author: TURNAGE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lonnie Lee FRIEND, Defendant-Appellant.
    No. KCD 29379.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Gary E. Ravens, Marceline, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Lonnie Lee Friend was convicted of murder in the second degree, § 559.020, RSMo 1969, and sentenced to life imprisonment. On this appeal Lonnie contends the court erred in giving an instruction and in its refusal to declare a mistrial for failure of the State to produce two statements. Affirmed.

Lonnie does not challenge the sufficiency of the evidence. In July, 1976, three Friend brothers, Gary, Larry and Lonnie, together with Truman Atteberry, drove to a remote spot in Chariton County near the Chariton River. After they got out of the car, Truman stood at the passenger side and Lonnie stood at the front. Lonnie, Larry and Truman were intoxicated. Suddenly Lonnie drew a .22 caliber pistol, turned and shot Truman in the jaw. Truman was still standing when Larry then obtained the pistol from Lonnie and shot Truman in the head. The three brothers left the area and Truman’s body was found a few days later.

The motive for the killing developed by the evidence was the fear that Truman would tell the authorities of the involvement of Lonnie and Larry in a series of burglaries committed by the three.

Lonnie contends the court erred in giving Instruction 6 which was MAI-CR 6.06. The attack centers on Paragraph Second which read as follows:

Second, that the defendant or his brother, Larry Joe Friend, intended to cause serious bodily harm to Truman Lee Atteberry, and

Lonnie contends the Instruction should have used the phrase “take the life of” rather than the phrase “cause serious bodily harm to.” Lonnie contends an intent to kill is an essential element of murder in the second degree.

The Notes on Use following MAI-CR 6.06 state:

3. As to paragraph Second, where there is an intent to kill, an intent to do serious bodily harm is always present. Therefore, if there is any question as to whether the defendant intended to kill or whether he intended only serious bodily harm, the better course would be to submit only the intent to do serious bodily harm.

In State v. Wilson, 98 Mo. 440, 11 S.W. 985, 988 (1889) the court held the law will presume an intent to kill when an act is done which is malicious and manifestly dangerous to life and produces death, even though the intent was only to do great bodily harm.

There was sufficient evidence from which the jury could have found an intent to do great bodily harm and since death resulted, the law presumes an intent to kill. The Instruction correctly stated the law and followed the Notes on Use.

Lonnie next contends the court erred when it failed to grant a mistrial after cross examination of Sergeant Duck-worth of the Highway Patrol, a State’s witness, developed that the existence of two statements given by Lonnie was not revealed to counsel. In response to a motion for discovery filed pursuant to Rule 25.32, the State gave counsel the transcript of a taped statement given by Lonnie concerning the events surrounding the killing of Truman. In addition, Sergeant Duckworth stated he also took another tape recorded statement from Lonnie which concerned only burglaries and made no mention of the killing of Truman. A third conversation he had with Lonnie concerned only the identity of the person who had removed Truman’s billfold after the slaying. When the existence of these two statements was made known, counsel moved for a mistrial for failure of the State to make disclosure. No other relief was requested pursuant to Rule 25.45.

In State v. Dayton, 535 S.W.2d 469, 478 [15, 16] (Mo.App.1976) this court stated:

Whether prejudice results in a given case depends upon the nature of the charge, the evidence presented by the State, and the role the undisclosed testimony would likely have played.

As to the failure to produce evidence, in State v. Moten, 542 S.W.2d 317 (Mo.App.1976) this court held the question becomes whether or not the failure results in fundamental unfairness to the defendant.

Here the first statement related to burglaries and nothing in the record indicates it related in any manner to homicide. In any event, if counsel so desired he could have requested a continuance in order to require production of the statement so he could examine it and satisfy himself as to its contents. The other statement, involving only the question of the removal of the deceased’s wallet, likewise did not involve any details of the homicide.

In State v. Wendell, 547 S.W.2d 807, 817 [4] (Mo.App.1977) the court noted, “a mistrial is a drastic remedy to be invoked only in those rare circumstances where there is not any other method available for curing error occurring during the course of trial.” There is no showing that the undisclosed statements would or could have played any part in Lonnie’s defense. No effort is made to demonstrate prejudice. Lonnie simply contends the statements were not produced and he is, therefore, entitled to a mistrial. Until the remedies in Rule 25.45 were shown to be inadequate, the necessity of a mistrial could not possibly be demonstrated. There is no showing of abuse of discretion on the part of the court due to its failure to declare the drastic remedy of a mistrial. No unfairness is shown to result against Lonnie.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Terry L. CHRISTIAN, Appellant.
    No. KCD 29424.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    William F. Bauer, Acting Public Defender, Fifth Judicial Circuit of Missouri, St. Joseph, for appellant; Jere E. Lloyd, St. Joseph, assisted preparation of brief.
    No brief filed for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was tried and convicted of assaulting a police officer while the latter was engaged in discharging his official duties, a misdemeanor. Punishment was fixed at thirty days confinement in the Buchanan County Jail and payment of a $100.00 fine.

A brief narration of the apical facts follows: At approximately 3:30 A. M. on the morning of October 22, 1976, two members of the St. Joseph, Missouri, Police Department were en route to the apartment of Sheryl Christian, defendant’s estranged wife, in response to a “disturbance call”. Upon arrival they observed defendant exiting the apartment building and heard a woman yelling for them to stop the defendant. Defendant was approached by one of the officers and asked to stop and talk with him. Defendant refused to do so and kicked the officer. A struggle then ensued between defendant and the officer during which time defendant struck the officer several times. Defendant was eventually restrained and placed under arrest.

Defendant called his wife, Sheryl Christian, as a witness. Her testimony differed in some respects from that of the two police officers called by the state. For instance, defendant’s wife testified that she observed the altercation from her kitchen window and never saw defendant strike the officer. When defense counsel attempted to elicit from defendant’s wife that her father was a police officer and that she felt no animosity toward the police department an objection was lodged by the state which was sustained by the trial court. Defense counsel’s proffered theory being that it was admissible for the purpose of rehabilitating the witness. The trial court’s refusal to permit defense counsel to elicit the aforementioned testimony from defendant’s wife is the only point of error raised by defendant on appeal.

The only authority cited by defendant to support his single assertion of error consists of the following incomplete statement abstractly lifted from Wigmore on Evidence, Vol. VII, § 2034(3), page 344: “The mere assertion of any witness need not be believed, even though he is unimpeached in any manner, . . .”. The state (office of the prosecuting attorney) has been even more remiss as it bluntly informed this court by letter as follows: “This office does not intend to file a brief in the matter and asks that the court consider the appeal on appellant’s brief only.” Lacking assistance from any quarter, this court has had to rely upon its own research to dispose of the single point of error raised by defendant.

No attack upon Sheryl Christian’s credibility as a witness has been made at the time the controversial testimony was ruled inadmissible by the trial court. The existence of inconsistencies and contradictions between the testimony of defendant’s wife and that of the police officers called by the state was not the equivalent of an attack upon her credibility so as to open the door for her rehabilitation. Milan Bank v. Richmond, 235 Mo. 532, 139 S.W. 352 (1911), rev’d on other grounds. Defense counsel’s attempt to bolster her credibility was premature. As noted in Jones on Evidence, 6th Ed., Vol. 4, § 26.24, p. 230, “[u]ntil the credibility of his witness has been assailed, a party may not introduce evidence for the purpose of supporting the witness’ character or credibility.” Collaterally, evidence which is offered in support of a witness’ character or credibility before any impeaching evidence has been introduced is premature and properly excludable. State v. Cooper, 71 Mo. 436 (1880); and State v. Cullen, 506 S.W.2d 22 (Mo.App.1974).

Judgment affirmed.

All concur.


text:
    Thomas A. HART, Joseph W. Hart, Samatha Barbara Wellbrock, Laura Disselkoen, Lois Hart, and Sarah Andrews and Herbert C. Willbrand, as Administrator of the Estate of William S. Hamilton, Deceased, Plaintiffs-Appellants, v. Elva DICK, Defendant-Respondent.
    No. KCD 29440.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Scott O. Wright, Brown, Wright, Willb-rand & Simon, Columbia, for plaintiffs-appellants.
    Hampton Tisdale, Tisdale & Abele, Boon-ville, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Plaintiffs, as the heirs at law of William S. Hamilton, filed an ejectment suit against Elva Dick. Elva responded with a counterclaim in which she requested specific performance of an oral contract for the purchase of the land involved. The court found against the plaintiffs on their action for ejectment and in favor of Elva on her counterclaim and decreed specific performance of the contract for sale.

On this appeal the plaintiffs contend the claim for specific performance is barred by the statute of limitations because such claim was not brought within ten years from the date the deed was to have been delivered. Affirmed.

The land in dispute was owned by Wathe-na H. Long. On her death title vested in her brother, William S. Hamilton, and a sister. The sister later conveyed her one-half interest to Hamilton so that Hamilton eventually obtained complete ownership. Wathena died in 1954, and in 1958 Hamilton, a lawyer and resident of Kentucky, visited Cooper County in connection with the administration of her estate. While in Missouri, Hamilton became acquainted with Herman Dick and his wife, Elva. During this visit Hamilton entered into an oral agreement with Herman to sell him the land for $2,500. The deed was to be delivered after Wathena’s estate was closed. Under this agreement Herman was to take possession of the land, farm it, pay the taxes, and consider and treat it as his own until the deed was delivered.

