author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. George A. BEVELLE, Appellant.
    No. KCD 26933.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Robert G. Duncan, William E. Shull, Gladstone, for appellant; Duncan & Russell, Gladstone, of counsel.
    John C. Danforth, Atty. Gen., Jefferson City, and Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was convicted by a jury of stealing over $50.00. Upon a finding by the court of the allegation of a prior felony offense, the court sentenced appellant to 5 years imprisonment in the Department of Corrections.

Of the five points presented, the first and most strongly argued by appellant is that the trial court erred in receiving testimony from witness McGregor (acting manager of Skaggs store), concerning the value of the property allegedly stolen which was based upon invoice cost codes — a comparison between the code letters on the tag for the item and a master list which McGregor had received in a letter from the company headquarters. If the testimony was properly received as against the contentions that it was hearsay, was not the best evidence, was an unsupported opinion, and that a proper foundation had not been laid, the state proved its felony charge of stealing over $50.00 which would make the penalty portion of § 560.161, subd. 1(2), RSMo 1969, applicable. If the testimony was inadmissible, then subd. 1(1) of said penalty section would be applicable and a new trial would have to be ordered to give the jury the option of applying the misdemeanor punishment of a fine of not more than $1,000.00, confinement in the county jail for not more than one year, or both.

It is not contested that the evidence was sufficient to show stealing under these facts: On December 3, 1972, Monti Paul Quenelle was on duty as a security officer of Skaggs Drug Store. At about noon Monti, in civilian clothing, was at the front or south end of the east aisle of the store from which position he could see appellant (who was identified by Monti in court) about 30 feet down the aisle take two yellow boxes into his hand, and one of them was placed inside his overcoat. Monti followed appellant around the store and saw him take down some Max Men’s hairstyling combs from a display. Appellant then walked up the aisle to the south, out to the west again, and out an unattended checkout stand. Monti waited to see if appellant was going to go on up to the cashier’s stand and pay for the articles, but he went out of the stand and directly on out the door without pausing. About 50 feet from the front of the store Monti identified himself and asked appellant to come back into the store, that he wanted to talk to him. “Q. And did he acquiesce with this request of yours? A. Did he what? Q. Did he go along with this? A Well, yes, he said, ‘Well, you got me this time,’ and turned around and walked back in the store with me.” In the storeroom of the store appellant unloaded several different items from his coat and piled them in the middle of the floor. All of the items were identified by Monti and received into evidence. Monti helped appellant take off his overcoat, there being a sport coat worn by him underneath it. There were four or five safety pins pinned to the lining of the coat and back of the sport coat, which Mon-ti helped unfasten. The overcoat had a black lining and an additional blue lining sewn so that there were two pocket-like openings at the sides.

Neal Lyde McGregor, acting manager of Skaggs Drug Company, 1614 East 63rd Street, Kansas City, Missouri, testified as to the values of the items deposited by appellant on the floor of the storeroom. Skaggs generally received goods from manufacturers along with the billing invoices. The store manager appraised them for payment and then invoices and billing were sent to the Skaggs General Headquarters in Salt Lake City, Utah. The invoices listed the price or the cost to the store, the wholesale price, so the store would have records of what each item cost it. On each item there was a green tag with Skaggs name on it, the retail price, and by letters in the upper right-hand corner of the tag it is indicated what the item cost Skaggs. “The cost is in a code. There is — well, you convert a letter, such as 1 or 2 into a letter, as I have got written on this card here (indicating). So this particular item here with a cost of F L J would cost us 3 5 6 — .” McGregor went through all of the property and checked the cost codes, and found the total cost value of the merchandise to have been $59.44. The cost code letters were furnished by the District Manager, and “This is a cost code that is used by all the stores throughout the chain.” “Q. When is this cost coding placed on? Well, when is the tag placed on the property? A. When we receive the property and unpack it, we price it then — [objection overruled], A. It is marked immediately and then it is put out on the sales floor.” At times, McGregor himself would take the invoices and put the cost code and the retail price on the merchandise. McGregor did not have the invoices with him at trial, and appellant moved to strike his testimony upon the ground “that the invoices would be the best evidence of what showed actual sales price.” It was developed on re-direct and re-cross-examination of McGregor that he did not find the invoices on the particular items, “A. I don’t think that I could come up with the exact ones.”

State v. Berns, 502 S.W.2d 364 (Mo.1973), rules appellant’s Point I contentions against him. There the defendant claimed that evidence of value of the goods claimed to have been stolen, which was based upon a memorandum prepared by the witness from company inventory records, was inadmissible because: the witness had no personal knowledge of the value; that the inventory records were the best evidence of the values; and that the witness’ testimony was hearsay. The court quoted 31A C.J.S. Evidence § 181, p. 459, “ ‘[v]alue, whether intrinsic or as regulated by the “market,” is a quality so subtle and intangible, is a function of so many variables ⅜ * * that a relaxation of strict rules of evidence is necessary, and use must be made of such probative methods as are available.’ ” Here, as in Berns, there would have been required a check of a great many items, which as the evidence shows, were received daily, unpacked and the price stickers affixed to the items. McGregor testified that he did not think he could come up with the exact invoices which would match the items claimed to have been stolen. And, as in United States v. May, 419 F.2d 553 (8th Cir. 1969) [where the court held that testimony of value of a carton of shells based upon company wholesale lists was admissible], the evidence that Skaggs cost codes were supplied and used throughout its chain (this evidence came in through cross-examination of McGregor), that they were affixed to items as shown by costs on invoices is sufficient to establish that the total value of the items was over $50.00. See also State v. Long, 256 Iowa 1304, 130 N.W.2d 663, 666[7] (1964), where the court said, “We may add that we think evidence of the selling price of this new pump [which bore a price tag] was admissible as bearing on its fair market value. (Citing cases.)” (Emphasis and brackets added.) In State v. McComas, 89 Mont. 187, 295 P. 1011, 1013[6, 7] (1931), evidence of the cost price of a saddle, purchased a few days before it was allegedly stolen, was held admissible, the court saying, “But evidence of the cost price is admissible, as a factor to be considered with others, in determining the market value.” Here the jury could legitimately find that the items in question, taken from Skaggs display shelves where they were displayed for sale, were new, and that they had values as shown by the coded Skaggs cost prices fixed thereon.

Instruction No. 5 is:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on the 3rd day of December, 1972, in the County of Jackson, State of Missouri, the defendant took cologne, vitamins and a hair comb owned by Skaggs Drugs, a corporation, and
Second, that the property taken was of the value of at least fifty dollars, and
Third, that the property was taken by the defendant with the intent to permanently deprive Skaggs Drugs, a corporation, of its use of such property and to convert it or any part of it to the use of defendant, and
Fourth, that the property was taken by the defendant without the consent of the owner,
then you will find the defendant guilty of stealing property of the value of at least fifty dollars.”

In Point III, appellant complains of this verdict directing instruction, contending error because it allowed the jury to convict him of taking property of a value in excess of $50.00, although he (may) have intended to keep or deprive the owner thereof of property of a value less than $50.00. Improving on clarity, appellant makes reference to the words of paragraph third of the instruction: “and to convert it or any part of it to the use of defendant.” Appellant’s argument goes on, “if a defendant took $100 in property but intended to permanently deprive the owner of a portion of that property with a value of $35, then a conviction could not be sustained for felonious stealing. Although the property which was actually removed had a value in excess of the statutory amount, a ‘theft’ of property of that value had not occurred since there was no intent to permanently deprive the owner of all of the property or the property in its entirety.” The point and the argument ignores the fact that there was no evidence at all that appellant intended to permanently deprive Skaggs of anything less than its property of the value of $59.44, by converting only a portion of it to his own use. Appellant offered no evidence in his own behalf. He did not testify except as to applicability of the Second Offender Act as based upon a Minnesota conviction (discussed infra). The instruction is of course erroneous because of its inclusion of the words “convert it or any part of it to the use of defendant”, because it was not referable to any evidence in the case. [The italicized words were obviously and erroneously taken from what is now MAI-CR 7.71, which has reference to three or more prior convictions of stealing, in which case the value of the property is not important.] There was absolutely no evidence upon which the jury could find that appellant intended to convert less than all of the property to his own use. The jury could not have been misled under the clear evidence of appellant’s guilt: He was seen putting items into his coat; he went out of the store without paying for them; he was apprehended outside and brought into the stock room where all of the items taken by him were dumped on the floor. “[T]he presumption is that an instruction having no application to the case made by the pleadings and proof does not injure accused. This rule is particularly applicable where accused’s guilt is clearly established by the evidence * * 24B C.J.S. Criminal Law § 1922(3), p. 164. Here, the italicized portion of the instruction was surplusage: If it were not, then appellant would have been entitled to an instruction on the misdemeanor offense of stealing under $50.00, which the evidence here does not support. Other portions of the instruction fairly submitted the charge to the jury: That the property taken was of a value of at least $50.00; that it was taken by the defendant with the intent to permanently deprive Skaggs * * * of its use; and that the property was taken * * * without the consent of the owner. Under the evidence the error in the instruction was not prejudicial to appellant, and the point is ruled against him.

