author: MANFORD, Judge.

text:
    Leo WEBB, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30577.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    As Modified on Courts’ Own Motion Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 15, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.

      John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from order denying post-conviction relief pursuant to motion filed under Rule 27.26.

The circuit order denying post-conviction relief was entered upon the record and without an evidentiary hearing. The order was entered of record November 1, 1978.

On July 29, 1975, appellant was, by jury, convicted of two counts of receiving stolen property. Punishment was assessed at seven years on each count, said sentences to run consecutively. Appellant was sentenced on September 12, 1975. Appellant’s conviction was upheld on appeal, see State v. Webb, 544 S.W.2d 53 (Mo.App.1976).

Appellant filed his motion for post-conviction relief pursuant to Rule 27.26. The circuit court denied relief without an evi-dentiary hearing and upon the record. This appeal followed the action by the circuit court.

On this appeal, three points are alleged as error. Appellant first contends the trial court erred in overruling appellant’s motion because appellant did not knowingly, voluntarily and intelligently agree to the consolidation of both charges against him. Appellant claims he was tried jointly on both charges as a result of being misled by the trial court. Appellant also claims that his counsel ineffectively advised him that the prosecutor could dismiss both charges and refile an information alleging both charges in separate counts, and that he therefore had no right whatsoever to move for the severance of both counts.

Appellant, for his second contention, claims the court erred in overruling his motion because he was not present and did not waive his rights to be present at the hearing to determine the applicability of the Second Offender Act.

Appellant’s final point alleges that the trial court erred in overruling his motion because his trial counsel was ineffective in-neglecting to object to the introduction of certain evidence.

Upon briefing and docketing, this case was orally argued before this court. Appellant was granted leave to submit and include for consideration the case of State v. Buford, 582 S.W.2d 298 (Mo.App.1979).

The points alleged will be taken up and disposed of in the order of their presentation. The facts, as applicable to each point, must be considered.

As to point one, the record discloses the following discussion relative to the consolidation of the two counts:

“THE COURT: All right. Now, I want to ... I also want to advise you that you do have the opportunity under the present status of the cases, of trying having those two cases tried separately. However, there would be nothing to prevent the prosecutor’s office from proceeding under a reindictment or dismissal of these cases and refiling both cases under two counts in which event they would be tried together. Now, all I want to get straight for the record is, that what we’re proposing to do here this morning is to commence the trial of all three cases and its’s your request that all three cases be tried before the same jury at the same time, is that right?”

to which appellant responded,

“LEO WEBB: I don’t have no objection to that, but what I was going to say is, if I did do that, I have to make another bond of what they say. I have done spent a thousand dollars already on bonds, see, put it five thousand on each charge. What I am getting at is, they read one indictment that I had to make a $5,000.00 bond, then they read another indictment, then I have to make another $5,000.00 bond.”

Following that interchange, the court continued:

“THE COURT: All I’m trying to get at, Mr. Webb, is that there are two separate cases against you and we’re going to proceed to try both of them at the same time, and I want to know if you have any objection to that.”

Appellant responded to the court’s second reference to trial on both counts with the following:

“LEO WEBB: No, I don’t have no objection to it.”

On the record, there followed an inquiry by the two attorneys representing appellant to see if he understood that the charges could be dismissed and a trial held on both counts at a later time. Appellant acknowledged he had this explained to him and that he understood the matter.

Under point one, appellant charges he was misled by the trial court. Reference to the record herein refutes this contention. To the contrary, the trial court provided appellant timely opportunity to object to trial on both cases.

The remainder of the allegations of point one is different, if not unique, in that appellant alleges violation of his rights under Rule 24.04 by reason of ineffective assistance of counsel. Rule 24.04 states:

“All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.”

It is alleged that counsel for appellant failed to advise appellant of his right to file a motion to sever the- two cases against him if and upon the condition that the prosecutor chose to dismiss and refile the charges as discussed supra.

Rule 24.04, of course, provides a safeguard against improper joinder of offenses. The rule itself does not mandate a severance of multiple charges, rather, an accused possesses the right to file a motion to sever the counts, see State v. Buford, supra. Our courts are possessed of discretion as to the granting of the motion, State v. Crane, 559 S.W.2d 294 (Mo.App.1977) and State v. Brannom, 539 S.W.2d 747 (Mo.App.1976).

In the case of State v. Prier, 561 S.W.2d 437 (Mo.App.1978), the court goes to great length to detail the rule on joinder (Rule 24.04) and provides a good comparative analysis of the similar federal rule.

State v. Prier, supra and State v. Jackson, 566 S.W.2d 227 (Mo.App.1978) were cited and relied upon by appellant. By leave of this court, appellant was granted permission to include State v. Buford, supra. These cases (State v. Prier, supra, State v. Jackson, supra and State v. Buford, supra) specifically discuss the application and limitation of Rule 24.04.

State v. Prier, supra, provides that join-der of two offenses constituting parts of a common scheme does not authorize the join-der of a third offense unrelated to the first two, and for the premise that even if join-der of offenses is proper under federal rules of criminal procedure, under particular circumstances, such joinder might still be prejudicial to an accused. The case goes further in pointing out that relief is available to an accused upon a showing of prejudice and if timely objected to, severance is to be granted.

Under the case of State v. Jackson, supra, the court again pointed out that unrelated acts are to be tried separately. The court, in this case, also pointed out that the join-der of offenses is procedural and not a substantive matter. In this case, the question first arose on defendant’s motion for new trial on the basis of a violation of the defendant’s constitutional rights. The court ruled, and properly so, that the defendant had preserved nothing for review. Prior to trial, however, the defendant had filed his motion to sever. Upon claim by the state that the evidence would show the two charges arose out of the same occurrence, the motion was overruled. The cause was reversed and remanded simply upon the lack of evidence to support the state’s contention.

State v. Buford, supra, serves to declare that Rule 24.04 does not mandate severance, although, as the opinion states at p. 303, in quoting from State v. Prier, supra:

“. . . the Missouri courts have ‘evinced a willingness to consider the question of whether a trial court has abused its discretion in denying a request for separate trials . . .’”

In State v. Buford, supra, a motion to sever was filed and in reversing the cause, the court concluded that denial of severance was an abuse of discretion.

The foregoing cases all possess a common denominator, which is lacking in the case herein. That common denominator is the motion to sever and the relative action by the courts in each instance concerning the motions.

In the present case, appellant attempts to bring himself within the protection afforded in State v. Prier, supra, State v. Jackson, supra and State v. Buford, supra, by alleging ineffective assistance of counsel.

The evidence on the face of the record simply fails to support appellant’s contention. This conclusion is inescapable when one first considers there is no constitutional right to be tried upon a single offense, see State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), and that Rule 24.04 is procedural and not substantive, see State v. Jackson, supra.

In the case herein, appellant was represented by two attorneys upon trial. He was afforded the opportunity to object to the consolidation of the two cases against him. The record is clear and convincing that appellant counseled with his attorneys regarding severance and entered a voluntary waiver to exercise his right to have the cases severed. Indeed, the record shows on its face he was not only apprised of his right to have the cases tried separately, but when directly asked by the trial judge if he had any objection to the trial upon both cases, he responded with an unequivocal negative response. Avoidance of trial on two or more counts can be waived, State v. Crane, supra.

The record clearly shows appellant voluntarily waived his right to have the two charges against him severed when such a proposal was asked of him by the trial judge. The voluntariness of appellant’s action is sufficient to dispose of the matter, but this court would be remiss if the entirety of the question were not considered, since appellant postulates his point of error upon ineffective assistance of counsel.

A study of the transcript leads to the inescapable conclusion that the consolidation of the three charges was a matter of trial strategy. The record shows this question had been discussed previously and at the time of trial, the parties were prepared to stipulate trying all three cases within the same trial and before the same jury.

Under Rule 27.26, mere trial error is not a matter for review; rather, it is a matter to be raised by direct appeal, Cook v. State, 511 S.W.2d 819 (Mo.1974). Such a rule is not absolute, however, matters viola-tive of constitutional rights are properly reviewable pursuant to Rule 27.26, even though the same errors could also be raised upon appeal.

This exception does not apply regarding this appellant, under the present facts of this case, as there is no constitutional guarantee, either federal or state, to be tried for only one offense at a time, State v. Baker, supra.

As has been pointed out, it is clear this appellant entered into a voluntary agreement with the prosecution for a single trial of two offenses charged against him. The record fully discloses such trial approach had been discussed by appellant and his counsel in advance of the trial, and that the agreement to a consolidation of the causes was a trial strategy elected to be followed by appellant and his counsel.

The two foregoing conclusions were sufficiently clear on the record that it was not necessary to grant appellant an evidentiary hearing in the matter.

An afterthought conjured up by appellant and his counsel must even, under the most liberal interpretation, understanding and application of review under Rule 27.26, contain some element of substance to prevent such afterthought from amounting to nothing more than an absurd subjective conclusion. Based upon the evidence upon the face of the'record, this court is forced to conclude that the assertion made by appellant and his counsel under the facts of this case amount to nothing more than an unsupported subjective and absurd assertion.

Point one is ruled against appellant.

As his second allegation of error, appellant alleges the court erred in overruling his motion because he was not present during the determination of the applicability of the Second Offender Act. The record of this case clearly establishes that appellant was responsibly represented by two attorneys.

