text:
    RICKERMANN AUTO BODY, INC., Plaintiff (Appellant), v. Richard LAUGHLIN, and Fireman’s Fund Insurance Company, a/k/a Fireman’s Fund American Insurance Companies (Respondent), and Key Diversified Leasing, Inc., Defendants.
    No. 36054.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 19, 1975.

      Leroy M. Steiner, Des Peres, for plaintiff.
    Alan J. Baker, Thomas W. Taylor, Clayton, George J. Jeggle, St. Louis, for respondent.
   GUNN, Judge.

We review here the classic example of the uncomplicated law suit which has its germ seed planted in the fertile soil of the magistrate court, takes root, ripens and blossoms into a convoluted appeal. The litigation was engendered in magistrate court when Rickermann Auto Body, Inc. (plaintiff-appellant) brought suit against defendants Richard Laughlin, Key Diversified Leasing and Fireman’s Fund Insurance Co., a/k/a Fireman’s Fund American Insurance Companies (respondent) to recover $509.25 for repairs performed by Rickermann Auto Body, Inc. to an automobile leased by Laughlin, owned by Key Diversified and insured by Fireman’s Fund. The magistrate court’s judgment was in favor of Rickermann as to Laughlin and Key Diversified but in favor of Fireman’s Fund. Thus, Rickermann was victorious against Laughlin and Key Diversified but lost as to Fireman’s Fund. Within ten days of the magistrate court’s judgment, Rickermann appealed to the circuit court by filing notice of appeal. Fireman’s Fund moved to dismiss the appeal claiming the notice of appeal to be defective and that no appeal had been taken as to it. The circuit court sustained Fireman’s Fund’s motion to dismiss the appeal. Subsequently, Rickérmann filed a motion to vacate the circuit court order, which was denied, and this appeal of the circuit court’s order dismissing the magistrate’s appeal as to Fireman’s Fund followed.

The core issue on appeal is whether Rick-ermann’s notice of appeal of the magistrate court judgment was defective as to Fireman’s Fund thereby depriving the circuit court of jurisdiction to hear Rickermann’s appeal. We find that the circuit court does have jurisdiction to hear the appeal and it was error to sustain Fireman’s Fund’s motion to dismiss the magistrate appeal.

The first statute relevant to this appeal is § 512.180. § 512.180 establishes the right to appeal magistrate court decisions and provides in pertinent part:

“Any person aggrieved by any judgment rendered by a magistrate, except a judgment by consent, may, in person or by his agent, appeal therefrom, unless otherwise provided by law, to the circuit court of the same county where the judgment was rendered . . . .”

§ 512.190 sets forth the procedure for filing notices of appeal as follows:

“A party or Ms agent may appeal from a judgment by filing notice of appeal with the magistrate within ten days after the judgment is rendered. Á copy of same shall be mailed by the magistrate to the clerk of the circuit court of the county and to the opposing party or his attorney of record or served upon him as provided by law for the service of notices within fifteen days after the judgment was rendered . . . .”

§ 512.270 provides that magistrate appeals shall be tried de novo in the circuit court, and § 512.280 requires that the same cause of action be tried on appeal. Indispensible to the magistrate appeal is the filing and service of notice of appeal, Randolph v. Supreme Liberty Ins. Co., 195 S.W.2d 115, 116 (Mo.App.1946); Owl Drug Co. v. Frank E. Whalen Advertising Co., 156 S.W.2d 777, 781 (Mo.App.1941), which brings us to the cynosure of this case — the notice of appeal.

