author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    TRI-STATE MOTOR TRANSIT COMPANY, Respondent, v. NAVAJO FREIGHT LINES, INC., Appellant.
    No. 26619.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Lee E. Wells, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for appellant.
    John R. Cleary, Albert Thomson, Linde, Thomson, Van Dyke, Fairchild & Langwor-thy, Kansas City, for respondent.
    Before SWOFFORD, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by Navajo Freight Lines, Inc., from judgment for Tri-State Motor Transit Company against Navajo for $160,258.26 damages on Tri-State’s petition, and against Navajo on its counterclaim for $203,088.67 damages.

Count 1 of plaintiff’s petition alleged: that on March 7, 1960, plaintiff Tri-State and defendant Navajo entered into a trailer interchange contract whereby they agreed to exchange trailers on a trailer-for-trailer exchange basis; that Tri-State has in its possession sixteen of Navajo’s trailers, identified by number, which it received and acquired as a result of trailer-for-trailer exchanges with Navajo under the interchange contract; that under the agreement Tri-State is entitled to the use of such trailers; that Navajo has failed and refused to tender to Tri-State delivery of trailers in exchange for the designated trailers, and Tri-State is therefore, under the exchange agreement, entitled to continued use of the designated trailers; that Navajo has allowed the state licenses on such trailers to expire and has wrongfully refused to reli-cense the trailers in order to deprive TriState of their use; that as a result TriState has been deprived of the use of the designated trailers, has lost income and revenue, and is entitled to recover compensation from defendant. Plaintiff’s prayer on Count I was for $150,000.00.

Count II of plaintiff’s petition alleged: that during the period September 16, 1968, through October 15, 1968, Tri-State, at the request and instance of Navajo, acted as a participating carrier with Navajo in freight transportation; that Navajo received revenue for freight transportation in which TriState acted as Navajo’s participating carrier and has not paid Tri-State its share of the revenue although Tri-State has made demand of Navajo for such payment. Plaintiff’s prayer on Count II was for $13,-518.26.

Defendant’s answer to plaintiff’s petition admitted the contract in 1960 “wherein plaintiff and defendant agreed to exchange trailers”; it was otherwise a general denial.

Count I of defendant’s counterclaim alleged: that on October 10, 1968, Tri-State canceled the contract and is indebted to Navajo under the contract for use of Navajo’s trailers since termination of the contract, for which payment has been demanded by Navajo and refused by Tri-State. Defendant’s prayer on Count I was for $163,040.00.

Count II of defendant’s counterclaim alleged: that on or about April 11, 1968, pursuant to agreement with Tri-State as participating carrier in freight transportation, Tri-State received revenue for freight transportation in which Navajo acted as a participating carrier and Tri-State has failed and refused to pay Navajo its share of such revenue although Navajo has made demand for payment. Defendant’s prayer on Count II was for $3,833.67.

Count III of defendant’s counterclaim alleged: that Tri-State has in its possession sixteen trailers, as designated in its petition, belonging to Navajo, which Tri-State has failed and refused to return to Navajo although Navajo has made repeated demand for their return; that the value of such trailers is $45,000.00. Defendant’s prayer on Count III was for $45,000.00.

Plaintiff’s answer to defendant’s counterclaim was essentially a general denial; and, by way of reply, Tri-State quoted paragraph 4.4 of the trailer interchange contract, viz:

“A carrier acquiring use of a trailer from another on an exchange basis shall not be required to redeliver it to the carrier from whom received until such other carrier tenders redelivery of the trailer for which it was exchanged, and during the time in which it is ready, able and willing to redeliver such trailer for exchange but cannot do so because the other carrier is not able to return its exchanged trailer, it shall not be in default nor required to pay compensation for delay in returning such trailer”;

and alleged: that Navajo’s sixteen designated trailers in Tri-State’s possession were acquired on an exchange-only basis with Navajo; that Navajo has not tendered redelivery to Tri-State of trailers it received in exchange, or trailers in lieu thereof; that Tri-State, under the agreement, is not required to redeliver to Navajo the trailers in its possession, and is entitled to use such trailers without paying compensation until Navajo tenders to Tri-State redelivery of the trailers (or their equivalents) it received in exchange for said trailers.

Defendant’s opening statement contained the following recitals and admissions:

As to plaintiff’s Count I, “that before the trailer interchange agreement was canceled, * * * Tri-State ended up with 16 of Navajo’s trailers * * *. Now * * in some instances they did indeed give up a trailer at the time they received the Navajo trailer * * *. Normally it’s on a trailer-for-trailer exchange basis. You give the trailer, you interline, is what they call it, to another company and you get one back on a trailer-for-trailer exchange basis. * * * $10.00 per day * * * is the cost to rent a 40-foot trailer such as those that are involved in this particular instance * *.”

And as to plaintiff’s Count II, “We are not arguing that the revenue may well be owed to Tri-State in the sum of $13,000.00 but our argument is that Navajo is entitled to the $3800.00 approximately credit in connection with that revenue * *

The Trailer Interchange Contract was in evidence as plaintiff’s Exhibit 1. It is a form contract used in the trucking industry; and, as between Tri-State and Navajo, it was executed March 7, 1960. In addition to provisions of the contract mentioned in the pleadings, particular references were made to paragraph 4.1, viz:

“Interchange may be made on a trailer-for trailer exchange only as may be shown on the Trailer Interchange Receipt and Inspection Report * * *”;

to an addition to paragraph 5.5, viz:

“Trailer For Trailer Basis Only”;

and to paragraphs 1, 2, and 7, viz:

“1. The undersigned carriers enter into this agreement governing their relationship with respect to interchange of trailers, and to make this agreement operative respecting interchange of individual trailers will cause to be executed the Trailer Interchange Receipt and Inspection Reports hereinafter mentioned; provided, however, that no provision in this contract shall be construed to increase the legal liability of any party hereto. The term trailer as used herein shall refer to any load-carrying vehicle without power.”
“2. At the time of interchange an authorized representative of each carrier shall execute, in multiple copies as the carriers may require, a counterpart of the Trailer Interchange Receipt and Inspection Report attached hereto and made a part hereof. The Parties shall be bound by the notations on the Trailer Interchange Receipt and Inspection Report.”
“7. THIS AGREEMENT and said Trailer Interchange Receipt and Inspection Report shall constitute the entire agreement between the parties and no verbal amendment or modification thereof shall be permitted. This agreement may be supplemented or amended only by a written agreement.”

Clarence Richard Berry was an employee of Tri-State at its office in Joplin, Missouri. Tri-State also operates trailers under the names of Hughes, Park Hill, U.S.A.C., and DeTar. Mr. Berry kept the permanent records of Tri-State’s trailer interchanges between Tri-State and other companies. He defined a trailer interchange as a “swap of trailers,” and stated that Tri-State exchanged trailers with other companies on a uniform trailer-for-trailer basis which means that if Tri-State gave any other company a trailer, Tri-State would expect a trailer in return; if the other company initiated the exchange and gave Tri-State a trailer, the other company would expect to get a trailer in return. Some companies interchange trailers on a per diem basis where a charge is made rather than giving a trailer in exchange. Tri-State, but for a single exception, did not operate on the per diem basis.

Mr. Berry’s permanent record of trailer interchanges between Tri-State and other companies was by a “card record whereby any particular trailer we can show receiving from another company, what trailer we gave them for it, or what trailer we gave to another company, what trailer we received for it.” He prepared and kept such records himself. When Tri-State and Navajo interchanged trailers between themselves, neither required the other to deliver a specific trailer in exchange for a trailer from the other. Tri-State had in its possession sixteen Navajo trailers, Nos. 1119, 1136, 1145, 1246, 1251, 1295, 1325, 1369, 1431, 1442, 1450, 1472, 2023, 2123, 2228, and 7011. Exhibits 3 through 31 were Tri-State’s permanent record cards respecting the record of the foregoing Navajo trailers and trailers exchanged by Tri-State for such trailers. Mr. Berry prepared each of the records in the regular course of Tri-State’s business. He made entries on the card on or near the date shown for the entries, and he kept the records under his supervision and control. Over objection that the information recorded was based on other documents or sources not now available and, as such, hearsay and a secondary record, the exhibits were received as business records, the court observing that the objection went to the weight or credibility of the records as evidence rather than their admissibility as business records.

The information used to compile the records came via telephone memoranda, Telex messages, and interchange receipts. Most of such sources were not kept after the card record entry was made because the card became the permanent record. Mr. Berry did provide defendant with some 1900 interchange receipts from which information they contained had been transferred to the card record. By reference to his business records, Mr. Berry gave the date upon which each of the Navajo trailers in issue came into possession of Tri-State, the point where the interchange took place, and the trailer given Navajo by Tri-State in exchange for the designated Navajo trailer.

Mr. Berry stated that Tri-State was willing to deliver the sixteen Navajo trailers to Navajo “on an exchange of trailers, a trailer-for-trailer basis, the same way we received them. * * * if we just automatically gave them the sixteen trailers back and didn’t receive one, we would be sixteen trailers short.”

Beginning in January, 1969, Navajo quit furnishing license plates for the sixteen Navajo trailers in possession of Tri-State. By use of a per diem charge of $10 per day, excluding Saturdays, Sundays, holidays, and the first two days of interchange, all as per custom in the trucking business, Mr. Berry computed a total of 14,674 days upon which Tri-State lost the use of the sixteen Navajo trailers for want of license plates. The damage thus calculated was $146,-740.00.

Cross-examination of Mr. Berry adduced that the trailer interchange contract between Tri-State and Navajo was canceled October 10, 1968, and that the sixteen Navajo trailers were then in possession of TriState. During the term of the contract neither party made full compliance with provisions in the contract requiring that the carrier initially acquiring a trailer to return it to the terminal of the carrier from which received at the place of receipt. In practice, trailers were exchanged at any convenient place and were also given to companies other than the owner in exchange for any trailer in possession of that company. Neither did the parties adhere to the provision for execution of Trailer Interchange Receipt and Inspection Reports, although Mr. Berry was able to furnish Navajo some 1900 of such forms.

Considerable cross-examination of Mr. Berry was directed to the accuracy of the records he kept, particularly Exhibits 2 through 31, with Mr. Berry maintaining at all times that they were accurate, particularly in accounting for the trailer-for-trailer exchange resulting in Tri-State’s possession of the sixteen Navajo trailers.