The record further shows that outside the presence of the jury, the state offered Exhibits 19 and 20. Exhibit 19 was the certified transcript of appellant’s incarceration for a felony offense in 1967. Exhibit 20 was a certified copy of the conviction of appellant for a felony offense in 1967. The court went to great length to insure defense counsel the opportunity to challenge these exhibits.

Appellant’s allegations would have this court believe that the trial court summarily took up the matter of the second offense without appellant’s being a party to that phase of the trial. The record simply refutes appellant’s allegation.

The records of conviction and confinement of 1967 were part of the records of Division No. 8 of the 16th Judicial Circuit.

The record herein clearly shows appellant was present during the time of the trial. The record does not show whether appellant was specifically present at the time the second offender question was determined, but it does show he was responsibly represented by counsel at this precise time.

Rule 29.02 provides that any person indicted for a felony must be present during the trial on such charge. The record herein establishes appellant was present, thus Rule 29.02 was satisfied’. Waiver of this guarantee can be made by an accused at anytime and such right can be waived by counsel for the accused, State v. Sanders, 539 S.W.2d 458 (Mo.App.1976). This record does not reflect if appellant was actually present during the second offense determination, but it does show appellant was represented by counsel and that counsel was present when this question was resolved by the trial court.

In those instances where the record does not unequivocally establish an accused’s presence but alternatively that he was represented by counsel, the rule in State v. Smith, 324 S.W.2d 707 (Mo.1959) serves as an answer to the question. The court, at 713, stated:

“While the record in express words does not state that defendant’s counsel was then present in the courtroom, there is nothing in the record to indicate that counsel was not still present, properly representing the defendant. It must be presumed that the court acted in a proper manner and, since no record is presented indicating a change of conditions or the departure of defendant’s counsel from the court, we must assume that he continued to represent the defendant. State v. Beedle, Mo.Sup., 180 S.W. 888, 890(6).” See

This question is also referred to in the statutes, wherein it is found,

“. . . when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.” (§ 546.-030, RSMo 1978)

There is no evidence in the case herein to even suggest that defense counsel waived any right of appellant; but assuming arguendo that such question might arise under a different set of facts in such instance, an accused most show that such action was prejudicial to his receiving a fair trial, see State v. Colbert, 344 S.W.2d 115 (Mo.1961). Counsel herein, as is shown by the record, was at all times present and diligent in representing appellant’s rights.

On the general question of sentencing, since in this case the Second Offender Act was properly applicable, an accused has no constitutional right to be sentenced by a jury, but sentence may be affixed by the court, State v. Morton, 338 S.W.2d 858 (Mo. 1960), and since no constitutional right is affected under such conditions, such error may not be raised by Rule 27.26, State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974).

Upon the face of the record, in addition to the statutory language of § 546.030, RSMo 1978, State v. Beedle, supra, State v. Smith, supra, State v. Morton, supra and State v. Brownridge, supra, appellant’s contention is found to be without merit. Point two is ruled against appellant.

The final point raised by appellant herein alleges ineffective assistance of counsel upon the failure of trial counsel to object to the introduction of certain documentary evidence. Appellant alleges error by the trial court in its failure to sustain appellant’s motion because the lack of such objection upon trial established ineffective assistance of counsel.

Briefly, the. issue of the warranty book as evidence must be reviewed. Law enforcement officers went to appellant’s home with a search warrant for purposes of searching for two stolen weapons. Another officer, who was assigned to the auto theft unit, accompanied the original officers. While on the premises, the auto theft unit officer identified himself to appellant and asked for and was granted permission to search appellant’s garage. Appellant knew this officer was assigned to the auto theft unit and the officer informed appellant he was investigating appellant for auto theft charges. During the permitted search, the officer was accompanied by appellant, and the warranty book for a 1963 Ford Truck was found. The book contained, on its inside cover, the words, “Mayfield, Tarkio, Missouri”. The officer, that same day, had received a report of a stolen vehicle belonging to a Mr. Mayfield. The warranty book, in an envelope but clearly identifiable as such, was in plain view of appellant and the officer.

The warranty book and the envelope were attacked vigorously by trial counsel at the time of appellant’s motion to suppress. The trial court properly overruled appellant’s motion to suppress upon the finding that the search of appellant’s premises and the acquiring of the warranty book were under the voluntary permission of appellant.

Now, upon this review, this court is requested to conclude that the trial counsel was ineffective upon his failure to object to this evidence during the course of the trial. Appellant reaches out and arrives at some mythical conclusion that the failure to object to this one item of evidence establishes his trial counsel was ineffective.

If this court were of a mind to merely consider the letter of the law, appellant’s third point could be summarily dispensed with as being not within the purview of Rule 27.26. To state in another way, the court has pointed out, “The mere failure to make objections does not constitute ineffective assistance of counsel.” Nelson v. State, 537 S.W.2d 689 at 695 (Mo.App.1976). The matter of ineffective assistance of counsel must go beyond mere error in judgment, Nelson v. State, supra, and appellant must show a substantial deprivation of his right to a fair trial, McConnell v. State, 530 S.W.2d 43 (Mo.App.1975); that suppression of evidence is largely a matter of trial strategy, see State v. Sanders, supra.

In addition to the foregoing, it is absolutely clear from the record that this appellant, at every stage of these proceedings, was represented by competent, aggressive defense counsel.

Not only under the cases of Fields v. State, supra; McConnell v. State, supra; Nelson v. State, supra, and State v. Sanders, supra, but under Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) and Seales v. State, 580 S.W.2d 733 (Mo. banc 1979) and the inherent failure of the record to support appellant’s contention, the third point of error alleged is ruled against appellant.

For the foregoing reasons, the record shows the trial court did not commit error in overruling appellant’s motion for post-conviction relief upon the record and without an evidentiary hearing, and the action by the trial court is in all respects affirmed.

All concur.

      . The rule in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), being prospective, is not applicable to the case herein.

      . It must be pointed out that appellant herein was charged with two counts and his brother was charged with a like offense. This is why the trial court refers to three rather than two cases.

      .It should be noted that appellant’s brother, upon the record, agreed to the joinder of the charges against him and that the two defendants stipulated and agreed that all three cases could be tried jointly in one trial.

      . Rule 24.04 revised effective January 1, 1979 to include provision for capital murder offenses.

      . See Federal Rules Criminal Procedure 8(a) for comparison. This rule contains language broader than Missouri Rule 24.04.

      . This section remains intact notwithstanding the enactment of the new criminal code. Reference remains to § 546.030, RSMo 1978.

      . It is recognized that Seales v. State, supra, is prospective only, but even if applied herein, action by the trial counsel would have met the test of Seales v. State, supra.


source: Caselaw Access Project

author: BILLINGS, Presiding Judge.

license: Public Domain

text:
    O. H. BRECKNER ASSOCIATES, INC., Plaintiff-Respondent, v. V. S. DiCARLO GENERAL CONTRACTORS, INC., and United States Fidelity and Guaranty Company, Defendants-Appellants, Pentecostal Church of God of America, Inc., et al., Defendants.
    No. 10990.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 3, 1979.
    Motion for Rehearing or to Transfer Denied Oct. 22, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Gary A. Love, Lilley, Cowan, Love & Doran, Springfield, for plaintiff-respondent.
    Ernest H. Fremont, Jr., Wm. Dirk Van-dever, Popham, Conway, Sweeny, Fremont & Bundschu, P.C., Kansas City, for defendants-appellants.
   BILLINGS, Presiding Judge.

Suit to enforce a mechanics lien by a subcontractor. The Circuit Court of Jasper County entered a judgment in favor of the plaintiff for $18,022.92 against the defendants V. S. DiCarlo General Contractors, Inc., and United States Fidelity and Guaranty Company, and made the same a lien against certain realty. We affirm.

Our review of this non-jury case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and requires the judgment of the trial court to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Defendant V. S. DiCarlo General Contractors, Inc., was the general contractor for the construction of “Messenger Tower” in Joplin, Missouri, and defendant United States Fidelity and Guaranty Company issued a payment bond in connection with the construction project. The masonry work was subcontracted to plaintiff and in this suit plaintiff alleged $32,688.93 was due it under the contract and for extra work pier-formed at the general contractor’s request. By answer and counterclaim the general contractor claimed various breaches of the subcontract and charges owing by plaintiff, which reduced the amount of compensation owing to plaintiff, and sought damages, interest, and attorney fees.

The trial court found plaintiff was entitled to $30,608.54 under the subcontract and $2,080.39 for extra caulking, for a total of $32,688.93. The court also found that the general contractor was entitled to a credit or “offset” of $14,666.01 for certain specified items and accordingly entered judgment for plaintiff for the balance of $18,-022.92.

In this appeal defendant V. S. DiCarlo General Contractors, Inc., contends the court erred in allowing plaintiff the sum for extra caulking and in failing to award it interest on certain items and attorney’s fees.

We have read the transcript, viewed the exhibits, and read the briefs of the parties and examined the authorities therein cited. There was substantial evidence to support the trial court’s determination that the caulking item, of which the general contractor complains, was extra work and was requested and authorized by it. The provision in the contract for allowance to the contractor for attorney’s fees and interest was limited to the situation where the contractor obtained a judgment against the subcontractor and has no application here. The court found the amounts claimed by the contractor to be “the matter for an offset as against plaintiff’s claim.” Separate findings were made upon the petition and counterclaim and a final judgment entered for the excess, pursuant to the rulé found in Rehm v. Fishman, 395 S.W.2d 251 (Mo.App.1965).