By Point IV, appellant contends that the trial court erred in finding the Second Offender Act, § 556.280, applicable, because there was “inadequate and insufficient and improperly authenticated evidence of a pri- or conviction” and there was not a prior conviction within the meaning of the Act. It is first said that the record of appellant’s Minnesota conviction is insufficient because it did not comply with § 631.40, Minn.R.S. 1945, relating to the preparation of judgment rolls, in that it failed to include a copy of the indictment. What the minutes show is that appellant was convicted of grand larceny on his plea of guilty, in the second degree (which is punishable under § 622.06, Minn.R.S.1963, for not more than 5 years imprisonment in the state prison as a maximum). Although no term was specified, appellant was sentenced by the Minnesota court to “be taken by the sheriff of this county to the State Reformatory located in Sherburne County in this state and there committed according to law.” Then the court suspended and stayed execution of the sentence upon the condition that appellant pay $500.00 into the county fine fund, and upon doing so that he leave the State of Minnesota and remain out of it. The judgment entry recites that an information was returned by the county attorney charging appellant with grand larceny in the second degree. It would add nothing for the purpose of application to include the indictment in the rolls because § 556.280 requires only that a person be convicted of any offense punishable by imprisonment in the penitentiary. The record shows these facts. Any omission in including an indictment or information in the judgment roll is immaterial to the showing of a prior conviction of a felony.

Appellant says that the sentence is valid only if it directs punishment to be by confinement at hard labor under § 631.42, Minn.R.S., repealed in 1968, but in effect when he was sentenced. Again, the inquiry is only whether there was a prior conviction of a felony under § 556.280. The judgment roll and minutes here, admitted to prove the applicability of the Second Offender Act, were ádequate in the foregoing respects.

Appellant says his sentence was suspended, and therefore he cannot have the conviction introduced into evidence under State v. Gordon, 344 S.W.2d 69 (Mo.1961). In Gordon, the sentencing itself was suspended, and it was properly held that there could be no prior conviction for the purpose of finding the Second Offender Act applicable. Here, the record indicates that the execution of the sentence was suspended, which under State v. Briggs, 435 S.W.2d 361 (Mo.1968), does not prevent the application of the Second Offender Act. In Briggs, the court said, 435 S.W.2d 363[3], “[T]he California proceedings disclose that the defendant was sentenced and that the execution of the sentence was suspended and he was placed with the California Youth Authority, not that sentencing was suspended.”

Appellant says that the Minnesota record dos not say that after sentencing he was subsequently placed on probation, paroled, fined or imprisoned therefor. Reasonably construed, the Minnesota judgment entry was a fine of $500.00. It was provided that it be paid “into the same fund to which fines are usually allocated.” The penalty statute (§ 622.06, Minn.R.S., supra) provides that the minimum punishment for grand larceny, second degree, may be a fine of not more than $500.00. Upon the objections presented these records of prior convictions, for the purpose of applying § 556.-280, were admissible.

Appellant attacks § 556.280 as being unconstitutional saying that it is an ex post facto law and that it allows the use of a conviction sp stale and old as to amount to a denial of due process and equal protection of law. In State v. Donnell, 351 S.W.2d 775 (Mo.1961), the court held that § 556.280 was not an ex post facto law because it was procedural in nature. Appellant cites no case which holds that his 1948 conviction is so stale and old that its use amounts to a denial of due process of law in using it as a basis for the application of the Second Offender Act. Note that the Minnesota charge was for shoplifting, the same offense as here charged. The contentions are ruled against appellant.

It is not contended by appellant that the Minnesota court records were not duly authenticated in accordance with § 490.220, RSMo 1969. See State v. Worsham, 416 S.W.2d 940, 943 (Mo.1967). At trial appellant acknowledged that he was the person described in the record of the prior conviction.

In Point II, appellants attacks Instruction No. 5, supra, saying that it did not require the jury to find an essential element of the offense, namely, “that the taking was felonious, or intentional, or words of similar import.” § 560.156, subd. 1(2) defines “ ‘Steal’, to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property” and by subd. 2, it provides, “It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.” (Italics added.) Instruction No. 5 fairly submits the words of the statute, i. e., the taking, the intent to permanently deprive, and the taking without consent. Since the evidence showed, as above ruled, that the property was of a value over $50.00, the offense was a felony under § 560.161. State v. Price, 362 S.W.2d 608, 611[5] (Mo.1962). The words “intent to permanently deprive” are of equal import to the word “intentional.” The jury was required to find that the property had a value of at least $50.00, defined to be a felony under § 560.161. It is not necessary to include in the instruction that the taking was “felonious.” Point II is overruled.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    Barton S. BLOND and Anne Blond, Respondents-Appellants, v. Harry B. OVERESCH et al., Respondents, and Tenth and Main Corporation, Appellant.
    No. KCD 26982.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Donald L. Mason, Kansas City, for appellant, Tenth & Main Corp.
    Warren E. Slagle and Richard F. Adams, Slagle & Bernard, Kansas City, for respondents-appellants.
    John E. Redmond, Strubinger & Redmond, Kansas City, for respondent Adel-man.
    Roy A.' Larson, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, for respondents Abella and Overesch.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

This appeal follows a jury verdict in favor of plaintiff Barton Blond (Blond) for $75,000 for personal injuries and for his wife Anne Blond for $15,000 for her loss of her husband’s services and consortium. A judgment was entered on such verdict against Tenth and Main Corporation (Ten Main), and it appeals.

As a result of the decision of this court in State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo.App.1972), plaintiffs joined, in their suit against Ten Main, three physicians who allegedly treated Blond negligently for his injuries. The jury verdict and judgment were in favor of the physicians and Blond has appealed from that judgment.

On March 31, 1969, Blond was an associate in the law firm of Lathrop, Righter, Gordon and Parker, with offices in the Ten Main Center Building located in downtown Kansas City. On that same day, according to plaintiff’s evidence, he was leaving the Ten Main Center Building to go to the Jackson County Courthouse. He stated the Ten Main Building had double action doors leading from the lobby to Main Street. These doors would swing either out or in according to the way they were pushed by the person using them. There were two sets of doors, one set being located at the lobby and the outer set being located at Main Street with a six-foot vestibule separating the two sets of doors. Each set consisted of two doors, with one hinged on the north side of the doorway and one hinged on the south side.

Blond testified as he started to leave the lobby the inner set of doors were propped open. He stated he was not in any particular hurry and walked normally toward the outer set of doors carrying his brief case. He stated as he drew near the door on his right and was about to exit onto Main Street, the door suddenly swung inward. He said the door struck him on the left knee and caused him to go completely through the glass and to fall on the Main Street side of the door. The evidence showed the door had polished plate glass which shattered on impact. After falling on the outside of the door, Blond had several cuts about his face and hands, but the more serious was a deep laceration on the calf of his left leg. Blond stated he could see the bone and knew the cut was obviously deep. Blond was bleeding profusely and in a very few minutes a policeman from the Kansas City Police Department arrived and applied a tourniquet. An ambulance was called and Blond was taken to the emergency room at Menorah Hospital. After having his wounds sutured at the hospital, Blond was taken home. The injuries and disabilities suffered by Blond and his subsequent medical treatment will be detailed later in connection with Ten Main’s contention that a re-mittitur should be ordered.

Plaintiffs’ evidence with reference to the operation of the doors where Blond was injured showed the doors were equipped with closers which were supposed to return the doors to a closed position after they were pushed either toward the outside or toward the inside and to maintain them in a closed position until the next person would push the door. Plaintiffs’ evidence was that such doors did not stay in a closed position but would frequently stand partially open anywhere from a few inches to almost a foot. Two employees of Ten Main, one of whom was the Ten Main Center Building manager, stated they knew the doors stood in this open position. They stated the reason was an imbalance between the air pressure on the inside and the outside of the building. A consulting engineer called by Blond stated the closers were not working properly because they did not hold the doors in a closed position. He stated the doors should act in a sure and deliberate manner to return the door to a closed position after it was open and to maintain it at that position. He stated neither air pressure from the inside nor wind from the outside, short of near tornado velocity, should cause the door to open inward without someone pushing. He stated the door closers were malfunctioning by reason of the doors standing open.

