author: TITUS, Judge.

text:
    George P. HAY, Plaintiff-Respondent, v. UTICA MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 10190.
    Missouri Court of Appeals, Springfield District.
    May 27, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 14, 1977.
    Application to Transfer Denied July 11,1977.

      Arch M. Skelton, Springfield, for plaintiff-respondent.
    Max W. Foüst, G. Spencer Miller, Morris, Foust, Beckett & Ponick, Kansas City, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiff sued Utica Mutual Insurance Company on a contract for temporary aircraft insurance to recover for the physical damage his Cessna airplane sustained in a landing accident. He also sought interest, damages for vexatious refusal to pay and attorney’s fees. § 375.420, V.A.M.S. Subsequent to a bench trial, plaintiff was awarded judgment in the aggregate sum of $5,366.34 and Utica appealed.

On October 27, 1972, plaintiff called insurance man Coonrod to obtain insurance on the just-purchased Cessna. Unable to supply aircraft insurance himself, Coonrod telephoned Fairfax Underwriters Services, Inc., authorized representative for Utica. Fairfax issued and sent to Coonrod a binder which, in part, stated: “This is to confirm that we have bound with Utica . the following insurance effective 12:01 a. m. Standard Time Oct. 27, 72 for a period of 30 days.” Among other things, the binder designated plaintiff as the named insured and a pilot who could operate the airplane when coverage would be afforded, set forth the amounts of liability and physical damage coverages, stated the amount of the premiums, described the Cessna aircraft and concluded: “This document is intended for use as evidence that the insurance as described herein has been effected and shall be subject to all terms and conditions of policy(ies) which will be issued and that, in the event of any inconsistency herewith, the terms and provisions of such policy(ies) shall prevail.”

To become effective, a binder must contain the following agreed upon elements: (1) the subject matter; (2) the risk insured against; (3) the duration of the binder; (4) the amount of the coverage; and (5) the amount of the premium. Sander v. Mid-Continent Insurance Co., 514 S.W.2d 634, 637[6] (Mo.App.1974). All of these elements are present in this case.

Eight days after the binder was issued, i. e., Saturday, November 4,1972, the Cessna, while being piloted by plaintiff, was damaged upon landing when its tail section made contact with a fence post. Coonrod reported the occurrence to Fairfax by telephone on the following Monday, November 6, 1972.

Prior to issuance of the Cessna binder, Fairfax, through Coonrod’s endeavors, had issued another binder on plaintiff’s Piper airplane effective October 4, 1972, for a period of 30 days. After obtaining the Cessna binder, Coonrod received from Fair-fax two identical “Aviation Insurance Application” forms — one for the Piper and the other for the Cessna. The forms were completed by Coonrod, signed by plaintiff and mailed to Fairfax on November 6, 1972. Each form contained this question: “Has any approved pilot been involved in or sustained any aircraft loss, including third party liability, whether or not covered by insurance? _ If so, give full details . on reverse side.” Coonrod testified that in preparing the forms he read the question to plaintiff who answered “[N]o . ‘[n]ot in the past five years.’ ” Coonrod opined this justified his writing a “No” in the blank space on the Piper form and leaving the question unanswered on the Cessna form. Plaintiff said that when inquiry was made regarding losses, he reminded Coonrod he had not operated an airplane for the past 13 years but previous to that he “had a number of accidents” and Coonrod “said he didn’t think it would make a hell of a lot of difference.” Plaintiff also said he had signed the application forms without reading them.

Under date of November 10,1972, Utica’s aircraft policy on both the Piper and the Cessna was signed “Approved” by Aviation Office of America, Inc. The policy was “Countersigned” by an officer of Fairfax as “Authorized Representative” on November 20, 1972. The policy period stated in the policy was from October 27, 1972, to October 27, 1973. Plaintiff paid a premium of $1,300. The policy was not received by Coonrod until the last of November or the first part of December 1972.

In the course of investigating the accident of November 4, 1972, it was learned that plaintiff had been involved in five aircraft losses between 1957 and 1960. Under date of December 6, 1972, Fairfax wrote Coonrod “that the Company has denied the captioned loss [because plaintiff] did not disclose the proper information on his application where they asked for his loss experience.” On January 11, 1973, Coonrod sent the policy to Fairfax requesting a pro rata cancellation. Thereafter, Fairfax sent Co-onrod a check for the entire premium paid. Coonrod then sent his $1,300 check to plaintiff which he cashed and kept. However, in computing the judgment the trial court gave Utica credit for the entire premium charged for the physical damage coverage and credit on a pro rata basis for the balance of the premium on the Cessna.

In answer to plaintiff’s first amended petition upon which the cause was tried and which was predicated upon the contract for temporary insurance as evidenced by the Cessna binder, Utica affirmatively pleaded that “the aforesaid policy . . . was issued pursuant to a written application for same by the plaintiff . . . and that defendant issued the policy relying upon the warranties made in the application; that the above policy is null and void for the reason that the warranties made in the application for insurance, which are the basis for the policy, were erroneous or false and were material to the risk insured . . . and had defendant known the true facts, [about plaintiff’s prior aircraft losses] the policy would not have been issued.” Utica further pleaded that due to plaintiff’s return of the policy and accepting back the full premium paid, “plaintiff is estopped and barred from bringing and maintaining this action.”

It is apparent from Utica’s pleadings and the first point relied on in its brief, that the insurer has either misconceived the very foundation of plaintiff’s action as pleaded in his first amended petition, or has purposely chosen to ignore the existence of the Cessna binder which evidenced a contract for temporary aircraft insurance effective October 27, 1972, for a period of 30 days. 43 Am.Jur.2d, Insurance, § 216, p. 275. The suit here is based on the binder — not on the policy. The evidence does not establish just when the policy was issued. All we know is that it was not approved until November 10, was not countersigned until November 20, and was not delivered until after those two events had occurred, all of which was well subsequent to the accident of November 4. “Therefore, the binder was the only contract of insurance in force and effect on the date of the loss.” Midwestern Insurance Company v. Rapp, 296 P.2d 770, 774[1] (Okl.1956). Under that binder, “so long as it was the only contract in effect, any right of recovery arising within its terms would become fixed and enforcible, irrespective of whether a subsequent policy would ever issue.” Baker v. St. Paul Fire & Marine Insurance Company, 427 S.W.2d 281, 288 (Mo.App.1968).

The seeker of an insurance binder, without solicitation, is not required to disclose information pertinent to warranties, declarations or representations pertaining to issuance of the final policy. Sherri v. National Surety Co., 124 Misc. 450, 208 N.Y.S. 257,258[1] (1925), affd, 215 App.Div. 808, 213 N.Y.S. 909 (1926), affd, 243 N.Y. 266, 153 N.E. 70 (1926); 16A Appleman, Insurance Law and Practice § 9255, p. 641. Unless, contrary to the procedure followed here, an application or similar disclosure of facts be a prerequisite to the issuance of a binder, the insured in a contract for temporary insurance could not be held to anticipate what warranties or representations a particular insurer would thereafter seek and rely upon before issuing or refusing to issue a subsequent policy. In the instant case it is undisputed that the binder was issued without Utica or Fairfax asking for or being given any representation, declaration, warranty or statement pertaining to plaintiffs prior aircraft losses, accidents or aircraft insurance experiences. Such information, however, could have influenced Uti-ca only with respect to the issuance of the written policy of insurance, and could have had no bearing on the question of temporary insurance. The temporary insurance on the Cessna was in force at the time of the accident and several days before the applications reached Utica or its agent. The applications could only have been considered by Utica when deciding whether or not to issue the policy. Government Employees Ins. Co. v. Hanna, 219 S.W.2d 122, 127 (Tex.Civ.App.1949). Accordingly, this court must find that the misrepresentations contained in the applications for the policy were not material to nor relied on by Utica or Fairfax in issuing the binder and that liability under the binder may not be avoided for that reason.

Utica’s second point that plaintiff was estopped to maintain this action because of acceptance of the returned premium was rejected by the trial court and we agree. The policy was not sent to Utica for its cancellation or cancellation of the binder from their inception. Rather the policy was sent for pro rata cancellation after Utica had denied the claim arising from the November 4, 1972, accident which had occurred before the policy was issued. The return of the premium was not prompted due to policy lapse, default or overdue payment (6 Couch on Insurance 2d, § 34:107, pp. 835-836), but to permit Utica to maintain a claim that the policy was void ab initio for the reason stated. As an aside, and worthy of note, is the fact Utica has never questioned the validity of the binder. Nevertheless, whether Utica was required to return the premium before claiming policy coverage was void from the inception is of no moment here. The simple fact is that the premium was returned and kept by plaintiff who, in his acquiescence to the judgment giving Utica credit for that portion of the premium earned, has never agreed to total lack of coverage. Plaintiff testified that he did not accept Utica’s payment in settlement of any claim and the course pursued thereafter by plaintiff attests his lack of consent to Utica’s contentions. It is certain that Utica would not have taken back the premium, or any part thereof, “at any time, and, had it done so, it would have been compelled to keep its tender of this money good.” Shipman v. National Live Stock Ins. Co., 187 Mo.App. 400, 407,173 S.W. 735, 737 (1915). Furthermore, we do not perceive how an affirmative defense of estoppel can be based upon a person’s failure to do a futile act.

