text:
    Clifford R. SMITH, Respondent, v. Linda K. SECRIST, Appellant.
    No. 40552.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.

      Jay G. Newquist, Crestwood, W. Munro Roberts, Jr., St. Louis, for appellant.
    Harry Ritchey, St. Ann, James P. Hollo-ran and Prudence W. Kramer, St. Louis, John G. Doyen, Clayton, for respondent.
   REINHARD, Presiding Judge.

Plaintiff initially filed this lawsuit against defendants Wise, Rodgers, and Sec-rist to recover money damages for injuries he suffered in an automobile accident which occurred on December 3, 1973. Plaintiff dismissed his action against defendants Wise and Rodgers without prejudice. The jury returned a verdict in plaintiff’s favor and against Secrist in the amount of $50,-000. Secrist appeals from that judgment.

The accident occurred on 1-70 just east of the Cyprus Road entrance ramp. At that point, 1-70 is a four-lane east-west highway, with two east-bound lanes and two west-bound lanes. The four lanes of the highway are separated by a grass median 25-30 feet wide. Because rain had been falling before and at the time of the accident, the highway was quite wet on December 3, 1973.

On the night of the accident, plaintiff operated his automobile in the right hand lane of east 1-70 at 40-45 miles per hour. Defendants Wise and Rodgers also operated their vehicles in the right lane of east 1-70; Wise being directly in front of and Rodgers being directly behind plaintiff.

Plaintiff testified that the distance between his automobile and Wise’s was approximately 6-7 car lengths. Rodgers estimated that he followed plaintiff at a distance of 5-6 car lengths. Rodgers and Wise testified that Secrist was moving in an easterly direction in the lane nearest the median. According to plaintiff, Secrist’s speed was 60-65 miles per hour. Wise’s speed was approximately 45 miles per hour and she indicated Secrist was traveling 10-15 miles per hour faster than her own. Secrist placed her speed at approximately 40-50 miles per hour. The speed limit for that stretch of 1 — 70 was 55 miles per hour.

Secrist had passed Rodgers, Smith and Wise and had begun moving from the median lane into the right lane when her auto began to “fishtail” and she lost control. The auto traversed the grass median which separated the east-bound and west-bound lanes and proceeded into oncoming traffic in the west-bound lanes of the highway. Secrist attributes her loss of control to a blowout of her left rear tire, but Officer Hicks did not mention this fact in the police report, nor did he remember Secrist making such a statement at the scene.

Seeing the Secrist auto “fishtail”, Wise hit her brakes to slacken the speed of her auto. Plaintiff testified that although he braked the moment he saw Wise’s brake lights, he was unable to avoid the collision with the rear of Wise’s car. According to plaintiff and Wise, Rodgers collided with the rear of plaintiff’s vehicle almost instantly after the collision between plaintiff and Wise. The collision between Rodgers and plaintiff caused plaintiff’s car to strike Wise’s a second time.

As her first point, defendant contends that her negligence was not the true proximate cause of plaintiff’s injuries. She argues that the negligent acts or omissions of Rodgers constituted an intervening cause that interrupted the chain of events so as to become the responsible direct and proximate cause of plaintiff’s injuries. Therefore, argues defendant, the court should have directed a verdict in her favor.

As noted in Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 745, 286 S.W.2d 820, 824 (Banc 1959), questions of proximate cause and efficient, intervening cause are inseparably interwoven with each case turning on its own individual facts. Missouri cases have defined an efficient, intervening cause as a new and independent force which so interrupts the chain of events as to become the responsible, direct, proximate and immediate cause of the injury. Id. at 745, 286 S.W.2d at 824; Strake v. R. J. Reynolds Tobacco Co., 539 S.W.2d 715, 718 (Mo.App.1976). The general principles which apply to the issue raised in this point are set forth in the oft cited case of Floyd v. St. Louis Public Service Co., 280 S.W.2d 74, 78 (Mo.1955):

Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. The negligence of the defendant need not be the sole cause of the injury. It is sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted. A party is held liable if his negligence, combined with the negligence of others, results in injury to another.

Here, the evidence showed that defendant operated her vehicle at an excessive speed. This caused her vehicle to “fishtail” and forced the autos behind her to immediately brake and collide with one another. A jury could reasonably infer that if Secrist had not been speeding, the accident would not have occurred. Speeding, under the facts presented here, could be found to constitute the efficient cause which set in motion the chain of circumstances leading up to plaintiff’s injury. A jury could also find that the action of Rodgers was foreseeable by the defendant. We cannot say as a matter of law that the acts of Rodgers constituted a new and independent force sufficient to break the chain of events created by defendant’s negligence.

Defendant next contends that the following testimony by plaintiff constitutes a judicial admission that the second impact caused his injuries:

Q. Mr. Smith, how do you know which impact caused your injury, the first impact or second, how do you know?
A. Because if the second impact hadn’t hit me, I think we could have both drove our cars away and wouldn’t have béen no injuries whatever.
Q. Do you know?
A. Nobody could know for sure, unless the second impact didn’t happen.

Taken in its entirety, this testimony does not constitute a judicial admission. Regardless of the first impact between Wise and plaintiff, Rodgers’ inability to stop his vehicle before it collided with plaintiff’s created an issue of fact as to intervening cause requiring a jury determination. This second impact was part of the chain of circumstances created by defendant’s negligence.

Finally, defendant asserts that the court erred in not directing a verdict in her favor because the evidence established plaintiff’s contributory negligence as a matter of law.

Plaintiff testified that he was traveling 45 miles per hour and that he was following the Wise vehicle at a distance ranging from 50 feet to 6 — 7 car lengths. Defendant argues that this testimony was sufficient to indict plaintiff of contributory negligence as a matter of law. She claims that at 45 miles per hour plaintiff traveled 66 feet per second. She reasons, using the normal reaction time of three-quarters of a second, that plaintiff would have traveled almost 50 feet before his brakes could take effect. She concludes then, that plaintiff could not have avoided the accident even with immediate action on his part.

Plaintiff’s testimony as to the distance between his vehicle and the one in front of him was conflicting. At one point he said 50 feet, but later he said the distance was about 6 or 7 car lengths. He believed that a car length was about twenty feet. He also testified that the distance between his vehicle and Wise’s was constant prior to the time he braked and that he “should have been able to stop within fifty or sixty feet.”

“The burden of proving contributory negligence was upon defendants unless plaintiffs’ evidence established it as a matter of law. The issue of contributory negligence is one of fact for the jury unless reasonable minds could draw only the conclusion that plaintiff was negligent.” Mitchell v. Buchheit, 559 S.W.2d 528, 530 (Mo.banc 1977). Defendant relies solely on plaintiff’s estimates as to speed and distances to support his claim that plaintiff was contributorily negligent as a matter of law. We have held that a plaintiff is not conclusively bound by his testimony as to mere estimates of time, speed and distances. Vaccaro v. Moss, 410 S.W.2d 329, 331 (Mo.App. 1966). Thus, while there was evidence that plaintiff was contributorily negligent in following Wise’s auto too closely, we are not persuaded that the evidence established his contributory negligence as a matter of law. The issue was properly submitted to the jury.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Larry James TROUPE, Appellant, v. STATE of Missouri, Respondent.
    No. 39853.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.

      Patrick M. Sanders, Chief Trial Atty., Twenty-First Judicial Circuit, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Peter T. Sa-dowski, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant’s appeal from the denial of his Rule 27.26 motion raises two points: (1) ineffective assistance of counsel at his guilty plea proceedings for failure to conduct adequate investigation and preparation; (2) that his pleas were the products of coercion by his attorney in threatening that he would receive greater punishment if the cases were tried. After evidentiary hearing, the trial court in findings of fact and conclusions of law denied the motion. We affirm.

The 114 pages of transcript of mov-ant’s guilty plea proceedings to 12 separate charges of stealing over $50 manifestly established that the pleas of guilty were knowingly and voluntarily made. As such, the issue regarding ineffective assistance of counsel fails except as it relates to the voluntariness and understanding of the pleas. Baker v. State, 583 S.W.2d 190 (Mo.App.1979); Johnson v. State, 581 S.W.2d 118 (Mo.App.1979). The finding of the trial court that the movant voluntarily pleaded guilty is bountifully supported by the record and is not clearly erroneous. Witt v. State, 582 S.W.2d 325 (Mo.App.1979); Ballard v. State, 577 S.W.2d 932 (Mo.App.1979). The assertion that his counsel did not adequately investigate possible defenses does not provide ground for relief, as it does not in this instance touch on his obvious voluntary and intelligent choices to plead guilty, including his acknowledgment of his satisfaction with counsel’s services. Chapman v. State, 579 S.W.2d 855 (Mo.App.1979); Gilmore v. State, 578 S.W.2d 71 (Mo.App.1979). It is clear from the record that any alleged lack of investigation or preparation by mov-ant’s counsel did not preclude or affect his voluntary and understanding pleas of guilty. Barrow v. State, 486 S.W.2d 497 (Mo.1972). See also: Cerame v. State, 584 S.W.2d 174 (Mo.App.1979).

Movant’s second point seeking relief alleges threats by his counsel that if he did not plead guilty the trial judge would assess him further penalty; as a result, he charges, he was coerced. This assertion is too fenestrated to hold merit. The mere fact that an attorney may advise his client to enter a guilty plea rather than expose himself to a more generous penalty after trial does not make the plea the product of duress. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Harvey v. State, 577 S.W.2d 133 (Mo.App.1979). The record here is convincing and clearly refutes movant’s assertion that any threats or bargains were made or offered in exchange for the guilty pleas. White v. State, 530 S.W.2d 444 (Mo.App.1975). There is an abundance of testimony from the movant himself to persuade the trial court that the pleas were his own free and voluntary actions and made with full understanding of the charges and consequences of the pleas. The trial court’s findings in this regard were not clearly erroneous. Helms v. State, 584 S.W.2d 607 (Mo.App.1979).