One of Ten Main’s employees conceded the door closers were not operating properly. He agreed the purpose of the closers was to bring the doors back to a closed position after a person passed through and to maintain them in that position until their next use. He stated no effort had been made to correct the situation to make the door closers work properly. The building superintendent stated there was no adjustment that could be made on the door closers to make them stay in the closed position except when in actual use. The inference was the closers would have to be replaced to have a proper operation of the doors. He stated the closers were the ones originally installed when the building was built in 1968.

Blond testified he had seen the doors on previous occasions blow both toward the outside and inside. He also stated he had seen the doors swing two or three times after someone would pass through. Dan Dibble, another attorney in the Lathrop office, also stated he had seen the doors blow back and forth, sometimes toward the inside and sometimes toward the outside.

The law firm had moved into this building in September, 1968, and in January, 1969, William Stapleton, another attorney in this office, had written to the president of Ten Main complaining about the doors on the Tenth Street side blowing open and on one occasion coming open at a time when it very nearly struck Stapleton.

Ten Main introduced evidence from a number of witnesses to show that at the time of his injuries, Blond was walking toward the doors in question with his head turned to one side so that he was not .looking at the doors. These witnesses testified the doors at the time Blond approached were in their normal closed position and that without looking, Blond simply walked through the door and fell to the outside.

The court gave two verdict directing instructions against Ten Main which submitted Blond’s theory of the accident. These instructions were identical except for the fact one was with reference to Mr. Blond and one was in reference to Mrs. Blond. Such instructions were MAI 22.05. The only deviation was the insertion in the first paragraph of the condition, as described by Blond, as to what caused his injuries. Ten Main submitted appropriate instructions tendering the issue of Blond’s contributory negligence.

Ten Main first contends the verdict directing instructions given by Blond and his wife were erroneous. The instruction given on behalf of Blond is as follows:

“Instruction No. 3
“Your verdict must be for plaintiff Barton Blond and against defendant Tenth and Main Corporation if you believe:
“First, there was a condition existing in the door closers that allowed said doors to swing improperly or failed to maintain tempered or safety glass in the doorway, and as a result said doorway was not reasonably safe; and
“Second, defendant knew, or by using reasonable care should have known, of this condition; and
“Third, defendant failed to use ordinary care to make the doorway reasonably safe; and
“Fourth, as a direct result of such failure plaintiff was injured;
“Unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.
“The term ‘ordinary care’ as used in these instructions means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

Instruction Number 4 was identical except for using the name of Anne Blond.

Ten Main’s attack on these instructions distills into the fact the instructions do not require the jury to find the door suddenly swung inward. Ten Main says this was plaintiffs’ theory and this was the ultimate fact which was to be submitted to the jury. Ten Main further argues the instruction does not confine the improper swinging of the doors to a sudden inward swing, and would, therefore, allow the jury to consider the evidence of outward swinging of the doors in order to find liability, contrary to plaintiffs’ own theory.

The answer to Ten Main’s argument lies in the definition of the ultimate facts involved in this case, contrasted with the evi-dentiary details which are to be excluded from the instructions. Rule 70.01 requires only ultimate facts be submitted in instructions. Here MAI 22.05 was used but such instruction in the first paragraph contains the direction to “here describe condition which caused the injury, such as ‘a hole in the stairway’ ”. Thus the instruction should contain a description of the condition which caused the injury and not evidentiary details concerning the condition or the occurrences.

It is apparent the condition which caused the injuries was the malfunction of the door closers. This would be true whether the injury occurred when the doors swung out or in, since it was this condition in the construction of the doors which allowed the doors to swing when they were not actually in use. A description of the door swinging in or out would be a detail which would merely comment on the underlying condition which gave rise to the swinging of the door. The purpose of MAI is to submit only ultimate facts and to strip away the eviden-tiary details therefrom. Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 617[3-4] (Mo.1970).

Furthermore the instruction should hypothesize only the essential disputed facts. This was stated in Epps v. Ragsdale, 429 S.W.2d 798, 802 (Mo.App.1968) as follows: “[ujnder MAI the acid test of an instruction is whether it follows the substantive law in hypothesizing the ultimate disputed facts, cut to the bare essentials; it should be all muscle and no fat”. In this case there was no dispute that if Blond’s evidence was to be believed, the door swung inward. There was no evidence concerning any outward movement of the door at that time and no evidence whatever that any outward movement of the door in any way caused any injury. The sharply disputed fact was whether or not Blond simply walked into the door while oblivious to the existence of the door or whether the improper operation of the door caused the accident. In this situation the direction of the movement of the door was simply an evidentiary detail which is not to be submitted in MAI. The ultimate fact which the jury had to decide was whether or not there was a condition in the doors which allowed them to swing improperly and whether or not this caused Blond’s injury, or whether Blond did in fact fail to take heed of the existence of the door and walk through it. By submitting the ultimate fact of the condition of the door which allowed it to swing improperly, the instructions in this case properly submitted only the ultimate fact.

A somewhat similar situation was involved in Zipp in which an instruction which submitted the issue of an employee pushing the safe without warning was held to be the ultimate issue, and the distance and direction the safe traveled were properly omitted as being evidentiary details. In Bonenberger v. Sears Roebuck and Company, 449 S.W.2d 885 (Mo.App.1969) the court approved an instruction which submitted that a sledge hammer had been swung in a negligent manner. The court there observed the ultimate fact was the swinging of the sledge hammer in such a manner as to cause injury and the instruction, together with the definition of the term negligence, submitted the ultimate facts.

By submitting the ultimate fact of the condition of the door which allowed it to swing improperly the instruction in this case properly submitted the ultimate fact. By doing so, it did not give the jury a roving commission to find for the plaintiffs on any theory which the jury might want to find. See Williams v. Ford Motor Company, 411 S.W.2d 443 (Mo.App.1966).

Ten Main next complains of the same instructions on the grounds there was no evidence Ten Main had actual or constructive knowledge the doors which Blond was using had suddenly swung inward and for that reason such instructions were given without evidentiary support. On this point, Ten Main overlooks the evidence heretofore detailed concerning the testimony of both Blond and Dan Dibble that they had seen the doors swing both inward and outward. Furthermore, Ten Main’s own employees, Pritchard and Tipton, stated they knew the door closers were not operating properly on the Main Street doors. This knowledge on the part of Ten Main’s employees constitutes actual knowledge and is sufficient to show knowledge on the part of Ten Main that the doors were operating improperly. Maybee v. Missouri Orpheum Corporation, 238 Mo.App. 537, 181 S.W.2d 771 (1944).

There was ample evidentiary support for the giving of these instructions. Ten Main makes some mention in its brief about the lack of evidence concerning when the doors were observed to blow inward, but this argument has not been preserved in the “points relied on” in Ten Main’s brief and for that reason cannot be considered. Brokaw v. Brokaw, 492 S.W.2d 859 (Mo.App.1973). However, with actual knowledge of the malfunction of the door closers, there was evidence from which the jury could find Ten Main failed to exercise ordinary care in the maintenance and operation of the doors. This would be sufficient to establish liability.' The instructions are not infirm by reason of being without eviden-tiary support, but were in fact supported by substantial evidence.

Ten Main next contends it is entitled to a new trial because juror Pollock intentionally and willfully concealed a prior claim for personal injury in failing to disclose such claim in response to questions propounded during the voir dire examination. In response to questions concerning any claims made for personal injuries, some members of the jury panel answered in the affirmative, but juror Pollock, who later was foreman of the jury, remained silent.

After the trial of this cause, Ten Main discovered juror Pollock had been paid $100 by Allstate Insurance Company for personal injuries resulting from an accident on April 10, 1972. A hearing was held on this matter by the court in connection with the consideration of Ten Main’s motion for a new trial.

At this hearing it was developed that juror Pollock’s automobile was struck from the rear and in a recorded telephone conversation with an Allstate employee on the day of that accident, Pollock was asked if he had been injured. In response he stated: “no more than a stiff neck and just jolted around. My neck is a little stiff on me though”. Pollock further stated he was going to Richards Gebaur Air Force Base for a physical examination to determine if he had been injured. He was entitled to use the Air Base facilities because he was a retired Air Force officer.

