author: PRITCHARD, Judge.

text:
    Joseph J. CIGAS and Agnes Julia Cigas, John J. Gillespie, Francis W. Barnes and Virginia T. Barnes, Thomas J. Finn and Patricia M. Finn, Appellants, v. KANSAS CITY LIFE INSURANCE COMPANY, Respondent.
    No. 29723.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      Donald E. Raymond, Thomas M. Howell, Kansas City, for appellants; Howell, Raymond & Raymond, Kansas City, of counsel.
    Reed 0. Gentry and Reggie C. Gif fin, Kansas City, for respondent; Field, Gentry, Benjamin & Robertson, Kansas City, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

In a lengthy four count first amended petition, appellants sought to charge respondent with damage liability for depressing the values of their properties lying between 33rd Street on the north, Valentine Road on the south, Southwest Trafficway on the west, and Pennsylvania Avenue on the east, in Kansas City, Missouri, generally, and incorporated in each of appellants’ four counts, that respondent devised a scheme to acquire these properties at depressed prices so that the land could be assembled for the erection of lucrative apartment and business buildings; as a part of the scheme, respondent continued through acquisition of the properties, and their subsequent neglect, to blight the area depressing appellants’ property values, and to use the Missouri Urban Development Law to gain tax concessions, to force appellants to sell their homes, either by making the neighborhood so undesirable that residents would be forced to move, or by blighting the area so the city would be forced to condemn or give to respondent the right to condemn; that about 1970 respondent began acquiring properties in the area to carry out the scheme, particularly older, less cared-for homes, which it proceeded to make even more dilapidated by neglecting even minor maintenance so that the properties would become hazardous to the health and safety of persons living in the houses and neighboring properties; that respondent entered into a conspiracy with one Witthaus, a real estate broker, to assist in its scheme, and to hasten the deterioration of the neighborhood; that rentals of its properties were made by respondent to persons who would cause trash, garbage and debris to accumulate and create loud noise and otherwise disturb neighbors for the express purpose of causing deterioration of the area and making the neighborhood an unpleasant place to live; that Witthaus, at respondent’s instigation, went through the area urging persons to sell their properties to respondent on advice that the neighborhood was becoming blighted and unsafe, and if they did not sell, respondent would force them to do so by condemning their properties; that respondent applied to the City of Kansas City to have the area designated blighted saying that it was unsanitary, crime-ridden, and deteriorated to such an extent that to protect the city, all of the h unes and businesses therein would have to be torn down and utterly destroyed so that respondent would forcibly acquire the properties against appellants’ wishes and for its own profit; that the application for “Urban Redevelopment” was not filed in good faith by respondent, by reason whereof the area gained the reputation throughout the city as being undesirable to such an extent as to destroy the marketability of properties therein; that because of total lack of merit, and by reason of the fact that the area was not blighted, respondent’s application (for urban redevelopment) was unanimously rejected by the city at a public hearing held April 1, 1971, but notwithstanding that rejection, respondent continued its scheme of acquiring property and deteriorating the entire area by permitting and encouraging the removal of fixtures and equipment from vacant houses, by tearing down houses leaving vacant spaces, and by encouraging use and abuse of properties by its tenants to an extent detrimental to the entire neighborhood, and to appellants’ properties. Count V of the petition, which was for an injunction, was dismissed by appellants without prejudice toward the end of the trial.

At the close of appellants’ evidence, the court sustained respondent’s motion for directed verdict. The issue is thus whether appellants produced sufficient evidence to make a submissible case upon any of their pleaded grounds for relief, and of course, the evidence must be here considered in its light most favorable to appellants. Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 815[6] (Mo.App.1975), and cases cited.

Appellant Thomas J. Finn testified that he acquired his house at 3620 Jefferson in 1962 for $8,000. He bought the adjoining house, a rental property, at 3622 Jefferson, in 1954, for $11,000, lived in it for awhile, then used it since as tenant property. Adjoining the properties on the north is a house acquired in 1969 by respondent, according to an exhibit, at 3616 Jefferson, which first rented. Finn testified that the property thereafter ran down and it was demolished in 1973, thereafter being a vacant lot. Of six properties owned by respondent in Finn’s block, only one, 3616 Jefferson, has been torn down as of the date of trial, at which time also Finn testified the house he lived in was worth $30,-000.

Appellant Joseph J. Cigas purchased his property at 3541 Jefferson in 1960. A key map of the area, identified by him, shows properties owned by respondent colored in yellow and red markings to indicate buildings that were torn down. Cigas carried mail in the area and noticed properties changing hands about 1968, and he observed a building at 3320 Pennsylvania which he noticed thereafter deteriorated in maintenance. So also with a building at 3605 Pennsylvania, and other buildings acquired by respondent in 1969. On April 1, 1971, a hearing was had on the application of Penn Valley Redevelopment Corporation to declare the Valentine area blighted, but the application was rejected by the City Planning Commission, after which a representative of respondent stated on a television interview that it did not consider the project defeated but that it was “going to continue acquiring properties and go from there.” Cigas learned “first hand” then that respondent was trying to buy more properties. An exhibit, respondent’s acquisition data, shows that it in fact greatly increased its purchases in the area after July, 1971, through May, 1976. Cigas further testified that many of respondent’s properties were thereafter in a state of bad repair and deterioration. Some corrections to properties were effected by respondent after building code enforcement was instigated.

Apparently, up to May 20, 1976, 31 buildings in the area owned by respondent were demolished, Cigas having learned prior to any demolition that respondent intended to do it. Up to that same date, respondent had acquired a total of about 87 properties in the area north of Valentine Road. A count of the remaining properties on the Key Map indicates about 84 of them were owned by individuals. The properties in the area were substantially constructed about the turn of the century.

T. Paul Dwyer, a consulting engineer, testified for appellants that in his practice, he makes studies of buildings, structures and areas to determine the existence of blight. He examined about 27 properties in the Valentine area owned by respondent stating variously the maintenance repairs needed by each, an average cost of about $200.00 each. Other properties in the area did not need the extensive repairs as these — they were in better condition, more painted and repaired. He read the redevelopment ordinance Section 36.2 of the City of Kansas City in evidence, including its definition of Blighted Areas: “ ‘Blighted Area’ shall mean those portions of the city which the council shall determine, that by reason of age, obsolescence, inadequate or outmoded design or physical deterioration, have become economic and social liabilities and that the conditions in such localities are conducive to ill health, transmission of disease, crime or inability to pay reasonable taxes.” On further direct examination, Dwyer testified that he found no conditions of obsolescence and inadequate or outmoded design and physical deterioration; no conditions of the property that would be conducive to ill health; or that would cause the transmission of disease. On cross-examination, he acknowledged that in his review of respondent’s properties, they were not particularly substandard, “in that they were liveable.”

Respondent quite apparently organized the Penn Valley Redevelopment Corporation, its officers being also those of the redevelopment corporation. This was done, also quite apparently, for the purpose of having the city declare the Valentine area blighted so that it could be condemned and redeveloped as an urban area. Appellants charge respondent with bad faith in initiating these urban redevelopment proceedings. No bad faith appears anywhere in the record, nor is there any evidence of any conspiracy between respondent and others (Witthaus as alleged) to bring about blight for respondent’s purposes. Chapter 353, RSMo 1978, authorizes the formation of corporations such as Penn Valley, which also thereunder, as authorized by ordinance, have the power of eminent domain over “blighted areas.” [§ 353.130 2] Respondent’s acts, or those done by Penn Valley, were in accordance with the statutes. As noted in Payne v. Kansas City, St. J. & C. B. R. Co., 112 Mo. 6, 20 S.W. 322, 324 (1892), “It is generally held that acts done by virtue of statute law, which do not directly encroach upon the property of an individual, or disturb him in his possession or enjoyment, will not entitle him to compensation or give him a right of action. (Citing authority and cases.)” Here, the respondent, through Penn Valley, presented to the city merely its petition to have the Valentine area declared blighted for purposes of redevelopment. It failed in that attempt. No property right of appellants was then encroached upon, the denial of the petition merely cutting off further proceedings for urban redevelopment, including that of an exercise of the right of eminent domain granted to Urban Redevelopment Corporations under Chapter 353, and Chapter 99 [RSMo § 99.460, 1978] to a Redevelopment Authority. No significance can be attached to Penn Valley’s failure to convince the city that the Valentine area should be redeveloped, nor to respondent’s thereafter announced intention privately to acquire and redevelop the area. As a corporation, respondent has the general power and authority to purchase, hold and use real property for its legitimate corporate purposes. Const.Mo.1945, Art. XI, § 5.

The evidence does show that respondent did acquire numerous properties in the Valentine area. There is no evidence, even by way of inference as appellants argue, that respondent by its purchases intended to create blight in the area, or intended by its purchases to depress property values in the area. Some of appellants’ testimony indicated that there were inadequacies of repair on respondent’s properties after it acquired them, such as peeling paint, loose and torn screens, loose or broken porch railings and entrance steps, old furniture (presumably a tenant’s) on one porch, and old radiators on another, guttering broken or disconnected, eaves deteriorating and boards hanging down. Appellants Finn and Cigas did not testify as to when or how long these conditions existed, but apparently they were corrected after complaint was made to the housing code enforcement department. Significantly, appellants’ witness, Dwyer, who examined the area in detail, testified that he found no conditions of obsolescence, inadequate or outmoded design, physical deterioration, conditions conducive to ill health or transmission of disease. He found, as he acknowledged, minor items of needed repair, an average of slightly over $200.00 cost per house, and he found none to be particularly substandard. No evidence was adduced by appellants to show that use of any property by respondent constituted a nuisance so as substantially to impair the rights of others in the neighborhood peacefully to enjoy their properties. See City of Fredericktown v. Osborn, 429 S.W.2d 17, 22[2—7] (Mo.App.1968), for a statement of the law of nuisance and factual criteria necessary for the establishment of same, none of which here exists. See also Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, 489[1, 2] (1932); and Rodgers v. Kansas City, 327 S.W.2d 478, 482[2] (Mo.App.1959).

