (Mo. banc 1977).

Affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . The City carries no policies of insurance § 71.185, RSMo 1969. under either § 190.120, RSMo Supp.1975 or

      . Sections 537.600-537.650, 1978 Mo.Legis. Serv., effective August 13, 1978, Laws of Mo. 1978, p. -, provide for conditions of sovereign immunity and substantially modify the ef-feet of Jones v. State Highway Commission, supra, particularly to the State and its political subdivisions having insurance coverage.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Robert E. PETTY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39660.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 6, 1979.
    Guilfoil, Symington, Petzall & Shoemake, William James O’Herin, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Rule 27.26 proceeding.

Movant appeals Rule 27.26 judgment finding (1) movant was not put in double jeopardy by being charged with multiple offenses arising out of the firing of a single shot at a police car occupied by two persons; (2) a pre-sentence investigation was unnecessary; and (3) he had effective assistance of counsel. Movant also complains that he was denied the right to amend his 27.26 Motion to show, among other things, that his plea of guilty was involuntary.

Movant was at all times herein represented by counsel and testified at his Rule 27.26 hearing. The Rule 27.26 trial judge filed an unusually long and detailed Findings of Fact, Conclusions of Law and Order of Court. The record before us includes the Rule 27.26 transcript; Exhibit A, being his guilty plea transcript; Exhibits B and D, being his original criminal file; and Exhibit C, being the appendix to his Rule 27.26 Motion.

Such record shows that movant was not put in double jeopardy, a pre-sen-tence investigation was unnecessary, he had effective assistance of counsel, he voluntarily entered his plea of guilty and was not entitled to amend his Rule 27.26 Motion after an evidentiary hearing on the merits of his original motion.

After careful examination of the transcripts, exhibits, briefs, and authorities, we are convinced that the judgment of the trial court is based on findings which are not clearly erroneous; that no error of law appears and that an opinion would have no precedential value.

The judgment is affirmed in accordance with Rule 84.16(b).

DOWD, P. J., and STEWART, J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Bobby Lee CURRY, Appellant.
    No. 39885.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Walter S. Drusch, Jr., Drusch & Dillard, Cape Girardeau, for appellant.
    John D. Ashcroft, Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals his conviction for first degree murder, which conviction resulted in a sentence of life imprisonment. Defendant was charged with the shooting death of Lawrence A. “Bill” Hitt while defendant, acting in concert with another, was attempting to rob a liquor store in Cape Gir-ardeau. At the time of the attempted robbery and subsequent shooting, Mr. Hitt was one of two employees in the store.

The State’s evidence consisted primarily-of: 1.) The confession of defendant; 2.) the testimony of Roger Hood, a co-employee of “Bill” Hitt, who was present at the liquor store during the robbery; 3.) the testimony of one Olandis Totten, an acquaintance of defendant who was present during the planning of the robbery; and, 4.) the testimony of Gregory Starks, defendant’s accomplice in the commission of the robbery. In respective order, this evidence demonstrated the following:

1.) Defendant’s written confession stated that the robbery was planned by Gregory Starks and Larry Gilmore, two or three days before the attempt was made. Gilmore supplied the gun but only Starks and defendant entered the store. Defendant was carrying the weapon. Both wore ski masks and stockings. Starks attempted to open the store’s cash register as defendant kept watch over the employees. Defendant became embroiled in a wrestling match' with Hitt for possession of the gun. During this tussle, the gun went off and Hitt fell backward. Defendant and Starks left the store before obtaining any money.

2.) Roger Hood testified to being present in the store with Hitt when two men. entered with ski masks. He was informed that this was a robbery and to lie on the floor. He saw Hitt grab for the gun and get shot for his effort. While he could make no identification, defendant’s size and stature matched that of the gunman.

3.) Olandis Totten testified that he witnessed Gilmore, Starks and defendant plan the robbery. They dressed in old clothes and donned stockings and ski masks in preparation thereto. He walked with the trio to within one block of the store, then left their company.

4.) Gregory Starks stated that he was one of the would-be robbers. It was he and defendant who entered the store wearing ski masks. He attempted to rifle the cash register while defendant kept watch with the gun. Defendant was grabbed by Hitt and the two were wrestling when the gun discharged. Subsequently, Starks and defendant fled.

On appeal, defendant complains: That this court lacks jurisdiction to proceed with this appeal; that the trial court erred in admitting into evidence the alleged written confession of defendant; and, that the trial court further erred in allowing into evidence the testimony of a witness not endorsed on the information, contrary to the express provisions of Rule 24.17. Obviously, should this court lack jurisdiction as defendant claims, we would be forestalled from disposing of this case on the merits. Therefore, we first approach the issue of jurisdiction.

As the basis of his argument, defendant refers to the terms of Article V, Section 3 of the Constitution of the State of Missouri as amended in 1972. However, defendant’s challenge to this court’s ability to hear this appeal under the provision cited above, has already been ruled adversely to defendant’s position by the Missouri Supreme Court. Garrett v. State, 481 S.W.2d 225[3-4] (Mo. banc 1972); and Parks v. State, 492 S.W.2d 746[1-2] (Mo. banc 1973). Defendant initially appealed to the Supreme Court, but that court transferred the case to us.

The Supreme Court has determined that it does not have exclusive jurisdiction of an appeal involving a first degree murder conviction when the alternative punishments of death or life imprisonment are not involved. Garrett, supra; Parks, supra. Defendant was convicted pursuant to § 559.007 R.S.Mo. (Supp.1975). The only sentence defendant could receive at the time of his conviction was life imprisonment. See, § 559.009(3) (Supp.1975). Therefore, defendant was not exposed to the alternative punishments of death or life imprisonment. We have jurisdiction.