No error of law appears and an opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b), Y.A.M.R.

All concur.


text:
    Kenneth L. BECK, Plaintiff-Respondent, v. MODERN AMERICAN LIFE INSURANCE CO., Defendant-Appellant.
    No. 10840.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 9, 1979.
    Motion for Rehearing and Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Dale C. Doerhoff, Cook, Vetter & Doer-hoff, Jefferson City, David B. Rogers, Smith, Lewis & Rogers, Columbia, for plaintiff-respondent.
    Gerald H. Lowther, C. Ronald Baird, Craig F. Lowther, Lowther, Johnson & Baird, Springfield, for defendant-appellant.
   BILLINGS, Presiding Judge.

Suit by plaintiff Kenneth L. Beck against defendant Modern American Life Insurance Company for breach of an oral contract. Plaintiff alleged that defendant had breached its contract by refusing to pay him a one-half percent commission on all renewal premiums received by defendant on policies sold while the plaintiff was “Vice-President” of defendant. Plaintiff claimed that, pursuant to an April 6, 1966 oral contract, he should have received these payments for five years and 330 days subsequent to his termination of employment on December 31, 1969. The jury returned a verdict in the amount of $61,161.10 principal and $19,221.16 interest for the plaintiff. We affirm.

Defendant is an insurance company that was founded in November 1963 with its principal place of business in Springfield, Missouri. The organizational structure of the company, “in its early days”, consisted of the Board of Directors, the “Top Three”, Regional Vice-Presidents, District Managers and Agents.

The “Top Three” referred to W. E. Parker, president; Lloyd Parker, executive vice-president; and M. W. Crabtree, senior vice-president. These “Top Three” were responsible for the organization and the running of the day-to-day operations of defendant. They reported to the Board of Directors. Immediately below the “Top Three” were the four Regional Vice-Presidents. The Regional Vice-Presidents supervised certain geographical regions of Missouri that contained several “districts”. (The State of Missouri had been divided into four regions by defendant, with defendant originally only doing business in the State of Missouri). Immediately below the Regional Vice-Presidents were the District Managers. They were in charge of the agents in the various “districts” within a “region”. These “districts” usually consisted of just several counties.

On February 5, 1964, plaintiff was employed by the defendant as. an agent. Plaintiff was employed pursuant to a written agreement, referred to in the defendant company as the “Blue Agent’s Contract”. This contract provided, inter alia, that “If after three (3) years or more of satisfactory service to the company this contract is terminated and the agent has produced a minimum of One Hundred Thousand Dollars ($100,000) of life insurance, exclusive of term insurance each contract year, then the renewal commissions set out above shall be payable to the agent for an additional period equal to the number of years of service.” (Emphasis added).

Plaintiff was promoted to District Manager in August 1964. He served as District Manager until he was promoted to the Regional Vice-President position on November 8,1965. His employment contracts for both of these positions were oral. On April 6, 1966, plaintiff was again promoted to a newly created position of Vice-President, that was above the Regional Vice-President’s position and below the “Top Three” in the organizational structure. Plaintiff, Charles Fieth, and Raymond Ridge were all promoted to this position together in a meeting held on April 6, 1966 in W. E. Parker’s office in Springfield. (Prior to the creation of this new position there had been only two other “vice-presidents” and the position of an “area vice-president”).

The employment contract was again oral for this position. At trial, the plaintiff introduced testimony to show that the “vesting” provision of his agent’s contract had been “incorporated” into his prior oral contracts with the defendant and that this incorporation continued into the agreement of April 6, 1966.

Defendant’s first assignment of error is that the trial court erred in refusing to direct a verdict for the defendant at the close of the whole case. In support of this assignment, the appellant urges that (1) the plaintiff “failed to establish by clear and unequivocal evidence the terms of his oral contract”, and (2) the plaintiff failed to establish that the officers of the defendant had the requisite authority to bind the defendant to the terms of this oral contract of employment.

Whenever an assignment of error is based upon the trial court’s refusal to direct a verdict, the appellate court will review the evidence presented at trial and will determine whether or not the plaintiff has introduced substantial evidence that tends to prove the facts essential to the plaintiff’s recovery. If the plaintiff has introduced such substantial evidence, the trial court will not be found to have committed reversible error. Brawley v. Esterly, 267 S.W.2d 655 (Mo.1954); Coleman v. Ziegler, 226 S.W.2d 388 (Mo.App.1950). And, we review the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable inferences, arising therefrom, and will disregard the defendant’s evidence unless it aids the plaintiff’s case. Holland v. Lester, 363 S.W.2d 75 (Mo.App.1962); Stevens v. Wattman, 375 S.W.2d 633 (Mo.App.1964); Mincielli v. Sloan’s Moving and Storage Company, 303 S.W.2d 17 (Mo.1957).

Testimony from the plaintiff, Raymond Ridge, and Charles Fieth, established that their employment contract of April 6, 1966 incorporated by reference the terms of their earlier employment contracts with the defendant. The plaintiff introduced into evidence the contract that he had as an agent, and testified that Lloyd Parker, during this April 6, 1966 meeting, stated that the renewals for the vice-president position would “work just the same” and would be vested as per the agent’s contract. The plaintiff testified that he had been told, before this April 6,1966 meeting, that higher managerial positions within the company had renewals vested as per the agent’s contract and that he taught this concept in training schools for new agents, with the knowledge and acquiescence of members of the “Top Three”. The plaintiff and others testified that the plaintiff had satisfactorily performed his duties for the defendant and that he voluntarily resigned from the company. The plaintiff further testified that during a January 1970 meeting he was told by W. E. Parker that he would not be receiving renewals pursuant to the April 6, 1966 agreement.

The plaintiff introduced testimony from Raymond Ridge, Charles Fieth, the “Top Three”, and a member of the Board of Directors to show that the “Top Three” had acted with apparent authority. The testimony from these could clearly create a reasonable inference that the Board of Directors knew that the “Top Three” were creating and employing the plaintiff to the position of vice-president and had allowed the “Top Three” to set the plaintiff’s compensation. The plaintiff, Raymond Ridge, and Charles Fieth indicated that they knew that the Board of Directors knowingly permitted the “Top Three” to hire, create, and set the compensation of employees and that they reasonably believed that the “Top Three” had the authority to give “vested renewals”.

The above is a sample of the testimony and evidence introduced by the plaintiff and the defendant, but is sufficient to show that the requisite “substantial evidence” was introduced.

Defendant next contends the trial court erred in permitting Charles Fieth and Raymond Ridge to testify about their employment contracts with the defendant and cites Pyrtle v. International Shoe Co., 291 S.W. 172 (Mo.App.1927) for the proposition that “evidence of other contracts between a party to a lawsuit and a third person to the suit, regardless of the similarities of the contracts, are not admissible . . . .”

In Pyrtle, the plaintiff, a former employee of the defendant, sought to recover a “bonus” on his wages pursuant to a special oral contract of employment. The plaintiff called two other employees of the defendant to testify that they were also promised a similar “bonus”. The court stated the defendant’s objection that this testimony related to “a distinct and independent matter that transpired between the defendant and a stranger, with which the plaintiff was in no way connected — in other words, that such matter related to a transactions inter alios, and that the testimony therefore was not relevant for any purposes in the case,” and held that the introduction of this testimony constituted reversible error. 291 S.W. at 173.

The rule announced in Pyrtle is not applicable in the present case. Unlike Pyrtle, the testimony from Raymond Ridge and Charles Fieth did not relate to separate, independent, and distinct contracts of employment with the defendant. In the present case, the plaintiff, Raymond Ridge, and Charles Fieth were promoted to the position of Vice-President pursuant to the same oral contract of employment. Their contracts of employment were necessarily identical and contained the same provisions that the plaintiff claimed the defendant had breached. As such, it would be permissible for the plaintiff to prove the terms of his contract with the defendant through the testimony of Raymond Ridge and Charles Fieth. Their testimony asserted that the terms of the April 6, 1966 contract incorporated the provisions of earlier employment contracts with the defendant. It was, therefore, permissible for the trial court to permit Raymond Ridge and Charles Fieth to testify to these earlier employment contracts for the purpose of proving the contract provision that the plaintiff had claimed that the defendant had breached.

Defendant’s third assignment of error is that “the trial court erred in overruling defendant’s objection to plaintiff’s comment in opening statement that it was plaintiff’s ‘understanding’ that his Vice-Presidential contract would work the same as his agent’s, district manager’s, and regional vice-presidents contracts . . . .” Defendant cites case law to support the general rule that a witness ordinarily cannot testify as to his “understanding” of a matter. Defendant, however, has not raised an issue regarding the testimony of a witness. Defendant has limited its assignment of error to the issue of whether or not the trial court committed reversible error in permitting a plaintiff to comment, in an opening statement, as to his “understanding” of an issue. Defendant cites no authority that would require this court to find reversible error because of a plaintiff’s comment as to his “understanding” of an issue in an opening statement. The point is denied.

