author: DIXON, Chief Judge.

text:
    Nancy Lakenan SIMPSON, Plaintiff-Appellant, v. James A. SPELLMAN, Jr., et al., Defendants-Respondents.
    No. KCD 26481.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.
    Application to Transfer Denied June 9, 1975.

      Max W. Foust, Duke W. Ponick, Jr., Kansas City, for plaintiff-appellant.
    Roger W. Penner, Courtney W. Perkins, Kansas City, for defendants-respondents.
    Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
   DIXON, Chief Judge.

A stockholders derivative action in equity. Plaintiff is a minority shareholder in a closely held Missouri corporation, American Investors Alliance, Inc. The defendants are James Spellman, majority shareholder, controlling director and his alter ego corporation, Ridge Spellman Insurance Agency. The suit to require the defendants to, first, account for an allegedly inadequate consideration for the purchase of treasury stock or to rescind the transaction and, second, to recover rent from the corporate defendant for space occupied by Ridge Spellman Insurance Agency in an office building in Kansas City known as 916 Walnut Street Building which is the principal asset of American Investors Alliance. One of the plaintiffs died before trial; her death was suggested, but there was no revival of the action, and it proceeded to trial with Simpson as sole plaintiff.

The trial court found against the plaintiff on that portion of the litigation directed to the purchase of treasury stock but found for the plaintiff on the issue relating to rental due in the amount of $4,662. Attorneys fees were allowed to American Investors Alliance of $1,000. Only plaintiff Simpson has appealed. She contends that the trial court’s finding that the price paid of $100 per share for 279 shares of treasury stock is clearly erroneous and that the allowance of $1,000 for attorneys fees should be made to plaintiff and not to the corporation.

The trial court made detailed findings and conclusions of law specifically related to the issues raised by the parties. Rule 73.01(3), V.A.M.R., in the form effective on January 1, 1975, applies to this appeal. It reads, in part, as follows:

“3. On appellate review:
(a) The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.
(b) Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.”

The rule as revised eliminates the provisions that “[t]he judgment shall not be set aside unless clearly erroneous.” R. L. S. v. J. E. S., Mo.App., 522 S.W.2d 5 (handed down on March 31, 1975, concurrently herewith), holds that appellate review of a court-tried case shall be as in suits of an equitable nature which demands under the existing case law that “due deference be given to the findings and conclusions of the trial chancellor, and that this rule of deference not be ignored 'unless the evidence is palpably insufficient to sustain the findings.’ ” All inferences will be drawn in favor of the party that prevailed in the trial court. Doyle v. Doyle, 497 S.W.2d 846 (Mo.App.1973); City of St. Louis v. Maloy, 485 S.W.2d 678 (Mo.App.1972). It will be affirmed on this review if it can be sustained on any reasonable theory. In Re M_ K_, 493 S.W.2d 686 (Mo.App.1973); Edmonds v. Stratton, 457 S.W.2d 228 (Mo.App.1970).

American Investors Alliance, Inc., is a close corporation chartered in Missouri. Its principal asset is the 916 Walnut Building in Kansas City, Missouri. The corporation derives most of its revenue by renting office space in that building.

Prior to July, 1958, the stock in American Investors had consisted of 800 shares, 279 owned by Tom Gavin, 278⅜ shares by James Spellman (in the name of Ridge Spellman), 133 j/j shares by Bobby Laken-an (jointly with his sister Mary Lando), and 45 shares by Mae Ridge Wood, and 64 shares by Nancy Simpson, the daughter of Bobby Lakenan. It is not entirely clear from the record, but it seems that James Spellman, Tom Gavin and Lakenan had all been associated in the American Investors Alliance corporation. Lakenan, plaintiff Simpson, his daughter, and Mae Ridge Wood represented the remaining Ridge interests in American Investors.

It is also a fair inference from the record that there was concern as to the continued operation of the 916 Walnut Building beginning as early as 1958. Spellman, indicating he did not want to be a “minor” stockholder, was at that time negotiating to sell his shares to Tom Gavin. Spellman rejected an offer from Gavin of $120,000, $100,000 in cash and land valued at $20,000 Gavin owned. Spellman was not permitted to give his conversations with Lakenan in early 1958, but it is a clear inference that Spellman refused the Gavin offer because of Lakenan’s concern as to management of the building. Before Lakenan’s death, a proposal for Gavin to sell his shares to the corporation had been presented by Spell-man to the shareholders, and there was no objection. That plan was consummated within a few days of Bobby Lakenan’s death by the sale of the Gavin stock to the corporation for $121,000 or $433 per share; $55,000 was paid in cash and $66,000 by a note secured by second mortgage. In early 1958, prior to the sale, the defendant Ridge Spellman Insurance Agency’s 278⅜ shares were 34.83 percent of the stock of Investors. Thomas Gavin’s 279 shares were 34.88 percent of the stock. The plaintiff’s 64 shares were 8 percent of the stock of Investors. James Spellman, Jr., and his wife, Mary Spellman, owned all of the Ridge Spellman Insurance Agency. After the sale by Gavin in July, 1958, the capital stock of the corporation was reduced by the purchase, and the interest in the corporation held by the Ridge Spellman Insurance Agency increased from 34.88 percent to 53 percent, and the plaintiffs’ interest increased from 8 percent to 12 percent.

Since July, 1958, the defendant James Spellman, Jr., has been the president, treasurer, and a director of Investors, and his wife has been the vice-president, secretary, and a director, also. The remaining director has been a nominee of James Spellman.

From 1959 until 1966, the plaintiff and the other two minority shareholders relied upon and trusted James Spellman, Jr., to manage and operate the corporation. In 1959, he solicited a proxy from them authorizing him to sell the 916 Walnut Building for $550,000. Between 1959 and 1962, he rejected two offers to purchase the property for $450,000. In 1959, he wrote the plaintiff that the corporation was having problems renting its office space. Between 1959 and 1964, the corporation spent $149,500 on improvements to the building. At the trial in 1970, Spellman testified that the building was 95 percent occupied.

In March, 1965, James Spellman, Jr., Mary Spellman, and their lawyer constituted the Board of Directors of Investors. On March 4, 1965, the Board of Directors voted to offer for sale to the current stockholders 279 shares of stock at the par value of $100 per share. Under the offer, each stockholder had the right to purchase that percent of the shares offered which was proportionate to the percent interest in the corporation which the stockholder held. The offer was for a 30-day period. If, after that period, any stock was unsubscribed, a subscribing stockholder could purchase any amount of the unsubscribed stock.

On May 6, 1965, James Spellman, Jr., wrote to plaintiff stating she had the right to purchase a proportionate number of the shares being offered. He told her that the Ridge Spellman Insurance Agency had the right to purchase 150 shares under the proportionate offering; that the two other minority stockholders were being offered the same opportunity to purchase a proportionate number of the shares.

The plaintiff replied by mail, stating:

As to the additional 279 shares, I’m sure you’re aware that I’m in no position to take advantage of the offer .

She stated further that she felt it would be a bad investment to purchase more Investors stock. However, she concluded by saying:

I’m enclosing the signed proxy and you do what you feel is best. No one can ask more than that of you.

The two minority shareholders other than the plaintiff did not accept the offer.

The defendant, James Spellman, Jr., purchased all 279 shares offered at the par value of $100 per share, title being placed in the Ridge Spellman Insurance Agency.

Prior to 1965, Investors regularly declared $8-10 per share ordinary dividends. In February, 1966, the directors of Investors, still consisting of James Spellman, his wife, and his lawyer, declared an ordinary $10 per share dividend, and an extraordinary $15 per share dividend. In 1967 and 1968, Investors declared ordinary dividends of $10 per share. Investors declared no dividends in 1969.

In 1966, the plaintiff revoked the proxy which she had regularly given to Spellman. In the same year, she requested that she be made a director of the corporation so that she could oversee the minority shareholders’ interest. She requested that she be placed on the payroll and without performing any services be paid $285 per month. James Spellman, Jr., told her that the corporation did not pay directors fees. He said he would not help her be made a director because she had no business experience, which she conceded, and because she lived in Southern California and was not familiar with Kansas City, Missouri. He told her the lawyers had advised him that payments to her without her rendering service would not be accepted by the taxing authorities as business expense of the American Investors Alliance.

The plaintiff filed this suit in September, 1968. It was tried in November, 1970. The trial court rendered its findings, conclusions, and judgment in October, 1972.

Originally, it was the rule of law in Missouri that any transaction in which a director of a corporation purchased corporate property was constructively fraudulent. The early courts felt that a director could not represent the best interests of the corporation in the sale of corporate property at the same time that he was also personally interested in that sale. An exception to that rule was that the sale was not constructively fraudulent if the corporation was adequately represented in the sale by other disinterested directors.

In Johnson v. Duensing, 340 S.W.2d 758 (Mo.App.1960), cited by the plaintiff, the directors of a corporation voted to sell 545 shares of treasury stock at the par value of $20 per share. The book value was $65.18 per share. The market value was $50 per share. One of the directors purchased 200 shares at par value. He then sold them at a $5 per share profit. The court relied on the early rule in Missouri, stating, l.c. 769:

“The result is, therefore, that regardless of the sufficiency or insufficiency of the price paid by the defendant Proctor for the 200 shares of treasury stock sold to him, which price he, as a director, helped to fix, and which stock he later conced-edly resold at a profit, such sale to him was violative of the public policy of this state and, when attacked, is voidable on the ground of constructive fraud.”

In Frankford Exchange Bank v. McCune, 72 S.W.2d 155 (Mo.App.1934), the original rule was clearly explained. The court said, l.c. 158:

“[T]he law, in placing its stamp of disapproval upon the maintenance of inconsistent positions by corporate officers, does not pause to inquire whether the contract or transaction was fair or unfair, nor does it undertake or attempt to consider the question of abstract justice in the particular case. Rather, it stops its inquiry when the inconsistency of position is disclosed; it sets aside the transaction, or refuses to countenance it, when it is the product of a dual undertaking ; and thus, in so far as may be, it prevents the accomplishment of frauds by making them impossible at the outset.”