Mr. Berry’s cross-examination also went into transactions between Tri-State and carriers other than Navajo in an attempt to show that “any time in these interchanges that Tri-State comes out ahead a trailer, this would enable them to use that trailer to interchange with numerous lines and end up with a Navajo trailer for which they are not entitled to a trailer in return * * *.” Upon objection that interchanges between Tri-State and any other companies were irrelevant to the issues of trailer-for-trailer exchanges between Tri-State and Navajo and whether such were even and in balance, defendant was permitted to inquire into records affecting specific interchanges between Tri-State and other companies “for the limited purpose of impeachment.”

E. S. Gordon was the vice president of traffic for Tri-State. Mr. Gordon stated that his company, as a part of its business, acted as a participating carrier in transportation of freight. In such operations, as pertinent here, shipments moved on government bills of lading and the destination carrier collected from the government. The initiating carrier would look to the carrier to whom it transferred a load of freight for the initiating carrier’s portion of the total charge. “ * * * it’s an agreement that whoever collects the charges [from the government] owes the other [previous] carrier.” If the charges are not collected by the succeeding carrier, such failure does not relieve that carrier of responsibility to pay the previous carrier.

By use of records, Exhibits 32-A through 32-P, Mr. Gordon described sixteen instances in which Tri-State was the initial carrier in participation with Navajo for delivery of munitions from various plants to the government at export sites on the west coast. In each instance, Tri-State, in keeping with the agreement covering collection of such charges, submitted its bill for its portion of the charges to Navajo. None of such bills was paid, demand for payment was made, and the total due was $13,518.26.

Cross-examination of Mr. Gordon involved a suggested credit of $3,838.67 due from Tri-State to Navajo. Such sum had at one time been credited to Navajo by TriState due to an error made by a rate clerk. The true amount due and claimed by TriState remained at $13,518.26.

Answers to interrogatories from TriState to Navajo admitted that Tri-State and Navajo acted as participating carriers in the sixteen shipments in question and that Navajo received the revenue for such shipments, all as shown on Exhibits 32-A through 32-P. Navajo also admitted it had not paid Tri-State its portion of such revenue. Also admitted by Navajo was its acquisition of license plates for the sixteen Navajo trailers in possession of Tri-State for 1968, 1969, and 1970, and that Navajo did not affix the plates to the trailers and did not deliver them to Tri-State.

Dennis P. Rago was vice president of line haul operations for Navajo Freight Lines, Inc. His company employed a “visual system” or daily inventory by terminal or movement of every trailer in its system. Around October 10, 1968, he made an unsuccessful demand on Tri-State to return the sixteen Navajo trailers in question. The demand was made upon Mr. Richard Berry. “He wanted a trailer [for each] in exchange.” Mr. Rago determined that Navajo had 59 Navajo trailers “off line” to Tri-State, and that Tri-State had 27 TriState trailers “on line” to Navajo, to conclude that there was an imbalance of 32 Navajo trailers in favor of Tri-State. Subsequent interchanges reduced the imbalance in his figures to sixteen trailers, and demand for reimbursement for the imbalance was made on a basis of $10 per day, exclusive of Saturdays, Sundays, holidays, and two days of each interchange, amounting to $169,920.00 at time of trial.

Mr. Rago’s company dealt with Tri-State alone on a trailer-for-trailer exchange basis; it dealt with all other companies on a per diem basis.

Cross-examination of Mr. Rago adduced that Navajo did not contend that it ever gave Tri-State a trailer for which Tri-State did not give Navajo a trailer in return. He agreed that when Navajo and Tri-State exchanged trailers it was on a trailer-for-trailer basis. He also agreed to the possibility that his calculated imbalance had nothing to do with trailer exchange between TriState and Navajo.

Charles Pettit was a vice president of United Transportation Investment Company, owner of 89% of Navajo Freight Lines, Inc. He placed the depreciated value of the sixteen Navajo trailers in possession of TriState at $29,335.00 and offered to transfer title to such trailers to Tri-State upon payment of such sum by Tri-State. The book value of such trailers on October 10, 1968, was $43,893.00.

With respect to the revenue claims arising from the participating carrier arrangement between the parties, Mr. Pettit stated that Tri-State once agreed to a credit to Navajo against Tri-State’s claim of some $18,000.00, but that conditions deteriorated and Tri-State ultimately refused the credit.

Tri-State’s Count I for loss of use of the trailers in question was submitted by its Instruction No. 8:

“Your verdict must be for plaintiff on Count I of the plaintiff’s claim for damages if you believe:
“First, plaintiff exchanged a trailer with the defendant for each of the sixteen Navajo trailers plaintiff has in its possession which were mentioned in the evidence, and
“Second, the defendant deprived the plaintiff of the use of the sixteen Navajo trailers, and
“Third, as a direct result of such deprivation the plaintiff sustained damage. (Not in MAI.)”

Tri-State’s Count II for charges as a participating carrier was submitted by its Instruction No. 4:

“Your verdict must be for plaintiff on Count II of plaintiff’s claim for damages if you believe:
“First, plaintiff acted as a participating carrier with the defendant in hauling the shipments of freight mentioned in the evidence, and
“Second, defendant did not pay plaintiff’s charges for plaintiff’s services in hauling the shipments of freight mentioned in the evidence, and
“Third, because of such failure, defendant’s contract obligations were not substantially performed, and
“Fourth, plaintiff was thereby damaged. (Not in MAI.)”

Tri-State’s instruction on damages was Instruction No. 6:

“If you find the issues in favor of the plaintiff on the plaintiff’s claims for damages then you must award the plaintiff such sums as you believe will fairly and justly compensate the plaintiff for any damages you believe it sustained as a direct result of the occurrences mentioned in the evidence. MAI 4.01.”

Navajo’s Count I for loss of use of the trailers in question was submitted by its Instruction No. 7:

“Your verdict must be for defendant on Count I of defendant’s counterclaim for damages, if you believe:
“First, plaintiff did not exchange a trailer with the defendant for each of the sixteen (16) Navajo trailers plaintiff has in its possession which were mentioned in evidence, and
“Second, the plaintiff deprived the defendant of the use of the sixteen (16) Navajo trailers, and
“Third, as a direct result of such deprivation the defendant sustained damage. (Not in MAI.)”

Navajo’s Count II for charges as a participating carrier was submitted by its Instruction No. 8:

“Your verdict must be for defendant on Count II of defendant’s counterclaim for damages if you believe:
“First, defendant acted as a participating carrier with the plaintiff in hauling the shipments of freight mentioned in evidence, and
“Second, plaintiff did not pay defendant’s charges for defendant’s services in hauling the shipments of freight mentioned in the evidence, and
“Third, because of such failure, plaintiff’s contract obligations were not substantially performed, and
“Fourth, defendant was thereby damaged. (Not in MAI.)”

Navajo’s Count III for deprivation of the trailers in question was submitted by its Instruction No. 9:

“Your verdict must be for defendant on Count III of defendant’s counterclaim for damages if you believe:
“First, plaintiff was not entitled to a trailer in exchange for each of the sixteen Navajo trailers plaintiff has in its possession which were mentioned in evidence, and plaintiff has wrongfully refused to return said trailers to defendant, and
“Second, because of such refusal, plaintiff has deprived defendant of said trailers, and
“Third, defendant was thereby damaged. (Not in MAI.)”

Navajo’s instruction on damages was Instruction No. 11:

“If you find the issues in favor of the defendant on defendant’s counterclaim for damages, then you must award the defendant such sum as you believe will fairly and justly compensate the defendant for any damages you believe it sustained as a direct result of the occurrence mentioned in the evidence.”

Forms of verdict were furnished the jury covering all verdict possibilities. The jury awarded plaintiff $146,740.00 on its Count I and $13,518.26 on its Count II; the jury found in favor of plaintiff and against defendant on defendant’s counterclaim. Judgment was entered accordingly.

Citing Begley v. Connor, 361 S.W.2d 836, 839[3—5] (Mo.1962), that the rule entitling a successful plaintiff to a favorable view of the evidence does not authorize either the trial court or the appellate court to supply missing evidence or give plaintiff the benefit of other than reasonable inferences, appellant’s Point I charges that Tri-State failed to make a submissible case in four specific respects:

Citing Boehm v. Kindle, 395 S.W.2d 284, 287[2-4] (Mo.App.1965), that a plaintiff in a suit on a contract must prove performance or show that failure to comply with its conditions did not work to disadvantage of the defendant, appellant contends (IA) that Tri-State failed to prove performance under the trailer interchange contract in that it failed to execute the Trailer Interchange Receipt and Inspection Reports at the time of interchange under paragraphs 1 and 2 of the contract or, if it complied with such requirement, it failed to offer such Trailer Interchange Receipt and Inspection Reports in evidence, and argues that proof of exchanges resulting in acquisition of Navajo’s trailers by Tri-State could be shown only by the appropriate Trailer Interchange Receipt and Inspection Reports.

The evidence shows that Tri-State did execute and keep Trailer Interchange Receipt and Inspection Reports. Mr. Berry used such as one of his sources in preparing his permanent record cards, Exhibits 2 through 31. After the permanent record was compiled, the information sources were no longer of value; however, he still was able to provide Navajo with over 1900 Trailer Interchange Receipt and Inspection Reports covering exchanges between TriState and Navajo. Navajo admitted in its opening statement that for business expedience, the parties, by custom, had modified the contract so that their trailers were exchanged with other carriers and for trailers owned by other carriers, and the form was therefore ineffective as a record of their business practice.

In such circumstances, provision for execution of the Trailer Interchange Receipt and Inspection Reports was waived by custom and practice between the parties; and breach, if so, of the provision would not affect Navajo’s obligation to provide licenses for the Navajo trailers which it supplied in trailer-for-trailer exchanges under the contract. Accordingly, it does not appear that any failure of Tri-State to keep and produce Trailer Receipt and Inspection Reports worked to the disadvantage of Navajo, Boehm v. Kindle, supra; and proof of interchanges between the parties resulting in acquisition of the sixteen Navajo trailers in issue by Tri-State was supplied by TriState’s permanent record cards, Exhibits 2 through 31.