Defendant next complains of the admission of his written confession as he alleges himself to have been under the influence of alcohol and drugs (namely, marijuana and “speed”). Specifically, defendant challenges the voluntariness of his confession, stating he was intoxicated, “to such an extent . . . [his] . . . confession was rendered involuntary.” At the hearing on the motion to suppress, various persons testified as to the events ultimately leading to defendant’s confession. This testimony was as follows:

Defendant testified that, on the day of the confession, he had been drinking beer and wine, as well as having smoked “pot” and taken “speed”. He further alleged that he does not remember signing the statement.

Officer Nunley, defendant’s brother-in-law, testified he found defendant that day, on the street, in front of a friend’s house; that he and defendant conversed about the crime herein involved; that defendant stated to Nunley he was responsible for the shooting and had, “to talk to someone about it.” Officer Nunley further testified that he escorted defendant to the police station and, while en route, defendant confided to him that while he had not actually done the shooting, he intended to “take the rap” for the person who had. Officer Nunley also stated that defendant appeared “under the influence” when he went to the station, and was immediately taken to interrogation.

Officers Brown and Linecum conducted the interrogation. Both testified that defendant was read his rights, appeared to understand them and seemingly was neither drunk nor under the influence of drugs. They stated that defendant had no trouble speaking, responding to questions or with his memory.

Upon hearing this testimony, the trial court concluded that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel; and, that he gave the statement of his own volition. Generally speaking, the state has the burden of proving voluntariness by a preponderance of evidence only. State v. Olds, 569 S.W.2d 745[4] (Mo. banc 1978). The court, in considering the evidence, need not have believed defendant’s self-serving statements, nor the testimony of Officer Nunley but could attach to such testimony whatever weight it chose. It is obvious that, in this case, the court chose to believe the testimony of the interrogating officers.

As stated by the Supreme Court of Missouri in State v. Smith, 342 S.W.2d 940[1—3] (Mo.1961):

“ ‘The fact that accused was more or less intoxicated when he confessed does not exclude the confession if he had sufficient mental capacity to know what he was saying.’ ” at 941.

However, the fact of intoxication may be considered by the jury in lessening the probative weight of the confession. Having examined the record of this case in light of State v. Heather, 498 S.W.2d 300 (Mo.App.1973), and State v. Wisdom, 540 S.W.2d 94 (Mo.App.1976), we find no error in the admission of defendant’s statement. This point is denied.

Defendant last complained of the late endorsement of state’s witness, Gregory Starks. There is no question but that the state failed to endorse Starks upon the information before the trial commenced. Defendant claims that the trial court’s allo-wal of Starks late endorsement constituted surprise and operated to defendant’s prejudice, because he “did not have sufficient time in which to prepare a defense for . . .” Starks’ testimony.

At trial, Gregory Starks was called as a witness for the state. Defense counsel objected that Starks was not endorsed on the information and contended that it was his understanding that the state would not use Starks, but would rely instead on defendant’s confession. The prosecuting attorney was not of the same recollection as to his conversations with defense counsel relative to the use of Starks, but admitted that Starks had not been endorsed.

Initially, the trial court gave defense counsel an opportunity to interview the witness. After the interview, counsel told the court that the witness candidly answered his questions, and that the answers he gave were of no surprise. The court then offered to give defendant a continuance, “. . . either because of surprise or because you haven’t had an opportunity to defend against this witness.” To which offer defense counsel replied, “On this rather short notice, I have no specific or even general reason to request a continuance.” The trial resumed with the testimony of Starks.

Rule 24.17 provides that the names of material prosecuting witnesses should be endorsed on any indictment or information. However, it is generally recognized that this rule is not absolute for, as Judge McMillian stated in State v. Long, 532 S.W.2d 814[1] (Mo.App.1975),

There is no doubt that the trial court has broad discretion in permitting the endorsement of the names of additional witnesses, State v. Thost, 328 S.W.2d 36, 38 (Mo.1959), and a judgment of conviction will not be reversed because of a late, irregular or imperfect endorsement absent an abuse of that discretion. State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Fraley, 369 S.W.2d 195 (Mo.1963) and State v. Whaley, 512 S.W.2d 431 (Mo.App.1974). 532 S.W.2d at 817 and 818.

Having examined the entire record, we do not believe the trial court herein abused its discretion. Defendant makes no allegation of surprise that Starks was at least a potential witness. In point of fact, defendant could not be surprised by the nature of Starks’ testimony because his own confession confirmed Starks’ complicity in the crime. The only surprise to defendant was in the use of Starks as a witness. As enounced in State v. Strawther, 476 S.W.2d, at 580, . . . it is difficult to conclude that defendant and his counsel were surprised in the legally accepted sense of the term.” It appears that the trial court made every effort to protect the defendant’s rights and the defendant, in effect, refused a continuance. See State v. Maxie, 513 S.W.2d 338[3] (Mo.1974). Therefore, defendant’s last point also stands denied.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . Article V, Section 3 states inter alia:
      “The supreme court shall have exclusive appellate jurisdiction in all cases ... in all appeals involving offenses punishable by a sentence of death or life imprisonment. . .."


text:
    STATE of Missouri, Plaintiff-Respondent, v. Farrell Dean JONES, Defendant-Appellant.
    No. 39923.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.

      Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction of Forcible Rape, Robbery First Degree and Armed Criminal Action. The jury assessed punishment at ten years, five years, and five years respectively, the sentences to run consecutively. Defendant assigns error in the trial court’s denial of a mistrial after the testimony of one of the investigating policemen allegedly containing prejudicial evidence of another crime. We affirm.

The prosecutrix testified that while walking home on November 16, 1976, a man approached her, put a screw driver to her side, and told her to walk with him. He said he “had just robbed somebody and the policemen wouldn’t mess with him if he had a girl with him.” He took her to a dark house, drew a gun, forced her to disrobe partially and have sexual intercourse with him. Thereafter, he took her purse' threw the contents on the floor and confiscated approximately two dollars. He told her that he was going to kill her because she would tell what happened, then said he would kill her if she told. The prosecutrix identified defendant from police photographs, in a line-up, and at the trial.

The prosecutrix first reported the crime to police officer Dennis Crowe. Crowe called a female officer with whom the pros-ecutrix conferred and to whom the prosecu-trix gave a description of her assailant. Another police officer, Samuel Dean, testified that he conducted the investigation of the rape and robbery in question. He stated that the day after the incident he and two other officers interviewed the prosecu-trix and showed her 30 to 35 photos of suspects from which she tentatively identified the defendant as her assailant. On that same say, the three officers talked to people on the streets, looking for witnesses and informants. Two days after the incident, Officer Dean and one other officer took the prosecutrix back to the scene of the crime. Officer Dean testified that the police thereafter continued their investigation. When asked what the investigation lead to, Officer Dean testified:

Well, after we had showed the victim the photos she had tentatively identified the defendant and we were more or less looking to find him on the street because he had already been wanted.

Contending the statement “had already been wanted” referred to another crime, the defense attorney moved for a mistrial. The trial court denied the request for a mistrial.

Appellate review of refusal to grant a mistrial is limited to a determination of whether, as a matter of law, the trial court abused its discretion in refusing to grant the mistrial. State v. Nolan, 423 S.W.2d 815, 819 (Mo.1968). The granting of a mistrial is a drastic remedy which “should be exercised only in extraordinary circumstances.” State v. James, 347 S.W.2d 211, 214 (Mo.1961). We necessarily defer to the trial court’s discretion because it is in a better position to observe and evaluate the incident giving rise to the request for a mistrial.

It is a well-established rule that proof of commission of a separate and distinct crime is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial or comes within one of several exceptions to show motive, intent, absence of mistake or accident, a common plan, or identity. State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967); State v. Diamond, 532 S.W.2d 873, 876 (Mo.App.1976).

Here, the trial court took the “wanted” comment to be in reference to the crime for which defendant was being tried. The trial judge said:

No time sequence has been stated as to when the officer was looking for him. Now, all this investigation took place immediately after the alleged crimes were committed. Numerous officers evidently were involved in' this matter.

This interpretation of the “wanted” remark is reasonable in light of the evidence that on the day the crime was reported, the prosecutrix made an identification of the defendant. Further, the fact that the police were looking for witnesses and informants indicates that being “wanted” by police can encompass more than simply being “wanted” for á crime.

Even if the “wanted” statement is considered as evidence of another crime, it does not necessitate a reversal. The testimony was vague, indefinite, and lacking in any specific reference to another offense. See State v. Lee, 404 S.W.2d 740, 748 (Mo.1966). Furthermore, other references in trial testimony help put this remark in proper perspective. Officer Dean had testified without objection that he had shown the prose-cutrix photos of other “suspects” out of which she identified the defendant.

Also, the prosecutrix testified at trial that defendant told her that he had just committed a robbery. Considered in the context of the testimony as to the ongoing investigation, and in light of the testimony as to the prosecutrix’s prior photo identification of defendant and her recitation of the defendant’s reference to a recent robbery, the inexact “wanted” remark clearly cannot be said to muster the prejudicial impact warranting a mistrial.

Judgment affirmed.

CLEMENS and GUNN, JJ., concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Bennie HAMMOND, Appellant.
    No. 39935.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael H. Finkelstein, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., George R. Westfall, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Defendant has appealed a judgment of life imprisonment pursuant to a jury verdict which found him guilty of first degree murder. On appeal defendant challenges two trial court rulings made during closing argument — the denial of a mistrial because of the prosecutor’s statements about a lineup identification by a witness, and the admittance of comments relating to “reasonable doubt.”

Both points raise the issue of permissible oral argument, a matter on which the trial court has wide discretion. State v. Williams, 376 S.W.2d 133[7] (Mo.1964). We view defendant’s contention of error in light of the “ ‘utter impossibility of regulating the course of argument with absolute precision.’ ” Lineberry v. Robinett, 446 S.W.2d 481[7] (Mo.App.1969). As ruled in State v. Jaspar, 521 S.W.2d 182[2] (Mo.App.1975), whether objectionable jury argument was so serious as to require a mistrial “rests basically in the sound discretion of the trial court, who was physically present and who could better evaluate the trial flavor.” Granting a mistrial for improper closing argument is a harsh remedy, to be exercised only where the overtones of prejudice can be removed by no other means. State v. Phelps, 478 S.W.2d 304[8-9] (Mo.1972).

Defendant’s first point arose from jury argument about the state’s evidence. Two witnesses testified to defendant having shot the victim: A Mrs. Irons saw him shoot the victim and rummage through his pockets; a Mrs. Loggins heard the victim’s screams, came to the area, heard a shot, observed the victim on the ground and watched the defendant pass by her as he left the scene.