See also Hill v. Rich Hill Min. Co., 119 Mo. 9, 24 S.W. 223 (1893); Central Mfg. Co. v. Montgomery, 144 Mo.App. 494, 129 S.W. 460 (1910).

The strict prohibition against directors conducting any personal transactions with the corporation of which they are a director was modified in Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425 (Mo.1968). Under the rule set out in Ramac-ciotti, supra, a director may conduct personal transactions with his corporation if he can prove that he has not gained unconscionable or secret profits in the transaction and that he has dealt openly, honestly, and fairly with the corporation and the stockholders.

“The relation alone of a director or officer of a corporation does not prevent the director or officer from doing business with the corporation at a profit.” (l.c. 432).

In light of the rule in Ramacciotti, the burden was upon the defendant to prove that he or his alter ego corporation received no unconscionable or secret profit in the transaction and that the transaction was conducted fairly, honestly, and openly.

The crucial issue is whether the defendant profited unconscionably from this transaction. The plaintiff, in her brief, admits, “the central issue in this case is whether the defendants paid an adequate consideration for the stock in question.”

Section 351.185(1) RSMo 1969, V.A.M.S., states, “Shares of a corporation issued and thereafter acquired by it may be disposed of by the corporation for such consideration as may be fixed from time to time by the directors.”

Section 351.185(3) makes the judgment of the Board of Directors of a corporation conclusive as to the value of consideration received for any reacquired shares in the absence of actual fraud.

The plaintiff has not attempted to nor could she prove actual fraud in the sale of the stock. The plaintiff’s complaint is based on a breach of fiduciary duty of the defendant; not the commission of actual fraud. All agreements were openly made and adequately performed. The plaintiff does not allege that the defendant misrepresented any existing fact to her or to the corporation. The plaintiff does not claim nor prove that the defendant intended to deceive her or the corporation.

In Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 576 (banc 1952), the court found the following elements necessary to establish fraud, citing from 23 Am.Jur. 773, Fraud and Deceit, Sec. 20, “ ‘that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury and damage.’ ”

In fact, the record shows that a full and complete disclosure of the affairs of the corporation was made to the plaintiff and no facts were concealed from the plaintiff.

The trial court made a specific finding of fact that the reasonable value of the stock was less than the $100 per share for which it was sold. The plaintiff argues there is no evidence to support, such a finding by the trial court.

Plaintiff supports the point by claiming that the $433 per share price paid to Gavin in 1958 and the alleged book value of at least $204 per share at the time of the sale of the treasury stock to Spellman in 1965, as well as the matters relating to the value of the 916 Walnut Building, such as the two offers for $450,000 and $550,000, the substantial improvements of almost $150,-000, the amount of fire insurance, and Spellman’s own valuation of the building contradict the finding of the trial court that the value of the treasury stock was less than $100 per share which plaintiff insists was a figure based on Spellman’s knowledge plaintiff could not purchase the stock.

Dealing first with the issue of the sale price to Gavin. The purchase of his shares of course represented a purchase of a proportionate part of the assets of the corporation. The quantity and quality of those assets would be reflected in the sales price. There is no dispute but what that sale was at arms length and the result of negotiations between Gavin and Spellman almost on a buy or sell basis.

The evidence is undisputed that Gavin offered to buy Spellman’s shares for $430 per share ($120,000 for 279 shares in 1958). If at that time the building had been sold for $350,000 and the debt paid, the shares on distribution of net assets would have been worth $433 per share. It is to be noted that at year end 1957 the corporation was highly liquid, the net quick assets, stocks and cash being over eight times the currently due indebtedness and the total current assets and stocks almost equaling total liabilities. It is also to be noted that although the 916 Walnut Building had not been heavily improved, it did not bear anything like the debt load existing at the later date when Spellman bought the treasury stock.

What has been said should be enough to demonstrate that the sale of Gavin’s stock to the corporation is not comparable to the sale of the same stock to Spellman. There is more, however, even more persuasive of that lack of comparability. For five years beginning in 1963 and ending in 1967, the corporation showed losses — these exceeded $18,000 in the aggregate. The difficulty in maintaining rentals in the over 50-year-old building is amply shown in the record, as well as the twin factors of a decline in demand for downtown space and the increase in supply of new office space by reason of the building of several multi-story new modern office buildings. The trial court and this court can take judicial notice of facts, trends and events affecting value, even absent such direct evidence as exists in this record.

“ ‘There is no reason why courts should pretend to be more ignorant than the rest of mankind,’ and that ‘courts ought not to proceed on the theory they do not know what every one else does know.’ State v. Missouri Pacific Ry. Co., 212 Mo. 658, 111 S.W. 500, 504.” Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770, 775 (Mo.1936).

As to plaintiff’s argument that at the time of the sale of the treasury stock, it bore a book value of over $200, the defendant made a statement in response to a question by plaintiff’s counsel that seems to admit such a book value, but the documentary evidence offered by plaintiff disproves that admission. The 1964 year end balance sheet shows total stockholders equity of $104,950 which, on the basis of 521 shares then issued and outstanding, would fix the value of the shares as slightly over $200 per share. On the basis of 800 shares, assuming the same equity, the book value per share was about $131 per share. Even on the basis of adding the consideration paid of $27,500 to the shareholders equity, the book value per share becomes only $134 per share.

It is worth noting that the addition of the $27,500 consideration had the immediate effect of increasing the book value of all shares not merely those of Spellman.

The notion of considering Spellman’s shares as a separate entity persists in the plaintiff’s argument with respect to dividends paid. The trial court found that the plaintiff was estopped to question the dividends, but the issue of estoppel need not be reached, although it is true that plaintiff not only willingly accepted the dividends paid, but repetitively asked for increased dividends. Dividends paid from the period after Spellman’s purchase to the date of trial aggregated $36,000. The defendant Spellman received approximately 70 per cent of this, or $25,000, but the portion of those dividends attributable to the treasury stock is only approximately $5,700 for the five-year period on an investment of $27,500.

Spellman did not, as plaintiff argues, receive “$25,000 of the $27,500 paid for the treasury stock.” The dividends were paid equally to all stockholders, and the amount attributable to Spellman’s acquisition of the treasury stock can only be the dollar increase in sums received by him attributable to the percentage increase by which he shared in the dividends.

As to the remaining factual arguments of plaintiff, they are equally unavailing to show the trial court’s finding erroneous. The offers for the building when considered in the light of the terms of the offers were highly speculative. The improvements were all financed from an increase in corporate debt, both long and short term. Spellman himself was required to personally guarantee the short term debt which says a good deal about what the bank felt was the value of stockholders equity. The insurance on the building was at 80 per cent of “replacement” value and bore no relationship to the value of the 50-year-old structure. Spellman’s own estimate of value of the 916 Walnut Building was $390,000 at the time of his purchase of the treasury stock. This demonstrates the same optimism which permitted him to personally secure the short term debt and invest $150,000 in improvements on a 50-year-old building and turn it around from its admittedly unfavorable competitive and low percentage of rental position to a 95 per cent occupancy and a favorable competitive situation at the time of trial. Plaintiff admits, and the record shows, Spellman did an outstanding job in management of the building.

It cannot be taken as a true estimate of value, for when Spellman gave it, he indicated that ■ he arrived at the value by assuming that since he paid $27,900 for 16.2 of the stock, 100 per cent of the stock would be worth $172,000 and that would be the equity in the company. From that, he calculated a value for the building by assuming such an equity value. The fallacy in his reasoning is that there was no such value to the equity, and he completely ignored short term debt in his calculations while it is apparent the short term debt financed the improvements in the building.

It was not erroneous for the trial court to find that the defendant made no unconscionable profit from this transaction, either in the sale itself, or from the declaration of the extraordinary dividend.

The second burden the court in Ra-macciotto, supra, placed on a self-dealing director was to prove the transaction was conducted fairly, honestly and openly. It is undisputed that each stockholder had full knowledge of the terms of the offer and adequate opportunity to accept it. In his letter of May 6, 1965, to the plaintiff, the defendant candidly set forth the terms of the offer and why it was being made. He asked the plaintiff to inform him whether she would accept part or all of the offer prior to the next stockholders meeting. The transaction was conducted openly and honestly on these facts. The copies of the financial statements offered in evidence which the plaintiff received, as well as Spellman’s correspondence with her, make it clear that she was fully, fairly and accurately informed.

Plaintiff was not an optimist as Spell-man was; she did not want to risk her money or credit, and he was willing to do so. The argument of the plaintiff really boils down to wanting the benefit of the gamble she would not take. She claims inability to buy, but she could have borrowed on the sixty-four shares she owned to buy the thirty-two she was entitled to. With ninety-six shares, her debt would have been $35 per share, and her percentage increase in the participation would have equalled Spellman’s. The record clearly shows an open, honest and fair transaction.

The plaintiff was successful on Count II of her amended petition. She alleged that the defendants used space in the 916 Walnut Building rent-free commencing on January 1, 1963, for business not connected with Investors. The court ordered that the defendants, James Spellman, Jr., Mary Spellman, and the Ridge Spellman Insurance Agency pay $4,662 to Investors in compensation for the rent-free use of the building. The plaintiff claims it was clearly erroneous for the trial court to have additionally ordered $1,000 attorney fees to be paid from the defendants to Investors on Count II. The plaintiff claims the attorney fees should be ordered paid by Investors to plaintiff. It is clear that the plaintiff has a right to receive attorney fees from Investors. 18 C.J.S. Corporations § 579 (1934); 39 Columbia Law Review 781 (1939); Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652 (Mo. banc 1962). The defendants cite no authority authorizing the nominal defendant Investors to receive attorney fees from the actual defendants Spellman or his alter ego corporation. Indeed, Investors filed no third party petition against the defendants seeking attorney fees. The reason attorney fees are allowed to the plaintiff is to make it not prohibitive for a minority stockholder to bring a derivative action. If a minority stockholder were forced to pay the cost of even a successful suit from which he personally derived nothing but the corporation gained an asset, there would be no motivation on the part of stockholders to bring derivative suits. 39 Columbia Law Review 781 (1939).