Citing Tnemec Company v. North Kansas City Development Co., 290 S.W.2d 169, 174[4-6] (Mo.1956), that courts are strict in evaluating sufficiency of evidence warranting recovery of damages for loss of profits, appellant contends (IB) that the evidence failed to establish that Tri-State had been damaged by being deprived of the use of the sixteen Navajo trailers. Appellant argues that Tri-State merely proved that in the trucking industry the customary charge for use of a similar trailer was $10 per day, and that it must have shown that it could profitably have used the trailers before it is entitled to damages.

This concession of proof of the measure of damages, $10 per day, is consistent with other admissions by defendant, defendant’s own use of the same measure on its counterclaim, and the evidence that $10 per day excluding Saturdays, Sundays, holidays, and the first two days of interchange was the customary charge in the trucking industry. The evidence also shows that Tri-State could not use the trailers due to Navajo’s failure to supply them with license plates, and if Tri-State had no need for the trailers it would not have cared whether they were licensed. The interchange contract contemplated the use by Tri-State of the trailers in question and Navajo’s failure to license them caused Tri-State a loss of their use.

Plaintiff’s damages for loss of use (not loss of profits) was properly measured at $10 per day for the 14,674 days as calculated under the industry custom, and the case comes within the proposition in 22 Am. Jur.2d Damages § 155, p. 223: “Courts have approved several methods for measuring damages for loss of use. One method which has received wide approval is to award the rental, or, as it is sometimes called, the ‘usable’ value, of the property. Rental or usable value is the amount for which the property in question could have been rented on the market * * And recovery for loss of use is allowable even though no substitute vehicle is rented. Holmes v. Raffo, 60 Wash.2d 421, 374 P.2d 536, 541-542[6-7] (1962); Malinson Black, 83 Cal.App.2d 375, 188 P.2d 788, 791—792[12-14] (1948).

Citing Oonk v. Monarch Acc. Ins. Co., 199 S.W.2d 416, 419[3] (Mo.App.1947), that a plaintiff may not recover under a contract absent consideration moving between plaintiff and defendant, appellant contends (IC) that the evidence failed to establish that Tri-State exchanged a trailer with Navajo for each of the 16 Navajo trailers in TriState’s possession, and that Tri-State had a right to use such trailers. Appellant argues that Tri-State did not prove, as claimed, that it exchanged trailers on a trailer-for-trailer basis, and the mere fact that TriState is presently in possession of 16 Navajo trailers does not support Tri-State’s claim that it is entitled to a trailer in exchange for each Navajo trailer in its possession.

Mr. Berry’s testimony, supported by TriState’s permanent record of trailer interchanges, Exhibits 2 through 31, was that the 16 Navajo trailers were in possession of Tri-State and that their equivalent had been given in exchange to Navajo. Mr. Berry was able to and did give the date that each of the 16 Navajo trailers came into possession of Tri-State, the place where the interchange took place, and the trailer given Navajo by Tri-State in exchange for each such Navajo trailer. There is no evidence to the contrary.

Mr. Berry also testified that Tri-State was willing to return the 16 Navajo trailers to Navajo at such time as Navajo was ready to give Tri-State an equivalent trailer in exchange; and the trailer exchange contract provided that Tri-State had the right to use the trailers until the exchange occurred.

Accordingly, it may not be said that the evidence was insufficient for any reason advanced by appellant under Point IC.

Citing Staples v. O’Reilly, 288 S.W.2d 670, 673[1] (Mo.App.1956), that among the essential elements of a contract are mutuality of agreement and mutuality of obligation, appellant contends (ID) that the evidence failed to establish that Navajo was obligated to pay Tri-State’s charges for freight-hauling services in the instances when TriState and Navajo acted as participating carriers. Appellant argues that Tri-State, instead of seeking payment for its share of freight charges from the destination carrier who made or was to make collection from the government consignee, submitted its bills to Navajo; that Tri-State failed to show that Navajo agreed to act as TriState’s collecting agent, and neither did TriState show that Navajo had been paid and in turn failed to reimburse Tri-State for its share of the charges.

Tri-State’s claim under Count II arose from sixteen shipments of explosives under government manifests. Each involved three participating carriers with Tri-State acting as the initial carrier, Navajo as the intermediate carrier, and a third company as the destination carrier which collected or was to collect the total freight charge.

Mr. Gordon’s testimony, supported by Exhibits 32-A through 32-P, was that the initial carrier would look to the carrier to whom it transferred the load for the initiating carrier’s portion of the total charge under an agreement that whoever collects the charges pays the previous carrier, and that failure of the succeeding carriers in the participation scheme does not relieve a transferee carrier of its obligation to pay its transferor carrier. In accordance with the agreement, Tri-State submitted its bills to its transferee, Navajo, and some have not been paid. This was not disputed, and Navajo admitted it had received payment of Tri-State’s share of the charges; that it had not made payment to Tri-State; and Navajo was not arguing that the revenue of some $13,000 was owed to Tri-State.

Accordingly, Tri-State’s case on its Count II did not fail for insufficiency of evidence for any reason advanced by appellant under Point IC.

Appellant charges (II) that the court erred in admitting Exhibits 2 through 31 for reasons: A. The records and their contents were not the best evidence, Padgett v. Brezner, 359 S.W.2d 416, 422[3] (Mo.App.1962); B. The contents of the records constituted hearsay on hearsay on hearsay, Stewart v. Sioux City & New Orleans Barge Lines, Inc., 431 S.W.2d 205, 210-212[12—16] (Mo.1968); Baugh v. Life & Casualty Ins. Co. of Tenn., 307 S.W.2d 660, 666[6, 7] (Mo.1957); Winterton v. Van Zandt, 351 S.W.2d 696, 703[6, 7] (Mo.1961); Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692, 700[18] (Mo.1952); Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d 197, 201[7] (Mo.1969); C. The records and their entries were not made at or near the time of the event they reflect took place; D. The entries on the record constituted secondary evidence in that they were made from other records not in evidence, Pratt v. Missouri Pac. Ry. Co., 139 Mo.App. 502, 122 S.W. 1125, 1128 (1909); E. The records and their contents were inaccurate, were never verified with the original records and were so unreliable as to lack the necessary reliability to qualify their admission as business records.

Missouri’s Uniform Business Records as Evidence Law provides, Section 490.680, RSMo 1969, that: “A record of an act, condition or event, shall * * * be competent evidence if the custodian * * * testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The Act removes and renders ineffective the objection that the record constitutes hearsay in that the preparer may not be present for cross-examination. Although a record shown to comply with the Act is itself admissible, the Act does not make admissible any evidence which would be incompetent if offered in person. Stewart v. Sioux City & New Orleans Barge Lines, Inc., supra. For example, a hospital record of a patient is admissible under the Act, but a recital in the record that “Pt. [patient] states that * * * he * * * was told by a doctor he had a leaky heart,” was properly excluded as hearsay on hearsay, Baugh v. Life & Casualty Ins. Co. of Tenn., supra, 307 S.W.2d l. c. 666; a recital in a highway patrol report that a “car had been reported stolen to the Kansas City Police earlier in the day,” was excluded as hearsay on hearsay as contrasted to an offer of the Kansas City police record showing a report of theft of the car which would present a different situation, Winterton v. Van Zandt, supra, 351 S.W.2d l. c. 702. Similar examples and distinctions appear in Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., supra, and Hamilton v. Missouri Petroleum Products, Co., supra.

Mr. Berry did not quote any hearsay testimony, and his testimony shows that TriState’s record of trailer interchange between Tri-State and Navajo, Exhibits 2 through 31, was prepared by Mr. Berry, the employee in charge of keeping Tri-State’s permanent records of trailer interchanges; that the record was prepared in the usual course of business; that entries were made at or near the time of the event; that the record is kept under his control and supervision. He also described the sources of information, and produced some 1900 Trailer Interchange Receipt and Inspection Reports representative of one of the sources, and such reports were recognized in the agreement between Tri-State and Navajo as representative of an interchange of trailers between the parties. The trial court found admission of the records to be justified; defendant was permitted to cross-examine at length as to their credibility and reliability, and they did not contain hearsay statements as in the above citations of appellant.

Accordingly, it may not be said that the foundation for admissibility of Exhibits 2 through 31 as business records was not laid in compliance with the Act. Their admission was within the discretion accorded the court in such matters. Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 683[14] (Mo. banc 1959); Hicks v. Peniston, 480 S.W.2d 522 (Mo.App.1972). See, e. g.: Boland v. Dehn, 348 S.W.2d 603 (Mo.App.1961), where, even though plaintiff’s described method of booking was unusual, its sales tickets were shown to be not only its original book of entries but also its account book and admissible under the Act as business entries; Mutual Finance Co. v. Auto Supermarkets, Inc., 383 S.W.2d 296 (Mo.App.1964), where plaintiff’s ledger card, showing history of performance on account, identified by officer of plaintiff in charge of its office and the account in question, was admissible under the Act; Hancock v. Crouch, 267 S.W.2d 36 (Mo.App.1954), where an account book kept each day by plaintiff storekeeper was open to inspection by defendant owners and which showed the record of financial transactions, was admissible under the Act.

Appellant charges and argues (III) that the court erred (A) in excluding, except for impeachment purposes, evidence of trailer exchanges between Tri-State, Navajo, and other companies other than the exchanges whereby Tri-State acquired the sixteen Navajo trailers in question; and (B) in excluding testimony offered by Navajo through Tri-State’s vice president, George W. Carter, by which Navajo offered to prove that Tri-State could not have lost use of Navajo’s trailers for all the time claimed by Tri-State in that Tri-State was engaged in a suit with the Teamster’s Union alleging business interruption, and evidence offered to show the number of trailers operated by Tri-State in 1967 and 1968 and acquisitions by Tri-State from other companies so as to more than double its fleet of trailers.

The questions in this respect were whether Tri-State had exchanged a trailer with defendant for each of the sixteen Navajo trailers Tri-State had in its possession, whether Navajo denied Tri-State their use, and whether Tri-State sustained damage as a result of loss of use. See Instruction No. 3, supra.

As previously demonstrated, Tri-State’s records, Exhibits 2 through 31, constituted evidence showing that Tri-State did exchange a trailer for each of the sixteen Navajo trailers in Tri-State’s possession, and under the contract Tri-State was entitled to their use. It has been demonstrated also how Tri-State lost the use of the Navajo trailers through Navajo’s failure to license them for use, and that damages for such loss of use were properly measured at $10 per day for 14,674 days.