Mrs. Loggins later failed to identify defendant at a police lineup but at trial testified she had recognized him at that time. She also made a positive in-court identification.

Defendant’s first point arises from defense objections during the prosecutor’s closing argument concerning the reason witness Loggins had failed to identify defendant at the lineup. In cross examination she made excuses for this, ranging from a comment that defendant had become fuller in the face to declaring that she did not want anything do to with the prosecution. In his jury argument, the prosecutor hypothesized that witness Loggins had failed to identify defendant at the lineup because of fear. Upon sustaining defendant’s objection but denying a mistrial, the trial court admonished counsel not to further pursue the reason why Mrs. Loggins had failed to identify the defendant at the lineup. Disregarding this admonition in closing argument, defense counsel commented that Mrs. Loggins failed to identify the defendant at the lineup because “she couldn’t identify anyone . . . that’s why.” Thereafter, in response, the prosecutor argued that Mrs. Loggins had failed to identify anyone at the lineup not because “she couldn’t” but rather because she was “afraid.” Defendant objected and moved for a mistrial because no evidence supported the prosecutor’s statement. The trial court denied a mistrial but admonished the jury that “you will not consider in your deliberations any reason why Mrs. Loggins did not tell the police.” Defendant now appeals from the denial of a mistrial.

While it is improper for counsel in closing argument to comment on or refer to subject matter not in evidence, if such comment is in retaliation to comments of defense counsel there is no reversible error. State v. Kirksey, 528 S.W.2d 536[8] (Mo.App.1975). Here, despite the court’s quoted ruling that the jury not consider any reason Loggins did not tell the police and the court’s telling both counsel “you’ll not pursue it any further,” defense counsel argued: “Why didn’t she identify anybody at the lineup? Because she couldn’t identify anybody at the lineup. That's why.”

A prosecutor can go further by way of retaliation, in answering arguments of defendant’s counsel, than he would be authorized to do in the first instance. State v. Tiedt, 206 S.W.2d 524[10] (Mo. banc 1950). Here, defense counsel disregarded the trial court’s admonition that there be no further comment on witness Loggins’ reason for lack of lineup identification. In so doing, defense counsel provoked the state to retort. We find no abuse of discretion rising to a level requiring a mistrial.

By defendant’s second point he contends that in closing argument the state attempted to define “beyond a reasonable doubt” in violation of the Notes on Use of MAI-CR 2.20. The prosecutor stated that “anything less than reasonable doubt would not be enough” nor would “a mere doubt of some sort” but that “reasonable doubt” must be based on “reason.”

As to this point, we hold that only when counsel attempts to define “reasonable doubt” in closing argument does he venture into impropriety. State v. Belleville, 530 S.W.2d 392[4] (Mo.App.1975). As we held in State v. Wilbon, 561 S.W.2d 133 (Mo.App.1978), it is not improper to discuss merely “reasonable doubt.” Here, the prosecutor’s comment was a permissible discussion rather than a definition.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: FLANIGAN, Chief Judge.

text:
    Louise PEER, Plaintiff-Appellant, v. MFA MILLING COMPANY, Defendant-Respondent.
    No. 10116.
    Missouri Court of Appeals, Southern District, En Banc.
    Feb. 26, 1979.
    Charles C. Shafer, Jr., Kansas City, for plaintiff-appellant.
    Raymond E. Whiteaker, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent.
   FLANIGAN, Chief Judge.

Plaintiff Louise Peer is the widow and sole survivor of Paul J. Peer who died December 2, 1971. Plaintiff instituted this action in the Circuit Court of Greene County against defendant MFA Milling Company, her husband’s employer. The petition alleged, in part, that the decedent “did suffer injury and/or death” in the course of his employment, that he was exposed to “highly toxic dangerous and poisonous drugs, chemicals, and substances, including the fumes, gases and dust therefrom,” and that his death “was a direct and proximate result” of defendant’s conduct. Defendant’s answer denied those allegations.

The petition pleaded alternative theories of recovery. The theories included failure to provide a safe place to work, failure to provide certain equipment, negligence in failing to conduct certain tests, and certain statutory violations.

The trial court sustained a motion for summary judgment filed by defendant and entered judgment in favor of defendant on all counts of the petition. Plaintiff appeals.

The provisions of Rule 74.04 include: “(b) A party against whom a claim . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof, (c) . The adverse party prior to the day of hearing may serve opposing affidavits. Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law . (h) In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

In determining whether the trial court erred in entering summary judgment in favor of the defendant this court must view the record in the light most favorable to the plaintiff. Otto v. Farmers Ins. Co., 558 S.W.2d 713, 715[1] (Mo.App.1977); Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328, 331[1] (Mo.App.1977). Summary judgment is a drastic remedy, Seliga, supra, 558 S.W.2d at 331. A “genuine issue of fact” exists, precluding the rendition of summary judgment, when there is the “slightest doubt” as to the facts, Pagan v. City of Kennett, 427 S.W.2d 251, 252[3] (Mo.App.1968); Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), so long as the fact in doubt is a material one which has “legal probative force as to a controlling issue.” Seliga, supra, 558 S.W.2d at 331.