Defendant avers the trial court erred in giving Instruction No. 2, the plaintiff’s verdict directing instruction. This assignment of error is essentially an attack upon Instruction No. 2 as being misleading and confusing to the jury. Instruction No. 2, a “not in MAI” instruction, read as follows:

“Your verdict must be for plaintiff if you believe:
First, defendant agreed to pay plaintiff a commission of one-half percent of all renewal premium income, less endowments, paid to defendant on life insurance policies issued by it during plaintiff’s service as vice-president, and
Second, defendant agreed that if after three (3) years or more of satisfactory service to defendant by plaintiff that plaintiff’s employment be terminated, then the said one-half percent renewal commissions would be payable to plaintiff for an additional period equal to the number of years service, and
Third, the agreement was made on behalf of defendant by officers of defendant acting within their apparent authority, and
Fourth, plaintiff rendered satisfactory service and full performance to defendant from February 5, 1964 to December 31, 1969, and
Fifth, from and after January 1, 1970, defendant has failed to pay plaintiff any of the said one-half percent renewal commissions, and
Sixth, plaintiff was thereby damaged unless you believe that plaintiff is not entitled to recover by reason of Instruction Number 3 or Instruction Number 4.
Acts were within the ‘apparent authority’ as that term is used in this instruction, if:
1. The defendant knowingly permitted its officers to so act, and
2. Plaintiff knew that the defendant knowingly permitted its officers to so act, and
3. Plaintiff, acting reasonably and in good faith, actually believed defendant’s officers had the authority to so act, and
4. Plaintiff relied on the authority of defendant’s officers, and
5. Plaintiff will be damaged if said acts of its officers are not binding on the defendant.”

Defendant contends that the first and fifth paragraphs of Instruction No. 2 confused and misdirected the jury as to what renewals plaintiff was seeking to recover from defendant.

The test for determining the correctness of an instruction rests in whether the average juror will correctly understand therefrom the applicable rules of law. Spritz v. St. Louis Public Service Company, 341 S.W.2d 790 (Mo.1961); Fairley v. St. Louis Public Service Company, 389 S.W.2d 378 (Mo.App.1965); Koirtyohann v. Washington Plumbing & Heating Co., 494 S.W.2d 665 (Mo.App.1973). An instruction is to be considered as a whole and an independent phrase or clause should not be considered apart from its context. Spritz, supra.

The first paragraph of Instruction No. 2 clearly referred to renewals “during plaintiff’s service as vice-president,” and the second paragraph referred to renewals to be paid after the termination of the plaintiff’s employment with the defendant. The fourth paragraph stated that the plaintiff rendered service to the defendant from February 5, 1964 to December SI, 1969. The fifth paragraph stated “from and after January 1, 1970, defendant failed to pay plaintiff any of the said one-half percent renewal commissions . . . .” Reading these paragraphs in conjunction with each other, it is clear that the average juror would have correctly understood that plaintiff was seeking to recover renewals due after his termination of employment with the defendant.

Defendant further asserts that the court erred in giving Instruction No. 2 on the basis that: (1) There was no substantial evidence .introduced to support a submission on such an instruction; and (2) Instruction No. 2 submitted a claim for five years and 330 days, which is at variance with the pleadings that he was entitled to one year of renewals for each year of service after three years of satisfactory and continuous service, and was, therefore, based on incompetent evidence and imposed false issues in the case. We find no merit to defendant’s assertions.

Defendant’s fifth assignment of error is that the trial court erred in giving Instruction No. 7, in that Instruction No. 2, together with Instruction No. 7, constituted a quantum meruit theory submission, when only an express oral agreement was pleaded.

Instruction No. 7 was MAI 4.01, “without modification”, and read as follows:

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

The defendant essentially argues that plaintiff should have offered an instruction that specifically requested the amount he was seeking to recover under his breach of contract theory. It is the defendant’s position that by not requesting a sum certain, and using a general damages instruction, the plaintiff has changed his theory of recovery.

The Missouri Supreme Court has specifically held that MAI 4.01 is an appropriate damages instruction in a breach of contract case. Boten v. Brecklein, 452 S.W.2d 86 (Mo.1970). Of significance, the court in Bo-ten stated:

“It [MAI 4.01] is a short, simple, general instruction which directs an award which will fairly compensate plaintiffs for their damages. It is contemplated by MAI that where a general instruction of this kind is given the jury will be properly advised by the argument concerning details. If the attorneys disagree as to the elements of and proper measure of damages any questions raised should be settled by the court either at the instruction conference or by its rulings upon objections made during the course of the argument. No complaint is made as to any ruling of the court concerning the argument relating to damages and we will accordingly assume that no error occurred in that regard.” 452 S.W.2d at 93.

We find that the court did not err in giving Instruction No. 7. Instruction No. 7, in combination with Instruction No. 2, did not change the theory under which the plaintiff was seeking recovery. These instructions properly allowed the jury to determine the amount and issue of breach of contract damages according to the details presented in the argument of both counsel. As stated in Boten, no complaint is made as to any ruling of the court concerning the argument relating to damages and we will accordingly assume that no error occurred in that regard.

Defendant’s sixth assignment of error is that the trial court erred in giving Instruction No. 8, a prejudgment interest instruction because: (1) there was no evidence of a “demand” for payment by the plaintiff nor any evidence of when the payments were “due” under the plaintiff’s oral contract; (2) Instruction No. 8 was misleading to the jury and gave the jury a roving commission by not requiring the jury first to find for the plaintiff under Instruction No. 2 before they awarded prejudgment interest; and (3) Instruction No. 8, in conjunction with Instruction No. 7, unduly emphasized damages and misled the jury.

Instruction No. 8, a “not in MAI” instruction, read as follows:

“If you assess damages in favor of the plaintiff, then you must award plaintiff interest at the rate of six percent per annum on the sums due plaintiff from the date, after demand for payment, when said sums were due, if you believe:
First, plaintiff made a demand on defendant for payment, and
Second, the sums due plaintiff could have been determined with certainty on the date said sums were due.”

During the trial, the plaintiff testified i follows:

“Q. Were you, in fact, paid the commissions — your renewal commissions that you expected to be paid after you resigned from the company? I’m talking about the vice-presidential renewals.
A. No, sir.
Q. When did it first come to your attention that you would not be paid?
A. January the 23rd, 1970.
Q. And what happened on that day?
A. I received a check in the mail.
Q. And what did it show?
A. It didn’t show very much. It was very small.
Q. Do you know what you were paid for?
A. Agent’s renewals and district manager’s renewals and regional vice-president’s renewals.
Q. Was that a surprise?
A. Yes sir.
Q. Did you point this out to anybody in the company?
A. I made a trip to the home office to see Mr. Tiny Parker.
Q. And what can you tell the jury what was said at that meeting?
A. I went in and told him — about the check I’d received, and I wondered if there’d been a mistake. And he said there hadn’t been. And I was very shocked and dismayed and couldn’t understand why I had not received the vice-president’s renewals.
Q. Did he tell you that you would ever be paid the renewals?
A. He told me I would not be receiving them.
Q. At any time?
A. That’s right.
Q. Was there anything else said?
A. I asked him — I was dumfounded really. And I reviewed him the times that I had been promised. And his reaction was, ‘Well, you never heard me promise that, did you?’ And he says ‘Name one time.’ ”

Plaintiff further testified that he was to have been paid vice-presidential renewal commissions for an additional period of years equal to the number of years of service and introduced testimony from an actuary on the amount of interest at issue.

This testimony, considered in the light most favorable to the plaintiff and with all reasonable inferences therefrom, constitutes substantial evidence as to a “demand” and when the renewal payments became due. We hold that the trial court did not err in submitting Instruction No. 8 on the basis of insufficient evidence. Defendant’s second and third contentions have no merit. Instruction No. 8 was not misleading and did not give the jury a “roving commission”. The average juror would have correctly understood that he could not have awarded “interest” to the plaintiff, under Instruction No. 8, unless he initially found that the defendant owed the plaintiff under his theory of recovery. The trial court did not err in giving Instruction No. 8 separate from Instruction No. 7. These two instructions did not unduly emphasize damages, nor mislead the jury.

Defendant also contends the word “obligation” in Instruction No. 5, and the lack of referral back to Instruction No. 4, was misleading and suggested to the jury that the defendant owed the plaintiff some “obligation” other than that set forth in the plaintiff’s verdict director.

Instruction No. 4, a “not in MAI” instruction, read as follows:

“Your verdict must be for the defendant if you believe plaintiff agreed that if he went to work for another life insurance company, he would forfeit his vested renewal commissions earned as vice-president. Unless you find for plaintiff under Instruction Number 5.”

Instruction No. 5, a “not in MAI” instruction, read as follows:

“Your finding must be for the plaintiff on the defense that he went to work for another life insurance company if you believe:
First, defendant breached its obligation to pay plaintiff vested renewal commissions earned as vice-president, and
Second, said breach occurred before plaintiff went to work for another life insurance company.”

As we have previously stated, the test for determining the correctness of an instruction rests in whether the average juror will correctly understand the applicable rule of law. Spritz, supra. Instruction No. 4, the defendant’s affirmative defense instruction, referred the jury to Instruction No. 5. Instruction No. 5 specifically required only a “finding ... on the defense”, by the jury. It is apparent that the average juror would not have been misled into believing that he could reach a verdict for the plaintiff on any “obligation” other than that given in the verdict directing instruction. We find that the court did not err in giving Instruction No. 5.

