author: CLARK, Judge.

text:
    STATE of Missouri, Respondent, v. Felix R. BEAVERS, Appellant.
    No. KCD 30144.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

Defendant was charged by information with the offense of tampering with a motor vehicle. He was tried before a jury, was found guilty and was thereafter sentenced by the court as a second offender.

As the sole point raised on this appeal, defendant contends that the trial court erred in failing to sustain his motion to quash the petit jury panel. Such motion, addressing the automatic exemption available to prospective jurors of the female gender, asserted a violation of the Sixth and Fourteenth Amendments to the United States Constitution in that defendant was denied his right to trial by a jury comprising a fair cross section of the community.

Defendant’s motion to quash the jury panel was filed November 30, 1977. The record reflects no action with respect to the motion until February 1, 1978. At that date, the case was called for trial and, in a colloquy in chambers before selection of the jury commenced, the court inquired of defense counsel if he desired to pursue the motion. Counsel informed the court that a transcript record from the case of State v. Bass was to be offered by stipulation as an evidentiary basis for the motion, but the record was not immediately available. In the interests of expediting the trial, defense counsel suggested that the issue of the jury panel infirmity be ruled against the defendant and that selection of the jury proceed.

The transcript on appeal includes no ruling by the trial court on the motion to quash the jury panel. Pursuant to Rule 81.12(c) and in the interests of appropriate disposition of this cause, this court of its own initiative has reviewed the trial court file, has identified therein an order by the trial court overruling defendant’s motion to quash the jury panel and has directed that the omission be corrected by the addition of such order to the transcript record.

Ruling on defendant’s motion was by minute entry preceding selection of the trial jury and, presumably, at the conclusion of the in-chambers conference described above. The order states: “The defendant’s motion to quash jury panel is taken up and no evidence being presented is overruled.”

The trial of the case proceeded to verdict and a motion for new trial was filed. Among other grounds, failure of the trial court to quash the jury panel was alleged as error and the constitutional grounds contained in the original motion were restated. Additionally, defendant offered and the court received the Bass case transcript. On March 20, 1978, the court overruled the motion for new trial reflecting, as to the constitutional challenge of the jury selection process, the then controlling decisional authority, State v. Duren, 556 S.W.2d 11 (Mo.banc 1977).

Although conceding that which has been repeatedly confirmed in the subsequent decisions of this court, obligatory reversal of convictions in Duren type cases where the constitutional defect in jury composition has been raised and preserved, the State argues here that defendant failed effectively to present the issue and, for lack of any evidentiary basis, the point is not available for consideration on appellate review. At the heart of the State’s contention is that circumstance, exemplified in the trial court’s minute entry, in which defendant’s motion was denied for want of any showing that automatic exemption to women from jury service had, as to the subject 'jury array, actually reduced female participation.

In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the court held a violation of the “fair-cross-section” requirement for petit jury sources to entail a three-prong test including a demonstration that a distinctive group in the community is proportionally underrepresented in the venires. Thus, it was noted that exemptions from jury service may permissibly result in some degree of over-or-under-inclusiveness but constitute a prima facie violation of the constitutional requirement when experience demonstrates a substantial threat that the pool of jurors is not representative of the community. The challenge to the jury array must in some manner show the actual effect of discriminatory selection in the composition of the jury pool from which the panel in issue was selected. This cannot be accomplished if the court has no evidence on the subject.

While defendant here did not offer evidence of the disproportionate female participation in Jackson County juries, such evidence was before another division of the same court as exemplified in the Bass transcript later filed and by stipulations of jury-wheel statistical data for the years 1976 and 1977 of which judicial notice may be taken from the records before this court in numerous other cases dealing with the same issue. The holding in State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979) controls and stands for the proposition that when justice requires, judicial notice must be taken of proceedings in other interwoven and interdependent cases. The constitutional and statutory policies granting automatic exemption from jury service to women in Jackson County and the consequent under-representation of women on juries is well and generally known from evidence in many similar cases. Judicial notice of such facts must be taken and supplies the factual data necessary to support defendant’s challenge by his original motion to quash the jury panel.

Yet another issue, however, remains. While defendant’s motion may not be held to have failed for want of statistical proof, the record nonetheless reveals that defendant sought no timé to perfect the evidentia-ry proof in furtherance of the motion, made no argument in support of or urged the merits of the motion and acquiesced in a perfunctory disposition of the constitutional question which the motion presented. In fact, it was defendant’s counsel who suggested to the court that the motion be denied so that the jury selection could proceed. On this record of trial, it is suggested that defendant must be deemed to have abandoned the motion and the point is therefore not preserved for appellate review.

Although the record here bespeaks of little if any advocacy of the jury array issue by defendant when the subject was procedurally ripe for contest, implication that the point was tacitly abandoned is refuted by a recognition of the state of the law as then perceived. At the date in question, February 1, 1978, trial courts in Missouri were bound by the decision of the Missouri Supreme Court in State v. Daren, supra, a circumstance which patently blunted the practical value of and the immediately prospective result to be obtained from pursuit at the trial level of motions asserting the jury question.

The then pendency of the issue before the United States Supreme Court, however, dictated that a motion be routinely offered to preserve the question despite the current situation which predetermined the motion disposition. Such climate amply explains the approach of defendant toward disposition of the motion in this case, an approach prompted not by any intention to abandon the point, but by a recognition that relief would be accomplished, if at all, through the then pending litigation seeking affirmance at the national level of the constitutional challenge to Missouri jury selection procedures.

Further dispelling any suggestion of abandonment by inference in this record are the statements by defendant’s counsel in the pretrial discussion which resulted in disposition of the motion as described above. While counsel did suggest the summary denial of his motion, he stated at the same time that the subject would be renewed in a motion for new trial at which time he anticipated presenting the Bass case transcript. Such in fact was done.

This case is to be distinguished from cases in which a point of error is ineffectively or imperfectly raised or, having been raised, is not preserved for review. Here, the motion to quash the jury panel was filed, it was ruled by the trial court, the point was reasserted in the motion for new trial and it has been briefed and argued on appeal. It cannot be successfully contended that the issue of underrepresentation of women in the jury array has, under this record, been waived or abandoned.

The State additionally argues that even if the motion to quash the jury panel may have been effectively presented and was not abandoned under the circumstances related, it must yet fail for want of proof of gender discrimination in the juries for the year of trial, 1978. In fact, the Bass case transcript belatedly offered at the hearing on the new trial motion contained statistics only for the year 1977 and was supplemented with 1978 data on June 27, 1978, some three months after disposition of defendant’s motion for new trial in the subject case.

This issue was resolved by the opinion of this court in State v. Coleman, 582 S.W.2d 335 (Mo.App.1979), where it was stated:

“We understand that [Duren v. State of Missouri, supra ] to mean that a jury selection system installed by law gender-discriminatory in method and gender-discriminatory by prolonged practice [the 1975 and 1976 base period proven in Du-ren] is deemed to continue until shown abated by the State.”

While Coleman applies the rationale of presumed gender discrimination continuing into the year 1977 by proof from the base years 1975 — 1976, there is no suggestion that change occurred in the petit jury selection process employed in the subject case. The precedents therefore require the assumption, absent proof to the contrary, that the incidence of discriminatory venires in Jackson County persisted into 1978, the year of trial of this case.

The judgment is «reversed and the case is remanded for a new trial.

All concur.

      . State v. John Henry Bass, Jackson County No. CR-77-1146, was employed as a vehicle for statistical proof of jury array and panel composition for the years 1976 and 1977 in Jackson County and was used in several Duren type cases to avoid repetitive proof. Although the Bass transcript was later supplemented to include data for 1978, such was not done until subsequent to receipt in evidence of the transcript in the subject case.


source: Caselaw Access Project

author: WASSERSTROM, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Daryl R. CARTER, Appellant.
    No. KCD 30259.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Gary L. Gardner, Asst. Public Defenders, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., and WEL-BORN and MURPHY, Special Judges.
   WASSERSTROM, Chief Judge.

Defendant appeals from convictions by jury of robbery, first degree, and rape. He assigns five points of error, the first of which has merit and requires reversal. To the extent that they are likely to recur on retrial, his other points will be briefly considered.

The determinative issue on this appeal is defendant’s contention that his motion to quash the jury panel should have been sustained because of the option given to women not to serve. This practice was held unconstitutional in Duren v. State, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

The State, however, argues that defendant waived this point by his failure to press for a ruling by the trial court on this objection, citing State v. Young, 534 S.W.2d 585 (Mo.App.1976) and similar cases. With respect to the handling of the motion to quash, the following constitutes all that occurred:

“THE COURT: This case is the first for trial today. We are now going to consider motions. The first motion I see is Motion to Quash Jury Panel, How about that, Mr. Rogers? Are you going to withdraw that, right?
MR. ROGERS: I wasn’t even aware it was filed. Apparently it was filed at the time of arraignment. There is no copy in my file. Was it signed by myself?
THE COURT: You signed it, unless somebody forged your signature.
MR. ROGERS: If it’s illegible, it’s got to be mine.
(Off-the-record proceedings).
THE COURT: By agreement, this particular motion is passed for the time being, and we will go to the Motion to Dismiss.”