Whether Tri-State was out of balance in interchanges with other carriers is irrelevant. Tri-State had sixteen Navajo trailers for which, as shown, it had exchanged another trailer with Navajo. The general rule is that evidence “must be relevant to the issues and tend to establish or disprove them,” 29 Am.Jur.2d Evidence, § 251, p. 299; and “No precise and universal test of relevancy is furnished by the law but the determination of whether particular evidence is relevant rests largely in the discretion of the court, which must be exercised according to the teachings of reason and judicial experience,” 31A C.J.S. Evidence § 158, p. 431. Thus, e. g., it is improper to admit a defendant motorist’s speed on occasions other than that at the time of the incident in question, Taylor v. Schneider, 370 S.W.2d 725 (Mo.App.1963); and it is proper to exclude evidence concerning bad faith of a plaintiff landlord in obtaining possession of premises other than those now sought to be recovered in forcible detainer proceedings against present defendant, Radloff v. Penny, 225 S.W.2d 498 (Mo.App.1949).

Similarly, whether Tri-State was damaged as a result of business interruption laid to the Teamster’s Union is not relevant to Tri-State’s damages due to Navajo’s deprivation of Tri-State’s right to use the sixteen Navajo trailers.

Appellant charges the court erred (IV) in giving Instruction No. 3. Appellant contends that it was contrary to MAI, failed to hypothesize all elements necessary to recovery, submitted a theory of recovery on implied contract or quantum meruit instead of upon express contract, failed to require the jury to find any right in plaintiff to continue in use of the trailers or any corresponding duty and breach of duty of defendant to permit use of the trailers, failed to submit that plaintiff sustained any damage as a result of any breach of defendant, and was not supported by evidence.

Instruction No. 3 submitted Tri-State’s Count I against Navajo for loss of use of the trailers in question; and it has been demonstrated that Tri-State made a case on Count I. The instruction was, therefore, supported by the evidence.

Neither MAI “26.02 Verdict Directing-Breach of Bilateral Contract-Breach Sole Issue,” MAI “26.05 Verdict Directing-Quantum Meruit-Goods Furnished,” nor MAI “26.06 Verdict Directing-Bilateral Contract-Terms of Agreement in Issue (New),” is applicable to this case. Accordingly, the court gave Instruction No. 3 as “Not in MAI,” in which case the instruction “shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Rule 70.01(e), V.A.M.R.

The only issue under Tri-State’s Count I was whether Tri-State gave Navajo a trailer for each of the sixteen Navajo trailers Tri-State had in its possession. Instruction No. 3 required the jury to believe such to be the case before it could find for plaintiff; and it is not disputed that Navajo failed to license the trailers resulting in a loss to Tri-State of the right of use of such trailers. Instruction No. 3 submitted these matters briefly, impartially, free of argument, and without requiring findings of detailed evidentiary facts in compliance with Rule 70.01, V.A.M.R. See Instruction No. 2 in Hinkeldey v. Cities Service Oil Co., 470 S.W.2d 494, 496 (Mo.1971); Instruction No. 3 in Gottlieb v. Hyken, 448 S.W.2d 617, 619 (Mo.1970).

It also may be said that Instruction No. 3 is not a proper subject of appellant’s charges of error because Navajo made an identical submission of Count I of its counterclaim by Instruction No. 7, supra.

On the same grounds, appellant contends the court erred (V) in giving Instruction No. 4.

Instruction No. 4 submitted Tri-State’s Count II against Navajo for payment of Tri-State’s services in hauling freight as a participating carrier with Navajo; and, again, it has been demonstrated that TriState made a case, on Count II. As with Instruction No. 8, Instruction No. 4 was, therefore, supported by the evidence.

Also, as with Instruction No. 4, there was no applicable MAI; and with defendant’s admission that it owed Tri-State for the charges claimed, Instruction No. 4 submitted Tri-State’s Count II in compliance with Rule 70.01, V.A.M.R.

It also may be said that Navajo is in no position to claim error with respect to Instruction No. 4 because, as with Instruction No. 7, Navajo made an identical submission of Count II of its counterclaim by Instruction No. 8, supra.

“Without again repeating the arguments previously made,” appellant contends the court erred (VI) in giving Instruction No. 6.

Instruction No. 6 (MAI 4.01) was TriState’s instruction on damages and it is identical to Navajo’s Instruction No. 9 on damages. Consequently, Instruction No. 6 is free of appellant’s charges for the same reasons given with respect to Instructions 3 and 4.

Appellant contends (VII) that the court erred in failing to direct a verdict for defendant on Counts II and III of its counterclaim. Appellant argues that there was no evidence to refute its entitlement under Count II to a credit of approximately $3,000 against the approximately $13,000 damages claimed by Tri-State under Count II of its petition. Appellant argues that there was no evidence to support Tri-State’s right to retain possession of the sixteen trailers and, since there was thus no issue for the jury, a verdict should have been directed on defendant’s Count III for the undisputed depreciated value of the trailers.

Tri-State did not have the burden of disproving it owed the “credit” of $3,833.67 to Navajo; Navajo had the burden of proof that Tri-State owed Navajo any money. Tri-State, through Mr. Gordon, adduced that a prior admission that Tri-State owed such credit was a mistake, that a rate clerk erred in giving the credit, and that Navajo did not participate in the subject hauls. If believed, and the jury apparently did so believe, such evidence showed that TriState was entitled to the $13,516.26 claimed under its Count II and that Navajo was not entitled to the $3,833.67 claimed under Navajo’s Count III. There was thus a jury issue on Navajo’s Count II, and no error occurred for failure to direct a verdict in favor of Navajo on Count II.

Count III of Navajo’s counterclaim was founded on its allegation that Tri-State wrongfully possessed Navajo’s trailers and wrongfully refused to return them. It has already been demonstrated in connection with Tri-State’s Count I that Tri-State adduced evidence to show its entitlement to possession and use of the sixteen Navajo trailers. Accordingly, the court could not direct a verdict for Navajo on that issue.

Appellant’s Point VII makes another complaint of the court’s exclusion of evidence offered by defendant concerning trailer exchanges between plaintiff, defendant, and other companies. This has been ruled under Point III A and B, supra.

Finally, appellant contends (VIII) that the verdict is so excessive as to show bias, passion, and prejudice on the part of the jury and should be set aside. Appellant argues that the verdict is lacking in eviden-tiary support, and the jury’s willingness to award damages without proof is evidence of its bias and prejudice. See Hewitt v. Chicago, Burlington & Quincy Railroad Co., 426 S.W.2d 27, 32[8, 9] (Mo.1968).

There is nothing about this case to excite a jury and prejudice it against either side. The dispute concerned two trucking companies, both claiming to have been wronged by the other, and the jury resolved the dispute.

It has been demonstrated how the $146,-740.00 damages awarded Tri-State on Count I of its petition were supported. The number of days lost was calculated by customary practice, and both sides utilized the same per diem charge for loss of use of a trailer. And the only dispute with respect to Tri-State’s claim of $13,518.26 damages on Count II of its petition was whether it was subject to a reduction or credit of $3,833.67 sought by Navajo on Count II of its counterclaim.

Judgment affirmed.

All concur.

      . All counts are identified as they were renumbered at time of submission of the case.


source: Caselaw Access Project

author: ANDREW J. HIGGINS, Special Judge.

license: Public Domain

text:
    In re Trapp Children, Robert Emery TRAPP, DOB 1-9-68, et al. Appeal of Robert Emery TRAPP and Linda Mae Trapp, natural father and mother.
    No. KCD 27374.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.

      James L. Muller, Charles D. Wilson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellants.
    Morran D. Harris, Henry County Juvenile Officer, Clinton, for respondent.
    Before SWOFFORD, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from order and judgment terminating parental rights. §§ 211.441 to 211.-511, RSMo 1969, V.A.M.S.

On January 3, 1974, the Juvenile Officer of the 27th Judicial Circuit filed a petition for termination of parental rights on grounds that the natural parents, Robert Emery and Linda Mae Trapp had abandoned the children for more than one whole year; that they had willfully substantially and continuously from and since December 22,1972, refused to support said children or to render them necessary care and protection or demonstrate to the court their willingness or ability to do so; and on February 27, 1973, the Henry County Juvenile Court found that said children were deprived of proper support while in foster care due to the falsification of information on the part of the parents and the court ordered that the parents, “who are gainfully employed,” be made responsible for the financial support of said children in the amount of $198.00 per month or $66.00 per child, but have failed and refused to provide said support.

Hearing on the petition was accorded April 29, 1974. The evidence showed the following pertinent history and chronology preliminary to the year concerned by the petition to terminate:

August 10, 1972. Mrs. Trapp went to the Henry County Welfare Office where she talked with Mrs. Marilyn Whitaker, a caseworker, and requested information regarding public assistance. Mr. Trapp had been unemployed for some time other than occasional employment on Sundays at a filling station at $1.00 an hour. Mrs. Trapp was employed at Rival Manufacturing, but her doctor had advised that her fourth child was due at any time. Eligibility for Aid to Dependent Children and general relief was explained; and, since Mr. Trapp was employable, Mrs. Trapp was not eligible for either program and she was referred to a service worker, Mrs. Jones (Fritts). Mrs. Jones learned from Mrs. Trapp that “West Central” had been attempting to locate a job for Mr. Trapp, and that Mrs. Trapp would return to work after the baby was born.

September 8, 1972. Duane Edwin Trapp was born to Mr. and Mrs. Trapp at Golden Valley Hospital in Clinton, Missouri.

October 20, 1972. Mrs. Trapp reapplied for Aid to Dependent Children, representing that Mr. Trapp left her a few days before the baby was born, that his whereabouts were unknown, and that he had obtained his check at Clinton Packing Company September 5, 1972. Her immediate need was for food and she was given commodities.

October 27, 1972. Mrs. Trapp’s application for Aid to Dependent Children was approved at $158.00 per month. She subsequently received checks in that amount for November and December, 1972.