Utica’s last point is that the trial court erred in awarding damages for vexatious refusal to pay. Statutes providing for damages and attorney’s fees for vexatious refusal to pay insurance claims are to be strictly construed because they are penal in nature. Fohn v. Title Ins. Corp. of St. Louis, 529 S.W.2d 1, 5[10] (Mo. banc 1975). In the purview of such laws, the term “vexatious” means without reasonable or probable cause or excuse [Housing Authority of City of Clinton v. Baumann, 512 S.W.2d 436, 440[5] (Mo.App.1974)], and for an insured to recover for vexatious refusal to pay, he must produce evidence showing that the refusal was willful and without reasonable cause as the facts would appear to a prudent and reasonable man before trial. Duckworth v. United States Fidelity & Guaranty Co., 452 S.W.2d 280, 287[12] (Mo.App.1970). Also, where there is an open question of law or fact determinative of an insurer’s liability, if it be acting in good faith the insurer may insist upon a judicial determination of those questions without being penalized therefor. Cox v. Washington National Ins. Co., 520 S.W.2d 76, 81[5] (Mo.App.1974).

Utica did not plead fraud on plaintiff’s part. Under Missouri law a non-fraudulent misrepresentation in an insurance application will not void a policy unless it is incorporated into the policy or unless the answers in the application are in the form of a warranty. American Fire and Indemnity Company v. Lancaster, 415 F.2d 1145, 1149[5] (8th Cir. 1969), aff’g 286 P.Supp. 1011 (E.D.Mo.1968). The applications signed by plaintiff concluded: “All particulars herein are warranted true and complete to the best of my/our knowledge and no information has been withheld or suppressed and I/we agree that this application and the terms and conditions of the policy in use by the Insurer shall be the basis of any contract between me/us and the Insurer.”

We have ruled that the alleged warranted misrepresentations contained in the applications were not germane to an action on the binder which afforded temporary insurance coverage before the applications and the policy came into esse. Nevertheless, in determining whether plaintiff is entitled to damages and attorney’s fees for vexatious refusal to pay we must view the situation before trial and consider the circumstances as they then existed.

It is apparent that in the inception of the controversy between plaintiff and Utica, plaintiff was claiming under the policy. In fact, plaintiff’s claim against Utica as stated in his original petition was founded solely on the policy with no mention whatsoever of the existence of a binder. Coonrod was not Utica’s agent, so his knowledge of the falsity of any representations contained in the applications could not have been imputed to the insurer. Therefore, when Utica ascertained the falsity of the answers warranted to be true in the applications, it cannot be said that it then did not have reasonable grounds to believe it was possessed of a meritorious defense to a claim predicated on the policy. Cf. State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, 152 S.W.2d 132,134-135 (Mo.1941); Miller .v. Plains Insurance Company, 409 S.W.2d 770, 775[7, 8] (Mo.App.1966). The fact that plaintiff initially misconceived his remedy by claiming under the policy rather than the binder, should not work to prejudice Utica when it reasonably could suppose it had a meritorious defense to that remedy. Moreover, after plaintiff switched horses by amending his petition, that switch did not present a certain path leading to victory. There still remained open questions of fact and law, among others, as to whether under the peculiar circumstances, recovery could be obtained on the binder independent of the policy (see provisions in the binder relating it to the policy, supra) or whether the application warranties would apply to the binder, it being, at least, a segment of “any contract” between the parties. Utica had a right to entertain honest differences of opinion as to its validity and, in good faith, insist upon a judicial determination thereof without being subjected to penalties for vexatious refusal to pay the loss. Hammontree v. Central Mutual Insurance Company, 385 S.W.2d 661, 668[10] (Mo.App.1965). The fact that judgment on the binder is adverse to Utica does not, per se, make it liable for vexatious damages and attorney’s fees under the statutes. Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., 523 S.W.2d 173, 175[7] (Mo.App.1975).

The judgment nisi allowing recovery and interest on the binder for the net physical damages inflicted on the Cessna aircraft is affirmed. That portion of the judgment allowing damages and attorney’s fees for vexatious refusal to pay is reversed. The cause is remanded to the trial court from whence it came for entry of a judgment in accordance with the views set forth herein.

AÍ1 concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael LADD, Appellant.
    No. KCD 28623.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied July 11, 1977.
    William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
   PER CURIAM.

A jury found appellant guilty of armed robbery and assault with intent to do great bodily harm, § 559.190, RSMo 1969. Upon a finding of the applicability of the Second Offender Act, the court sentenced him to 40 years on the robbery charge and 5 years on the assault charge, to run concurrently, in the Department of Corrections.

The sole point on appeal is a contention that the argument of counsel for the state was improper: “The Court erred in overruling defendant’s objection and request for mistrial regarding improper argument by the prosecutor relating to the element of intent in the crimes of rape and murder.” This point is inadequate under the rule in that it fails to set forth why and wherein the court erred, and renders this appeal subject to dismissal. It may be gleaned from the short argument portion of the brief that it was beyond the instructions given by the court on the issues relevant to the ease, and was therefore improper for the prosecutor to comment beyond those instructions; the argument was of such a nature as to be highly prejudicial in impact; and was outside the scope of evidence presented at trial and was intended to inflame and prejudice the minds of the jurors. Although inartfully presented, the point and argument will be considered. And although the brief mentions only portions of the argument, it is set forth more fully in order that its full context will appear, in connection also with appellant’s argument:

“BY MR. HARPER: Ladies and gentlemen, I’ll try not to belabor this, but I want to make a couple more comments on Count II. I want to read this, it’s Instruction 7. Read it when you get back to the jury room and I ask you, you know when a person commits an armed robbery or any crime, they have to have criminal intent at that time to do certain acts. Later what if they say, gosh, I was going to give the money back. I was going to give it back. So if somebody says I was going to give that back, does that negate the whole criminal intent at the time? If that’s all, you know, you had to do, why, you could kill, rape, rob, steal, everything else with no consequence. MR. CLINE: This way outside the evidence. There’s no evidence of killing, raping — [interrupted] MR. HARPER: I’m not alleging there is. Your Honor, this is argument. THE COURT: Objection will be overruled. Proceed.” The grounds for the objection were then expanded by appellant’s counsel. “MR. HARPER: I’m arguing the concept of criminal intent.” The objection was again overruled and a request for mistrial was denied. “MR. HARPER: What I am trying to say to you, is, in any criminal case, you have to have criminal intent. In Count I you have the intent to deprive the owner of their property, their intent to put them in fear of great bodily harm. Criminal intent is the essence of any type of crime. I don’t care what it is, rape, robbery, stealing, whatever. MR. CLINE: I object. There’s no evidence of rape. I want to make a record on this.” Further request for mistrial was denied, and the objection was again overruled. Counsel for state further argued appellant’s intent in aiming the pistol at Carroll Highbarger.
Appellant’s counsel had argued: “ * * Taking the State’s evidence, taking their evidence at its most favorable light, the defendant came out of the car with a gun and pointed it at Highbarger. Highbarger yelled, ‘Don’t, Ladd, don’t.’ What happened next? Shots? No, defendant threw down the gun and ran. Is that the intent to kill somebody or to do great bodily harm, to throw down the gun and run? He ran 500 feet before he was caught. Is that the intent to do great bodily harm? He had no weapon on him. Everybody agrees he didn’t fire any shots. * * * After a short confrontation with Ladd, Ladd got behind the tree. You know what he did when he got behind the tree; he threw the gun down, didn’t he? * * * He wasn’t caught for another half-a-block yet, * *. But by the same token, the defendant fleeing the • scene after throwing down his weapon when people are shooting at him, that makes sense. * * * Is this really an assault by this defendant? * * * Is that trying to kill somebody, is that trying to do great bodily harm and to throw down the gun and run, being shot at? I don’t think there is any intent to assault anyone here.” Repetitively, the argument thereafter goes on at length as to appellant’s lack of intent because he threw down the gun and ran.

The general tenor of the state’s argument here, retaliatory in nature, was to meet the argument of appellant’s counsel. As presented by appellant’s counsel, the argument was that after aiming the weapon at Highbarger, he abandoned his purpose, dropped the gun and fled, thus showing a lack of intent to assault Highbarger. The propriety of the state’s argument finds support in this statement: “Abandonment of the evil or criminal intention at any time before so much of the act is done as is necessary to constitute an offense prevents what has been done from being indictable. If, however, the requisite criminal intent exists at the time of the commission of the act, the crime is committed and a subsequent change of intent will not relieve the actor of responsibility, since he cannot abandon what he has already done.” 22 C.J.S. Criminal Law § 29, p. 99. See also 6A C.J.S. Assault & Battery § 67, p. 437; cf. State v. Selle, 367 S.W.2d 522, 527[8-11] (Mo.1963). The evidence here showed that the weapon aimed at Highbarger, and which was then dropped, was loaded. “Generally, a person who points a loaded firearm at another in order to do the other an injury or put him in fear is guilty of an unlawful act amounting to an assault, * * *6A C.J.S. Assault & Battery § 69, p. 439. See also State v. Fine, 324 Mo. 194, 23 S.W.2d 7, 9 (1929). It is thus apparent that counsel for appellant presented an argument to the jury that was outside the evidence; there was no evidence that appellant abandoned any private intent to assault before the overt act of aiming the weapon at Highbarger was committed. There was no objection, however, to the argument of appellant’s counsel. That argument, then, was in the case, and state’s counsel was entitled to meet it. This he did in arguing the futility of abandonment of a criminal intent once formed. The example argued to the jury was the afterthought of giving back money after a robbery had occurred which did not negate the criminal intent. It was then argued, in effect, that the crimes of killing, rape, robbery, stealing, “or anything else” could be committed with no consequence if the criminal intent was nonexistent. It is clear that counsel for the state was arguing the concept of criminal intent in connection with the felonious assault case against appellant. And although the mentioned crimes of killing, rape, robbery and stealing were not within the evidence, the concept of criminal intent, as argued by both parties was — even as to the comment, “Is that the intent to kill somebody * * * ?” by appellant’s counsel.