Judgment affirmed.

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

      . Overruled in part on other grounds: Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).


author: PER CURIAM. HOGAN, Judge,

text:
    Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents, v. Susan Dee BREWER, Defendant-Appellant, and Jeanne Y. Elayer, a Minor, Defendant. Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents, v. Susan Dee BREWER, Defendant, and Jeanne Y. Elayer, a Minor, By and Through Her Next Friend, Kenneth Elayer, Defendant-Appellant.
    Nos. 10038, 10039.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 25, 1979.
    Rehearing Denied Nov. 19, 1979.

      Harold J. Fisher, David W. Ansley, Wool-sey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-appellant Susan Dee Brewer.
    Gerald H. Fowther, C. Ronald Baird, Lowther, Johnson, Franks & Baird, Springfield, for defendant-appellant Jeanne Y. Elayer.
    Jerry L. Reynolds, Donald E. Bonacker, Bonacker & Reynolds, Springfield, for plaintiffs-respondents.
   PER CURIAM.

These appeals were argued and submitted in this court at its June 1978 session. An opinion was thereafter prepared and adopted, but was set aside and withdrawn upon plaintiffs’ motion for rehearing. After this court was fully constituted, the appeal was again argued and submitted to the whole court. Parts of the divisional opinion have been adopted and are incorporated herein without the use of quotation marks.

The action is an action for damages sustained by plaintiffs as a result of an automobile collision; the collision involved three vehicles. The plaintiffs joined both defendants in a single action. Plaintiffs averred that plaintiff Laney M. Deskin sustained serious personal injuries and plaintiff Howard A. Deskin suffered loss of consortium “as a result of the combined, joint and concurrent, negligence” of [both] defendants; plaintiffs had a verdict and judgment against both defendants in the amount of $60,000. The defendants appealed separately; the appeals were consolidated for argument but will be considered separately.

The casualty occurred in the south part of Springfield, Missouri, near the intersection of Campbell Avenue and Broadmoor Street about 8:00 a. m. on January 9,1973. At the place where the accident happened, Campbell is a five-lane street, a thoroughfare for traffic moving north and south. On the east, there are two lanes for northbound traffic, each about 12 feet wide. There is a middle or median lane, 15 feet wide, from which both north and southbound vehicles may turn left. On the west, there are two southbound lanes, each 12 feet wide. Broadmoor is an east-west street which intersects Campbell at a right angle on the west. As one approaches Campbell on Broadmoor, the street inclines downgrade. Traffic eastbound on Broadmoor is controlled by a stop sign some 4 to 5 feet west of Campbell on the south side of Broad-moor.

Driving conditions at the time of the casualty were execrable. Weather data read to the jury indicated that the average temperature on January 9, 1973, was 9° F; at 6:00 a. m., two hours before the accident, the average ground cover consisted of 5 inches of snow, ice and ice pellets; “traces” of precipitation (described by plaintiff Howard Deskin as “kind of a mist”) were noted at 7:00, 8:00, 9:00, 10:00 and 11:00 a. m. More specifically the investigating police officer noted “snow, ice and wet [patches]” on Campbell, and “snow and ice” on Broadmoor. Defendant Elayer found the intersection of Broadmoor and Campbell so slick that she “fell down” upon alighting from her car after the accident. Plaintiff Howard Deskin testified that the driving lanes on Campbell were “icy” with “just [ruts] running down where the tires [had been over the surface]”; moreover, “[T]here was humps ... in the center [between the ruts] . . . there was a hump of [snow and ice] in between [the ruts].” Plaintiffs’ Exhibits 7 and 10, which are 16- by 20-inch photographs of the approximate point of collision, show areas of snow, ice and icy glaze near the intersection of Campbell and Broadmoor.

The record is a welter of approximations, “estimates,” “best judgments” and outright contradictions, but the jury might reasonably have found: that immediately prior to the casualty, plaintiff Laney Deskin was driving north on Campbell in the easternmost northbound [“outside” or “curb”] lane, going “about twenty-five, thirty miles an hour.” Plaintiff Laney suffered retrograde amnesia as one of the consequences of the accident; although she “wish[ed] [she] could” remember, Laney’s recollection extended only to the time she was passing the “Carriage House.” The “Carriage House” is a retail furniture store located to the east of Campbell, “3 to 4 blocks” south, as Laney recalled, of the approximate point of impact. According to the “best judgment” of another witness the store is approximately 600 feet south of the intersection of Campbell and Broadmoor. Laney was following two vehicles behind a white truck; she remembered looking at her rear view mirror to see if it was safe to pass, but that was the extent of her recall.

Defendant Susan Dee Brewer was driving south on Campbell in the west curb lane. Defendant Brewer testified she was going 20 to 25 miles per hour, and the jury could reasonably have found she was driving faster. Defendant Elayer, in the meantime, was approaching the intersection of Campbell and Broadmoor from the west. Defendant Brewer saw Elayer, sliding east toward the intersection at a time when she, Brewer, was about 50 feet north of the intersection. The Elayer car was sliding forward, but defendant Brewer “never expected that [Elayer] would not stop,” and considered it sufficient to sound her horn as she drove toward the intersection.

From the varying statements made by both defendants, the jury could reasonably have found that defendant Elayer did not stop short of the area of intersection between Broadmoor and Campbell, and that defendant Brewer could have swerved to her left, avoiding the Elayer vehicle, but failed to do so. In any event, the right rear of the Brewer vehicle struck the front part of the Elayer vehicle, and thereafter slid or spun — or both — southeasterly some 225 feet where it struck the Deskin automobile head-on in the west northbound lane of Campbell, or, as plaintiffs’ counsel insist and reiterate, on the “wrong” side of the road. Such is the factual background of the case, as briefly as it can fairly be stated.

We first consider defendant Brewer’s appeal. Her initial assignment of error has to do with the trial court’s refusal to permit an expert witness to testify that defendant Brewer’s automobile could not have “changed lanes” in time to avoid striking the plaintiffs’ vehicle, and the trial court’s refusal of an offer to prove by the expert that because the Brewer car spun after it came in contact with the Elayer vehicle, defendant Brewer could not have avoided the collision. Citing various,cases in which “expert” testimony concerning stopping distances has been held admissible, e. g., Burrow v. Moyer, 519 S.W.2d 568, 570[3] (Mo.App.1975), and Sullivan v. Hanley, 347 S.W.2d 710, 716[7] (Mo.App.1961), defendant Brewer argues that the expert’s testimony should have been admitted to rebut the inference of negligence which arose from her being on the wrong side of the road, as outlined in Friederich v. Chamberlain, 458 S.W.2d 360, 366[4][5][6][7] (Mo.banc 1970).

In the view we take of this appeal, the point need not be discussed at length. The expert witness was called by defendant Elayer; he was permitted to testify to some stopping distance tests he had made on Campbell Avenue in the vicinity of Broadm-oor and Campbell. As the examination of the expert progressed, it became apparent that counsel for both defendants were attempting to “reconstruct” the accident and allocate fault on the basis of the expert’s testimony. His opinions concerning the maneuvers which could have been made by the parties to avoid the accident were consistently excluded by the trial court. The substance of the specific inquiry to which objection was sustained was whether defendant Brewer could have swerved in IV2 car lengths, “assuming [driving conditions] to be as [counsel had] stated, where the tire tracks go, . . . there’s something causing a slick condition . . and . [defendant Brewer] ... is spinning around . . . .” After objection to this question was sustained, counsel for defendant Brewer offered to show by the witness that defendant Brewer could not have swerved in 1½ car lengths after she had struck or been struck by the Elayer vehicle.

It may be conceded that results of experiments made out of court are admissible in the discretion of the trial court if it is shown that the experiments were conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit. Faught v. Washam, 329 S.W.2d 588, 598[13], and authorities cited n. 13 (Mo.1959). Opinion evidence is a somewhat different matter. It is doubtless true that an expert’s opinion as to causation is no longer objectionable solely upon the ground that the opinion bears on an ultimate issue in suit. Eickmann v. St. Louis Pub. Sv. Co., 363 Mo. 651, 663-664, 253 S.W.2d 122, 129-130[7, 8] (1952); Comment, Expert Testimony in Missouri on Point of Impact in Automobile Accidents,. 33 Mo.L.Rev. 645, 648-654 (1968); C. McCormick On Evidence, Evidence § 12, p. 27 (2d ed. 1972). Nevertheless, our Supreme Court has balked at permitting the complete “reconstruction” of automobile casualties so as to permit the allocation of fault by expert hindsight. Housman v. Fiddyment, 421 S.W.2d 284, 289[1 — 4] (Mo.banc 1967). As we view the legal question at hand, it was for the trial court to determine, in the exercise of discretion, whether expert testimony was necessary and whether the testimony, as offered, would assist or merely tend to confuse or usurp the function of the jury. Housman v. Fiddyment, supra, 421 S.W.2d at 289; Yocum v. Kansas City Pub. Sv. Co., 349 S.W.2d 860, 864[1] (Mo.1961); Eickmann v. St. Louis Pub. Sv. Co., supra, 363 Mo. at 665, 253 S.W.2d at 130[11]. We find no abuse of that discretion.