As one leading authority has pointed out, “Although a motion for summary judgment . may be made in any civil action, it is not commonly interposed, and even less frequently granted, in negligence actions.” Wright and Miller, Federal Practice and Procedure, Vol. 10, § 2729, p. 559. Our supreme court has evinced a pronounced reluctance to affirm the granting of summary judgment relief to a tort defendant. See, for example, Blackburn v. Swift, 457 S.W.2d 805 (Mo.1970); Cooper v. Finke, 376 S.W.2d 225 (Mo.1964). However, in the rare situation where the exacting requirements of Rule 74.04 are met, the relief is available in a tort action. Examples of situations where a tort defendant successfully interposed, by resort to summary judgment, the shield of the occupational disease portions of the Missouri Workmen’s Compensation Law may be found in King v. Monsanto Chemical Company, 256 F.2d 812 (8th Cir. 1958) and Oggesen v. General Cable Corporation, 273 F.2d 331 (8th Cir. 1960).

Defendant’s motion for summary judgment was based on these grounds: “That decedent, plaintiff, and defendant at all times material herein, came within the provisions of and were subject to the Workmen’s Compensation Law," including “the occupational disease amendment”; that paragraphs 3, 4, and 5 of Count I of the petition, if true, showed that “decedent died as a result of an occupational disease” and that plaintiff’s sole remedy, “if any,” is under the terms and provisions of the Workmen’s Compensation Law.

“The compensation act, including the occupational disease amendment where applicable, is not supplemental or declaratory of any existing rule, right or remedy, but creates an entirely new right or remedy and where the employer and employee have elected to accept the provisions of the act such new right or remedy is wholly substi-tutional in character and supplants all other rights and remedies, at common law or otherwise.” Marie v. Standard Steel Works, 319 S.W.2d 871, 875[3] (Mo. banc 1959). “It has been firmly established that the question as to whether or not the Workmen’s Compensation Act, § 287.010, et seq., is applicable to a claim for which recovery is sought in a common law action is an affirmative defense and the burden of establishing same rests upon the defendant.” Roberts v. Epicure Foods Company, 330 S.W.2d 837, 839[1] (Mo.1960). In Roberts, at p. 840, the court pointed out that when a defendant in a tort action relies upon the affirmative defense that the cause is barred by the workmen’s compensation act, “[t]hat question is ordinarily a.highly contested fact issue to be determined from conflicting oral testimony.”

When a tort defendant relies upon this affirmative defense it frequently happens that the supporting evidence adduced by the defendant is of the quality which would aid the employee, and damage the same defendant, if a claim were being made under the compensation act. That fact may explain the vagueness to which both sides have resorted in the case at bar, the plaintiff in her petition and the defendant in its motion and in its brief as respondent here.

The lengthy petition, perhaps by design, lacks clarity. The defendant did not utilize Rule 55.27(d) by moving for a more definite statement. The sufficiency of the petition “to state a claim upon which relief can be granted” was not attacked by the defendant, either in the trial court or, as Rule 55.27(g)(2) permits, in this court.

The brief of plaintiff as appellant here asserts that “a genuine issue of material fact remains ripe for determination. We still have no authoritative determination of what killed Paul J. Peer.” Defendant does not challenge the latter statement. Defendant, in its brief, makes no attempt to state what it claims the facts to be nor does defendant accord any factual interpretation to the various items upon which it relied in the trial court to support its motion.

Before examining the propriety of the trial court’s ruling, it is necessary to review some of the principles which confront a defendant who seeks to interpose the affirmative defense that a tort claim is barred by the compensation act and that plaintiff must resort to the latter for relief.

In Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193 (Mo. banc 1968), a plaintiff brought a common law negligence action against his employer and the trial court, in dismissing the action, upheld the defense that plaintiff’s remedy was exclusively under the compensation law. In reversing the order of dismissal and remanding the cause for trial, the supreme court rejected the contention that all claims for “work-connected injuries” were solely cognizable by the Industrial Commission. The court answered in the negative the following question: “Has the act taken from an employee his right to recover from his employer for an injury that does not fall within the definitions and provisions of the act?’ Harryman, at 195. (Emphasis added.) The court also said at 196: “The obligation to furnish compensation is only for injury by such ‘accident.’ The release is only from liability for an injury by such ‘accident.’ ” (Emphasis in original.)

Cleveland v. Laclede-Christy Clay Products Co., 113 S.W.2d 1065 (Mo.App.1938) furnishes an example of a situation where a tort defendant, relying upon the affirmative defense of the shield of the occupational disease provisions of the compensation law, failed to sustain its evidentiary burden. The court, at 1071, said:

“Defendant’s theory that plaintiff’s claim was exclusively under the Missouri Workmen’s Compensation Act is an affirmative defense, the burden of pleading and proving of which was upon defendant. ... To sustain such a defense defendant was required to prove not only that it had filed with the Compensation Commission a written notice of election to bring itself within the occupational disease amendment. . but it was required to go further and prove that Cleveland’s death was caused or was hastened by the conditions under which he worked after defendant elected to accept the occupational disease amendment. Defendant offered no evidence whatsoever to show that the disability and death of Cleveland were caused by the conditions under which he worked after defendant accepted the amendment. Its proof was directed toward showing that he was suffering from a disease not caused by his employment . . If plaintiff had prosecuted a claim under the Compensation Act for the death of her husband on the same evidence for both parties as appears in this record, it is clear that she would not be entitled to receive compensation. . . . There is no doubt that, where the facts show the Compensation Act, including the occupational disease amendment, to be applicable, the right to compensation is exclusive and takes the place of all other rights and remedies of an employee, either under the common law or under the health and safety statutes involved herein. In other words, the Compensation Act, when applicable, is not cumulative or supplemental but is wholly substitutional as contended by defendant. It must be remembered, however, that before the Compensation Act can be substitu-tional, it must be shown to be applicable, and we are satisfied that under the evidence in this case it is not applicable for the reason that defendant offered no evidence whatsoever to show a causal connection between the conditions of Cleveland’s employment, after it accepted the occupational disease amendment, and Cleveland’s death.” (Emphasis added.)