It is equally established, however, that any attorneys fees awarded must come from the fund created for or gained by the corporation. Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833, 939 (Mo. banc 1960); Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881); Atwater v. Elkhorn Valley Coal Land Co., 184 A.D. 253, 171 N.Y.S. 552 (N.Y.App.1918); Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652 (Mo. banc 1962). Therefore, the attorneys fees should be awarded to the plaintiff from the $4,662 judgment rendered against the defendants, Spellman, his wife, and the Ridge Spellman Insurance Agency to Investors.

On Count I, the judgment is affirmed, and on Count II the judgment is modified by reversing the portion of the judgment requiring the defendants to pay an additional $1,000 to Investors and by entering under Count II a judgment in favor of plaintiff and against the American Investors Alliance, Inc. in the amount of $1,000 and as so modified, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Augusta Robert HAYNES, Respondent, v. Leevirt WILLIAMS, replacing Peter W. Scott, Director of the Drivers License Unit, and the Department of Revenue, State of Missouri, Appellants.
    No. 35658.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 22, 1975.

      John C. Danforth, Atty. Gen., K. Preston Dean, II, Neil MacFarlane, Richard L. Wieler, Asst. Attys. Gen., Jefferson City, for appellants.
    Dearing, Richeson, Roberts & Wegmann, Nicholas Gasaway, Hillsboro, for respondent.
   ALDEN A. STOCKARD, Special Judge.

On November 30, 1971, Augusta Robert Haynes was involved in an accident with his automobile at the intersection of Highway 8 and Highway 21 in Washington County, Missouri. The accident was investigated by Trooper R. A. Mallery who made a report and issued a traffic violation ticket to Mr. Haynes for “failure to yield the right of way to approaching vehicle” which was subsequently dismissed by the prosecuting attorney.

On February 14, 1972, the Director of Revenue, acting through the Supervisor of the Drivers’ License Unit of the Department of Revenue wrote a letter to Mr. Haynes in which he stated that “Information received from competent authority, has given this office reason to believe that you may not be qualified to operate a motor vehicle safely upon the highways of this state. Therefore, in compliance with Section 302.291, Revised Statutes of Missouri, you are hereby notified that you are required to take the physical examination, and the driver examination as prescribed by Section 302.173, Revised Statutes of Missouri. You have thirty (30) days from the receipt of this letter in which to comply with this requirement.” Mr. Haynes was also advised by the letter, among other things, that “Failure to appear or pass the above required examinations will result in an immediate revocation of your driving privilege and the recall of your driving license.”

Mr. Haynes obtained a physical examination by Dr. Thomas A. Donnell, M.D., of DeSoto, Missouri, who concluded as the result of his examination that Mr. Haynes “is capable of operating a motor vehicle safely and responsibly, and [that he did] not find indications that this capability might be lost or impaired without warning.”

A thirty day extension to take the driver examination was granted on March 10, 1972, but instead of reporting for a driver examination, Mr. Haynes filed suit in the Circuit Court of Washington County, and pursuant to his request the court granted a temporary restraining order in which the Supervisor of the Drivers’ License Unit and the Department of Revenue were “ordered not to revoke the driving privilege of Augusta Robert Haynes . . . until the further order of this court made in thiá cause.” Hereafter, when we use the term “Director” we refer to the Director of Revenue “acting direct or through his authorized officers and agents,” § 302.010, RSMo 1969, V.A.M.S., which includes the Supervisor of the Drivers’ License Unit.

In his petition Mr. Haynes alleged that the Director did not have good cause to believe he was not competent or capable to operate a motor vehicle safely on the highways, and specifically alleged he was competent and capable; that the actions of the Director are “unlawful and unreasonable; are not authorized by the statutes referred to, . and amount to a capricious and unlawful abuse of discretion and authority by [the Director].” It was further alleged that Mr. Haynes was entitled to advance notice of the Director’s reasons for requiring that he take the examination and to a court adjudication of the fact that good cause does or does not exist.

On June 5, 1973, a trial was held at which evidence was presented concerning the then capability of Mr. Haynes to operate an automobile; his previous unblemished driving record except for the one accident on November 30, 1971; the result of the physical examination by Dr. Donnell; his age, which was then 85 years; the fact that the person operating the other automobile had, as the trial court found, a “deplorable driving record;” and that a civil suit arising out of that accident had resulted in a hung jury.

The letter to Mr. Haynes directing that he take a physical examination and a driver examination was sent pursuant to § 302.291, RSMo 1969, V.A.M.S., which provides as follows:

The director, having good cause to believe that an operator or chauffeur is incompetent or unqualified to retain his license, after giving ten days’ notice to such person in writing by registered mail directed to his present known address, may require him to submit to the examination provided by section 302.173. Upon conclusion of the examination the director may allow the licensee to retain his license, may suspend or revoke the license of the licensee or may issue to the examinee a license subject to restrictions as provided in section 302.301. The refusal or neglect of the operator or chauffeur to submit to such examination shall be ground for suspension or revocation of his license by the director, a magistrate or circuit court.

The one and only issue in this case that the trial court properly could review, and which is now before this court on appeal is “the discretionary action of the Director in finding that there was ‘good cause’ under § 302.291 for the order on [Mr. Haynes] to appear for examination.” Wilson v. Morris, 369 S.W.2d 402, 407 (Mo.1963).

The person who was the Supervisor of the Drivers’ License Unit, and acting for the Director at the time of the letter, dated February 14, 1972, made his determination to require an examination solely on the basis of a report sent to him from Troop C of the Missouri Highway Patrol, which in its parts material to the issue here was as follows:

Date December 29, 1971

TO : Operator and Chauffeur License Registration, Department of Revenue

FROM: Missouri State Highway Patrol

Regarding:

NAME Augusta Robert Haynes

ADDRESS Richwoods, Missouri

HO 19-1158-9135-4678 [Although the report does not so state, this corresponds with the number of the operator’s license then possessed by Mr. Haynes].

REASON FOR REPORT. Reason #11. Request cite for examination. Augusta Robert Haynes’s son, Washington County Deputy Sheriff, Delbert Haynes, feels that his father is no longer physically able to drive safely and requests he be cited for the examination.

On November 30, 1971, reporting officer worked a two car accident in which Augusta Haynes was involved. Reporting officer felt that subject’s advanced years, reaction time and judgment were contributing factors in the accident.

Request subject be cited for examination.

Reporting Officer R. Mallery, Troop C

[Reason #11] Reporting officer has information or personal knowledge that subject may be physically or mentally unfit to operate a motor vehicle. Request cite for examination. Details above.

APPROVED: January 10, 1972.

/s/ W. A. Dolan, Captain, Troop C.

The person who signed the letter to Mr. Haynes testified that he had been supervisor about four years, but had worked in the unit about ten years, and that he had “found that these people [the Highway Patrolmen] are reliable and normally the information we receive is adequate; and the result of the examinations have proven that they were using good judgment in their reporting.” The Supervisor did not see the report made by Trooper Mallery concerning the accident in which Mr. Haynes was involved on November 30, 1971, and he did not examine the driving record which was on file in his office of the other person involved in the accident.

The trial court based its judgment, in part, as shown by its findings of fact, on matters outside of the only issue properly before the court. Such findings included the following: “That the moving violation ticket issued by the trooper was dismissed in the Magistrate Court of Washington County and that the civil litigation arising from such litigation resulted in a mistrial because of the inability of the jury to agree.”

We consider the hearsay statement of Patrolman Mallery that Delbert Haynes “feels” that his father is no longer physically able to drive safely to be entitled to no weight to support the action taken by the Director as an exercise of discretion on his part. To approve as valid an exercise of discretion based on such a hearsay conclusion would make a mockery of any requirement that the Director have “good cause to believe.” We do not hold, nor do we imply, that in making such a report to the Director a member of the Highway Patrol, or any other peace officer, cannot include therein, and the Director consider, reports or complaints of others when factually set forth, and when such facts would entitle a reasonable person to have good cause to believe that a person is “incompetent or unqualified” to operate a motor vehicle safely on the public highways. But the statement that some person “feels” that another is not competent, without any supporting facts whatever, cannot constitute good cause for the Director to believe that person is incompetent or unqualified to retain his operator’s license.

The only other information before the Director was the statement of Trooper Mallery that he had on November 30, 1971 (twenty-nine days earlier) “worked a two car accident” in which Mr. Haynes was involved, and that he “felt” that his advanced years, reaction time and judgment were contributing factors in the accident. No facts whatever are stated to support any of these- conclusionary statements, except the age of Mr. Haynes, which standing alone disclosed no basis of imparting “good cause to believe” on the part of the Director. The trooper did not witness the accident so the statement, as far as shown by the report, was not based on what he had seen Mr. Haynes do or not do.

We point out here, and emphasize, that § 302.291 provides that it is when “The director” has good cause to believe that an operator is incompetent or unqualified, that he may require the operator to submit to an examination. The authority to exercise the discretion is in “the director;” not in members of the Highway Patrol, or in some other peace officer or person. This statute is, as stated in Schuiling v. Scott, 493 S.W.2d 4 (Mo.App.1973) in reference to other sections of Chapter 302, RSMo 1969, V.A.M.S., “quasi-penal and tend[s] to suspend or permit a forfeiture of a citizen’s driving privileges,” and therefore the burden of proving that conditions exist to authorize the action taken “falls heavily on the Director of Revenue.”

The Director is entitled to rely on official reports of the Highway Patrol or other officials when those reports set forth facts from which a reasonable person could believe he should exercise the discretion granted to him by § 302.291, but that section does not contemplate that the Director should take the action there authorized when he is advised of no more than that someone else “feels” or that someone has “felt” that good cause exists.