Plaintiffs submitted their case against defendant Brewer on two disjunctive grounds: 1) failure to swerve after defendant Brewer knew or by the use of the highest degree of care could have known there was a reasonable likelihood of collision with defendant Elayer’s vehicle, and 2) being on the wrong side of the road at the time of collision with the vehicle being driven by plaintiff Laney Deskin. Defendant Brewer objects to the form of Instructions 2 and 3, and maintains there was no substantial evidence to support either disjunctive submission. We must consider the submissibility arguments first. There must be evidence to support both disjunctive submissions, Wolfe v. Harms, 413 S.W.2d 204, 209-210[1] (Mo.1967); Hardy v. St. Louis-San Francisco R. Co., 406 S.W.2d 653, 659[6] (Mo.1966), and unless the plaintiffs adduced substantial evidence in support of both alternative assignments, any defects in the form of the verdict-directing instructions are immaterial. Howard v. Johnoff Restaurant Company, 312 S.W.2d 55, 56[1] (Mo.1958); Milazzo v. Kan sas City Gas Co., 180 S.W.2d 1, 3[1] (Mo.1944); Rakestraw v. Norris, 478 S.W.2d 409, 416[13] (Mo.App.1972).

With respect to the first ground of recovery submitted — failure to swerve after danger of collision became apparent — defendant Brewer cites Cook v. Cox, 478 S.W.2d 678, 680[3, 4] (Mo.1972); Zalle v. Underwood, 372 S.W.2d 98, 102[1-3] (Mo.1963), and like precedents, and argues at length that there is no substantial evidence that she had sufficient time and distance, considering the movements and speeds of the vehicles, and the driving conditions, in which to take effective action to avoid the Elayer vehicle after the duty to do so arose. In considering this claim of error, it is borne in mind that plaintiffs are entitled to have the evidence considered most favorably to their submission, disregarding defendant’s evidence unless it tends to support the submission, Rickman v. Sauerwein, 470 S.W.2d 487, 489[1] (Mo.1971), and that a jury is at liberty to believe all of the testimony of any witness or none of it, or accept it in part and reject it in part, just as it finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. Capriglione v. Southwestern Bell Tel Co., 376 S.W.2d 205, 206[2] (Mo.1964); Kickham v. Carter, 314 S.W.2d 902, 905[1] (Mo.1958); Robertson v. Grotheer, 521 S.W.2d 452, 457[5] (Mo.App.1975).

As between the two defendants, defendant Brewer was the “favored” motorist and defendant Elayer. the “disfavored” motorist. Defendant Brewer’s duty to act arose when it became apparent, or reasonably should have become apparent, that defendant Elayer was likely to proceed into her path of travel. McAlister v. Urhahn, 492 S.W.2d 19, 21[4] (Mo.App.1973); Greenwood v. Bridgeways, Inc., 243 S.W.2d 111, 114[5] (Mo.App.1951).

Upon trial, defendant Brewer testified she was “about fifty feet” north of the intersection when she first saw the Elayer car. The Elayer vehicle was then “about fifty feet” west of the intersection. Upon trial, defendant Brewer stated that she sounded a warning “to alert [Miss Elayer]” of her presence. Defendant Brewer estimated her speed at that point to be 20 to 25 miles per hour, and that “to the best of my judgment, I made the decision that [Miss Elayer] was going to stop at the corner so that I could turn my attention to other road conditions and I proceeded on through the intersection because I never expected any collision.” At another point, however, defendant Brewer testified that as she approached Broadmoor, the Elayer vehicle continued to proceed very slowly downhill toward the intersection. Defendant Brewer’s argument, upon such testimony — we have quoted only illustrative parts — is that there is no showing she could have swerved to avoid the Elayer car, even though defendant Brewer was particularly and specifically asked: “Q. Are you telling this Jury within fifty feet, going twenty miles an hour you couldn’t have swerved your car over into the other lane?” and Mrs. Brewer answered (our emphasis) “A. If I had felt the need to swerve I could have, yes.” Defendant Brewer’s duty to act depended on reasonable appearances. If Miss Elayer appeared to be slowing or slackening her speed as defendant Brewer approached the intersection, defendant Brewer’s duty might have been discharged merely by giving a warning of her approach. If, on the other hand, defendant Elayer continued to proceed toward the intersection after defendant Brewer sounded a warning, it became defendant Brewer’s duty to swerve. Pitts v. Garner, 321 S.W.2d 509, 518[11] (Mo.1959); and Boone v. Richardson, 388 S.W.2d 68, 74[9] (Mo.App.1965). Without going into detail, there was evidence that the Elayer vehicle continued to slide east into the intersection from the time defendant Brewer first saw it up to the time of collision. Given the jury’s right to believe all, none, or any part of any witness’ testimony or to accept it in part and reject it in part, Robertson v. Grotheer, supra, 521 S.W.2d at 457[5], we cannot say as a matter of law that Mrs. Brewer had neither the opportunity nor the means at hand with which to turn aside and avoid collision with the Elayer vehicle, even if we accept her trial testimony as the only evidence bearing on her liability.

We need not base our ruling on what defendant Brewer said upon trial, however. Plaintiffs have answered defendant Brewer’s point as presented, but the argument leaves out of consideration the rule that a party’s admission of a material fact relevant to an issue in the case is competent against him as substantive evidence of the fact admitted. And, for a statement by a party to be competent as an admission against interest, it is not necessary that it be a direct admission of the ultimate fact in issue, but it may be competent and of probative value if it bears on the issue incidentally or circumstantially. Gaddy v. State Bd. of Registration for Healing Arts, 397 S.W.2d 347, 354, and cases cited nn. 9, 10 (Mo.App.1965). Moreover such evidence is admitted under a recognized exception to the hearsay rule, and proof of such an admission does not depend for its admissibility on conformance to any other exception to the hearsay rule, such as res gestae. Rutledge v. Ballance, 375 S.W.2d 214, 215 — 216[1] (Mo.App.1964). In this case, defendant Brewer admitted having said, in a typewritten statement made to plaintiffs’ counsel that she, Brewer, was 150 feet north of the Elayer vehicle when she first saw it, and, in substance, that she did not believe that Miss Elayer would stop short of her path of travel. While defendant Brewer sought to disparage the accuracy of this statement, she admitted having made it. If the jury accepted the statement, rather than defendant Brewer’s trial testimony as true, then it could’ surely have found defendant Brewer had both the duty and the means to swerve to avoid Miss Elayer.

In so holding, we have not lost sight of defendant Brewer’s argument that there should be evidence that she could have swerved or turned aside with reasonable safety. We think a jury might reason-ábly have concluded that defendant Brewer could have turned aside safely even without Mrs. Brewer’s positive statement that she could have done so. The location of the damage to the vehicles is in itself some evidence of their relative positions at the time of impact, Thompson v. Jenkins, 330 S.W.2d 802, 805-806 (Mo.1960); Boone v. Richardson, supra, 388 S.W.2d at 73[5]; Curtin v. Benjamin, 305 Mass. 489, 26 N.E.2d 354, 355[3, 4], 129 A.L.R. 433, 437, (1940), and defendant Brewer’s Exhibit “B” shows that the damage to her vehicle resulting from the collision with Miss Elayer is located at the right rear, and is relatively minor. In short, reasonable minds could infer that no swooping left turn was necessary; by turning aside slightly, defendant Brewer might have avoided the collision. Inasmuch as a slight swerve can be accomplished in a very short time with very little actual movement of the vehicle, Brown v. Callicotte, 73 S.W.2d 190, 193 (Mo.1934); Berry v. McDaniel, 269 S.W.2d 666, 671 — 672 (Mo.App.1954), the trial court did not err in submitting an unsafe maneuver to the jury.

We need not be long in considering the submissibility of the second disjunctive assignment — being on the wrong side of the road. In this case, to avoid the inference of negligence created by her collision with plaintiffs’ vehicle in the west northbound lane of Campbell Avenue, defendant Brewer was obliged to produce evidence of justification so conclusive that no reasonable man could infer that she was negligent in getting on the wrong side. Friederich v. Chamberlain, supra, 458 S.W.2d at 366[7]. As a general rule, a defendant’s negligence is a proximate cause if it is an efficient cause which sets in motion the chain of circumstances leading to the plaintiffs’ injury or damages, and defendant Brewer would be liable if her negligence combined with other causes, including the negligence of defendant Elayer, to produce the plaintiffs’ damages, even though defendant Brewer’s negligence was not the sole proximate cause of the second collision. Cluck v. Snodgrass, 381 S.W.2d 544, 547-548 (Mo.App.1964). Inasmuch as a jury could have inferred that defendant Brewer’s negligence was an efficient and producing cause of the first collision, and that the second collision would not have occurred if the first had not, it cannot be said there was error in submitting negligence in being on the wrong side of the road.

We now come to defendant Brewer’s contention that the giving of Instructions 2 and 3, plaintiffs’ verdict-directors, was prej-udicially erroneous because those instructions “violated M.A.I. and were confusing and misleading to the jury, were argumentative and gave the jury a roving commission in that plaintiffs failed to state which collision they referred to in alleging that defendant Brewer was on the wrong side of the road.”

Instruction No. 2 submitted plaintiff La-ney Deskin’s case against defendant Brewer in the following language: (our emphasis)

“Your verdict must be for plaintiff La-ney M. Deskin on her claim for damages and against defendant Susan Dee Brewer if you believe:
First, defendant Susan Dee Brewer either: knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision with the Elayer automobile in time thereafter to have swerved, but she failed to do so, or defendant Susan Dee Brewer’s automobile was on the wrong side of the road at the time of the collision, and
Second, defendant Susan Dee Brewer’s conduct in any one or more of the respects submitted in paragraph First, was negligent, and
Third, such negligence either directly caused damage to plaintiff Laney M. Des-kin or combined with the acts of defendant Jeanne Y. Elayer to directly cause damage to plaintiff Laney M. Deskin.”

Essentially, defendant Brewer’s argument is that these two instructions were “confusing and misleading” and amounted to a “roving commission” because paragraph First of the instructions fails to identify the collision to which it refers in submitting that defendant Brewer was on the wrong side of the road. In the “argument” part of her brief, defendant Brewer contends that “[these instructions]” in this respect “[are] misleading, confusing and ambiguous.” The plaintiffs’ answer is, basically, that they submitted their case as required by the M.A.I. and that it was for the trial court to judge whether the jury was in fact confused or mislead.