Cleveland is an illustration of the fact that when a tort defendant relies upon the affirmative defense under consideration, the evidence he adduces in support of that defense would be detrimental to him if a workmen’s compensation claim was being prosecuted against him for the same injuries.

In Sheen v. DiBella, 395 S.W.2d 296 (Mo.App.1965) the court discussed § 287.120 which provides, in pertinent part: “ ‘If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.’ ”

The foregoing language, said the court at p. 298, means that when the employer-employee relationship exists and the accident arises out of and in the course of the employment, the workmen’s compensation act applies and is the exclusive remedy. “In such a situation the common law action for damages, based upon negligence, will not lie. Conversely, if for any valid reason, the accident is not covered by the Act, then the common law action, if negligence can be shown, remains unaffected by the Compensation Act and available as a remedy for the injured person.” That language is quoted with approval in Wilson v. Hungate, 434 S.W.2d 580, 582 (Mo.1968).

An example of the operation of the foregoing principle, with respect to the occupational disease portion of the compensation law, may be found in Cleveland, supra. Another example may be found in Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909 (1936). That case involved an action for damages based upon defendant’s alleged failure to comply with certain statutes, including what is now § 292.120. The claim of plaintiff was that by reason of defendant’s statutory violation he was caused to inhale dust and contracted silicosis.

Section 292.120 provides: “Every person, firm or corporation using any polishing wheel or machine of any character which generates dust ... in its operation, shall provide each and every such wheel or machine with a hood, which shall be connected with a blower or suction fan of sufficient power to carry off said dust . . . and prevent its inhalation by those employed about said wheel or machine.”

The court pointed out, at p. 917, that “poisonous and disease-producing dusts are treated by [§§ 292.300-292.440], and further requirements are made by them to prevent harm to employees from such dusts.” The court said, however, with respect to § 292.-120, “There is nothing in this section to limit its application to disease producing dusts . . . While, of course, defendant would not be liable to plaintiff for damages unless the dust caused him injury, to recover under [§ 292.120] it was not necessary to prove that the injury caused was an occupational disease. (For example, even if plaintiff had tuberculosis in an arrested stage, defendant would be liable if the dust, whether it contained silica or not, reactivated or aggravated this disease.)” (Emphasis added.)

The instant petition does not cite § 292.120. If, however, it pleads facts which bring the case within the purview of the statute, citation of the statute in the petition is not a condition precedent to plaintiff’s entitlement to the relief afforded thereby. Williamson’s Estate v. Williamson, 380 S.W.2d 333, 338[7] (Mo.1964); Jones v. Chicago B & Q R Co., 343 Mo. 1104, 125 S.W.2d 5, 12[4] (1938). An examination of the lengthy petition discloses that it cannot properly be said that, as a matter of law, its allegations fall short of pleading facts constituting a violation of § 292.120 and resultant “injury and/or death,” the latter being the inept but unattacked wording of the petition.

In support of its motion for summary judgment defendant, in the motion, placed its reliance upon certain items. This court holds that the items fail to show “that there is no genuine issue as to any material fact” and also fail to show that [defendant] “is entitled to a judgment as a matter of law.” Rule 74.04(c).

Several of the items upon which defendant relied were directed solely to showing the existence of an employment relationship between the decedent and defendant, the election of defendant to come under the workmen’s compensation act (including the occupational disease portion thereof) and the fact that the decedent did not take any step to reject the coverage of the act. Neither party seriously disputes these matters and, for the purpose of this opinion, they are assumed.

The other items upon which defendant relied are the following:

1. Paragraphs 3, 4 and 5 of Count I of the petition. The contents of those paragraphs were incorporated in the other two counts.

2. The deposition of plaintiff Louise Peer.

3. A copy of a claim for workmen’s compensation filed by plaintiff.

4. The answer of defendant to the claim for workmen’s compensation.

Examination of item 1, three paragraphs of the petition gingerly selected by defendant, will disclose that none of those paragraphs contains any allegation with respect to decedent’s contracting any specific ailment by reason of the described activities. It is manifest that item 1, standing alone, falls short of meeting the requirements of § 287.067 defining “occupational disease.” If a disease is simply not identified, it cannot be determined whether it measures up to the statutory standards.

It is true that the petition has other portions, upon which defendant carefully avoided placing specific reliance, which mentioned, in generalities, certain ailments which the decedent allegedly incurred by reason of his exposure to the conditions described in item 1. However, those allegations (which were denied in defendant’s answer, as were the allegations of item 1) need not be particularized because issues of material fact are generated by item 2, the deposition of plaintiff Louise Peer.

Although portions of that deposition constitute hearsay, the deposition was taken by defendant’s counsel, all of the information contained in it was elicited by him and defendant’s motion places specific reliance upon its contents.

The 65-page deposition is replete with testimony concerning the activities of the decedent in farming and milling operations prior to the inception of his employment by defendant. Those activities involved his exposure to various substances, poisonous and otherwise, including some of those mentioned in item 1. It cannot be said, on the instant record, that as a matter of law this evidence does not create a genuine issue of fact on whether or not decedent’s ailment (or ailments), whatever it was, appears “to have had its origin in a risk connected with the employment.” § 287.067, set forth in footnote 2.