The situation here differs markedly from Young and like cases and does not come within the reason for the rule announced in those cases. In Young, for example, the defendant moved to suppress identification testimony, and that motion could have been sustained depending on what was shown by the evidence. In the present case, on the other hand, the ruling on defendant’s motion to quash the jury panel was preordained and the trial court had no option but to overrule the motion.

That lack of choice followed inexorably from the ruling by the Missouri Supreme Court in State v. Duren, 556 S.W.2d 11, decided September 27, 1977, rehearing denied October 11, 1977. Although Duren was eventually reversed by the United States Supreme Court, the latter ruling did not come until January 9, 1979. Thus, the Missouri Supreme Court decision was in effect and binding upon the trial court when this case was tried in the spring of 1978. The Public Defender’s Office, which had tried Duren and also defended this case, obviously filed the motion to quash here solely to save the point in case the United States Supreme Court should rule Duren in their favor. Defense trial counsel could have had no hope of the trial court here sustaining his motion to quash, there was no real point in his pressing for a formal ruling on the motion, and the trial court was not deprived of any opportunity for an exercise of judgment when defense counsel failed to do so. The entry of an order on the motion would have been the sheerest of formality. The failure of defense counsel to insist on that ritualistic gesture should not be branded as an abandonment or incur the penalty of his client’s forfeiture of a constitutional right. It is enough under the present circumstances that the defense filed its motion to quash and preserved the point in its motion for new trial. The basic considerations underlying State v. Beavers, 591 S.W.2d 215, being decided concurrently herewith by another division of this court, apply also here.

With respect to this matter, the State also makes passing reference to defendant’s failure to introduce evidence in support of the motion to quash. In that connection, it acknowledges that State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979) holds lack of such proof not to be fatal, but the State expresses its disagreement with Hawkins. Despite the State’s nonacquies-cence, we adhere to our ruling in Hawkins. See also State v. Beavers, supra.

Defendant’s second assignment of error is that a shotgun was improperly admitted into evidence, because (according to defendant) that shotgun was obtained by the police as the result of an illegal search and seizure. The pertinent facts are that the police stopped and searched an automobile in which defendant was riding as a passenger. They opened the trunk of the car and there found the shotgun which is now in question. There is no need to detail or consider the various facts upon which the prosecution contends the police were entitled to make the search, nor to go into the reasons for which defendant believes the search to have been unjustified. This entire issue can be disposed of on the narrow ground that no matter how illegal the search may have been, defendant himself has no basis for complaint. He was no more than a casual passenger. He does not claim to have had any ownership or proprietary interest in the automobile searched or the property seized. He therefore had no reasonable expectation of privacy concerning the contents of the trunk of the car, and he may not raise any Fourth Amendment objection. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Shive, 585 S.W.2d 192 (Mo.App.1979).

Defendant’s next point is that certain laboratory reports should have been excluded on the ground that they constituted hearsay and that defendant was denied his right to confront witness Covey, who prepared the reports. The exhibits in question were admitted under the Business Records Act, § 490.660 et seq., RSMo 1978. In such situation, defendant cannot validly object that he was deprived of the right to confront the adverse witness. State v. Taylor, 486 S.W.2d 239 (Mo.1972); State v. Rhone, 555 S.W.2d 839 (Mo. banc 1977). Defendant candidly admits that those opinions rule contrary to his contention. Although he may believe those decisions to have been erroneous, this court is bound thereby.

Defendant next objects to the admission under the Business Records Act of a laboratory report prepared by Dale Trigg. His contention with respect to the claimed denial of confrontation is overruled in accordance with the ruling next above concerning the Covey reports. Defendant further objects to the Trigg report on the ground that Trigg’s qualifications as an expert were not adequately shown. The rule in this regard is that the trial court has a wide discretion in determining proper qualifications as an expert and that the necessary expertise may be acquired by practical experience as well as by academic training. State v. Rhone, supra. The evidence here does not show that the trial court abused its discretion. Trigg had worked in the police laboratory approximately three years and his duties included analysis of fingerprints, latent fingerprint examinations and photo developing. Furthermore, he had attended local schools on police laboratory methods and had received on-the-job training. One of his supervisors, who appeared in court as a witness, had observed Trigg’s work and had found his opinions and tests to be accurate. Defendant’s objection on this score is overruled.

Defendant’s final point relates to the prosecutor’s closing argument in which he commented upon defendant’s failure to call certain witnesses. This same matter is not likely to recur in the same context on retrial and therefore need not be discussed here. Attention of the prosecuting attorney and of the trial court, however, is called to the recent opinion in State v. Valentine, 587 S.W.2d 859 (Mo. banc 1979).

Because of the failure to quash the jury panel, the judgment of conviction is reversed and the cause is remanded for new trial.

All concur.


text:
    Charline M. FORSYTHE, Respondent, v. Arthur J. FORSYTHE, Appellant.
    No. KCD 30300.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    P. Wayne Kuhlman, Liberty, for appellant.

      Alvin D. Shapiro, Stinson, Mag & Fizzell, Kansas City, Conn Withers, Withers & Brant, Liberty, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and MURPHY, Special Judges.
   WASSERSTROM, Chief Judge.

On the original hearing of this dissolution of marriage case, the circuit court entered a decree which provided among other things for division of property between the spouses. From that decree, the husband appealed. This court reversed on the ground that five acres of land deeded to the parties as husband and wife by the wife’s parents and the proceeds therefrom were incorrectly treated by the trial court as separate property of the wife, rather than as marital property. Forsythe v. Forsythe, 558 S.W.2d 675 (Mo.App.1977). On remand, the circuit court held a new hearing and entered a new decree as to property division. The husband again appeals.

For his first point, the husband argues that the five acres and its proceeds should not have been treated as marital property, but rather should have been deemed a separate gift of one-half to each spouse. In support of that conclusion he cites Elmore v. Elmore, 557 S.W.2d 910 (Mo.App.1977). Elmore does not so hold.

In Elmore the wife’s parents had made a gift of property to the spouses jointly. Our opinion in that case pointed out in passing that no contention had been made that the joint character of the gift excluded the operation of Section 452.330.2(1) (all statutory references are to RSMo 1978), which exempts a gift to “either party” from the definition of marital property.

The proposition upon which the husband now relies was therefore never raised by the parties nor ruled by the court in El-more. That issue was, however, squarely raised and ruled by the opinion on the first appeal in this case which was decided some months after Elmore. No conflict exists between the Elmore decision and the one in this case on. the first appeal. The decision on the first appeal herein has become the law of the case. The husband’s attack upon that ruling, for which he successfully argued when he last appeared before us, totally lacks merit.

The husband argues as his second point that the property division by the trial court was unfair and unjust. The factors to be considered in the division of property upon dissolution of a marriage are set forth in Section 452.330. The weighing of those factors lies within the broad discretion of the trial court, which will be overturned only upon a showing of an abuse of discretion. Hilger v. Hilger, 570 S.W.2d 736 (Mo.App.1978); In re Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App.1978); Hebron v. Hebron, 566 S.W.2d 829 (Mo.App.1978).

The record has been fully reviewed and shows that the decree is supported by substantial evidence. The trial court did not improperly state or apply the law, and we are not left with a firm feeling that a wrong result has been reached. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). An extended opinion on this point would have no precedential value and this point is therefore ruled against the husband under Rule 84.16(b).

For his third point the husband complains of the allowance against him of attorney’s fees and costs on this appeal. He admits that “the allowance of attorney’s fees is within the discretion of the Court whose discretion thereon will not be disturbed except for an abuse thereof.” He argues nevertheless that the wife has received a substantial amount of property under the court decree and that she is therefore well able to pay her own attorney’s fees and costs. However, the wife’s need is only one factor to be considered in this respect, and we cannot say upon the evidence in this case that the trial court abused its discretion. Butcher v. Butcher, 544 S.W.2d 249, 257 (Mo.App.1977); Hahn v. Hahn, 569 S.W.2d 775 (Mo.App.1978); Hilger v. Hilger, supra.

Affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Goldie Mae (Thomas) SLOAN, Appellant, v. NORTH KANSAS CITY SECURITY PATROL SERVICES et al., Respondents.
    No. KCD 30309.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    Roy W. Brown, James W. Jeans, James R. Brown, Kansas City, for appellant.
    John C. Risjord, John L. Hayob, Niewald, Risjord & Waldeck, A Professional Corporation, Kansas City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   SHANGLER, Presiding Judge.

The plaintiff mother appeals from a judgment for damages for the death of her minor son intentionally inflicted by a security guard in the employ of the defendant North Kansas City Security Patrol Services. The jury returned an award of damages for the plaintiff mother. She appeals.