The evidence indicates that many houses in the Valentine area were constructed about the turn of the century. Respondent had razed or demolished about 31 of them as noted. Appellants contend that the demolition was done for the purpose of decreasing property values in the area, and to acquire the rest of the property. They say that after the Urban Redevelopment application was rejected respondent continued purchasing area properties and removing improvements so as to scatter vacant lots throughout the neighborhood. Although Mr. Margolin testified that respondent’s signs were on the vacant lots indicating its ownership, there is no evidence that it erected the signs for the purpose of discouraging others from purchasing properties as stated in appellants’ brief. What is determinative of this contention is an application of the general rule, “The constitutional right of property includes its use. Every person is entitled to make a reasonable use of his own property. The general principle expressed in the Latin maxim ‘sic utere tuo ut alienum non laedas’ — that every person may make such use as he will of his own property, provided he uses it in such a manner as not to injure others — is fully applicable to adjoining landowners and to a large extent governs in determining the rights, duties, and liabilities in respect of each other. Under this maxim a property owner may put his property to any reasonable and lawful use, so long as he does not thereby deprive the adjoining owner of any right of enjoyment of his property which is recognized and protected by law, and so long as his use does not amount to a nuisance in law. The maxim applies only to results which extend beyond the limit of the owner’s property. It is not to be inferred that the law forbids any and all uses of property which may cause loss, damage, or inconvenience to others. Therefore, while the rightful use of one’s own land may sometimes diminish the value of an adjoining estate, or prevent its being used with the comfort which might otherwise have been anticipated, this is damnum absque injuria, as to which the law cannot interfere. Damages are not recoverable for mere incidental inconvenience to an abutting property owner or an injury consequential in its nature or one that is remote or far removed and such as is suffered by the community at large. * * * Thus, an owner is exonerated from liability for injuries to an adjoining owner where he makes a ‘reasonable use’ of his property. If the use satisfies the test of reasonableness, any incidental detriment to an adjoining owner is damnum absque inju-ria.” 1 Am.Jur.2d, Adjoining Landowners, § 2, p. 692. As to what constitutes reasonable use, it is said further at 1 Am.Jur.2d, § 3, Adjoining Landowners, p. 693: “The inquiry is: Was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having public policy in view also.”

Illustrative of the foregoing principles are these cases: Jenkins v. Louisville Home Telephone Co., 120 S.W. 276 (Ky.App.1909), where the telephone company was held not liable for erecting a pole on its property near a window on plaintiff’s adjoining property through which a burglar gained entrance to her home; Pennsylvania Co. for Insurance, etc. v. Sun Co., 290 Pa. 404, 138 A. 909 (1927), where oil tanks were erected on defendant’s property, a nuisance not being alleged, and a demurrer to the complaint was sustained. The court said, at 138 A. page 910[2-5], “An owner has a right, barring malice and negligence, to any use of his property, unless by its continuous use he prevents his neighbors from enjoying the use of their property to their damage”; and Harper v. Standard Oil Co., 78 Mo.App. 338 (1899), a suit for damages for maintenance by defendant of a gasoline tank and six coal oil tanks on its property adjacent to plaintiff’s rental residential property, a demurrer being sustained to the evidence, the court saying, “It [defendant] had the absolute right to the reasonable use of its own property.”

Appellants rely upon Eyerman v. Mercantile Trust Co., N.A., 524 S.W.2d 210 (Mo.App.1975). That case had facts far different than here for which it is distinguishable. There, the testatrix directed that her home at 4 Kingsbury Place, “an area of high architectural significance”, be razed, the lot sold, and the proceeds transferred to her residuary estate, said in the majority opinion to be without purpose; there would have been a large unwarranted loss to the estate occasioned by demolition; the area was designated as a landmark of the city; it was in a “private place concept” important in stabilizing the community; and public policy did not permit testatrix’s “caprice” to produce a senseless destruction. None of these considerations are here present, and no wrongful demolition or any other wrongful use was established by appellants’ evidence.

Appellants contend that respondent permitted the area to become blighted and to decline by its permitting its tenants to accumulate trash and debris on its property. Objections to some of this evidence were sustained, but the conditions of some rental houses came into evidence. Appellants’ counsel, however, acknowledged during trial that no notice was given to respondent as to any specific conduct of any named tenant. There was no evidence at all that any tenant’s act was procured by respondent or that it had any knowledge of any such act. If there was any situation of nuisance created by tenants, respondent was not shown to be responsible therefor. See Bellflower v. Pennise, 548 F.2d 776 (C.A. 8th 1977); Kelly v. Laclede Real Estate and Investment Co., 348 Mo. 407, 155 S.W.2d 90 (1941); and Shippey v. Kansas City, 254 Mo. 1, 162 S.W. 137 (1913), where the owner was not held liable for his tenant’s signboard falling on plaintiff because he had relinquished position to the tenant.

Because appellants did not make a sub-missible case on any pleaded theory of recovery, the trial court did not err in directing a verdict against them. It is thus not necessary to consider the further contention that the trial court erred in excluding testimony of appellants’ expert witness as to damages.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James B. GANT, Appellant.
    No. KCD 29781.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    James B. Gant, pro se.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged as a second offender in a four count information with (1) murder, first degree (“felony” murder), Section 559.007, RSMo Supp.1975, naming Breanda Marie Hendren as the victim, (2) assault with intent to kill with malice aforethought, Section 559.180, RSMo 1969, naming Kathy Spry as the victim, (3) assault with intent to kill with malice aforethought, Section 559.180, RSMo 1969, naming James Edward Norman as the victim, and (4) armed criminal action in connection with “the crime of assault with intent to kill (malice)”, Section 559.225, RSMo Supp. 1976. A jury found defendant guilty on all four counts and in due course the trial court assessed defendant’s punishment and rendered judgment as follows: Count I, murder, first degree — imprisonment for life; Count II, assault with intent to kill with malice aforethought (victim Kathy Spry)— imprisonment for ninety-nine years; Count III, assault with intent to kill with malice aforethought (victim James Edward Norman) — imprisonment for ninety-nine years; and Count IV, armed criminal action — imprisonment for five years. The sentences imposed under Counts I, II and III were ordered to “run consecutively and not concurrently” and the sentence imposed under Count IV was ordered to “run concurrently with all other sentences”.

This court, at the outset of this appeal, is confronted with a procedural predicament of major consequence. The jury returned their verdicts on August 11, 1977, and the trial court, pursuant to Rule 27.-20(a), granted defendant twenty days additional time to file a motion for new trial. Chronologically, the last day for defendant to file his motion for new trial fell on Saturday, September 10, 1977. However, defendant’s motion for new trial was not filed until Monday, September 12, 1977. Although Rule 31.01 excludes Sunday and legal holidays from consideration in determining the last day when defendant’s motion for new trial was due, provided the last day for doing so fell on a Sunday or legal holiday, the fact that the last day fell on a Saturday was of no consequence as Saturdays are not excluded under Rule 31.01 in computing the overall time period. Adherence to Rules 27.20(a) and 31.01 dictates the inevitable conclusion that defendant’s motion for new trial was not timely filed and preserved nothing for appellate review, thus relegating appellate review to issues deemed “plain error” within the purview of Rule 27.20(c). State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976).

Before assessing the various “points relied on” to determine whether they should be entertained as “plain error”, a statement of facts is in order. The state adduced evidence from which the jury could find that the following facts were established beyond a reasonable doubt. On January 24, 1977, James Edward Norman, one of the assault victims, shared an apartment in Columbia, Missouri, with Breanda Marie Hen-dren, age 16, the homicide victim. Norman was an admitted dealer in marijuana in the Columbia, Missouri, area. Kathy Spry, the other assault victim, was visiting the couple in the living room of their shared apartment at approximately 10:30 A.M. on the morning of January 24, 1977, when two black males were admitted into the living room under the ruse of wanting to purchase some marijuana. The shorter of the two black males, identified by Norman at a lineup and during trial as the defendant, asked Norman if he had a “quarter-pound of marijuana for sale”. Norman replied that he only had “bags” of marijuana for sale and proceeded to the bedroom of the apartment where he kept his illicit “stock-in-trade”. Defendant followed Norman into the bedroom, “pulled a gun” and pointed it at Norman and demanded that he lie on the floor. Norman complied and while in a prone position was incessantly asked by defendant “where the rest of the money and the rest of the dope was.” Norman replied that all he had was marijuana and such money as was in his billfold. Defendant took Norman’s billfold containing $175.00 in currency and several “bags” of marijuana which Norman had cached in the bedroom.

Norman described the gun defendant pulled on him as “long-barrelled” and “bronze copper colored”. Defendant, insisting that Norman had more “pot and money”, struck Norman on the head with the gun and then ordered his companion (Keith L. Matthews), who was in the living room, to “[bring] those bitches in here”. Shortly thereafter Breanda Marie Hendren and Matthews entered the bedroom whereupon defendant asked Breanda Marie Hendren where the rest of the “stuff” was. She replied that there was nothing else. Matthews was unarmed. Defendant then shot Norman in the neck, from which wound Norman recovered. Norman heard several more shots, and the next thing he was aware of was seeing Breanda Marie Hen-dren lying on the floor of the bedroom and Kathy Spry lying on the floor of the doorway between the bedroom and the living room of the apartment. Medical testimony introduced by the state disclosed that Bre-anda Marie Hendren was shot in the mouth and head, the latter shot causing her death. According to Norman, defendant was the shorter of the two black males who entered the apartment.