Additionally the deposition contains a very complicated medical history of the decedent, commencing years prior to his employment with the defendant and continuing until his death in 1971, over three years after the inception of that employment.

Some of the physicians who treated the decedent did not “know what [decedent’s ailment] was or what caused it.” Although a few of the physicians did offer diagnoses, they were in conflict with diagnoses offered by other physicians. Decedent’s death certificate showed the cause of death to be an ailment other than those specifically mentioned in the petition.

The factual uncertainties generated by item 2 are not devitalized by item 3, the claim for compensation, or item 4, defendant’s answer to the claim for compensation. Defendant does not specifically refer to any of the contents of item 3. Those contents, at least to some extent, are inconsistent with portions of item 2. Those inconsistencies do not quench the flame of factual uncertainty but serve instead to feed it.

In item 4 defendant denied the allegations of item 3. Authority exists that the denials contained in item 4 are “a factor to be weighed in determining whether there are material facts in dispute in the summary judgment proceeding.” Becke v. Fred A. Smith Lumber Co., Inc., 9 Ill.App.3d 563, 292 N.E.2d 572, 576[9] (1973).

Until the factual uncertainties have been resolved the validity of defendant’s affirmative defense remains an open question. This court holds that the items relied upon by defendant do not constitute a showing “by unassailable proof” that defendant was entitled to judgment “as a matter of law.” Rule 74.04(h).

The judgment is reversed and the cause remanded.

HOGAN, TITUS, BILLINGS and MAUS, JJ., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969 V.A.M.S.

      . The legislative history of the occupational disease portion of the workmen’s compensation law may be found by examining two cases, Marie v. Standard Steel Works, 319 S.W.2d 871 (Mo. banc 1959), and Liebrum v. Laclede Gas Company, 419 S.W.2d 517 (Mo.App.1967). As Marie points out, occupational diseases were expressly excluded from the coverage of the original Missouri Workmen’s Compensation Act enacted in 1925. Occupational disease coverage was made optional by an amendment of the Act in 1931. Prior to 1959 the Act did not contain a definition of the term “occupational disease” but that term, according to Marie, 319 S.W.2d at p. 875, “acquired by judicial construction a well-established meaning in this state,” which is there set forth. As Liebrum points out, 419 S.W.2d at p. 520, a statutory definition [§ 278.067] was enacted in 1959. At p. 521 of Liebrum the court specifies what portions of the statutory definitions of “occupational disease” were included in the term as it was previously defined by judicial opinion.
      Section 287.067 reads, in pertinent part:
      “1. In this chapter the term ‘occupational disease’ is hereby defined to mean a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this section. A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind upon consideration of all the circumstances a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

      . In Staples v. A. P. Green Fire Brick Company, 307 S.W.2d 457, 462 (Mo. banc 1957) the court said: “We hold, therefore, that in so far as it concerns deaths from occupational disease the term ‘accident’ must be construed as including a compensable disability resulting from occupational disease and causing death. The ruling announced might be equally applicable to ‘accident’ as applied to compensable disability from occupational disease, without death, but such a ruling is outside the scope of the issues actually before us.”

      . Those paragraphs read:
      “3. Decedent was employed by the defendant in 1967 and thereafter performed a variety of duties for the defendant in the course of his employment. Among many other duties, he was required to constantly check the quality and uniformity of pellets produced by the defendant. This particular duty required him to personally handle literally millions of pellets and exposed him to a variety of dangerous chemicals, drugs, poisons and other substances and to the fumes, gases and dust from such perilous materials.
      “4. As a part of his regular work assignment, decedent was required by the defendant to come into close, immediate and constant contact with, and to breathe the fumes, gases and dust from a great variety of dangerous chemicals, drugs and other substances used in defendant’s work process and in the manufacturing of various of the defendant’s products. The chemicals, drugs and other substances include, among other things, the following:
      “Calcium carbonate, Di calsium phosphate, Cobalt carbonate, Cupperic oxide, Ferric oxide, Mannesium oxide, Manganese oxide, Zinc oxide, Sodium chloride, Iodine compounds, Ethylene diamine, Dihydro iodide, Arsenical acid, Niacin Streptomycin, Neomtcin and Piperozzi-nedihychloride.
      “5. Defendant required the decedent to work in its two plants without protective clothing or face masks and without taking any precautions to prevent decedent from touching, breathing, coming in contact with or otherwise having to work with dangerous materials in highly polluted areas. Defendant knew or should have known that the various milling devices, hoppers, feeders, pressure lines, other machinery and equipment used in its plants were so grossly unprotected that anyone working therein or thereabout would be exposed to the dangerous, harmful and deadly substances used by defendant.”


author: PER CURIAM.

text:
    Lloyd Edward ADAMS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28912.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Appellant was convicted by jury December 4, 1974 for first degree robbery. Sentence was affixed at fifteen years. Appellant’s conviction was affirmed on direct appeal, State v. Adams, 531 S.W.2d 763 (Mo.App.1975).

Appellant then sought post conviction relief pursuant to Rule 27.26. In his motion, Appellant raised only one point:

“8(a) It was error for the trial court to admit into evidence of prior conviction of movant as he was greatly prejudiced thereby.”

This appeal was taken from the trial court’s summary denial of the motion. The denial was based upon two points:

1. issue should have been raised on direct appeal.
2. prior conviction would have been admissible to impeach Appellant’s credibility and such evidence was brought out by defense counsel in anticipation of possible impeachment.