Pursuant to § 512.190 Rickermann filed the following notice of appeal:

“In the magistrate court of St. Louis County, Missouri Eleventh District
Rickermann Auto Body, Inc. plaintiff vs. Richard Laughlin, et al. defendants
No. R-57
TO Robert Meyer, Atty for Richard Laughlin George Jeggle, Atty for Firemen’s (sic) Fund Am. Ins. Co.
Tom Taylor, Atty for Key Diversified, Inc.
TAKE NOTICE, that an appeal has been taken from the judgment of Melvyn W. Wiesman, Judge of the Magistrate Court of St. Louis County, Missouri, District, acting for Harvey Schramm, rendered on the 21st day of September 1972 for $509.25 + %8.62 Interest and costs, in favor of the said Rickermann Auto Body, Inc. against the said Richard Laughlin and Diversified Leasing, Inc. Said appeal was taken to the Circuit Court of St. Louis County, Missouri.
Dated at Clayton, Mo in St. Louis County, Missouri, this 29th day of September 1972
[signed] LeRoy M. Steiner
Atty for Rickermann Auto Body, Inc.”
(emphasis added)

Fireman’s Fund points to the portion of the notice which recites that appeal is being taken from the judgment “in favor of said Rickermann Auto Body, Inc. v. said Richard Laughlin and Diversified Leasing, Inc.” and submits that since the notice did not specifically mention Fireman’s Fund that no appeal was taken as to Fireman’s Fund; that Rickermann, having omitted the words “Fireman’s Fund Ins. Co.” had not appealed from the entire judgment. Further, Fireman’s Fund argues that since the entire magistrate judgment was not appealed, the circuit court was without jurisdiction to hear the appeal and properly dismissed Rickermann’s appeal. We disagree.

The parties acknowledge that there was but a single judgment entered in the magistrate court with the magistrate finding in favor of Rickermann against Laughlin and Key Diversified but in favor of Fireman’s Fund. Rickermann admits that in describing the judgment he failed to include that judgment had been rendered in favor of Fireman’s Fund but contends, despite the omission, that the notice was sufficient to notify Fireman’s Fund that an appeal was being taken from the entire magistrate court judgment.

The purpose of the notice requirement of § 512.190 is to inform the appellee of the fact that an appeal has been taken from the magistrate court judgment. Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267, 268 (1920); Schuchart v. Brasler, 249 S.W. 164,167 (Mo. App.1923); Munroe v. Herrington, 99 Mo. App. 288, 73 S.W. 221, 222 (1903). As stated in the venerable case of Munroe v. Herrington, supra, at 222:

“The purpose of the statute, in requiring notice of an appeal from a justice’s court . , is to apprise the successful party of the fact that an appeal has been taken. The statute prescribes no specific form of notice, and we think that a notice is good if it sufficiently describes the judgment appealed from to reasonably identify it, and informs the successful party that his adversary has appealed. Such a notice would be a substantial compliance with the statute, and would meet the demands of justice. The law requires nothing more.”

The standards recited in Munroe v. Her-rington still apply. There is no suggestion in this case that counsel for Fireman’s Fund did not receive plaintiff’s notice of appeal. Therefore, we need only determine if the notice was sufficient to alert Fireman’s Fund to the fact that an appeal was being taken from the magistrate court judgment and that Fireman’s Fund was a party to the appeal.

Notice must enable the prevailing party in the magistrate court to properly protect himself in the court and at the term where the issues involved are to be determined so that he will not be deprived of the benefits of his judgment by in camera procedure on the part of the losing party. Western Employment Counselors Ass’n v. Severinghaus, 237 Mo.App. 1033, 170 S.W.2d 950, 952 (1943). It has been held that notice of appeal is sufficient if it “informs the appel-lee of enough of the facts concerning the appeal from which any reasonable person would conclude that he had knowledge that the appeal had been taken.” Conrey v. Davis, 216 Mo.App. 341, 256 S.W. 519, 520 (1923). Notice is sufficient if it reasonably describes the judgment, the parties and the court which rendered the judgment, and if it informs the parties that an appeal has been taken. Conrey v. Davis, supra; 47 Am.Jur.2d Justices of the Peace, § 109 Notice of Appeal (1969). In evaluating Rick-ermann’s notice of appeal in the candes-cence of these standards, we are reminded that the procedural requirements of § 512.-190 are to be liberally construed. Standard Historical Soc. v. Gillespie, 111 S.W.2d 954 (Mo.App.1938); Schuchart v. Brasler, supra.