Kathy Spry, the other assault victim, after hearing Norman yell “[g]o ahead and shoot me . . .1 don’t have the money”, heard several shots and then saw Norman and Breanda Marie Hendren lying on the floor of the bedroom. As the two black males ran from the apartment, the shorter of the two who had the gun shot Kathy Spry in the left cheek and head from which wounds she later recovered. Kathy Spry was unable to positively identify defendant as the man who shot her.

Various witnesses testified without objection that “immediately” before January 24, 1977, defendant had been seen flourishing a “long-barreled pistol”, and on the morning of January 24, 1977, before leaving the apartment where he lived in Columbia, Missouri, there were two “boxes of bullets” (which were offered and admitted into evidence without objection) at the head of the bed which he occupied in the apartment. A co-occupant of defendant’s apartment testified that on the morning of January 24, 1977, she heard defendant say to his accomplice (Keith L. Matthews), “[l]et’s go make the fast money”, and later that day saw defendant spreading marijuana out on the floor of his apartment and observed at that time that he had a pistol and a large amount of money.

Keith L. Matthews, defendant’s accomplice and the taller of the two black males who entered the apartment on the fateful morning .in question, was called as a witness by the state. He testified that on the morning of January 23, 1977, defendant asked him to come to his apartment the following morning because he “wanted to knock off some dope and some money”. Matthews complied and arrived at defendant’s apartment between 9:00 and 9:30 o’clock on the morning of January 24, 1977. Matthews testified that he had previously seen defendant with a “.22 long barrel chromed, brown-handled” revolver in his possession. Matthews and defendant left the latter’s apartment at approximately 9:30 on the morning of January 24, 1977, and proceeded on foot to the apartment occupied by Norman and Breanda Marie Hendren. Upon passing a police car on the way over to the scene of the crimes, defendant asked Matthews if he could see his “pistol” and Matthews replied that he could. Thereupon, defendant shifted the pistol from his left side “back towards the back”.

Upon entering the victim’s apartment, Matthews stayed in the living room while Norman and defendant proceeded into the bedroom. Hearing a “commotion” and “loud voices”, Matthews went into the bedroom where he observed defendant pointing a pistol at Norman who was lying on the floor at the time. On orders from defendant, Matthews placed the money and marijuana taken from Norman into a “brown grocery sack” which the pair had brought with them. Matthews had the “brown grocery sack” and its contents in his possession when he later fled from the apartment. Matthews preceded defendant out of the apartment. Before fleeing the apartment Matthews observed defendant strike Norman on the head with his pistol and fire two shots into Norman. According to Matthews, defendant then grabbed the girl who was in the bedroom (Breanda Marie Hen-dren) by the hair and put the pistol “up to her cheek” and shot her. As Matthews was fleeing the apartment he heard several more shots after running past the other assault victim (Kathy Spry), although he did not actually see her shot. Defendant caught up with Matthews and placed the “pistol” in the “brown grocery sack” which Matthews was carrying. As he did so, he told Matthews, “I had to kill all of them . Sam[?] said don’t leave no witnesses”. When the two arrived back at defendant’s apartment, defendant dumped all of the “stuff” in the “brown grocery sack” onto the floor and gave Matthews two bags of marijuana.

Two days after the robbery Matthews was questioned by the Columbia police at which time he denied any knowledge of the gruesome events which occurred on January 24, 1977. Several days later Matthews recanted and identified himself and defendant. as the two black males involved in the multiple offenses. Matthews further testified that he was charged with being “an accessory to armed robbery”, “murder in the first degree” and two charges of “assault with intent to kill with malice aforethought”. Prior to defendant’s trial Matthews pleaded guilty to the charge of being “an accessory to armed robbery” and was given a seven year sentence. The murder and assault charges filed against Matthews were still pending when he testified on behalf of the state at defendant’s trial. It is also clear from Matthews’ testimony that by an agreement struck between himself and the state his seven years sentence on the robbery charge and eventual dismissal of the homicide and assault charges were the quid pro quo for testifying on behalf of the state at defendant’s trial.

Defendant took the stand and denied any and all implication with the charged offenses and testified that he was visiting a girl friend in Columbia when the crimes in question occurred. The only other witnesses offered by defendant were three Columbia police officers who testified that Matthews denied any knowledge of the crimes when questioned by them two days after January 24, 1977.

This court is faced with the anomaly of being confronted with six briefs on appeal, three on behalf of defendant (two by counsel and one pro se) and three on behalf of the state. The “points relied on”, thirteen (13) in number, in the triune brief of defendant are to a large extent redundant, duplicitous, and abstruse, thereby putting this court to the arduous task of excising all redundancy and duplicity and recomposing them in more explicit terms. Accordingly, with one notable exception regarding one of the “points relied on” which is copied verbatim from the second brief filed by counsel, the original thirteen “points relied on” are capsulized into the following “points relied on” for dispositional purposes:

(1) Defendant was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, § 19, of the Missouri Constitution in that the two substantive offenses of assault with intent to kill with malice aforethought on the one hand and the substantive offense of armed criminal action on the other hand constituted an identity of offenses as they involved use of the same weapon.
(2) Joinder of the four felony charges in the same information by means of separate counts and placing defendant on trial as to all four charges at the same time violated the Sixth and Fourteenth Amendments to the Constitution of the United States in that doing so deprived defendant of a “fair trial” and further violated Article V, § 5 of the Constitution of Missouri in that Rule 24.04 promulgated by the Supreme Court authorizing such joinder is substantive as opposed to procedural in nature.
(3) “The court erred in overruling appellant’s motion for new trial, particularly paragraphs 5, 6, 7 and 8 of said motion for new trial cited in motion for new trial.”
(4) The trial court erred in refusing to grant defendant a new trial in that he was improperly convicted on the uncorroborated testimony of Matthews, his accomplice.
(5) The trial court erred in refusing to grant defendant a new trial in that he was improperly convicted upon perjured testimony given by Matthews, his accomplice, to the effect that no deal had been struck between Matthews and the state in return for Matthews’ testimony.
(6) The trial court erred in permitting Matthews to testify against defendant as some of the charges lodged against Matthews relative to the occurrence were still pending at the time of defendant’s trial.
(7) The trial court erred in permitting James Edward Norman to identify defendant during the trial because it resulted from an unduly suggestive pre-trial identification lineup.
(8) Defendant was deprived of effective assistance of counsel at the trial level in that counsel failed to object to the absence of any “black people” on the jury which tried and convicted defendant.
(9) There was not sufficient evidence to sustain defendant’s conviction on any of the four charges.

Point (1) relied on by defendant strikes at the alleged unconstitutionality of being tried and convicted for armed criminal action in connection with the two assaults when the weapon constituting the crux of the charge was the same weapon used to perpetrate the assaults. The capstone of defendant’s point is double jeopardy which, by reason of its constitutional implications, falls within the ambit of appellate review authorized by Rule 27.20(c) since “plain error” culminating in a “manifest injustice or miscarriage of justice” may have resulted. State v. Coyne, 452 S.W.2d 227, 228 (Mo.1970); State v. Donnell, 430 S.W.2d 297, 299 (Mo.1968); and State v. Williams, 419 S.W.2d 49, 53 (Mo.1967). However, for reasons hereinafter set forth, it is unnecessary to resolve the fundamental issue of whether the charge of armed criminal action in connection with the assaults and the charges of assault with intent to kill with malice aforethought constitute such an identity of offenses as to do violence to the double jeopardy provisions of the state and federal constitutions.

Count IV of the information charged defendant with armed criminal action in commission of the felony of “assault with intent to kill (malice).” Notwithstanding the charge as pleaded in Count IV of the information, the offense of armed criminal action was submitted to the jury via the following verdict directing instruction:

“INSTRUCTION NO. 8
As to Count IV, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 24, 1977, in the County of Boone, State of Missouri, the defendant committed the crime of First Degree Murder as charged in Count I, and
Second, that he committed that crime with the use of a dangerous or deadly weapon, namely a pistol,
then you will find the defendant guilty under Count IV of armed criminal action.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty under Count IV of that offense.”

In response to Instruction No. 8 the jury returned the following verdict:

“As to Count IV, we, the jury find the defendant James B. Gant guilty of armed criminal action as submitted in Instruction No. 8. IX) William E. Dalton, Foreman.”

It is patently obvious that defendant was found guilty of armed criminal action in commission of the homicide (Count I), an offense for which he was not charged, rather than armed criminal action in commission of the assaults (Counts II and III), the offense for which he was charged. It is elementary law that an accused cannot be charged with one offense and convicted of another. State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). Hence, the trial court was without jurisdiction to impose a sentence for armed criminal action and its judgment was not merely erroneous but absolutely void. State v. Barnes, 492 S.W.2d 729, 730 (Mo.1973). This court encounters no qualms in holding that convicting an accused of a crime for which he was not charged represents a classic example of “manifest injustice” or “miscarriage of justice” which falls within the perimeters of “plain error” contemplated by Rule 27.20(c). The judgment of the trial court with respect to Count IV of the information is reversed.