November 2, 1972. Mrs. Trapp went to the welfare office where she talked to Bill Edmonds, a caseworker. She was seeking food for her family and medical attention for the infant child, Duane, who was having trouble digesting his food. Mr. Edmonds procured a grocery order, followed her to her home in Montrose, and brought Mrs. Trapp and Duane to the hospital in Clinton. The child was seen by a doctor on the complaint of inability to retain food. The doctor prescribed medicine for dehydration, after which Mr. Edmonds returned Duane and his mother to the home. Mr. Edmonds noted the home as a 4-room house that had been condemned for construction of the Truman Reservoir, sometimes used as a hunting cabin. It was heated by a Coleman heater. The baby was in cardboard box bed on a divan, there was very little furniture, and there were several dogs present. The weather was beginning to turn cold; the three older children were dressed in shorts. Water supply was a nearby stream. The three older children were ostensibly in the charge of a man identified by Mrs. Trapp as an “uncle.” Subsequent confrontation with Mr. Trapp revealed the true identity of the “uncle” as Mr. Trapp.

December 15, 1972. Mrs. Trapp presented the oldest child, Robert Emery, to the emergency department of the Clinton hospital. He had been ill for two weeks, but Mrs. Trapp had not been aware of any pneumonia until she took him to the hospital. She had been unable to go sooner due to impassable roads. Examination by Dr. James C. Coleberd, the Trapp’s family physician, revealed a severely dehydrated child who was very lethargic. The admitting diagnosis was acute pneumonia, dehydration. The dismissal diagnosis was streptococcal pneumonia in both lung fields. He was otherwise normal, but his condition was critical, life threatening. Dr. Coleberd acknowledged that it is difficult for a lay person to distinguish dehydration as a se-quela of pneumonia in its onset from less serious maladies, such as chest cold or benign fever. Dr. Coleberd saw the three younger children in December, 1972, and found them in normal health and good condition. Dr. Coleberd notified authorities of his feeling that Robert was a neglected child.

December 19, 1972. The juvenile officer filed a petition under Section 211.091, RSMO 1969, V.A.M.S., alleging that the parents legally responsible for the care and support of the Trapp children had neglected and refused to provide them proper support, education, medical, surgical and other care, that they were otherwise without care, custody or support, and that their behavior, environment, or association was injurious to their welfare, all as within the meaning of Section 211.031, RSMo 1969, V.A.M.S. The petition was served on Mrs. Trapp; service was not attempted on Mr. Trapp due to Mrs. Trapp’s position that her husband’s whereabouts were not known. Mr. Ed-monds, upon knowledge of Dr. Coleberd’s complaint, visited the Trapp home which was now in an isolated area east of Deep-water. Two men were present whom Mrs. Trapp identified as uncles. One of them was subsequently identified as Mr. Trapp. Mr. Edmonds went to the home to see if the children were in good health, and they were. They did not seem to be in any apparent danger. They were wearing underwear, but the house was warm. They were well fed and clean, and there was plenty of food. He recommended a further move closer to medical facilities, and the family subsequently moved to quarters at the Central Hotel in Clinton.

December 22, 1972. The juvenile court placed temporary custody of the children with the Division of Welfare pending hearing on the neglect petition January 2, 1973.

December (before Christmas), 1972. Robert Emery Trapp, the oldest child, was taken by the Welfare Department to Joplin Diagnostic Center for special treatment of speech and similar problems. The mother was hostile at this move because she was not allowed to accompany her son.

January 2, 1973. Hearing was accorded on the neglect petition with Mrs. Trapp and an assigned attorney present. The court found the children to be neglected within the meaning of Section 211.031, supra, made them wards of the court, and vested their care, custody, and control in the Welfare Department, all until further order. Mrs. Trapp was advised at the hearing by Mr. Edmonds that the welfare people tried to rehabilitate individuals when children are removed from their homes in hopes of preparing them for the return, and that the court was asking the Welfare Department for such assistance. Mr. Edmonds helped her with money and otherwise to move to the hotel in Clinton, and she obtained a job at Wiley’s Cafe. Mr. Trapp returned to Clinton after sustaining an injury and also was trying to secure employment.

Pursuant to the court’s order of January 2, 1973, the Welfare Department placed Sheryl and Dee Ann in the Daniels foster home in Deepwater, and Duane in a Bates County foster home. Robert was at this time in the Joplin Diagnostic Center, and was eventually placed in a Bates County foster home.

Representations by Mrs. Trapp to welfare workers in the fall of 1972 that Mr. Trapp had abandoned his family, admitted in evidence in the juvenile officer’s case, were untrue according to Mrs. Trapp’s testimony at trial. They were made in order to qualify for Aid to Dependent Children which program then had, as a prerequisite to eligibility, absence of the father from the home. Mr. Trapp visited Mrs. Trapp in the hospital when the baby was born in September, 1972. She visited him in Kansas City on at least two occasions, and she knew at all times how to reach him and that he would come to the aid of her and the children. Mr. Trapp visited the family when Robert went to the hospital December 19, 1972. The only estrangement was just pri- or to the baby’s birth. Mr. Trapp’s absence was in an effort to find work, and Mr. and Mrs. Trapp resumed living together January 27, 1973.

Mr. Trapp obtained a job driving a truck in Kansas City in September, 1972, but had to leave it a month or so later when he became sick.

Mr. and Mrs. Trapp both were unemployed at the time of the hearing on the neglect petition January 2, 1973, their Aid to Dependent Children payments were stopped due to the discovery that Mr. Trapp had not abandoned his family, and they still were unemployed when they resumed living together January 27, 1973. Sometime later Mrs. Trapp secured the restaurant job and Mr. Trapp was employed by Meyerco in Clinton in February, 1973.

On February 27, 1973, the juvenile court found that the Trapp children “were deprived of proper financial support while in foster care due to the falsification of information on the part of the natural parents of said children”; ordered the parents “who [were] gainfully employed, be made responsible for the financial support of said children in amount of $198.00 per month or $66.00 per child”; ordered the amount garnisheed from the parents’ wages by the Henry County Circuit Clerk; and ordered the parents to resume medical care of the children.

On March 16, 1973, Mr. and Mrs. Trapp filed a motion for rehearing in an effort to have custody of their children returned to them.

Also on March 16, 1973, execution was issued against Mr. and Mrs. Trapp under the order of February 27, 1973, and their employers were subjected to garnishment proceedings April 16, 1973.

On March 26, 1973, Mr. and Mrs. Trapp offered evidence on their motion seeking custody of their children. The motion was denied notwithstanding recommendation by caseworker Fritts that custody be restored to Mr. and Mrs. Trapp.

On April 23, 1973, Mrs. Trapp’s employer deposited $80.36 on garnishment of her wages, and the court ordered it paid to Henry County in reimbursement of monies paid out on behalf of the Trapp children. Judgment was rendered against Mr. Trapp’s employer upon its failure to respond to execution and, on May 23, 1973, $45.84 was paid into court. This sum was also ordered paid to Henry County in reimbursement of support monies paid for the Trapp children.

At the time of the garnishment, Mrs. Trapp was clearing less than $37.00 per week, and the $80.36 represented more than two weeks’ wages. The $117.64 for which judgment was entered against Mr. Trapp’s employer represented what he cleared every two weeks; however, only $45.84 was returned because that was all that was due him when his employment was terminated upon his arrest on April 16, 1973.

On April 14, 1973, Mr. and Mrs. Trapp were charged by information with stealing $86.00 from the Department of Welfare by fraudulent representations that Mr. Trapp was absent from the household when he actually was in the home in order to obtain Aid to Dependent Children. Mr. Trapp was arraigned April 16, 1973, and was committed to jail to await trial in lieu of $1,000 bond. Mrs. Trapp likewise was arraigned and committed April 27, 1973.

On May 18, 1973, the charge was amended to stealing under $50.00. Both Mr. and Mrs. Trapp pleaded guilty, were sentenced to a year in jail and placed on probation for two years conditioned upon good behavior and payment of costs within six months and payment of $474.00 to the Department of Welfare within one year. Upon their release, Mr. and Mrs. Trapp went to the welfare office, reported the terms of their probation, and renewed their request for return of their children.

Mr. Trapp worked for Royal Transports from June, 1973, to December, 1973, making $140 to $160 per week; and, in February, 1974, he went to work for Yellow Cab and, at the time of the hearing April 29,1974, he was making $500 per month. On June 28, 1973, Mr. and Mrs. Trapp initiated an effort through the Jackson County Welfare Officer to obtain return of their children.

During the foregoing period Mr. Trapp deliberately avoided giving information about his employment to avoid garnishment and loss of “everything we had.” He explained his failure to comply with the order of February 27, 1973, by his understanding that he and Mrs. Trapp were to re-establish a home after which their children would be returned to them. The caseworker indicated arrangements were proceeding satisfactorily; but when it came to restoration of the money, they were advised that the court required the money prior to return of the children. He made an offer on one final occasion while working for Meyerco to pay $50 on a balance of $69 “and to pay the balance next pay day.” They were never able to meet living expenses and accumulated overdue obligations and still comply with the court’s order. Mrs. Trapp earned less than $1,000 in 1973; together Mr. and Mrs. Trapp had an income of $7,300 in 1973.

Caseworker Edmonds acknowledged that Mrs. Trapp visited the girls in their foster home on a weekly or every-other-week basis. Mr. Edmonds did not know if she visited the baby in his foster home but, as a matter of policy, he did not tell her where the baby was for at least a month. He acknowledged that she made every effort to contact her children, and she missed one visit due to conflict with her employment. She saw Robert two or three times while he was in the Joplin Diagnostic Center, and in the welfare office upon his return to take him to Mercy Hospital in Kansas City for surgery. She later visited both boys in their foster placement. Mr. Trapp accompanied Mrs. Trapp on numerous visits.

Caseworker Joseph R. Brennan acknowledged that Mrs. Trapp had furnished some clothing as well as Christmas presents for the children.

Both Mrs. and Mrs. Trapp acknowledged their duty to support their children, expressed their love for their children, that they wished their return to them, that they never intended to abandon the children or forfeit their parental rights, that Mr. Trapp was working, and that they were ready, willing, and able to resume custody of their children.

At the time of trial, Henry County had paid a total of $2,726.24 for care of the Trapp children.