The son, with three other children, was detected one night by a security guard on the premises of the Missouri Solvents and Chemicals Company in the act of siphon-removal of Tuolene from a storage tank. That dangerous liquid, admittedly, had been purloined by some of them on other occasions, and was taken then for the purposes of inhalation. When taken in that manner, it induces a state of intoxication. The son was shot and killed when he failed to heed the warning of the guard to surrender.

The mother submitted her recovery to the jury on a theory of an intentionally-inflicted death. The mother appeals, not on the ground of inadequate verdict, but for trial errors: (1) that the court improperly overruled her motion for directed verdict on liability at the close of all the evidence, (2) that the court erred by submission of a damages converse for the defendant, and (3) that the court erred by submission of an instruction on mitigation of damages.

The first error, according to contention, was the failure of the trial court to-direct a verdict on liability, as requested, before submission. The pleadings admitted that the defendant intentionally shot and killed the son, therefore, the proof of liability was conclusively made. [MAI 23.02]. The error resulted, according to the plaintiff, because the instruction on that admitted issue was an invitation to compromise the amount of the verdict — as became evident by the nine to three quotient for the plaintiff. The contention of error relates to liability only and was rendered harmless by the jury verdict for the plaintiff as appellant. Tracy v. Vapotane Corporation, Inc., 510 S.W.2d 824 (Mo.App.1974).

The next contention, that the court erred in submission of a converse instruction on the model of MAI 33.04(2) which directed a verdict for defendant unless the jury believed the plaintiff sustained damage. The plaintiff contends that a mother is presumptively damaged, at least nominally, by the death of a minor child, so the converse was a misdirection. Whatever the merit of contention, the jury award was more than a nominal award, particularly in the perspective of the disputed proof beyond the $1475 cost of ambulance and burial. The jury found plaintiff suffered damage at the hand of the defendant and returned an award accordingly. Any error in the submission of the converse instruction was also harmless to the plaintiff. Kohler v. McNeary, 498 S.W.2d 796, 797[2] (Mo.1973).

The final contention is that the instruction on mitigation of damages because submitted separately for defendant somehow cast the greater prominence on that issue than on the aggravation of damages direction included in the damage submission for the plaintiff. The mitigation of damages submission was in the precise form of MAI 6.01. The plaintiff does not contend there was no evidence for the submission or that the model instruction is an error as a legal statement. The trial court gave both the aggravation and mitigation of damages submissions in the prescribed forms of MAI 5.03 and MAI 6.01. Those uses were applicable, and therefore mandatory. Bueche v. Kansas City, 492 S.W.2d 835, 840[4] (Mo. banc 1973).

The judgment is affirmed.

All concur.


author: KENNEDY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ray Gene STOUT, Defendant-Appellant.
    No. KCD 30354.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Kenneth D. Kyser, Moberly, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

The defendant Ray Gene Stout was convicted upon jury trial in the Circuit Court of Randolph County of the crime of kidnapping for ransom as defined by § 559.230, RSMo 1969. He was sentenced in accordance with the jury verdict to 25 years’ imprisonment by the Division of Corrections. From that judgment defendant has appealed to this court.

Appellant’s first point goes to the sufficiency of the evidence. We find that the evidence was sufficient to support the charge and verdict, and we rule this point against the appellant.

We here copy subsection (1) of § 559.230, RSMo 1969, under which defendant was charged: “If any person shall willfully, without lawful authority, seize, confine, inveigle,, decoy, kidnap, abduct, take or carry away by any means, or attempt so to do, any other person and attempt or cause such other person to be secretly confined against his will, or abduct for the purpose and with the intention of causing anyone else, to pay or offer to pay any sum as ransom or reward for the return or release of the other person or with the intention and purpose of requiring anyone to perform some specific act for the return or release of the other person, the person or persons so guilty of the' above mentioned acts or act, shall, on conviction, be punished by imprisonment by the division of corrections for not less than five years.” § 559.230(1).

We will now recount the evidence, all of which was presented by the state. The defendant presented none.

Sheila Jo Embree returned to her apartment from her employment as a realty office secretary at about four o'clock in the afternoon of Friday, December 23, 1977. At about 4:30 the doorbell rang. A man later identified as Marion Holloway was at the door. She admitted him to the house to use the telephone. He dialed a number and Sheila, sitting nearby, heard a busy signal. He then produced a small black gun, and forced Sheila to lie down on the floor. He wiped his fingerprints from the phone, using a towel from the kitchen. He tied Sheila’s hands behind her back and blindfolded her with tape.

Sheila heard a second person enter through the back door and heard them rummage through her purse. One of the two ran up the stairs of the townhouse apartment and shortly came back down. They whispered to each other but Sheila could not understand what they were saying.

The men then conducted Sheila out the back door to a car on the parking lot. She could see under the tape blindfold and recognized the grass and the parking lot gravel and knew where she was being taken. She was placed in the back seat of a two-door car. The two men got in the car, closed the door and drove out on the driveway. Sheila was lying down in the back seat in compliance with their instructions.

Sheila was able later, by reference to stops, turns, railroad tracks and road surfaces, to describe the route which the car followed out of the City of Moberly and, more vaguely, their trip through the countryside.

At length they turned into a house with a gravel driveway, off a paved or blacktop road. The car stopped and Sheila was led into the house. She was placed on a bed and was given a pillow and a green Army blanket. During all the time she was kept at the house and until her release, she was not allowed off the bed except to go to the rest room. At least one other person was in the house besides the two who had transported her there. Her captors ultimately proved to be three in number — Holloway, the defendant Stout, and a third man, named Sidney Allen Robb.

The next day in daylight Sheila was able to observe from under the blindfold several features of the room where she was kept— carpet, drapes, bed, electric heater, and the adjoining bathroom — which enabled her to identify the place later.

On Friday evening Sheila heard one of her two captors say, “We have got to go call Joe”. The voice sounded familiar. She heard the same voice twice the next morning, Saturday. She began to suspect that it was the voice of Ray Gene Stout. On Saturday afternoon she saw and recognized the defendant Stout through the blindfold.

Sheila Jo had been acquainted with the defendant Stout for a considerable period of time. He had worked for her father’s basement construction business at Sturgeon while she was still in high school before 1971, and until 1974. The defendant, his wife and son had come to her parents’ lake for picnics and fishing. Defendant and his wife came to Sheila Jo’s wedding in September, 1972. Although she might have seen the defendant once or twice since that time, it had been at least four years since she had seen him.

On Saturday evening the person she had recognized as Stout told Sheila Jo that “he came from a family where if his mother knew what he had done it would break her heart” and “where his brothers had given his parents a lot of trouble”. Twice he asked her if she recognized his voice, and she told him that she did not. He said he was from California. He told her she was being held for $25,000 ransom.

Later on that night the others, who had been absent from the house while Stout kept Sheila Jo under guard, returned to the house with the ransom money, overjoyed and excited. They divided the money in the room where Sheila was being kept. Holloway gave Sheila a $50 bill, explaining to her that that was in payment for the money they had taken from her billfold “plus interest”. The $50 bill was later identified as part of the ransom money.

Sheila was placed in the same car which was used to bring her to the house. Two of the men took her to a point near her parents’ house near Sturgeon and let her out of the car. At about 12:30 a. m. Sunday morning, Christmas day, she arrived at her parents’ house. She was in a disheveled and highly emotional state.

Dwayne Embree, husband of Sheila, and Joe Robinson, her father, testified to receiving a telephone call at the Embree residence in Moberly after Sheila’s disappearance on Friday evening. The call, taken by Joe Robinson, Sheila’s father, told him where he could find a note behind the buildings at his lumberyard in Sturgeon. Sturgeon is 16 miles from Moberly. They located the note, which was addressed to Joe Robinson and Dwayne Embree, and which named a ransom price of $25,000. The note said that they would receive later instructions by telephone where to take the money. The next evening Robinson received the call with the instructions. He was to take the “Tri-City Lake Road to the first curve, and I would find a Dr. Pepper bottle sitting in the road; for me to put the money by the bottle, and back my car back to the blacktop, head toward Centralia, and blink my lights twice, and drive on”. Robinson complied with the instructions.

The money, in a City Bank cloth bag, with the words “City Bank and Trust” written thereon, contained the money in $20, $50 and $100 bills. The cloth bag was placed inside a brown paper sack.

Sheila’s observations enabled her to locate and identify the house on Monday, which was unoccupied at the time they located it. Located under the mattress of the bed was $9,960 of the ransom money, and the cloth bag.

Other evidence showed that defendant Ray Gene Stout had rented the house where Sheila was kept, on December 19th, under the name of “Jack Beach”, and had paid $75 rent. With the help of witness Richard Bell, who had directed defendant Stout to this particular house, he had moved a wood frame bed into the house.