Point (2) relied on by defendant attacks the validity of joining the four felony charges by means of separate counts in one information and subjecting defendant to trial on all four charges at the same time. Defendant posits his attack on two grounds. First, doing so deprived him of a constitutionally fair trial ostensibly in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. Second, Rule 24.04 promulgated by the Supreme Court authorizing such joinder is substantive rather than procedural in nature and therefore in violation of Art. V, § 5, of the Constitution of Missouri. Defendant, understandably, makes no contention that the multiple offenses charged in the various counts were not based on “two or more acts which . . . [were] part of the same transaction or on two or more acts or transactions which . . . [constituted] parts of a common scheme or plan” as provided in Rule 24.04. No motion for severance was filed by defendant.

Because of the constitutional overtones permeating defendant’s second point, the same will be viewed as “plain error” under Rule 27.20(c). See: State v. Coyne, supra; State v. Donnell, supra; and State v. Williams, supra. The same argument tendered in support of the first prong of defendant’s bifurcated attack on joinder of the multiple offenses, deprivation of a fair trial, was made and rejected in State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975), and Baker is controlling as to this aspect of defendant’s second point. The same argument tendered in support of the second prong of defendant’s bifurcated attack on joinder of the multiple offenses, that Rule 24.04 authorizing joinder under the facts at hand constituted promulgation of a substantive rather than a procedural rule by the Supreme Court in excess of the authority vested in it by Art. V, § 5, Constitution of Missouri, was made and rejected in State v. Duren, 566 S.W.2d 11, 19 (Mo. banc 1977), rev’d on other grounds 489 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and the decision of the Supreme Court of Missouri in Duren, to the limited extent noted, is controlling as to this aspect of defendant’s second point. Point (2) relied on by defendant affords no relief.

Point (3) relied on by defendant illustrates complete want of any semblance of compliance with the “wherein” and “why” and “citation” requirements of Rule 84.04(d). Paragraphs 5 and 6 of defendant’s untimely filed motion for new trial faulted Instruction No. 5, the verdict directing instruction submitting Count I, murder, first degree (“felony” murder). Paragraphs 7 and 8 of defendant’s untimely filed motion for new trial are repetitive of grounds otherwise asserted in what this court has denominated points (1) and (5) (which are being separately treated) on appeal. Point (3) is devoid of any citation of authorities and the argument tendered in support thereof, in its entirety, reads as follows: “The trial court erred in failing to sustain the defendant’s motion for a new trial for the reason that the defendant did not obtain a fair trial.” Point (3) is so glaringly aberrant that it invokes nothing whatsoever for appellate review even under the benevolent auspices of Rule 27.20(c). This court, ex gratia, has looked at Instruction No. 5 and finds that it faithfully conformed to MAI — CR 6.19 applicable when this case was tried and was amply supported by the evidence. Defendant is not entitled to any relief under point (3).

Point (4) relied on by defendant complains that he was improperly convicted on the uncorroborated testimony of Matthews, his accomplice. Defendant has failed to convincingly demonstrate how or why his third point rises to the level of “plain error” within the purview of Rule 27.20(c). This court declines to so treat it. Anticipating a potential fusillade of post-conviction remedies, this court, ex gratia, notes that substantively the testimony of Matthews was sufficient to support defendant’s conviction and cannot be said to be “so lacking in probative force as not to amount to substantial evidence.” State v. Harris, 295 S.W.2d 94, 95 (Mo.1956). Accord: State v. Summers, 506 S.W.2d 67, 70-1 (Mo.App. 1974). Moreover, Matthews’ testimony was in fact substantially corroborated, directly and circumstantially, by various other witnesses proffered by the state. Once again, even if it had not been, it was sufficient in and of itself to support defendant’s conviction of the multiple offense because it was neither self-destructive nor conclusively impeached. State v. Summers, supra. Point (4) provides no avenue of relief for defendant.

Point (5) relied on by defendant rests on the premise that he was convicted upon “perjured” testimony given by accomplice Matthews. This is a serious charge which, if true, would trigger review of point (5) as “plain error” under Rule 27.-20(c) because a conviction resting upon perjured testimony would be the antithesis of a conviction evolving from a fair trial. Defendant seeks to convince this court that Matthews’ testimony in its entirety was tainted with perjury by reason of the equivocal nature of certain answers given by Matthews on cross-examination with respect to whether his testimony was prompted by a light sentence and the proposed dismissal of all remaining charges lodged against him. Defendant ignores the fact that any and all equivocation was removed from this particular vain of Matthews’ testimony on redirect examination by the state at which time Matthews unequivocally admitted that the sentence he received for being an “accessory” to armed robbery and the proposed dismissal of the companion charges was and were to be the result of recommendations by the prosecuting attorney if he (Matthews) “told the truth about what happened on the 24th of January . to the jury and the court.” Although such went to the weight and credibility to be given Matthews’ testimony by the jury, it cannot be said that it terminally infected all of Matthews’ testimony with the taint of perjury. Moreover, to establish error entitling defendant to a new trial on the grounds asserted by him in point (5) it was incumbent upon defendant to show that the alleged perjurious testimony was deliberately falsified, known to be false by the prosecution, and that his conviction was obtained by reason thereof. State v. Flauaus, 515 S.W.2d 873, 880 (Mo.App.1974); and State v. Nolan, 499 S.W.2d 240, 250 (Mo.App.1973). Assuming arguendo, that the probity of Matthews’ testimony was suspect in some respect, defendant failed to demonstrate any right to relief under the admittedly stringent requirements of State v. Flauaus, supra, and State v. Nolan, supra. Careful review of the record reveals that in reality defendant’s cry of perjury was a figment of his own imagination rather than fact as the jury obviously chose to embrace Matthews’ testimony with an aura of credibility rather than an aura of perjury. Defendant is not entitled to any relief under point (5).

Point (6) relied on by defendant charges the trial court with error in having permitted Matthews to testify against defendant while some of the companion charges lodged against Matthews were still pending. No objection was leveled against Matthews’ testimony during trial on this ground, and this court is not prepared to say that defendant’s belated objection on appeal to Matthews’ testimony is entitled to review as “plain error” under Rule 27.20(c). Even if this court indulged review of point (6) on appeal by warping Rule 27.20(c) it would avail defendant nothing. Matthews was not jointly charged or named as a co-defendant in the multiple count information upon which defendant went to trial, but was separately informed against. Perforce, the rule ostensibly relied upon by defendant that one co-defendant is incompetent to testify against the other is inapplicable. State v. Haynes, 510 S.W.2d 423, 424-25 (Mo.1974); State v. McCarty, 460 S.W.2d 630, 637 (Mo.1970); and State v. Nickens, 581 S.W.2d 99, 101-02 (Mo.App.1979). Point (6) relied on by defendant affords no relief.

Point (7) relied on by defendant faults his in-court identification by James Edward Norman on the ground that it resulted from an unduly suggestive pre-trial identification lineup. Defendant made no pre-trial motion to suppress Norman’s identification testimony, nor was any objection made to Norman’s identification of defendant during the trial. Review of this point as “plain error” under Rule 27.20(c) requires not only a finding that it was error to have admitted Norman’s in-court identification of defendant but that the error was of such pervasive magnitude that “manifest injustice” or a “miscarriage of justice” has resulted therefrom. State v. Carpenter, 436 S.W.2d 748 (Mo.1969); and State v. Garrett, 518 S.W.2d 97, 99 (Mo.App.1974). The absence of a pre-trial motion to suppress, conjoined, necessarily, with lack of an eviden-tiary hearing probing all salient facts appertaining to the pre-trial identification lineup, leaves nothing but some fragmented facts drawn out by defense counsel on cross-examination of James Edward Norman to evaluate the claim of an impermissi-bly suggestive lineup. This portion of the record has been carefully reviewed and at best it merely disclosed some disparity in height among five black males who composed the lineup, some being the approximate height of defendant and some being slightly taller. Such skeletal evidence is far too nebulous to seriously suggest, much less compel the conclusion that the pre-trial identification lineup “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Going a step further, and assuming arguendo that the pre-trial identification lineup was suggestively tainted, Norman’s in-court identification was supported by a wealth of evidence showing a solid independent basis for its reliability and consequent admission. Norman responded to a knock on the door when defendant and Matthews initially arrived at the apartment and admitted them. He was in close proximity to the defendant in the apartment, particularly in the bedroom, for a substantial period of time during which he engaged in a face-to-face confrontation with defendant. Additionally, pictures of certain items of clothing belonging to defendant were introduced and admitted as exhibits during the trial and identified by Norman as having been worn by defendant while he was at the apartment committing the offenses. Norman’s in-court identification of defendant was positive and unequivocal. It is no longer open to argument in Missouri that the presence of a reliable independent factual basis for an in-court identification purges it of any unconstitutional taint that might otherwise be claimed to have attached by reason of a suggestive pre-trial identification procedure. State v. Carey, 486 S.W.2d 443, 446 (Mo.1972); State v. Ramsey, 477 S.W.2d 88, 90 (Mo.1972); State v. Walters, 457 S.W.2d 817, 822-23 (Mo.1970); State v. Csolak, 571 S.W.2d 118, 123 (Mo.App.1978); State v. Davis, 529 S.W.2d 10, 19 (Mo.App.1975); and State v. Ealey, 515 S.W.2d 778, 780 (Mo.App.1974). As aptly stated in Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), “reliability is the linchpin in determining the admissibility of identification testimony . .”. In the context of the totality of all the circumstances surrounding the admission of Norman’s positive in-court identification of defendant, no error is perceived, much less error of a nature bespeaking of “manifest injustice” or a “miscarriage of justice” within the purview of Rule 27.20(c). Tangentially, even if the reliability of Norman’s in-court identification of defendant be deemed suspect (which it is not), it is difficult to see how its admission could have resulted in “manifest injustice” or a “miscarriage of justice” when considered in light of Matthews’ (the accused) testimony as to defendant’s active, overt perpetration of the crimes and a vast array of other evidence associating defendant therewith. In the argument portion of one of his briefs, defendant casually makes a broad swipe at Norman’s in-court identification of him on the ground that he did not have the benefit of counsel present at the complained of pre-trial identification lineup. Suffice it to say, the record is silent as to when the pre-trial identification lineup occurred, i. e. whether before or after charges were brought against defendant, and is likewise silent as to whether defendant did or did not in fact have the benefit of counsel present when the pre-trial identification lineup occurred. No error associated with point (7) is found.