Appellant’s brief alleges ineffective counsel at the time of the denial of the motion under Rule 27.26. There being no such allegation in Appellant’s motion, this question is not reviewable by this court. Lockhart v. State, 548 S.W.2d 291 (Mo.App.1977); Shubert v. State, 518 S.W.2d 326 (Mo.App.1975); Schleicher v. State, 483 S.W.2d 393 (Mo. banc 1972).

Rule 27.26 is self-containing as to review of error, findings, conclusion and judgment of trial courts. The question of ineffective counsel was never before the trial court and cannot be permitted to serve as a basis of appeal from the trial court’s order.

Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) does not control here because it is prospective only.

The order of the trial court is affirmed.


text:
    Charles W. BURKS et al., Respondents, v. Ammon BEEBE et al., Appellants.
    No. KCD 29438.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    James A. Christenson, Independence, for appellants.
    Cedric Siegfried, Robert J. Wise and James Russell Ford, Independence, for respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Respondents’ action for damages for breach of contract arising from purchase of a ten acre parcel of land. Case tried without jury and trial court awarded' Respondents $1,800.00 in damages.

Parties entered into an agreement whereby Appellants agreed to sell and Respondents agreed to purchase a parcel of land. A written agreement was entered into the record without objection. Said agreement contained the following language, “ * * * all trees that have been cut preparatory to building a dam and constructing a lake site will be removed at no extra cost to property owner.”

Appellants collectively are a partnership and their negotiating partner, one Allan Van Tuyl, died after date of the contract, but prior to trial. Appellants denied that the action of the deceased partner bound Appellants to this part of the contract. From the record, it is apparent the parties discussed the trees on various occasions, but the matter remained unresolved.

Respondents then proceeded to remove the trees, encountering the cost of a tractor, the cost of its repair, a tractor scoop and chain saws in the total sum of $1,235.95. In addition, Respondents testified to expending 2,000 man hours of labor. Respondents claimed damages in the sum of $1,800.00, which were awarded by the trial court.

On May 10, 1978, while said cause was pending on appeal, Respondents filed their motion for damages on account of frivolous appeal, to which Appellants replied on May 16, 1978. Points raised by Appellants, along with Respondents’ motion, are taken up together herein.

Appellants raise two points.

I
“The court erred in holding that a valid legal contract existed between Appellants and Respondents.”
II
“The court erred in granting judgment to the Plaintiffs-Respondents in the amount of $1,800.00. As such, judgment is against the greater weight of the evidence.”

Appellants’ brief violates Rule 84.04(d) on both points upon failure to specify why the trial court was in error.

As to point I, Appellants totally fail to say why the trial court erred in holding the contract in question, a legally valid contract. On point II, Appellants totally fail to say why the trial court erred in rendering judgment and that same was against the weight of the evidence. It is impossible, from Appellants’ brief, to ascertain whether their complaint is against the judgment as being excessive or whether, in Appellants’ view, Respondents were entitled to judgment at all.

The requirements of Rule 84.04(d) are mandatory, Bell v. Bell, 538 S.W.2d 733 (Mo.App.1976), and it is not the responsibility of the court to seine the argument portion of a brief or transcript on appeal to ascertain the whereins and whys of claimed errors. Griffith v. State, 504 S.W.2d 324 (Mo.App.1974).

In its entirety, the record herein fails to show any justification to set aside the lower court’s judgment, Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), and further, while it is true, pursuant to Rule 84.19, this court has authority to award damages for frivolous appeals, there was, by review of the record, no showing of bad faith by Appellants to warrant such action.

Appeal dismissed.

Motion for damages on account of frivolous appeal overruled.


text:
    Robert Leonard SHELLI, Appellant, v. Raymond Dale HAGAN, Respondent.
    No. 29476.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    H. George Lafferty, Jr., Kansas City, for appellant.
    Ronald R. McMillin, Jefferson City, for respondent; Carson, Monaco, Coil & Riley, P. C., Jefferson City, of counsel.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PER CURIAM.

There was a unanimous verdict for, defendant upon plaintiff’s claims of damage for personal injuries and automobile property damage which resulted from a rear end collision.

Plaintiff’s first point is that the trial court erred in excluding his testimony of his ownership of the vehicle he was driving. The point is ruled against plaintiff because the jury clearly found against him on the issue of defendant’s liability and thus did not reach the issue of damages. Plaintiff could not have been prejudiced by the exclusion of the testimony. Beesley v. Howe, 478 S.W.2d 649, 653 (Mo.1972); Lamb v. Heiligers, 582 S.W.2d 820, 824[4] (Mo.App.1975).

Points 2 and 3 relate to the giving of Instruction No. 4 concerning his contributory negligence. It is here contended that the instruction was not supported by the evidence, and that it failed to reference his conduct as being negligent to paragraph first of the instruction. Neither of these contentions were presented to the trial court in the motion for new trial, which contained with reference to Instruction No. 4, only this: “4. That the court erred in giving the converse instruction presented by the defendant based upon contributory negligence.” No reason for error is stated so that the trial court could be informed of it and take appropriate action at that level to correct the error by granting a new trial. The contended errors are not preserved for review. Rule 78.07; Chambers v. Kansas City, 446 S.W.2d 833, 840 (Mo.1969); Layson v. Jackson County, 290 S.W.2d 109, 113 (Mo.1956). It should be noted that counsel on this appeal was not trial counsel who filed the motion.

The judgment is affirmed.