In his testimony before the court, Mr. Pollock stated the physical examination revealed he had not been injured. He stated he negotiated a settlement with Allstate which resulted in a payment to him of $500. He stated this payment was for property damage to his automobile and for his inconvenience as a result of the accident. He further stated he did not remember this claim at the time of the voir dire examination because he did not consider he had a claim for personal injury but considered he had made a claim for property damage only. Ten Main produced the adjuster for Allstate who negotiated the settlement with Mr. Pollock. The adjuster stated he coded $100 of the $500 paid to Mr. Pollock as being for personal injuries based on the fact Mr. Pollock had ten x-rays taken in his physical examination. The adjuster received no report from any physician concerning any injury to Mr. Pollock and stated the basis of the personal injury payment which he stated had been made was the ten x-rays. He further stated the $500 Mr. Pollock received was calculated on the basis of $377.50 for car damage, $22.50 for loss of use of the automobile and $100 for personal injury. The same trial judge who presided at the trial overruled the motion for a new trial and thus found juror Pollock had not intentionally and willfully concealed the personal injury claim.

The rules concerning the concealment of a matter by a prospective juror are well settled and are fully enumerated in Beggs v. Universal C.I.T. Credit Corporation, 387 S.W.2d 499 (Mo. banc 1965). The court stated at 387 S.W.2d 503[2 — 8]: “[i]n the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court.”

The question to be determined here is whether or not the trial court abused its discretion in finding that juror Pollock did not intentionally and willfully conceal a material fact. Ten Main argues an abuse is shown because a few days after the trial Mr. Pollock had no difficulty in recalling his accident, and also recalled an accident in which his wife was involved. He stated his wife received no personal injuries and Ten Main makes no point of this except to argue it shows the exercise of a selective memory on the part of Mr. Pollock. Ten Main also argues that since Mr. Pollock recalled his accident a few days after trial, it could well be inferred he could recall the accident at the time of the voir dire but chose not to reveal such accident. Rather, the argument goes, he elected to judge his own qualifications by remembering the accident but thinking it had no connection with the inquiry being made. It is beyond question that if juror Pollock intentionally concealed his accident while remembering the existence of the same by electing to judge his own qualifications, then he would be disqualified and the trial court should have granted Ten Main a new trial. Beggs, supra.

However, the trial court obviously believed Mr. Pollock did not remember his accident at the time of the voir dire examination because of Mr. Pollock’s belief such accident had involved only property damage and did not involve any personal injury. This view is sustained by the record. Here Mr. Pollock stated only that his neck was stiff on the day of the accident but further stated a complete physical examination, which extended over a day and a half, within two days after the accident, revealed he in fact had suffered no personal injury. This, coupled with the fact there was no report ever made to the insurance company of the examination by a physician would indicate no actual injury. The statement by the adjuster that his payment for personal injury was based solely on the grounds Mr. Pollock had been x-rayed ten times in connection with his physical examination and not for any actual injury confirms the absence of injury. All of this would be consistent with an opinion by jur- or Pollock that he in fact did not receive any personal injury and, therefore, had no personal injury claim to report in response to the voir dire examination.

The situation here is very similar to that in Akers v. St. Louis Public Service Company, 370 S.W.2d 347 (Mo.1963). There the court stated at page 355: “[n]one of the injuries sustained would appear to be of more than transitory concern to any of these witnesses. But, more important is the fact that the trial judge, who heard and observed them during voir dire examination, throughout trial on the merits, and on motion for new trial and who, as the record shows, gave the matter close and concerned consideration, absolved them from any intent to deceive and saw no evidence of prejudice on the part of either juror against defendant. Finding no abuse of the discretion exercised by the trial judge in so determining the contention here made, we conclude that it cannot be sustained.”

The same result must be reached here as in Akers. No abuse of discretion on the part of the trial court is shown.

Ten Main next contends the verdict is the result of bias and prejudice because of the misconduct of juror Pollock as discussed above in concealing a prior claim. The finding by this court that the trial court did not abuse its discretion in rejecting Ten Main’s contention that juror Pollock was guilty of an intentional and willful concealment, disposes of this contention by Ten Main. It is settled that a jury verdict may not be set aside because of bias and prejudice on the part of the jury unless there is some error committed at the trial. Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974). Since no other error has been found, there is no basis upon which to set aside the verdict on the basis of bias and prejudice.

Ten Main finally contends the judgment is so excessive as to require a remittitur. This requires an examination of Blond’s injuries and the evidence concerning his future.

At Menorah Hospital Blond was found to have a large cut on the inside of his leg from four to five inches long which exposed the bone. He had cuts just below the kneecap on the left, with cuts on his forehead, face and hands. These cuts were sutured and bandaged and Blond was told to go home and was further told he should be able to return to work the next day. However, on trying to get up from the examining table, Blond discovered he was unable to lift his left leg and was unable to stand. He was assisted to the car and from the car to his bed at home. Three days later Blond was still in bed and could not lift or move his leg. He noticed the kneecap was about two inches higher on the left than on the right. His physician at that time advised him to try to walk and to go back to work. Blond tried this with the aid of crutches but he was still unable to stand on his left leg. In time Blond was able to put some weight on his leg and could walk with crutches, and later a cane. Blond returned to work and walked with the aid of a cane. He was moving about very slowly and while returning from lunch one day fell because his left leg collapsed.

Blond then sought other medical advice and was seen at Research Hospital where he had blood aspirated from his left leg and his leg was placed in a cast for ten days. On removal of the cast, the entire muscle on the left was smaller than the right and the kneecap was still about two inches higher than normal. Although he was going to physiotherapy, he still had to drag his leg to walk and stated he could not move his leg properly because it did not feel like it was connected under the knee.

Blond then sought other medical advice and had physiotherapy prescribed in an effort to strengthen the leg. Finally this physician operated on the knee. Although the physician assured Blond prior to the operation that everything would be fine, afterwards when the physician talked with Blond’s wife he was very pessimistic and stated he thought Blond would be able to walk again but it would be sometime. The physician found during the operation, the patellar tendon had been severed and because of a large amount of scar tissue he was unable to find enough of the remaining ends of the tendon to satisfactorily reunite it. The physician stated Blond would have to be extremely careful with his leg because he was afraid the repair work which had been done would be damaged on removal of the cast. Following this operation the thigh of the left leg was again noticed to be smaller and the kneecap was still higher than normal. Blond was unable to walk for some period following this operation and had to undergo physiotherapy for several months after the cast was removed. He did various exercises in an effort to strengthen his leg and after a considerable length of time was able to walk with crutches, then by using a cane, and finally without any aid.

Blond continued to have difficulty with his leg in limping and being able to walk on anything except a perfectly flat surface.

After the above operation and treatment by three physicians, Blond was still not satisfied with his progress so he consulted an orthopedic surgeon in New York City. This surgeon referred him to Dr. Peltier at the University of Kansas Medical Center. Dr. Peltier, on examination, was of the opinion that Blond had an old rupture of the patellar ligament and recommended surgery. Dr. Peltier operated on Blond’s left knee and found only a small tuft of tendon anchored to the leg below the knee. There was not enough tendon which could be used to attach the kneecap to the bone below and above the kneecap. Dr. Peltier then cut the upper end of the gracilis tendon from the inside of the left thigh and pulled it down and drilled a hole through the patella, or kneecap, and ran the tendon through such hole. He also drilled a hole in the tibial tuberosity and anchored the tendon to the bone below the knee. This was to substitute for the tendon severed in the accident which was no longer of any use.

After being in a cast about six weeks, Blond was followed in the out patient clinic of the hospital.

At trial Blond testified he could walk on even surfaces but could not walk on any rough or uneven surface. He stated he had to go up and down stairs by “hiking or lurching” his body in order to move his left leg. He stated he had pain in his leg and knee constantly, with increased pain when the knee was bent. He stated he could not squat or stoop but could only bend from the waist. He stated he had been very athletic in college and prior to the accident playing tennis, squash and handball, but after the accident was confined to swimming and riding a bicycle. He stated he could not help his wife around the house, nor could he do the yard work he had previously done, nor could he play with his two children except to the extent of sitting down and playing stationary games. Although his children were young and would have been easy to carry normally, Blond stated he was unable to carry his children or lift them.

At the trial, about four years after the accident, Blond stated he still had pain constantly in his left leg and knee. He stated in an effort to reduce the pain he always tried to keep his leg straight. While this did not completely relieve the pain it would help reduce it. He stated he still had the same difficulty in walking on anything except an even surface and had particular difficulty with inclines, steps and ladders.