Point (8) relied on by defendant rests upon an attack on the racial composition of the jury via the claim that defendant was deprived of effective assistance of counsel at the trial level because of counsel’s failure to object to the absence of any “black people” on the petit jury which tried and convicted defendant. Defendant, in asking this court to review point (8) as “plain error” under Rule 27.20(c), does so in the face of a totally blank record as to the racial composition of the petit jury which tried him as well as to the jury panel from which it was drawn. Although defendant has baldly asserted that there were no “black people” on the petit jury which tried and convicted him, nothing exists in the record to support it. It is axiomatic that bald assertions such as that made by defendant, which are not reflected by, contained in, or made a part of the officially approved transcript, present nothing for appellate review. State v. Burrington, 371 S.W.2d 319, 320-21 (Mo.1963). The rationale behind such a rule is obvious. Issues tendered on the basis of assertions unsupported by the record swim, at best, in the murky waters of speculation, conjecture and surmise and, perforce, lack a reliable basis upon which to render a judicial determination. An effort to seek review of such an issue as “plain error” under Rule 27.20(c) is no panacea for curing it of its basic infirmity. For obvious reasons stated, this court necessarily declines to review point (8) relied on by defendant as “plain error”.

The ninth (9th) and final point relied on by defendant questions the sufficiency of the evidence to sustain his conviction as to any one of the four charges. Having previously concluded that defendant’s conviction under Count IV of the information must be reversed, only his conviction under Counts I, II and III of the information remain within the ambit of point (9). The presumption of innocence clothing every accused and the inexorable command of proof of guilt beyond a reasonable doubt make the sufficiency of the evidence the quintessence of a valid conviction. As a corollary, common sense dictates that if the evidence is insufficient to sustain a conviction both “manifest injustice” and a “miscarriage of justice” follow as surely as night follows day. Understandably, the courts of this state unhesitatingly review charges of insufficiency of the evidence as “plain error” under Rule 27.20(c). State v. Dupree, 477 S.W.2d 129 (Mo.1972); and State v. Goodwin, 352 S.W.2d 614, 619 (Mo. banc 1962), cert. denied 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174 (1962). In determining the sufficiency of the evidence to support the remaining three convictions, the facts in evidence and all favorable inferences to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1977), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969); and State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967). When this legal template is superimposed upon the facts previously iterated at length in this opinion, any question as to the sufficiency of the evidence to sustain defendant’s conviction for murder, first degree (“felony” murder), assault with the intent to kill victim Spry with malice aforethought, and assault with intent to kill victim Norman with malice aforethought is quickly resolved against defendant. As evidenced by MAI-CR 6.19, the elements of murder first degree (“felony” murder), in the context of this case, are that defendant caused the death of Breanda Marie Hen-dren by shooting her and that he did so to prevent detection after robbing James Edward Norman. The evidence presented by the state overwhelmingly proved each and every requisite element of murder, first degree (“felony” murder). The elements of assault with intent to kill with malice aforethought, in the context of this case, as delineated by Section 559.180, RSMol969, the sustaining statute upon which Counts II and III rested, are that defendant “on purpose and of malice aforethought [did] shoot [Kathy Spry and James Edward Norman] . with a deadly weapon . with intent to kill . . . [them] . . ”. There was no want of substantial evidence to prove all elements of all the assault charges to the utter satisfaction of the jury beyond a reasonable doubt. The evidence amassed by the state against defendant during the trial was overwhelming and by no stretch of the imagination can it be said to have been insufficient to support his conviction for murder, first degree (“felony” murder) and the double assaults with intent to kill with malice aforethought.

One is hard put to leave this case without the poignant observation that violence and tragedy far too frequently associated with the illicit traffic in drugs stalked the facts throughout and left their indelible imprint upon the record.

The judgment of the trial court is reversed as to Count IV (armed criminal action) and affirmed as to Counts I (murder, first degree), II (assault with intent to kill with malice aforethought), and III (assault with intent to kill with malice aforethought).

All concur.

      . Count IV of the information made no effort to relate the “armed criminal action” charge to any particular count of “assault with intent to kill with malice aforethought”, but was cast in broad, general terms as noted.

      . See generally State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978); and State v. Valentine, 584 S.W.2d 92, handed down July 17, 1979, by Supreme Court of Missouri, en banc.

      . See also State v. Duren, 566 S.W.2d 11, 19 (Mo. banc 1977), rev’d on other grounds 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

      . Instruction No. 5 was not set forth in full, or otherwise, in the argument portion of defendant’s brief as required by Rule 84.04(e).

      . See generally United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Morris v. State, 532 S.W.2d 455, 457-58 (Mo. banc 1976); and State v. Perkins, 559 S.W.2d 52, 54 (Mo.App.1977).


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    C. E. ROSE, Respondent, v. MISSOURI PUBLIC SERVICE COMPANY, Appellant.
    No. KCD 29828.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Wm. H. Sanders, D. Brook Bartlett, Judith Paxton Rea, Kansas City, for appellant.
    Leon G. Kusnetzky, Robert C. Carter, Alan D. Schwartz, Leon G. Kusnetzky, P. C., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by C. E. Rose against Missouri Public Service Company for damages for willful and wanton termination of electrical service. Verdict for defendant; new trial to plaintiff on giving of instruction on behalf of defendant defining “willfullness” and “wanton act.” Reversed.

Plaintiff alleged that defendant “willfully and maliciously” interrupted electrical service to his calf feeding operation. The action was based on defendant’s Rule 2.01, filed with the Missouri Public Service Commission, which provides:

“The Company shall not be liable for damages or losses which the consumer may sustain due to interruptions in service * * * except such damages which are caused by or due to the willful and wanton misconduct of the Company * * * ft

Both parties agree the testimony is irrelevant to the question on appeal.

A verdict was directed for plaintiff by Instruction No. 3:

“Your verdict must be for the plaintiff if you believe:
First, plaintiff was a customer of defendant and was receiving electrical power service;
Second, defendant terminated such electrical service to plaintiff’s premises;
Third, defendant’s acts in so doing were malicious, willful, or wanton; and
Fourth, plaintiff was thereby damaged. (Not in MAI).”

Plaintiff's submission was conversed by defendant by Instruction No. 4:

“Your verdict must be for defendant if you do not believe defendant’s acts, as submitted in Instruction No. 3 were malicious, willful, or wanton, and that plaintiff sustained damage as a direct result thereof. (MAI 33.03(5) (Modified).”

“Malicious” was defined on behalf of plaintiff by Instruction No. 5:

“The word “malicious” as used in these instructions does not mean hatred, spite or ill will, as commonly understood, but means the doing of a wrongful act intentionally (MAI 16.01).”

Additional definition was given on behalf of defendant by Instruction No. 6:

“Willfullness implies intentional wrongdoing. A wanton act is a wrongful act done on purpose, or in malicious disregard of the rights of others. (Not in MAI).”

The verdict was for defendant, and plaintiff moved for a new trial on the ground, among others, “the court erred in giving Instruction No. 6 * * * since said Instruction was argumentative, repetitious, and not consistent with the directives of Missouri Approved Instructions.”

The court awarded a new trial “on the basis that the court erred in giving Instruction No. 6 * * * as set out in * * * plaintiff’s motion for new trial.”

Appellant contends the definitions supplied by Instruction No. 6 were necessary to guide the jury under the submission of plaintiff’s case by Instruction No. 5, and that they were correctly defined.

Respondent does not demonstrate that Instruction No. 6 is argumentative or repetitious, as charged in the motion for new trial, and neither characteristic appears on this record. He argues the definitions confused the jury and were not accurate.

Plaintiff’s case was predicated on “willful and wanton misconduct” of Missouri Public Service Company, under its Rule 2.01, to which his submission added “malicious.” He defined “malicious” by Instruction No. 5, but did not define “willful and wanton,” thus leaving the jury without guidance as to the meaning of two of the three operative words in his submission. This guidance was furnished by Instruction No. 6, “to fairly submit the issues,” Rule 70.02(e), and did so in the form of MAI. “Willful” and “wanton,” as used in this case are technical words. Instruction No. 6 aids in the avoidance of doubt as to their meaning, and it was thus not error to give the Instruction. Black v. Kansas City Southern R. Co., 436 S.W.2d 19 (banc 1968). See also Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977) and S. P. Personnel Assoc. etc. v. Hospital Bldg. & Equip. Co., 525 S.W.2d 345 (Mo.App.1975); Quirk v. Metropolitan St. Ry. Co., 200 Mo.App. 585, 210 S.W. 103 (1919), that the meaning of legal and technical terms should be explained to the jury.

The definitions in Instruction No. 6 are accurate. They are quoted from Evans v. Illinois Cent. R. Co., 289 Mo. 493, 233 S.W. 397, 400 (1921); and have been given on several occasions, e. g. State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46 (1941); Brisboise v. Kansas City Public Service Co., 303 S.W.2d 619 (banc 1957); Voss v. American Mutual Liability Insurance Co., 341 S.W.2d 270 (Mo.App.1960).