We find that Rickermann’s notice of appeal is sufficient. Although words reciting the fact that a judgment had been in favor of Fireman’s Fund were omitted, the judgment being appealed is adequately described so as to place Fireman’s Fund on notice that an appeal of the entire judgment had been filed. This is so for several reasons: 1) The notice states that “an appeal has been taken from the judgment of Melvyn W. Wiesman.” Both Rickermann and Fireman’s Fund agree that there was only one judgment in the magistrate court — in favor of Rickermann as to Laughlin and Diversified Leasing, and against Rickermann as to Fireman’s Fund. Since there was only one judgment, the language of the notice quoted above is unambiguous; Rickermann is appealing that specific judgment of magistrate Melvyn W. Wiesman. 2) The notice of appeal accurately states the date that judgment was rendered. The attorney for Fireman’s Fund would thereby be informed of precisely what judgment of Melvyn W. Wiesman was being appealed. 3) The notice accurately sets out the amount of the judgment. This has the effect of further defining the judgment. 4) The notice does mention that judgment was in favor of Rickermann Auto Body and against Richard Laughlin and Diversified Leasing. Although this is an incomplete description of the total judgment, when read together with the information listed above, it further delineates the decision being appealed. These factors would enable a reasonable person to know exactly what judgment is being appealed. In an early decision, the St. Louis Court of Appeals held that notice of appeal was sufficient despite the fact that it failed to state in whose favor the judgment was rendered, the nature of the suit, the amount of the judgment, or the date when it was rendered. Holschen Coal Co. v. Missouri Pac. Ry. Co., 48 Mo.App. 578 (1892). There is much more descriptive information in this case.

In addition to the information appearing on the notice that describes the judgment, it must be noted that Fireman’s Fund does not contend that there were any other suits pending between these parties in any magistrate court. Several decisions, in holding notices of appeal to be sufficient despite inaccuracies or incompleteness, have found such factor to be relevant. Rainey v. Reorganized Church of Jesus Christ of the Latter Day Saints, 207 Mo.App. 205, 231 S.W. 1017 (1921); Wolf v. Marples, 231 S.W. 1019 (Mo.App.1921); Shw&yder v. Altenberg, 191 S.W. 1121 (Mo.App.1917); Holsehen Coal Co. v. Missouri Pac. Ry. Go., supra. In Shwayder v. Altenberg, supra, the plaintiff brought an attachment suit and was successful both on his plea in abatement and on the merits. Ancillary to these judgments was a judgment against the garnishee. In their notice of appeal the defendants appealed “from the judgment of the justice,” id. without specifying which of the three judgments was being appealed. In holding the notice to be sufficient, the Kansas City Court of Appeals said id., at 1122:

“The evidence shows, and it is unquestioned, that there was but one case between the parties in said justice court, and that there was no other case to which said notice could apply. And the record shows that the three judgments rendered by the justice, namely, the one sustaining the attachment, the one on the merits, and the one against the garnishee, are all contained in one entry upon the justice’s record and made on the same day and under one and the same caption. This last-mentioned fact is of little or no consequence, but it is mentioned along with the others showing that there is no room for confusion as to what judgment was referred to in the notice.”

Since there were no other suits pending between the parties, there could be no confusion as to what judgment was being appealed.

The failure to include in the description of the judgment the fact that judgment was rendered in favor of Fireman’s Fund does not devitalize the notice and can be analogized to situations in which other descriptive elements of judgments were either omitted from the notice of appeal or incorrectly represented. Under these circumstances, notices of appeal were found to be sufficient so long as they otherwise properly described the judgment involved. Davenport Vinegar & Pickling Works v. Shelley, supra (the date of the judgment and the amount of judgment as appearing in the notice were inaccurate); Rainey v. Reorganized Church of Jesus Christ of the Latter Day Saints, supra (the notice failed to include amount of the judgment and the date it was rendered); Swift & Co. v. Baldwin, 185 S.W. 551 (Mo.App.1916) (the name of the justice of the peace was misspelled). See also Holsehen Coal Co. v. Missouri Pac. Ry. Co., supra.