After Hamilton returned to Kentucky he wrote Herman and his wife, Elva, a series of letters. The letters confirmed the oral agreement and authorized Herman to use the land as if he already had a deed. Herman entered into possession and later had a banker write Hamilton that the purchase price was available and would be paid as soon as merchantable title was delivered.

In December, 1961, Hamilton wrote Herman that Wathena’s estate had been finally wound up, the order of final distribution entered and title vested solely in him. Herman also wrote, “I will write you later about making my deed to you. In the meantime, use the land as your own. At first you told me you wanted the deed made to you and your son. Later you had changed your mind. You might tell me now to whom you want the deed made when I can get around to making it. . . ”

Plaintiffs did not dispute the existence of the contract of sale or the fact that Herman and his wife took possession of the land in December, 1959, and remained in possession until the present suit was filed on October 30,1974. By the time suit was filed, Hamilton and Hermán Dick had both died. It was further undisputed that Herman had paid all taxes on the land during the time he was in possession and had spent $4,125.20 for improvements.

On this appeal plaintiffs contend the court erred in finding there was not a specified time for Hamilton to deliver the deed and for that reason erred in failing to find the right to specific performance was barred by § 516.110, RSMo 1969, the ten-year statute of limitations.

The essential fact plaintiffs sought to establish in the trial court was that Hamilton agreed to deliver a deed upon the closing of Wathena’s estate, and, therefore, the statute of limitations barred the action for specific performance because it was not filed within ten years after the estate was closed. The trial court made findings of fact and found there was no specific time fixed by the oral agreement or the written confirmations in the letters for Hamilton to deliver the deed. As a result, the court found the statute of limitations did not bar the granting of specific performance for the enforcement of the contract.

Plaintiffs" rely on the rule that a cause of action for breach of contract accrues and the right to sue arises on the failure to do the thing contracted for at the time and in the manner contracted. They contend the statute of limitations commences to run when the right to sue arises on an accrued cause of action.

Plaintiffs are correct in their statement of the rule that the right to sue arises “on the failure to do the thing contracted for at the time and in the manner contracted.” McCandlish v. Estate of Timberlake, 497 S.W.2d 191, 195[1-3] (Mo.App.1973). However, the trial court found no time was specified in the agreement for Hamilton to deliver the deed. If no exact time was specified then a cause of action did not accrue and the statute of limitations did not begin to run. Thus, the element which the plaintiffs were required to establish to defeat the claim of specific performance under the statute of limitations was an exact date on which it was agreed the deed would be delivered. Under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) the judgment of the trial court will not be disturbed if there is substantial evidence to support its finding. Here, there is substantial evidence from which the trial court could and did find that Hamilton did not make any agreement as to a specific time on which the deed would be delivered. Plaintiffs, of course, seek to rely on the evidence a deed would be delivered on the closing of Wathena’s estate. However, the letters from Hamilton subsequent to the closing indicate the agreement was still in existence but that a deed would not be delivered until he got around to it. The indefiniteness of the time plaintiffs seek to establish as the date for delivery of deed, coupled with the letters from Hamilton, supply sufficient evidentiary foundation for the trial court’s finding that no date was agreed upon for the delivery of the deed. That being true, specific performance was not barred by the statute of limitations.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    W. K. JENKINS, Plaintiff-Appellant, v. ARCHER-DANIELS-MIDLAND COMPANY et al., Defendants-Respondents.
    No. KCD 29506.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Edward J. Murphy, Butler, for plaintiff-appellant.
    Gerald D. McBeth, Nevada, Lynn K. Bal-lew, Harrisonville, for defendants-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment in court-tried in-terpleader action concerning right to proceeds of soybean crop.

Hoover and Hansen owed W. K. Jenkins $55,000 cash rent for farm property rented by them from Jenkins for the 1975 crop year. They were unable to pay the rent.

On November 28, 1975, Jenkins and Hoover and Hansen entered into an agreement, reciting that $55,000 was due as rent for the 1975 crop year and that Hansen and Hoover had 12,000 bushels of beans taken from the land, such crop being subject to a lien as provided in the lease and the “statutory lien” of Jenkins. Hansen and Hoover assigned to Jenkins “their interest and title in said soybeans to satisfy the landlord’s lien * *

Between December 3 and December 9, 1975, the beans were removed from the storage bins and taken to the Archer-Daniels-Midland Company (ADM) elevator at Clinton. Jenkins received a warehouse receipt for 4584.64 bushels of beans and entered into a deferred pricing contract with ADM for the balance. Under the contract, the beans were sold by Jenkins with the price to be determined by him at such later date as he might choose.

Jenkins pledged the warehouse receipt and deferred pricing contract to the First National Bank of Butler to secure an indebtedness to the bank.

Hoover and Hansen were indebted to Al-lis-Chalmers Credit Corporation and H. T. Smith Implement Company for farm ma-chín /. They had pledged the crops on the land rented from Jenkins as security for that obligation. Subsequently they also had pledged those crops to secure an indebtedness to Vistron Corporation for fertilizer.

On December 16, 1975, Allis-Chalmers wrote ADM and Jenkins, asserting a claim to the beans and demanding that, if the beans were priced, no part of the purchase price be paid to Jenkins, but that it be placed in escrow.

Jenkins and the elevator manager discussed Jenkins’s removal of the beans, but the ADM manager insisted that Jenkins could not do anything with them because of the Allis-Chalmers demand.

In September, 1976, Jenkins filed a re-plevin suit against ADM for return of the beans and $12,000 damages for their wrongful detention. ADM answered and counterclaimed for interpleader, setting up the claims of Allis-Chalmers/Smith, Vistron, the First National Bank of Butler and ADM’s lien for storage charges. The court sustained the interpleader. Allis-Chal-mers/Smith and Vistron answered, setting up their claims based upon the security interests in the crop from Hansen and Hoover. The cause was heard on the inter-pleader alone, the judgment being declared final for purpose of appeal.

Following the hearing, the trial court entered judgment finding that Jenkins was entitled to recover his rent and that he had not waived his landlord’s lien. The court further found that Allis-Chalmers/Smith had a valid security interest in the beans, subject to the interest of Jenkins for recovery of his rent; that Vistron had a valid security interest in the beans, subject to the interest of Jenkins and that of Allis-Chal-mers/Smith. The court further found that Hansen and Hoover had an interest, subject to the foregoing interests.

The judgment called for sale of the beans and application of the proceeds as follows:

1. Payment of court costs.
2. Payment to ADM for storage.
3. Attorney’s fee of $750 to ADM.
4. $55,000 to Jenkins.
5. Balance to Allis-Chalmers/Smith up to $59,000.00.
6. Remaining balance to Vistron up to $26,977.75.
7. Any remaining balance to Hoover and Hansen.

The amount ultimately realized upon the sale of the beans does not appear, but based upon statements in briefs, the sale of the beans produced a return considerably greater than the approximately $60,000 for which the beans could have been sold at the time of the assignment by Hansen and Hoover to Jenkins in November, 1975. According to respondents Allis-Chalmers/Smith, the proceeds of the sale “ * * * after satisfaction of Jenkins’ claim nearly satisfied the indebtedness due Allis-Chal-mers/Smith.” Jenkins moved to amend the court’s judgment to declare that he should receive all proceeds of the sale of the beans. The motion was overruled and Jenkins appealed.

In this court, Jenkins contends that the trial court erroneously applied the law relating to landlord’s liens (§§ 441.280 and 441.290, RSMo 1969) in holding that, despite the priority of his lien, Jenkins, upon receipt of the assignment of the rights of the tenants to the crop in satisfaction of their obligation for rent and upon Jenkins’s taking possession of the crop to enforce his lien, was not entitled thereafter to deal with the crop as its owner without regard for the claims of subordinate lienholders. Jenkins asserts that, absent a fraudulent intent to deny the rights of secondary lien-holders, such secondary lienholders had no right to disturb his ownership of the crop upon his enforcement of his lien and the receipt of the assignment by the tenants.

The respondents Allis-Chalmers and Smith accept the trial court’s conclusion that their lien was secondary to that of Jenkins’s landlord’s lien. They contend that Jenkins’s seizure of the bean crop did not extinguish their perfected security interest and that the trial court properly distributed the sale proceeds.

The respondents would support the trial court’s judgment on the grounds that the court properly applied Section 400.9-504, RSMo 1969, dealing with a secured party’s right to dispose of collateral under the Uniform Commercial Code. However, by Section 400.9-104(b), Article 9 of the Code is made inapplicable to a landlord’s lien. Therefore, the judgment cannot be upheld on this basis.

Appellant acknowledges absence of authority in support of his position. The only authority discovered is contrary to appellant’s position. In 52 C.J.S. Landlord & Tenant § 671 p. 856 (1968), the following is found:

“ * * * Where, without resort to legal proceedings, the landlord has received from the tenant the crop to apply in discharge of his lien, he is bound to account to a junior lienor for the surplus of such crop in excess of the amount of his prior lien, and it has been held that this is true notwithstanding, at the time of the transfer, the crop was not worth the rent, when it afterward appreciated in value.”

The authority cited in support of the latter proposition is West v. Cook Mercantile Co., 157 Ark. 600, 249 S.W. 561 (1923). The case of Auxvasse Mill Co. v. Cornet, 85 Mo.App. 251 (1900), is consistent with the first stated proposition.