Instruction No. 6, together with Instruction No. 5, provided the jury with accurate definitions of the operative, technical words in Instruction 3. With such definitions, Instruction No. 3 was understandable. With “malicious” alone defined, the jury could have been misled, confused and left to puzzle over the meaning of plaintiff’s submission and Rule 2.01 from which his action sprung. The court properly gave such Instruction, and thus erred in awarding a new trial on the ground specified.

Accordingly, the judgment is reversed and the cause is remanded with directions to reinstate the jury’s verdict.

All concur.


author: SWOFFORD, Chief Judge.

text:
    In re the MARRIAGE of Dava Mae Sue HERIFORD and Leland Arthur Heriford. Dava Mae Sue HERIFORD (now Foltz), Appellant, v. Leland Arthur HERIFORD, Respondent.
    No. KCD 29880.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    P. Wayne Kuhlman, Liberty, for appellant.
    Max Von Erdmannsdorff, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

This case involves an appeal by the mother, the custodial parent, from a decree defining the terms and conditions of temporary custody awarded to the father with reference to two sons born of the marriage. The facts underlying the present area of conflict are not disputed.

The marriage of these parties, solemnized in 1961, ended in a decree of dissolution entered on May 27, 1975, wherein property rights were settled in accordance with a contract between them, and the custody of the two sons, Brian, then less than a month short of his 5th birthday, and Jason, then two months into his 2nd year of life, was awarded to the mother with a general broad right of visitation to the father, said custody provisions also according to a contractual agreement of the parties.

Soon after this decree of dissolution, the mother and father entered into an extrajudicial agreement whereby the father was to have certain rights to implement the broad visitation terms awarded him by the decree. Among these was the right of temporary custody of the boys on the first and third weekends of each month from 5:00 p. m. Friday to 5:00 p. m. Sunday, and for one month during the summer. This is the only real area of dispute as to the custodial arrangement between the parents.

On May 13, 1977, the mother (appellant here) filed her motion to modify the original decree so that it provide that the temporary custody of the father on weekends be delineated as the first weekend of each month from 5:00 p. m. Friday to 5:00 p. m. Saturday and on the third weekend of each month from 5:00 p. m. Friday to 5:00 p. m. Sunday, thus changing the practice which the parties had been following for approximately two years by eliminating the temporary custody on the Sunday of the first weekend.

The petitioner’s motion in the above regard states that the original decree “has been amended and includes detailed custody, visitation and support provisions”. If any such amendment as to detailed custody and visitation provisions had been accomplished as to the original decree of May, 1975, such does not appear in the record before this Court. An amendment had been made by the court on September 15, 1975 as to the provisions of the original decree as it related to support and maintenance of the children, and maintenance of the mother, the payment of certain debts and the maintenance and payment for insurance, but the “decree of the 27th of May 1975, in all other respects” was to remain in full force and effect. So this left the father, so far as any formal decree, with general reasonable visitation rights as provided in the original decree of May, 1975. The practice as to weekend temporary custody in the father stemmed from the extrajudicial agreement so far as this record reveals. However, the terms of such agreement and the practice pursued by the parents thereunder over the intervening two years is not in dispute.

So that the narrow issue presented on this appeal may be placed in perspective, it must be noted that the father-respondent is an ordained minister in the Southern Baptist faith. However, his occupation is that of a Principal of a school in Kearney, Missouri, where he still resides. During the period of the marriage of the parties they both attended and were active in the First Baptist Church of Kearney and their sons were taken there for whatever services were afforded children of such tender years. Following the dissolution of the marriage, the father continued his attendance and that of his sons on the occasions when he had weekend and summer custody. Shortly thereafter, however, he changed his church affiliation and began attending and became active in the Kearney Christian Church and took his sons there on the Sundays when they were with him. Both parties have remarried since the dissolution.

The appellant, since her remarriage, moved from Kearney, Missouri to Overland Park, Kansas and she and her present husband (and the sons when they are with her on Sundays or other religious days) attend the Nall Avenue Baptist Church in Overland Park, a church of the same affiliation, Southern Baptist, as her church in Kearney.

The appellant testified that the reason she was requesting the modification of the temporary custody provisions was the importance of the children having a “church home”, and her view of the importance of “consistency” in home church worship. She summarized her request, “ * * * I’m asking that they be at their home church one more Sunday a month”.

The appellant presented the testimony of Dr. Sam Robinson, a clinical psychologist, in support of her request. He stated his opinion that it was important that the children “have an identity that this is their church” but that “This doesn’t mean that they can’t have other church association with their father or with the grandparents or whomever”. He further expressed an opinion that visitation with their father was “very necessary for the children” and that “The children seem to be doing well”.

There is no evidence in this record that there is any basic conflict between the church denominations here involved, both being of the same Protestant theological persuasion. Neither does the record reveal that the boys’ attendance with their father for worship in his church had any bad effect on them. Neither was there any charge or evidence that the father objected to his sons attending the Baptist Church with their mother, or that he tried to prejudice his sons against the Baptist Church, or that he tried to instill any conflicting beliefs or dogma in them or foster any disbelief in or disrespect for that church.

Further, the appellant freely admitted that her former husband was a deeply religious person and raised no objection to the arrangement as to weekend church attendance when the children were with him during a period of approximately two years. Indeed, her request to the court to eliminate the children’s attendance at their father’s church in Kearney because of the avowed distraction of her “church home” concept surprisingly extended to only one of the two Sundays a month when they so attended.

Rather, she obviously placed principal reliance in support of her claim of abuse of discretion by the trial court in leaving intact the weekend temporary custody arrangements for the father upon the provisions of Section 452.405 RSMo 1969, which provides in relevant part:

“(1) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and religious training, unless the Court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority the child’s physical health would be endangered or his emotional development impaired. (Emphasis added)

No other conclusion, from a study of the records below and appellant’s brief and arguments here, can be reached but that she maintains this section of the statute gives her an absolute mandate as custodial parent to determine all facets of the children’s religious training absent a showing that such determination endangers the child’s physical health or impairs the child’s emotional development.

It is the view of this Court such was not the legislative intent evinced by the enactment of this statute. The Legislature clearly intended to provide a guideline for the custodial parent and the courts in the general area of child welfare and upbringing, lodged the initial decision on such matters with the custodial parent, and placed the burden upon the noncustodial parent to establish the fault of such custodial determination. In so doing, the Legislature gave recognition to (and did not sweep away) the firmly established principle that at all levels, at all times and in all forums, the welfare and best interests of the child is of prime and overriding importance as measured by the particular facts and circumstances of each case before the courts. Blair v. Blair, 505 S.W.2d 444, 446 [3] (Mo.App.1974); Pearson v. Pearson, 575 S.W.2d 934, 935 [1] (Mo.App.1978).

Further legislative recognition of this principle, pertinent to this case, is afforded in Section 452.400 RSMo 1969, which provides, in part:

“(1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development.”

Under Section 452.875 RSMo 1969, further legislative recognition is given to the paramount status of the child’s best interest and welfare. Also, that statute directs the court in its determination of that paramount factor, among other things, to consider the wishes of the child’s parents.

In the posture of this record, the position of appellant that Section 452.405 RSMo 1969 gives her the absolute, total and unqualified right to determine all aspects of the children’s religious training in the absence of any further showing, is untenable.

No area in the realm of decisions in child custody cases is more fraught with difficulty than where differences in religious beliefs of the parents exist. The courts have shown a constitutional reluctance and, indeed refused, to be placed in a position of deciding the merits or validity of conflicting religious differences between parents. Rather, they have applied to such a situation the so firmly rooted principle of what is in the best interests of the children involved and have laid down standards which should be applied to determine whether judicial interference in this area, as to child custody, is warranted.

In Pope v. Pope, 267 S.W.2d 340 (Mo.App.1954) the custody of two children was awarded to the mother, and the father was awarded visitation rights and temporary custody of his son for two months each summer. The religious faith of the parents differed. The mother filed a motion to modify the temporary custody decree upon the basis that during the two months in the summer the husband took their son to a church of his faith, against her wishes. She sought a decree giving her the custody of the boy from 9:00 a. m. to 1:00 p. m. each Sunday during the two-month period so she could take him to the church of her faith in order that he attend only one church (the “church home” concept). The trial court sustained the motion to modify and the appellate court reversed on the ground that there was a lack of evidence which demonstrated any harm to the child. In so doing, the court laid down the standards which required proof in the event of future proceedings to modify based upon the religious disagreement of the parents, and said, 1. c. 343 [4]:

“and that if in the future, on a motion, subsequently filed, it should appear that appellant has created or fostered a basic religious conflict in the mind of this child, instilled in him a disrespect for or disbelief in the religion of his mother, or erected religious barriers between the mother and son, such conduct would be extremely detrimental to the welfare of the child (citation omitted), and would constitute a sufficient change of condition to support an order modifying the decree in such a manner as to eliminate any such adverse factor”. (Emphasis added)

In the case of Cissell v. Cissell, 573 S.W.2d 722 (Mo.App.1978), the court was confronted with a situation similar to the case at bar. In the Cissell case, the father had been awarded temporary custody of the parties’ two children on three weekends a month, from Saturday morning until Sunday evening, for four continuous weeks in the summer and on birthdays and various holidays. The father was a Catholic and the children had been baptized in that church. The mother, custodial parent, was a member of the Jehovah Witness Church and was active in its affairs. She filed a motion to modify the temporary custody award for the reason that the children, being in the temporary custody of the father on weekends, prevented her from determining the children’s religious education, vested in her under Section 452.405, supra. The respondent father did not dispute the mother’s right as custodial parent to give the children religious training, but asserts that there was no showing that the children’s physical well-being or emotional development was impaired; that the children’s emotional development would be impaired without his shared custody; that Section 452.400 RSMo 1969, supra, granted him visitation rights unless such endangered the children’s well-being; and that under Section 452.375 RSMo 1969, supra, the trial court was required to consider the wishes of both parents and their interrelationship with the children.