Rickermann’s notice of appeal also sufficiently describes the parties involved in the appeal. The notice is directed to the attorneys for all three defendants. On its face, the notice names all three defendants. With all the other factors present, we do not find that the caption identifying “Richard Laughlin, et al” as defendants is particularly deficient. In Cowhick v. Jackson, 161 Mo.App. 459,143 S.W. 558 (1912), one of three defendants filed a notice of appeal containing the following caption: “Rebecca Cowhick, Plaintiff, v. John T. Jackson and others, Defendants.” 161 Mo.App. at 460, 143 S.W. at 558. The use of “and others” was held to satisfy § 7582 RSMo 1909 and thus notice was sufficient. Certainly, then in the case before us, the use of “et al.” as describing the defendants together with all of the other information contained in the notice, gave Fireman’s Fund adequate notice of the appeal. The notice informs Fireman’s Fund of enough facts concerning the appeal so that any reasonable person would conclude that Fireman’s Fund had notice that the appeal had been taken. Conrey v. Davis, supra. Furthermore, it should be noted that since Rickermann obtained judgments against Laughlin and Diversified Leasing but not as to Fireman’s Fund, Rickermann’s appeal of the magistrate decision would surely be directed to that portion of the judgment in which he was unsuccessful. This additional factor would warn all the parties involved of the fact that an appeal was being taken against Fireman’s Fund, for it would be fatuous for Rickermann to appeal only the favorable portion of the judgment and allow the unfavorable to stand.

Fireman’s Fund contends that the failure to include the fact that judgment had been rendered in favor of Fireman’s Fund renders Rickermann’s appeal defective on the ground that the plaintiff has failed to appeal the entire judgment. Fireman’s Fund and the circuit court, in sustaining Fireman’s Fund’s motion to dismiss, rely on two cases for support: Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16 (Mo.App.1962) and Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118 (Mo.App.1951). Both cases involved appeals from magistrate judgments in which the appealing parties attempted to exclude from the appeals counter and cross-claims made by the defendants. Both appeals were held to be defective because appeal was not taken from the entire judgment of the magistrate court. The results in these cases are controlled by § 517.270 which requires the magistrate to render one judgment when a set-off or counter-claim is involved. Since plaintiff’s claims and defendant’s claims are to be computed into one judgment, failure to include a counterclaim in an appeal is equivalent to appealing only a portion of the magistrate judgment.

“[A]n appeal from a magistrate court involving counterclaims where only one judgment is authorized must on appeal be tried de novo, must be the same lawsuit and no other, that was tried below and the appeal must be from this one final and complete judgment and not from only a part of it; otherwise, the appeal is unauthorized and does not confer jurisdiction upon the circuit court.”

Rudy-Fick, Inc. v. Snider, supra, 363 S.W.2d at 19. Neither Rudy-Fick nor Gloria Lee Realty is persuasive or apposite to this rase. No counter-claims or cross-claims were made by any of the three defendants involved. Further, the appellants in their notices of appeal in Rudy-Fick and Gloria Lee Realty, expressly limited their appeals. For example, in Rudy-Fick, the plaintiff appealed the judgment of the magistrate court pertaining to “ ‘plaintiff’s petition only.’ ” Rudy-Fick, Inc. v. Snider, supra at 17. No such express limitation appears in Rickermann’s notice of appeal. Ricker-mann is appealing the entire judgment of the magistrate court. The omission complained of occurs in the section of the notice of appeal which sets forth which parties won and which parties lost in the magistrate court. This section is designed to describe the judgment being appealed — not to indicate who will be parties to the appeal.