The state’s argument was retaliatory in nature. In State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950), it was said, “ ‘[T]he State’s counsel can go further by way of retaliation, in answering arguments of the defendant’s counsel, than he would be authorized to do in the first instance.’ State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 544. * * *.” In State v. Turley, 518 S.W.2d 207, 211[4, 5] (Mo.App.1974), the matter of alleged improper argument was considered, and the court said, “[T]he granting or withholding of a new trial for improper argument is a matter for trial court’s discretion. State v. Williams, supra, 419 S.W.2d [49] at 50 [Mo.1967]. An appellate court will not interfere with a ruling by the trial court unless the record shows that the trial court abused its discretion to the prejudice of appellant. State v. Hutchinson, 458 S.W.2d 553, 556, (Mo. banc 1970). Such statements must have been plainly unwarranted and clearly injurious. State v. Hutchinson, supra.Here, the matter of appellant’s criminal intent was within the issues, as argued, and were not therefore unwarranted. The trial court did not abuse its discretion in overruling the objections to argument in the context presented.

The judgment is affirmed.


author: DOWD, Judge.

text:
    Christopher W. CAREAGA, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37958.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 5, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Robert C. Babione, Public Defender, Blair K. Drazic, Mary Louise Moran, Asst. Public Defenders, St. Louis, for movant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Movant-appellant appeals from the dismissal of his second Rule 27.26 motion to vacate judgment. No evidentiary hearing was held on the motion. Movant contends that his convictions were invalid because he was denied his constitutional right to equal protection of the laws. He argues that he was denied the services of an independent psychiatrist to assist in the preparation and presentation of an insanity defense and that Section 552.020 RSMo 1969 is unconstitutional because it discriminates against the poor by denying indigent defendants the aid of private psychiatrists, effectively precluding an insanity defense.

In 1971, appellant pled guilty to four separate charges, three for robbery by means of a deadly and dangerous weapon and one for carrying a concealed weapon. Appellant was sentenced to concurrent life sentences on each of the robbery charges and five years on the concealed weapon charge.

Prior to the entry of the pleas, appellant moved for the appointment of a psychiatrist. The motion was granted. An examination was performed which indicated that the appellant was not suffering from any mental disease or defect. Appellant does not allege that the report made pursuant to Section 552.020 was incomplete. The record reflects no request for the appointment of a second psychiatrist although appellant claims he made an oral motion for an independent psychiatric examination to determine his competency at the time of the commission of the offenses.

Appellant filed a prior motion under Rule 27.26 in 1973. It was based upon the ground that his guilty pleas were not entered voluntarily or intelligently and that he was denied effective assistance of counsel. One point raised by appellant was that the court failed to require a mental competency hearing. The motion was denied, and the court found adversely to appellant on the point concerning the competency hearing. Moreover, the court reasoned that although a hearing was not held on the findings contained in the psychiatric report, the movant did not show sufficient prejudice for the court to vacate sentence and judgment. Appellant appealed from the order but the appeal was dismissed as untimely.

This second motion under Rule 27.26 was filed December 3, 1975. Appellant alleged as grounds therein that he was denied a fair trial and equal protection of the laws because an oral motion for a second psychiatrist was refused and that Section 552.020 is unconstitutional because it discriminates on the basis of poverty in denying private psychiatrists for the defense.

No evidentiary hearing was held on the second Rule 27.26 motion. The trial court granted the state’s motion to dismiss the appellant’s second motion after a hearing on the motion because the trial court found that the appellant did not show why the error alleged could not have been raised on the first motion. In addition the court found that appellant did not allege a ground for post-conviction relief because, as found in the first 26.27 proceeding, appellant’s pleas were voluntarily and intelligently entered and no prejudice was shown.

Our review is limited to a determination whether the finding, conclusion and judgment of the trial court were “clearly erroneous.” Rule 27.26(j); Brown v. State, 495 S.W.2d 690, 694[2] (Mo.App.1973). A finding is “clearly erroneous” when the reviewing court is left with the definite and firm conviction that a mistake has been committed after considering all the evidence. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968).

The trial court below found that the mov-ant showed no “legal cause why the contention that he should have been afforded a second independent psychiatric examination could not have been raised at first eviden-tiary hearing.” Rule 27.26 prohibits the entertainment of successive motions “where the ground presented in the subsequent application was raised and determined adversely to the applicant on prior application,” Ivy v. State, 509 S.W.2d 148, 152[1] (Mo.App.1974), or “where the ground presented is new but could have been raised in the prior motion” pursuant to the provisions of subsection (c) of Rule 27.26. Johnson v. State, 472 S.W.2d 433, 435[2] (Mo.1971). “The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised in his first motion.” Moore v. State, 528 S.W.2d 177 (Mo.App.1975).

In the case at bar, movant attempted to excuse his failure to raise his present contentions in the prior motion by alleging he “was not aware of the new grounds for relief” until he met a fellow prisoner. However, “the bare allegation of ‘lack of legal knowledge’ will not authorize a finding that appellant could not have previously presented the new ground in his first Rule 27.26 motion.” Jones v. State, 521 S.W.2d 504, 506 (Mo.App.1975); accord, Grant v. State, 516 S.W.2d 69, 71[1-3] (Mo.App.1974).

Therefore, the trial court properly denied appellant’s second Rule 27.26 motion. Because the motion was properly refused this court will not reach the merits of movant’s allegations other than to note that both this court and the Missouri Supreme Court have rejected such arguments. State v. Sturdivan, 497 S.W.2d 139, 144[17] (Mo.1973); State v. Terry, 472 S.W.2d 426, 429-30[5] (Mo. Banc 1971); State v. Mullen, 532 S.W.2d 794, 799[9] (Mo.App.1975).

The findings of the trial court are not clearly erroneous. The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.


author: WEIER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Edward KAYSER, Defendant-Appellant.
    No. 38046.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 12, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.
    Application to Transfer Denied July 11, 1977.

      Donald L. Wolff, Deborah H. Weinstein, Clayton, for defendant-appellant.
    Ronald L. Boggs, Pros. Atty., G. Jeffrey Lockett, Kent W. Fanning, Asst. Pros. At-tys., St. Charles, for plaintiff-respondent.
   WEIER, Judge.

At issue in this criminal prosecution of a St. Charles County massage parlor operator is the question of whether one who maintains a commercial enterprise which masturbates its customers is engaged in criminal activity proscribed by § 563.630, RSMo. 1969.

Defendant Thomas Edward Kayser was charged by information with the offense of setting up and maintaining a common bawdy house. A jury trial was waived and the parties agreed to enter into a stipulation of facts to be submitted to the trial judge. It was stipulated that the State would prove beyond a reasonable doubt that on August 18, 1975, defendant did set up, maintain, and keep a business known as the Verboten Health Spa in St. Charles County. Defendant did there employ three women for the purpose of administering massages to adult customers. The privately administered massages were openly offered for the payment of money and included the touching, massaging, and masturbation of the customers’ genitals. The amount of money charged was determined by the method and duration of the massages and masturbation, which were administered on a consensual basis in a private room solely within the confines of the Verboten. The customer and the person administering the massage were the only persons present in the room; and although the customer could touch and massage the breasts and body of the woman administering the massage, the customer was prohibited from touching the genitals and genital area of the woman.

The parties further stipulated that defendant was aware of and permitted these activities, and in fact directed that such activities be offered and conducted when requested by the customers at the Verboten. Defendant also directed each employee to sign an employment contract which instructed the employee to refrain from engaging in “any act of sexual intercourse, penetration or act which would result in the placing of a mouth on the genitals or anus of any customer, or by any customer upon the person administering the massage or masturbation.”

The cause was submitted to the court upon this stipulation. The trial judge found beyond a reasonable doubt that defendant was guilty, as charged, of the offense of operating a bawdy house. Punishment was assessed in the form of a five hundred dollar fine, and upon the overruling of a motion for new trial this appeal was duly perfected. For reasons hereinafter stated, we reverse the judgment.

Defendant initially contends that the stipulated facts do not demonstrate his operation of a bawdy house. The fact that sexual intercourse was not offered at the Verboten, defendant submits, removes his business from that class of establishments defined by the term “bawdy house.”

The statute at issue has remained virtually unchanged since 1835. It and other sections proscribing bawdy houses have been construed by the appellate courts of this state many times and always in the sense of a place where illicit sexual intercourse is conducted. See State v. Malloch, 269 Mo. 235, 190 S.W. 266, 267 [1] (1916). In City of St. Louis v. Cook, 405 S.W.2d 545, 549 [6] (Mo.App.1966), our court had before it a prosecution for keeping a bawdy house under the ordinances of the City of St. Louis. In this case we stated: “Various definitions of a bawdy house have been set forth in the cases. In general it may be said that a bawdy house is a house resorted to and frequented by lewd people of both sexes for the purpose of prostitution; that is, for men and women to have unlawful, illicit sexual intercourse together therein; one that is kept for the resort and commerce of lewd people of both sexes.” The opinion goes on to state that the proof necessary to establish the character of a bawdy house must in most cases be “inferential” and the evidence largely “circumstantial” but the proof in all cases goes to the establishment that illicit sexual intercourse occurs upon the premises. City of St. Louis v. Cook, supra at 550.

The very term “bawdy house” indicates that it is a house of habitation for “bawds.” A bawd in Webster’s Third New International Dictionary is defined as one who keeps a house of prostitution or a prostitute. In that same authority “bawdy house” is equated with “brothel” and “brothel” is defined as an establishment in which prostitutes are domiciled and apply their trade. “Prostitution” is generally considered to be the act of permitting a common and indiscriminate sexual intercourse for hire. State v. Anderson, 284 Mo. 657, 225 S.W. 896, 897 (1920).