At the conclusion of the hearing, the court ordered, adjudged, and decreed that the parental rights of the father, Robert Emery Trapp, and the mother, Linda Mae Trapp, be terminated, and that their children, Robert Emery Trapp, Sheryl Ann Trapp, Dee Ann Trapp, and Duane Edwin Trapp, be in the care, custody, and control of the Henry County Welfare Department until further order, upon findings that: “ * * * such termination is in the best interest and for the welfare of each and every one of these children, and further because the following facts and conditions are found to exist by the Court: It appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition that; first, Mr. and Mrs. Trapp have for all practical purposes abandoned these children; secondly, Mr. and Mrs. Trapp have wilfully, substantially, continuously and repeatedly neglected the children and refused to give the children necessary care and protection; and lastly, that although Mr. and Mrs. Trapp were financially able during this period of time, they wilfully neglected to provide the children with necessary subsistence, education or other care when legal custody of the children was lodged with others; all as provided in Sections 211.441 through 211.511, Revised Statutes of Missouri.”

As pertinent to this case, Section 211.441, supra, provides: “The juvenile court may, upon petition filed as provided in other cases of children coming under the jurisdiction of the court, terminate all rights of parents to a child when it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist: * * *

“(2) When it appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition

“(a) The parents have abandoned the child;

“(b) The parents have willfully, substantially and continuously or repeatedly neglected the child and refused to give the child necessary care and protection;

“(c) The parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care when legal custody of the child is lodged with others; * * ⅝.”

A general finding that termination of parental rights is in the best interest of a child, in and of itself, is not sufficient cause to support an order of termination. Section 211.441, supra, also requires the petitioning party to meet the burden of showing one or more of the specific grounds. In re M.J.M., 483 S.W.2d 795, 797[1, 2], 798[11, 12] (Mo.App.1972).

Accordingly, the question in this case is whether there is “clear, cogent and convincing evidence” that for one year prior to January 3, 1974, Mr. and Mrs. Trapp (a) abandoned their children, or (b) “willfully, substantially and continuously or repeatedly” neglected their children, or (c) “being financially able,” neglected to pay for their support when their legal custody was lodged with others.

Abandonment within the meaning of Section 211.441.1(2)(a), supra, is a willful, positive act such as deserting the child, H.G.R v. Smith, 483 S.W.2d 779, 782 (Mo.App.1972); willful delivery of a child with intention that the severance be permanent, In re M.J.M., supra, 483 S.W.2d l.c. 797; a voluntary and intentional relinquishment of custody of a child to another with intent to never again claim parental rights or perform parental duties, In re Adoption of J_, 396 S.W.2d 257, 261 (Mo.App.1965).

The conduct of parents to constitute abandonment must have occurred during the year immediately preceding the filing of the termination petition. Abandonment may be repented and terminated within the period charged, and if resumption of the relationship is attempted in good faith, then the authority to terminate parental rights on that ground no longer exists. In re Adoption of J_, supra, 396 S.W.2d l.c. 262; T. H. v. Ambelang, 497 S.W.2d 210, 212 (Mo.App.1973).

There is nothing in this record to show that Mr. and Mrs. Trapp abandoned their children during the year immediately preceding January 3, 1974, the date the termination petition was filed. To the contrary, the petition alleges, and the evidence shows, that the children were not in their custody at any time after January 2, 1973, when the children were placed in foster care without their parents’ consent on a petition alleging neglect under Section 211.-031, supra. The evidence also shows that the parents visited the children frequently while in foster care and attempted, repeatedly, to have the children returned to them. The court, in its own questioning of Mr. Trapp, recognized that he “never in fact abandoned his wife and family.” The evidence further shows that caseworkers in the Department of Welfare, where temporary custody of the children had been lodged January 2, 1973, were working with Mr. and Mrs. Trapp toward restoration of their children’s custody to them. Such a move was recommended by the department caseworker in the attempt of Mr. and Mrs. Trapp to secure custody of their children at the hearing of March 26, 1973. See and compare H.G.R. v. Smith, supra; In re M.J.M., supra; T.H. v. Ambelang, supra; D_ J_ A_ v. Smith, 477 S.W.2d 718, 720[3] (Mo.App.1972); S.K.L. v. Smith, 480 S.W.2d 119, 124[9, 10] (Mo.App.1972); C.S. v. Smith, 483 S.W.2d 790, 794[6, 7] (Mo.App.1972).

Willful neglect within the meaning of Section 211.441.1(2)(b), supra, excludes acts which occur because of events beyond control and not the fault of parents, In re C_, 468 S.W.2d 689, 693 (Mo.App.1971); the neglect alleged, in order to be willful, must be intentional, deliberate, and without just cause or excuse, S.K.L. v. Smith, supra, 480 S.W.2d l.c. 124; and where the parents’ physical power and legal freedom to give care and support to their children are restricted by court order placing the children in the custody of others, the scope of acts of neglect is limited, In re Taylor, 419 S.W.2d 473, 476 (Mo.App.1967).

In the year immediately preceding January 3,1974, the Trapp children were in custody of the Department of Welfare in different foster homes in separated locations. Robert was at the Joplin Diagnostic Center, then in Mercy Hospital, and later in a foster home. Despite this difficulty, Mrs. Trapp visited the child at all three locations and kept in touch with his condition and treatment. Despite the added difficulty in living with her husband in Kansas City and in conflict with her employment, Mrs. Trapp also maintained visitation and concern with the other three children in their foster homes. Mr. Trapp, also despite these circumstances and the added difficulty of remaining employed, visited the children frequently and, when he could not, maintained knowledge of and interest in their situation through Mrs. Trapp. It is true that they did not make required financial contributions to pay for foster care of their children, but the difficulties incurred as a result of their incarceration and loss of jobs on that account and on account of garnishments furnished some showing of cause for failure to comply with the court’s order as opposed to a finding of willful neglect. In this respect also, the Department of Welfare in March, 1973, had hope that Mr. and Mrs. Trapp would be able to reassume custody and care of their children; however, the incarceration, loss of jobs, and the court’s position that the judgment must be paid before custody was returned to the parents, put that hope beyond realization. These circumstances are not clear, cogent, and convincing evidence of willful neglect. See and compare In re M.J.M., supra, 483 S.W.2d l.c. 798[5-8]; S.K.L. v. Smith, supra, 480 S.W.2d l.c. 124[9, 10]; D_J_A_ v. Smith, supra; H.G.R. v. Smith, supra; T.M.S. v. Smith, 488 S.W.2d 670 (Mo.App.1972).

With respect to the court’s finding under Section 211.441.1(2)(c), supra, it is undisputed that Mr. and Mrs. Trapp were unemployed at the inception of the statutory one-year period prior to January 3,1974; were still unemployed when they resumed living together January 27, 1973, and did not become employed until some time in February, 1973. Notwithstanding the court’s finding in its order of February 27, 1973, requiring support payments, there is no showing on this record that Mr. and Mrs. Trapp had any financial ability to pay for support of their children for at least the first two months of the statutory one-year period.

Accordingly, the burden of showing Mr. and Mrs. Trapp to be “financially able” for one year prior to January 3, 1974, was not met. The court was therefore lacking in statutory power to decree a termination of parental rights on the ground that for one year prior to filing the petition to terminate, the parents, “being financially able,” neglected to pay for support of their children while in custody of others. In re Taylor, supra, 419 S.W.2d l.c. 476[5].

Section 211.441.1(2)(d), supra, provides yet another ground for termination of parental rights, i. e., the parents are unfit by reason of debauchery, habitual use of intoxicating liquor or drugs, or lewd and lascivious behavior, which conduct is found to be seriously detrimental to the health, well-being, or morals of the child.

The court did not make any such finding and the record does not contain any evidence to support such a finding.

The juvenile officer, in support of the court’s order, cites Drake v. King, 446 S.W.2d 455 (Mo.App.1969), and White v. DeSpain, 453 S.W.2d 697 (Mo.App.1970). Reference to those cases shows them inap-posite on the facts.

The judgment terminating parental rights is reversed.

All concur.

      . Section 208.041, Laws 1973, effective July 16, 1973, removed this requirement in certain circumstances.

      . It is not shown how this falsification deprived the children of any support while in foster care.


author: ROBERT R. WELBORN, Special Judge.

text:
    TRADERS NATIONAL BANK OF KANSAS CITY, Trustee under the Last Will and Testament of William V. Sandhaus, Deceased, Plaintiff, v. Edward LEVINE, Appellant, Mildred Levine, Appellant, Rochelle Beth Levine, a minor, and Jacqueline Dawn Levine, a minor, Respondents, Howard T. Levine, a minor, et al., Defendants.
    Nos. KCD 27510 and KCD 27511.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Nov. 10, 1975.
    Daniel J. Matula, Kansas City, for appellant Edward Levine.
    Robert A. Sniezek, Kansas City, for appellant Mildred Levine.

      Herbert Jacob, Robert E. Rosenwald, Michael Phillip O’Keefe, Kansas City, for respondents Rochelle Beth Levine and Jacqueline Dawn Levine.
    Before SWOFFORD, P. J, and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action to construe testamentary trust.

William V. Sandhaus, a Kansas City attorney, died July 7, 1953. His wife had predeceased him. He was survived by a daughter, Mildred Levine. Mildred’s only child was a son, Edward Levine, born October 8, 1935. Mr. Sandhaus’s will, executed September 26, 1952, was admitted to probate. It directed payment of his debts, made three specific bequests and left personal articles to Edward Levine. It also disposed of his interest in his law firm. Article 7, which is here in question, read as follows:

“All the rest, residue and remainder of my property, whether real, personal or mixed, of whatsoever the same may consist, and wheresoever the same may be situated (which is hereinafter sometime referred to as (“Trust Estate”), I give, devise and bequeath to the TRADERS NATIONAL BANK of Kansas City, Missouri, as Trustee, or to it’s (sic) successor or successors, in trust for the use and purposes, and upon the terms and conditions hereinafter stated.

“(a) I authorize my Trustee to pay to my daughter, MILDRED LEVINE, not less frequently than quarterly, ONE HUNDRED FIFTY DOLLARS ($150.00) per month out of her share of my Trust Estate, which is one-half, as long as there remains any monies in her share of my estate.