From the other evidence in the record, we do not hesitate to add that a report setting forth the facts could have been submitted which would have constituted the “good cause to believe” as contemplated by § 302.291. But, whether the Director abused his discretion in this case turns on what was before him and what he considered, and not on what could have been presented to him.

The judgment of the trial court was that the Director be “permanently enjoined from citing plaintiff for any examination.” We consider that judgment to be too broad. It should call for no more than that the Director be enjoined from requiring Mr. Haynes to submit to the examinations provided for in § 302.291 by reason of the information presented to him and relied on by him in issuing the order set forth in his letter of Feberuary 14, 1972.

The judgment is reversed and the cause remanded with directions for the entry of a new judgment in conformity with the views here expressed.

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


author: JAMES R. REINHARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Larry Dale WINTJEN, Appellant.
    No. 9402.
    Missouri Court of Appeals, Springfield District.
    April 3, 1975.

      John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Douglas Cassity, Robert W. Freeman, Lowther, Cassity, Ferguson, Carnahan & Freeman, Springfield, for appellant.
   JAMES R. REINHARD, Special Judge.

The defendant, Larry Dale Wintjen, was found guilty of assault with intent to kill with malice aforethought by a Greene County jury. The jury assessed his punishment at fifty years’ confinement. Section 559.180, RSMo 1969, V.A.M.S. He has appealed.

On the 17th day of March, 1972, the defendant was incarcerated in the Greene County Jail. Five other prisoners, including Ronald St. Clair, were confined in the same cell. On this date defendant attacked and stabbed St. Clair. St. Clair received over forty wounds on the back of his neck. There were also wounds on his face, sides of his neck, his eye socket and below his shoulders. A ballpoint pen was removed from the defendant shortly after the stabbing. There was no blood on the pen; however, there was blood on a metal wire which was removed from the cell where the stabbing took place. Dr. C. Courtney Whitlock, M.D., testified that the wounds could have been made by either the ballpoint pen or the metal wire.

Defendant contends that the Court erred in that it overruled defendant’s objection to the introduction into evidence of color photographs of the victim because they were repetitious of the fact that he had been stabbed and served only to inflame the minds of the jury against defendant. We reject this contention.

The Court admitted in evidence two black and white photographs taken shortly after the victim was admitted to the hospital. The state then offered in evidence two color photographs taken several days later, after the victim had been operated. These color photographs show different views of the wounds and show the wounds after the blood had been removed. Although the defendant stipulated that Ronald St. Clair was the person stabbed, the state had the burden of proving beyond a reasonable doubt that the defendant had committed the offense of assault with intent to kill with malice aforethought. The exhibits were relevant to issues other than the identity of the victim. Photographs are generally admissible if they connect the accused with the crime, show the nature of the wound, or throw light upon any relevant matter. State v. Moore, 303 S.W.2d 60 (Mo.1957); State v. White, 494 S.W.2d 687 (Mo.App.1973).

The state’s theory was that the victim had been stabbed with either a ballpoint pen or a metal wire. Pictures showing the nature of the wounds would influence whether the jury believed the state’s theory.

The defendant claims that the photographs inflamed the minds of the jury. If the exhibits satisfy the rule as to the admission of demonstrative evidence, it is not sufficient cause to reject them that the sight o'f them would tend to agitate the feelings of the jurors. State v. Thresher, 350 S.W.2d 1 (Mo.1961).

The trial court indicated that it did not believe that the pictures were repetitious and cumulative. This decision is within the sound discretion of the trial court. State v. Tompkins, 277 S.W.2d 587 (Mo.1955). The trial court did not abuse its discretion.

Defendant contends that the court erred in that it overruled his objection to testimony of statements made by him to Deputy O. B. Welcher because they were made while he was incarcerated and without his first being advised of his constitutional rights.

Defendant attacks the admission of two statements made by the defendant to Deputy O. B. Welcher. It is conceded that defendant was not advised of his right to remain silent, of his right to an attorney, or that anything he might say could be used against him. Defendant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The record discloses that Deputy Welch-er was used as a witness for the state and that he testified that he was called to cell K-4 shortly after the assault. The following then appears:

QUESTIONS BY PROSECUTING ATTORNEY:
“Q. Did you have any conversation with Ronald St. Clair in the presence of the defendant?
A. Yes, sir; I did.
Q. What was that conversation?
A. I asked what went on in the cell.
Q. And who answered.
A. Wintjen.
Q. What did he say?
A. He informed me that there had been a misunderstanding between the two of them.
Q. Were those his words, a misunderstanding?
A. Yes, those were his words.
Q. Did you ask any other questions and get any other answers ?
A. Yes, sir; I did.
Q. What were they?
A. I asked him did he beat this man up.
MR. CASSITY (Defense Attorney): Your Honor, we’re going to object to this line of testimony as being interrogation of this man while he was incarcerated and without the advice of any rights he might have had and ask that any answer be stricken along this line.”

After a discussion among the Prosecuting Attorney, the Defense Attorney and the Court, the Prosecuting Attorney withdrew the last question, and the Court stated: “Very well, it is stricken from the record. The jury will disregard it.”

The defendant now objects to the admission of the statement by him that “there had been a misunderstanding between the two of them”. He made no objection at the trial and asked no relief. A timely objection is required to preserve questions for review even when they have some constitutional basis. State v. Tyler, 454 S.W.2d 564 (Mo.1970); State v. Malone, 301 S.W.2d 750 (Mo.1957).

This statement was volunteered by the defendant. Deputy Welcher testified that he asked the question of the victim and defendant answered. Since the statement was voluntarily made, it does not fall within the prohibition of Miranda v. Arizona, supra. See Lewis v. State, 501 S.W.2d 20 (Mo.1973); State v. Barker, 472 S.W.2d 339 (Mo.1971); Gregg v. State, 446 S.W.2d 630 (Mo.1969).

Defendant also contends that the Court erred in admitting testimony by Deputy Welcher as to a statement made by defendant to the Deputy when the defendant was taken to another cell. Deputy Welcher was asked what the defendant said, and Deputy Welcher’s answer was:

“He said that if we tried to put him in a cell he would get one of us, he couldn’t get both of us, he may not be able to get both of us, but he would get one.”

Defendant’s only objection was to the statement’s relevancy.

Defendant now asks relief because he had not been informed of his constitutional rights. An objection was made to the question; however, the assignment of error raises an objection not made at the time the testimony was given. Defendant cannot do this. State v. Atkins, 494 S.W.2d 317 (Mo.1973). The statement was also clearly voluntary and does not fall within the prohibition of Miranda v. Arizona, supra.

Judgment is affirmed.

BILLINGS, C. J., and STONE, TITUS and HOGAN, JJ, concur.

FLANIGAN, J., not participating because not a member of this Court at the time the cause was submitted.


text:
    STATE of Missouri, Respondent, v. Stan McCLOUD, Appellant.
    No. 36186.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 22, 1975.
    Charles D. Kitchin, Public Defender, Richard A. Knutson, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Stan McCloud was found guilty by a jury of assault with intent to do great bodily harm without malice aforethought, and was sentenced to imprisonment for a term of five years.

A jury reasonably could find from the evidence presented by the State that at about 8:30 o’clock of the evening of October 3, 1973, William Kenneth Carson and two companions had been drinking beer at the intersection of Ohio Street and Chou-teau Avenue in St. Louis City. Appellant was sitting “on the back of the car on Chouteau,” and he approached Carson and asked if he could have a beer. Carson knew appellant and replied that he could, and they both reached for a beer which was on the ground. According to Carson, appellant “came up with a [switchblade] knife,” and struck him, first in the chest, then in the stomach area, and then on the hand. Carson testified that he had made no threat to appellant and had no weapon. His injuries were diagnosed at the hospital as “deep lacerations and tear of tendon on the right hand, multiple superficial lacerations of the chest and abdomen.”

Appellant testified that he had loaned Carson $15.00 to use in a crap game which broke up when Carson won, and that when he asked Carson to return his money they “had some words.” He then stated that Carson “got a board,” and that all he did “was try to defend” himself. Appellant admitted that he cut Carson with a knife, but that it was with a “little knife,” not otherwise described, and not the switchblade knife. When he was searched following his arrest he had the switchblade knife on his person but did not have another knife.

The court instructed the jury on assault with malice aforethought, on assault without malice, and on justifiable assault by reason of self-defense. The jury obviously did not believe appellant’s version of what occurred.

Appellant’s only contention on appeal is that the trial court erred in not giving an instruction to the jury on common assault, which is defined by § 559.220, RSMo 1969, V.A.M.S., as follows: “Any person who shall assault or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall upon conviction be punished . . . ” as therein provided.

In this case appellant admitted that he intentionally cut Carson with a knife, but he apparently contends that because he used what he called a “little knife” he had no intent to do great bodily harm.

“Persons are presumed to intend the result of their acts,” State v. Goodman, 490 S.W.2d 86 (Mo.1973), and the intentional cutting of Carson by appellant with a knife, whether it was with a switchblade knife, or as he described it a “little knife, resulted in great bodily harm. Under the facts of this case appellant was either guilty of assault with intent to do great bodily harm, or he was guilty of no offense by reason of self-defense. There is no evidence to justify or require an instruction on common assault. State v. Goodman, supra; State v. Crossman, 464 S.W.2d 36 (Mo.1971); State v. Bazadier, 362 S.W.2d 603 (Mo.1962); State v. Brown, 245 S.W.2d 866 (Mo.1952).

The judgment is affirmed.

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


author: STEWART, Judge.

text:
    John ROGERS, a minor, by and through his next friend James K. Rogers, et al., Plaintiffs-Respondents-Appellants, v. TORO MANUFACTURING COMPANY, a corporation, Defendant-Appellant, and Madeleine J. Neiswander, Executrix of the Estate of Dale E. Neiswander, Deceased, Defendant-Respondent.
    Nos. 35125, 35126.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 11, 1975.
    Motion for Rehearing or Transfer Denied April 14, 1975.
    Application to Transfer Denied June 9, 1975.