The court held that these statutes must be read and considered together, and, when so considered, they are consistent with preexisting case law that the parents’ personal rights are of secondary importance to the rights and welfare of the children.

The mother claimed that the rights granted her with reference to the religious training of the children was superior to the father’s rights under the temporary custody award. In response to such position, the court stated, 1. c. 724 [4]:

“ * * * We hold neither right is superior to the other; both are important to the children’s welfare. * * * ”

The court held that the mother had failed to meet the burden of proof placed upon her under the circumstances of that case to show that the temporary custody by the father was deleterious to the welfare of the children.

As previously noted, this record is silent as to any actions by the father which would tend to create or foster any religious conflict or in any way affect the children’s emotional welfare. His conduct, character and habits stand unchallenged and his affection for his children, and theirs for him, is undisputed. Further, the mother made no attempt to delineate any conflicts in specific religious practices, teachings, beliefs, religious views, doctrines or dogma (if any of importance exist) between her religious preference and that of the father, which in and of themselves were so conflicting as to foster adverse emotional or physical effects in the children.

No abuse of discretion appears, and the judgment is accordingly affirmed.

All concur.

      . The appellant also filed a motion for nunc pro tunc order correcting the original decree, and a motion that the respondent be cited for contempt, but these motions were never presented to the court below and may be deemed abandoned.


text:
    George E. BOLLINGER, Mildred B. Bollinger, Richard O. Stroud and Mary Ann Stroud, Appellants, v. Van SIGMAN and Virginia Sigman, Respondents.
    No. WD 29988.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Albert Copaken and Sylvia Copaken, Kansas City, for appellants.
    Jimmie D. James, Independence, for respondents; James & Sperry, Independence, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

The issue is whether there was sufficient evidence to support a finding of mutual mistake on the description in a deed which was sought to be reformed on that ground. The trial court found and concluded that the evidence was insufficient to support reformation and entered judgment against plaintiffs Stroud.

In a previous appeal, Bollinger v. Sigman, 520 S.W.2d 710 (Mo.App.1975), this court determined that a motion for directed verdict was properly sustained as to plaintiffs Bollinger, but remanded the case for receipt of Sigmans’ evidence on the issue of Strouds’ claim against them for reformation of the deed.

In 1956, the Bollingers purchased Lots 69 and 70, Sterling Meadows Resurvey, Jackson County, Missouri. Lot 70 abuts 48th Street on the north and Sterling Avenue on the west. Lot 70, to the north of Lot 69, has as its dimensions, 142.70 feet east and west, by 110 feet north and south. To its south is Lot 69, with platted dimensions of 140.09 feet east and west on the north, 105 feet north and south, and 137.61 feet east and west on its south boundary. The south Lot (69) is known as 4815 Sterling. The Bollingers built and lived in a house on Lot 70. In 1965, Mr. Bollinger had the south 80 feet of Lot 69 surveyed and staked, and then submitted a plot plan to the City of Kansas City in order to obtain a permit to build a house on that area. He then planted hedges four inches north of the boundary of the south 80 feet of Lot 69. This left the north 25 feet of Lot 69 which is here in controversy, the Strouds contending that the deed should be reformed to exclude that strip.

On March 12, 1970, the Bollingers conveyed to the Strouds by warranty deed “Lot 69, Sterling Meadows Resurvey.” The Strouds lived on the property until August, 1971. Then, on August 23, 1971, the Strouds conveyed to the Sigmans by warranty deed, “Lot 69, Sterling Meadows Resurvey.” The circumstances existing prior to the latter deed are these: The Strouds listed their property for sale with Pat Fris-bie, a real estate agent for Wood Real Estate Company. On the last day of the listing, agent Francis Scott of Eugene Brown Realty Company, under a “co-op” agreement on the sale, showed the property to the Sigmans, and Scott told Mrs. Stroud that the Sigmans were interested in making an offer on the house. The Strouds signed a contract to sell the property on July 27, 1971, which described the property as the entire of Lot 69. Scott inquired of Mrs. Stroud as to the condition of the furnace, as to schools and the School district, and as to “whether colored were hiding on the other side of the north hedge boundary”, but apparently no inquiry was made as to the boundaries or dimensions of the property intended to be conveyed.

At the time of closing, the hedge which Mr. Bollinger had planted was about 10 or 12 feet high, and was thick. The Sigmans were not shown any boundary lines prior to that time, and Mr. Sigman testified that he believed the lot surrounding 4815 Sterling was in the middle and constituted one-third of the entire block, that the hedge was simply misplaced, and he believed the lot was wider than 80 feet, “You’re not going to put a 70 foot house on an 80 foot lot.” In the prior appeal, this evidence was considered by this court as to what the Sig-mans considered as to boundaries, which caused the remand, which was a note taken down by Louise Murray in a call from Mr. Sigman: “Says he figures he has 80' front whereas survey shows 105 ft. Wants property staked & told him a survey Co. would have to do this.” Mr. Sigman explained the note thus: “Yes. I called them and stated that somebody out here says I only have 80 feet. Would you please check your records, because mine says something else. So she said, ‘Wait a minute, I’ll go check it.’ So she did. And she came back and said, ‘You have 105 feet there and if you don’t I’ll find out why.’ ”

There is no document in the loan file of Safety Federal Savings and Loan Association, with which the Sigmans financed their purchase from the Strouds, that evidences any intent that the lot size was only 80 feet north and south. Pertinent documents, such as a survey and property appraisal, confirm that both the lender and the Sig-mans contemplated the purchase of all of Lot 69. The Strouds both testified to the effect that they did not intend to retain or reserve any of the property. There was, however, testimony that they thought they received from Mrs. Stroud’s father, Bollinger, only the south 80 feet of Lot 69 which was, of course, not the description in his deed to them. Although Mrs. Stroud testified that she told real estate agent Scott, in Mrs. Sigman’s presence, that the hedges were the lot boundaries, it was Mrs. Sig-man’s recollection that no one discussed the lot boundaries at this meeting which lasted only about a half hour.

About eight months after the property was purchased, Mr. Sigman had a series of conversations about where the exact property lines were. Disagreement ensued and this suit was filed in 1972 to reform the Stroud-Sigman deed. Much is made by appellants of the fact that the Sigmans did not mow the grass to the north of the hedge, the area treated by the Bollingers as their backyard, in 1971. The Sigmans explained that failure because that summer was dry and the grass did not need mowing, and because they were busy in farm activities.

Appellants’ first point is directed toward the credibility of respondents’ testimony. As above noted, there were conflicts in the testimony. Those conflicts and any contradictions in the testimony were for the trial court to resolve. Pittman v. Great American Life Insurance Company, 512 S.W.2d 857, 861-862 (Mo.App.1974); Southwestern Bell Tel. Co. v. Crown Insurance Co., 416 S.W.2d 705, 711 (Mo.App.1967); Roth v. Roth, 571 S.W.2d 659 (Mo.App.1978). Note also Rule 73.01 3(b) requiring that on review, an appellate court due regard shall be given to the opportunity of the trial court to have judged the credibility of the witnesses.

Under this record, the Strouds have failed to show that a mutual mistake was made in formulating the description in the deed in question. They had the burden of proof by evidence clear and convincing to show that the deed sought to be reformed was insufficient to effectuate the intention of the parties to it. Bryan v. Medical West Building Corp., 345 S.W.2d 389, 395 (Mo.App.1961), and cases cited. “A mutual mistake presupposes a prior or preceding agreement between the parties, and this agreement must be shown.” Allan v. Allan, 364 S.W.2d 578, 581[1—5] (Mo.1963). The contract signed by the Strouds described all of Lot 69, as did their warranty deed, and as their prior deed from the Bollingers. No prior agreement to the contrary between them is shown, and considering the Sig-mans’ testimony, and their version of the transactions which the trial court was entitled to accept, there was no agreement to sell and convey anything less than all of Lot. 69.

Appellants say that the trial court misinterpreted and misapplied the opinion in the prior appeal, 520 S.W.2d 711, supra. As noted, all that case held was that it was remanded to receive the Sigmans’ evidence on the issue of mutual mistake, which has now been done and the issue has been resolved against the Strouds.

Appellants contend that the court erred in excluding their Exhibit 30, a receipt from a surveyor to Mr. Bollinger for staking the South 80 feet of Lot 69. There was, of course, evidence that Mr. Bollinger did stake the area, marking it with concrete markers. As noted, he did not limit his conveyance to his daughter and son-in-law, the Strouds, but deeded all of Lot 69 to them. It is not stated in the point why and wherein the trial court erred, but notwithstanding that, it is the rule that the admission or rejection of evidence is not an issue in a court-tried case. Webb v. St. Louis Nat. Bank, 551 S.W.2d 869, 883 (Mo.App.1977). Other charges are that the trial court failed to consider certain exhibits which were in evidence. There is no indication that the trial court failed to consider any evidence before it.

There is substantial evidence to support the trial court’s judgment. It is not against the weight of the evidence, and it does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Jack L. ALBERTSON et al., Plaintiffs-Appellants, v. RALSTON PURINA COMPANY, Defendant-Respondent.
    No. KCD 29998.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Don Witt, James D. Boggs, Witt & Shafer, Platte City, for plaintiffs-appellants.
    Jerome T. Wolf, Jack L. Whitacre, Michael F. Delaney, Spencer, Fane, Britt & Browne, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Forty-three former employees of Ralston Purina Company brought suit to recover separation pay and damages for loss of stock purchase rights. The court sustained Purina’s motion for summary judgment and the former employees appeal.