Appellant has not demonstrated that the trial court incorrectly applied the law. Therefore, its judgment will be affirmed.

Judgment affirmed.

All concur.


text:
    Earl W. ROARK and Janice Jean Tye, Appellants, v. PLAZA SAVINGS ASSOCIATION et al., Respondents.
    No. KCD 29523.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Alan E. South, Crews, Milliard & South, Kansas City, for appellants.
    Keith E. Witten, Sandler, Balkin, Hellman & Weinstein, Thomas D. Hyde, Stubbs & Mann, Kansas City, for respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Earl W. Roark and Janice Jean Tye filed their petition in equity to set aside a trustee’s sale of real estate because of an alleged breach of duty by the trustee and for failure to give proper notice, for an accounting of the proceeds of the sale, and for damages against the trustee personally for breach of duty. Defendants in the suit were Plaza Savings Association, holder of a note secured by a deed of trust; David Achtenberg, the successor trustee; and Peter James Kemp and Melody Jean Kemp, purchasers at the trustee’s sale. The Kemps filed a counterclaim seeking damages and ejectment against Roark and Tye and to have title quieted in them. The trial court found for the defendants on the claim of Roark and Tye and found in favor of the Kemps on their counterclaim. Roark and Tye appeal.

Roark and Tye contend the judgment should be reversed because the trustee’s sale was void for failure to give the notice required by § 443.325, RSMo 1975 Supp., and because the trustee breached his duty to act with fairness and integrity in the conduct of the trustee’s sale. Affirmed.

Janice Tye and her former husband, Howard, originally acquired title to Lot 40, Blue Dawn Estates, a subdivision in Independence. As a part of the property settlement in their divorce, Janice Tye acquired title to the property. Thereafter a loan secured by a deed of trust on the real estate became delinquent and Janice was threatened with foreclosure. At that time she worked for Earl Roark in his real estate business. Roark and his wife were willing to help Janice save the property and to that end accepted a conveyance of the property. Roark and his wife then obtained a loan from Plaza Savings Association and executed a deed of trust to secure the payment. Payments on the note to Plaza Savings became delinquent and Plaza began foreclosure proceedings.

The trustee named in the deed of trust from Roark to Plaza was Sheldon Sandler. However, Sandler had removed from the state of Missouri and an associate in his law office, David Achtenberg, was appointed successor trustee. Sandler caused a notice of the impending trustee’s sale to be sent to Roark. This notice was received by Tye and she signed Roark’s name to the certified mail receipt. Both Roark and Tye acknowledged they knew of the sale and talked with Harry Griffitts about attending the sale for the purpose of bidding. Prior to going to the sale, Griffitts met with Warren Hamilton. Hamilton gave Griffitts a check drawn on the account of Hamilton Hauling, Inc. This check was signed by Hamilton but was not otherwise filled in.

When the trustee’s sale began those in attendance included David Achtenberg, Sheldon Sandler, the Kemps, Mr. Kemp’s father, Phil Roberts, who was retired and who was interested in purchasing the property, Harry Griffitts, Roark and John Mitchell, an attorney for Roark.

Prior to the commencement of the sale Roark delivered to Achtenberg a document entitled Redemption Notice. Achtenberg began the sale by reading the notice of sale published in the newspaper and the Redemption Notice. The Redemption Notice was in the conventional form except it stated Roark intended to redeem if the property were bid in by Plaza Savings or by any other bidder.

Prior to the sale the Kemps had talked with Mr. Kemp’s father about the possibility of buying the property at the sale. They had looked at the house and decided they would bid a maximum of $23,000.

When Griffitts arrived at the sale he told Sandler and others he was there to help Tye who he considered to be the actual owner of the property.

After the bidding began Sandler made a bid of $15,876.26. This was followed by a bid from Roberts of $15,876.27. Thereafter, Kemp bid $16,000, Roberts $16,200 and Kemp $16,500. At this point Griffitts made a bid of $16,600, Kemp bid $16,750 and Griffitts bid $16,755. After the last bid by Griffitts, Achtenberg became aware of some feeling that perhaps Griffitts was not able to pay his bid. Achtenberg had announced at the beginning of the sale that the sale was for cash, which meant cash, cashier’s check or certified funds. When Achtenberg became aware of the doubt concerning Griffitts, he stopped the sale and announced he was going to require the Kemps and Griffitts to display to him the funds or certified check with which they intended to pay their bid. Achtenberg drew the Kemps aside so their assets would not be displayed to any other bidder and ascertained the Kemps had one cashier’s check in the amount of $16,000 and another in the amount of $1,000 and cash. Griffitts displayed to Achtenberg the check signed by Hamilton on the Hamilton Hauling, Inc., account. The check still had not been filled in except for the signature of Hamilton. Achtenberg informed Griffitts he had announced the sale required payment by cash, cashier’s check or certified funds. Griffitts assured Achtenberg the Hamilton check was good and stated Achtenberg could call the bank to verify that fact. Achtenberg reiterated that bids must be paid as he had previously stated. Griffitts did not request the sale to be postponed to allow him time to get the proper funds and Achtenberg then announced he could not accept any bids from Griffitts. Achtenberg invited further bids but none were forthcoming and he knocked down the property to the Kemps at their bid, prior to the bid of Griffitts, in the amount of $16,500.

The Kemps went to Achtenberg’s office and paid the $16,500 and Achtenberg delivered a trustee’s deed. This lawsuit followed.

Roark and Tye first contend the trustee’s sale is void because the notice of sale given to them was prepared and sent by Sandler and not by Achtenberg. They contend § 443.325 requires the notice to be sent by the iiustee only and a notice sent by any other person is void and renders the sale held under such notice to be void. § 443.-325, ¶ 3, provides:

3. In the event of foreclosure under a power of sale, the foreclosing mortgagee or trustee shall, not less than twenty days prior to the scheduled date of the sale, cause to be deposited in the United States mail an envelope certified or registered, and with postage prepaid, enclosing a notice containing the information required in the published notice of sale referred to in section 443.320, addressed
(1) To each person whose name and address is set forth in any such request recorded at least forty days prior to the scheduled date of sale; and
(2) To the person shown by the records in the office of the recorder of deeds to be the owner of the property as of forty days prior to the scheduled date of foreclosure sale at the foreclosing mortgagee’s last known address for said record owner; and
(3) To the mortgagor or grantor named in the deed of trust or mortgage at the foreclosing mortgagee’s last known address for said mortgagor or grantor.

Roark and Tye had not filed any request for notice of record. The argument made proceeds from the foundation that a deed of trust is different from a mortgage with a power of sale and under a deed of trust the trustee makes the sale and not the mortgagee. The argument concludes that since the trustee makes the sale the statute requires the trustee only to give the notice.

It should first be noted that the above section treats deeds of trust and mortgages with power of sale in the same manner. This section refers to both a sale under a mortgage and under a deed of trust. § 443.410 provides:

Deeds of trust in the nature of mortgages of lands may, in addition to being forecloseable by suit, be also foreclosed by trustee’s sale at the option of the holder of the debt or obligation thereby secured and the mortgaged property sold by the trustee or his successor in the same manner and in all respects as in case of mortgages with power of sale; and all real estate which may be sold under any such power of sale in a mortgage deed of trust hereafter made and which at such sale shall be bought in by the holder of such debt or obligation or by any other person for such holder shall be subject to redemtpion by the grantor in such mortgage deed of trust or his heirs, devisees, executors, administrators, grantees or assigns at any time within one year from the date of said sale . . .

When § 443.325 and § 443.410 are considered together, it is apparent the term “foreclosing mortgagee” refers to either a mortgage with a power of sale or a deed of trust. A mortgagee is defined as one who takes or receives a mortgage. Black’s Law Dictionary, Revised Fourth Edition (1968). No distinction has been made in the sections mentioned between mortgages with power of sale and deeds of trust. The sale under the deed of trust was at the option of Plaza Savings as the holder of the debt or obligation. Because both types of mortgages are covered in § 443.325 there is no reason to draw any distinction in the meaning of “foreclosing mortgagee” between the different types of mortgages.

This court holds the term “foreclosing mortgagee” as used in § 443.325 refers to the holder of the debt or obligation under both a mortgage with a power of sale and a deed of trust. This section authorizes the notice to be given by either the trustee or foreclosing mortgagee. Here the notice was given by Sandler on behalf of Plaza Savings, the foreclosing mortgagee. The notice thus given was valid.

Roark and Tye next contend the trustee’s sale should be set aside because Achtenberg breached his duty in the conduct of the sale when he required Kemp and Griffitts to in effect “turn out their pockets” to demonstrate they were able to pay their bid. As noted, Achtenberg approached Kemp and Griffitts separately and drew them aside so any information revealed to him was not available to the other bidders. Roark and Tye argue that a trustee in conducting a sale has no power to make any inquiry concerning a bidder’s financial ability but must accept any bid made and later if a successful bidder is unable to pay his bid the trustee must follow the alternatives set out in Stone v. Stone, 176 S.W.2d 464, 467[4, 5] (Mo.1944).

Roark and Tye rely upon Long v. Manning, 455 S.W.2d 496 (Mo.1970). In Long the court held a trustee’s sale for cash was not nullified when the high bidder did not pay the trustee until six days after the sale. However, Long did not deal with the conduct of the sale but held only the trustee had the discretion to receive the purchase price within six days after the date of the sale.