      E. Lemoine Skinner, III, Hullverson, Hullverson & Frank, St. Louis, for plaintiff s-respondents-appellants.
    John J. Cole and Richard B. Scherrer, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for defendant-appellant.
    James J. Virtel, Heneghan, Roberts & Godfrey, St. Louis, for defendant-respondent.
   STEWART, Judge.

We consider consolidated appeals arising out of a single trial. John Rogers, a minor, was injured when he was struck by a power lawn mower manufactured by defendant-appellant Toro Manufacturing Company, hereafter called Toro. The mower was owned by John’s grandfather, Dale E. Neiswander, now deceased. Actions were brought on behalf of John, for his injuries, by his father, James Rogers, Sr., as next friend, and by James Rogers, Sr. and his wife, Judith, as parents of John, to recover medical expenses and loss of services against Toro and against the Estate of Dale Neiswander, hereafter called Neiswander.

Toro appeals from an order of the trial court granting all plaintiffs a new trial after jury verdicts and judgments in favor of Toro and against plaintiffs. Toro contends that the trial court erred in granting plaintiffs a new trial on the ground that the court had erred in permitting Toro to introduce into evidence the “Owner’s Operating and Instruction Manual”. The Court also ruled that it had erred in giving erroneous converse instructions.

Plaintiffs appeal from the verdicts and judgments in favor of defendant Neiswan-der and against plaintiffs. They contend that the introduction of the Owner’s Operating and Instruction Manual injected the issue of contributory negligence into the case and because the verdict was the result of prejudice because Toro was permitted to argue negligence on the part of James Rogers, Sr. Neiswander counters with the claim that plaintiffs did not make a sub-missible case against Neiswander.

The amended petition upon which the case was tried is in four counts. The first three counts are on behalf of plaintiff, John Rogers. Count I is based on the theory of strict liability in tort and directed against Toro. Count II, also directed against Toro, alleges breach of implied warranty. The essential contention of these counts is that the traction control lever on the mower was likely to and did move from the “disengage” or neutral position, to the “engage” or in gear position on its own, causing the mower to be propelled into plaintiff, John Rogers.

Count III pleads common law negligence against Toro on the theory that it negligently designed, manufactured, tested and inspected the mower, and against Neiswan-der on the theory that Dale Neiswander knew or should have known that the traction control lever was likely to move from “disengage” to “engage” on its own and failed to warn plaintiffs, John and James Rogers, Sr. The answers of Toro to the first three counts of the petition were essentially general denials.

In Count IV James and Judith Rogers, as the parents of John, incorporate the theories of Counts I, II and III as their action to recovery for medical expenses and loss of services against defendants. For answer to Count IV both defendants alleged the contributory negligence of both plaintiffs.

The cause was submitted by John and by his parents on the theory of strict liability as to Toro and on the theory of negligence for failure to warn as to Neiswander.

Dale Neiswander had purchased a Toro self-propelled power lawn mower from the local distributor. He received an instruction booklet which he read only to the extent necessary to complete assembly of the mower; to properly drain and refill it with oil and to operate the engage and disengage lever. He gave the booklet to A1 Andrews, his yardman, who read it. The mower was used 2 or 3 times by Mr. Andrews before the incident giving rise to this litigation. Mr. Neiswander never used the mower.

Mr. Neiswander asked James Rogers, Sr., his son-in-law, to cut the grass on May 3, 1967, because A1 Andrews was not available. James Rogers, Sr. went to Mr. Neis-wander’s home on that day accompanied by his three sons, Jim, 18, Jerry, 14, and John. James Rogers, Sr. had a power mower but had never operated a self-propelled power mower. Mr. Neiswander showed him how to start the mower; how the grass catcher was put on and removed; how to operate the traction control lever to engage and disengage the clutch mechanism. Mr. Neiswander did not give James Rogers the instruction booklet that came with the mower.

There is a small panel just below the handhold which contains the traction control lever and the throttle control lever. The traction control is on the left side of the panel, the throttle control is on the right side. The clutch is engaged by pushing the traction control lever forward; it is disengaged by pulling it back. When disengaged the motor continues to run and the blade continues to rotate but the drive wheels do not propel the mower.

James Rogers, Sr. had cut the grass in the front yard. He was using the grass catcher. After cutting the front yard he commenced mowing the rear yard. During the process he stopped mowing on about ten occasions prior to the accident to remove and empty the grass bag. On each occasion he put the traction control lever on disengage and left the motor running. It did not move on these occasions.

Just before the accident which is the subject of this case, John was kneeling near a bush toward the rear of the backyard looking at a rabbit hole. James Rogers, Sr. stopped the mower about 15 feet from where the boy was kneeling. He testified that he put the traction control lever in neutral, removed the grass bag and carried it to the entrance of the garage, which is attached to the rear of the house. While James Rogers, Sr. was emptying the bag the mower moved forward striking John in the right foot causing the injuries.

There was evidence on the part of plaintiffs that would warrant a jury in finding that vibrations would cause the traction control lever to move from the disengage position to the engage position. Toro’s expert witnesses testified to the contrary.

APPEAL OF TORO

One of the principal points of contention in the trial was the question of the location of the mower when James Rogers, Sr. left it to empty the- grass bag. There was evidence to the effect that the ground between John and the mower was fairly level. There was also evidence that the mower was left upon an incline. The real issue, however, was whether the traction control lever was defective in design in that it moved from “disengage” to “engage” on its own causing the mower to be propelled forward striking John, irrespective of where it was positioned, or whether it moved down an incline propelled by the force of gravity alone without the clutch being engaged.

One of the grounds upon which the trial court granted a new trial was that it erred in admitting Toro’s Exhibit K into evidence. Exhibit K was a sixteen page booklet put out by Toro. The cover page reading:

TORO Rotary Mower 19" and 21" Whirlwind
Important Oiling Instructions

The first page lists 20 “Operating and Safety Instructions”. After the exhibit was admitted into evidence operating instructions 4 and 5 were read into evidence by Toro’s witness, Hasenbank. They read:

“4. KEEP CHILDREN OR PETS AWAY FROM EQUIPMENT WHEN ENGINE IS RUNNING.
5. NEVER LEAVE EQUIPMENT UNATTENDED WHILE ENGINE IS RUNNING.”

One of Toro’s witnesses also read a sentence from page 9 of the booklet under the heading “Bagging Tips”:

“ALWAYS SHUT OFF ENGINE WHEN REMOVING OR REINSTALLING BAGS.”

Preliminary to a discussion of the admissibility of Exhibit K we consider Toro’s contentions that plaintiffs injected the instruction manual into the case and failed to make timely obj ection to its admission.

The principle Toro seeks to invoke is that of curative admissibility formerly referred to as “invited error”. It comes about when a party introduces' inadmissible evidence without objection which is prejudicial to another party. The other party may then rebut that evidence with like evidence in order to remove any unfair prejudice. Ferguson v. Missouri Pacific Railroad Company, 442 S.W.2d 549 (Mo.App.1969).

There was evidence on the part of plaintiffs that there was an instruction booklet which James Rogers, Sr. had not seen or been aware of at the time he operated the mower. They did not seek to introduce the booklet nor any of its contents. The introduction of the contents of the booklet by Toro did not tend to rebut the evidence introduced by plaintiffs. Toro does not show us how it was prejudiced by plaintiffs’ evidence. That evidence was not directed toward Toro. There was no prejudice to neutralize. The doctrine is not applicable here.

As to the contention that the matter is not preserved Mr. Bilhorn, on behalf of Toro, did testify that operating manuals usually advise that mowers should never be left unattended. However, when the exhibit was introduced plaintiffs objected to the introduction of the exhibit unless it was limited in its application to defendant Neiswander. A colloquy between the parties and the court covering some five pages of transcript makes it clear that the court was aware of the basis for the objection. Assignment 6 upon which the court granted a new trial was specifically directed to this evidence characterizing it as prejudicial. Under the circumstances we need not prolong our discussion in view of the rule in Johnson v. Kansas City Public Service Company, 360 Mo. 429, 228 S.W.2d 796, (1950) l. c. 797:

“If matters of error are raised in a motion for a new trial, the trial court has the authority to correct its errors, within the scope of the motion, even though no objection had previously been made to the matters of which complaint is made.”

If the evidence was erroneously admitted and prejudicial, the court was authorized to grant a new trial.

Toro contends that the court erred in its ruling because Exhibit K “was proper and relevant to numerous issues in the case and therefore was properly admissible”. This statement fails to tell us “briefly and concisely wherein and why” the action of the trial court is erroneous as required by V.A.M.R. 84.04(d). A reading of the argument leads us to the conclusion that Toro’s primary contention is that the booklet was admissible to show that the mower was not being used as the manufacturer intended. Arguing that the “written instructions supplied by a manufacturer . . . certainly reflects the manufacturer’s intentions and advice as to the proper use of his product”.

Strict liability does not equate with absolute liability. Before the defendant can be held under the theory of strict liability, plaintiff must not only prove the article was defective and thus dangerous when put to a use reasonably anticipated, he must also prove that the article was being used in a manner reasonably anticipated and that damage resulted as a direct result of the article being defective. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 366[7] (Mo.1969). Although some writers refer to “abnormal use” (a use not reasonably anticipated) as a defense to the action, it is not properly a defense but a necessary element of plaintiffs’ cause of action.

In many of the cases the term “use intended” has been used interchangeably with the term “use reasonably anticipated”. This has resulted in some confusion. It is graphically illustrated in this case when Toro argues that the booklet “certainly reflects the manufacturer’s intentions as to the proper use of his product”. The use of the word “intend” gives the term a subjective connotation. “Intend” is defined as “lb(2) ... to have in mind ... as a purpose”. Webster’s Third New International Dictionary, A Merriam-Webster, (1969). On the other hand the term “use reasonably anticipated” carries with it the connotation of objectivity and more accurately announces the principle involved which is foreseeability. Even misuse may be foreseeable. Higgins v. Hardeman, 457 S.W.2d 943 (Mo.App.1970).