At trial Dr. Peltier stated Blond had normal extension in terms of range and motion of the left leg, but lacked fifteen degrees of full flexion. He stated the kneecap was still high and the circumference of the thigh muscle was an inch to an inch-and-a-quarter smaller than the right side which was the result of muscle atrophy. The doctor stated Blond was impaired in walking and using steps and in walking on rough surfaces. The doctor also stated Blond had chondromalacia, which is a softening of the cartilage on the underside of the kneecap. Dr. Peltier stated he had advised Blond against any sports that involved running, or any activity that would be any strain on his left leg. Dr. Peltier described all of the conditions which he observed in Blond to be permanent.

Anne Blond testified to the same difficulties which Blond had described with his mobility and the weakness of his left leg. She also stated Blond had done the usual •housework, including building and general household repairs, prior to the accident, but after the accident had been unable to do any of these.

Ten Main admits in its brief that Blond’s life style has been changed as a result of this accident. Ten Main also does not question the nature and extent of Blond’s injury as described by him and his physician. It argues that even with this admitted, the verdict is excessive.

Blond had medical expenses of $4,640.89 and was obligated to repay his law firm $3,075 for salary paid but unearned because of work missed by reason of his injury.

At the time of his accident Blond was 30 years old with a life expectancy of 37.70 years.

There is no dispute concerning the rules to be applied in determining when a verdict is excessive. “On appeal, we can act only when excessiveness appears as a matter of law. Normally the jury is the final arbiter and we can order remittitur only when the verdict is clearly for an amount in excess of the very most that the proof of damages could reasonably sustain, and then only when the judgment is so excessive as to shock the conscience of the court.” Allen v. Bi-State Development Agency, 452 S.W.2d 288[9—10] (Mo.App.1970).

Ten Main places its argument more on the side of uniformity than it does on pure excessiveness. It relies mainly on Crane v. Northrup, 413 S.W.2d 190 (Mo.1967). In Crane a carpenter suffered multiple fractures of one leg and a fracture of the other with “malalignment of the toes and the ball of the foot”.

The St. Louis District , of this Court in Sanders v. H & S Motor Freight, Inc., 526 S.W.2d 332 (Mo.App.1975) fully considered Crane in passing on a request for remitti-tur. The court in Sanders pointed out the court in Crane stated the plaintiff in Crane had movement of his knee and his leg was a good usable leg. The court also stated in Sanders one of the considerations which defies any precise measurement is the existence of pain. In the case at bar, Blond' testified he had constant pain in his leg and knee some four years after the accident. Because of the dissimilar injuries, and the erosion of the purchasing power of the dollar since 1967, Crane is not controlling.

The controlling factors in considering ex-cessiveness and whether or not a remittitur should be made are set forth in Woodford v. Illinois Central Gulf Railroad Co., 518 S.W.2d 712, 718[13—17] (Mo.App.1974) as follows:

“The factors bearing on whether a verdict is excessive are well known. They are: (1) the nature and extent of plaintiff’s injuries, (2) the permanency of plaintiff’s injuries, (3) plaintiff’s age, (4) examination of cases involving awards for similar injuries, (5) due regard for economic factors (inflation, etc.), and (6) an awareness of the fact that the jury and the trial court had a superior opportunity to appraise plaintiff’s injuries . It is axiomatic that in reviewing the excessiveness of a verdict, only the evidence favorable to the plaintiff will be considered.”

It would only serve to prolong this opinion to discuss and distinguish other cases cited by Ten Main which admittedly do not involve the same type of injuries as does this case, nor would it serve any useful purpose to further discuss the familiar rules governing this situation. In the end this court has to determine whether or not the award of $75,000 to Blond and the award of $15,000 to Anne Blond is so excessive as to shock the conscience of this court. While these awards might be considered to be on the higher side of what the evidence in this case would justify, after a careful consideration of the record, this court is unwilling to say such awards are so excessive as to require a remittitur. The experienced trial judge who presided over this trial was requested to make a remittitur and declined to do so. .The law rightly vests a broad discretion in the jury in fixing the amount of an award. On appeal this court is required to view the evidence in the light most favorable to the plaintiff. In this case it cannot be said the trial court abused its discretion in failing to order a remittitur and this court likewise refuses to do so. Grossman Wrecking Company v. Bituminous Casualty Corporation, 518 S.W.2d 719 (Mo.App.1975).

The judgments in favor of Blond and his wife against Ten Main are affirmed.

In oral argument counsel for Blond and his wife stated if the judgments in their favor against Ten Main were affirmed, the appeal filed by the Blonds against the three physicians could be dismissed. On this stipulation, the appeal by plaintiffs against Drs. Overesch, Abella and Adelman is hereby dismissed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    Thayne FAST et al., Respondents, v. Robin SMYTH et al., Appellants. Raymond DICKEY and Alice Dickey et al., Appellants, v. Rev. Thayne FAST et al., Respondents.
    No. KCD 26,993.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      James A. Christenson, Independence, for appellants.
    Charles M. Warner, Kansas City, for respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This litigation stems from a struggle for control of the property and affairs of the Free Will Baptist Church of Kansas City, Missouri, between two factions of its congregation. One of these groups, led by Thayne Fast, who claims to be the present pastor of the church, will be hereafter referred to as the “Fast” group. The other group, led by Raymond Dickey, the senior deacon of the church, and his wife, Alice Dickey, former pastor emeritus and who claims to be the lawfully elected present acting pastor of the church, will hereafter be referred to as the “Dickey” group.

The exact legal status of the church organization remains somewhat obscure from the record. The First Free Will Baptist Church was founded by Alice Dickey in 1948, as a voluntary religious association. In 1963, three members of the church organized a not-for-profit corporation, named the “Kansas City First Free Will Baptist Church”, and a charter was issued by the Secretary of State of Missouri. Except for the payment of the annual registration fee, the record shows that this corporation never functioned as a corporate body. The church property was never deeded to it; no officers or directors were ever elected; no bank account established; and, the minutes and official records of the church generally refer only to the name “Free Will Baptist Church”. However, all parties to the litigation agreed that the Constitution, By-Laws and Minutes offered and received in evidence were those in effect and pertinent under which all parties operated and which controlled their rights and obligations during the times involved. The court below made no finding as to whether or not the church was operated as a corporation, and no such finding is necessary here. The records, evidence and admissions of the parties justify the assumption that the functioning church structure was in fact not changed by the issuance of the corporate charter, and that the church proceeded to function as a voluntary, religious association, as it had since 1948. The entity of such organization will be hereinafter referred to as the “Church”.

Long prior to the difficulties giving rise to this litigation, the Church, as an autonomous, self-governing, religious congregation, had affiliated with the Central Western Missouri Association of Free Will Baptists (hereinafter referred to as “Association”) which, in turn, was affiliated with the State and National Associations of Free • Will Baptists. The Association had no authority to interfere with the internal affairs of local churches, but it did create a board within its organization known as the Missouri State Home Mission Board of Free Will Baptists (hereinafter referred to as “Board”) which, upon request of a church in financial trouble and an agreement by such church to assume “Mission status”, could take over the management and trusteeship of such church with the objective of rehabilitation of its affairs toward an eventual return to independent church status.

By becoming affiliated with the National Association, the Church accepted and became bound by “A Treatise of the Faith and Practices of the Original Free Will Baptists”, pertinent parts of which will be hereafter noted and referred to as the “Treatise”.

On April 6, 1973, the “Fast” group instituted an action in the court below, Case No. 768131, for a temporary restraining order and for a permanent injunction against the “Dickey” group. In summary, it was alleged in this suit that at a regular monthly business meeting of the Church, held on March 4, 1973, a resolution was passed to transfer the trusteeship and authority of the trustees of the Church to the Board; that the Board accepted such trusteeship and authority and requested the Church to continue to hold Sunday services with Thayne Fast as Pastor and Minister; and, that the Dickey group had physically prevented him from doing so, against the wishes of the majority of the congregation. The Fast group sought injunctive relief to prevent such interference. A temporary restraining order was granted in accordance with the prayer of the petition.