The question involved here is the conduct of the trustee during the progress of the sale. No Missouri case has been cited or located which bears on the question presented, i. e., may the trustee interrupt the sale and make inquiry as to the ability of bidders to pay their bid?

Courts have made general observations concerning the function and duties of trustees. In West v. Axtell, 322 Mo. 401, 17 S.W.2d 328, 334[1] (Mo.1929) the court quoted from an earlier case:

“ ‘Trustees are considered as the agents of both parties — debtor and creditor — and their action in performing the duties of their trust should be conducted with the strictest impartiality and integrity. . Courts of equity have always watched their proceedings with a jealous and scrutinizing eye; and where it is clearly shown that they have abused their trust, or combined with one party to the detriment of the other, relief will be granted. Not that a sale made by them will be set aside on slight and frivolous grounds; but where it appears that substantial injury has resulted from their action, where, in pursuance of their powers, they have failed or neglected to exercise a wise and sound discretion, equity will interfere.’ ”

In Petring v. Kuhs, 350 Mo. 1197, 171 S.W.2d 635, 637[1] (1943) the court noted one of the duties of the trustee was “ ‘to reject fraudulent bids made to frustrate the sale . .

It has been noted that California has a similar history with reference to foreclosure under a power of sale contained in a deed of trust and for that reason California precedent is helpful. Federal National Mortgage Ass’n v. Howlett, 521 S.W.2d 428, 432[2, 3] (Mo. banc 1975).

In Quinn v. Mathiassen, 4 Cal.2d 329, 49 P.2d 284 (1935) the court approved the action of the trustee when he ignored the bid of a stranger who was unwilling to inform the trustee as to his ability to pay his bid in cash. The court stated the trustee considered the person to be irresponsible and not a bona fide bidder.

In Security-First Nat. Bank of Los Angeles v. Cryer, 39 Cal.App.2d 757, 104 P.2d 66, 69[1-4] (1940) the court said:

“Surely it cannot be said that upon a trustee’s sale under a deed of trust the auctioneer is required to accept any bid that is made, irrespective of whether the amount of the bid is produced and where no information is forthcoming as to the financial ability of the bidder. If this were true, any debtor could attend a foreclosure sale of his property and make any bid he cared to, without any intention of actually paying the amount of his bid. The sale then, of course, would have to be held all over again, new notices gotten out, etc. If such procedure were permitted and carried to its possible ultimate conclusion, any foreclosure sale could be prevented indefinitely.”

The argument of Roark and Tye would lead to the result mentioned in Cryer. Their position would require the trustee to be little more than a robot who would have no choice but to accept any bid made. It is clear the law requires the trustee to exercise a sound discretion and to conduct the sale in the manner which would render the sale most beneficial to the debt- or at the best price possible. However, this means the trustee must conduct the sale so that the property is sold rather than merely go through an exercise which would result in accepting any bid made with the result that the successful bidder might later prove to be unable to pay his bid.

Here Griffitts made it clear to Sandler, the Kemps and Achtenberg that he was attending the sale on behalf of Tye and was there to help her. The Kemps justifiably became concerned that if Griffitts were able to bid $16,600 and $16,755 then something was amiss because the amount of indebtedness required to be paid Plaza Savings was less than these bids. Of course the Kemps wondered why someone acting on behalf of the mortgagor would pay more than the indebtedness at a foreclosure sale rather than satisfy the debt and avoid the sale.

The trustee must be able to exercise discretion in requiring bidders to satisfy him that they will be able to pay their bid in cash. Any other rule would enable debtors to indefinitely frustrate a foreclosure sale.

In this case Griffitts did not show he would have been able to pay his bid. The evidence revealed that at the time the trustee’s sale was conducted the Hamilton Hauling account contained $1,513.59.

Roark and Tye further contend the action of the trustee when he requested evidence of the ability of a bidder to pay his bid had a “chilling effect” on the sale. The only bidders adversely affected by the trustee’s inquiry would be those who could not pay their bid. Furthermore, Roark is in no position to complain of any “chilling” of the bidding when he gave a redemption notice which clearly violated § 443.410 which stated redemption would be made if the property was sold to any bidder. Thielecke v. Davis, 260 S.W.2d 510, 512[3] (Mo.1953).

So long as the bidders are not required to reveal to any other bidder their assets or intentions in future bidding, the trustee may in his discretion require a bidder to satisfy him of his ability to pay his bid as required by the terms of the sale.

No abuse of discretion on the party of the trustee is shown. The judgment is affirmed.

All concur.

      . All statutory references are to RSMo 1969 unless otherwise indicated.


author: DIXON, Judge.

text:
    Cindy S. KIPP, Petitioner-Appellant, v. Frank W. KIPP, Respondent.
    No. KCD 29625.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Don C. Pierce, Downs & Pierce, St. Joseph, for petitioner-appellant.
    Kranitz & Kranitz, St. Joseph, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

A dispute involving change of custody of a minor child. Upon a full hearing, the court changed the custody from the mother to the father. The mother raises as a single issue on her appeal that insufficient evidence was presented to show a change in circumstances that affected the welfare of the child.

Review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976); In re Marriage of Fouts, 553 S.W.2d 488 (Mo.App.1977); D_ I_ M_ v. P_ D_ M_, 548 S.W.2d 237 (Mo.App.1977).

In brief array, the.evidence which supports the trial court order shows that the father has remarried, has a proper home, and can provide a stable home life. The mother’s life-style has changed since the marriage. Within the year since the dissolution decree, the child was left in the care of a grandmother in excess of one hundred different nights during the year and, on a variety of occasions, the child was picked up by the mother at very late hours after she returned from the nocturnal excursions which evidenced her change of life-style.

Finding substantial evidence to support the trial court’s order and deferring under the rule of Murphy v. Carron, supra, to that finding, unless this court has a firm belief that the decision was wrong, the trial court’s order should be affirmed. An extended opinion would have no precedential value. Rule 84.16(b). Judgment affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    Libbie Anita TURPIN, Petitioner-Respondent, v. John Franklin TURPIN, Respondent-Appellant.
    No. KCD 29708.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    M. Sperry Hickman, M. Sperry Hickman, Inc., Independence, for respondent-appellant.
    F. Keith Brown, Russell, Brown, Bickel & Breckenridge, Nevada, for petitioner-respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

This is a dissolution of marriage proceeding that comes to this Court upon a most unique record. The action was filed by the respondent-wife in February of 1977. In her petition, she alleged that the parties were married on January 14,1964 and were separated on February 18, 1977; that there were two children born of the marriage, Dollie Renee Turpin born October 1964 and Sandra Sue Turpin, born January 1966; that in addition, Gary Dale Turpin, born June 1968, a foster child, is a member of the household and she has cared for him since he was six months old; that no contractual arrangements have been made between the parties as to custody and support of the children, maintenance of the wife, or division of marital property; and, that the marriage is irretrievably broken. She requests a decree of dissolution and custody of the children (including the foster child) subject to reasonable visitation; child support for the natural children; temporary support and maintenance for herself; division of marital properties and assets; approval of any settlement agreement which might be concluded between the parties and to set forth the terms thereof in the decree and order the parties to fully perform the same; and, attorneys’ fees and costs.

In March 1977, the appellant-husband filed his answer to this petition in which he admits the historical data concerning the marriage and all formal allegations. He also admits the existence of marital property and states there are also separate properties of the parties. He denies that the best interests of the natural children and the foster child would require that custody be awarded to the wife and asks that he be granted their care and custody. He further denied (a rather incomprehensible allegation) the wife’s request for a decree of division of marital property or approval of any future settlement agreement.

His answer further admitted that the marriage was irretrievably broken but denied any misconduct on his part.

The matter came on for hearing on June 14, 1977 and the wife appeared in person and by counsel. The husband also appeared in person and by counsel, who, it later developed in the record, was also his banker. He is presently represented by other counsel.

The only evidence, oral or documentary, introduced at the hearing was the testimony of the wife, which consists of three transcript pages covering the formal elements of her case and that the marriage was irretrievably broken. She asked for the custody of the two natural born children and $240.00 per month for their support. Her examination concluded with this:

“Q. (By Mr. Brown) Now, you and your husband have entered into an agreement with regard to disposition of property and we are prepared to stipulate this before the Court today, is that correct?
A. Yes.”

Mr. Irvin, counsel for the husband, when invited to cross-examine, stated, “No, I have no questions”. The transcript then discloses that the following occurred:

“THE COURT: Now, if you would, Mr. Irvin (counsel for husband), like to stipulate to the Court what the property settlement is in the record, it would be fine.
MR. BROWN: (Counsel for wife) Yes, Your Honor. It is stipulated by and between the parties that the dissolution should be granted, custody of the two minor children aforementioned shall be placed with the wife, subject to visitation rights of the husband, to-wit: the first and third weekend of each month, from 8:00 a. m. Saturday morning to 8:00 p. m. Sunday evening; and then during the month of July the children shall be with the husband.”