For the reasons stated above we find Rickermann’s notice of appeal to be sufficient and hold that the circuit court erred in sustaining Fireman’s Fund’s motion to dismiss the appeal. We believe that the law requires nothing more for this magistrate appeal than was done here by Rickermann. Munroe v. Herrington, supra.

The judgment is reversed and remanded to the circuit court for further proceeding.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Laughlin also appealed the magistrate court judgment against it, but that appeal is not involved in this case.

      . Statutory references are to RSMo 1969, except as otherwise noted.

      . § 512.190 replaced and repealed several sections of RSMo 1939. § 2741 RSMo 1939 required that notice of appeal be “in writing, stating the fact that an appeal has been taken from the judgment therein specified.” Similar requirements are found in § 2905 RSMo 1919, § 7582 RSMo 1909 and § 4074 RSMo 1899. The more detailed description of notice of appeal was deleted in § 512.190.

      . § 512.280 provides:
      “The same cause of action, and no other, that was tried before the magistrate, shall be tried before the appellate court upon the appeal; provided, that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be added in the appellate court.”

      . The court in Schuchart was dealing with § 2905 RSMo 1919, the court in Davenport was dealing with § 7582 RSMo 1909, and the court in Munroe was dealing with § 4074 RSMo 1899. See note 3, supra.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Clifford A. SCHMID, Plaintiff-Appellant, v. Henry F. LANGENBERG et al., Defendants-Respondents.
    No. 36110.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 19, 1975.

      Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Robert C. Jones, Clayton, for plaintiff-appellant.
    Lewis, Rice, Tucker, Allen & Chubb, Richard B. Rothman, St. Louis, for defendants-respondents.
   GUNN, Judge.

Plaintiff-appellant was sorely bruised in a stock market transaction and has sought healing balm and recompense through recoupment of his losses from defendants-respondents, who are general partners in the stock brokerage firm of Reinholdt & Gardner, and through whom plaintiff purchased certain stock. Plaintiff sued under § 409.411(a)(1) of the Missouri Uniform Securities Act alleging that defendants had violated § 409.301 by selling plaintiff an unregistered security. Defendants claim that the sale of stock was unsolicited and thereby an exempt transaction under § 409.402(b)(3). Under § 409.301, it is unlawful to offer for sale or to sell in Missouri any unregistered security unless exempted under § 409.402. The exemption section permits the sale of unregistered stock in a non-issuer transaction through a registered broker-dealer pursuant to an unsolicited order if the broker-dealer acts as agent for the purchaser and receives no compensation except from the purchaser. The critical issue as submitted to the jury was whether the sale of an unregistered stock to plaintiff was solicited by defendants. The jury found that it was not and awarded its verdict to defendants. On appeal, we consider the same issue as to whether the sale of stock was by unsolicited order under § 409.402(b)(3). We review the evidence in the light most favorable to the jury verdict and resolve all reasonable inferences in favor of the prevailing party. Parker v. Stern Bros. & Co., 499 S.W.2d 397 (Mo.1973); Bitter v. Lindberg Acoustics, Inc., 501 S.W.2d 207 (Mo.App.1973). We find no prejudicial error by the trial court and conclude that the jury could find as a fact that the sale of stock to plaintiff was unsolicited. We therefore affirm the judgment.

The unintended conception of this lawsuit occurred in early October, 1969 when plaintiff and defendant James Johnson, a partner in Reinholdt & Gardner, were having lunch to discuss plaintiff’s personal and family stock portfolios. Plaintiff, no callow fellow to the ways of stock investment, was president of a bank and prior to joining his bank he had been an investment analyst for a trust company. Plaintiff and Johnson had been acquaintances since their high school days, and plaintiff had bought and sold stocks through Johnson for at least three years. During the luncheon, the conversation drifted to a stock which was unregistered in Missouri, originally known as Motel Managers Training School and later as Diversified Educational Systems, Inc. (DESI).