Upon careful consideration, and after rehearing the argument of counsel, we are convinced there is no merit in this point. Defendant’s argument, reduced to its essence, is that the instructions are ambiguous and the jury was therefore misled. There is no question that the instructions are ambiguous, to a degree, but an otherwise proper instruction is not necessarily prejudicially erroneous because it is technically susceptible of differing constructions. In Wegener v. St. Louis County Transit Company, 357 S.W.2d 943, 948-949 (Mo.banc 1962), our Supreme Court indicated that an instruction submitting humanitarian negligence should not have been refused on the ground that it submitted that a bus was approaching from the “west” when the evidence was that the bus approached from the east. The court quoted respondent’s brief, and commented thus, 357 S.W.2d at 949:

“. . .As stated in respondent’s brief ‘All the evidence clearly showed that the motorbus was approaching from the east,’ and in view of the unanimity of the witnesses on both sides with reference to the direction from which the bus was approaching, this clerical error could not possibly have misled the jury. . . . ”

Another illustrative example is found in James v. Turilli, 473 S.W.2d 757 (Mo.App.1972), wherein the verdict-director hypothesized the existence of affidavits (plural) although only one affidavit was in fact received in evidence. On appeal, our colleagues at St. Louis upheld the trial court’s ruling that a jury of reasonably intelligent men and women could not have been confused.

These two precedents — others might be cited — illustrate our point. In determining whether Instructions 2 and 3 were so ambiguous as to be prejudicially confusing, we are entitled to believe that the jury was composed of reasonably intelligent men and women. Price v. Seidler, 408 S.W.2d 815, 823-824 (Mo.1966); James v. Turilli, supra, 473 S.W.2d at 763[13]. The trial of this case took approximately three days; the attorneys quite literally went back and forth over every aspect of the casualty. The first collision occurred about 220 feet north of the collision with the Elayer vehicle and without going again into evidentiary detail, the two collisions are so factually disparate in time, distance and nature that we believe the “wrong side of the road” submission could hardly have been understood by a jury of reasonable men and women as referring to anything but defendant Brewer’s collision with the plaintiffs’ vehicle.

We do not approve Instructions 2 and 3; it would have been relatively simple to require the jury to find that defendant Brewer’s automobile “was on the wrong side of the road at the time of the collision with plaintiff Laney M. Deskin’s vehicle.” All we hold in this case is that given the detailed facts, we do not believe a jury would have been misled.

Moreover, the question whether instructions are confusing is addressed in the first instance to the trial court’s discretion. Trump v. Ballinger, 317 S.W.2d 355, 357-358[2] (Mo.1958); James v. Turilli, supra, 473 S.W.2d at 763[14]; Edie v. Carlin, 369 S.W.2d 610, 613-614[1-3] (Mo.App.1963). The trial court passed on the very contention addressed to this court. It refused a new trial and we cannot say there was an abuse of that discretion.

Defendant Brewer has briefed two additional points. One has to do with a bit of unwarranted horseplay in which the other attorneys engaged; the other deals with the argument made by defendant Elayer’s counsel. Both these points are insignificant and it would serve no useful purpose to discuss them.

Defendant Elayer raises three questions on appeal. First, she contends that the trial court erred to her prejudice in permitting plaintiff Laney Deskin to testify that she and her husband were the parents of two children, and that the children were in the courtroom. Defendant Elayer’s specific objection is that such evidence was not relevant to any issue in the case.

Plaintiff Laney Deskin was asked if she and her husband had two children, and she was asked their ages. Plaintiff Laney answered that she and her husband had two children; they were in the courtroom; one child was 13 years of age, the other 11. Such evidence is often held inadmissible on the ground that it is irrelevant and calculated to arouse the prejudice of the jury. Lewis v. Hubert, 532 S.W.2d 860, 868[16, 17] (Mo.App.1975). Nevertheless the general rule declaring evidence of family status or number of people in a family inadmissible does not apply when that evidence is relevant or pertinent to an issue raised in the case. Bush v. Anderson, 360 S.W.2d 251, 255[5] (Mo.App.1962); Kingsley v. Kansas City, 166 Mo.App. 544, 549, 148 S.W. 170, 171[1] (1912). Here, the plaintiffs made a good faith effort to show it became necessary for plaintiff Howard Deskin to care for the children after their mother was injured, and that he sustained a pecuniary loss as a result. The general rule does not apply, and we cannot say defendant Elayer was prejudiced by the admission of evidence concerning plaintiffs’ family status.

Another point raised by defendant Elayer deals with the admission of evidence. Defendant Elayer’s father testified in his daughter’s behalf. Mr. Elayer was asked to “[T]ell this Jury what you saw about a hay truck while you were there at that scene [of the accident].” The witness’ answer was: “Me and the policeman walked back up to my car and — started, and this truck come [sic] over the hill real easy, put his brakes on and just slipped right down into the back of my car.” The witness was immediately cross-examined by counsel for plaintiffs, who inquired whether the hay truck had dented defendant Elayer’s vehicle. It had, and over objection, plaintiffs’ attorney was permitted to ask if the witness had demanded and received payment from the driver of the hay truck.

Defendant Elayer would have us believe that her questions to the witness elicited relevant and admissible evidence, but plaintiffs’ development of the rest of the collateral transaction was prejudicial. Doubtless the slickness of the streets was relevant, but counsel’s interrogation of Mr. Elayer— and a good deal of other testimony presented by both defendants — was in fact an attempt to demonstrate that the whole occurrence was an unavoidable accident. If our Supreme Court had not indirectly but firmly turned its back upon the unavoidable accident doctrine, at least in vehicular casualties, M.A.I 1.01 (2d ed.1969); Suchara v. St. Louis Pub. Sv. Co., 410 S.W.2d 93, 94— 95[1] (Mo.App.1966), it might have been that both defendants could have submitted, or at least argued, that the whole incident was unavoidable. In the circumstances, however, defendant Elayer, having opened up the unrelated, collateral matter, is in no. position to complain because the plaintiffs developed the transaction to the extent necessary to dispel the inference that defendant Elayer could not have been negligent because Broadmoor was so slick. Watson v. Landvatter, 517 S.W.2d 117, 122[8] (Mo.banc 1975); Biener v. St. Louis Pub. Sv. Co., 160 S.W.2d 780, 785[6] (Mo.App.1942). There is. no merit in this point.

Finally, defendant Elayer argues at length that the plaintiff Laney Deskin must be held contributorily negligent as a matter of law. We must credit defendant Elayer’s counsel with an industrious effort to demonstrate the merit of this point, but it would serve no useful purpose to set the argument out at length and consider the reasonable inferences which might have been drawn from the evidence recited. All the witnesses, parties and observers alike, were testifying to an event which occurred several years before the trial; their statements were composed of “estimates,” “best judgments” and “best recollections.” It is sufficient to say that extrapolations based on such evidence cannot convict the plaintiff of contributory negligence as a matter of law. Zumault v. Wabash R. Co., 302 S.W.2d 861, 864 — 865[6] (Mo.1957); Smith v. Siercks, 277 S.W.2d 521, 525[13] (Mo.1955); Johnson v. Bush, 418 S.W.2d 601, 605[5] (Mo.App.1967).

We conclude there was no error materially affecting the merits of the action in any respect argued here; accordingly, the judgment is in all respects affirmed.

FLANIGAN, C. J., and BILLINGS, MAUS, GREENE and PREWITT, JJ., concur.

TITUS, J., dissents and joins in separate dissenting opinion of HOGAN, J.

HOGAN, Judge,

dissenting.

I dissent, respectfully but vigorously. To my mind the court has been taken with a seizure of very doubtful omniscience in deciding how the jury “surely must have understood” the charge, and I will try, very briefly, to state why I think so.

This action is not complicated, in a legal sense, but the casualty involved three automobiles, three drivers and two collisions, which is to say. there was a good deal of motion to be sorted out mentally by the triers of fact. Although counsel is not specific, plaintiffs apparently chose the method of submission suggested and illustrated by present MAI 35.03, which I take to be appropriate when there are multiple defendants and several separate negligent acts are submitted in different instructions. See: O’Dell v. Custom Builders Corp., 560 S.W.2d 862, 873-874[11] (Mo.banc 1978). One of the cardinal principles of the MAI is that the fact issues should be submitted briefly and accurately, Stemme v. Siedhoff, 427 S.W.2d 461, 466[8] (Mo.1968), and the jury should be advised of defendants’ duty or breach of that duty in concise and unambiguous words and phrases which do not require further classification if that is possible. Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 27[13][14] (Mo.banc 1968). It is certain that the format suggested by MAI 35.03 requires that the parties be singled out and identified in the verdict-directors, Cash v. Bolle, 423 S.W.2d 743, 744-745 (Mo.banc 1968), and I have the view that the negligent acts relied on should be as carefully isolated and spelled out. Plaintiffs’ contention that they were simply following the requirements of the MAI overlooks that it is they who undertook to modify MAI 17.13 in order to submit the multiple negligent acts hypothesized in Instructions 2 and 3. Inasmuch as the modification is plaintiffs, it is they who have the burden to make it perfectly clear no prejudice resulted. Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259[3] (Mo.banc 1967); Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 262 (Mo.1973).

I agree that we are entitled to consider how the instructions would be understood by a jury of reasonably intelligent men and women, but the converse is also true — the language of instructions must be unambiguous to such a jury, Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712, 716[6, 7] (Mo.App.1974); R-Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 639[10] (Mo.App.1970), and I take it defendant Brewer’s claim of error should be assessed by considering the whole charge. Jefferson v. Biggar, 416 S.W.2d 933, 939[5] (Mo.1967).