On the same day, April 6,1973, the Dickey group filed suit for a restraining order and injunction against the Fast group in the Circuit Court, there being numbered 768151, alleging, in substance, that the act of the latter group on March 4, 1973, in turning over the affairs of the Church to the Board, was illegal and void under the Constitution and By-Laws of the Church; that this action had been rescinded by legal action of the membership on March 5,1973, and the resignation of Thayne Fast as Pastor had been accepted on that date; that the Fast group has disregarded such legal action and, under the authority of the Board, has continued to exercise control over the property and religious services of the Church; that the Fast group has disregarded a petition of March 22, 1973, of the membership, protesting transfer to the Board, and refused to allow the membership to hold its regularly scheduled business meeting on April 1,1973, but that nevertheless such business meeting was held with 18 members of the Church present; that at this meeting the action of the Fast group of March 4, 1973, turning the affairs of the Church over to the Board, was again rescinded and the services of Thayne Fast as Pastor again terminated; that the Fast group had refused to turn the property and affairs of the Church over to the Dickey group or permit it to hold religious services; that numerous members have refused to attend or function as part of the congregation so long as the Fast group remains in control, to the financial detriment of the Church; and, that the Church is an autonomous congregational church and a member of the Association, but that the Fast group has completely ignored the advice and counsel of the Association in its purported action to dissolve the Church and turn its affairs over to the Board. The petition requested that the Fast group be enjoined from further exercise of control, direction or administration of the affairs of the Church. A temporary restraining order was issued in the Dickey case by the court to this effect on April 6,1973. The Dickey group filed an amended petition in its action on April 13, 1973, substantially the same as above summarized, adding additional parties as defendants.

On April 18,1973, the Fast group filed its motion to dissolve the restraining order and to dismiss the petition in the Dickey injunction suit. These motions were overruled on April 25,1973, and the two suits, No. 768131 and No. 768151 were consolidated for trial.

After an evidentiary hearing and on April 26, 1973, the court entered a preliminary or temporary order holding that both of the business meetings of March 4, 1973 (the Fast meeting transferring the affairs of the Church to the Board) and the March 5, 1973 and April 1, 1973 meetings (the Dickey meetings rescinding the actions of the Fast group on March 4, 1973) were not held in accordance with the by-laws of the Church and were null and void. The court’s order further directed that a business meeting be held in accordance with the by-laws of the Church and upon proper written notice to the members to decide whether the transfer to the Board should be made. This temporary order further stated “ . that all members of said congregation may attend the church service or business meeting and exercise full right of membership

Such a business meeting was held on May 6,1973, at which meeting nine persons were not permitted to vote, and the result was declared to be fifteen votes for and thirteen votes against the transfer to the Board.

On May 8, 1973, the Dickey group filed a motion to show cause why Thayne Fast, who presided at the May 6th meeting, and Elizabeth Mason, who acted as clerk, should not be cited for contempt for violation of the court’s order of April 26, 1973. The basis for this motion is the assertion that proper notices of the business meeting to be held May 6, 1973 were not sent to approximately fifteen members of the Church; some members were improperly excluded from the meeting; some eligible members were denied the right to vote; some votes were not counted; the right to speak against the proposal to transfer was denied; that a necessary two-thirds majority was required to amend the constitution and bylaws, and such vote was not obtained; and, that all of these procedures were in violation of controlling Church laws.

On June 11, 1973, the court held another evidentiary hearing with reference to the conduct of the May 6, 1973 meeting, and held that such meeting was valid and legally conducted. The court thereupon entered judgment in the Fast suit, No. 768131, granting a permanent injunction against the defendants (the Dickey group) from interfering with the resolution of May 6, 1973. It also entered a judgment against the plaintiffs (the Dickey group) in case No. 768151, denying injunctive relief. After an unsuccessful motion for a new trial, the Dickey group appealed from both judgments of June 11, 1973 to this court.

The Dickey group (appellants) assert two points upon which they seek reversal of this decision, which may be stated as follows: 1) that the trial court erred in holding that the nine members of the Church who were not permitted to vote at the May 6, 1973 meeting, were properly denied this right; that the status of such persons was an ecclesiastical matter to be determined by the Church and not' the courts; that the May 6th meeting was conducted oppressively and illegally; and that they were thereby denied due process and deprived of their civil rights; and 2) that the court erred in denying the members the right to hold business meetings and the right to vote on church legislation in the future; that such action in fact amended the Constitution and By-Laws of the Church and therefore required a two-thirds affirmative vote of the Church members, which had not been obtained.

It is, of course, well established law that strictly ecclesiastical controversies are under the exclusive jurisdiction of ecclesiastical tribunals and decisions on such matters are binding upon and not reviewable by the civil courts. Henson v. Payne, 302 S.W.2d 44, 50[5] (Mo.App.1956); Stone v. Bogue, 238 Mo.App. 392, 181 S.W.2d 187, 190[3] (1944); Williams v. Wilder, 397 S.W.2d 696, 702[2] (Mo.App.1965). In Henson v. Payne, supra, it was held that the determination of who are qualified members of a church is an ecclesiastical matter (l.c. 51[13]).

There is, however, a well recognized exception to this general rule in this state. Civil courts will review ecclesiastical matters where necessary to protect the property, contracts or civil rights of members. Stone v. Bogue, supra; Murr v. Maxwell, 232 S.W.2d 219, 236[17] (Mo.App.1950). This exception to the general rule permits the court below (and this court on appeal) to inquire into whether the meeting of May 6, 1973 was properly called and conducted because at that meeting purported congregational action was taken with reference to the title, use or possession of church property. Trett v. Lambeth, 195 S.W.2d 524, 531-532[4] (Mo.App.1946); Murr v. Maxwell, supra; Williams v. Wilder, 397 S.W.2d 696, 703-704[7] (Mo.App.1965).

Under these authorities, the basic and dispositive matter as to appellants’ first point is whether the nine persons who attended the May 6, 1973 business meeting ordered by the trial court were in fact members of the Church entitled to vote upon the transfer of the Church property and affairs to the Board, and were, therefore, wrongfully prevented from voting. To determine their status, resort must be had to the facts upon which they claim membership against the background of Church law, custom and usage. Trett v. Lambeth, supra.

The Constitution of the Church provides in Article III a broad general statement of the basic requirements of eligibility for church membership, premised largely upon a profession of religious faith and acceptance of the religious covenants of the Church, and baptism by immersion. A person then may be received as a member by a vote of the congregation. The By-Laws of the Church are silent as to the procedural rituals incident to membership.

However, the Church had accepted the dogma and tenets as contained in the “Treatise” referred to above. Part IY of this publication pertains to “The Practices of Free Will Baptists”. Chapter I of this section pertains to “The Local Church”, and Section VII of that chapter stated in part, as follows:

U * * *
Its Membership A. An individual may be received into the fellowship of a local church by decision of the congregation according to its regularly prescribed method * * *” (Emphasis supplied)

The procedures or “regularly prescribed method” followed by the Church in its acceptance of new members was shown by substantial evidence to consist of several steps. One, the pastor “opens the doors”, that is, apparently an invitation or opportunity to apply for membership, and he counsels applicants on their faith and their understanding. Two, if they are not baptized, they are to be baptized. Three, they are read the Covenant of the Church and are required to accept the Covenant. Four, the Church congregation votes upon the applicant. Five, their names and addresses are then placed upon the Church membership rolls.

It was also established that persons who had fulfilled the other requirements for membership were usually voted upon by the congregation during or immediately after a regular Sunday service.

The record discloses that the nine persons who were not permitted to vote at the court-ordered meeting of May 6, 1973 were admitted to membership by that part of the congregation here referred to as the Dickey group at prayer meetings conducted by Mrs. Dickey as “Acting Pastor” by reason of appointment by the Dickey group on Monday, March 5, 1973, a meeting declared by the court below to be invalid. At the March 5, 1973 meeting, five new members were accepted; on Wednesday, March 7, 1973, one; on Friday, March 9, 1973, one; on Sunday, March 11, 1973, two; and a tenth new member was accepted on a date not shown on the record. Two of these persons were baptized by an outside pastor on April 10, 1973. There was evidence that some of the church members belonging to the Fast group were not notified of such meetings; that Thayne Fast and others, were excluded from at least one of these meetings, and Fast was bodily ejected from the Sunday, March 11, 1973 service.

None of the nine persons not permitted to vote on May 6, 1973 were ever enrolled as members on the Church books, though Mrs. Dickey testified she had given Thayne Fast a list of their names and addresses and requested that they be so enrolled.

On April 29, 1973, a business meeting of the Church board was held, at which time it was decided to send the court-ordered written notices to only those persons enrolled upon the Church books as members, at their last known addresses, advising them of the court-ordered business meeting to be held Sunday, May 6, 1973. Fifty-eight such notices were sent, the meeting held, the nine new “Dickey” members (who were not formally notified but attended) were not permitted to vote, and the result was a vote of 15 to 13 for the transfer to the Board.

There is substantial evidence upon which to find that the purported congregational meetings of the Dickey group, at which the nine persons were admitted to membership, were not properly called and conducted, Murr v. Maxwell, 232 S.W.2d 219, 236[18] (Mo.App.1950), and such persons were not admitted to Church membership by the “regularly prescribed method” theretofore employed for that purpose. That being the case, it follows that their right to vote as members was properly denied.