“(b) I hereby authorize my said Trustee to pay the net income not less than quarterly out of the other one-half of my Trust Estate to my grandson, EDWARD LEVINE, until he reaches the age of Thirty-four (34) years. Should my grandson, EDWARD LEVINE, be living with his lawful wedded wife at the time he reaches the age of Thirty-four (34) years, then the trust hereby created will terminate and the Trustee shall pay over and distribute to EDWARD LEVINE, his share of my Trust Estate, including principle (sic) and any accrued interest. Should my grandson, EDWARD LEVINE, die before reaching the age of Thirty-four (34) years and leave lawful issue surviving him, then I authorize my said Trustee to pay the net income to the legally appointed guardian for the maintai-nence (sic) and support of the children of EDWARD LEVINE until the houngest (sic) child shall reach the age of Thirty-four (34) years, when said trust hereby created shall terminate and the Trustee shall then pay over and distribute, share and share alike per stirpes and not per capita, the entire remaining 50% of my Trust Estate together with any accrued undistributed income thereon.”

The trust was established and the ½ share for Mildred’s benefit was exhausted by payments to her.

The trustee paid the income from the remaining V2 to the grandson, Edward, until October 8,1969, when he reached the age of 34 years. Edward had married, but the marriage had ended in divorce on November 24,1967, and Edward was unmarried on October 8,1969. Two children were born of Edward’s marriage, Rochelle Beth Levine, born December 20, 1962, and Jacqueline Dawn Levine, born July 31, 1965. Sometime after October 8, 1969, Edward did remarry and he adopted three minor children, Howard T. Levine, Marcia Lynne Levine and Robyn Ruth Levine, formerly Boasbert, born by a prior marriage to Edward’s second wife. Edward’s first wife remarried and on May 21,1971, the children of Edward were adopted by her husband and took the name of Lorie.

On October 23, 1969, the trustee under the will, Traders National Bank of Kansas City, filed this suit in the Jackson County Circuit Court for construction of the will. It alleged that since Edward Levine was living when he reached the age of 34, questions existed as to whether the trust for his benefit had terminated, who should receive distribution upon termination and if the trust had not terminated, for whose benefit the trust should continue to be held.

Separate answers were filed by Mildred Levine, Edward Levine and by the guardian ad litem, for Rochelle Beth and Jacqueline Dawn Lorie. Each asserted that the questions propounded by the trustee should be favorable to that party. A guardian ad litem of Edward’s adopted minor children filed an answer on their behalf and on behalf of Edward’s unborn children, claiming the trust property.

A hearing was held and the trial court found:

“The true intent of Article 7(b) of the Last Will and Testament of William V. Sandhaus, deceased, was to terminate the trust on October 8, 1969, being the 34th birthday of Defendant Edward Levine and, as a result of Edward Levine’s failure to meet the above marriage contingency, to immediately vest the balance of the trust assets in those parties who were children of Defendant Edward Levine at the time of the termination of the trust, being Defendants Rochelle Beth Levine and Jacqueline Dawn Levine, the only children (natural born or adopted) of Defendant Edward Levine at such time.”

The trial court entered a decree accordingly. It also awarded trustee’s fees and attorneys’ fees, discussed below. Edward Levine and Mildred Levine filed separate motions to amend the decree. The motions were overruled and they filed separate appeals, now consolidated.

On his appeal, Edward’s position is that “title to the corpus of the trust vested in the trustee for the benefit of defendant, Edward Levine, for his lifetime at the date of testator’s death subject to being divested upon the condition precedent” that Edward be “living with his lawful wedded wife at the time he reaches the age of 34 years.”

This contention is difficult to follow, inasmuch as the will clearly provides that Edward shall receive the income from the trust until he reaches the age of 34, and then shall receive the corpus on the condition that he is then married and living with his wife. This language would give Edward an interest for a term of years, with a remainder interest subject to a condition precedent. Such would be the result of application of the rule applied in Kerens v. St. Louis Union Trust Co., 283 Mo. 601, 223 S.W. 645 (banc 1920), cited and relied upon by Edward. Edward does not contend that the condition precedent to his receiving the corpus was fulfilled. The trial court properly denied his claim.

Insofar as the claims of the testator’s daughter, Mildred, and the children of Edward, who were successful in the trial court, are concerned, the question is whether or not the presumption against partial intestacy should be applied for the benefit of the grandchildren, or whether the testator should be held to have died intestate as to Edward’s share in the corpus of the trust, in the event of his not having met the condition precedent or not having died before reaching the age of 34 years.

The terms of the will itself are obviously lacking in any direction for the distribution of the corpus in the event here present, i. e., Edward’s having reached the age of 34 years and being unmarried.

The respondents would support the judgment below, largely on the theory that the trust involved was established in the residuary clause of the will, pointing out that “ * * * where a will has been executed there is a presumption against partial intestacy which is particularly strong where the subject of the gift is the residuary estate.” St. Louis Union Trust Co. v. Bethesda General Hospital, 446 S.W.2d 823, 827[1] (Mo.1969).

That case involved the disposition of excess income of a testamentary trust, above the amount required to pay designated annuities and expenses. The court concluded from the terms of the will, applying the above-quoted rule, that the testatrix intended that the excess income should go to the hospital, the residuary beneficiary. Such conclusion was based upon the language of the will itself, viewed in the light of the surrounding circumstances.

Respondents also cite and rely upon Mercantile Trust Company v. Sowell, 359 S.W.2d 719 (Mo. banc 1962). That case involved a testamentary trust, under which four individuals and a church were to share the income for a period of 10 years. The trust expressly provided for termination and distribution of the corpus, 90% to Washington University and 10% to the church, in the event of the death of all of individual income beneficiaries before the expiration of 10 years. The trustee sought construction of the will as to the disposition of the corpus in the event that the income beneficiaries were living at the end of the 10-year period. The heirs at law of the testatrix contended that in such event the corpus went to them by the laws of intestacy, inasmuch as the will failed to provide distribution of the corpus in that event. The court concluded that the language of the will itself was sufficient to indicate an intention on the part of the testatrix that the church and Washington University should share in the corpus in the event of termination of the trust at the expiration of the 10-year period. In reaching that conclusion, the court took particular note of the will’s direction for division of the corpus “between the two residual beneficiaries above named * * and concluded that the church and university were such “residual beneficiaries,” to whom the testatrix intended to leave the residue of her estate. 359 S.W.2d 723-724.

Other than the fact that the testator here provided for the children in the event of Edward’s death before reaching the age of 34, respondents point to no language of the will expressing an intention on the part of the testator that they shall be the beneficiaries in the event of the termination under the circumstances here involved.

Respondents also cite and rely upon Mercantile-Commerce Bank & Trust Co. v. Binowitz, 238 S.W.2d 893 (Mo.App.1951). That case involved a will which provided a detailed, exhaustive scheme for distribution of a trust estate on some nine contingencies, but which failed to provide for the contingency which did occur, i. e., renunciation of the will by the widow. The court concluded that the will was so “comprehensive in its scope, carefully thought out, dis-positive, final, broad in its intendment” (238 S.W.2d 897) that it belied any intention on the part of the testator to permit his property to pass by intestacy. The court gave effect to the provisions of the will establishing a trust for the benefit of testator’s minor children in certain circumstances, similar to the circumstances actually presented, although the will did not make such express provision.

The will here involved is hardly comparable with that found in Binowitz in length, complexity, or completeness of disposition. Insofar as the trust for Edward’s benefit was concerned, disposition of the corpus was provided in only two circumstances, his attaining age 34 and living with his wife or his death prior to age 34, leaving children. No provision was made for the situation here presented. In addition, no provision was made for distribution in the event of Edward’s death prior to age 34, leaving no children. Also, as an example of the incomplete scheme of the testator, no provision was made for distribution of Mildred’s share in the event of her death prior to the exhaustion of the funds for her benefit.

The absence of language of the will which might be subject to construction in the light of the presumption against intestacy and the absence of a detailed scheme of distribution which would evidence more clearly an intention to avoid partial intestacy makes this one of the unusual cases in which it must be concluded that the testator did not provide a complete scheme of distribution, and, therefore, § 474.030, RSMo 1969, becomes applicable and the corpus of the trust for Edward’s benefit must be distributed according to the intestacy laws. To hold otherwise would require the court to rewrite the testator’s will, which is not the proper judicial function in construing a will. The problem in this regard is pointed up by the trial court’s decree, which required that the corpus be distributed immediately to the minor children of Edward. No basis for this direction appears in the will. Had the children succeeded to Edward’s share by virtue of his death, their right to the corpus would have been postponed until the younger daughter reached the age of 34. This question is cited merely as an example of the problem that a judicial reconstruction of the will would invplve.

As has been repeatedly stated, each case involving construction of a will must depend upon the particular instrument involved and the circumstances surrounding the execution of that particular instrument. No case can be cited which on its facts is exactly in point insofar as the conclusion here reached is concerned. The cases of Lang v. Estorge, 242 S.W.2d 50 (Mo.1951) and Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634 (1929) do support the result here reached.

Appellant Mildred Levine has objected to the allowance of attorneys’ fees for the minor defendants Lorie and also complains that all of the fees allowed were unreasonable.

At the time of the trial below, the trust fund amounted to $12,662.38. The trial court allowed the following compensation to be paid by the trustee out of the fund:

1. To plaintiff, $116.67 for trustee’s fees.
2. To plaintiff for attorneys’ fees, $1900.00.
3. To the guardian ad litem for the minors Lorie, $10.00.
4. To the guardian ad litem for the minors Lorie, $2000.00 for attorneys’ fees.
5. To the guardian ad litem (an attorney) for the minors Levine, $577.50.

These allowances are authorized by the settled law of this state in cases such as this. Mercantile Trust Company v. Muckerman, 377 S.W.2d 355, 361[5] (Mo.1964). The case of St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, 583-584[17, 18] (1945), cited and relied upon by appellant, recognizes the right of the court to make the allowances here involved. In that case, the court did disallow attorney’s fees for the guardian ad litem of a minor who had obtained a “substantial recovery,” holding that payment of the minor’s attorney should come from the recovery, not the trust estate. Such is not the situation here, and that case is not authority for the rejection of the trial court’s allowances.

Insofar as the amount of the allowances to the trustee for attorney fees and for the guardian ad litem of the Lorie minors (appellant does not question the amount of the award to the guardian ad litem for the minors Levine) is concerned, the complaint of appellant is based upon the claimed disproportion between the allowances and the size of the fund involved. Appellant does not question that the services were necessary, were rendered and that the trial court had before it substantial evidence to support the amounts allowed. In these circumstances, there is no basis shown for disturbance of the considerable discretion allowed the trial court in such matters. See First National Bank of Kansas City v. Danforth, 523 S.W.2d 808, 825[17, 18] (Mo. banc (1975).