Statutes defining crime must be construed liberally in favor of the defendant and strictly against the State. They will not be interpolated as embracing any but those acts or omissions clearly described in the statute both within the letter and spirit of the law. State v. Chadeayne, 323 S.W.2d 680, 685 [4] (Mo.banc 1959); State v. Pickett, 535 S.W.2d 542, 544 [2] (Mo.App.1976); State v. Alderman, 500 S.W.2d 35, 36 [2] (Mo.App.1973). No person can be made subject to a criminal statute by guesswork or mere implication and a criminal statute is not to be held to include offenses or persons other than those which are clearly described and provided for both within the spirit and letter of the statute. If there is fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused. State v. McClary, 399 S.W.2d 597, 598-99 [2-3] (Mo.App.1966). The reason for this rule of strict construction is found in the tenderness and solicitude of the law for individuals and on the plain principle that it is the duty of the legislature, and not the courts, to define a crime and ordain its punishment. State v. Reid, 125 Mo. 43, 28 S.W. 172, 173 (1894); State v. McClary, supra, 399 at 599 [6].

The foregoing principles of the law must be applied to test the sufficiency of the charge against defendant that his conduct violated § 563.630. The proscriptions of that statute are directed at the maintaining and keeping of a bawdy house. As has been pointed out, the time honored definitions of a bawdy house do not encompass the activities carried on in the Verboten Health Spa by the defendant. No matter how much we may deprecate and condemn those activities, we cannot classify them in the same category as those defined in the setting up and maintaining of a bawdy house. A commercial enterprise which openly offers to and does masturbate its customers is not a bawdy house and § 563.-630 did not give sufficient notice to defendant that his operation of the Verboten Health Spa in this manner would contravene that statute’s prohibitions.

For his second point, defendant contended that § 563.630 was constitutionally infirm due to its failure to define the offense of operating a bawdy house in reasonably certain terms. It is not necessary that we consider this point because the case has been ruled upon defendant’s first contention. Furthermore, the second point was not raised in the trial court and thus has not been preserved for review.

The judgment is reversed.

KELLY, P. J., and GUNN, J., concur.

      . “Every person who shall set up or keep a common gambling house, or bawdyhouse or brothel or house of assignation, shall, on conviction, be adjudged guilty of a misdemeanor and punished by a fine of not less than two hundred nor exceeding one thousand dollars;. . ."

      . RS 1835, § 18, p. 208.

      . It is interesting to note that the proposed Criminal Code for the State of Missouri now being considered by the legislature specifically defines commercial masturbation as an act of prostitution and prohibits the operation of such an enterprise. The Proposed Criminal Code for the State of Missouri, Chap. 12 (1973).


author: ROBERT R. WELBORN, Special Judge.

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Anna M. CORLEY, Appellant.
    No. 28756.
    Missouri Court of Appeals, Kansas City District.
    April 13, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11, 1977.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Charles J. DeFeo, Jr., Asst. City Prosecutor, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Anna M. Corley was charged with speeding in violation of Kansas City ordinance. In municipal court she was found guilty and fined $22.00. She appealed to the circuit court. On trial there she was again found guilty and a fine of $22.00 assessed. She has appealed to this court.

At the circuit court trial, the city’s evidence showed that a Kansas City police officer who had set up a radar speed checkpoint in the vicinity of Vivion Road and Troost Avenue in Kansas City North (Clay County), at around 4:08 P.M., October 29, 1975, observed Ms. Anna M. Corley, operating a motor vehicle eastbound on Vivion in what appeared to be in excess of the normal rate of traffic flow for the location. The area had a posted speed limit of 40 miles per hour. The radar instrument recorded Ms Corley’s speed at 52 miles per hour. Ms. Corley’s auto was stopped and she was issued a summons to appear in municipal court on a charge of speed in excess of posted limit.

The arresting officer testified that Ms. Corley’s auto had a city license issued by the City of Gladstone. Her driver’s license showed her to be a resident of that city. On cross-examination the officer was asked whether or not at every point where a Kansas City street crossed the city limits a sign was posted showing the city speed limits. The officer stated that he did not have such information but would assume that no such sign was posted at every such point. Defense counsel then moved to dismiss the charge on the grounds that the city had failed to show compliance with § 304.120, subd. 1., RSMo 1975 Supp. The motion was overruled.

Ms. Corley, testifying in her own behalf, stated that she had been a resident of Gladstone for 12 years and had not been in Kansas City for a period of 48 hours immediately prior to her arrest and that she did not know the speed limit in the area where she was stopped.

The officer who stopped Ms. Corley identified photographs of signs posted on Vivion Road, one .4 mile and one .1 mile west of the point where Ms. Corley was stopped, the sign facing the direction of Ms. Corley’s travel and being on the right side of the two-lane roadway, some five feet from the edge of the pavement. When asked about her familiarity with these signs by reason of her travelling that road, she stated: “Well, if that’s Vivion Road, and the signs were there, I guess I was supposed to have knowledge of [the speed limit].”

At the conclusion of the case, defense counsel’s motion to dismiss for failure to comply with § 304.120 was overruled. She was found guilty and a fine of $22.00 imposed.

In this court, appellant renews her contention that she was entitled to be discharged because the city failed to show that it had complied with § 304.120, subd. 1, by posting signs of the speed limit as there required. § 304.120, subd. 1, provides:

“1. Municipalities, by ordinance, may establish reasonable speed regulations for motor vehicles within the limits of such municipalities. No person who is not a resident of such municipality and who has not been within the limits thereof for a continuous period of more than forty-eight hours, shall be convicted of a violation of such ordinances, unless it is shown by competent evidence that there was posted at the place where the boundary of such municipality joins or crosses any highway a sign displaying in black letters no less than four inches high and one inch wide on a white background the speed fixed by such municipality so that such sign may be clearly seen by operators and drivers from their vehicles upon entering such municipality.”

Sections 34.89 and 34.91, Revised Ordinance of Kansas City, provide as follows:

“No person shall operate a vehicle upon any street or highway, at a speed in excess of twenty-five miles per hour, unless signs are posted designating another speed limit. (R.O.S. 58.270(a), added by Ord. No. 27341, 4-6-62; C.S.Ord. No. 41525, 10-20-72)
“Whenever it is determined on the basis of an engineering and traffic investigation that the maximum safe speed on any through street or portion thereof is greater or less than as otherwise provided in this chapter, and when the director of transportation makes regulations designating a special speed limit on said street or portion thereof, and when appropriate speed limit signs are erected, no person shall operate a vehicle in excess of the maximum speed indicated on said signs. A list of streets with special speed limits shall be maintained in the office of the city clerk and the director of transportation. (New, C.S.Ord. No. 41525, 10-20-72)”

Defense counsel produced a photograph of a sign posted at the Kansas City city limits, showing a 55-mile per hour speed limit, along with a sign stating: “Speed Limit 25 Except Where Posted.” There was no evidence that such a sign was posted at every street leading into the city.

The obvious purpose of § 304.120, subd. 1, is to assure that nonresidents travelling through the state are given reasonable notice of the speed limits in the various municipalities if they are to be charged with violation of municipal regulations in that regard. Some earlier cases in other jurisdictions have given rather strict, literal construction to statutes such as this and have denied municipalities the right to prosecute for violation of speeding ordinances in the absence of a showing of literal compliance with such statutory requirements. See Decatur v. Gould, 185 Iowa 203, 170 N.W. 449 (1919). Later cases elsewhere have relaxed the requirement of literal compliance with such statutes. In People v. Lathrop, 3 N.Y.2d 551, 553, 170 N.Y.S.2d 326, 327, 147 N.E.2d 722, 723 (1958), the court held that the statute there was “ * * substantially complied with by the placement of speed signs in such a manner and at such locations as to afford this defendant fair notice of the limits of speed within the village.” See also People v. Asherman, 31 Misc.2d 1039, 223 N.Y.S.2d 614, 620 (1961), and Mitchell v. Wilkerson, 193 Va. 121, 67 S.E.2d 912, 914-915[1] (1915); 60 C.J.S. Motor Vehicles § 30, p. 234 (1969).

In this case, the city showed that signs had been posted which would be reasonably calculated to inform persons travel-ling where appellant was of the speed limit in that area. The purpose of the statute was fulfilled and the absence of literal compliance with its terms did not preclude this prosecution.

Appellant also argues that there was insufficient evidence to support the charge that she was driving her auto at 52 miles per hour. This contention is based upon the fact that the officer testified that he observed appellant driving at a speed in excess of the normal traffic flow. Appellant contends that testimony from the officer was required to show that she was driving in excess of the posted limit. There was evidence that the radar unit operated by the officer and properly tested for accuracy recorded appellant’s speed as 52 miles per hour. That evidence, not challenged, was sufficient to sustain the charge. 7 Am. Jur.2d, Automobiles and Highway Traffic, § 327, p. 870 (1963). City of Kansas City v. Hill, 442 S.W.2d 89, 92[3] (Mo.App.1969), cited and relied upon by appellant, takes note of the cumulative opinion testimony of the arresting officer, but does not require such evidence to support a conviction based upon a radar reading from a properly tested device.

Judgment affirmed.

All concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Jennie Knauer WHITE, Appellant.
    No. 37032.
    Missouri Court of Appeals, St. Louis District. Division Two.
    April 19, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.
    Gary L. Gardner, Asst. Public Defender, Melvin Franke, Union, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Union, for respondent.
   SMITH, Judge.

Defendant was convicted by a jury of arson of a dwelling house and sentenced to two years imprisonment. She appeals.