On this appeal the former employees contend the written policies of Purina constituted a valid contract under which they were entitled to separation pay and damages for termination of their stock purchase rights. Affirmed.

All of the plaintiffs were salaried employees with Purina at its turkey processing plant in California, Missouri. In February, 1975, Purina sold the plant to Cargill Company and the employees were terminated by Purina on the effective date of the transfer of ownership. One of the plaintiffs testified by deposition that he remained with Cargill in the same capacity as he occupied with Purina and further stated that all of the plaintiff former employees were employed. It is a fair inference from the record that all of the plaintiff former employees remained employed at the same plant by Cargill.

At the time of the transfer of ownership Purina had in effect an employee relations policy and procedure for separation gratuity for sales, administrative and clerical employees. The parts of that policy applicable to this suit in effect in February, 1975, were as follows:

POLICY
It is the policy of Ralston Purina Company to grant, in limited and exceptional cases, a gratuity to a separated employee. The purpose of this gratuity is to assist the former employee during a period of financial need as he bridges the gap between his former employment and his future employment.
APPROVALS
Authority for approval of the request rests with the appropriate Corporate Officer or his designate.
PROCEDURES
1. Each individual request for the grant of a gratuity under this policy shall originate, in writing, by line or field management setting forth the reasons for the request, the extent of the request, the amount of the request, and the factors considered in support of the recommendation. This request should be submitted to the appropriate Corporate Officer or his designate, who in turn will submit it to the Secretary, Pension and Welfare Plan Committee.
The Secretary, Pension and Welfare Plan Committee shall be advised of all approvals, in whole or in part, or rejections. He shall report to the Corporate Pension and Welfare Plan Committee on all cases by division. Through this report, the Corporate Pension and Welfare Plan Committee shall monitor the uniformity of implementation of this policy throughout the Corporation.
2. Factors to be Considered when Determining Whether a Gratuity is Recommended, and, if so, the Amount Thereof. The following are the principal factors which should be weighed in determining whether to recommend a gratuity and the amount thereof. These are not to the exclusion of other relevant factors and consideration on a case-by-case basis.
a. Age
Current experience indicates that the difficulty and length of time involved in locating new employment increases after age forty and increases severely after age fifty.
b. Obsolescence of Skills or Training The marketability of employee’s skills and training and experience in the current job market should be evaluated and weighed.
c. Physical Status
Where the termination involves physical capability over which the employee has little or no control, this factor should be given maximum consideration. The Manager, Employee Benefits Department should be contacted to explore whether any of the features of the Company’s various programs might also have applicability.
d. Discontinuation of a Facility or Phase of the Corporation’s Business
Where this factor is involved and transfer is either not offered or refused for reasonable considerations, this factor should be given substantial consideration.
e. Length of Continuous Service
Although no specific formula will be followed, the greater the length of continuous service, the greater shall be the consideration toward the maximum grant, keeping in mind the purpose stated above, which is to fulfill a financial need while bridging the gap between careers. Thus, extensive years of continuous service does not necessarily mean maximum gratuity.
f. Disciplinary Type Terminations
Although all terminations are, in a sense, “for cause,” where the reason is of an exaggerated nature, such as drunkenness, theft, rank insubordination, etc., no gratuity should be recommended nor will one be approved.
3. Conditions of and Extent of Gratuity
a. No gratuity shall be granted if an employee voluntarily resigns or requests early retirement.
b. The maximum gratuity shall be four months’ pay. Any vacation accrued and due the employee at the time of separation shall be paid in addition to the specific gratuity. In addition, the employee must sign a “Separation Agreement” as outlined in (5) below before any gratuity payment is made.
c. At the employee’s option, the grant may be in a lump sum amount, monthly installments, or in any other feasible manner where the employee may have personal reasons for requesting the grant in some other manner. The lump sum procedure is preferred. The gratuity is to be charged to the unit submitting the request.
d. It is the intent of this policy that any gratuity, once granted, is without future strings or conditions attached.
4. Subsequent Review of Hardship Cases
When the time of a gratuitous grant has expired or is near to expiring, and where the terminated employee is experiencing financial hardship and has not successfully found other employment, despite diligent search, a request for further consideration may be submitted under the procedure set forth in No. 1 above.

The former employees in their petition alleged Purina had granted them rights to purchase stock and to receive severance pay in consideration of their continued employment. The plaintiffs alleged Purina had paid separation benefits to former employees in the past, but had failed and refused to pay the plaintiffs. The petition further alleged Purina had failed to grant the former employees any further rights to purchase stock in the company after the termination of their employment. The petition further alleged that Purina had acted arbitrarily, capriciously and in bad faith when it failed to grant separation pay and to honor their rights to purchase stock.

The stock purchase rights allowed employees to purchase stock in Purina. For every four shares purchased and paid for by the employee, the company would pay for one additional share. Purina had a mandatory retirement age of sixty-five and each of the former employees in this case contended they were entitled to damages for the deprivation of their right to have Purina purchase one share for each four they purchased from the time of their termination until each employee reached the age of sixty-five. They further contended they were entitled to separation pay at a minimum of one week’s salary for each full year of completed service. There is no question the employees were terminated without any fault on their part and the termination was solely because of the sale of the plant.

The former employees contend the policy set out above was an offer by Purina to grant separation pay and by continuing in the employ of Purina, each accepted this offer and thereby became absolutely entitled to separation pay upon their termination.

The former employees rely principally upon Hinkeldey v. Cities Service Oil Company, 470 S.W.2d 494 (Mo.1971) and Ehrle v. Bank Building & Equipment Corporation of America, 530 S.W.2d 482 (Mo.App.1975). Both of these cases recognize, of course, the general rule in this class of case that if the company policy is found to be a valid offer to pay benefits, if the offer is communicated to the employees, and if the employees continue their employment in reliance and acceptance of the offer, then a valid contract exists and the company may not arbitrarily or capriciously withhold the payment of that which it promised. The distinction between those cases and the case sub judice is found in the wording of the policy. In both Ehrle and Hinkeldey the policy was a general company policy which without question constituted an offer to pay benefits. In Hinkeldey the court at 470 S.W.2d 500[1] contrasted a policy which made an offer and those in which an offer was not made when it stated:

It [the policy] does not say that severance allowances “may be provided”, but says “are provided.” It does not say that one week’s pay for each completed year of service “may be allowed” but says “This schedule allows one week’s pay, etc.” It refers to “This severance allowance” and “such severance allowance” — not to “any severance allowance which may be made.”

In short, the court in Hinkeldey was drawing a distinction between a company policy which stated a plan had been adopted and benefits would be paid as contrasted with a plan which merely suggested that benefits might be paid.

The necessity for an offer is stated in Borden v. Skinner Chuck Company, 21 Conn.Sup. 184, 150 A.2d 607, 610[5] (1958):

It is basic, however, that there must be an offer upon the employer’s part. A mere expression of intention or general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.

The rule has also been stated in Spooner v. Reserve Life Insurance Company, 47 Wash.2d 454, 287 P.2d 735, 738 (1955) that a company policy may be unenforceable “by reason of provisions contained in the promise which in effect make its performance optional and entirely discretionary on the part of the promisor.” An examination of the Purina policy readily reveals that it is not an unconditional promise on the part of Purina to pay all of its employees separation pay. In fact, the policy states at the very beginning that separation pay will be paid only in limited and exceptional cases. The policy clearly is cast in terms which reserve to Purina the decision to request separation pay and to finally act on the request. The policy gives the factors to be considered in determining whether a request for separation pay will be made and the basis on which it will be considered. Nothing in the policy indicates an unconditional offer on the part of Purina to pay any terminated employee separation pay but clearly indicates separation pay will be determined on a case-by-case method with the enumerated factors to be considered in each case in light of the purpose to be accomplished.

A further and perhaps even stronger reason the policy does not afford any separation benefits to the former employees in this case is its stated purpose to assist former employees during a period of financial need between their employment with Purina and the beginning of new employment. Here the former employees’ evidence showed that all of them were employed and this was the reason Purina officials in the field did not file any requests for separation pay on behalf of these former employees. The plaintiffs failed to allege in their petition or show by affidavit that they suffered any period of unemployment and thus failed to show they were entitled to be considered for separation pay. Thus, the very purpose of the policy did not come into existence since these former employees did not show a need for assistance between the time of their termination by Purina and their new employment.

The company policy which permitted employees to purchase stock with Purina paying for one share for each four purchased by the employees was limited to employees of Purina. There is nothing in that policy which gives any former employee the right to continue to purchase stock under this plan. Since the plaintiffs in this case are former employees there is no right vested in them to continue to purchase stock with Purina participating in the purchase.

The former employees also contend Purina is obligated to pay separation benefits because of its payment of such benefits to other former employees. There is nothing in the record to indicate that benefits were paid under this policy in violation of its stated purpose or terms and for that reason payment to other former employees did not obligate Purina to pay the former employees in this case. Since an enforceable promise was not made by Purina to the former employees in this case they are not entitled to recover, and payment to other employees would not bring about a different result. Cottonseed Delinting Corp. v. Roberts Brothers, 218 S.W.2d 592, 594[3] (Mo.1949). The same result obtains as to the former employees’ arguments that Purina failed to correct the erroneous construction which they placed upon the policy. Their final argument that Purina failed to negative its bad faith or arbitrary or capricious conduct in failing to pay benefits is likewise answered when it is found the policy did not constitute an offer and, therefore, no contract between Purina and its employees under this policy came into existence.

The judgment is affirmed.

All concur.