Counsel for guardian ad litem for minors Lorie have suggested in their brief that an additional allowance should be made for their services on this appeal. Under all of the circumstances, the allowance below is adequate to include such services and no further allowance will be made.

Reversed and remanded for entry of a new decree, directing payment to appellant Mildred Levine as heir at law of the testator of the balance of the corpus of the trust and accumulated income remaining after payment of fees and allowances chargeable to the trust estate.

All concur.


author: FLANIGAN, Judge.

text:
    Jeffrey Lee BORMAN, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 9815.
    Missouri Court of Appeals, Springfield District.
    Sept. 8, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 2, 1975.
    Application to Transfer Denied Nov. 10, 1975.
    Gene Gulinson, Salem, for movant-appel-lant.
    John C. Danforth, Atty. Gen., Charles B. Blaekmar, Sp. Asst. Atty. Gen., Jefferson City, for defendant-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Movant Jeffrey Lee Borman appeals from an order of the Circuit Court of Howell County, Missouri, overruling his motion, Rule 27.26, V.A.M.R., to vacate and set aside two judgments and sentences to imprisonment for 45 years on his pleas of guilty to two separate charges of second degree murder. The sentences run consecutively.

An evidentiary hearing was held on the motion in the presence of movant and his present attorney. Although the motion contained several grounds for relief, only those “carried forward” in movant’s brief need be considered. Herron v. State, 498 S.W.2d 530, 531[1] (Mo.1973).

The grounds preserved on this appeal are in essence that movant’s pleas were induced by threats and by misrepresentations, that the pleas were not entered with an understanding of the nature of the charges and that movant did not knowingly, intelligently and understandingly waive his right to a jury trial because he did not understand his right to a jury trial.

Both movant and the state presented testimony relating to the preserved grounds and there are conflicts therein. The findings of fact and conclusions of law of the trial court, made pursuant to Rule 27.26(i), V.A.M.R., are to the effect that none of the preserved grounds has factual support.

This court has reviewed the lengthy transcript and considered the excellent briefs, the authorities cited therein, and the arguments of counsel. The findings of fact of the trial court with respect to the preserved grounds are not clearly erroneous and no error of law appears. An opinion discussing the facts and law with respect to the preserved grounds would have no preceden-tial value. In compliance with Rule 84.-16(b) this court affirms the findings of fact and conclusions of law of the trial court. Herron v. State, supra; Smith v. State, 526 S.W.2d 399 (Mo.App.1975).

The judgment is affirmed.

All concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Kenneth BROWN, Defendant-Appellant.
    No. 36336.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 9, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Charles D. Kitchin, Public Defender, David M. Adams, Asst. Public Defender, James C. Jones, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Clarence Thomas, Jefferson City, J. Brendan Ryan, Circuit Atty., David McDonald, St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant appeals from his conviction on three counts of first degree robbery by means of a dangerous and deadly weapon. § 560.135, RSMo 1969. Having admitted the existence of a prior conviction, he was sentenced to concurrent twenty year terms of imprisonment on each count. § 556.280, RSMo 1969.

No challenge is made to the sufficiency of the evidence; therefore, we will state only those facts necessary for disposition of defendant’s points on appeal.

In the late afternoon of September 26, 1973, Edward Flynn, an employee, and several customers of the Adult Book Store on Angelica and North Broadway were robbed at gun point. While Flynn was working near the front door at the cash register, and several customers were in the back watching peep shows, Jimmie Lee Hill and defendant entered the book store followed a few minutes later by Edward White. William Hardester, an ultimate victim of the robbery, entered the store and requested change from Flynn; at that point Hill pulled a shotgun from the shopping bag he was carrying and announced the robbery. Hardester tried to leave but was stopped by defendant who threateningly ordered him to the back of the store. All the victims were forced to face the wall and bound with adhesive tape. Hardester’s wedding ring, watch, wallet and money were taken, though he could not see who actually took them since he was forced to face the wall. Two police cars, summoned by a silent alarm, arrived as defendant walked from the front entrance of the building followed shortly by Hill and White. Defendant attempted to leave the scene but was caught and arrested by the police. Hill was shot and captured immediately thereafter. White escaped but was soon arrested by other officers a few blocks from the store. Hardester’s wedding band and $78 were found in defendant’s pocket. Defendant asserted that he had been a customer at the store and not a participant in the robbery. As impeachment of witness Hardester, defendant offered the transcript of the preliminary hearing in which Hardester testified that White, not defendant, had robbed him.

In the State’s closing argument it was stated without objection that the amount of money found on defendant and the amounts taken in the robbery “correspond.” During the rebuttal portion of closing argument, the statement was repeated. This time defendant objected and the court instructed the jury “to remember what the evidence was.” We shall construe this statement and action of the court as tantamount to an overruling of defendant’s objection.

Defendant raises two contentions of error: (1) the State made improper argument in closing, and (2) an arresting officer was improperly allowed to testify concerning identification of the defendant made by the victims.

At the outset we note that appellant’s brief as to Point I fails to meet the requirements of Rule 84.04(d), V.A.M.R., as it does not state “what actions or rulings of the court are sought to be reviewed.” A point which merely alleges error in closing argument preserves nothing for review. State v. Rush, 495 S.W.2d 714 (Mo.App.1973). Defendant urges that we review the point as plain error under Rule 27.20(c). While the court may consider the issue of statement on closing argument as plain error, State v. McClure, 504 S.W.2d 664, 670[11] (Mo.App.1974), such a statement will rarely affect the substantial rights of the defendant. State v. Henderson, 510 S.W.2d 813, 823[22] (Mo.App.1974); State v. May, 479 S.W.2d 451, 456[5] (Mo.1972); State v. Agee, 474 S.W.2d 817, 820[10] (Mo.1971). Examination of the transcript discloses the complained of statement appearing in the closing argument of the assistant circuit attorney. He stated “You also recall that they took money from the defendant Brown’s pocket. We know the money was taken, the amount corresponds so it is not — ” Objection was interposed and defendant claims this statement was impermissible, constituting plain error. As noted above, a similar statement was made earlier without objection. In response to defendant’s objection the court stated, “As I told you, members of the jury, it is up to you to remember what the evidence was.” After the court had thus instructed the jury, defendant made no request for further relief.

In his brief defendant asserts the trial court erred in refusing to grant a mistrial because of the prosecutor’s alleged improper statement yet a review of the transcript discloses that no motion for mistrial was made at the time. He cannot now be heard to complain that the trial court failed to take action not requested. State v. Bibee, 496 S.W.2d 305, 312[4] (Mo.App.1973).

We further note that defendant failed to raise the issue in his motion for new trial. Construing the court’s action as overruling defendant’s objection, such rulings cannot be considered as preserved unless raised in the motion for new trial. State v. Jackson, 511 S.W.2d 771, 775[7] (Mo.1974); State v. Rapsberry, 452 S.W.2d 169, 172[1] (Mo.1970); State v. Henderson, 510 S.W.2d 813, 821[12] (Mo.App.1974); Rule 27.20(a), V.A.M.R. It is further significant that the evidence sustains the fact that at least $59 had been taken from the victims of the robbery. The officer who searched defendant stated he took $78 from him immediately after he was apprehended and a reasonable inference could be drawn and argued that $59 of the $78 found on defendant immediately after the robbery could have come from the victims. Such was the tenor of the argument and it is difficult to see how plain error could result under these circumstances. We find no substantial prejudice here and no manifest injustice under Rule 27.20(c).

Defendant next contends the court erred in refusing to grant a mistrial when one of the arresting officers testified that the victims had identified the defendant and two others. Citing State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). In the ease at bar three policemen saw defendant leaving the store, followed closely by the other two persons allegedly involved in the robbery. Defendant was apprehended immediately and returned to the store where he was identified. The other participants, Hill and White, were captured shortly thereafter. Neither defendant’s identity nor his presence in the store at the time of the robbery was questioned. In oral argument appellant’s counsel twice conceded that identity was never at issue. The sole question at trial was whether defendant was an active participant or merely an innocent customer. It is of importance here that the evidence of guilt as to defendant was strong. Further, the questions directed to the police officer who gave the challenged testimony did not call for such testimony and the answers given were not responsive. The court properly sustained the objection, ordered the answer stricken and instructed the jury to disregard it. The motion for mistrial was denied.

The court in Degraffenreid, supra 62[12], reaffirmed the holding of Fleming that “testimony of third persons corroborating the fact that the identifying witness identified defendant [is] not admissible absent the introduction of evidence to establish statements contradicting the testimony given by the identifying witness.” The court held that mere cross-examination of the identifying witness would not be sufficient impeachment to render corroboration testimony by third persons admissible. Degraffenreid, supra 63[12]. While the admission of such evidence is error, it may not be in all cases prejudicial. “[E]rror which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” Degraffenreid, supra 65[15]; State v. Maxwell, 502 S.W.2d 382, 393[14] (Mo.App.1973); State v. Frazier, 522 S.W.2d 46, 48[5] (Mo.App.1975). In Maxwell, supra 394[15], the court found that a hearsay recitation of the victim’s description of the crime was “harmless and merely corroborative of a fact not in issue” where the defendant had asserted an alibi defense. See also State v. Ford, 495 S.W.2d 408, 414[6] (Mo. banc 1973); State v. Gray, 504 S.W.2d 825, 826[1] (Mo.App.1974). Further, Degraffenreid and Fleming involved situations in which the evidence was admitted over defendant’s objection. Here the court sustained defendant’s objection and instructed the jury to disregard the testimony. The only relief not granted was the declaration of mistrial. “The declaration of a mistrial is a drastic remedy, and the power of a trial court in this respect ‘should be exercised only in extraordinary circumstances,’ . . . The proper function of an appellate court in the situation we have before us is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial,” State v. Camper, 391 S.W.2d 926, 927-8[2, 4] (Mo.1965); see also State v. Johnson, 504 S.W.2d 23, 29[7] (Mo.1973); State v. Flauaus, 515 S.W.2d 873, 880[21] (Mo.App.1974). Because of the circumstances described above and particularly since the question of identity was conceded by appellants as not an issue in the case, the error would not have been prejudicial even if the testimony had been admitted. We cannot say the failure to grant a mistrial in this case where the evidence was excluded and the jury instructed to disregard, is error.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.