On appeal she raises two contentions: (1) the court erred in failing to suppress her oral and written confessions and (2) the court erred in failing to sustain her motion for acquittal because there was no corroborating evidence of the corpus delicti of the offense. Since we find defendant’s second contention meritorious, we need not reach her first.

“Unless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extra-judicial admissions, statements or confessions of the accused are not admissible in evidence, and where improperly admitted are insufficient to sustain a conviction.” State v. Summers, 362 S.W.2d 537, 542 (Mo.1962) [13].
"... [T]his rule does not require full proof of the body of the offense, independent of the confession. If there is evidence of corroborating circumstances independent of the confession, which tends to prove the offense by confirming matters related in the confession, both the corroborating circumstances and the confession may be considered in determining whether or not the corpus delicti has been established.” City of St. Louis v. Watters, 289 S.W.2d 444, 446 (Mo.App.1956) [2-4].

Establishment of corpus delicti requires evidence that a crime has occurred.

The corpus delicti of arson is a fire of incendiary origin. There is no question a fire occurred, the question is incendiary origin. On February 27,1973, at approximately 10:15 p. m. there was a fire on a second floor porch connecting four apartments. The fire was in cardboard boxes containing floor tile. The cardboard, the floor of the porch and the porch railing were burning when the fire was extinguished. The fire occurred about 10 or 12 feet from the door of defendant’s apartment. During the fire, policemen broke into defendant’s locked apartment to protect her and found her in bed, apparently asleep.

There was evidence that no faulty wiring existed in the vicinity of the fire, there was no lightning at the time of the fire, and no flammable liquids, matches or rags in the vicinity. The state premises its argument for affirmance upon the following question and answer:

“Q. And from your investigation you could not determine any natural cause for the fire. A. That’s right.”

This response does not support a conclusion that the fire was of incendiary origin. It does not necessarily eliminate all natural causes and it does not even purport to be directed at accidental causes. It is no more than a statement that the witness did not know what caused the fire. An unexplained fire is presumed to be the result of natural causes or accident or at least not of criminal origin. State v. Paglino, 291 S.W.2d 850, 857 (Mo.1956) [8, 9]. There is no evidence which tends to establish that an incendiary fire occurred or which corroborates defendant’s statements. In that posture defendant’s statements were erroneously admitted into evidence over objection and the court erred in not sustaining defendant’s motion for judgment of acquittal.

Judgment reversed, defendant discharged.

McMILLIAN, P. J, and STEWART, J., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri ex rel. Derwin DODSON, Relator, v. Theodore McNEAL, etc., Comprising the Board of Police Commissioners, St. Louis, Missouri, Appellants.
    No. 38,061.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 19, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Lashly, Caruthers, Thies, Rava & Hamel, Albert J. Stephan, Jr., St. Louis, for appellants.
    London & Greenberg, Lawrence J. Fleming, St. Louis, for relator.
   CLEMENS, Presiding Judge.

Relator Derwin Dodson, a St. Louis police officer, sought mandamus against Respondent Board of Police Commissioners to compel the Board to hold a hearing to determine whether Dodson’s injuries in an auto accident were incurred “in the line of duty.” The circuit court held Dodson’s injuries were suffered in the line of duty and ordered the Board to hold a hearing to determine compensation for the disability. The Board appeals the issuance of the writ of mandamus.

The Board’s first contention disposes of this appeal. It challenges the circuit court’s jurisdiction to entertain Relator’s petition for a writ of mandamus. We uphold that challenge and hold the circuit court erred in denying the Board’s motion to quash.

In 1973 Relator Dodson was injured in an auto collision on his way by a circuitous route from home to court under subpoena to testify. This was outside his regular duty hours. As a result of his injuries Dodson went on accumulated sick leave and was off duty 157 days. The day after the collision, April 17, 1973, the police department informed Dodson his injuries were “non-line of duty injury.” Dodson took no action to appeal this classification. A few months later the Department took disciplinary action against Dodson for failure to file a request for extension of sick leave 15 days before the exhaustion of his accumulated sick leave. The day his sick leave was exhausted, August 21, 1973, Dodson filed his request for furlough without pay (extension of sick leave) noting on the form “all sick credits . . . exhausted effective 8-20-73.” The police Board held a hearing October 16,1973 on the disciplinary charges at which both parties were represented by counsel and Dodson testified. The Board issued its findings December 12, 1973. It concluded Dodson had failed to make a timely request for extension of sick leave and suspended him for five days without pay. Dodson did not appeal, but two years later brought this mandamus action.

Whenever an administrative agency, such as the Board of Police Commissioners, renders a decision in a “contested case,” review cannot be by mandamus. Section 536.150, RSMo 1969. An action which deprives a police officer of pay is a “contested case” within the definition of Section 536.-010(2), RSMo 1969. Davis v. Long, 360 S.W.2d 307 [2, 3] (Mo.App.1962). Appeals from “contested cases” must be filed within 30 days after notice of the decision. Section 536.110(1), RSMo 1969. Moore v. Damos, 489 S.W.2d 465[7] (Mo.App.1972).

We conclude that in disciplining Dodson for failure to timely request extension of sick leave the Board necessarily ruled Dodson’s injury was non-line-of duty. Our conclusion stems from Police Regulation 8.413: “No sick leave credit shall be deducted from members who shall have been absent from line of duty due to a line of duty injury:” (Emphasis added). Dodson testified he was aware of that regulation when he filed for extension of sick leave. In fact, Dodson himself noted the exhaustion of his sick leave credits on his request for leave of absence. A reading of this regulation leads to the conclusion an extension is not required when the injury is classified as line of duty, because sick credits are not exhausted by such injuries. In finding Dodson failed to make a timely request for extension, the Board necessarily found an extension was required. Therefore, Dodson’s injuries were necessarily classified as not “line of duty” injuries.

The proper procedure for review of the Board’s decision was an appeal filed within 30 days. Dodson could then have asserted his claim his injury was incurred in line of duty and request the Board to consider all competent and material evidence. Section 536.140(2), (4), RSMo 1969. Because Dodson failed to make timely use of the appellate review provision, § 536.110(1), RSMo 1969, the circuit court had no jurisdiction to grant mandamus. Moore v. Damos, supra.

Judgment reversed.

DOWD and SMITH, JJ., concur.


text:
    William Bennett BEAVER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38345.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 19, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
   DOWD, Judge.

This is an appeal from the denial, without an evidentiary hearing, of defendant’s motion to vacate a conviction based on a plea of guilty to second degree burglary.

At the proceeding of October 10, 1975, defendant received three sentences. On a conviction by a jury trial of attempted second degree burglary, defendant was sentenced to five years’ imprisonment. His subsequent pleas of guilty to stealing over $50 and to second degree burglary each resulted in a two year sentence. The two year sentences were to run concurrently with each other, and consecutive to the five year sentence previously imposed. In imposing these sentences following defendant’s guilty pleas, the court adopted the State’s recommendations.

Before accepting each of defendant’s guilty pleas, the court questioned him at length regarding his understanding of their consequences, and his voluntariness in entering them. Defendant responded that he understood the various rights associated with his right to trial, that he was in fact guilty of the offenses charged, that no promises or threats were made to induce his pleas, that he was aware of the possible length of the sentences and understood the difference between concurrent and consecutive sentences, and that he knew what sentences the State recommended and understood that the court was not bound by them.

Defendant alleged in his motion to vacate first, that he received ineffective assistance of counsel since counsel falsely promised that, if defendant pleaded guilty to the burglary charge, he would receive a two year sentence to run concurrently with the five year sentence, when in fact the sentence was imposed to run consecutive to the other, and secondly, that his guilty plea was not voluntary, since it was induced by counsel’s promise. The reason for basing the motion on the burglary charge only and not also the stealing charge, which resulted in an identical sentence, is not apparent.

Among facts listed in support of his motion was defendant’s allegation that counsel instructed him to answer, when asked by the court whether any promises or threats had been made, that there had not.

The only issue before this court is whether or not defendant’s motion warranted a hearing. To do so, the motion “must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted.by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974). In examining the motion, we look only to the issue of volun-tariness, since once a plea of guilty is entered, the adequacy of counsel’s representation is reviewable only to the extent that it affects the voluntariness and understanding with which the plea was made. Matthews v. State, 501 S.W.2d 44, 47 (Mo.1973); Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975).

Defendant argues that the holding in Burgin v. State, 522 S.W.2d 159 (Mo.App.1975), requires us to reverse. In that case a defendant who was convicted on a guilty plea alleged in his post conviction motion that his counsel had promised him a two year sentence in exchange for the plea, and that he told defendant to answer “no” when the court asked whether a deal had been made. By reason of the further allegation that that statement was a lie, however, the record no longer refuted defendant’s first allegation.

“This further allegation, if true, would taint the voluntary nature of the plea. The withholding from the trial judge of a promise made destroys the purpose prompting the inquiry by the court. The question by the trial court relating to a ‘promise’ is intended to determine that the plea is not ‘involuntary’ in the sense that a ‘promise’ by anyone other than the judge is not binding on the court and that the defendant is not misled by a ‘promise’ of a certain sentence not within the power of the promisor to perform.” 522 S.W.2d at 160.

The cause was remanded to the circuit court for an evidentiary hearing.