The petition alleged injury as a direct result of the defendants’ joint and concurring negligence and the plaintiffs’ submission was framed so as to permit recovery if: a) defendant Elayer violated the stop sign on Broadmoor, or b) defendant Brewer failed to act to avoid collision with defendant Elayer after danger of collision became apparent, or c) defendant Brewer was on the wrong side of the road at the time of “the collision.” To elaborate: as against defendant Elayer, plaintiffs submitted violation of the signal (“stop sign”) on Broadmoor as prescribed by MAI 17.01, and added the third option provided by MAI 19.01. instructions 3 and 4, already fully set out, submitted as a multiple negligent act [MAI 17.02] defendant Brewer’s: a) failure to swerve after collision with Elayer became apparent [MAI 17.04] or b) being on the wrong side of the road at the time of the [unspecified] collision [MAI 17.13, modified]. Instructions 3 and 4 were also modified by adding the third option provided by MAI 19.01. It should also be noted that defendant Elayer submitted plaintiff Laney Deskin’s contributory negligence [MAI 32.-01 and 17.04, modified] in failing to act after danger of collision [with whom again unspecified] became apparent. Further, the issue of damages was submitted, as to plaintiff Laney Deskin, by MAI 4.01,. which refers to a single “occurrence.” Such use of MAI 4.01 is apparently contemplated by MAI 35.03 because the whole casualty is regarded as a single transaction. O’Dell v. Custom Builders Corp., supra, 560 S.W.2d at 873.

Remembering that the plaintiffs’ evidence established the occurrence of two collisions, both of which were the subject of a good deal of testimony, we may then suppose that a reasonably intelligent jury, reading the instructions as given, would first read Instructions 2 and 3, referring to “collision with the Elayer automobile” and simultaneously to “the” collision, would have noted that Instruction 7 simply refers to a collision, and finally would have read Instruction 10, which refers to a single occurrence. My colleagues hold that any reasonable jury would understand in this context that the second alternative submission in Instructions 3 and 4 referred to another collision, 220 feet south of the first, with another vehicle. I do not believe that, nor do I believe that ambiguous and confusing instructions can be cured by oral argument. Wills v. Townes Cadillac-Oldsmobile, Inc., supra, 490 S.W.2d at 262, Neither do I understand that the rule of deference stated in Edie v. Carlin, 369 S.W.2d 610[613-614] (Mo.App.1963), extends to prejudicial or unauthorized modifications of the MAI. Chappell v. City of Springfield, 423 S.W.2d 810, 811[2] (Mo.1968). I therefore dissent.

      . The witness seems to have had plaintiffs’ Exhibit 7 before him.

      . Offered in evidence as plaintiffs’ Exhibit 9.


author: CRIST, Judge.

text:
    In re The Marriage of James Jensen DePEW, Petitioner, and Nancy Lee Fultz, formerly Nancy Lee DePew, Joint Petitioner.
    No. 41214.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Charles W. Niedner, St. Charles, for petitioner.
    Leroy M. Steiner, St. Louis, for joint petitioner.
   CRIST, Judge.

Modification of child support.

The marriage of the parties was dissolved in 1975. Mother was awarded custody and child support for the children of the marriage. Mother sought an increase in child support in the court below; father sought a decrease. The court increased child support payments from $25.00 per week per child to $45.00 per week per child for each of three children. Father appeals. We affirm.

Father contends there was a lack of substantial evidence to support findings of generally increased needs and unusual medical, dental, and orthodontic expenses of the children. He also contends the findings of unusual medical and dental expenses and increased earnings on his part are against the weight of the evidence. Finally, he contends the court below erroneously applied the law in increasing child support on the basis that mother was awarded insufficient child support at the time of the dissolution.

A minor child is legally entitled to reasonable support, both mental and physical, from each of his or her parents. The paramount concern of a court in all child support cases is the need of the child. The questions of the amount of this required support and the ability of each parent to provide such support rests primarily with the trial court. We defer to the court below.

There was evidence that the children were older and had increased living expenses. Mother testified to increase in food, clothing, medical, dental, recreational, and other expenses. There was evidence that the cost of living had increased, and that father had increased income. If true, these facts support the increased award. In re Marriage of Engelhardt, 552 S.W.2d 356, 358 (Mo.App.1977). The order of the court below gives no indication that it was based on a finding of insufficient child support awarded at the time of the dissolution.

The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). An extended opinion would have no precedential value.

The judgment of the court below is affirmed in accordance with Rule 84.16(b).

DOWD, P. J., and REINHARD, J., concur.


author: CLEMENS, Senior Judge.

text:
    Will R. EASTES, Appellant/Respondent, v. Margaret Jeanne EASTES, Respondent/Appellant.
    Nos. 39895, 39901.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.

      Hannegan, Knight, Kennedy, Schoenberg & Weber, Inc., Claude C. Knight, St. Charles, for appellant/respondent.
    W. Morris Taylor, Taylor, Schumaier & Suddarth, St. Louis, for respondent/appellant.
   CLEMENS, Senior Judge.

Consolidated cross-appeals from a modification order. Husband-father (hereafter plaintiff) moved for a change of custody of the parties’ two children and has appealed the denial thereof. Wife-mother (hereafter defendant) sought an increase in child-support allowances which the court denied and she has appealed. She also sought an allowance for attorney’s fees, granted only in part, and both parties have appealed that part of the order.

Plaintiff contends the order denying him custody was against the weight of the evidence since he had remarried and had a proper home for the children, that defendant had failed to provide moral and religious training for the children and had exposed them to immoral conduct by allowing her boyfriend to stay in her home overnight. Defendant contends on her appeal that the refusal to increase her support payments was against the weight of the evidence because the children’s expenses had increased. She also contends the $1,000 for attorney’s fees was inadequate.

We first consider plaintiff’s contention the court erred in refusing to grant him primary child custody. Plaintiff and defendant were divorced in March of 1973. He was then an electrical engineer and defendant was completing her last semester in college. She was granted custody of their eight-year-old daughter and four-year-old son, subject to visitation and temporary custody by plaintiff. He then agreed to pay $30 a week support for each child. In July of 1974 the court modified the decree to permit defendant to remove the children from Missouri, and plaintiff was granted custody during summers and on alternate holidays. Defendant then moved with the children to Indiana, taught high school and the children attended public school. At first she lived with her mother but later rented a home where each child had its own bedroom. Until a year before trial defendant had allowed Ward Beckley, to whom she was engaged to be married, to spend some nights at her home, sometimes on a couch and sometimes in her bedroom. The children were aware of Beckley’s overnight stays and knew he had slept in defendant’s bedroom.

When the children visited plaintiff and his new wife during the summer of 1975 plaintiff learned of defendant’s relationship with Beckley. He phoned and requested her to stop allowing Beckley to stay at her home overnight with the children present. Defendant told him he had no right to make such a request. Plaintiff secretly recorded this conversation on tape and it was heard at trial.

Plaintiff then filed the present motion to modify asking for custody. In turn defendant moved to modify the divorce decree to increase child support.

Evidence at trial showed plaintiff had remarried and was living with his new wife in a four-bedroom home in St. Charles. They attended church regularly and had reputations of high moral character. Plaintiff was an electrical engineer; his new wife was attending college and testified she was fond of the children. The children said they loved their father and were treated well by him and his new wife; they had many friends in St. Charles, and had done well in school there.

Defendant testified she had become a high school teachér. She and the children lived in a three-bedroom home on the next street from her mother, who helped with the children. She did not take the children to church because they did not want to go, and they felt their father had forced it on them. The children were still doing well in school.

Defendant testified she was engaged to Beckley and was planning soon to marry him. She admitted that until a year .ago— but not since then — she had at times allowed Beckley. to stay in her home overnight, but she insisted the children were unaware of a sexual relationship. She never went into the bedroom in front of them, and they had never been seen in any sexual embrace. Both children liked Beckley, and he had been the only man in their new home.

A psychiatrist testified for defendant saying he had seen her 30 to 35 times before the divorce and had found nothing to indicate she was an unfit mother. He had also seen plaintiff four or five times and believed him to be immature, self-centered and unable to understand the children’s problems. The doctor also testified he believed the children’s knowledge of Beckley’s former overnight stays had had no harmful effect on them. This was contradicted by two ministers testifying for plaintiff, who felt such conduct would harm the children’s morals.

The parties’ seven-year-old son testified he knew Beckley had spent the night there and had seen him with defendant in the bedroom. He testified he would rather live with his mother. The twelve-year-old daughter stated she had seen her mother and Beckley together in the bedroom once, and both were wearing pajamas. She did not believe they were having sexual relations and said Beckley was no longer spending nights at their home. She preferred to attend school in Indiana and spend summers in St. Charles.

Not every change in circumstances calls for a transfer of child custody, only those requiring modification to serve the child’s best interests. Blair v. Blair, 505 S.W.2d 444(3) (Mo.App.1974). And there is a rebuttable presumption the custodian remains suitable. In re Marriage of Britton, 574 S.W.2d 475(1-3) (Mo.App.1978). In bur review we defer to the trial court’s judgment unless it conflicts with the weight of the evidence and discloses a manifest abuse of discretion. Murphy v. Carron, 536 S.W.2d 30 (Mo.1976); E.C.S. v. J.D.L., 529 S.W.2d 423(1)(Mo.App.1975).

As to plaintiff’s claim that he had remarried and was able to provide the children a good home, this factor alone will not support a change in custody. Under Section 452.410, RSMo.1969, the changed circumstances must be those of the child or the custodian, and not the noncustodial party. Evidence about plaintiff’s home is “pertinent only in determining whether that home constitutes an acceptable repository for the child and not as evidence supporting any need for change.” Klaus v. Klaus, 509 S.W.2d 479(1-5) (Mo.App.1974).