Defendant’s final assignment of error is that the trial court erred in not granting the defendant a mistrial when the plaintiff, in his closing argument, commented that eighteen and one-half (18½) million dollars worth of premiums would go directly to the shareholders. The record shows the following:

“PLAINTIFF’S ATTORNEY: Eighteen and a half million dollars in premium income came in he could claim a commission on. You know where that went, it all went into the company, the stockholders.
That’s the purpose—
DEFENDANT’S ATTORNEY: If the Court please now, I object to that. It’s a completely erroneous statement, outside of the evidence.
THE COURT: Sustained.
PLAINTIFF’S ATTORNEY: Eighteen and a half million dollars upon which he was claiming that commission. Now, that was one purpose of the renewals and making them work. And it worked. He worked.
The other purpose was, what other retirement benefit did he have? Now, this — In this day, ladies and gentlemen, people look to their retirement.
DEFENDANT’S ATTORNEY: If the Court please, that’s outside of the evidence, we object to that.
THE COURT: Overruled.”

Defendant did not request the jury be instructed to disregard the comment of the plaintiff after the trial court sustained the defendant’s objection, nor move for a mistrial. Defendant received all of the relief it requested at the time when the “comment” was made. Where the action of the court is responsive to an objection made by counsel the court is not to be convicted of error for failure to take other and further curative steps not then sought by the party now complaining. Hiken v. Wilson's Shoes, 317 S.W.2d 673 (Mo.App.1958).

The judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri at the Relation of DOLGIN’S, INC., a Missouri Corporation, et al., Respondents, v. Robert G. BOLIN et al., the Board of Adjustment of the City of St. Joseph, Missouri, a Municipal Corporation, Defendants, Tom Cross, Ron Sokol and Frank Wilcox, Appellants.
    No. WD 30851.
    Missouri Court of Appeals, Western District.
    Oct. 9, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Ronald M. Sokol, pro se.
    Michael Paul Harris, St. Joseph, for appellants.
    Robert A. Brown, John P. Beihl, St. Joseph, for respondents; Brown, Douglas & Brown, St. Joseph, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

Denial of a motion to intervene filed by Cross, Sokol and Wilcox (appellants and hereinafter referred to by their respective surnames) in the Circuit Court of Buchanan County lies at the heart of this appeal. The attempted intervention surfaced following a series of contentious proceedings in conjunction with efforts by Dolgin’s, Inc., Northridge Estates of St. Joseph, Inc., and Sission Realtors of St. Joseph, Inc. (respondents and hereinafter collectively referred to as Dolgin’s) to obtain a building permit for the erection of a retail store building by Dolgin’s on a parcel of land in Northridge Estates, a subdivision in St. Joseph, Missouri.

After having its efforts to obtain a building permit thwarted by the Superintendent of Building Regulations, Dolgin’s timely appealed to the Board of Adjustment of the City of St. Joseph, Missouri. Following a public hearing held by the Board of Adjustment, during which Cross, Sokol and Wilcox, among others, appeared and testified adversely to Dolgin’s, the elusive building permit was again denied. Dolgin’s, refusing to take defeat lightly, and obviously unintimidated by the round of defeats it has been handed at the administrative level, pursued review of the matter in the Circuit Court of Buchanan County, Missouri. Dol-gin’s and the Board of Adjustment and its members were the named parties at the circuit court level and a transcript of the proceedings at the administrative level, along with all exhibits, were certified to the Circuit Court of Buchanan County. The Board of Adjustment and its members were represented by an Assistant City Attorney of St. Joseph, Missouri.

On the morning of and a few minutes prior to the time the matter was scheduled for hearing in the Circuit Court of Buchanan County, Cross, Sokol and Wilcox filed their now highly controversial motion to intervene which was denied by the trial court. The hearing then proceeded as scheduled and when concluded the trial court found that the building permit sought by Dolgin’s conformed to applicable zoning ordinances of the City of St. Joseph and rendered judgment reversing the action taken by the Board of Adjustment and ordering it to forthwith direct the Superintendent of Building Regulations to issue the requested building permit to Dolgin’s.

In due course the rebuffed interve-nors appealed. Cross, Sokol and Wilcox sought to intervene as a matter of right pursuant to Rule 52.12(a)(2); “Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” It is well settled that where intervention is sought as a matter of right an appeal will lie from an order denying intervention. Ozark County School Dist. R—V of Ozark County v. Lay, 358 S.W.2d 77, 79 (Mo.App.1962).

In their motion to intervene Cross, Sokol and Wilcox alleged that they were “nearby property owners” who would be “directly affected” by the subject of the action before the Circuit Court of Buchanan County, to wit, Dolgin’s effort to obtain judicial relief from refusal at the administrative level to issue it a building permit. However, nowhere in their motion to intervene did they ever allege that their interests were not “adequately represented by existing parties”, and the only allegation that could be said to even remotely touch upon “representation” was one to the effect “that their [Cross, Sokol and Wilcox] interests will best be served by having the right to personally present their own evidence, testimony, motions and other relevant pleadings . . . ”.

When the motion to intervene was presented to the trial judge to be ruled, upon, counsel for Cross, Sokol and Wilcox was pointedly asked by the trial judge what evidence or matters it was claimed could not be adequately presented by the present parties to the proceedings and counsel for the intervenors was at a loss to respond. As a matter of fact, counsel for the interve-nors candidly admitted that from an evi-dentiary standpoint the intervenors had “expressed their position in the transcript below”. Upon further interrogation by the trial judge as to reasons, if any, as to how Cross, Sokol and Wilcox would be adversely affected by not being permitted to intervene, counsel for intervenors “thought” he should be permitted to submit “additional legal argument” to “limit review of the court”, a matter addressed and covered by appropriate Supreme Court Rule. Not once did counsel for the intervenors point out with any degree or semblance of specificity wherein or why the interests of Cross, Sokol and Wilcox were or might not be adequately represented by the existing parties to the judicial review invoked with reference to the underlying administrative proceeding. Notwithstanding Dolgin’s vigorous objection to the motion to intervene, Cross, Sokol and Wilcox made no effort to introduce any evidence in support of their unverified motion and apparently felt that it spoke for itself.

Section 507.090, RSMo 1949, which bears the caption, “Intervention — when as of right and when permissive — procedure”, and former Rule 52.11, which bears the caption “Intervention”, have both been superseded by and have culminated in present Rule 52.12, which bears the caption, “Intervention”. Paragraph (a) of present Rule 52.12, bearing the sub-caption “Intervention of Right”, which is the same as Rule 24(a) of the Federal Rules of Civil Procedure except for the reference to statutes of this state instead of statutes of the United States, reads, as previously noted, as follows: “Upon timely application anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties”. Although Section 507.090, supra, former Rule 52.11, supra, and present Rule 52.12(a) are somewhat differently worded, their meaning and applicability, in essence, have remained true and consistent throughout, as revealed by the following cases dealing with their construction. In conjunction with Section 507.-090, supra, Ratermann v. Ratermann Realty & Investment Co., 341 S.W.2d 280, 288 (Mo.App.1960), had this to say: “Accordingly, the fact that a judgment is or may be binding upon one seeking intervention does not afford a basis for mandatory intervention under § 507.090, subd. 1(2)[1] supra, unless the representation afforded that party is at the same time ‘inadequate’ as that term is used within the meaning of subsection 1(2) of the statute (citation of cases omitted).” In conjunction with former Rule 52.11, Ozark County School Disk R-V of Ozark County v. Lay, supra, 358 S.W.2d at 80, citing State ex rel. Farmers Mutuals Automobile Insurance Company v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 321 (banc 1954), had this to say: “For intervention as a matter of right under the quoted clause,[2] ‘it must * * * appear that the petitioning intervener must have (1) an “interest” in the pending action, and (2) that the representation of such interest “by existing parties is or may be inadequate,” and (3) that intervener “is or may be bound by a judgment in the action”.’ ” The Supreme Court in City of Bridgeton v. Norfolk & W. Ry. Co., 535 S.W.2d 99, 100 (Mo.banc 1976), focusing upon Rule 52.12(a)(2), quoted with approval from Hobson v. Hansen, 44 F.R.D. 18, 22 (D.D.C.1968), where, in discussing Rule 24(a)(2), Fed.R.Civ.P., which is identical to Rule 52.12(a)(2), the Federal District Court held: “ ‘To intervene, then, petitioners must establish, first, that they have an interest in the proceeding, second, that they are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect” it, and, third, that their interest is not being adequately represented by existing parties.’ ”

Throughout the successive language changes undergone by Section 507.090, supra, and former Rule 52.11, supra, from which present Rule 52.12(a)(2) ultimately evolved, the requirement that one seeking to intervene must establish that his interest was not being adequately represented by existing parties has persistently remained intact. Bluntly put, Cross, Sokol and Wilcox, would-be intervenors in the instant case, although afforded every opportunity to do so, failed to establish that their interests were not being adequately represented by the existing parties (the Board of Adjustment and its members). In fact, a searching probe of this issue by the trial judge with counsel for Cross, Sokol and Wilcox, obviously made in view of counsel’s reticence to specifically address the matter, demonstrated that no case for the issue of inadequacy of representation was made.