Allegations in the post conviction motion examined in Mainord v. State, 541 S.W.2d 779 (Mo.App.1976), were similar to those in Burgin, but denial of the motion without an evidentiary hearing was affirmed. This court found that the language in Burgin regarding the purpose of the court’s questions about promises, which was to prevent defendant from being misled, suggested that the court had failed to inform defendant clearly that it was not bound by promises. Defendant Mainord, however, had been informed by the court during the plea proceeding that the court was not bound by any promises of the prosecutor or defendant’s counsel, and defendant had acknowledged that fact in his signed petition to enter a guilty plea. The prosecutor and defense attorney also testified that no plea bargaining had occurred. This court concluded that, even if “backroom promises” had been made, the sentencing court had by its painstaking questioning thoroughly informed defendant that any deals were no longer in force. On this basis the court held that defendant’s allegation that he was instructed to lie was refuted by the record made at the plea proceeding.

Before accepting defendant’s plea of guilty to the second degree burglary charge in this case, the court made no general statement to the effect that it was not bound by any promises which may have been made to defendant. The court made clear to defendant that it was not bound to impose the state’s recommended sentence, but this was the sentence actually imposed, and not that which defendant alleges he was promised by his attorney.

The court did, however, advise defendant that defendant could receive a concurrent or consecutive sentence and that the choice rested with the court:

“THE COURT: Do you understand that by pleading guilty to the charge of burglary, you can be sent to the Department of Corrections from anywhere from two to ten years?
MR. BEAVER: Yes, sir.
THE COURT: And that that sentence can be made to be served at the same time as the other sentence you’ve received or after those sentences, depending on what I think is the right thing to do? Do you understand that?
MR. BEAVER: Yes, sir.”

We believe that this statement by the court sufficiently informed defendant that the court reserved the decision regarding whether a sentence should run concurrently or consecutively, and thus was not bound by any arrangements made by others. It was about this very aspect of his two year sentence that defendant alleged the promise had been made. We find that defendant’s allegation that his attorney told him to lie is refuted by this portion of the record, and that he is therefore not entitled to an evidentiary hearing. Mainord v. State, 541 S.W.2d at 781.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge. DOWD, Judge,

text:
    STATE of Missouri, Respondent, v. Michael J. SANDERS, Appellant.
    No. 37420.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 10, 1977.
    Application to Transfer Denied July 11, 1977.
    T. Scott Richardson Jr., St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of felonious assault and the trial court sentenced him to five years’ imprisonment. On appeal defendant raises a single point — that the trial court erred in giving the “hammer instruction” (MAI-CR 1.10) after it had learned the jurors were deadlocked at nine to three for conviction. The relevant proceedings:

After deliberating two hours the jury foreman sent the judge a note saying, “The Jury can’t agree on a verdict. There are 9 for guilty and 3 for not guilty.” Defense counsel moved for a mistrial. The jury was called into open court and answering the court’s question the foreman gave his “considered opinion” a verdict could not be reached and that there was no need for further deliberation. The court invited individual jurors to express a contrary view but none did. Defense counsel again moved for a mistrial. He then objected to the court having given the hammer instruction on the ground the court knew just how the jurors stood and that the instruction would coerce the three jurors holding out for acquittal. Over this precise objection the trial court gave MAI-CR 1.10. The jury retired and ten minutes later returned a unanimous guilty verdict. Judgment, sentence and appeal followed apace.

The novel issue here is the propriety of the hammer instruction when the jurors had told the court just how they were divided in their votes for conviction and acquittal.

A kindred but distinguishable issue arises when the court asks a deliberating jury about the status of their deliberations. The leading case is State v. Baker, 293 S.W.2d 900[4, 5] (Mo.1956). There, the trial court asked the jurors “how you stand numerically but not how you stand,” and the jurors answered “ten to two.” In upholding the hammer instruction the court ruled: (Our emphasis).

“We have no doubt that it is common practice in this State, when the jury has deliberated for a considerable time, for the Judge to inquire how they stand numerically, without indicating what party or result they favor, for the purpose of ascertaining whether there is a reasonable probability of an agreement. Authorities differ as to the propriety of such an inquiry but we think the real question is whether there was any coercion of the jury in connection with it. See Annotation on Coercion, 85 A.L.R. 1420, 1450; 53 Am.Jur. 673, Secs. 954-955; 23 C.J.S., Criminal Law, § 1380, p. 1058. Such an inquiry has been barred in the federal courts by the decision of the United States Supreme Court in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, which held ‘that the inquiry itself should be regarded as ground for reversal’, saying that ‘in general its tendency is coercive.’ However, our view is that such an inquiry is not coercive per se but that it must be determined from the record of what is said and done at the time whether or not there is any indication of coercion.”

Basic principles of jury trials require jurors to perform their role free from extraneous factors. In the eyes of many jurors the trial judge can do no wrong; his word is law and jurors are sensitive to what he says and does. To this end, in State v. Taylor, 336 S.W.2d 495[6, 7] (Mo.1960), the court warned: “The practice of exchanging communications with a [deliberating] jury by the trial court is not commended.”

A host of cases concerns hammer instructions. (27 A Mo.Dig., Trial, ⅞=314, Urging or Coercing Agreement). None concerns the unusual factor here, i. e., giving the instruction when the judge knows “what party or result they favor” and the jurors know he knows. By MAI-CR 1.10 the court tells the jury it is desirable for them to bring in a unanimous verdict and that they should endeavor to reach such a verdict. Given to deliberating jurors who have not indicated which party they favor, the instruction is persuasive but not necessarily coercive. But here three jurors were for acquittal and each knew the judge was aware of their minority position. To them the judge’s expressed desire for a unanimous verdict could mean but one thing— that he felt the three jurors should reconsider their votes. We hold that under this particular circumstance the hammer instruction deprived those three jurors of the independence of thought to which all jurors — and the litigants — were entitled. We hold that giving MAI-CR 1.10 under the circumstances was error. We now consider its materiality.

In Anderson v. Bell, 303 S.W.2d 93 [8-10] (Mo.1957) the court held that the hammer instruction “should be given only on those infrequent occasions when it is reasonably certain that no coercion will be thereby exercised” and giving it may, under the circumstances of a given case, indicate that a verdict was the result of coercion.” The court added that it must determine whether coercion in fact occurred.

Having held that giving the hammer instruction was error, we look to its apparent coercive effect. This case was not uncomplicated; in two days of testimony the jurors had heard thirteen witnesses for the state and defendant. After deliberating two hours the jurors announced they stood nine to three for conviction and unanimously declared they were deadlocked. But after hearing the hammer instruction, the three jurors yielded to the nine — this in only ten minutes. We hold that the hammer instruction was in fact coercive and vitiated the guilty verdict.

Reversed and remanded.

DOWD, J., dissents.

SMITH, J. concurs.

DOWD, Judge,

dissenting.

I must respectfully dissent. Instructions similar to the instruction which the court today holds erroneous have “routinely been held not to be coercive or improper,” and the instruction given by the trial court is an expressly approved “pattern” instruction under MAI-CR. State v. Letourneau, 515 S.W.2d 838, 844[9] (Mo.App.1974); MAI-CR 1.10.

The majority opinion is based upon the fact that the trial court knew the jury stood 9 to 3 in favor of conviction when the court gave MAI-CR 1.10. However, the information as to the status of the jury’s deliberations was unsolicited by the trial court. The jury foreman volunteered the information in a note to the trial judge. Therefore, as noted by the majority, we are not confronted with the question of the propriety of judge’s inquiry concerning the status of jury deliberations. Instead, we must consider the propriety of the judge’s response to the unsolicited information. The Notes on Use for MAI-CR 1.10 do not prohibit the use of the instruction if the judge knows how the jurors stand. The Notes on Use provide only that the instruction can be given “when appropriate.” MAI-CR No. 1.10 Notes on Use (1).

I believe the majority decision ignores the fact that the coercive effect of giving MAI-CR 1.10 under the facts presented is a matter originally considered by the trial court. The decision whether to give an instruction patterned upon MAI-CR 1.10 is discretionary with the trial court and is reviewed on appeal for an abuse of that discretion. See State v. Doepke, 536 S.W.2d 950, 951[6] (Mo.App.1976). In the case at bar, the trial judge might have responded to the jury’s note in one of three ways. The court could have declared a mistrial and dismissed the jury, but such drastic action was not required. Second, the trial court could have required the jury to continue deliberations without making any statement. Because the jury had just informed the judge that further deliberations would be useless, such a response by the trial judge could confuse the jury. In any event, such a response appears unlikely to have the desired effect, meaningful discussion of the case by the jury. Third, the trial court could, as it did, give MAI-CR 1.10, urging the jury to deliberate further but cautioning the members of the jury to abide by the evidence, instructions, and their consciences. I do not believe that giving such an instruction was an abuse of the trial court’s discretion.

Although the precise issue involved in this case has never been determined, instructions similar to Instruction Number 17 have been upheld on appeal despite the trial court’s awareness of the status of the deliberations. State v. Cochrell, 492 S.W.2d 22 (Mo.App.1973); State v. Taylor, 508 S.W.2d 506 (Mo.App.1974); State v. Edwards, 536 S.W.2d 193 (Mo.App.1976). By holding MAI-CR 1.10 erroneous under the facts here, the majority decision assumes that only some members of the jury will follow some portions of the instruction. The majority state that the three jurors in favor of acquittal would necessarily view MAI-CR 1.10 as an exhortation to reconsider their votes. I see no reason why the nine jurors in favor of conviction would not also consider MAI-CR 1.10 as an exhortation to reconsider their votes. In addition, the majority opinion assumes and speculates the jury did not follow the whole instruction. I see no reason to assume that those portions of MAI-CR 1.10 instructing jurors to try to come to a decision are more likely to be followed than those portions of MAI-CR 1.10 advising the jurors to adhere to the law, the evidence, and their consciences. The jurors are instructed not to “agree to a verdict that violates the instructions of the Court, nor find as a fact that which under the evidence and his conscience he believes to be untrue.” I do not believe we should assume and speculate that jurors would fail to follow this portion of the instruction.