Likewise, there was substantial evidence that the court-ordered meeting of May 6, 1973 was properly called and conducted within the guidelines declared by the court below in its temporary order of April 26, 1973.

As a part of their argument in support of the first point, appellants assert that the injunction upholding the May 6,1973 action of the membership was “extremely harsh” and was clearly contrary to established law, in that there was no showing that the ecclesiastical proceedings to determine the standing of the nine excluded members had been followed and exhausted. There is no merit in this argument for the reason that the action of the Church board on April 29, 1973, deciding that notices of the court-ordered business meeting to be held May 6, 1973 be sent only to those persons enrolled on the Church books as members was followed and ratified by a majority of the enrolled members in attendance at the May 6, 1973 meeting. Also, the final injunction issued by the court was couched in the only terms possible, namely, enjoining the Dickey group from interfering with the resolution of May 6, 1973, turning the Church affairs over to the trusteeship of the Board.

The cases cited by the appellants in support of their first point have been carefully studied and are clearly distinguishable on the facts, correctly state general principles of law equally applicable here, and are not persuasive toward any conclusion other than the one here reached. There is no merit in appellants’ first point.

The appellants’ second point presents a difficult and perplexing problem, which, as far as the briefs and independent research by this court discloses, has no prec-edential guidelines. They assert error by the court below in denying the Church members the right to hold business meetings and vote on “legislation” during the trusteeship of the Board. They claim that such a deprivation of power abrogates the provisions of the Church Constitution and By-Laws, which would require a two-thirds majority vote of the members.

The evidence adduced below was that the Board here involved was authorized and established under the broad general power granted to the Missouri State Association of Free Will Baptists to establish such boards, committees and commissions, as are required in its operation. The Board is an integral part of the Association’s structure. However, there was no evidence (other than oral testimony) as to the Board’s powers, composition or functions; no proof of written rules or regulations governing its operation; and, even more important, no proof of any standard rules or regulations defining the restrictions upon or obligations of a church coming under trusteeship of the Board.

Cliff Bowman, a director of the Board, and Lawrence D. Thompson, its Secretary-Treasurer, testified as witnesses for the Fast group. Bowman testified that the above elements of proof were defined under written documents of the State Association, although none such were produced. Thus, there is a gap between the written laws of the Church and those contained in the National Association’s “Treatise”. No objection was made as to the oral testimony of Bowman and Thompson, however, and no evidence in conflict therewith was adduced.

For the purposes of this appeal, the following facts must be deemed as established.

The basic church law (the “Treatise” hereinabove referred to) clearly recognizes the independence and autonomy of the individual churches. Part IV, Chapter I, Section IB, states:

“The local church is an independent and self-governing body, with full authority to transact its business, choose its pastor and officers, receive discipline, and dismiss members, hold free title to all its properties, and conduct all its internal affairs.”

Chapter III, Associations of Churches, Section I, describes the associations of a local church with the state and national as strictly “voluntary, both at the beginning and in their continuation”, and states, “The local church remains at liberty to withdraw from the association it has voluntarily joined.” Section IV A-l of the same Chapter of the “Treatise” states:

“The association has no authority to interfere in the internal affairs of the local church, (see Chapter One, Section I-B).”

Bowman and Thompson both testified in effect that these provisions were inapplicable to the operation of the Board. The Board’s function is to come to the assistance of local churches that are in financial difficulty upon request of such churches. The Board assumes and pays the debts of such churches; appoints a pastor to handle both the ecclesiastical functions and to work toward increased membership and other organizational needs; and the Board manages all the secular affairs of the church during the trusteeship. When the affairs of the church are in order, according to the judgment of the Board, the local church organization resumes its control over such affairs.

The Board does not inject its control and function except upon proper request from the local church and, so far as this record discloses, there are only two conditions imposed. It is required that the church assume “Mission status” during the trusteeship, which simply means that the affairs of the church theretofore controlled by its local organization come under the directorship of the Board during the period.

During this period of trusteeship, according to the testimony of Bowman and Thompson, no business meetings of the Church are held unless that privilege is granted by the Board. There is a basic and logical reason for this since the function of the Board and of the regular business organization of the Church would overlap and perhaps conflict, to the detriment of the efforts toward salvage and rehabilitation of the church affairs.

The other condition of the trusteeship is that the time when the Church affairs are returned to the Church organization is to be determined solely by the Board.

There can be no valid dispute that at the times here involved the affairs of the Church were in bad, if not desperate, condition. There were only 58 members enrolled on the Church records, some active and some inactive; the average church attendance at regular services was from 15 to 20 persons; there was a bonded indebtedness on the church property of $20,000 to $28,-000; there was an unpaid special sewer tax bill in the amount of approximately $8,000; the general weekly operating cost was several hundred dollars; and, on May 6, 1978, the date of the court-ordered business meeting, the minute book shows there was $168.57 in the Church treasury.

The testimony of Thompson and Bowman was that the Board had been approached by Reverend Fast and Deacons Mason and Rhoades to have the Board assume trusteeship; that the Church officials were advised of the conditions; that following the March 4, 1973 meeting (later declared invalid by the court below) the Board had agreed to the trusteeship and had also agreed thereto following the May 6, 1973 meeting; had assumed the debts and obligations of the Church; and, had made arrangements for Fast to stay on as Pastor until a permanent pastor could be appointed (which had apparently been tentatively accomplished pending the outcome of this litigation at the time of the last court hearing below).

Having ruled that the May 6, 1973 meeting was valid, it necessarily follows that the action of the Church in determining to turn its affairs over to the trusteeship of the Board was a voluntary act and decision, and was not in any way imposed or coerced by the Board. Thus, the authorities and arguments of appellants, that the relationship between members of a voluntary association are contractual and their rights thereunder may not be unlawfully impaired or denied are inapplicable under the facts in the case at bar, and the civil rights of the minority Dickey group were not violated or impaired. Neither would the trusteeship constitute any amendment to, or repeal of, the Church Constitution or By-Laws and thus require a two-thirds vote by the members. Rather, as held by the court below, the provisions of those Church laws would be temporarily suspended during the period of trusteeship.

Nothing said herein is to be considered a holding by this court that the rules of law applicable to trust relationships generally and the duties and obligations of trustees do not apply to the existing relationship between the Board and the Church. Nothing in this record reveals that the actions of the Board or its intended functions can be attributed to bad faith or impropriety, and such will not be implied as to its motives.

Nothing appears except that the Board is motivated by a good faith effort to aid in solution of the Church’s problems and its fiscal rehabilitation. It is to be hoped that with a new pastor and the guidance of the Board, the intra-congregational frictions will dissolve and the control of its affairs can be turned back to the Church in the near future.

For the reasons herein stated, the judgment is affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    Mary I. SCOTT and William F. Scott, Appellants, v. Bettie DOUGAN, et al., Respondents.
    No. KCD 27096.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      John W. Newhart, Newhart & Newhart, Savannah, Theodore J. Furry, Birmingham & Furry, Kansas City, for appellants.
    Scott Ross and Wm. Rex Beavers, Beavers, Thomson, Beavers & Ross, Maryville, Louis Kranitz, Kranitz & Kranitz, St. Joseph, for respondents.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

This is an appeal from two separate proceedings consolidated for hearing and disposition in the circuit court. One, Case No. 5185E, was an original proceeding for partition brought by Mary I. Scott and William F. Scott. The other, Case No. 5197E, was an appeal by the Scotts from an order of the Probate Court of Nodaway County authorizing the sale of the same property by the executors under the will of Floyd A. Kiser. The circuit court denied partition and affirmed the Probate Court’s order of sale.

Floyd A. Kiser died testate on August 18, 1972, possessed of the land in question and survived by seven children of whom the appellant, Mary I. Scott, is one. On August 29, 1972, the will was admitted to probate, and the co-executors designated therein were appointed on August 31, 1972. The will devised a one-half interest in one tract to the testator’s daughter Rosalee Walton; and the remaining one-half of that tract, together with all other property, was devised equally to all seven children. The will further nominated Charles Kiser and Kenneth Laughlin as co-executors with a direction that they not be required to furnish bond. The will further provided:

“I authorize, but do not direct, my Co-Executors to take charge of any real property in my estate and to sell, lease, mortgage, assign, pledge or otherwise convey any real or personal property of my estate without obtaining any order of the court having jurisdiction over the administration of my estate, upon such terms and conditions, at such time or times and for such consideration as my Co-Executors shall deem proper, within their sole discretion.”