Witness Bell further testified that three or four days after Christmas he had received a call from defendant Stout at the Rámada Inn in St. Louis. Stout wanted a ride from St. Louis to Des Moines, Iowa. Bell declined to furnish him the ride, but on a second telephone call the next day Bell yielded to Stout’s importunity, and he and his wife went to St. Louis. They picked up Stout and “Luigi’ — shown to be Holloway — at the Ramada Inn. They started to Des Moines, but changed their minds and decided they would go instead to Quincy. Bell took them to the Holiday Inn in Quincy. On the St. Louis-Quincy trip Bell, asked defendant “if he really did it”. Defendant replied, “Yes”. Defendant also told another witness, at Quincy, that he was “running from the FBI ... for kidnapping and robbery and stuff” and that “we’re the ones that kidnapped that woman over in Moberly, I guess.”

Witness Bell said that at about the time he had assisted Stout to move the bed into the rented house, Stout “said something about he ought to go rob a bank or kidnap somebody”, but Bell did not take him seriously.

Sufficiency of the evidence.

Defendant’s challenge to the sufficiency of the evidence must fail, for the evidence is abundantly sufficient to support the accusation and the verdict of the jury.

Defendant here argues a theory that the victim, Sheila Jo Embree, was not an unwilling hostage, but rather was a co-conspirator with her ostensible abductors in a scheme to bilk her husband and father out of the ransom money. There is no scintilla of direct evidence to support this theory. Defendant points to the fact that Sheila Jo had come home to her apartment an hour earlier than usual on the afternoon of her abduction; that she was not abused by her captors, but was allowed to use her hairbrush and personal items, and was made as comfortable as circumstances would permit; and that $9,960 of the ransom money had been left in the house. He points out also that Sheila and her husband had been social acquaintances of the defendant in earlier years.

Of course, in determining the sufficiency of the evidence to support the verdict, we consider only the evidence and inferences therefrom, tending to support the same, and disregard all evidence, and inferences therefrom, contrary thereto. The jury was entitled to accept, as they did, the state’s construction of the evidence and to reject defendant’s theory. State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973); State v. Harris, 452 S.W.2d 577, 579 (Mo.1970).

Qualification of judge to order change of venue.

Defendant’s next complaint is that the case was transferred' from the Circuit Court of Randolph County to the Circuit Court of Cole County by order of the judge of the Randolph County Circuit Court. The motion for change of venue was filed by defendant on the grounds of “prejudice of the inhabitants of the 14th Judicial Circuit”, as it is described in the minutes. Defendant argues that the “inhabitants” include the judge, and that therefore the judge ought not to be permitted to select the venue to which the case should be sent.

Defendant cites no case supporting his position, and the described procedure is the procedure prescribed by Supreme Court Rule 30.01.

The point is disallowed.

Circumstantial evidence instruction.

Defendant’s next point is that the court refused his offered instruction MAI-CR No. 3.42. The instruction is the “circumstantial evidence” instruction.

Defendant states in his brief: “Admittedly, the general rule is that when the state’s case rests in part on direct evidence, it is not error to refuse an instruction on circumstantial evidence even though requested. However, when the state’s case rests wholly upon circumstantial evidence, the accused, upon proper request, is entitled to have the trial court instruct the jury on the collateral issue as to the effect of or weight to be given by the jury to circumstantial evidence. State v. Stevens, 467 S.W.2d 10, 25.” (Mo.1971).

Defendant correctly states the law. Here the state’s case consisted in substantial part of direct evidence of defendant’s guilt—that is, the testimony of Sheila Jo that she saw and recognized defendant as one of her captors, and the testimony of Jeffrey Dean Austin that defendant had stated to him that he was one of the perpetrators of the kidnapping of the woman at Moberly. In such a case, although the state’s case may consist partly also of circumstantial evidence, the circumstantial evidence instruction is not required to be given, though requested. State v. Collor, 502 S.W.2d 258, 259-260 (Mo.1973); MAI-CR 3.42, Notes on Use, n.2.

Defendant says, though: “It is unfair to deny the defendant the right to a circumstantial evidence instruction just because the state’s proof consists of direct evidence in whole or in part.” His argument is that the defendant had to rely upon the circumstantial rather than direct evidence for his- defense theory, and the defendant should therefore be entitled to the circumstantial evidence instruction. He cites no case for his position, and we are bound by the long established rule set forth above. The “presumption of innocence” and “reasonable doubt” instruction of MAI-CR 2.20, which were given here, adequately presented to the jury a background for defendant’s argument that circumstances shown by the evidence tended to show Sheila’s complicity therein.

Admission in evidence of report of scientific test, omitted from transcript.

Next defendant complains of the exclusion of a laboratory report prepared by witness Robert Neill, a special agent of the Federal Bureau of Investigation, who specialized in microscopic examination and comparison of hair, fibers and textile materials. He had examined the duct tape which had been used for a blindfold and had compared the same with tape on the windows, and had compared two portions of a pair of pantyhose. He apparently had a written report in his hand as he testified. Defense counsel took the report, had it marked as Defendant’s Exhibit No. 1, and offered it in evidence. It is referred to at one place as a “five or six-page report”. The report has not been made a part of the record and it is impossible for us to review it, to determine whether there was any error in rejecting it, and if so whether such error was prejudicial. Salsberry v. Archibald Plumbing & Heating Co., 587 S.W.2d 907 (Mo.App.1979); Elliott v. Richter, 496 S.W.2d 860, 864 (Mo.1973); State v. Davis, 237 Mo. 237, 140 S.W. 902 (1911). The court did tell the defense attorney he could use the report to cross-examine the witness, and the ruling only rejected the unedited report as a whole.

Miscellaneous complaints not preserved for review.

Defendant has added another point to his motion for a new trial and to his brief in this court. He says he was “denied due process of law” in several • particulars. None of the allegations state any grounds for reversal of the conviction. We will list them as they appear in defendant’s brief:

A. Defendant was transported across' the Missouri-Illinois state line without any extradition requirements being satisfied;
B. Defendant was deprived of his liberty through the use of an excessive bond in the amount of $200,000;
C. Defendant was presented to the magistrate judge while in handcuffs;
D. Defendant’s court-appointed attorney quit following the preliminary hearing, thereby requiring defendant to use an attorney for his trial who was not present at the preliminary hearing;
E. A prominent mid-Missouri criminal lawyer was appointed the defendant’s attorney, but without notice to said attorney or to the defendant, the appointment was withdrawn, thereby denying the defendant an attorney who had expertise in criminal law;
F. No record was kept of the testimony at the preliminary hearing of the defendant;
G. The deposition of Sheila Embree, the alleged victim, was retained by Sheila Embree until a few days prior to trial;
H. Witnesses were present in the courtroom during the preliminary hearing;
I. While in custody, defendant’s wallet was torn apart and all kinds of papers were taken;
J. Defendant was removed from Randolph County, Missouri, and transferred to Cole County, Missouri, without defendant being allowed to see his court-appointed attorney;
K. Defendant’s mail was read so that he could not write to his court-appointed attorney concerning his case.

These allegations do not comply with Rule 84.04(d) which requires that points relied on “shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous” (emphasis ours). They present nothing for review. Thummel v. King, 570 S.W.2d 679, 684-5 (Mo.banc 1978).

We have nonetheless considered them. They showed up for the first time in the motion for a new trial. Defendant on the hearing on the motion for new trial testified in their support, but the allegations were otherwise unsupported by the record. Allowing the truth of the allegations — and the credibility of the testimony was for the trial court, who could disbelieve it — there is no showing that any of the allegations could have prejudiced the defendant in the trial of the case. The point is without merit.

Conclusion.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    MODERN FARM SYSTEMS, INC., Respondent, v. John H. FERGUSON, Appellant.
    No. KCD 30415.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      C. Michael Fitzgerald, Fitzgerald & Fitzgerald, Warrensburg, for appellant.
    L. Stanley Braton, Warrensburg, for respondent.
    Before WASSERSTROM, C. J., Presiding, and WELBORN and BARNES, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Suit on promissory note. Trial court gave judgment for payee for amount sued for. Maker of note appeals.

Appellant John H. Ferguson was the operator of a farm supply business in Kings-ville, Missouri. He acted as a distributor of crop dryers and grain bins manufactured by respondent Modern Farm Systems, Inc., of Webster, Iowa. Near the end of 1974, Ferguson owed Modern some $19,000 plus on an open account for goods furnished Ferguson by Modern. Modern requested its salesman, Bragg Brown, to settle some disputes with Ferguson over items on the account and to get a note from Ferguson for the amount owed. After two or three months’ discussion with Ferguson, Brown obtained an eight-month note from Ferguson payable to Modern for $18,545.52, representing the amount shown on the account less credits of some $1,000 to which Brown agreed.

On April 27, 1976, Modern filed suit on the note, claiming that $12,163.69 was then due and unpaid on the note. Ferguson’s answer alleged payment of all sums due Modern under the note and agreement between him and Modern.

At the trial, the execution of the note Was admitted and defendant accepted plaintiff’s record of the payments on the note.