Cross, Sokol and Wilcox seize upon the Board of Adjustment’s failure to appeal the decision of the Circuit Court of Buchanan County favorable to Dolgin’s as per se demonstrative of inadequate representation. Citing Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 142, 144 F.2d 505, 506 (D.C. Cir. 1944) cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621, Cross, Sokol and Wilcox rigidly insist that the failure to appeal ipso facto constituted ineffective and inadequate representation. Wolpe stops considerably short of the extreme meaning which Cross, Sokol and Wilcox seek to read into it. The court in Wolpe, at 507, out of a proper sense of caution, temperately observed that “[w]e do not go so far as to hold that adequate representation requires an appeal in every case”, and then went on to emphasize that the administrative body which failed to appeal in the case there at hand was “charged with arbitrary and capricious action”. Cross, Sokol and Wilcox do not contend that the Board of Adjustment acted in bad faith or in an arbitrary or capricious manner in not appealing the decision rendered by the circuit court in favor of Dolgin’s. Nor have they convincingly demonstrated the existence of any ground or grounds upon which the Board of Adjustment should have lodged an appeal so as to otherwise have given at least a minimal tone of credence to their present contention that the Board of Adjustment’s failure to appeal inexorably speaks of inadequacy of representation. From beginning to end Cross, Sokol and Wilcox, with respect to their theme of inadequacy of representation, have dealt in nothing more than sweeping generalities and cursory conclusions, whose frailties are patent. This court rejects the view advanced by Cross, Sokol and Wilcox — that mere failure to appeal ipso facto demonstrates inadequate representation within the purview of Rule 52.-12(a)(2) — as it is wanting for support in both law and logic. To subscribe to such an inflexible view would be a step towards encouraging frivolous appeals.

An additional point raised by Cross, Sokol and Wilcox on appeal, and a motion by them to strike certain “allegations” and “arguments” in Dolgin’s brief which was taken with the case, have all been rendered moot by reason that the issue written upon is dispositive of the appeal.

Judgment affirmed.

All concur.

      . Cited in the dissenting opinion in City of Bridgeton v. Norfolk & W. Ry. Co., 535 S.W.2d 99, 104 (Mo. banc 1976).

      ]. Section 507.090.1(2), RSMo 1949: “Upon timely application, anyone shall be permitted to intervene in an action ... (2) [wjhen the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.”

      ]. Former Rule 52.11(2): “[wjhen the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.”


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Orville Lee RIDINGER, Appellant.
    No. 10965.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 11, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 31, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Steven W. Garrett, Asst. Attys. Gen., Jefferson City, for respondent.
    J. Kevin Checkett, Carthage, for appellant.
   TITUS, Presiding Judge.

Defendant was jury-convicted of the felony (§ 560.161(2) RSMo 1969) of receiving a stolen Sparkomatic citizens band radio (C.B.) of the value of at least $50. § 560.-270 RSMo 1969. Pursuant to the verdict, defendant was committed to the Department of Corrections for a term of five years. Defendant appealed.

Section 560.270 provides: “Every person who shall buy, or in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the property so bought or received.”

We are required, in our appellate review of the cause, to recast the pertinent facts in evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the state. Evidence and inferences in conflict therewith will be ignored. State v. Zimpher, 552 S.W.2d 345, 346[1] (Mo.App.1977). When so recast, the evidence for consideration appears as follows.

State witnesses Taylor and Simon testified, inter alia, that they stole two C.B.’s (one a 40 channel Sparkomatic and another of a different brand) from vehicles parked “across the street” from Taylor’s apartment in Joplin and sold them to defendant, along with other goods, for $90. The sale was effected per defendant’s previous inquiry of Taylor “if I knew anybody that had any stolen goods that he could buy [and] that he would take C.B.s, smoke alarms, matching hub caps and . . . [t]ape players.” Subsequent to consummation of the sale, and acting upon information provided by the admitted thieves and with their assistance, Joplin police arrested defendant while he was operating his pickup truck in which was installed a Sparkomatic C.B. Taylor and Simon asseverated the recovered C.B. “looks like the one” or “looks like that one” they had stolen and sold to defendant.

As concerns us here, the information charged that defendant “did wilfully, unlawfully and feloniously with the intent to defraud, receive a C.B. radio . . . the goods, and personal property of Don Heer-man, the said property having previously been stolen . . . with the felonious intent on the part of the thief to permanently deprive the owner of the use thereof . .” (Emphasis supplied). The majority of defendant’s points relied on upon this appeal concern the inability of Don Heerman, as a state’s witness, to positively and independently identify the C.B. recovered from defendant’s vehicle as being the one stolen from him without allegedly resorting to hearsay and violating the best evidence rule. Defendant also claims that Instruction No. 4 (MAI-CR 7.78) was erroneous for failing to describe Don Heerman as the owner of the stolen C.B., as was done in the italicized portion of the information, supra.

“The essential elements of the offense of receiving stolen property are (1) the property must be ‘received in some way' from another person; (2) the property at the time of reception must be stolen property; (3) the receiver, at the time of reception, must have guilty knowledge that it is stolen property, and (4) the accused must have received the property with a fraudulent or criminal intent. State v. Kelly, 365 S.W.2d 602[7] (Mo.1963).” State v. Armstrong, 555 S.W.2d 640, 642[1] (Mo.App.1977). As shown by the foregoing and recognized by reported authority, “[t]he offense [condemned by § 560.270] is to receive stolen property, knowing it to have been stolen” [State v. Derrington, 137 S.W.2d 468, 471 (Mo.1940)] and “[t]he identity of the owner of the stolen goods is not within the reasonable intendment of the statute as an essential element of the crime of receiving stolen goods.” State v. Park, 322 Mo. 69, 85,16 S.W.2d 30, 35[21] (1929); State v. Brown, 332 S.W.2d 904, 908 (Mo.1960); State v. Cohen, 100 S.W.2d 544, 548[9] (Mo. 1936). “The ownership of the property previously stolen and received by the accused is not made an element of the offense defined in Section 560.270. It may be that evidence of ownership will establish proof of some essential element, but, an allegation of ownership is not essential to a charge by indictment [or information] of this státutory offense when the indictment [or information] otherwise sufficiently describes the property . . .” State v. Simone, 416 S.W.2d 96, 99[4, 5] (Mo.1967). Consequently, where it is unnecessary to allege the ownership of property, if the averred owner is named in the information, a variance between the averment and the proof is immaterial. 76 C.J.S. Receiving Stolen Goods § 16 d., at p. 30. Therefore, reference in the information that the stolen C.B. was “the goods and persona! property of Don Heerman” was unnecessary and could properly be disregarded as surplusage. State v. Rapp, 412 S.W.2d 120, 123[5] (Mo.1967); State v. Lee404 S.W.2d 740, 751[29] (Mo.1966). Defend ant was not entitled to a court-acquittal on the theory that the cause could proceed to jury determination only if the state properly proved the stolen C.B. belonged to Heerman. State v. Goff, 490 S.W.2d 88, 90[1] (Mo.1973). Whether the objected-to testi mony of Heerman was rightly or wrongly admitted is of no moment, for if it was wrongly admitted it was harmless error as it had no relevancy to the ultimate issue in the case, which was whether defendant bought stolen property without regard as to who owned it. The information averment and the testimony relative thereto were unnecessary and surplusage. State v. Wilson, 286 S.W.2d 756, 757-758[4] (Mo.1956). As, minus the surplusage, there was no variance between the information and the proper evidence, there was no error in giving Instruction No. 4 in the form mandated by MAI-CR 7.78. State v. Taggert, 443 S.W.2d 168, 175[13] (Mo.1969).

Defendant further suggests error occurred relative to State’s Exhibit No. 1 (the C.B. in question) because of the inability of Taylor and Simon, the admitted thieves, to identify the Sparkomatic C.B. as the item they had stolen and sold to defendant. Although Taylor and Simon admittedly had not recorded or specifically noted the serial number of the C.B. and could not make positive identification of the exhibit, each testified it “looked like the one” or “looked like that one” they had purloined and peddled to defendant. The identification of an item at trial need not be entirely unqualified, as the weight to be given to identity is for the jury. State v. Stancliff, 467 S.W.2d 26, 30[2] (Mo.1971); State v. Holman, 556 S.W.2d 499, 504[4] (Mo.App. 1977). Testimony concerning an exhibit that it “looks like”, “looks familiar”, “very much like”, “very similar”, etc., to an involved object, has been held sufficient to warrant its admission into evidence. State v. Kern, 447 S.W.2d 571, 574-575[3, 4] (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791[3, 4] (Mo.1956); State v. Shipman, 568 S.W.2d 947, 953—954[13, 14] (Mo.App.1978); State v. Duncan, 540 S.W.2d 130, 137[19] (Mo.App.1976); State v. Gonzales, 533 S.W.2d 268, 274[13] (Mo.App.1976); State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973).

Defendant’s final point relied on, in substance, contends the information was “fatally defective . . . for insufficiently describing the property alleged to have been stolen in that the mere words ‘a C.B. radio . . . the goods and personal property of Don Heerman’ did not adequately describe the property so as to avoid further prosecution or allow appellant to prepare his defense.”