Whether in strict liability in tort or in negligence, instructions or warnings, to have any effect, must warn of the dangers inherent in the failure to follow the instruction or warning. Jackson v. Baldwin-Lima-Hamilton Corp., 252 F.Supp. 529 (D.C.E.D.Pa. 1966). The question very simply put is: Does the instruction or warning adequately advise the user of the defect in the product and the dangers that can be expected from the failure to follow the instructions? Exhibit K did not advise the user that if the mower was left unattended the traction control lever would be likely to move from the engage to the disengage position and be propelled forward under its own power. The instruction booklet was not relevant for the purpose of proving that James Rogers, Sr. was making an abnormal use of the mower.

There is some suggestion that the exhibit might have been relevant to the defense of contributory negligence against the claims of Mr. and Mrs. Rogers which was in the case up to the time of submission. What we have said above, together with the undisputed evidence that Mr. Rogers was not aware of Exhibit K, effectively disposes of that contention. Jackson v. Baldwin-Lima-Hamilton Corp., supra.

Contributory negligence is no defense to an action in strict liability. Williams v. Ford Motor Company, 454 S.W.2d 611[10] (Mo.App.1970). We also, though redundantly, comment that any negligence of the father is not imputable to the son. Schmidt v. Allen, 303 S.W.2d 652, (Mo.1957).

The effect of the admission of Exhibit K, without limiting the purpose for which it was introduced, was to inject the element of negligence on the part of James Rogers, Sr. into the case and the consequent imputation of negligence to the child. The effect of the admission of that evidence was compounded by Toro’s argument that Mr. Rogers had “violated the instruction book”. Exhibit K was not admissible as to plaintiffs for the purpose of showing an abnormal use or of injecting the issue of contributory negligence into the case. The trial court acted within its discretionary power in granting a new trial on the admission of Exhibit K.

The trial court also assigned as error the giving of the converse instructions. Although briefed and argued by Toro, plaintiffs have not attempted to justify the action of the trial court. In view of the fact that this case is to be retried for the reasons set out above we do not find it necessary to rule that point.

APPEAL OF PLAINTIFFS

The plaintiffs appeal from the judgments in favor of defendant Neiswander and against plaintiffs. They contend they are entitled to a new trial as against Neis-wander for essentially the same reasons that a new trial was granted as to Toro.

At the trial Neiswander unconditionally-objected to the admission of Exhibit K into evidence. Plaintiffs on the other hand had this to say:

“This I would have to object to being limited only as to Mr. Neiswander because the evidence was Mr. Rogers was never furnished this document or was the plaintiff John Rogers aware of this document. The only one that received this document would be Mr. Neiswander. I have no objection to it being read as long as the jury understands that it is for a limited purpose.”

If the court had complied with plaintiffs’ request the evidence would be in the case as to Neiswander to the same extent with the same force as it was in the case as tried. The case was tried by plaintiffs on the theory that the evidence was admissible as to Neiswander. Having adopted that theory in the trial court they may not now complain that as to Neiswan-der the evidence is inadmissible. Knight v. Firemans Insurance Co. of Newark, New Jersey, 227 Mo.App. 426, 49 S.W.2d 682[1], (1932).

Other matters not properly preserved for appellate review need not be discussed. Neaville v. Klemp, 427 S.W.2d 446 (Mo.1968).

In view of the fact that we are affirming the action of the trial court in overruling plaintiffs’ Motion for New Trial it becomes unnecessary to discuss Neiswander’s contention that plaintiffs failed to make a submissible case against defendant Neis-wander.

The order of the trial court granting plaintiffs a new trial as to defendant Toro is sustained. The judgment against plaintiffs and in favor of defendant Neiswan-der is affirmed.

SMITH, C. J., and KELLY, J., concur.

      . Louis R. Frumer and Melvin I. Friedman, Products Liability Sec. 15.01 (1960). Edward L. Lascher, Strict Liability in Tort for Defective Products: The Road to and Past Vandermark, 38 Southern California Law Review 30 (1965).


author: CLEMENS, Presiding Judge.

text:
    Billie G. DUNCAN, Respondent, v. A. P. GREEN REFRACTORIES COMPANY, Employer, and James I. Spainhower, Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Appellants.
    Nos. 36069, 36081.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 11, 1975.
    Motion for Rehearing en Bane or Transfer Denied April 14, 1975.
    Application to Transfer Denied June 9, 1975.

      Jerome W. Seigfreid, Edwards, Seig-freid, Runge & Hodge, Inc., Mexico, for respondent.
    Barnes & Barnes, Latney Barnes, Mexico, for employer.
    John C. Danforth, Atty. Gen., Carroll J. McBride, Asst. Atty. Gen., Jefferson City, for appellants.
   CLEMENS, Presiding Judge.

The A. P. Green Refractories Company and the Custodian of the State’s Second Injury Fund appeal from adverse rulings of the Industrial Commission and the trial court awarding workmen’s compensation to plaintiff Billie G. Duncan. The Industrial Commission’s referee ruled against plaintiff’s claim, but the Commission itself reversed the referee in a two-to-one decision. The trial court affirmed the Commission’s awards against both employer and Second Injury Fund. Our consideration of the entire record convinces us the Commission could not have reasonably made these awards on the basis of all the evidence before it. We must therefore reverse.

Appellate review of Industrial Commission awards is strictly limited. Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, l. c. 307 (Mo.1970). Courts may neither substitute their judgment on the evidence for that of the Commission nor extend their review beyond the Commission’s factual findings. Jacobs v. Bob Eldridge Construction Co., 393 S.W.2d 33[2-3] (Mo.App.1965), Carriker v. Lindsey, 313 S.W.2d 43 [2, 3] (Mo.App.1958). However, courts are required to review the whole record and to reverse or modify awards not based upon competent and substantial evidence, Jacobs v. Bob Eldridge Construction Co., supra; awards contrary to the overwhelming weight of the credible evidence, McClelland v. Hagerty Wrecking Co., 384 S.W.2d 93[4] (Mo.App.1964); and awards clearly contrary to law, Brotherton v. International Shoe Co., 360 S.W.2d 108[5] (Mo.App.1962). The “overall effect of all the evidence” must be considered in deciding if the Commission could have reasonably made its findings upon consideration of all the evidence before it. Toole v. Bechtel Corp., 291 S.W.2d 874[15, 16] (Mo.1956). The award in the present case was not based upon competent and substantial evidence and could not reasonably have been made.

Plaintiff claimed he was accidentally injured at work September 11, 1970, while manually placing a sixty-five pound die into a cavity on a table before him. He testified he felt an immediate pain in his back and orally reported his injury to his supervisor. Despite his injury, plaintiff was able to continue working until September 28, 1970, when he left work due to back pain. The following day, plaintiff was hospitalized; disc surgery was performed October 13, 1970.

No evidence other than plaintiff’s own assertions supports his account of a work-related injury incurred September 11. Plaintiff’s supervisor testified plaintiff had complained of the dies’ weight but never of having injured his back lifting them. When plaintiff left work seventeen days later, he again made no mention of a specific injury September 11. Although he was aware of company procedures requiring injured employees to file written reports, plaintiff never filed such a report.

Between September 11, 1970 and October 12, 1970, plaintiff saw various physicians at least ten times. He saw the company’s doctor twice between September 11 and September 28. Both times, he complained of ailments other than back pain and never mentioned a September 11 accident. Plaintiff also visited his chiropractor on two occasions after September 11. The chiropractor testified he had been treating plaintiff for back pain for nine months prior to September 22, 1970, and that plaintiff made no mention to him of an accident September 11. Plaintiff’s hospital admission history disclosed “recently” developed back pain but did not attribute it to work-related injury. Plaintiffs surgeon reported plaintiff had a history of “recurrent back difficulties for the preceeding eight months” but recalled no specific injury which caused his difficulties.

Questions on hospital and insurance forms were directed to whether plaintiff’s injury arose from an employment-related accident. To all such questions, plaintiff and his doctors responded “no.” Plaintiff signed all these forms. In fact, he filed and collected over $1,000 under his employer’s group insurance policy after stating his disability was not attributable to a work-related accident.

Seven days after surgery, the surgeon added this note to plaintiff’s hospital record: “Addendum to history: Pt. [patient] requests change of history — claims injury on the job — lifted 65 pound die at brick plant, slipped foot and hurt back. Doesn’t remember date — believes it was August 31.” In a letter dated July 14, 1971, the surgeon related plaintiff’s original statement that his back trouble was not the result of a specific injury and also plaintiff’s later request that the surgeon change his history. We note that even plaintiff’s requested change did not originally attribute his trouble to a September 11 accident.

Plaintiff’s testimony alone, in the face of an overwhelming mass of contrary evidence, compels our conclusion that the entire record fails to show the Commission’s award was supported by competent and substantial evidence. Compare Downs v. A. C. F. Industries, Inc., 460 S.W.2d 293 (Mo.App.1970).

The judgment is reversed and the cause remanded to the trial court with instructions to deny the awards and transmit the court’s order to the Industrial Commission and the Second Injury Fund.

KELLY and STEWART, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Gwendolyn WILLIAMS, Appellant.
    No. 35554.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 22, 1975.

      Shaw & Howlett, Terry J. Flanagan, Clayton, for appellant.
    John C. Danforth, Atty. Gen., K. Preston, Dean, II, Scott Raisher, Asst. Attys. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Gwendolyn Williams, charged by indictment, was found guilty by a jury of murder in the second degree and was sentenced to imprisonment for a term of ten years.

Appellant testified and admitted that she shot Benjamin Matthews. In view of this admission and the nature of the points presented on this appeal, there is no occasion to relate in detail the facts. It is sufficient to say that the shooting occurred at Glover’s Food Shop in St. Louis County after an argument and a series of name calling.