However, testifying in his own behalf, Ferguson stated that there were credits which he claimed had not properly been attributed to his account on the note. One of the items was for $691 charged for a stir-way. In this court, respondent has acknowledged that appellant is entitled to credit for this item and has consented to modification of the judgment accordingly. Ferguson also stated that on a shipment of bins which had been loaded on his truck by Modern employees in Iowa, the truck was overloaded and overturned, damaging the floors for three of the bins. When counsel for Modern objected to testimony regarding the amount of loss as irrelevant, the trial court sustained the objection and stated:

“Is there going to be some testimony, Miss Young, in regard to these damaged items that there was some agreement that he was to receive credit for them in some fashion? If there is not, why that, of course, is a subject for claim by this defendant against the plaintiff rather than — As I understand his answer, is that he paid the Note either by cash or by credit, and unless — unless there is some evidence that he’s got an agreement in regard to having credit, why that’s a subject of another proceeding, or counterclaim in this proceeding. It’s not pleaded as I understand.”

When counsel then asked Ferguson whether or not at the time the note was executed there was an agreement that “these amounts would be adjusted,” he replied:

“Uh, the only — the only, uh, agreement that I had on that was with Bragg. And he said he would help me move some of that stuff. And then, on that stir-way, he said he would get it fixed, and there wasn’t nothing done about it.”

Ferguson later stated that some items for which he had been billed $378.30 on a December 21, 1973 invoice had never been received.

On cross-examination, counsel for plaintiff inquired briefly about the alleged truck accident, generally eliciting that Ferguson’s knowledge of that incident was based upon what his driver had told him.

At the conclusion of the trial, the court announced its finding in favor of plaintiff. Ferguson objected that he was not being allowed credit which plaintiff had agreed to give him. The court stated that the credits pre-existed the note and should have been taken care of when the note was signed.

“ * * * The only questions that are raised in this lawsuit are how much is due and owing on this Note, and whether or not you have paid it. And from what I’ve heard you say, you haven’t paid it. What you are saying is that you are entitled to some credit for it, but you haven’t pleaded for any credits.

“What you have said in your pleadings is that it’s been paid, and I haven’t heard anything that says it is paid, so I don’t have any choice but to go ahead and enter judgment on the — on the Note.”

Judgment for plaintiff for $12,132.05, plus interest of $2,260.20, was entered May 15, 1978.

On May 30, 1978, new counsel entered his appearance for Ferguson and filed a motion to amend Ferguson’s answer to assert that defendant was never told that the promissory note would be in full and final settlement of all prior disputed items. He also sought to allege that Brown as agent for plaintiff had agreed to aid defendant in selling certain damaged items and had agreed that if they could not be sold without loss, additional credits would be allowed against the note; that the items were sold at a loss of $1,778.95. He also sought to amend regarding the stir-way. He also asked leave to assert a counterclaim for damages of $5,000 to Ferguson’s truck as a result of negligence on the part of Modern’s employees in overloading the truck. A motion for new trial on behalf of defendant was also filed.

All of defendant’s after-trial motions were overruled and he appeals.

Appellant’s first contention is that the trial court erred in refusing, upon the motion for a new trial, to open the judgment, take additional testimony, and enter a new judgment, such refusal amounting to an abuse of discretion because material evidence which might have affected the merits of the action was excluded as beyond the scope of the pleadings, although request to amend the answer was made by after-trial motion.

Basically, the contention is that appellant’s original counsel who filed an answer on behalf of appellant and withdrew before trial and trial counsel who did not undertake to amend the answer and who failed to make offers of proof when objection to Ferguson’s testimony was sustained ineptly presented his defenses of failure of performance or lack of consideration and also failed to assert possible set-offs which Ferguson had against respondent’s claim. Appellant relies upon Rule 78.01 as authority for the trial court to grant the relief which he sought in order to avoid a result which, according to appellant, “ * * * was possibly unjust and probably the result of ineptness on the part of defense counsel during both the pleading and trial stage of this case.”

Appellant acknowledges that his request was addressed to the trial court’s discretion.

“Civil Rule 78.01, V.A.M.R. vests trial courts with discretion to open the judgment in a court-tried case, take additional testimony, amend findings of fact or make new findings, and direct entry of a new judgment. Such action, however, is not favored and rests largely in the sound discretion of the trial Court. Absent a clear abuse of that discretion, the reviewing court will not interfere. Desloge v. County of St. Louis, 431 S.W.2d 126, 135 (Mo.1968).” Miller Land Company v. Liberty Township, 510 S.W.2d 473, 476[6] (Mo.1974).

No abuse of discretion has been demonstrated in this case. The court heard Ferguson’s vague claims for credit. None was specific except in the case of the stir-way and respondent has agreed that credit may be allowed for that item. Ferguson’s testimony about credit on the items damaged on the truck is quoted above. Obviously it showed no agreement that he was to receive credit as a result of the incident. On the “vertical main units” which he said were not received, he acknowledged on cross-examination that he was relying upon what his wife had “written down here.” “I’m not familiar * * * with the order or anything.” Ferguson acknowledged that adjustments were made in his account before he signed the note and that the items mentioned by him all arose prior to the note’s execution and were known to him at that time.

Without regard for possible problems under the parol evidence rule, there has been no demonstration that, had the trial court acceded to appellant’s request and permitted the amendment of his answer as requested, a different result in the outcome of the case would have been likely. Without a showing that evidence sought to be adduced upon a reopening of the cause “would substantially affect the merits of the action and perhaps alter the court’s decision” (Pride v. Lamberg, 366 S.W.2d 441, 445[3, 4] (Mo.1963)), no abuse of discretion is to be attributed to the trial court in refusing to reopen the case.

Certainly the trial court did not abuse its discretion in refusing to reopen the case to permit appellant to assert a counterclaim for damage to his truck based upon negligence. That would have injected a wholly new issue in the case, with no bearing upon the merits of respondent’s claim on the note.

Appellant’s second point relates in part to the stir-way and need not be considered. He also complains that the trial court excluded evidence of an “express agreement” between Bragg Brown and appellant on the grounds that testimony in that regard was beyond the scope of the pleadings, but that the court thereafter permitted cross-examination of defendant on such “express agreement” and, therefore, the matter was tried by consent so that the pleadings should have been considered amended to encompass the issue.

Appellant’s brief is not enlightening as to the subject of the “express agreement.” Appellant’s counsel did cross-examine Brown about an agreement to help Ferguson “move” inventory. Objection was sustained to the question as to whether or not Brown used this as an “inducement.” Ferguson’s direct testimony on the matter has been quoted previously. There was no cross-examination directed to it.

There was no trial “by consent” on the issue of an “express agreement.” Had there been, it would have been incumbent upon appellant, if he wished the trial court to consider evidence previously excluded on the grounds that the matter was beyond the pleadings, to call to the trial court’s attention the evidence previously excluded and later considered admissible. No such effort was made here and no error on the part of the trial court appears.

Appellant’s final complaint is that the trial court erroneously applied the law of account stated in ruling the case by refusing to consider evidence of an express agreement which, if it existed, would prevent an account stated from arising. In advancing this claim appellant relies upon statements of the court after it announced its intended judgment and Ferguson renewed his claim for credits. The court explained that the suit was on the note and that the only defense asserted was that the note had been paid, not that appellant was entitled to credit by reason of collateral agreements. The court also noted that there had been no pleading of failure of consideration as a defense. Clearly the court considered the action as one on a note and applied the law relevant to such a claim under the pleadings in the case before the court. Argument that the court applied the law of account stated finds no support in the record. Appellant’s further objection that the court allowed recovery on a non-pleaded theory of account stated is without merit.

In view of respondent’s acknowledgment that Ferguson is entitled to $691 credit on account of the stir-way, the cause will be remanded to the trial court for entry of a new judgment, allowing appellant credit for that amount plus interest thereon included in the judgment heretofore entered.

Reversed and remanded for entry of modified judgment.

All concur.


text:
    Donnie TOOMBS and Annie Toombs, Plaintiffs-Respondents, v. Floyd E. RILEY, Defendant and Third-Party Plaintiff and Respondent, v. JACK SIMPSON CONTRACTOR, INC., a Missouri Corporation, Third-Party Defendant and Third-Party Plaintiff and Respondent, v. Curtis E. ZWONITZER and Cora B. Zwonitzer, Third-Party Defendants and Appellants.
    No. KCD 30463.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    Channing D. Blaeuer, Cynthia A. Suter, Blaeuer & Suter, Moberly, for third-party defendants and appellants.
    J. David Collins, Macon, for Toombs.
    Rex V. Gump, Moberly, for Riley.
    Marion E. Lamb, Moberly, for Simpson.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   SHANGLER, Presiding Judge.

This appeal comes from an order to deny intervention to [second] third-party defendants Zwonitzer, the remote warrantors in a chain of title to certain real estate.