In State v. Rose, 428 S.W.2d 737, 741-742[7, 8] (Mo.1968), the information charged that defendant did “willfully, unlawfully and feloniously and burglariously, forcibly break and enter a certain store . . ., the property of Raymond Wright, d/b/a Wright’s Jewelry, with the felonious and burglarious intent to steal, take and carry away certain goods, wares, merchandise or personal property then and there kept and deposited in the said building and that [defendant] did then and there feloniously and burglariously steal, take and carry away the said goods, wares, and merchandise, personal property of Raymond Wright with the felonious intent then and there to deprive the owner of the use thereof and to convert the same to his own use.” (Emphasis supplied). While admitting the information could have been more specifically drawn to better identify the “goods, wares, merchandise and/or personal property,” the Supreme Court ruled it sufficient in absence of any effort on defendant’s part, under Rule 24.03, V.A.M.R., to obtain a bill of particulars. It appears that the allegation in the instant case that defendant received a stolen “C.B. radio” is more particular and descriptive of the property involved than the description employed in State v. Rose.

Defendant did not challenge the sufficiency of the information below; neither did he seek a bill of particulars. We find the information sufficient. A bill of particulars under Rule 24.03 is required when necessary to enable defendant to prepare adequately for trial [State v. Kesterson, 403 S.W.2d 606, 611[5] (Mo.1966); State v. Pulis, 579 S.W.2d 395, 397-398[5] (Mo.App.1979); State v. Davis, 510 S.W.2d 790, 792[4] (Mo.App.1974)] or where it is necessary to constitute a bar to a subsequent prosecution. State v. Mace, 357 S.W.2d 923, 926 (Mo.1962); State v. Cox, 352 S.W.2d 665, 672[16] (Mo.1961). Defendant’s failure to file a motion for a bill of particulars waived his right to complain of the lack of detail which he now asserts.

Judgment affirmed.

All concur.

      . Instruction No. 4 (MAI-CR 7.78), in part, reads: “If you find and believe from the evidence beyond a reasonable doubt: First, that on or about September 1, 1977 in the County of Jasper, State of Missouri, the defendant bought a C.B. radio, and Second, that the property was of at least the value of fifty dollars, and Third, that the property had been stolen from another, and Fourth, that at the time the defendant bought said property, the defendant knew that the property had been stolen, and Fifth, that the defendant bought such property with the intent to defraud another of his lawful interest therein, then you will find the defendant guilty of buying stolen property. . . . ”


author: PREWITT, Judge.

text:
    STATE of Missouri ex rel. C. J. PATTERSON COMPANY, Relator, v. The Honorable Max E. BACON, Judge of the Circuit Court of Greene County, Missouri, Respondent.
    No. 11425.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 16, 1979.

      William W. Francis, Jr., Miller, Sanford, Joyner, Westbrooke & Charles, Springfield, for relator.
    Bob J. Keeter, Schroff, Keeter, Glass & Newberry, Kenneth H. Reid, Turner, Reid, Duncan & Loomer, Springfield, for respondent.
   PREWITT, Judge.

Relator was, or had been, the employer of a plaintiff in a personal injury action pending before respondent. The record indicates that the plaintiff was injured while in the course of his employment and received workmen’s compensation benefits. Defendants, in that action, caused relator to be served with a third-party petition seeking an apportionment of fault or indemnity on the basis of the holding in Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. banc 1978). Relator filed, in the trial court, a motion to dismiss or in the alternative for summary judgment and respondent indicated he would overrule the motions. Pursuant to relator’s petition to this court, we issued a preliminary writ in prohibition.

After our preliminary writ, State of Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), and State of Missouri ex rel. Advanced Circuitry Division, Litton Systems, Inc. v. Powell, 588 S.W.2d 493 (Mo. banc 1979) were decided. They appear to have ruled the question before us, and we are advised that the third-party petition against relator has now been dismissed. No point would be served in continuing our writ. State ex rel. Craig v. Pyle, 536 S.W.2d 523 (Mo.App.1976). Accordingly, we quash the preliminary writ in prohibition previously issued herein.

It is so ordered.

All concur.


text:
    C. E. PRESTON, INC., Plaintiff-Appellant, v. FOUR COUNTY FARM CENTER, INC., Defendant-Respondent.
    No. 11086.
    Missouri Court of Appeals, Southern District, Division Three.
    Oct. 16, 1979.

      Timothy F. Ruddy, Cape Girardeau, for plaintiff-appellant.
    C. H. Parsons, Jr., Parsons & Mitchell, P. C., Dexter, for defendant-respondent.
   BILLINGS, Presiding Judge.

In this jury-waived case plaintiff, C. E. Preston, Inc., a roofing contractor, sought to recover in quantum meruit for repairs to the roof of defendant’s building. Defendant, Four County Farm Center, Inc., filed a general denial to plaintiff’s petition and alleged that the repairs were covered by a three-year warranty under a prior contract between the parties. The trial court ruled that plaintiff failed to sustain its burden of proof and entered judgment in favor of defendant. We affirm.

Plaintiff, a Memphis, Tennessee firm, specialized in the application of synthetic materials to roofs. The materials consisted of a layer of foam and a covering coat of vinyl. In October 1973, plaintiff and defendant contracted for plaintiff to apply its synthetic materials to defendant’s metal building at Malden, Missouri, at a cost of $5,000. Plaintiff warranted the work for a three-year period against leaks, excluding leaks caused by hurricanes, hail, or physical or mechanical damage, in which event a charge would be made for labor and materials expended. The building, 125 feet by 70 feet in size, had a metal roof and housed defendant’s retail business. Plaintiff applied the materials to the roof and was paid the contract price.

Within thirty days, after plaintiff had completed the roofing job, leaks developed in the roof. Plaintiff was notified of the leaks and undertook to repair them. Thereafter, the roof continued to leak and this condition continued throughout 1974, 1975 and the summer of 1976. Defendant’s president reported the leaks to plaintiff and requested correction of the problem. In August 1976, while defendant’s president was on vacation, plaintiff’s crew arrived at the building and advised defendant’s shop foreman that they were there in response to defendant’s president having called about fixing the leaks in the roof. The foreman of the crew acknowledged that he did not talk to anyone else at the building and did not advise anyone that a charge would be made for repairing the leaks. He testified that there were three or four leaks in the roof, and to repair these leaks, required the refoaming of two spots, approximately 10 feet by 15 feet in size, and the recoating of the entire roof with the vinyl material. Plaintiff billed defendant for $3,599, claiming the leaks had been caused by hail damage to the roof. Plaintiff’s president and his son gave opinion testimony that hail had damaged the vinyl covering and caused the leaks, although the president admitted there were several things which could have caused damage to the vinyl covering.

Defendant’s president testified that the roof continued to leak after the August 1976 repairs were made and that it still leaked at time of trial in June 1978. He also testified that no hail fell in the area between plaintiff’s original application of the roofing material and August 1976. Other witnesses said they did not remember any hail falling in the vicinity of defendant’s building during the period involved and a hail insurance agent said that he had no claims for hail damage in the Malden area in 1973, 1974, 1975 and 1976.

Our review of this case is governed by Rule 73.01, V.A.M.R., as delineated by our Supreme Court in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Thus, the judgment of the lower court is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

The trial court, as the trier of facts, was at liberty to disbelieve plaintiff’s opinion evidence that the leaks in the roof were caused by hail damage. There was substantial evidence that the area in which the building was located had not been subjected to hail between October 1973 and August 1976. There was substantial evidence that within a short time after plaintiff applied the material to the roof, under the original contract, the roof leaked and this condition continued to time of trial. The trial court could, under the evidence presented, conclude that the August 1976 repairs to the roof were covered by plaintiff’s warranty. The court, absent a specific request therefor, had no duty or obligation to make findings of fact or conclusions of law and all fact issues are considered found in accordance with the judgment entered by the court. Sides Construction Co., Inc. v. Arcadia Valley RII School District, 565 S.W.2d 761 (Mo.App.1978). The cause of the leaks in the roof was the crucial fact issue and by its judgment the trial resolved this issue in favor of the defendant. The judgment is not against the weight of the evidence and no error of law appears.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    COMMERCIAL QUALITY FEED CENTER, INC., Plaintiff-Respondent, v. John E. BEASLEY, Defendant, and Carole Beasley, Defendant-Appellant.
    No. 11322.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 16, 1979.
    David E. Wilhite, Donnelly, Baldwin & Wilhite, Lebanon, for plaintiff-respondent.
    Janice P. Noland, Camdenton, for defendant-appellant.
   PER CURIAM:

Appellant Carole Beasley filed this appeal after the Circuit Court of Camden County overruled her motion to set aside a default judgment. Appellant has failed to file a transcript within the time provided by the Rules of Civil Procedure or as extended by an order of court. Respondent has filed a motion to dismiss the appeal because of appellant’s failure to perfect her appeal.

Respondent’s motion to dismiss appeal sustained and appeal ordered dismissed.

All concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Willie WILLIAMS, Appellant.
    No. 40429.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.

      William J. Shaw, Public Defender, Frank Anzalone, Richard H. Sindel, Sindel, Sindel & Sindel, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Richard Engel, Asst. Atty. Gen., Jefferson City,' Courtney Goodman, Jr., Pros. Atty., Robert Adler, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Willie Williams guilty of feloniously stealing eight coats from a Famous-Barr store; the trial court sentenced him to two years’ imprisonment. On appeal defendant contends police had no probable cause to arrest him or to seize the coats and, akin to this, that the evidence was insufficient to show he stole the coats. Next, he challenges the court’s ruling in preventing him from showing bias of a prosecuting witness by having allegedly criticized a preliminary hearing judge for dismissing the original complaint.