Mr. Brown then related the stipulation as to division of property, including two residential properties, and as to costs and attorneys’ fees, and present and future debts of the parties. Thereupon, the record shows the “EVIDENCE CLOSED”. The Court thereupon made the following findings:

“THE COURT: The Court is going to find the marriage to be irretrievably broken and will grant the dissolution of marriage. The Court awards care, custody and control of the children to the petitioner, with the respondent to have visitation as outlined in the stipulation.
The Court awards child support in the sum of $240.00 per month payable through the Court.
The Court finds the property settlement not to be unconscionable and it is hereby approved.
$120.00 will be due the 15th, and then $240.00 on the 1st day of August, and on the 1st day of each month thereafter.” (Emphasis added)

A Docket Entry was made the day of the hearing basically incorporating the above findings, and concluding with the cryptic statement, “Court approves property settlement”.

On June 20, 1977, the husband, with new counsel, filed in the court below a pleading captioned “Motion to Set Aside and Vacate the June 14, 1977 Default Judgments and Orders Herein, For Change of Judge, Or in the Alternative, Notice of Appeal”.

This motion requests a full evidentiary hearing on the issue of child custody; asserts that the wife is unfit as custodian of the children by reason of an extramarital affair with one Bob Clark; and, alleges that the terms of the property settlement will force him to discontinue his business as building contractor. The basis for his request that the decree of June 14, 1977 be set aside is that he was placed in the position in pre-trial conference with the trial court, parties and counsel where he was coerced or pressured into a reluctant agreement to the settlement in that the Court had apparently decided how it would rule the case; that he, the husband, did not fully comprehend the terms of the settlement nor the consequences thereon on his children, himself or his business; and, that his then attorney, Roger Irvin, was never authorized to make any agreement as to custody or division of marital property on his behalf.

The record does not show that any notice was given to the wife or her counsel of the hearing on the motion, which was held on July 15, 1977. Neither the wife nor her counsel appeared at this hearing.

The husband testified in support of his motion at considerable length but no useful purpose will be served here by a review thereof except to note that under questioning by the trial court, he admitted conferring with his counsel-banker, Mr. Irvin, on the morning preceding the pre-trial conference with regard to settlement terms; that the attorneys supplied the Court with a list of the parties’ assets and liabilities, which were discussed in chambers, although the list contained an error in computation of $13,000.00 “in the wife’s favor”; that he told the Court the wife was a good mother for the children; and, that he had stated to the Court that he understood the settlement proposal and it was agreeable with him, that “he guessed it would be all right”.

At the conclusion of this testimony, counsel for the husband called the Court’s attention to the fact that no formal decree had been entered following the original hearing. The Court responded that such a decree would be entered. The transcript then contains an undated “Decree of Dissolution of Marriage” with the notation that it was filed “on a date that cannot be determined”, which incorporates the terms substantially as stipulated at the original hearing of June 14, 1977. The Amended Notice of Appeal includes an appeal from the judgment of June 14, 1977 and “July 28, 1977”. No question is raised as to the sufficiency or timeliness thereof.

The first point raised by the husband as appellant herein is that the Court erred in awarding custody of the children to the wife because there was no evidence from which to make such an award which is a necessary prerequisite upon which to base a finding as to the best interests of the children.

Indeed, this record is absolutely devoid of any evidence whatsoever upon which to base the trial court’s award of custody in this case, except the purported agreement between the parents, which is suspect in light of the husband’s present position. This nebulous “agreement” is the only one of the factors which, under the provisions of Section 452.375 RSMo 1969 (Laws 1973), the trial court “shall consider” in awarding custody, i. e. “(1) The wishes of the child’s parents as to his custody”. Such an agreement, if indeed it existed, would not be binding on the Court. Ex parte McCarter, 434 S.W.2d 14, 17[4] (Mo.App.1968). As this Court en banc stated in In the Matter of W_ K_ M_, 537 S.W.2d 183, 185-186[4] (Mo.App.1976):

“ * * * Custody of infants cannot be bartered and traded as goods in the market place, so as to foreclose a judicial determination as to the present welfare and best interests of the child.”

Cf. Flickinger v. Flickinger, 494 S.W.2d 388 (Mo.App.1973).

Many factors must be considered in a proceeding involving the custody of children focused upon the tantamount and overriding consideration as stated in the first sentence of Section 452.375: “The Court shall determine custody in accordance with the best interests of the child” (Emphasis added). Such legislative mandate has long been reflected in decisional law both under the former divorce proceedings and the present Dissolution of Marriage law. Even the rights and claims (and agreement) of the parents must be, perforce, of secondary importance. E. W. v. K. D. M., 490 S.W.2d 64, 67[5, 6] (Mo. banc 1973); Stockton v. Guthary, 415 S.W.2d 308, 311[1, 4] (Mo.App.1967).

The absolute duty thus placed upon the trial court pertaining to the custody of children, caught in the vortex of divorce proceedings, cannot be abdicated, relinquished or diminished because of extrajudicial agreements of the parents, as was done in this case. The appellant’s first point is well taken.

For his second (and last) point, the husband-appellant urges that the Court erred in finding that the oral stipulation read into the record concerning division of marital property was not unconscionable and in adopting same because there was no evidence to support such finding and the court lacked jurisdiction to approve such unsupported oral division which was required to be in writing by Section 452.325 RSMo 1969 (Laws 1973).

In approaching a decision on this point, it is pertinent to note that under Section 452.-330 RSMo 1969 (Laws 1973) it is made the duty of the trial court to “divide the marital property in such proportions as the court deems just after considering all relevant factors including:” four specific areas of consideration. These are set out in the statute (here stated in summary) as (1) contributions of each spouse; (2) value of the property; (3) economic circumstances of each spouse; and (4) conduct of the parties during the marriage.

In the case of Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977), this Court stated that this section (1. c. 804[4]):

“ * * * seeks to redress the patent inequity and rancorous aftermath heretofore attached to the division of property accumulated during the course of a marriage which now falls within the definition of ‘marital property’. By the same token, it seeks to effectively minimize the necessity for recourse to further litigation to completely sever all relations between the parties. * * * ”

This Court further held in Corder (1. c. 804[6]):

“ * * * the trial court had no discretion or leeway to divide or not divide the ‘marital property’ on a ‘just’ basis, it was inexorably commanded to do so * * ”

Such “command” necessarily carries with it the obligation to consider, at the very minimum, the areas set forth in Section 452.330. None of these were covered in either the so-called oral agreement dictated into the record or in the record or transcript on appeal. Whatever transpired in the pretrial conferences in chambers was not made a part of this record, and of course, this Court, therefore, is without any means to review such division or judge its propriety.

Section 452.325 RSMo 1969 (Laws 1973) provides, in part:

“1. To promote the.amicable settlement of disputes to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for * * * the disposition of any property owned by either of them
* * * * * *
2. In a proceeding for dissolution of marriage, the terms of the separation agreement * * * are binding upon the court unless it finds after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable. * * * ”
(Emphasis added)

The so-called agreement in the case at bar consisting of the oral statement of counsel as it pertained to property is as follows:

“MR. BROWN: (Counsel for wife) * * The wife shall receive all household goods and contents, including furniture and appliances, and all contents of the home. She shall receive a 1972 Chevrolet station wagon and one Benelli motorcycle and one Suzuki motorcycle, and the husband shall execute his promissory note to the wife in payment of an additional cash settlement of $7200.00 principal, bearing eight percent interest, payable $100.00 monthly payment and the remaining balance applied to principal. At the end of two years the note shall be due and payable. There is a privilege to pre-pay without penalty. The note shall be secured by a second deed of trust on the home located in Butler, at 400 South Mechanic, and it shall only be second to a first mortgage presently held by Mr. Robinson in the sum of $3688.00.
Each party will pay their own attorney fees. The husband shall pay all debts of the marriage and all debts through April 15, 1977. Any debts accrued after April 15, 1977, by the wife alone, shall be paid by the wife. The husband agrees to hold her harmless from all these debts, as well as costs, attorneys fees or any other matter that might accrue as the result of someone trying to attempt to collect the debts from her.
The husband shall in turn receive the home located in Butler, at 400 Mechanic, the home located in Amoret, his carpenter tools, his 1972 pickup truck, one Tradewinds fold-out camper; any moneys presently in his bank accounts or in financial institutions; his life insurance policies. * * * ”

The terms of the statute are plain and unambiguous that the separation agreement must be in writing and there is no room or need for judicial interpretation here. This agreement, made the day of the trial, was not written (indeed, if such an agreement was in fact reached). The trial court simply adopted it without evidence or other information (so far as appears from this record) as to the factors which required its consideration even had the purported agreement been reduced to writing before the Court could determine whether or not such written agreement was conscionable or unconscionable, as it was the Court’s statutory duty to do. It is true, as the wife-respondent stoutly asserts, that the husband and his counsel raised no objection and sat mute during the recitation by her counsel. Indeed, the husband was not asked, on the record at least, by court or counsel if he did in fact agree to the division.

Further, both the oral recitation of the purported agreement and the decree appealed from completely lack the specificity necessary to eliminate “rancorous aftermath” or to “effectively minimize the necessity for recourse to further litigation” or to “completely sever all relations between the parties”, particularly as the same relates to the two pieces of real estate involved which were so vaguely described so as to fail to completely vest title thereto in the husband, as against the world.

The necessity and practicability of such requirement that the agreement be reduced to writing is pointed up by the fact that six days after the approval of the agreement, the husband repudiated it in toto.