Finally, a verdict is not shown to be coerced simply because the jury reaches a verdict shortly after receiving MAI-CR 1.10. State v. Cook, 512 S.W.2d 907, 909[5] (Mo.App.1974).

I would affirm.

      . Referred to as the “Missouri Rule” in Anderson v. Bell, 303 S.W.2d 93[9-12] (Mo.1957); State v. Smith, 431 S.W.2d 74[31, 32] (Mo.1968), and State v. Morris, 476 S.W.2d 485[4] (Mo.1971).

      . If it is assumed, as done in the majority opinion, that coercion is indicated by the fact that the jury stood 9 to 3 in favor of conviction, it is equally logical to assume coercion occurred if the jury stands 8 to 4 or 7 to 5 for conviction. I do not believe there is anything magical about the fact that the jury was 9 to 3 in favor of conviction so as to preclude the giving of this instruction.

      . Appellant’s brief also contends that the trial court erred in giving MAI-CR 1.10 because the jury had already indicated that further deliberations would be of no use. The fact that the jury has so indicated does not preclude use of MAI-CR 1.10. State v. Letourneau, supra at 844[9]; State v. Phillips, 511 S.W.2d 841, 844[9] (Mo.1974).

      . Mistrial is a drastic remedy to be exercised only in extraordinary circumstances. State v. Letourneau, supra at 844[8].

      . The instruction here involved, Instruction Number 17, reads as follows:
      “It is desirable that there be a verdict in every case. The trial of a lawsuit involves considerable time and effort, and the parties are entitled to have their rights determined once and for all in every case. The twelve jurors chosen to try this case should be as well qualified to do so as any other twelve that might hereafter be chosen. Open and frank discussion by you in your jury room of the evidence in this case may aid you in agreeing upon the facts, however, no juror should ever agree to a verdict that violates the instructions of the Court, nor find as a fact that which under the evidence and his conscience he believes to be untrue. Yet each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.”


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. J. W. THURMAN et al., Exceptions of J. W. Thurman, et al., Respondents.
    No. 37292.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Bruce A. Ring, Jefferson City, Richard E. Baker, Kirkwood, for appellant.
    J. B. Schnapp, Schnapp, Graham & Reid, Fredericktown, J. W. Thurman, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Trial in this condemnation case resulted in a jury verdict for just compensation in the amount of $39,500, and the Highway Commission has appealed. We reverse and remand.

Appellant Highway Commission condemned 13.17 acres of land, plus an easement for drainage over one-tenth of an acre and a temporary construction easement over seven-hundredths of an acre, for right-of-way purposes in the relocation and improvement of State Highway 21A in Jefferson County, Missouri.

Respondents have filed a motion to dismiss the appeal, and to award damages to respondents pursuant to Rule 84.19, for the asserted reason that the appeal is “frivolous.” The basis for this contention is that (a) appellant does not claim in its brief that the verdict was excessive; and (b) the only errors claimed by appellant pertain to allegedly improper statements made by respondents’ counsel during the opening statement or in argument to the jury which are relevant only to the issue of just compensation. Respondent argues that when no point is made that the jury award was excessive, contentions of error that pertain only to the issue of damages cannot be considered, and for that reason the appeal is frivolous.

Respondent relies primarily on Chambers v. City of Kansas City, 446 S.W.2d 833 (Mo.1969) and McCormick v. Smith, 459 S.W.2d 272 (Mo.1970). Both of these cases, and the others cited by appellant, were suits for personal injuries where there was at least one issue other than that of damages, that is, of liability. However, in a trial before a jury of exceptions in a condemnation case, the only issue is that of just compensation, frequently referred to as damages, to be paid to the condemnee for the taking. Therefore, any alleged error in the admission or exclusion of evidence or in oral argument could go only to the issue of the amount of the verdict. There is no other issue.

Respondent has cited no case which expressly holds that before it may be asserted on appeal that error occurred in the trial of exceptions in a condemnation case the con-demnor, if appellant, must also assert the verdict was excessive, or the condemnee, if appellant, must also assert the verdict was inadequate.

In legal terminology the term “excessive” when used in reference to a verdict is a word of art. Generally speaking, in determining whether a verdict is excessive, the test is whether its size is such to shock the conscience of the court. Scheidegger v. Thompson, 174 S.W.2d 216 (Mo.App.1943). Also, it has repeatedly been held in condemnation cases that an award of just compensation when supported by substantial evidence will not be disturbed on appeal on the basis that it is excessive, State ex rel. State Highway Commission of Missouri v. Hamel, 404 S.W.2d 736 (Mo.1966), and as stated in that case, “ ‘it has been held specifically that the opinion of one qualified witness as to the extent of damage “would constitute substantial evidence.” ’ ” A verdict that is supported by evidence, and therefore not excessive within that meaning and use of that term, could be substantially affected by the improper admission of evidence or improper argument.

Perhaps, strictly speaking, an appellant in a condemnation case should include in his points relied on a contention that the award is greater (or less) than just compensation because of the alleged improper evidence or argument. But, as previously noted, the amount of just compensation is the only issue in the trial of a condemnation case, and we consider it to be super technical to require a primer-like recitation of what is perfectly evident to opposing counsel and the appellate court.

We express no opinion concerning the correctness or desirability of the rule applicable to damage suits generally as reflected in Chambers v. City of Kansas City, supra, but this court in State ex rel. Highway Commission v. Gravios Farmers Club, 483 S.W.2d 786 (Mo.App.1972), refused to extend that rule “to require allegations of inadequacy as a prerequisite to considering allegation[s] of prejudicial error” in an appeal in a condemnation suit, and we now refuse to extend the rule to require a recitation of excessiveness as a prerequisite to the consideration of allegations of prejudicial error.

Respondents’ motion to dismiss the appeal is denied.

In respondents’ opening argument to the jury, counsel commented on the constitutional provision that private property may not be taken for public use without just compensation, and then said: “Of course, if we had a dictatorship, there wouldn’t be that. But, you, the jury, are the people who are going to say what is fair and full. And at that moment, from now on, you are the strongest people not only in this courtroom but in the State of Missouri as it applies to this state or in the United States. You are the boss. I don’t care how strong, how mighty Jefferson City might think it is.” An objection was overruled with the comment “You may proceed.”

During the closing argument, counsel for the Commission commented on the evidence presented by respondents as follows: “I think if a verdict was brought in in this court on the character and caliber and type of evidence produced on behalf of the property owners without any evidence by the State Highway Department, if it had ended there, on that caliber of evidence, on behalf of a lawyer [referring to respondent J. W. Thurman] who tries condemnation cases himself, who did not bring in an engineer; who did not bring in an appraiser, who did not bring in a credible witness or a credible piece of evidence, then I think there’s no point in a jury trial, that the State Highway Commission should simply ask a person: ‘How much do you want’ and avoid the problem.”

In a closing argument respondents’ counsel said this: “Mr. Baker made a statement to you — and I copied it. I hope its exactly accurate. And I think that this represents the State Highway Commission’s attitude in this case. He said: ‘There is no point’ — I quote him — ‘in a jury trial.’ That’s what he told you. And my thought was — and I wrote it down — [an objection was overruled by the court with the instruction ‘You may proceed’]. He said ‘there is no point in a jury trial.’ And that proves that this highway department doesn’t want a jury trial. They want to be dictators. They want to tell the Thurmans how much money the Thurmans can have, and you can take it or leave it, and I wrote it — [Another objection was overruled with the comment, ‘You may continue’]. Ladies and Gentlemen, on my dying oath, I wrote down, right after he said that: ‘Thank the good Lord for the jury.’ And I mean every word of it.”

During the closing argument counsel for respondents referred to the expert witnesses for the Highway Commission and the fees that had been paid to them as appraisers, and then said: “And you see why you’re here today. You know why you’re in this jury box today. Because they want to give the Plaintiffs [defendants?] ten thousand dollars or so, justify their $30,000 a year fee, go back to St. Louis, have a party and laugh. But, country bumpkins — .” An objection was overruled with the comment, “You may proceed.”

Respondents make no attempt to justify the argument on its merits. They contend only as to the second incident that it was “fair rebuttal” to appellant’s argument, and that even if it was erroneous it was invited error, and as to the third incident that counsel should not be subject to unreasonable restraint but is allowed wide latitude in discussing facts and arguing inferences.

In City of Jackson v. Barks, 476 S.W.2d 162 (Mo.App.1972), this court stated that an argument by landowner that the taking was a “forceful taking” was prejudicial because, quoting from State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858, 861 (1955), it tended “ ‘to inflame the minds of the jurors, to arouse their sympathy for the defendants and prejudice against the plaintiff, and for a verdict in a larger amount than warranted by an impartial consideration of the evidence.’ ” The argument as set out above was outside the evidence, and we consider it to be far more inflammatory than an argument that a taking was forceful, and when considered with the expression of approval by the court, it was clearly prejudicial. The argument requires a reversal of the judgment.

Appellant makes other assignments of error, but in view of the necessity to reverse the judgment we need not expressly rule them.

The judgment is reversed and the cause remanded.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Lewis JONES, Appellant.
    No. 38190.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant has appealed the trial court’s judgment re-imposing consecutive sentences of life imprisonment and five years for murder and robbery. These consecutive sentences were originally imposed in 1975 without the court having indicated that the consecutive nature of the sentences was discretionary. On appeal (State v. Jones, 534 S.W.2d 556 (Mo.App.1976)) we ruled: “The judgment is reversed and the case is remanded for the limited purpose of re-sentencing by the court, in an exercise of its discretion whether to impose the sentences consecutively or concurrently.” On May 19, 1976, with the defendant appearing in person and with counsel, and the state by counsel, the trial court took up the matter of sentences and exercising its discretion imposed consecutive sentences of life imprisonment for murder and five years’ imprisonment for robbery.