Plaintiff further contends defendant’s failure to attend church with the children, thereby failing to provide moral or religious guidance, is a change of circumstances. However, as we noted, in Klaus, supra (12): “Moral training is not dependent on formal religious services nor do we know of any rule of law that the absence of formal religious training warrants a change of custody.” This factor alone does not require a transfer of custody.

Plaintiff also relies on evidence of defendant’s relationship with Beckley to satisfy the statutory standard. While he concedes the mere existence of extramarital sexual conduct, without an injurious effect on the child, does not render a parent an unfit custodian (In re Marriage of J. H. M., 544 S.W.2d 582(2) (Mo.App.1976) he argues that defendant’s conduct has injured the children’s morals. At trial the children testified they “saw nothing wrong” in their mother’s relationship with Beckley. Plaintiff argues that this testimony shows the children are no longer able to distinguish between their mother’s relationship with Beckley and his own relationship with his new wife.

We find this testimony fails to point convincingly to the conclusion that defendant’s relationship with Beckley has had an injurious effect on the children. Neither child was aware defendant and Beckley were having sexual relations. Defendant testified she was planning to marry Beckley soon and the court was entitled to take this into consideration. And, the court had the opinion of the psychiatrist that the children’s knowledge of Beckley’s overnight stays, even in defendant’s bedroom, would not harm them. We hold the trial court did not abuse its discretion in finding no harmful effect upon the children constituting “changed circumstances” within the meaning of Section 452.410. Finally, the court heard each child express a desire to remain in the mother’s primary custody. While this preference is not determinative, the court was obliged to consider it. Kanady v. Kanady, 527 S.W.2d 704(4, 5) (Mo.App.1975).

Having reviewed the evidence before the trial court we cannot find it abused its discretion or erroneously applied the law. The judgment denying plaintiff’s motion to modify child custody provisions of the decree will be affirmed. We now consider the monetary issues.

As to child support and attorney fee allowances: Plaintiff had net monthly earnings of $1,172. He had monthly household expenses, of $793, personal expenses of $533, and expenses of $55 for the children. As a teacher defendant had net monthly earnings of $494. She had monthly household expenses of $316, children’s expenses of $405 and personal expenses of $150, for a total of $871 a month. This is a classic example of a divorced family not having enough income to maintain separate households. There was no way the trial court could fully meet the parties’ expectations and had to modify the desires of each.

Defendant assigns error to the trial court’s order refusing to increase child support payments, claiming the evidence demonstrated that the children’s expenses had increased due to growth, education, medical needs and inflationary trends. Sec. 452.370, RSMo.1978 provides that “the provisions of any decree respecting maintenance or support may be modified only . upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” Changed circumstances may exist due to the growth of the children or to the dollar’s declining value. Plattner v. Plattner, 567 S.W.2d 139(8) (Mo.App.1970). But these factors do not call for a modification unless they make the prior support order unreasonable. Section 452.-370 “was enacted to implement a stricter standard for modification, thereby discouraging repeated and insubstantial motions for modification.” Plattner, supra (1-3). As with the custody determination, the proceedings are examined only for abuse of discretion or misapplication of the law. Murphy, supra. The evidence did not clearly show plaintiff was better able than defendant to pay the increased expenses. Furthermore, defendant’s monthly expenses for the children experienced a sharp and unexplained increase — from $291 to $405— from August 1975 to April 1976. The trial court was free to judge the credibility of her expense testimony and we “defer to the trial court’s vantage with respect to the credibility of the witnesses.” Seelig v. Seelig, 540 S.W.2d 142(3-4) (Mo.App.1976). If the trial court did not fully believe defendant’s expense testimony plaintiff would be paying almost all the children’s expenses except their share of household expenses, and the award would remain adequate. Also, during the summer months defendant receives one-half of the support award although many of the expenses are borne by plaintiff. The record does not show the court manifestly erred in finding the original award was reasonable.

As to the $1,000 attorney fee allowance, plaintiff claims he was forced to seek modification as to custody because of defendant’s immoral conduct and therefore it was error to allow her any attorney’s fees. Defendant upholds that ruling because she was financially unable to pay her attorney’s fees and plaintiff was better able to do so. Plaintiff’s argument has little merit, especially since we have found he failed to demonstrate injury to the children’s moral character. We uphold the judgment against plaintiff for $1,000 attorney’s fees. Defendant’s attorney testified he had spent 62 hours on the case, charging $50 an hour, for a total of $3,100. Defendant had paid him $2,000, leaving $1,100 unpaid. In determining defendant’s contention that the $1,000 allowance was inadequate, we are mindful of Murphy v. Carron, supra, and Larison v. Larison, 524 S.W.2d 159(11-13) (Mo.App.1975). A trial court need not award the full amount of attorney’s fees but may award a reasonable amount considering the comparative financial positions of both parties. Brueggemann v. Brueggemann, 551 S.W.2d 853(11— 12) (Mo.App.1977). As between the parties, plaintiff was not in a substantially better position to pay the attorney’s fees than was defendant.

Judgment affirmed.

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


author: DOWD, Presiding Judge.

text:
    Richard A. HERRING, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40655.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.

      Gail N. Gaus, Clayton, for movant-appel-lant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Robert Presson, Asst. Attys. Gen., Jefferson City, for respondent.
   DOWD, Presiding Judge.

Movant appeals the denial of his motion under Rule 27.26 to set aside his pleas of guilty and subsequent convictions.

Movant had pleaded guilty to charges of first degree robbery, burglary second degree, and stealing. He was sentenced to eight years for the robbery with a concurrent eight year sentence on the burglary charge and a concurrent five year sentence on the stealing charge. Approximately eight months after sentencing movant filed a Rule 27.26 motion to vacate the sentence on the ground that his pleas had been entered involuntarily as a consequence of ineffective assistance of counsel. After a hearing, the motion was denied.

The single issue presented by movant on this appeal is whether the knowing and voluntary nature of movant’s pleas were rendered involuntary because of alleged ineffectiveness of movant’s counsel.

It is not within the province of the appellate court to weigh evidence presented at the evidentiary hearing nor to judge the credibility of the witnesses. These tasks are more properly left to the trial court and this court accepts as true its findings as to these matters. Baysinger v. State, 552 S.W.2d 359, 359 (Mo.App.1977). It is this court’s duty to overrule the trial court’s denial of the motion only if such denial was clearly erroneous. Keller v. State, 566 S.W.2d 260, 263 (Mo.App.1978); Rule 27.-26(j).

In his brief, movant alleges that he entered pleas of guilty only because he believed that the maximum sentence he could receive was between four and six years with a good possibility of probation. Mov-ant contends that his counsel, Mr. Turner, led him to this belief without first adequately investigating the case.

At the hearing on the motion, Mr. Turner testified that he reviewed in detail all police reports on the cases against the movant. Mr. Turner stated that after reviewing these reports he came to the conclusion that the State had strong cases against the movant. Mr. Turner also learned the strength of the cases against movant by cross-examining the State’s witnesses at the preliminary hearing. The movant did not provide Mr. Turner with the names of any witnesses who could testify for him other than movant’s wife. Movant did not claim in his motion that there were other witnesses available, and counsel is not under a duty to search out witnesses where he has no notice that such witnesses are available. Morris v. State, 547 S.W.2d 827, 829 (Mo.App.1977).

Mr. Turner advised movant that because the State appeared to have such strong evidence against him and because movant had three prior felony convictions it would be in his best interest to plead guilty. Mr. Turner testified that he had several conversations with movant concerning his proposed pleas during which he informed movant that the prosecuting attorney would recommend an eight year sentence on the pleas. Mr. Turner stated that he told movant that he would attempt to persuade the judge to lighten the sentence. Mr. Turner testified that he did not make any promises to movant and, in fact, admonished him that only the judge could make the final determination of his sentence and that at no time did he promise movant that he would be placed on probation.

Movant’s own testimony at the hearing on his motion indicated that he recalled hearing the judge state, when receiving movant’s pleas, that the court would do the sentencing and that in doing so it would not be bound by the state’s recommendations. Movant also testified that he recalled that the court reviewed the sentence alternatives with him then asked him whether his pleas were entered voluntarily.

The trial court found the evidence sufficient to deny movant’s Rule 27.26 motion. The court found that movant’s pleas of guilty were made pursuant to the understanding that the judge would pronounce sentence and that such pleas were freely and intelligently given. Based on the record, we do not find this ruling to be erroneous.

The judgment is affirmed.

CRIST and REINHARD, JJ., concur.


author: PREWITT, Judge.

text:
    Wanda PARRETT, Executrix of the Estate of Leona M. Loughridge, Deceased, Plaintiff-Appellant, v. INTEGON LIFE INSURANCE COMPANY, Defendant-Respondent.
    No. 11416.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 16, 1979.

      Harold L. Henry and Don M. Henry, Henry, Henry & Henry, West Plains, for plaintiff-appellant.
    Kenneth A. Wagoner, Moore & Brill, West Plains, for defendant-respondent.
   PREWITT, Judge.

Plaintiff Leona M. Loughridge appealed from a dismissal of her petition. While this appeal was pending, plaintiff died and her executrix was substituted for her. Plaintiff’s action sought money damages for nonpayment of a life insurance policy. She requested trial by jury, which was denied for her failure to comply with Shannon County Circuit Court Rule 6. It provided as follows:

“6. IN ALL CIVIL CASES FOR TRIAL BEFORE A JURY, it will be necessary to post a good and sufficient bond for costs or deposit a minimum of $100.00 with the Clerk in addition to the regular filing fee at least five days before the Jury is to be called.”