The plaintiffs Toombs sued one Riley for an adverse claim of title and occupancy of a portion of their land. Count I sought to quiet title to the land in the plaintiffs. Count II was for damages for trespass. Count III sought ejectment and damages. The defendant Riley answered that he held title to the land under warranty deed, and by third-party petition, made claim against his grantor, [first] third-party defendant Simpson, under the warranty of title of the conveyance, for indemnity for any recovery had by Riley. The trial court then granted the plaintiffs Toombs a separate trial of the issues on their petition. Thereafter, Simpson brought grantors Zwonitzers into the litigation as [second] third-party defendants for indemnity under the warranty of title of the conveyance to Simpson. The [second] third-party defendants moved to consolidate the actions or, alternatively, to intervene as defendants in the action by Toombs against Riley. The alternatives of the motion were denied and appeal ensues.

The [second] third-party defendants Zwonitzer assert intervention as of right to the original action. In the absence of a statute which confers unconditional intervention, to maintain such a right the applicant must show [Rule 52.12(a)(2)]: (1) an interest in the subject matter in which intervention is sought, (2) that ability to protect the interest will be impaired as a practical matter, and (3) that the interest of the applicant is not adequately represented by the parties. As intervention Rule 52.12(a) stood prior to the year 1972 amendment, the interest which preconditioned intervention of right was a “direct claim upon the very subject matter of the action [so that the] invervener will either gain or lose by the direct operation of the judgment.” State ex rel. Farmers Mutual Automobile Insurance Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 321[4] (banc 1954). The amended Rule 52.12(a)(2) rescripts the federal Rule 24(a)(2) and adopts its rationale: to. divert inquiry from doctrinaire principles of res judicata to practical considerations to determine the interest which qualifies for intervention. State ex rel. St. Joseph, Missouri Association of Plumbing, Heating and Cooling Contractors, Inc. v. City of St. Joseph, 579 S.W.2d 804, 806[3, 4] (Mo.App.1979); 7A Wright and Miller, Federal Practice and Procedure, Civil § 1908, p. 512 (1972). The interest for intervention under amended Rule 52.12(a)(2), therefore, is a practical direction for the disposition of litigation to encompass as many presumptively affected persons as may be compatible with the avoidance of multiple suits and the demands of due process. Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 700 (1967); State ex rel. Hughes v. Smith, 485 S.W.2d 646, 651[7, 8] (Mo.App.1972).

The pleadings and exhibits amply prove an interest for intervention. They show that Toombs seeks to quiet title to a portion of land encompassed in the Simpson grant to defendant Riley. The Simpson grant derives entirely from the Zwonitzers who, in turn, face liability for breach of their warranty of good title to Simpson from an adjudication for the plaintiffs Toombs. The intervention of the Zwonit-zers relates to the essential issue between the Toombs and Riley and so does not encumber that primary action but rather avoids an additional suit. The interest of the [second] third-party defendants Zwonit-zer for intervention is shown.

The second element for intervention under Rule 52.12(a)(2) — the effect the disposition of the action between the Toombs and Riley may have on the ability of the Zwon-itzers to protect their interest — is cognate to the first: the nature of their interest. 7A Wright & Miller, supra, l.c. § 1908, p. 495. A judgment for the Toombs against Riley does not bind the Zwonitzers on strict principles of res judicata, but such an adjudication effectively prevents them from the full impact of their proof that the title they conveyed was free from defect. In practical terms [which the rule enjoins be applied], exclusion from that primary action enfeebles the effect of evidence available only to the Zwonitzers. The legal consequence of admission evidence of a party-witness, for instance, becomes merely impeachment evidence of a non-party-witness. Furthermore, the stare decisis effect of a judgment for Toombs, affirmed on appeal, would impair the Zwonitzers as a practical matter from the advancement of their interest anew. Atlantis Development Corporation v. United States, 379 F.2d 818, 828[8, 9] (5th Cir. 1967).

The third element for intervention as of right remains — whether the Zwonitzer interest in the validity of the Riley title will be adequately represented by Riley. A “serious possibility” that the interest of the applicant may not be adequately represented suffices this requirement. Nuesse v. Camp, supra, l.c. 128 U.S.App.D.C. 182, 385 F.2d 704. The appearances are that the Riley defense of title coincides with the Zwonitzer interest. The two are potential adversaries, however, since the liability of the one derives from the liability of the other. In fact, the Zwonitzers are the last resort of liability of all predecessors in the chain of title. The absentee Zwonitzers, therefore, cannot be told to look for adequate representation to Riley, a putative opponent.

The third element of Rule 52.12(a)(2) allows intervention of right when the first two requisites are met — an interest shown and an impaired ability to protect that interest in the absence of intervention — “unless the applicant’s interest is adequately represented by existing parties.” The federal precedents hold that, where the first two requisites for mandatory intervention are met, the third element requires only the “minimal showing” that the representation “may be” inadequate. Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 (1972). The authoritative commentary on the federal practice, 7A Wright and Miller, supra, suggests even [l.c. § 1909, p. 521]:

[I]t seems entirely clear that the effect of this change is to shift the burden of persuasion. Before the amendment the in-tervenor had to satisfy the court that the representation of him was or might be inadequate. Now he is' to be allowed in, if the other conditions of the rule are satisfied, unless the court is persuaded that the representation of him is in fact adequate.

See, also, Nuesse v. Camp, supra, l.c. 128 U.S.App.D.C. 180, 385 F.2d 702. Whatever may be the true allocation of burden of persuasion on this element of the rule, the notes of the Advisory Committee on this clause of the rule report: “[T]he question of representation and its adequacy, released from specific connection with res judicata, is to be decided without fetishes of form and with due attention to the character of the litigation and to its condition at the time of the application to intervene.” The character of the litigation considered, the denial of intervention to the Zwonitzers was error. The essential litigation between the Toombs and Riley disputes the title to a portion of land which, if established according to the Toombs contentions, renders the successors in title — and ultimately the Zwonitzers — liable for breach of covenant of good title. That two of the counts of the Toombs petition are for damages for trespass, ejectment and damages does not alter the reality that title to a portion of the land conveyed through the Zwonitzers to Riley is the main subject of litigation. § 527.150, RSMo 1978; Lortz v. Rose, 346 Mo. 1212, 145 S.W.2d 385, 387[6-9] (1940). Thus, the claim for intervention rests on an interest in the very property which is the subject of the primary action. Such a conjunction of interests suffices for intervention as of right. Atlantis Development Corporation v. United States, supra, l.c. 829. Thus, the addition of the Zwonitzers will not encumber the original action with any extraneous issue. Their exclusion, on the other hand, raises “serious possibility” that their interest and ability to protect that interest may be seriously impaired.

The intervention Rule 52.12(a)(2) sub-serves the purpose that the Rules of Civil Procedure “shall be construed to secure the just, speedy and inexpensive determination of every action.” Rule 41.03. The denial of intervention to the Zwonitzers in the circumstances presented undermines that remedial objective.

The judgment is reversed with directions that the trial court enter an order for intervention.

All concur.

      . Rule 52.12(a)(2) prior to amendment:
      “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action

      . The intervention motion was ruled on the arguments of counsel. The record does not preserve these presentations, so there is no intimation what actual evidence the Zwonitzers propose.


author: WELBORN, Special Judge.

text:
    STATE of Missouri ex rel. William MACKLEY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri et al., Respondents.
    No. KCD 30466.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    Donald J. Quinn, Kansas City, for appellant.
    Arthur L. Conover, Deputy Gen. Counsel, Jefferson City, for respondents.
    Before WASSERSTROM, C. J., Presiding, WELBORN, Special Judge, and HOUSER, Senior Judge.
   WELBORN, Special Judge.

Proceeding for review of order of Missouri Public Service Commission ordering trucker to cease and desist from carriage of property for hire within the State of Missouri until he had obtained proper authority to do so. Circuit Court affirmed order of Commission.

The issue presented is whether or not the movements which precipitated the Commission’s order are interstate or intrastate.

Aileén Quirk & Sons, Inc., is a Missouri corporation engaged in the business of buying, warehousing and selling beans throughout the United States. Quirk owns two country elevators at which it purchases beans from growers. One is in Mitchell, Nebraska, the other at Lyman, Nebraska. Its sales office is in North Kansas City, Missouri. It has a warehouse there.

Generally, beans purchased at the country elevators are there cleaned and graded and packaged in 100-pound sacks. They are then transported by railroad to the North Kansas City warehouse. The transactions which gave rise to the Commission’s investigation, hearing and order involved four movements in 1974, of beans sold by Quirk to Banquet Foods and transported by William Mackley by truck from the North Kansas City, warehouse to Banquet’s food processing plant in Carrollton, Missouri, and four movements of beans sold by Quirk to Associated Grocers in St. Louis, likewise transported by truck from the North Kansas City warehouse to the St. Louis destination. Mackley had no permit issued by the Public Service Commission.

On February 26, 1974, a St. Louis food broker issued a Sales Memo for the sale of “ 4 truckloads 480 sax each 100 # U.S. # 1 Pinto Beans” to Banquet Foods Corporation at Carrollton, Missouri, for the account of Quirk. The sale was for deliveries through March, 1974. The price was $59.50 per cwt., with 1% cwt. carrying charge for deliveries after March, 1974.