On the very same day that the eo-exeeu-tors were appointed by the Probate Court, the Scotts filed suit for partition in the circuit court with respect to the two tracts of real estate owned by the testator at the time of his death. Eight days thereafter, on September 8, 1972, the executors filed application in the Probate Court to take charge of the real estate and on September 19, they petitioned the Probate Court for an order to sell the real estate in order to pay claims, expenses and taxes and also pursuant to the express power contained in the will. The inventory, filed concurrently with the petition for sale, disclosed real estate with valuation aggregating $154,000 and personal property of value totalling $16,382.25. On October 10, the Probate Court did order sale of the realty as prayed, at private sale, under the terms of the will.

After an appeal duly taken from that order of the Probate Court, both proceedings then before the Circuit Court were consolidated by agreement of the parties. The stipulation for consolidation recites that all parties had in mind “that the judgment of the Court will result in the dismissal of either Case No. 5197E or Case No. 5185E and that the Court will order all further proceeding to progress in the surviving cause * * *.” All parties also entered into a stipulation [of statement] of facts in which the parties prayed the court to determine “all issues relating to the priority with regard to the procedure for sale of real estate of either the petition for partition or the Probate Court’s Order to Sell.”

Pursuant to that submission, the trial court entered judgment finding that the partition sought by the Scotts “was contrary to the Last Will and Testament of Floyd A. Kiser wherein he empowered the executors to sell such real estate.” Accordingly, the court entered judgment against the Scotts, and the proceedings in Case No. 5197E were remanded to the Probate Court for sale of the real estate. On their appeal from that judgment, the Scotts make the following points: 1) that the trial court erred in denying partition, because Mary Scott had a legal right to partition based upon her joint tenancy in the realty which vested at the time of the testator’s death; and 2) that the trial court erred in finding that partition would be contrary to the testator’s intention.

No question exists but that Mary Scott acquired legal title as tenant in common immediately upon the testator’s death. Nor do respondents dispute the proposition that tenants in common generally have a right to partition under § 528.030 (this and all other statutory reference being to RSMo 1969), and Rule 96.01. On the other hand, the Scotts do not deny that their right to partition is not absolute. An unquestionable limitation imposed upon that right appears in § 528.130, which provides:

“No partition or sale of lands, tenements or hereditaments, devised by any last will, shall be made under the provisions of this chapter, contrary to the intention of the testator, expressed in any such will.”

That statutory declaration merely implements the cardinal rule governing the treatment of every decedent’s estate, by which the courts must bend every effort to give effect to the testator’s true meaning and intention. In this regard, see also § 474.-430. Thus, the issue in this case boils down to this single question: would the partition sought by the Scotts violate the testator’s intention?

With respect to this determinative issue, no case has been cited or found directly in point. Nevertheless, the ascertainment of the testator’s intention for present purposes can be fairly deduced from the provisions of the will. First to be considered is the fact that the testator selected these two particular appointees to serve as the executors of his will. That alone is an important expression of confidence. The extent of that confidence was further evidenced by the provision that these executors were authorized to serve without bond.

Far more significantly, however, the testator then proceeded to invest these appointees with extremely broad power under which they could encumber or dispose of any part of the estate without any court order and upon whatever terms and conditions and for whatever consideration they should deem proper “within their sole discretion.” This type of power calls for the exercise of a careful and prudent judgment. Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974). The vesting of judgment in this matter in such broad discretionary terms necessarily reflects a weighty consideration in the testator’s mind.

Surely the testator could not have intended and would have resisted the idea that some stranger could be interjected into the handling of by far the major part of his estate without giving the executors in whom he had evidenced such great confidence any opportunity to administer those assets. That interjection is precisely what would occur if the Scotts’ partition suit were permitted presently to go forward. They filed their suit on the very day that the executors received letters testamentary. Obviously the executors had not yet had time to enter upon their duties, prepare an inventory and chart an intelligent course of action. To reward the Scotts for winning a race to the courthouse would be to allow them to veto the testator’s own choice of the persons to administer his estate. It would open the door to putting someone other than the testator’s selection into a position to say when, how and to whom the real estate is to be sold.

Another factor of considerable significance should be noted. The powers to the executors under the will are sufficiently broad to permit disposition by private negotiated sale, as indeed is permitted under the order of the Probate Court dated October 10, 1972. If the Scotts’ partition suit were to go forward at this time, the partition sale could only be under the hammer at public auction. Section 528.340 and Rule 96.34. Thus, a sale pursuant to partition could likely mean a sacrifice in value to the estate and all of the heirs. The avoidance of this result could very well have been a major intention on the part of the testator in granting the broad power of sale which he did give to his executors.

The Scotts argue in various ways and in slightly different terms in different parts of their brief a basic theme that the power of sale given to the executors here was merely discretionary without being an imperative direction to sell. It is quite true that if there had been an imperative direction to sell, then that provision of the will would have amounted to an equitable conversion of the realty into personalty and would have barred partition. Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735 (1933). By like token, in the absence of an imperative direction, there would not be an equitable conversion. McQueen v. Lilly, 131 Mo. 9, 31 S.W. 1043,1045 (1895); Uphaus v. Uphaus, 315 S.W.2d 801, 807 (Mo.1958); 68 C.J.S. Partition § 43c, p. 63.

However, that is not to say that an equitable conversion must be shown in order that a partition be inconsistent with the testator’s intention. An equitable conversion does make partition improper, but there are other circumstances not amounting to a technical equitable conversion which can also bar partition on the ground that it would subvert the testamentary plan.

The case of Brockman v. St. Louis Union Trust Co., 44 S.W.2d 877 (Mo.App.1932) illustrates a power of sale under circumstances which adequately showed that partition would be contrary to the testator’s intention even though there was no direction to sell sufficient to constitute a technical equitable conversion. In that case the will created a trust in favor of 5 children, with distribution to be made upon the death of each child to his or her descendants. Upon the death of one of the testator’s children, her children applied for a partition and sale. There was no question that each of the petitioning grandchildren had legal title to an undivided ½5⅛ interest. In this respect, the opinion states: “Fortunately the parties are in unison upon all questions of title . . . and that the plaintiffs herein, upon the death of their mother, became and are now each possessed of an undivided one-fifteenth interest therein.” Nevertheless, it was held that partition would be improper in view of the fiduciary power under the will “whenever the trustee may deem best, from time to time to dispose of any portion of the trust estate by sale, mortgage, or lease, either for the purpose of reinvestment or distribution, and from time to time to invest and reinvest the trust property, and to change the character of the investment as the trustee may deem best.”

•The Brockman opinion also answers Scotts’ argument that the judgment of the trial court will deprive them of one of the principal privileges of ownership, that being the right of sale. The same argument was advanced and rejected in Brockman. That opinion holds at l.c. 880:

“Of course, the discretion lodged in the trustee was not an unlimited and unbridled one, but was to be soundly and fairly exercised. We have no doubt from the context of so much of the will as is before us that it was the intention of the testatrix that distribution to such beneficiaries as are the plaintiffs herein should not be delayed unreasonably beyond the time of the vesting of title to an undivided portion of the estate in them. Any other construction of the will would enable the trustee, if it chose, to defeat the plainly expressed purpose of the testatrix. But the trouble is that the petition failed to count upon that theory of the case, or to state any facts so as to enable the court to determine for how long distribution had been delayed, or that the trustee had declined to make distribution, or that it was acting fraudulently and unfairly and in abuse of the trust reposing in it.”

So also here, the Scotts are not being deprived of the privilege of having their property sold. No undue delay has occurred in the executors’ exercise of their power of sale. To the contrary, this record shows that the executors have moved with the utmost dispatch toward the accomplishment of a sale and have been prevented from effecting a sale only because of the legal opposition by the Scotts themselves. In this case, there is no problem about whether or not there will be a sale. Rather, the only questions are who shall conduct the sale and the manner of sale. A sale by the executors will effectuate the testator’s intention, whereas the interjection of a commissioner appointed in a partition suit who might be a stranger unknown to the testator and who would have to sell at public auction would be subversive to that intention. The trial court’s finding was not palpably erroneous and must be affirmed. Rule 73.01; R.L.S. v. J.E.S., 522 S.W.2d 5, 6 (Mo.App.1975).

All concur.

      . The Scotts also attempt to argue that the Probate Court had no jurisdiction to order a sale because of the prior pendency of the partition action. This issue is not before this Court, because not properly set out as a separate Point Relied On. Rule 84.04(d). Moreover, a ruling on that point would have no practical value and would simply mean at most that the Executors would have to refile their petition in the Probate Court. The futility of devoting attention to this question seems to have been recognized by the parties by the language of the stipulations filed by them in the Circuit Court.