This Court does not approve or condone the procedures here employed by both Court and counsel and reluctantly holds that the appellant’s second point is well taken.

The judgment below as it declares the dissolution of the marriage is affirmed. The judgment below as it relates to child custody and support and division of marital property, costs and attorneys’ fees, is reversed and remanded for further evidentia-ry proceedings.

All concur.


author: PER CURIAM.

text:
    Shirley L. STOKES, Appellant, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, and the Division of Employment Security of the State of Missouri, and Mid-American Food Service, Inc., Respondents.
    No. KCD 29737.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Michael D. Hufft, Kansas City, for appellant.
    Sharon A. Willis, Kansas City, John F. Gillespie, Rick V. Morris, Jefferson City, for respondent, Div. of Emp. Sec.
    Charles B. Fain, Jefferson City, for respondent, Labor and Indus. Rel. Comm, of Missouri.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Shirley Stokes filed a claim for unemployment compensation which was allowed by the deputy. On appeal by the employer, the award was reversed by the Appeals Tribunal of the Division of Employment Security. Stokes appealed to the Labor and Industrial Relations Commission which denied her application for review. On appeal to the circuit court the action of the Commission was affirmed.

On this appeal Stokes contends she was denied a fair hearing and the action of the Commission was not supported by substantial evidence. A thorough review of the record leaves no doubt Stokes was afforded a fair hearing and the action of the Commission is supported by competent and substantial evidence on the whole record.

No error of law appears and an extended opinion would have no precedential value. Judgment affirmed. Rule 84.16.


text:
    Maurice E. WATERS, Appellant, v. MERIT SYSTEM COMMISSION OF JACKSON COUNTY, Missouri, Respondent.
    No. KCD 29803.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Roger W. Penner, Howard D. Lay, Griffin, Dysart, Taylor, Penner & Lay, P. C., Kansas City, for appellant.
    Willard B. Bunch, County Counselor, Michael F. Dandino, Assoc. County Counselor, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

The termination of Maurice Waters as an employee of Jackson County was affirmed on his appeal to the Jackson County Merit System Commission. Waters appealed to the circuit court, and the Commission’s action was affirmed. On appeal from the circuit court Waters contends there was a lack of competent and substantial evidence to support a finding that his termination was a budgetary layoff and that certain rules for reclassification of positions had not been followed in making the termination. Affirmed.

Waters had been employed by the County for eight years as the Operations Supervisor in the Data Processing Division. His duties involved computer production, data entry and the distribution and control of documents submitted by various County departments. He offered evidence before the Commission, to show he had performed well in his job. Robert Carver, Manager of the Division of Data Processing and Waters’ supervisor, testified before the Commission that his department had experienced a 60% personnel turnover since 1971. To remedy the turnover problem he requested and obtained an increase in his department budget for the year 1976 to provide pay raises. He stated the 1976 budget was $30,-000 more than the 1975 budget but provided for only 27 positions rather than 32. He stated further that four positions which were vacant would not be filled, thus leaving one employee in excess of the budgeted number. To accomplish the reduction of one employee, Carver consolidated the responsibilities and duties of the Software Programmer III position with those of the Operations Supervisor. To fill the new position, Carver testified it was necessary to decide between Waters, the Operations Supervisor, and Pete Enna, the Software Programmer III. Carver stated the new position required strong qualifications in the area of computer software. Because Enna had such qualifications whereas Waters did not, Carver’s decision was to retain Enna and terminate Waters.

The scope of review of administrative agency decisions was recently stated in Moore v. Board of Education of the Special School District of St. Louis County, 547 S.W.2d 188, 191[1-4] (Mo.App.1977). No useful purpose would be served by simply repeating the well known rules stated there. Suffice it to say this court may only determine whether or not the administrative agency “could reasonably have made its findings and reached its result or whether the decision was clearly contrary to the overwhelming weight of evidence.” Further, this court may not set aside the administrative decision “unless it is not supported by competent and substantial evidence on the whole record.”

In asserting the lack of substantial and competent evidence to support a finding his termination was for budgetary reasons, Waters argues only the total budgetary increase of $30,000 for the Data Processing Division in 1976 over 1975. However, this ignores Carver’s testimony that he was upgrading salaries to combat a 60% personnel turnover. It also ignores Carver’s testimony regarding the necessity of terminating one employee and the requisite qualifications in the software area which led him to retain Enna over Waters. There was competent and substantial evidence to support the finding the termination of Waters was for budgetary reasons and not for any reasons condemned by the Jackson County Merit System.

Waters next contends the County was required to reclassify his position before he could be terminated and reclassification procedures required by the Merit System were not followed. Carver testified the positions occupied by Waters and Enna were consolidated. The Commission found this to be true. Thus, the testimony of Carver constituted competent and substantial evidence the positions had been consolidated and no impermissible reclassification had been accomplished.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. William Alonzo WASHINGTON, Appellant.
    No. KCD 29855.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Jeffrey O. Parshall, Knight & Ford, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was charged with the crime of uttering a forged instrument with intent to defraud (Sec. 561.011, RSMo 1969), tried and convicted by a jury, and sentenced by the court (per the second offender act) to four years imprisonment.

The facts surrounding the offense are straightforward and uncomplicated. On August 20, 1976, defendant approached the “courtesy booth” in Nowell’s Supermarket, Columbia, Missouri, and sought to cash a check purportedly drawn by Wendolyn R. Dixon and made payable to Keith Mathews. The store manager was manning the “courtesy booth” at the time and he asked defendant if he was Keith Mathews’ and defendant replied that he was. As a matter of fact, defendant presented Keith Mathews’ driver’s license (which turned out to have been stolen) to the store manager for identification purposes. The parodical nature of defendant’s misrepresentations is revealed by the store manager’s testimony that he knew the true Keith Matthews as he had previously been employed at No-well’s Supermarket. Suffice it to say, the store manager refused to cash the check. The store manager than made an excuse to take the check to his private office. When he reached his private office he called the police but by the time they arrived defendant had left the premises. The store manager retained the check and driver’s license which defendant had presented. Another store employee, who also knew the true Keith Mathews, was present in the “courtesy booth” when the previously mentioned events occurred. His testimony, so far as it went, accorded with that of the store manager. The store manager and the employee positively identified defendant on several occasions, the last time being during the course of the trial. Wendolyn R. Dixon and the true Keith Mathews both testified that their respective signatures did not appear on the check which defendant presented and sought cash for.

Five points of error are presented by defendant: (1) error in denying his oral motion for a continuance predicated on the state’s failure to comply with his request for discovery; (2) error in denying his request to dismiss counsel and obtain other counsel; (3) error in overruling his motion for judgment of acquittal at the close of the state’s evidence because of its insufficiency to sustain a conviction for the charged offense; (4) error in giving Instruction No. 4 [MAI-CR 10.14(a)] because it failed to submit all the elements of the charged offense; and (5) error in refusing to grant him a new trial on the ground that the verdict was against the weight of the evidence.

Defendant’s first point is argumentatively pitched upon the state’s failure to formally respond to his request for discovery under Rule 25.32. Notwithstanding defendant’s admission that the state opened its file and made it available to his counsel prior to trial, he nevertheless complains that the state’s failure to formally respond to his Rule 25.32 request worked to his prejudice. Defendant’s argument runs the following course: the granting of a continuance is one of the sanctions prescribed in Rule 25.45 when an opposing party fails to comply with a request for discovery; the state literally failed to comply with defendant’s request for discovery by not formally responding to it, thereby entitling defendant to a continuance; and the court’s refusal to grant him a continuance was prejudicial. Defendant has failed to point out, and this court has been unable to ascertain, just how or in what respect or respects defendant claims he was prejudiced. For this reason, defendant’s first point, and the argument tendered in its support, is mainly an exercise in academicism. A strong case can be made that the state’s manner of making disclosure substantially complied with Rule 25.36(B), to-wit: “Unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be: . (B) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available.” This view would insulate the state from imposition of any of the sanctions provided for in Rule 25.45, and, more particularly, would negate the ground which defendant relied upon for a continuance.

Even if it be assumed, arguendo, that the state’s cavalier attitude towards disclosure stultified Rule 25.36(B), supra, cogent reasons nevertheless exist for refusing to brand the trial court with error for having denied defendant’s request for a continu-anee. The imposition of a particular sanction provided for in Rule 25.45 lies within the discretion of the trial court, and whether or not it abuses its discretion in not imposing a particular sanction when the state fails to comply with a request for discovery must be tested in terms of resultant prejudice and fundamental unfairness to the accused. State v. Moten, 542 S.W.2d 317 (Mo.App.1976). Whether prejudice or fundamental unfairness results in a given case depends upon the nature of the charge, the evidence presented by the state and the likely role any undisclosed matters occasioned by noncompliance with discovery would have played in the outcome of the trial. In this vein, if the undisclosed matters are not of such a character as to raise a reasonable likelihood that they would have affected the outcome of the trial, if known prior thereto, a trial court may not bé said to have abused its discretion in refusing to impose one of the sanctions prescribed by Rule 25.45, supra, even though the state failed to comply with an accused’s request for discovery. State v. Dayton, 535 S.W.2d 469 (Mo.App.1976), rev’d on other grounds. In the instant case defendant makes no claim or pretense that any items or matters within the purview of his request for discovery were secreted or removed by the state from its file before it was informally opened for defense counsel’s perusal. Nor does he specify or make reference to any particular item or matter purportedly possessed by the state which, if known to him, would have somehow aided him or which would have affected the outcome of the trial. Under these circumstances it cannot be said that the trial court abused its discretion in refusing to grant defendant’s request for a continuance. Although the state’s informal approach in complying with defendant’s request for discovery is not to be condoned, the manner in which it did so does not warrant a reversal of defendant’s conviction, particularly so as defendant has failed to point out or demonstrate any resultant prejudice and the state’s manner of making disclosure was more a technical than a substantive violation of Rule 25.36, supra.