The beans so ordered were delivered by Mackley by truck from the North Kansas City warehouse to Banquet in Carrollton. There were four shipments of 480 bags, each 100 pounds, on April 8, April 30, August 30 and September 16, 1974, by bill of lading from Quirk in North Kansas City to Banquet in Carrollton.

According to Paul Quirk, the beans involved had originally been shipped from the Nebraska elevator to Quirk by Union Pacific Railroad. Quirk identified two bills of lading, each for 1000 bags of beans, 100 pounds, dated January 25,1974, as covering the beans eventually sold to Banquet.

There was no documentary evidence of the transactions involving Associated Grocers. There was evidence that in those sales, the 100-pound sacks had been broken at the North Kansas City warehouse and the beans repackaged in 5, 10 and 25-pound packages. ,

According to Paul Quirk, they keep the beans they buy at the rural elevators as long as possible. Their purpose is to move the beans through the warehouse quickly. “We want our movement to be in and out, in and out. We don’t want them to stay there for a long period of time, * * *. So, we keep as few beans there as we can, but we’re always bringing them in, and they’re always going out.” “ * * * 90 to 95 percent of the beans that are brought in are pretty well spoken for, not necessarily by a sale, but in our mind and in our past experience, it will tell us that so and so should be ready for some beans.” Generally beans arriving at the warehouse receive a lot number which they retain until shipment so the identity of the beans is preserved in the warehouse.

Banquet usually placed orders for several truckloads at one time, but because of limited storage space at the Carrollton plant, they could handle only one truckload at a time, so Quirk would hold the beans and deliver them as requested, charging Banquet a warehousing fee.

Following a hearing, the Commission issued its report and order in which it coxi-cluded that “ * * * there is a sufficient break in the transit of Quirk’s product to terminate the interstate nature of the shipments, that the beans are not in transit while in the Kansas City warehouse, and that the subsequent shipments within the State of Missouri are intrastate in nature.” The Commission ordered Mackley to cease and desist from the carriage of property for hire between points within the State of Missouri until such time as he shall obtain proper authority to do so. The circuit court affirmed the order. This appeal followed.

The decisive issue.on the appeal is whether or not the transportation by Mackley of products from Quirk’s warehouse in North Kansas City to purchasers of beans in Missouri was a movement in interstate commerce. If so, respondents acknowledge that he need only obtain an interstate permit under Section 390.071. Otherwise, the Commission asserts that he must obtain a permit or certificate of authority under either Section 390.051 or Section 390.061, RSMo 1978.

Appellant’s major reliance on this appeal is upon the case of Kansas State Corp. Comm., et al. v. Bartlett & Co. Grain, 338 F.2d 495 (10th Cir. 1964); cert. denied 380 U.S. 964, 85 S.Ct. 1109, 14 L.Ed.2d 154 (1965). Bartlett involved efforts by the Kansas Corporation Commission to subject to its authority the transportation by truck of grain purchased by Bartlett from country elevators or other points in Kansas to River Rail Terminal Elevator operated by Bartlett, also located in Kansas.

“When the grain is delivered from the trucks at River Rail it is graded, tested, and deposited in a separate group of ‘truck’ bins, used only for such purposé. This trucked grain is held exclusively for resale to customers located outside Kansas. Later, after it is deposited in the bins, the grain is mixed and blended in order to maintain and improve its quality and to provide accurately classified grain to meet the specifications of appellee’s customers. During the harvest season truck shipments increase, but they take place during the entire year. The outbound shipments from River Rail proceed regularly throughout the year. While the appellee may have outstanding contracts for grain of certain grade and quality, no truckload or shipment is obtained to fill any particular outstanding contract.” Bartlett, 338 F.2d at 497.

In holding the movement to the terminal elevator to be part of an interstate activity, the court stated:

“ * * * It is well established that goods ultimately destined for shipment to another state acquire the character of interstate commerce as soon as they begin their journey, even though there is a temporary break in transit in the state of origin. However, this halt is an incident of the interstate movement. Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442; Chicago Board of Trade v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. The principle applicable in determining whether a shipment is one in interstate commerce was stated by this court in Wycoff Co. v. Public Service Comm’n of Utah, 195 F.2d 252 (10th Cir.): ‘If there is a continuing intent that the goods shall be transported until they reach a designated place, the entire transportation is a continuing one, notwithstanding that there may be a temporary stoppage enroute for a particular purpose.’ ” Bartlett, 338 F.2d at 497.

The court concluded:

“ * * * [I]n the present case there is a continuing intent that the grain remain in interstate commerce until it reaches its destination at some point outside of the state of Kansas, and thus the truck shipment with which we are here concerned is in interstate commerce.” Bartlett, 338 F.2d at 498.

The Commission rejected appellant’s argument, based upon Bartlett. Instead the Commission found the cases of Atlantic Coast Line R. R. v. Standard Oil Company, 275 U.S. 257, 48 S.Ct. 107, 72 L.Ed. 270 (1927), and Susquehanna Coal Co. v. Mayor and Council of City of South Amboy, 228 U.S. 665 (1913), more persuasive and concluded that, under those cases, there was a sufficient interruption in the transportation of the beans upon their arrival in the warehouse that further movement of them to Missouri destinations was an intrastate activity. The two cases relied upon by the Commission in its order are likewise the only two cases cited on this appeal by respondents.

Appellant argues that the “primary question” in this case is whether or not there was a sufficient break in the interstate transit of the beans while in the North Kansas City warehouse to make the movement intrastate rather than interstate in nature. Appellant argues that the testimony of the witness Quirk showed a “continuing intent” that the beans were to continue their interstate character until ultimately called for by the consignees. Appellant points to the witness’s testimony that the beans involved in the Banquet transaction came into the warehouse “specifically for Banquet on Banquet’s orders.” However, the documentary evidence showed that the beans were shipped from Nebraska a month before the Banquet, order was placed. In such circumstances, the Commission was not obliged to accept the witness’s testimony that the beans moved to the warehouse in order to fill an order previously received. The witness’s subsequent testimony that “90 to 95 percent of the beans that are brought in are pretty well spoken for, not necessarily by a sale, but in our mind and in our past experience, it will tell us that so and so should be ready for some beans” was likely more in line with the actual practice than were his assertions which were belied by the documentary evidence. Obviously any wholesaler who operates a warehouse from which the products he handles are moved to purchasers expects and intends that the products received at the warehouse will eventually move on in the distribution process. However, such a generalized intent is not the type of intent that will fix the nature of the movement of the goods from the warehouse.

Here the Commission did find that some shipments are made to Quirk’s warehouse after a sale by Quirk. However, it took note of the fact that a different method of transportation is utilized — rail from Nebraska to the warehouse and truck from the warehouse to the purchaser. It also took note of the fact of some processing at the warehouse — the repackaging of the beans in smaller packages in the case of the Associated Grocers transaction. The Commission also noted that some of the beans delivered to Banquet had remained in the warehouse for seven months.

In these circumstances, this court cannot say that the Commission’s conclusion that the interstate movement had ceased and the beans had come to rest in Missouri is unreasonable or unlawful. § 386.430, RSMo 1978.

This court does not consider the Bartlett case, the sole authority cited by appellant in order to carry the burden of showing the decision appealed from to have been erroneous, here controlling or persuasive. That case involved the preliminary intrastate transportation of grain, all of which was destined for ultimate interstate disposition. The interruption of the actual movement at River Rail was but a temporary interruption of the continuous movement of the grain in interstate commerce. Here, the actual interstate movement- of the beans had terminated. They were placed in the warehouse for distribution, some for purchasers in Missouri, some for purchasers elsewhere. There was a break in their movement. Although there may have been some general idea on the part of Quirk as to the ultimate destination of the beans, their course from the warehouse was not predetermined as was the case with the grain in Bartlett, all of which was disposed of outside of Kansas. On the facts, Bartlett is distinguishable.

Appellant’s second point on this appeal attacks the Commission’s order as vague, unlawful, arbitrary, capricious, unjust, unreasonable, in excess of statutory mandates, an abuse of discretion and an unreasonable burden on interstate commerce. The substance of the argument is that compliance with Missouri regulation will result in higher freight rates than would apply under the ICC commodity exemption for trucking of beans. That is a policy, not a legal, argument. Policy arguments are properly addressed to policy making agencies.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Cecil Mae JOHNSON, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Defendants-Appellants. Clifton BAILEY, Petitioner-Respondent, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Respondents-Appellants. Edward B. PARKER, Petitioner-Respondent, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Respondents-Appellants.
    No. KCD 30483.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Michael D. Hufft, Bruce E. Strauss, Kansas City, for Cecil Mae Johnson.
    Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for Division of Employment Security.
    D. J. Chatfield, Jefferson City, for Labor and Industrial Relations Commission of Missouri.
    James M. Smith, Legal Aid of Western Missouri, Kansas City, for Clifton Bailey.
    Robert E. Gould, Kansas City, for Edward B. Parker.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Cecil Mae Johnson, Clifton Bailey and Edward Parker filed claims for unemployment benefits. These claims were denied by the Commission because the claimants’ appeals from an adverse deputy’s determination were not timely filed. On appeal to the circuit court it was held the appeals were timely filed and the notice to Johnson of her appeal rights was sufficient.