On April 29, 1972, at about 1:00 o’clock in the morning, Police Officer James Miller went to Glover’s Food Shop after he received a call “that there was a shooting” there. When he arrived he saw a man on the floor against the wall and Benjamin Matthews was on the floor. He also saw a man by the name of L. C. McCray standing at the end of the bar. Appellant was seated on a stool at the end of the bar.

Officer Miller took or received a pistol from Mr. McCray. In answer to the question if he said anything to appellant, he replied: “I asked her did she do the shooting; she says ‘yes.’” Appellant objected and moved for a mistrial, which were both overruled. Officer Miller then testified that he requested that an ambulance be called and he then told appellant that she was under arrest. Sergeant Dunn arrived and he advised appellant of her “Miranda rights.” She was not asked any question other than the one set out above at the scene by Officer Miller.

Appellant’s first point is that the trial court erred when it permitted Officer Miller to testify that she admitted that she shot Matthews when that admission was made before she had been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In the Miranda case it was ruled that an accused must be advised of certain federal constitutional rights before being subjected to “custodial interrogation,” which was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of action in any significant way.” The court further stated:

Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.
In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.

No hard and fast rule can be established as to when custodial interrogation begins, but it must be determined from the surrounding circumstances, some of which include probable cause to arrest, the subjective intent of the police officer, and who if anyone was the focus of the investigation at the time of the interrogation. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). Officer Miller had no knowledge of what had occurred, except a report that there had been a shooting. He did not go to Glover’s Food Shop with the preconceived intent to arrest appellant. He went there to make an on-the-scene investigation of a report that there had been a shooting. Under these circumstances, the single question asked by him of appellant did not constitute “custodial interrogation.” There was no custody taken of appellant or restraint of her until she was arrested, which was after she had made the voluntary answer to the question of Officer Miller.

Appellant cites only the Miranda case in support of her contention. She cites no case in which a similar factual situation has been ruled to constitute “custodial interrogation.” Numerous cases with analogous factual situations have been ruled contrary to appellant’s contention.

In State v. Hale, 463 S.W.2d 869 (Mo.1971), police officers investigated a report that an automobile was being stripped, and when they questioned the accused at the scene he stated that he was pulling the automobile from a ditch for a friend. When he could not name the friend or the owner of the automobile he was placed under arrest. The court ruled that the accused’s statements to the police were the result of proper pre-custodial interrogation. Also, in State v. Bradford, 434 S.W.2d 497 (Mo.1968), police officers saw an automobile with two men in it at a closed shopping center, and decided to check on the reason it was there. In the course of the questioning the accused made some statements which were later used against him. It was held that this was not custodial interrogation but proper precustody investigation, noncoercive in nature, and justified by the circumstances as a legitimate police practice. For other cases supporting the view we have taken, see Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968); State v. Ralls, 472 S.W.2d 642 (Mo.App.1971); Schnepp v. State, 84 Nev. 120, 437 P.2d 84 (1968); Stallings v. State, 255 Ind. 365, 264 N.E.2d 618 (1970); Ison v. State, 281 Ala. 189, 200 So. 511 (1967); and see the cases cited in the annotation entitled “What Amounts to Custodial Interrogation,” 31 A.L.R.3d 565.

In addition to the fact that there is no merit to appellant’s contention on the basis presented, appellant took the witness stand and on direct examination testified that she intentionally shot Matthews. In State v. Ussery, 357 Mo. 414, 208 S.W.2d 245 (1948), it was stated: “[W]hen the truth of a confession is established by the very person who made it under such solemn circumstances as on oath in open court, he may not be permitted to claim error because of the use of the confession on the ground it was involuntary.” See also State v. Crow, 486 S.W.2d 248 (Mo.1972), where the rule was applied to a situation where it was contended that the requirements of Miranda v. Arizona had been violated, but the accused testified under oath to the substance of the confession, and the court said: “Any error in its [the confession] admission in evidence was harmless,” citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 70S (1967). Other cases where the rule has been applied include State v. Taylor, 472 S.W.2d 395 (Mo.1971); State v. Brandt, 467 S.W.2d 948 (Mo.1971); State v. Walker, 416 S.W.2d 134 (Mo.1967); and State v. McGee, 447 S.W.2d 270 (Mo. banc 1969). There is no merit to appellant’s first point.

Appellant next claims prejudicial error resulted when the trial court sustained the objection of the prosecutor to an attempt of appellant to impeach the testimony of John Arrington, a witness for the State. A statement of certain testimony is necessary.

As is typical in cases of this nature the testimony is none too clear, but we shall attempt to set out the essential parts of the testimony of John Arrington. He stated that when he went to Glover’s Food Shop a girl there was talking to appellant on the telephone, and that he took the telephone and talked to her. Appellant told Arring-ton that Matthews had told her that he, Arrington, was going to beat her up. Ar-rington denied this, and she told him over the telephone that she was coming out there and that she was going to bring a pistol. When she arrived she was accompanied by her son and four other persons. One of them, a person named Ricky, told Arrington to “leave Gwen alone,” and then the other four left. Later Matthews drove up and “blew his horn” and Arrington went outside and asked him if he had a pistol. Appellant objected to Arrington stating what Matthews said and the objection was sustained, but he did testify that he, Arrington, did not get a pistol. The two then went to the bar, and appellant walked up to them. Matthews “pushed her back” and said, “Get out of my face.” Ar-rington and Matthews then walked toward the door, and without anything further being said, Arrington hit Ricky, the person who had arrived with appellant but did not leave with the other four. The reason for this assault is not disclosed, but Matthews also for some reason hit Ricky. The next thing that happened was that Matthews said, “This bitch got a pistol,” and appellant then shot him. Arrington ran to the door and appellant shot him in the back. McCray then took the pistol away from her. Arrington testified that he did not have any weapon on him, and that he did not observe any weapon on Matthews. On cross-examination, Arrington stated that after Matthews pushed appellant back and told her to “get out of his face,” he said, “I’m going to get my pistol out of the car.” He and Matthews both walked toward the door, and then Arrington “turned around and hit this dude named Ricky,” apparently because he had previously told Arrington to “leave Gwen alone,” and had come “up to my face.” Arrington twice stated that although Matthews said he was going to get his pistol, he “didn’t have any pistol,” but on both occasions appellant objected and the statements that Matthews had no pistol were stricken. Toward the end of his testimony, on recross-examination, he was asked if Matthews said: “I’m going outside to get my pistol,” and he replied, “Yes, I remember telling you, but before he told me he didn’t have no pistol.” Appellant’s counsel then said: “That is not what I am asking you.”

Subsequently, Beverly McCray was called as a witness for appellant. After testifying that she knew John Arrington she was asked: “Now, did you hear him say anything about a gun in an automobile that night?” Her reply was that she did, and when she was asked what he said the prosecutor objected to her answering because it would call for hearsay. Appellant’s counsel then said: “This is impeachment of John Arrington, who said there was no gun in his car, that Benny [Matthews] didn’t have a gun, that he didn’t know of either one of those two having a gun.” Appellant then made an offer of proof that if permitted she would testify that “John Arrington told her there was a pistol under the front seat,” presumably of Matthew’s automobile.

In her brief appellant argues that “This evidence would have impeached the testimony given by John Arrington in which he testified that he did not have a gun nor see a gun on the night in question.”

We have set out at considerable length the testimony, and our first reaction is that whether or not Arrington told Beverly McCray that “There was a pistol in the car under the front seat” was immaterial to any issue in the case. Appellant does not contend that she shot Matthews in self-defense on the theory that she considered it necessary to do so to prevent him from getting to the gun, if any, under the front seat of his automobile. Appellant testified that Arrington and Matthews “jumped on” Ricky and “they was both beating him up.” She got up and asked them to leave him alone, and he, Matthews, was calling her names, and he acted “like he might have a gun.” Matthews “kept coming closer to me, cursing and carrying on,” and a person by the name of Junebug then gave her a gun. She then testified that she “kept asking [Arrington] and [Matthews] to leave him alone, and all I know is I fired,” and at the time Matthews “was coming up on me.” There is no contention that appellant heard what Arrington supposedly told Beverly McCray. A defendant in a criminal prosecution may show inconsistent statements by a prosecuting witness, but it is not error to exclude offers of impeachment as to immaterial or collateral matters. State v. Taylor, 486 S.W.2d 239 (Mo.1972); State v. Alexander, 499 S.W.2d 439 (Mo.1973).

Also, it is the well established rule that in order to impeach a witness on the basis of a prior inconsistent statement it is necessary to first lay the proper foundation by asking the witness whether he made the specific statement upon which he is sought to be discredited. State v. Haynes, 482 S.W.2d 444, 447 (Mo.1972); State v. Dent, 473 S.W.2d 370 (Mo.1971); State v. Hughes, 460 S.W.2d 600 (Mo.1970). This appellant did not do, and the trial court did not err in sustaining the objection to the proposed impeaching testimony.

The remaining five points purport to challenge instructions. In each of the five points appellant has not complied with Rule 84.04(e), V.A.M.R., which requires that “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.” This failure to comply with the rules would justify a summary disposition of these points. However, in a liberal exercise of discretion, we shall review appellant’s contentions insofar as they otherwise comply with the rules.

Appellant first challenges Instruction No. 2, the verdict directing instruction on murder in the second degree, for the reasons, quoting from appellant’s point, that it (a) “does not properly state the law of murder in the second degree;” it is (b) “confusing and improper and does not properly define the elements of murder in the second degree;” (c) it “limits the defense of defendant to that of self-defense by including the sentence ‘and if you further find and believe from the evidence beyond a reasonable doubt that said shooting, wounding and killing, if you so find, were not committed under self-defense under circumstances constituting self-defense as defined and explained in subsequent instructions you will find the defendant guilty of murder in the second degree.’ ” and (d) by so incorporating in the verdict directing instruction the defense of self-defense it placed a burden upon the defendant to prove the defense of self-defense.