Defendant’s second point takes issue with the trial court’s refusal to permit him to dismiss counsel and obtain other counsel. Factually, this point must be put in proper perspective. Counsel was appointed for defendant on April 6, 1977, by the Magistrate Court of Boone County, Missouri. Defendant’s dual request to dismiss appointed counsel and to obtain new counsel was first broached on the morning of July 7, 1977, immediately before the trial began. Defendant gave no reason to the trial court as to why he wanted to change counsel, and he has likewise failed to advance any reason in this court for wanting to do so. Nor has he at any stage of the proceedings charged counsel with any dereliction, lack of preparation, want of professional commitment, lack of communication, or ineffectiveness of any kind. The case of State v. Lee, 521 S.W.2d 180 (Mo.App.1975) controls defendant’s second point. In Lee, the accused, on the morning of the day his trial was to begin, requested that his appointed counsel be permitted to withdraw and that he be granted a continuance to obtain private counsel. The similarity of Lee to the facts and obtaining issue in the instant case is so striking that liberty is taken to quote from it at some length: “Both of these requests came immediately before the trial began. Both of the points presented are purely discretionary matter for the court and we find no abuse of discretion. First, because an accused in a criminal proceedings has no absolute right to be represented by counsel of his own choosing, State v. Jefferies, 504 S.W.2d 6 (Mo.1974). Secondly, here defendant had from October 3, 1973, when an attorney from the Public Defender’s Office was first designated to handle his case, until the time of trial, December 13, 1973, to obtain different counsel. Clearly, it is not an abuse of discretion to deny a last minute request for a continuance to find new counsel. The trial court must consider the interest of the public in effective and efficient administration of justice particularly when it appears that the accused will not be denied skilled and effective representation. State v. Jefferies, supra. * * * The same reasoning prevails in assessing the propriety of the trial court’s refusal to permit appointed counsel to withdraw. The matter of the withdrawal of counsel is normally within the discretion of the trial court. State v. Wilkinson, 423 S.W.2d 693 (Mo.1968). By the standards of State v. Jefferies, supra, the trial court has not abused its discretion in this case.”

Defendant’s third point is directed towards the alleged inadequacy or insufficiency of the evidence at the close of the state’s case to support or sustain the charge of uttering a forged instrument with intent to defraud. As defendant correctly points out, it was incumbent upon the state to prove (1) that defendant used or “uttered” the check in question, (2) that the check was false and not issued by the purported maker, (3) that defendant had knowledge of its falsity, and (4) that defendant had the intent to defraud. State v. Gantt, 504 S.W.2d 295, 299 (Mo.App.1973). The defendant tacitly concedes that the record forcibly demonstrates an abundance of evidence to sustain the state’s burden with respect to the first two requirements. The combined testimony of the manager of the supermarket and his co-employee fulfilled the state’s burden with respect to proof that defendant uttered the check in question, and the testimony of the true Keith Mathews and that of Wendolyn R. Dixon, the purported payee and maker, respectively, of the check in question, fulfilled the state’s burden with respect to proof that the check was false and not issued by the purported maker. Therefore, as a matter of practical necessity, defendant was forced to tightly circumscribe his argument and his own contentions now are that there was no evidence that he had knowledge of the check’s falsity or that he had an intent to defraud. Even on the limited basis argued, defendant’s third point is without merit. To a large degree, proof of one’s knowledge of an instrument’s falsity and of one’s intent to defraud depend upon circumstantial evidence and legitimate inferences to be drawn from the evidence. The “possession of and an attempt to pass a forged instrument raises a presumption that the person in possession forged it and, unless its possession is explained to the satisfaction of the trier of the facts, such presumption becomes conclusive.” State v. Gantt, supra, p. 300; State v. Pyscher, 179 Mo. 140, 77 S.W. 836 (1903); and State v. Williams, 152 Mo. 115, 53 S.W. 424 (1899). Since defendant’s possession of and attempt to pass the forged check in question went unexplained (defendant offered no evidence whatsoever), the state’s case benefited by the conclusive presumption which arose that defendant had forged the check in question. Since defendant was conclusively presumed to have forged the check in question, it would debase simple logic to say that defendant had no knowledge of the check’s falsity. As to proof of defendant’s intent to defraud, it could be inferred from his act of uttering the forged check. State v. Gantt, supra, p. 300; State v. Douglas, 312 Mo. 373, 278 S.W. 1016 (1926); and Wharton’s Criminal Evidence, 13th Edition, Vol. 1, § 134, p. 223. After careful consideration, defendant’s third point is found to be without merit.

Defendant’s fourth point challenges Instruction No. 4, the state’s verdict-director. This instruction, which defendant so spiritedly attacks, was a faithful adaptation of MAI-CR 10.14(a) to comport with the facts of this case, and its use was mandated by Rule 20.02. Defendant argues that two of the requisite elements of uttering a forged instrument, an intent to defraud and knowledge of the check’s falsity, State v. Gantt, supra, p. 299, are not submitted by Instruction No. 4. It should first be noted that defendant has lost sight of the fact that this court is powerless to declare erroneous a pattern criminal instruction contained in MAI-CR. State v. Burton, 544 S.W.2d 60 (Mo.App.1976); State v. Gilyard, 523 S.W.2d 564 (Mo.App.1975); and State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974). Even if this court had the power to do so it would not avail defendant in this case. The third and fourth paragraphs of Instruction No. 4, as given in the instant case, read as follows: “Third, that it has been so made that it purported to have been made by another, and Fourth, that the defendant knew that it has been so made, . . These paragraphs adequately advised the jury that, among other required findings, they had to find that defendant had knowledge of the check’s falsity in order to find him guilty of the charged offense. This court recently held in State v. Bland, 565 S.W.2d 735 (Mo.App.1978), that MAI-CR 10.14(a), which Instruction No. 4 correctly adopted and faithfully followed, clearly informs a jury of the necessity of finding that an accused had an intent to defraud.

Defendant’s fifth and final point seeks to invoke relief on a basis upon which this court is powerless to respond — to grant a new trial to defendant on the ground that the guilty verdict returned by the jury was against the weight of the evidence. It was the prerogative of the jury, and it alone, to weigh the evidence in this case. Appellate review is restricted to determining whether a guilty verdict returned by a jury is supported by substantial evidence. State v. Lamaster, 534 S.W.2d 574 (Mo.App.1976); and State v. Kramer, 534 S.W.2d 281 (Mo.App.1976). From what has previously been said, there was substantial evidence to support the guilty verdict returned by the jury in this case.

Judgment affirmed.

All concur.

      . Although a person to whom an instrument is offered does not accept it, this does not vitiate a charge of uttering. To utter as used in a statute proscribing forgery and counterfeiting means to offer, whether accepted or not, a forged instrument with the representation by words or actions, that the same is genuine. State v. Horner, 48 Mo. 520 (1871).


author: REINHARD, Judge.

text:
    James Jeffrey TILLMAN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39055.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 29, 1978.

      William J. Shaw, Public Defender, Mary E. Fiser, First Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George W. Schroeder, Courtney Goodman, Jr., Pros. Atty., Steven H. Goldman, Asst. Pros. Atty., Clayton, for respondent.
   REINHARD, Judge.

On November 10,1975, movant entered a plea of guilty to a charge of second degree murder and was sentenced to imprisonment for a term of 30 years. On January 21, 1977, he filed a post-conviction motion pursuant to Rule 27.26 alleging the following grounds for relief: (1) movant’s deficient mental intelligence quotient; (2) malpractice on the part of the two examining psychiatrists; (3) ineffective assistance of counsel on the bases of coercion and failure to prepare a defense. Movant’s motion was summarily overruled by the court on February 28, 1977.

Movant challenges the summary denial of his post-conviction motion because of the failure of the lower court to conduct an evidentiary hearing and make findings of fact and conclusions of law. Movant asserts that the court erred in denying an evidentiary hearing on the following points: (1) movant was incapable of understanding the consequences of his guilty plea due to his deficient mental intelligence quotient; (2) the psychiatric reports were insufficient in that the reports did not deal with the question of mental deficiency but were simply examinations under § 552.020, RSMo. 1969; (3) the court should have conducted a hearing at the plea proceeding to determine the extent of movant’s disability; and (4) movant was denied effective assistance of counsel at the time of his guilty plea in that his attorney doubted his ability to understand the proceedings and yet advised him to plead guilty.

We note at the outset that on appeal from a judgment overruling a motion to vacate the sentence, the reviewing court cannot consider grounds for relief not raised in the motion. State v. Atkins, 549 S.W.2d 927, 931 (Mo.App.1977). Consequently, we cannot consider movant’s contention that the trial court erred in failing to conduct an evidentiary hearing to determine the extent of movant’s alleged disability. Likewise, movant’s current theory as to his allegation that he was denied effective assistance of counsel appears for the first time in his brief and thereby is not preserved for appeal. Durham v. State, 538 S.W.2d 881, 884 (Mo.App.1975).