Before calling a jury, the circuit clerk requested a $500 bond or $100 in cash. Plaintiff did not post either. At the time set for the trial, plaintiff appeared and again requested a jury and contended that Rule 6 was invalid as being in violation of Rule 69.01, V.A.M.R. Plaintiff refused to proceed to trial without a jury and the court dismissed plaintiff’s petition.

The question before us is the justification for refusing to call a jury for noncompliance with this rule. Noncompliance did not prevent plaintiff from proceeding with her suit but did prevent her from being allowed a jury trial. The effect is a compulsory waiver of jury trial, unless the bond or deposit is made. Section 510.190, RSMo 1978 and Rule 69.01, V.A.M.R., provide for waiver of a jury trial. Neither require any deposit as a condition to receiving a trial by jury. Circuit judges may make rules “not inconsistent with the rules of the supreme court”. Mo.Const. art. V, § 15.1. Rule 50.01, V.A.M.R., allows trial courts to make rules “if the rules are not inconsistent with the rules of this Court [Supreme Court of Mo.], the Constitution or statutory law in force.” Trial courts cannot make and enforce a rule that would deprive a party of a right given him by law or that grants him that right upon terms more onerous than fixed by law. Wade v. Wade, 395 S.W.2d 515, 518 (Mo.App.1965).

In Meadowbrook Country Club v. Davis, 421 S.W.2d 769 (Mo. banc 1967), a circuit court rule was held invalid. That rule required a party requesting a jury trial of an appeal from the magistrate or municipal courts to file a written request for a jury trial and deposit $15.00 with the circuit clerk within 30 days of the filing of the transcript on appeal. The rule provided that failure to do so was a waiver of trial by jury. The supreme court held that the methods of jury waiver prescribed by § 510.190, RSMo 1959 and Rule 69.01(b), V.A.M.R., were exclusive under the facts there presented, and the local rule was held to be in contravention of that statutory-section and supreme court rule, as imposing terms more onerous than there required.

Defendant contends that no constitutional question may be raised by plaintiff because it was not presented at the earliest possible time. While recognizing the existence of the constitutional right to a jury trial, the court in Meadowbrook Country Club expressly did not decide the case on that basis. 421 S.W.2d at 771-772. Also see the prior opinion transferring the case to the St. Louis Court of Appeals. Meadowbrook Country Club v. Davis, 384 S.W.2d 611 (Mo.1964). Our opinion here is not based upon any constitutional consideration.

Defendant and the trial court felt that Rule 6 was justified as a deposit for security for costs. Plaintiff claimed to be a resident of Missouri. Rule 77.02, V.A.M.R., provides for security for costs by resident claimants. Under that rule, if the court is “satisfied” that certain conditions exist, it can require security for the payment of the costs. No such finding was required by Rule 6 or made here. Rule 6 makes an absolute requirement of the bond or deposit. Nor does Rule 6 have any relationship to the jury costs that may be assessed in the action. Section 494.160, RSMo 1978, provides that when a jury serves in a civil case “there shall be taxed against the unsuccessful party and collected as costs the sum of twelve dollars as jury fees”.

Costs did not exist at common law, and their allowance is a creature of statute. Heiden v. General Motors Corporation, 567 S.W.2d 401, 403 (Mo.App.1978); McClue v. Epsten, 492 S.W.2d 97, 98 (Mo.App.1973). Statutes allowing taxation of costs are strictly construed. Dorn-Chrysler Plymouth, Inc. v. Roderique, 487 S.W.2d 48, 49 (Mo.App.1972). No item is taxable as costs unless specifically so provided by statute. McClue v. Epsten, supra, 492 S.W.2d at 98. In Dorn-Chrysler Plymouth, Inc., the court found no statutory authority for taxing civil jury costs other than § 494.160, RSMo 1969. It held improper an order taxing $147.49 for juiy fees and mileage where the case was settled on the day of the trial before a jury was sworn.

Defendant also contends that relief was available to plaintiff under Rule 77.04, V.A.M.R., by seeking authorization to sue as a poor person. She did not do this, and we do not know if she would have qualified, although the record indicates she may have. However, if Rule 6 is invalid, a party should not have to claim to be a poor person to avoid it. Nor should one, even with the means to post such a bond or cash, have to do so to have a jury trial; unless the rule requiring it bears a reasonable relationship to taxable costs created by trial by jury, and there is the necessary finding to require security for costs as provided in Rule 77.02, V.A.M.R.

We believe that Rule 6, as here applied by the court, forced a jury waiver upon plaintiff contrary to the statutes and supreme court rules of Missouri and cannot be justified on the basis of a security deposit. As with the rule held invalid in Meadowbrook Country Club v. Davis, supra, it imposes terms more onerous than those statutes and rules. We find that Rule 6 is invalid as it is inconsistent with § 510.190, RSMo 1978 and Rule 69.01(b), V.A.M.R.

We are mindful of the financial problems that many counties in this state suffer and recognize that jury fees and costs can create a substantial burden upon these counties. However, we are bound by the statutes and the supreme court rules and decisions. The problem cannot be corrected by local court rule inconsistent with Missouri statutes and supreme court rules.

The judgment of dismissal is reversed and the cause remanded for reinstatement on the trial court’s docket.

Defendant’s motion to dismiss the appeal, which was taken with the case, is overruled. We believe that plaintiff’s Point I, upon which we decide this appeal, sufficiently alleged “wherein and why” the trial court erred. Rule 84.04(d), V.A.M.R.

All concur, except HOGAN, J., recused.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Connie T. WISE, Defendant-Appellant.
    No. 11245.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 19, 1979.
    Galen B. Thomas, Springfield, for plaintiff-respondent.
    Lloyd R. Henley, Springfield, for defendant-appellant.
   PER CURIAM:

Defendant was charged under § 302.321, Laws 1972, p. 944, with the misdemeanor of driving a motor vehicle upon the highways of this state while his “operating privileges had been revoked by the Director of Revenue . . . having been five times previously convicted of driving while license revoked.” Defendant waived a jury, was court-tried, found guilty and “sentenced to a term of ninety (90) days in the Greene County jail and a fine or (sic) $100.00.” Defendant appealed.

A corporal of the Missouri State Highway Patrol, on the date in question, was stopping vehicles at an intersection of public streets in Springfield “checking driver’s license and vehicle license and vehicle defects,” when he observed defendant driving “an older model truck . . . with a 1974 expired vehicle license on it.” Defendant admitted to the trooper “he didn’t have any driver’s license” and a driver’s license check conducted via radio confirmed the confession. At trial, defendant also confessed he had no license but sought the court’s sympathy by asseverating this was “a one-time stint at driving, in order to help his brother, who ‘didn’t have a driver’s license either’ and who suffered from serious medical problems, find ... a ‘place to stay.’ ”

On appeal, defendant’s first point relied on, in substance, is that his conviction should be overturned because “there was no direct or other sufficient evidence that defendant was driving upon a highway of this state as required by the statute.” As above noted, the corporal testified he observed that the violation occurred while defendant was driving at an intersection of public streets in Springfield. Chapter 304 RSMo 1969, relating to “Traffic Regulations”, defines “highway” (§ 304.025) to “mean any public road or thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in a municipality.” Defendant’s first point is denied.

In his second point defendant says .the finding of guilt was unwarranted because the driving involved was one of necessity or a humanitarian action, the benefits of which outweighed the harm, or, at least, constituted a mitigating circumstance which the trial court should have considered.

The cases and authorities cited in support of the first segment of defendant’s second point [United States v. Richardson, 588 F.2d 1235 (9th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); State v. Ragland, 4 Conn.Cir. 424, 233 A.2d 698 (1967); Frasher v. State, 8 Md.App. 439, 260 A.2d 656 (1970); State v. Johnson, 289 Minn. 196, 183 N.W.2d 541, 45 A.L.R.3d 1432 (1971); LaFave & Scott, Handbook on Criminal Law (1972)] do not support his claim that the driving in this case was one of necessity or an act performed as a required humanitarian action.

There is nothing in the record to indicate that the trial judge did not consider all mitigating circumstances, if any, presented in the cause and a sentence within the range authorized by statute is not subject to attack as being excessive. State v. Phillips, 480 S.W.2d 836, 837[4] (Mo.1972); State v. Motley, 546 S.W.2d 435, 438[5] (Mo.App.1976).

Judgment affirmed.

All concur.


author: BILLINGS, Presiding Judge.

text:
    Robert BIRD and Mrs. Hunter L. Bird, Plaintiffs-Respondents, v. Glenn M. HILLHOUSE, Sr., Martin Stallings and Hugh Hunter Byrd, Directors Mississippi County Levee District No. 3, Defendants-Appellants.
    No. 11073.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 20, 1979.

      Jeffrey C. Vaughan, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for plaintiffs-respondents.
    Anthony J. Heckemeyer, Sikeston, for defendants-appellants.
   BILLINGS, Presiding Judge.

Plaintiffs brought this action seeking, inter alia, a mandatory injunction requiring defendants to replace a bridge structure that had extended across a drainage ditch under the defendants’ control and removed by defendants. The trial court entered a judgment in favor of plaintiffs and against defendants on Counts I and II of plaintiffs’ petition. The court issued a mandatory injunction requiring the defendants to build a bridge structure of like dimensions, materials and capacity at the location of the former bridge structure. We reverse.

In April 1931, the United States of America, acting through the Secretary of the Army, began condemnation proceedings in the United States District Court, Eastern District of Missouri in connection with the construction of the Birds Point-New Madrid Setback Levee and Intercepting Drainage Ditch. The construction of the intercepting drainage ditch required the dividing of certain farmlands held by the plaintiffs’ predecessor in title. After the completion of the ditch, approximately one hundred twenty-two cultivatable acres of plaintiffs’ farm remained on the north side of the ditch, while twenty-seven cultivatable acres remained on the • south side of the ditch.