Defendant has appealed, contending the consecutive sentences violate his right against double jeopardy. That issue is not before us. As ruled in Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807[8] (1938): “After the trial court entered the judgment specified and this appeal was taken from that judgment, then the only question now before us for consideration is whether or not the judgment entered by the trial court was in conformity with our mandate.” (Citing cases).

So it is here. We remanded the case with our mandate to exercise discretion and to determine whether to impose the sentences concurrently or consecutively. The only reviewable question on this appeal is whether the trial court complied with our mandate. Since the defendant does not question compliance, and since the record of the resen-tencing shows the trial court did comply, there is no basis for the present appeal.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: STONE, Presiding Judge.

text:
    Georgia WHITE, Plaintiff-Appellant, v. ROBERTSON-DRAGO FUNERAL HOME, INC., Defendant-Respondent, and Walter L. Friedhofen, Defendant. Georgia WHITE, Plaintiff-Respondent, v. ROBERTSON-DRAGO FUNERAL HOME, INC., Defendant-Appellant, and Walter L. Friedhofen, Defendant.
    Nos. 9785 and 9786.
    Missouri Court of Appeals, Springfield District.
    May 2, 1977.
    Motion for Rehearing or to Transfer Denied May 20, 1977.
    Application to Transfer Denied July 11, 1977.
    Henry, Henry & Henry, West Plains, for plaintiff/appellant-respondent, Georgia White.
    Russell G. Clark, David W. Ansley, Wool-sey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant/respondent-appellant, Robertson-Drago Funeral Home, Inc.
    Before STONE, P. J., and TITUS and FLANIGAN, JJ.
   STONE, Presiding Judge.

On the morning of March 8, 1971, Frank Hall, then 52 years of age, an employee of Robertson-Drago Funeral Home, Inc., of West Plains, Missouri, undertook to make an ambulance run from West Plains to Springfield for the purpose of transferring Linda White from West Plains Memorial Hospital to the Cox Medical Center in Springfield. Georgia White, plaintiff in the present action, also was a passenger in the Cadillac combination hearse-ambulance, her interest and function being that of caring for Linda White, -her daughter-in-law, during the transfer. After a trip punctuated by two disturbing episodes of breathing complications on Linda’s part, the ambulance proceeded north into and through Springfield on Glenstone Avenue. Hall testified that the ambulance’s siren was “on” continuously from Battlefield Road near the south edge of the city to the point of accident, and that the “noon hour traffic” was “very heavy.” There were no adverse weather or light conditions.

As Hall approached the signalized intersection of Glenstone Avenue and Chestnut Trafficway after coming off a viaduct a short distance south of that intersection, he was following the flow of traffic at perhaps 20 to 25 miles per hour (so he said); but, because a number of vehicles had stopped in the two northbound lanes ahead of him in obedience to the then red “stop” light for Glenstone traffic, Hall pulled to his far right, and thus to the east, to proceed around those stationary vehicles and through the intersection although the light still was red. In pursuing this course, the ambulance traveled five or six feet east of the vehicles halted behind a white “stop line” across Glenstone near the south edge of the intersection. Hall insisted that, as he neared the “stop line,” he was looking to his left or to the west; and that, as soon as he had moved forward far enough to sight an automobile (subsequently identified as a 1969 Buick Skylark driven by defendant Friedhofen) eastbound on Chestnut, he went into a “hard brake” and skidded to the point of collision where the front end of the northbound ambulance struck the fore portion of the right side of the eastbound Friedhofen Buick. As a result of that collision, the front end of the eastbound Buick was turned around and came to rest headed in a general northwesterly direction, and the northbound ambulance (the heavier vehicle) continued forward to the northeast corner of the intersection where it struck and broke the signal standard. Georgia White, who had been sitting on a collapsible seat “in the back,” was thrown about inside the ambulance and sustained injuries to her person.

Defendant Walter Friedhofen, the operator of the Buick Skylark, was in the process of proceeding east on Chestnut Trafficway straight through this intersection. Friedho-fen had two passengers with him, one of whom was in the right front seat at the time. Those two, in an admitted state of intoxication developed in a downtown bar, were being delivered to their homes. Friedhofen, then 71 years of age, who offered the frequently-tendered concession that he had consumed a single beer at the same bar shortly before his assumption of the Good Samaritan role, had the green light at this intersection and testified he never saw the ambulance or its red light and never heard its siren. The evidence showed that, although there was a field on the southwest corner of Glenstone and Chestnut, vision across that area for northbound drivers on Glenstone and eastbound drivers on Chestnut was, from time to time and at certain points, materially obstructed by large billboard advertising signs and also, at the time of the accident under consideration, by northbound traffic on Glen-stone approaching the signalized intersection and by several stationary vehicles waiting for the signal light to change.

At the conclusion of a two-day vigorously contested trial on April 11, 1974, the jury returned a unanimous verdict (a) finding the issues for plaintiff and against defendant Robertson-Drago and assessing plaintiff’s damages at $28,836 and (b) finding the issues in favor of defendant Friedhofen. In due time, defendant Robertson-Drago filed its motion “for a new trial as to all parties, or in the alternative, to order a remittitur of the verdict rendered in favor of plaintiff and against this defendant.” On the 84th day thereafter, to wit, on July 6, 1974, the court entered “the following order”:

“July 6, 1974: Motion for New Trial having been argued and briefs submitted and said matter having been fully considered, the Motion for New Trial is overruled on the condition plaintiff remitt (sic) the sum of $3,836.00; otherwise Motion for New Trial filed by defendant sustained as to matter of damages only; it is therefore the order and judgment plaintiff have and recover the amount of $25,000.00 against defendant Robertson-Drago and defendant Friedhofen discharged and case dismissed as to said defendant and costs taxed against defendant Robertson-Drago. Clerk ordered to notify parties of entry this date.”

It will be noted that, although the “order” neither stated nor suggested that plaintiff had made the specified remittitur or even indicated a willingness to do so, the court immediately proceeded to make the quoted minute or docket entries purporting to enter a judgment for $25,000 against Robertson-Drago. And, that there had been no such remittitur or indication of willingness to remit was evidenced and confirmed by the subsequent bold and unequivocal declaration that “[p]laintiff, Georgia White, does not accept the judgment and order of the Court of July 6, 1974,” which was included in the “Statement of Jurisdiction on Appeal” filed by plaintiff on July 16 with her notice of appeal from “the judgment and order” of July 6. (Emphasis ours)

On July 15, 1974, defendant Robertson-Drago filed its timely notice of appeal from the judgment entered of record on April 11, 1974, upon the jury verdict then returned.

Plaintiffs Appeal—Case No. 9785

Our initial observation is that obviously the above-quoted entries on July 6, 1974, were nothing more than minute or docket entries; and, by being cognominated collectively as a “judgment” in plaintiff’s notice of appeal, they were not transmogrified into a judgment from which an appeal might be taken. Cochran v. DeShazo, 538 S.W.2d 598, 601(6) (Mo.App.1976); Williams v. Williams, 480 S.W.2d 525, 527(3) (Mo.App.1972).

Furthermore, plaintiff Georgia White has filed here only a “Respondent’s Brief” in answer to the “Appellant’s Brief” of defendant Robertson-Drago in our Case No. 9786 and thereby has abandoned plaintiff’s appeal in our Case No. 9785. Rule 84.04(j), V.A.M.R. Accordingly, plaintiff’s appeal should be, and hereby is, dismissed.

Defendant Robertson-Drago’s Appeal—Case No. 9786

On its appeal from the judgment of $28,836 entered upon the jury verdict, Robertson-Drago presents six points, several of which are not without merit and in their totality might be found to constitute reversible error justifying retrial on all issues. Faught v. Washam, 329 S.W.2d 588, 604(30) (Mo.1959). However, meticulous and prolonged consideration of the transcript and briefs have brought us to the settled conclusion that the case should be remanded as to defendant Robertson-Drago for retrial on the issue of damages only.

The hereinbefore-quoted remittitur order entered in the trial court was in somewhat unconventional form and language, particularly in that it fixed no specific period within which plaintiff might avail herself of the option thereby accorded to avoid a retrial on the issue of damages. However, no complaint or criticism concerning the form of the remittitur order has been voiced by either plaintiff or defendant, and it is clear that plaintiff unequivocally refused to remit.

On the transcript presented to us, which we have seined in detail and pondered at length, we are constrained to conclude (a) that plaintiff Georgia White’s appeal in our Case No. 9785 should be and accordingly is dismissed and (b) that in our Case No. 9786, recognizing and giving effect to the trial court’s remittitur order which plaintiff summarily rejected, the cause should be and accordingly is remanded to the Circuit Court of Howell County as to defendant Robertson-Drago for retrial on the issue of damages only.

It is so ordered.

TITUS and FLANIGAN, JJ., concur.

      . Hall averred his then familiarity with the statutory provision that “[t]he driver of an emergency vehicle may . . . [pjroceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.” § 304.022, para. 4, subpara. (2), RSMo 1969, V.A.M.S. The accident under consideration occurred shortly prior to the effective date of the 1971 amendment (Laws of 1971, pp. 323-324; H.B.113), which, however, made no here material or significant change in-any statutory provision.

      . “(j) Cross-Appeals. Where cross-appeals are involved each appellant shall file an appellant’s brief and may file a reply brief and each respondent shall file a respondent’s brief in answer to the cross-appellant’s brief.”