We relate the state’s evidence pertinent to defendant’s contention of insufficiency. A store clerk testified that when she went to work in the afternoon there were ten coats in her department, which adjoined the store exit. She had sold none and later found eight coats missing. She later identified the missing coats which were then in police custody. A buyer testified the average cost-value of each coat was $25.

The incriminating evidence came from Mr. Bracken Lyster, a store customer who testified: As he was leaving the store defendant and a woman companion entered. He walked about 35 feet to his parked car and about four minutes later, as he was starting his car, he saw defendant and the woman running out of the store, each carrying an armload of coats; he also saw a third person running with clothing. The three ran about a hundred feet to a parked car, driven by a fourth person, got in and started out of the parking lot. Mr. Lyster followed the car to the exit, stopped a few feet behind it, and noted the license number. He then began following at a hundred feet or so and on his CB radio repeatedly called for police assistance to apprehend shoplifters, giving locations of each intersection passed. Police converged on the pursued car and stopped it. A pile of women’s coats was in the stopped car, each bearing a Famous-Barr sales tag. Police arrested defendant.

We deal first with defendant’s basic points. He contends there was no probable cause for his arrest, and therefore that police seizure of the coats was illegal. In State v. Perry, 499 S.W.2d 473 (Mo.1973), an arrest was upheld on the basis of a citizen’s radio report of circumstances less definite than here. The court held a citizen’s report of a crime may reasonably be deemed reliable by arresting officers; that probable cause does not require absolute certainty. And, warrantless searches of automobiles are subject to less stringent judicial scrutiny than other searches. State v. Johnson, 558 S.W.2d 424[1, 2] (Mo.App.1977). We hold the evidence showed probable cause to arrest defendant and to seize the reportedly stolen property.

Defendant also challenges the sufficiency of the evidence to show he stole the coats. He primarily relies on State v. Celmars, 399 S.W.2d 145 (Mo.App.1966). There, defendant had been in a store, left with cigarette cartons sticking out of his pockets, and later was found nearby in possession of sixteen cartons of cigarettes. The state’s witnesses “could not tell whether the cartons of cigarettes had been stolen or purchased from the store.” We held that evidence to be insufficient. The case is obviously distinguishable.

The state supports submissibility with more relevant cases. In State v. Maxie, 513 S.W.2d 338[5, 6] (Mo.1974), the court upheld a conviction where the only evidence of defendant’s presence at the scene of the crime was his fingerprint on a paper box. The court stated the long-standing principle that a crime may be proven by circumstantial evidence even though not conclusive if it is consistent with guilt and inconsistent with innocence. In State v. Chase, 444 S.W.2d 398[4 — 9] (Mo. banc 1969), the court held evidence of defendant’s presence at the crime scene and his unexplained joint possession of recently stolen property sufficed to prove larceny. Larceny cases similar to the present case uphold the sufficiency of circumstantial evidence. See Johnson v. State, 574 S.W.2d 936[2] (Mo.App.1978); State v. Garner, 538 S.W.2d 937 (Mo.App.1976), and State v. G’Sell, 497 S.W.2d 882 (Mo.App.1973).

We hold that the circumstances recited above were consistent with defendant’s guilt and inconsistent with his innocence and warranted submission to the jury on the charged crime of stealing.

We deny defendant’s challenges to the legality of his arrest and the sufficiency of the evidence to show he stole the coats.

Defendant’s remaining point challenges the trial court’s denial of his counsel’s offer to cross examine Mr. Lyster, the prosecuting witness, about his “possible” complaint to a newspaper and a magistrate about the judicial system, based an the fact the magistrate had (prior to the grand jury indictment) dismissed the original complaint. The court ruled it would permit defense counsel to question the witness about having expressed his attitude toward the result of the preliminary hearing. Then, questioned on voir dire, the witness denied making any such complaints. When the jury was recalled defense counsel abandoned the line of inquiry. Defendant now contends the offered evidence would have shown the possible interest or bias of the prosecuting witness.

Counsel’s “offered evidence” that Mr. Ly-ster had complained about the judicial system was denied by the witness and defense counsel admittedly had no knowledge to the contrary. There is no error in barring such a line of cross examination. State v. Carry, 372 S.W.2d 1[4] (Mo.1963). Further, the range of permissible cross examination about bias is largely discretionary and we will not interfere with the trial court’s ruling absent a showing of clear abuse. State v. Neal, 526 S.W.2d 898[1-4] (Mo.App.1975). We find no such abuse here.

Judgment affirmed.

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


text:
    In re the MARRIAGE OF Carol Jo Reagan and James R. REAGAN, Carol Jo Reagan, Petitioner-Respondent, and James R. Reagan, Respondent-Appellant.
    No. 10367.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 17, 1979.

      Charles T. Smallwood, Williams & Small-wood, Rolla, for petitioner-respondent.
    William W. Hoertel, Hoertel & Wiggins, Rolla, for respondent-appellant.
   PREWITT, Judge.

Husband appeals from a judgment dissolving the parties’ marriage. He complains of an unfair division of marital property and that part of the decree that requires him to pay the wife $14,500 in cash.

The parties were married October 6,1962, and separated on September 23, 1975. A daughter was born to them on September 11,1963. Petitioner was granted custody of the daughter and $25.00 per week child support. No maintenance or attorneys fees was asked for or received by either party.

Section 452.330, RSMo 1969 requires the court to “divide the marital property in such proportions as the court deems just after considering all relevant factors” and particularly requires the court to include in its consideration the following:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;
(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
(4) The conduct of the parties during the marriage.

Under (1) above, the court would have been justified in finding that at least since wife started working in 1973 she had made all financial contributions to the household. Also, all the evidence showed she was the principal homemaker during the marriage.

In determining the values under (2), the court could have believed the wife’s evidence, the husband’s evidence or some combination. Based on values as the court may have determined them, the wife received $18,540 in assets and the husband $15,238.

Under (3), the court could have considered that the wife will have custody of the child but will also need to work. She testified that she could not afford to live in the family home. She works as a teller in a bank and he is self-employed as the owner of a body shop. There is a dispute as to his income. She testified that he does most of his business in cash and he makes more income than shown on their tax returns.

Under (4), the court could have found that wife was not guilty of any misconduct but that husband was guilty of substantial misconduct. She testified he was frequently away from home. He denies it, except for one occasion. She says he admitted being unfaithful and running around with other women. He denies it. She says he frequently beat her. He verifies at least some of the beatings but tries to justify them as being after she struck him or cussed him. On at least one occasion, after such an altercation, she required medical treatment. While this action was pending she says he intentionally ran his vehicle into a car she was driving and then threatened her with a pistol and tire tool. He denies this. She says that he often threatened to take their daughter and leave so that she could not see the daughter.

There were disputes in the evidence including valuation of assets and the conduct of the parties. Credibility of the witnesses is determined by the trier of facts. Labor Discount Center, Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407, 421 (Mo.App.1975). Where there is conflicting testimony, deference is given to the trial court’s conclusions. Richardson v. Richardson, 524 S.W.2d 149, 151 (Mo.App.1975).

The court had a duty to divide up the marital property. § 452.330, RSMo 1969; Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). More than half of the value of the marital property was the home and the real estate on which it was situated. It was valued at $25,000 by the wife and $19,-000-$20,000 by the husband. It was awarded to the husband. In Claunch v. Claunch, 525 S.W.2d 788, 791 (Mo.App.1975) this court held that the power to divide marital property includes the powers necessary to render effective the power to divide. It was there determined that the trial court may award property to one spouse and order that spouse to pay the other a sum in cash where a division and transfer in kind is impractical or does not bring about a fair result. This may be done even if the marital property does not contain sufficient cash in the amount required to be paid.

Under the evidence, the trial court could find the gross value of marital assets to be $41,515. Debts of $7,737 were undisputed, leaving a net value of $33,778. The wife received assets valued at from $4,000 to $5,000 and cash from the husband of $14,-500. The husband received assets valued from $37,475 to $27,475 and was required to pay the marital debts. He was also to pay the wife $14,500, making total payments by him of $22,237. He thus either received assets of a value of $5,238 or $15,238. If the trial court determined the value of the assets husband received as $15,238 and the wife $18,540, there is a difference of $3,302. The court would have been justified in such a division in applying the evidence to the factors to be considered under § 452.330, RSMo 1969.

The legislature has left the matter of a just division of property to the sound discretion of the trial court. In re Marriage of Cornell, 550 S.W.2d 823, 826 (Mo.App.1977). Division of property is a matter within the sound discretion of the trial court and its decision should not be overturned unless abused. Eden v. Eden, 558 S.W.2d 394, 395 (Mo.App.1977). The trial judge was in a better position to determine the credibility of the parties and their sincerity and character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584 (Mo.App.1979).

Our review under Rule 73.01, V.A.M.R. requires us to sustain the trial court’s decision, unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). We find no such error.

The judgment is affirmed.

All concur.

      . The figures in this paragraph are not exact but within $500 due to ranges in value given by the witnesses.