During the construction of this intercepting drainage ditch, the United States Army Corps of Engineers built several wooden bridge structures across this ditch that remained after the completion of the ditch. Apparently, plaintiffs’ predecessor in title and plaintiffs used one of these wooden bridge structures, located on their farmlands, to reach their twenty-seven cultivatable acres on the south side of the ditch. In 1955, the United States quitclaimed its interest in this ditch to Levee District No. 3 of Mississippi County. Plaintiffs continued their use of this bridge until August 1975.

In August 1975, defendants were allowing a clean-up and dragline operation of this drainage ditch under a government funded program. Upon reaching the wooden bridge structure, defendants decided to remove the wooden bridge structure and later placed three culverts at the former bridge site. These culverts gave plaintiffs’ tenant a crossing to the cultivatable acres on the south side of the ditch. Several months after the culverts had been placed in the ditch, they were removed by defendants due to complaints that the culverts slowed the movement of water during a heavy rain, which resulted in the flooding of upstream farmland.

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

Count I of plaintiffs’ petition contended that; (1) the removing of the wooden bridge structure violated the terms of a 1955 quitclaim deed from the United States of America to Levee District No. 3 of Mississippi County; and (2) the removing of the wooden bridge structure “amounts to a taking of plaintiff’s [sic] property by said Levee District without just compensation therefor as required by law.”

At trial, plaintiffs failed to introduce any substantial evidence that the removing of this wooden bridge structure was in violation of any terms contained in the quitclaim deed, that this quitclaim deed gave plaintiffs a right to enforce a violation of any “terms” in the deed, or that plaintiffs had a property right in the bridge structure.

Defendants introduced into evidence both the 1955 quitclaim deed and the October 1932 condemnation judgment. Pertinent to this action, the quitclaim deed stated that: “the United States of America acquired the necessary rights of way in fee by condemnation proceedings (and) does hereby remise, release and forever quitclaim unto party of the second part (Levee District No. 3) all right, title and interest ... to have and to hold the foregoing described premises with the appurtenances thereunto belonging unto the said party of the second part for so long as the party of the second part uses the lands herein conveyed for flood control purposes and maintains . . . the flood control structures thereon . . . .” (Emphasis added).

The “Findings and Final Judgment”, of the United States District Court, Eastern Division of Missouri, in the condemnation proceedings for the property required in the construction of this drainage ditch found, inter alia, that an award of $63.60 was “ . . . the full amount to which the said defendants (which included plaintiffs’ predecessor in title) are entitled for the land taken for a drainage system . and the damages caused thereby to the remainder of the tract . . . .” The court divested the defendants of “any and all right, title, interest and claim thereunder, of any name or nature, and that the said premises and the title thereto and the possession thereof shall be and the same are hereby vested in the United States of America and its assigns forever; . . . .”

These documents clearly establish that the plaintiffs had neither a property right in this wooden bridge structure, nor were they given any enforceable rights through the quitclaim deed.

Count II of plaintiffs’ petition contended that the defendants had breached an oral agreement to maintain a crossing for the plaintiffs’ benefit. Plaintiffs again failed to introduce substantial evidence to establish that a binding contract had been created with defendants. Plaintiffs produced no evidence to establish that this oral agreement was made in accord with controlling Missouri statutes, that the Superintendent acted with the requisite authority to contractually bind defendants, or that any consideration existed for the creating of this agreement.

Defendants introduced testimony from the Board of Directors and the Superintendent of Levee District No. 3 that the “replacing” of the bridge with another crossing was done as a favor to plaintiffs and not pursuant to any agreement.

The foregoing clearly illustrates that no substantial evidence was introduced by the plaintiffs and that the trial court’s judgment was against the weight of the evidence.

The judgment, therefore, is reversed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Wyatt DAVIS, Defendant-Appellant.
    No. 11150.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 20, 1979.
    John D. Ashcroft, Atty. Gen., Teresa Aloi Angle, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Briney, Welborn, Briney, Welborn & Spain, P. C., Bloomfield, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Wyatt Davis was convicted by a Butler County jury of receiving stolen property [§ 560.270, RSMo 1969] and his punishment fixed at 60 days in jail and a fine of $1,000. He contends the evidence failed to establish his knowledge that the property was stolen when he received the same and therefore the evidence is insufficient to support the jury’s verdict. We affirm.

The necessary elements of the offense of receiving stolen property are as follows: (a) the property must be received in some way from another person; (b) the property at the time of reception must be stolen property; (c) the receiver, at the time of the reception, must have guilty knowledge that it is stolen property; and, (d) the accused must have received the property with a fraudulent or criminal intent. State v. Inman, 578 S.W.2d 336 (Mo.App.1979). Defendant avers element (c) finds no support in the evidence and argues that his possession of the stolen goods cannot supply the element of guilty knowledge.

The rule is clear in this state that, while an unexplained possession of recently stolen property can give rise to an inference that the possessor is the thief [State v. Dobson, 303 S.W.2d 650 (Mo.1957)], an inference cannot be drawn that the possessor of stolen goods received the property from another [State v. Armstrong, 555 S.W.2d 640 (Mo.App.1977)] in a prosecution under § 560.270, RSMo 1969. “[T]he unexplained possession of property recently stolen does not give rise to the inference that the possessor is guilty of the offense of receiving stolen property from another under § 560.-270, RSMo 1969. State v. Magers, 452 S.W.2d 198, 200 (Mo.1970).” State v. Johnson, 580 S.W.2d 254, 259 (Mo. banc 1979).

Missouri decisions have held that the guilty knowledge, required in a case of receiving stolen property, requires knowledge on the part of the accused of the stolen character of the goods at the time he receives them. “This means actual knowledge must be proved and found, not mere negligence in failing to know, not what a reasonably prudent man might know or believe, not facts which would put a reasonably prudent man on guard, although of course the knowledge which defendant possessed may be shown by circumstances.” State v. Taylor, 422 S.W.2d 633, 636 (Mo.1968). However, as stated in State v. Simone, 416 S.W.2d 96 (Mo.1967): “It is the unusual situation when there is direct evidence of the intent of a person charged with a crime, and the requisite intent may and generally must be established by circumstantial evidence. [Citations omitted]. Also, ‘It is often difficult to make direct and positive proof of the accused’s knowledge the goods were stolen, and this element may be inferred from certain facts and circumstances.’ State v. Hicklin, 358 Mo. 1016, 218 S.W.2d 564, 565; State v. Ciarelli, Mo.App., 366 S.W.2d 63, 67.” 416 S.W.2d at 101. Thus, suspicious conduct, deceptive behavior, and false statements to officers can give rise to an inference of guilty knowledge by a defendant. State v. Eggleston, 27 S.W.2d 726 (Mo.App.1930).

With the foregoing principles to guide us, we recast the evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the state, disregarding contrary evidence and inferences. State v. Webb, 544 S.W.2d 53 (Mo.App.1976).

Mingo Job Corps Center is a United States Vocational and Educational facility, near Puxico, Missouri, that trains young men in various skills. Defendant had been employed at the Center as a resident advis- or and night watchman at least since September 1975. In his capacity as night watchman his duties included the caring for and the safekeeping of government property. Many items used at Mingo were obtained through the General Services Administration (GSA) and bore GSA numbers.

In February 1977 the Director of Mingo Job Corps Center, John Young, saw a post in the defendant’s yard which he recognized as one of a number of posts that had been specially treated and purchased for a camp project. Mr. Young notified county police officers and accompanied them to defendant’s house to question defendant about the post in defendant’s yard. Defendant first claimed he had purchased the post, and other building materials located at his home, from a retail lumber supplier and had a receipt evidencing such purchase. He could not produce the receipt and when one of the officers told him a check would be made with the named retail supplier, defendant then said he would “tell you the whole thing”. Defendant recanted his earlier story and stated he had bought a truck load of materials and tools in November 1976, from James Lee Taylor, described by officers as a known police character. Defendant pointed out and turned over to the officers the various items he said he bought from Taylor. These included the following property, all identified as Mingo property: cleaning compound, scouring powder, sleeping bag, Rockwell electric drill, a special design barbeque grill constructed at the job corps center for use in government parks and recreation sites in the area, 13 of the specially treated posts, 31 pieces of redwood lumber, 9 bundles of extra-thick wood shingles, 2 five-gallon cans, 2 fifty-five gallon barrels, four-foot ladder, - six-foot ladder, sixteen-foot aluminum extension ladder, 27 steel posts, and coils of electrical wiring. Several of the items had GSA numbers on them and one or more had “Mingo” printed on them. “Mingo” was also found on plywood which had been nailed to defendant’s garage.

At trial defendant testified that the specially treated posts, the redwood boards, and the shingles were purchased from Taylor. He said he did not know where the Rockwell drill came from and that the barbeque grill, the five-gallon cans, and the fifty-five gallon drums were there when he moved into the house. He said some young men from Mingo had done some painting on the house and brought the three ladders, cleaning compound and scouring powder. He did not know that the coils of electrical wiring were in the house and did not know that the plywood on. his garage had the word “Mingo” on it. He denied he had told the officers that each of these items were included in his purchase from Taylor.

From the foregoing facts and circumstances, the jury could reasonably infer that defendant was familiar with property owned and used at the job corps center and had knowledge of the marking and identification system used on government property. Several of the items carried a GSA number or the camp’s name, or was of a unique quality or character which obviously linked it to the job corps center. This, together with the large quantity of stolen items and the conflicting and contradictory statements by the defendant concerning his possession thereof, support an inference of guilty knowledge on the part of the defendant.

The judgment is affirmed.

All concur.

      . Two other electric drills, an electric jig saw, other electrical wiring, and a quantity of cigarettes and chewing gum, were included in the load purchased from Taylor, according to defendant, but were not identified as belonging to Mingo.