As to movant’s allegation that the psychiatric reports were insufficient in that the examining psychiatrists failed to determine his mental deficiency, we hold that as alleged here such a matter is not one that can properly be considered in a proceeding under Rule 27.26, as it is no more than a mere trial error. Mikel v. State, 550 S.W.2d 863, 869 (Mo.App.1977). In addition, mov-ant’s plea of guilt waived any and all alleged procedural infirmities antedating the plea. Williams v. State, 508 S.W.2d 211, 213 (Mo.App.1973). Any contentions regarding the sufficiency of the psychiatric examinations should have been brought up and corrected prior to or at the plea proceeding.

Finally, defendant cites error in the court’s failure to make findings of fact and conclusions of law when denying his post-conviction motion. When an evidentiary hearing is unnecessary, a summary denial of a Rule 27.26 motion is the equivalent to findings of fact and conclusions of law in opposition to the grounds set out in defendant’s motion. Smith v. State, supra at 412; Huffman v. State, 487 S.W.2d 549, 554 (Mo.1972); Morgan v. State, 569 S.W.2d 16 (Mo.App.1978); Baker v. State, No. 29,434 (Mo.App.K.C. April 3, 1978); State v. Ward, 563 S.W.2d 153 (Mo.App.1978); Stout v. State, 543 S.W.2d 797, 799 (Mo.App.1976); Hogshooter v. State, 514 S.W.2d 109, 113 (Mo.App.1974). Consequently, we rule this contention against defendant.

Accordingly, the judgment of the trial court is affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      . It must be noted that a deficient intelligence quotient, or mental retardation, may exclude a person’s fitness to plead guilty or proceed to trial if it is of a severe degree. However, the mere existence of some mental retardation does not automatically render a person incapable of understanding the consequences of his guilty plea. Pulliam v. State, 480 S.W.2d 896, 904 (Mo. 1972); Evans v. State, 467 S.W.2d 920, 923 (Mo.1971); State v. Lowe, 442 S.W.2d 525, 530 (Mo.1969).
      It may also be noted that movant’s assertion that he possesses a deficient intelligence quotient is conclusory, and as such, does not provide grounds on which relief could be given. Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974) cert, den., 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975).

      . It must be noted that, even had this point been properly preserved, a review of the record of the plea proceeding refutes this contention as alleged in his motion.

      . The record of the plea proceedings show that the defendant had been examined by two psychiatrists prior to the hearing and that they found that the defendant could understand and comprehend the nature of his acts and that he could participate in his own defense and cooperate in the trial of his case. The defendant accepted these reports. On appeal appellant does not challenge the reports’ sufficiency under § 552.020. The procedure followed by the court was approved in Mikel v. State.


author: HARBISON, Justice.

text:
    CONSOLIDATED COAL COMPANY, Appellant-Defendant, v. Harlan BRAY, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    July 10, 1978.
    W. Keith McCord, Knoxville (McCord & Cockrill, Knoxville, of counsel), for appellant-defendant.
    Frank Q. Vettori, Knoxville, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the employer appeals from an award to the employee of total permanent disability benefits for coal worker’s pneumoconiosis.

No question is raised but that the employee at the time of trial had sustained total and permanent disability. The employer insists, however, that there is no material evidence to demonstrate that this disability was attributable to pneumoconio-sis, as distinguished from a heart condition from which the employee admittedly suffered. In addition the employer assigns error on the admission and exclusion of evidence. From our review of the record we find that the assignments of error are not well taken. We accordingly affirm the judgment of the Chancellor.

Prior to his last day of work on March 18, 1976, the employee had worked for appellant for twenty-seven years in underground coal mining operations. He was exposed to substantial amounts of coal dust in this work. Both of the physicians who testified in the case found that when they examined him in 1976 and 1977 respectively, he was suffering from coal worker’s pneumoconio-sis. Both of them testified that he suffered permanent disability by reason of this lung disease. They differed as to the seriousness and extent of the pneumoconiosis and the disability caused thereby. Petitioner, his wife and a fellow employee described his symptoms and the severe limitations upon physical activity in which he is able to engage.

Dr. Sheldon E. Domm testified on behalf of the employee. His qualifications as a thoracic surgeon and specialist in the field of chest and lung diseases were stipulated. He described his findings on x-ray and the results of studies and tests of the employee’s pulmonary functions. It was his professional opinion that the employee was totally unable to perform labor by reason of pneumoconiosis and that this disability was permanent.

Neither Dr. Domm nor any other physician testified as to the degree or extent of the heart disease from which the employee also suffered, but Dr. Domm’s testimony was clear that the lung condition alone was sufficient to cause total permanent disability-

We are of the opinion that the testimony of Dr. Domm afforded substantial and material evidence to support the finding of the trial court that the employee was disabled as a result of coal worker’s pneumoconiosis. This evidence was sufficient to justify the award which was made, and the assignments of error as to the sufficiency of the evidence are overruled.

The employer’s contention that Dr. Domm’s testimony does not constitute material evidence is based upon the fact that most of the employee’s pulmonary function test ratings were above the minimum capacities set forth in federal regulations as sufficient in and of themselves to demonstrate total disability. Dr. Domm stated his professional opinion as to disability, which by stipulation he was qualified to give, based upon his extensive experience with this disease and upon his personal examination and findings with respect to the patient.

In Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23 (Tenn.1976), it was held that a state court, although applying federal standards and criteria, should make an independent determination of the employee’s entitlement, and that it may consider any competent evidence presented on that issue by either party. In our opinion, Dr. Domm’s expert opinion constituted such evidence. We do not understand that total disability under the federal regulations must be established solely through pulmonary function studies and that no other type of evidence is material or sufficient. There was conflicting medical testimony in the record. The evidence given by the expert witness offered by the employer, if accepted by the trial judge, would have supported a finding different from that based on the testimony of Dr. Domm. That, however, does not destroy the probative value of Dr. Domm’s testimony.

The employer sought to introduce into evidence an application and supporting data submitted by the employee to the United States Department of Labor in an effort to obtain black lung benefits under federal statutes. The trial court excluded this evidence, which included a preliminary ruling by a claims examiner. The evidence was not offered, insofar as we understand the employer’s contentions, for the purpose of impeaching the testimony of the employee or to show a prior inconsistent statement on his part or that of any other witness, but as substantive evidence that the employee had not sustained total disability as a result of pneumoconiosis.

We are of the opinion that the trial court properly sustained the objection of counsel for the employee as to this proffered evidence. In the case of Bingham v. Dyers burg Fabric Co., et al, Tenn., 567 S.W.2d 169, released June 12, 1978 at Jackson, for publication, the court considered a similar contention and held:

“Awards or findings of the Social Security Administration are not admissible in the courts of Tennessee in a workmen’s compensation case for the purpose of showing the existence or the extent of an employee’s permanent disability.”

Appellant has cited no authority for its insistence that the conclusions of the federal claims examiner and the data contained in his file are admissible as substantive proof in the face of proper objection. Certainly, inconsistent statements contained in such a file, made either by the employee or contained in any medical report or other documents submitted by him in support of his claim, would probably be admissible for the purpose of impeachment, but this is a far different issue from the proposition asserted here.

The employer further assigns error to the action of the trial court in permitting the employee to describe his symptoms and complaints, and in particular to the action of the Court in permitting him to testify, over objection, about statements made to the employee by Dr. Wender,' one of the physicians attending him for his heart and lung conditions. This physician did not testify, but the employee was permitted to state on re-direct examination that Dr. Wender had told him that he could not go back into the mines with his lung and heart in the conditions which the doctor had found.

Ordinarily, of course, such testimony would be hearsay and should be excluded upon proper objection. In this case, however, the testimony was elicited on re-direct examination after counsel for the employer had commenced his cross-examination as follows:

“Q. Now, Dr. Wender put you in the hospital, did he not, I believe you said?
“A. He sure did.
“Q. And Dr. Wender found and told you that you have a severe heart condition, didn’t he?
“A. Yes, sir.
“Q. Chronic arteriosclerotic heart disease?
“A. I don’t know if it was put that way or not, but I know he said I had one.
“Q. And he told you that you had to quit work?
“A. He said I’m retiring.”

In view of these questions and others in which the employee was asked about his conversations with Dr. Wender, we are of the opinion that the re-direct examination was proper, and that counsel for appellant had himself initiated questioning upon the subject of Dr. Wender’s conversations with the employee. Having done so, his objection to further exploration of that subject on re-direct examination was properly overruled. See D. Paine, Tennessee Law of Evidence § 185 (1974).

The employee’s testimony describing his symptoms and complaints, in general, was admissible. He was not qualified to testify as to the medical reasons or cause of these, of course, but any error of the trial court in not formally striking portions of his testimony from the record was harmless and did not affect the outcome of the case. The hearing was non-jury, before an experienced Chancellor, who was clearly able to eliminate any incompetent evidence from consideration in reaching his decision.

The judgment of the trial court is affirmed at the cost of appellant. The cause is remanded to that court for entry of such further orders as may from time to time be necessary.

HENRY, C. J., FONES and BROCK, JJ., and W. WAYNE OLIVER, Special Justice, concur.