The assertions that the instruction “does not properly state the law . does not properly define the elements . . . [and] is confusing and improper” are so lacking in particularity and detail that nothing has been preserved for appellate review. State v. Bea, 509 S.W.2d 474 (Mo.App.1974); State v. Richardson, 321 S.W.2d 423 (Mo.1959). Also there is no attempt to demonstrate or point out how this instruction “limits the defense” and shifts the burden of proof. State v. Richardson, supra. If appellant alludes to the fact that the instruction does not contain a reference to accidental homicide, although this is speculation on our part because she does not say so, the evidence does not warrant such a reference. See State v. Agee, Mo., 474 S.W.2d 817. Furthermore, the defense of self-defense and accidental homicide are inconsistent, and both may be given only under circumstances not applicable to this case. State v. Brown, 502 S.W.2d 295 (Mo.1973).

The instruction in this case defined murder in the second degree as the killing of a human being wilfully, feloni-ously, premeditately and with malice aforethought. It then defined the above terms in language frequently approved. The instruction then hypothesized the facts as supported by the evidence in the conventional form prior to the mandatory use of MAI-CR. We find no prejudicial error in the giving of Instruction No. 2.

Appellant next challenges Instruction No. 3, which submitted the offense of manslaughter because it “does not set forth any of the elements of manslaughter so that a jury could distinguish between the offense of manslaughter and murder in the second degree.” These broad conclusionary statements do not preserve anything for review, but more important, the language of the instruction is in the precise form of MAI-CR 6.08 submitting the offense of manslaughter; and the challenge, such as it is, is totally without merit. See State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974).

Appellant also challenges Instruction No. 5. In substance it told the jury that the law of self-defense does not imply the right to attack, nor will it permit acts done in retaliation or for revenge. It then hypothesized that if the jury found beyond a reasonable doubt that defendant sought, brought on or voluntarily entered into the difficulty with the deceased for the purpose of wreaking vengeance upon him, or with no reasonable apprehension of immediate and impending danger to herself, but for the purpose of retaliation and revenge for the purpose of punishment, then she cannot avail herself of the law of self-defense. This instruction must be read with Instruction No. 4, submitting self-defense and which is not challenged. Appellant asserts that instruction No. 5 is prejudicial because “it gave the prosecution an additional verdict directing instruction, which, in effect, destroys the defense of self-defense,” and it injects “the implication of attack by the defendant and retaliation for revenge by the defendant, none of which was evidenced in the case.” We do not agree that this instruction is not supported by the evidence. From the circumstance of name calling, and the altercation with the boy named Ricky, a jury reasonably could infer that appellant attacked the deceased in a “spirit of retaliation and revenge for the purpose of punishing deceased.” An instruction in substantially similar language and in substantially similar circumstances was expressly approved in State v. Aubuchon, 394 S.W.2d 327 (Mo.1965) and also in State v. Lassieur, 242 S.W. 900 (Mo.1922). We find no prejudicial error.

Appellant’s challenge to Instruction No. 6 is that it instructed the jury that “language or epithets, however offensive, will not justify or excuse an assault,” and that this was, prejudicial error because at no time did the appellant maintain that she shot Matthews for that reason, and it injected into the case of self-defense matters not in evidence.

There is no merit to the contention that the instruction was not supported by the evidence. The record shows that on several occasions Matthews called appellant a “whore” and a “bitch” immediately before the shooting, and appellant testified that Matthews approached her “cursing and carrying on.” Such an instruction was approved in State v. O’Leary, 44 S.W.2d 50 (Mo.1931). Also, what appellant maintained was the reason for the shooting is not controlling on the propriety of such an instruction; the question is whether it was supported by the evidence. This instruction was not prejudi-cially erroneous.

Appellant’s final point is that Instruction No. 7 was prejudicially erroneous because it contained the phrase, “A doubt to authorize an acquittal on that ground [reasonable doubt] ought to be a substantial doubt touching on defendant’s guilt.” This same instruction has been approved in State v. Scott, 491 S.W.2d 514 (Mo. banc 1973); State v. Taylor, 506 S.W.2d 94 (Mo.App.1974); State v. Coleman, 460 S.W.2d 719 (Mo. banc 1970); State v. Edwards, 435 S.W.2d 1 (Mo.1968); and State v. Mooring, 445 S.W.2d 303 (Mo.1969). It deserves no further discussion in this case.

The judgment is affirmed.

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


text:
    STATE of Missouri, Respondent, v. Clarence Louis TAMMONS, Appellant.
    No. 35956.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 22, 1975.

      Crouppen, Walther & Zwibelman, Gael I. Infande, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Clarence Louis Tammons, tried under the Second Offender Act, § 556.280, RSMo 1969, V.A.M.S., was found guilty by a jury of illegal possession of heroin, and was sentenced by the court to imprisonment for a term of fifteen years.

Appellant does not challenge the sufficiency of the evidence. His sole contention pertains to an incident that occurred during the closing argument of the circuit attorney.

A jury reasonably could find that on June 13, 1973, Police Detectives William Monroe and Dennis Oberdieck of the St. Louis Police Department observed appellant, with the aid of binoculars, on three separate occasions when approached by a person, walk from where he was seated to a tree about ten feet distant where he picked up a box and removed something from it, and then hand what he had removed from the box to the individual. The officers took possession of the box, and subsequent analysis disclosed that the box contained packets of heroin.

Prior to the opening statement, counsel for appellant advised the court that he anticipated that the attorney for the State would relate in his opening statement that the police officers saw appellant “receiving money from certain individuals and thereafter going over and getting drugs and bringing the drugs to these people.” Counsel stated that he considered “this is highly prejudicial for a possession case and I think it’s irrelevant, and I think it constitutes proof of other crimes,” and he requested a “protective order that he [the State’s attorney] not mention any of those facts concerning anyone passing money to [appellant], or to [appellant] going over and getting drugs and giving them to someone else.” The State’s attorney admitted that he intended “to elicit that information both in my opening statement and my case in chief.” The court overruled the “objection” of appellant’s counsel, who then asked if “this [may] be considered a timely objection” when mention is made in the opening statement “as well as when these individuals testify to it in court.” The court stated “It can be considered timely with respect to the opening statement but not when they testify.”

In his opening statement the attorney for the State related that he expected to prove that the two officers observed three individuals approach appellant at separate times, and that appellant then would go approximately ten feet to a red box, remove some item from it, return to the individual “and exchange it with the three individuals who came up to him.” No reference was made to the passage of money.

During direct examination Officer Monroe testified that he observed appellant go to the box and obtain something from it and hand it to an individual “who in turn gave to him what appeared to be moneys [sic] from my vision with the binoculars.” Appellant objected “to the speculation on the part of this witness.” The court sustained the objection, and upon request instructed the jury to “disregard the statement with respect to what appeared to be money. That will be stricken.”

During the closing argument to the jury, the counsel for the State was relating the testimony of Officer Oberdieck as to what he had observed by use of the binoculars, and he related that the officer had testified that appellant would “remove some of the contents of the box, walk back to where the individual was, the ten feet, give the contents to the individual, and again a transaction would take place.” He then added: “Now, Officer Oberdieck said it appeared to be money on the second and third transactions where he had the field glasses.” There was no such testimony by Officer Oberdieck that the transactions appeared to involve money. As previously noted the testimony of Officer Monroe that he observed what “appeared” to be money was stricken out because it was speculative. However, no objection was made to this statement in oral argument, and the incident is not mentioned in the motion for new trial.

In appellant’s only point on this appeal he asserts that “It was error for the prosecutor to mention the alleged exchange of money in [his] closing argument because said use constituted proof of other crimes.” He apparently refers to the offense of selling heroin, but he does not contend in the point that there was no evidence to support the argument, but instead, contends that the argument constituted “proof of other crimes.” He attempts to excuse his failure to object to the statement at the time, and his failure to mention the incident in his motion for new trial because he had objected to the mention of any exchange of money prior to the opening statement, and when the court sustained his objection to the testimony of Officer Monroe “there existed two inconsistent rulings on whether or not any reference to an exchange of money [was] admissible.”

There is no merit to appellant’s contentions for several reasons. First, the trial court correctly overruled appellant’s request for a “protective order.” In the proof of a charge for the possession of heroin, it is permissible to show that the accused made a sale of heroin. State v. Taylor, 508 S.W.2d 506, 511 (Mo.App.1974). A contemporaneous sale of heroin is material to show knowledge on the part of the accused of what he possessed, and it is so related to the offense of possession that as a part of the. res gestae it tends to prove the latter offense. State v. Taylor, supra; State v. Shumate, 478 S.W.2d 328 (Mo.1972); State v. Walker, 490 S.W.2d 332 (Mo.App.1973).

Second, the trial court did not make an inconsistent ruling when it sustained the objection to the testimony ol Officer Monroe. The objection was that the testimony that an individual gave appellant “what appeared to be moneys” was “speculation on the part of this witness.” The ruling on that objection was correct. It did not amount to a ruling that non-speculative testimony concerning an exchange of money was not admissible.

Third. Although the statement made in closing argument that Officer Ob-erdieck had testified that “it appeared to be money” that was exchanged was not supported by the evidence, there was no objection by appellant, and the error is not preserved for appellate review. State v. Williams, 423 S.W.2d 736 (Mo.1968). This definitely is not the kind of a situation which called for the trial court to take remedial action without request.

Fourth. The point is directed to the contention that the statement made in argument “constituted proof of other crimes.” Statements made by counsel does not constitute evidence, and the jury was so instructed in this case. But, in any event, in this case proof that appellant made a sale of heroin contemporarily with his possession would have been admissible, and finally, the incident is not mentioned in the motion for new trial, and therefore is not preserved for appellate review, State v. Carr, 499 S.W.2d 788 (Mo.1972), and in no event could this be considered to constitute plain error within the meaning and scope of Rule 27.20(c), V.A.M.R.

The judgment is affirmed.

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