The Commission has appealed from the finding that the claimants’ appeals were timely filed. Johnson appeals the finding, that the notice to her of her appeal rights was sufficient.

The Commission contends its rule authorizing service by mail of the deputy’s determination is valid and an appeal taken more than ten days after such notification is untimely. Johnson contends the court erred in failing to find the notice concerning her appeal rights was so deficient it denied her due process. Affirmed.

In the Commission’s appeal no question is raised concerning the merits of any of the claims for compensation. The only question raised is whether or not § 1.190, RSMo 1978 requires personal service on each of the claimants of the deputy’s determination finding them disqualified for benefits.

A deputy determined that all three claimants were disqualified to receive unemployment compensation and a notice of this determination was mailed to each claimant. The claimants each filed a notice of appeal more than ten days after the determination was mailed or received. The appeals were generally filed about a month after the notice of determination was mailed. When the appeals were filed, they were at first summarily denied on the basis they were untimely, but this decision was set aside and the appeals referee conducted a full hearing on the question of the timeliness of the appeal. The appeals referee then decided all three appeals were untimely and found that good cause for extending the time for appeal had not been shown, and, therefore, the deputy’s determination had become final. The Labor and Industrial Relations Commission dismissed the applications for review and thereafter all three claimants filed a petition for judicial review in the circuit court. The court found that § 288.070.4 does not specify the mode of service of the deputy’s determination upon a claimant and, therefore, § 1.190 requires either personal or abode service.

Laws 1974, p. 867, amended § 288.070.4 to read in part as follows:

Unless the claimant or any interested party within ten calendar days after being notified by the deputy of his determination files an appeal from such determination, it shall be final.

Section 288.070.4, prior to its amendment in 1974, provided:

Unless the claimant or any interested party within seven calendar days after the delivery of the deputy’s determination, or within seven calendar days after such determination was mailed to his last known address, files an appeal from such determination, it shall be final and benefits shall be paid or denied in accordance therewith.

From 1937 until the amendment in 1974, this section read as last quoted with the exception of changes in the number of days. With the amendment of 1974, the provision for mailing the notice of the deputy’s determination was eliminated.

Section 1.190 provides:

Whenever any of the statutes of this state require or imply that a notice shall be given to any person concerning or affecting any right, property, claim, duty, matter or thing of any character or na- . ture, unless the statutes expressly direct a different method of service, the delivery of a true copy of the notice to the person intended to be notified, or the leaving of a copy at his usual place of abode with some member of his family over the age of fifteen years, constitutes a valid and sufficient service of the notice.

Apparently after the amendment of § 288.-070.4 in 1974, the Commission adopted regulation CSR 10-5.020 which provided:

1. Notice of an initial claim and of a deputy’s determination shall be either-handed to the claimant and/or the interested party, or sent by regular mail. If the notice is sent by regular mail, it shall be deemed to be delivered on the date it is placed in the U.S. mail.
3. Notice mailed to the last known mailing address shall constitute proper notice.

The claimants contend that § 288.070.4 requires notice of the deputy’s determination be given but does not provide the mode or method of such service. They further contend that § 1.190 is designed to fill this void and requires personal or abode service to be made. The Commission contends that it may by regulation specify mail service under its power to fill in gaps in legislation since the statute requires notice but does not provide the mode.

In Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 141[1, 2] (Mo. banc 1974) the court stated § 1.190 “has been construed to mean that the method of service therein specified is mandatory and exclusive.” This means the legislature has filled the gap in § 288.070.4 by providing for personal or abode service when notice is required by any statute but the method of service is not directed.

It is well settled that a regulation may not conflict with a statute and if it does the regulation must fall. Indiana Employment Security Division v. Ponder, 121 Ind.App. 51, 92 N.E.2d 224, 228[3] (1950); 73 C.J.S. Public Administrative Bodies and Procedure, § 94, p. 415. Here the Commission purported by regulation to allow service by mail of deputy’s determinations when § 288.070.4 had been amended to eliminate the provision for service by mail. Since the deputy’s determination is still required by that section to be given to a claimant, but the method of service is not specified, § 1.190 requires the notice to be delivered personally to the claimant or at his usual place of abode to a member of his family over the age of fifteen years. The failure to specify the method of service in § 288.070.4 is covered by § 1.190, and, therefore, the Commission does not have authority to provide for mail service in clear contravention of § 1.190.

The court was correct in finding that because the claimants here had only been served with a copy of the deputy’s determination by mail they had not been properly served and, therefore, their notice of appeal was timely filed.

Johnson has appealed from the ruling of the court that the Commission gave adequate notice to her concerning her rights of appeal. The deputy’s determination mailed to Johnson contained a five-line statement near the bottom advising of the right to appeal. This notice stated in part: “If you believe this determination is incorrect, you may file an appeal at the office shown above, in person or by mail . . . . If you do not understand the determination and how to file an appeal, ask the deputy to help you.” Johnson contends the notice deprives her of due process of law because it is not, by character, size or placement on the page, as conspicuous as any other printed statement on the page. This sole complaint obviously raises no question as to the accuracy of the information contained in the notice.

The Commission contends this appeal should be dismissed because the question is moot since the trial court found in Johnson’s favor as to her right to appeal to the Commission and gave her another opportunity to file an appeal. It is not necessary to decide whether or not this appeal is actually moot because a well recognized exception to the mootness doctrine exists when a case presents an important legal issue of public importance which is likely to recur. State ex rel. Gas Serv. Co. v. Public Serv. Com’n, 536 S.W.2d 491, 493 (Mo.App.1976). Thus, even if this question is moot, it is a matter of public importance and the question will likely recur. Since both parties have briefed the matter, it should be decided.

The Commission concedes that a court may inquire if a decision of an administrative tribunal conforms to constitutional requirements. It concedes this would include a determination of whether or not the notice given concerning the right to appeal deprived Johnson of due process of law. The precise question presented here was decided in Walker v. Com., Unemployment Comp. Bd., 33 Pa.Cmwlth. 438, 381 A.2d 1353, 1354 (1978). The court there stated:

On the contrary, we have held that the right to due process of law does not even require an administrative agency to provide a party with notice of the right to appeal the agency’s decision when the agency or the Legislature, as in the case here, has provided a duly published procedure for a hearing or appeal after such order.

The right to appeal is provided in §§ 288.070, 288.190, 288.200 and 288.210. Under Walker when the statutes contain the procedure for appeal it is not necessary for the agency to give notice to a claimant as to the right and method of appeal.

Much the same reasoning in Walker was utilized in State ex rel. Anderson Motor Service Co., Inc. v. Public Service Commission of Missouri, 339 Mo. 469, 97 S.W.2d 116 (banc 1936). There an applicant for a permit was successful before the Commission over the opposition of intervenor competitors. One of the intervenors filed a motion for rehearing before the Commission and this was overruled. A writ of certiorari or review was then filed in the circuit court. The writ was issued and directed to the Public Service Commission and the Commission made return thereto. The applicant before the Commission was not named as a party in the circuit court proceeding and, in fact, did not receive notice of such proceeding. The court thereafter reversed the order of the Commission granting the permit to the applicant. When the applicant learned that the order granting its application had been overturned in the circuit court, it claimed it had been denied due process of law because it had not been notified of the action in the circuit court. The Supreme Court held the failure to name the applicant as a party in the circuit court action, or serve it with notice in the review proceedings, was not a denial of due process because the statute informed it of the complete review procedure in the circuit court. The court held the failure to give any notice in addition to that provided by the statute was not a denial of due process. This court is bound by the holding in Anderson which in essence is the same as in Walker. This court adopts the holding in ' Walker and holds the Commission was not required to give notice of the right and method of appeal because the statutes give notice of this right. If a failure to give any notice of the right to appeal does not constitute a deprival of due process a fortiori, a failure to give such notice in print size and placement in as prominent a position as other printing on the page would not be a denial of due process.

This holding that the Commission was not required to give any notice of the right and method of appeal should not be construed as prohibiting the Commission from continuing to give such notice.

The judgment reversing the order of the Commission and remanding the three claims to it for remand to the Division of Employment Security for hearing on the merits of the claims is affirmed. The judgment in favor of the Commission on Johnson’s claim of a denial of due process with reference to notification of her right to appeal is affirmed.

All concur.

      . All statutory references are to RSMo 1978 unless otherwise noted.

      . This claim does not challenge the validity of any statute or any provision of the constitution so jurisdiction is in this court. Mo.Const. art. 5, § 3, as amended.