It is fundamental to the question of solicitation to examine how the discussion was initiated. Johnson testified that it was not uncommon for plaintiff to ask about Johnson’s personal investments, and at the luncheon, plaintiff did inquire about Johnson’s personal investments. In response to the inquiry, Johnson related that he told plaintiff that he was investing in a stock that was not “Blue Skyed” in Missouri; that since the stock was not registered in Missouri, Johnson “could not talk to people about it.” Plaintiff was apparently intrigued and expressed an interest in the stock, so Johnson suggested that plaintiff ask him specific questions about it. At trial, Johnson testified that he held the belief that he could properly respond to questions of an unregistered stock if asked by family and friends. During the luncheon, Johnson did answer plaintiff’s specific questions about the DESI stock and at plaintiff’s request gave plaintiff a brochure on the stock prepared by another stock brokerage house. Plaintiff testified that at the luncheon he was fully aware that the stock was unregistered; that he understood Johnson was not able to solicit sales of the stock; that Johnson had mentioned the possibility of having plaintiff sign a non-solicitation letter, which plaintiff testified that he “most probably would have signed if given such a letter” by Johnson.

Within a day or two after the luncheon, on October 9, plaintiff telephoned Johnson and ordered a purchase of 300 shares of DESI stock which was selling at the time for $19 per share. After the initial purchase, plaintiff continued to inquire about the condition of the stock, and, influenced by its excellent performance, on November 14, 1969, plaintiff placed an order with Johnson for another 200 shares of DESI stock at $26 per share. The stock continued to ascend and reached its pinnacle in the thirties. But the sojourn to the summit was transitory, for in the late winter of 1970 the stock plummeted in swift and scarped descent. In April, 1970 plaintiff sold the 200 shares at $10 per share and in November, 1970 with the stock approaching its nadir, plaintiff sold the original 300 shares for a total of $235.49. Plaintiff thereby claims a loss from the two transactions of $8,713.51 plus attorney’s fees. In the transactions, defendants received no compensation except from plaintiff.

The trial court withdrew from the jury’s consideration the issue of the second purchase of the 200 shares of stock, having found as a matter of law that the second purchase was unsolicited, and the jury returned a verdict for defendants finding that the first purchase of 300 shares of DESI stock was unsolicited. Plaintiff appealed, alleging that the trial court erred: 1) in withdrawing from the jury the issue of the second purchase of stock; 2) in failing to find as a matter of law that the first purchase was solicited by defendants; 3) in failing to admit into evidence a document circulated by Reinholdt & Gardner warning its employees not to solicit sales of unregistered stock; and 4) in failing to sustain plaintiff’s objection to defendants’ counsel’s reference to the second transaction in closing argument.

Plaintiff’s first contention is that the trial court erred in giving an MAI-34.01 modified withdrawal instruction on the issue of the second purchase of 200 shares of DESI stock. Plaintiff contends that he had made a submissible case as to the purchase of 200 shares of stock in November, 1969 and that the jury could have found as a matter of fact that the second sale was solicited. Plaintiff argues that his plan, as made known to Johnson, had been to make a $10,000 total purchase of DESI stock and that the initial purchase of 300 shares was only the first step in implementing the plan; that due to the admitted speculative nature of the stock plaintiff considered it prudent to initially make only a partial purchase of the stock; that the second purchase, and final step of his plan, was for the purpose of averaging plaintiff’s costs. Plaintiff’s testimony at trial that the two purchases were part of one scheme is substantially less clear than plaintiff suggests on appeal. When asked whether he had indicated to Johnson what the total purchase would be, plaintiff responded: “I don’t remember a specific figure. I do remember it was usually my thinking relative to any purchase that I should keep my investment of $10,000.00 or maybe a little bit less.” The foregoing is scarcely a ringing affirmation that communication was made to Johnson that there was to be a total investment of $10,000 by plaintiff in DESI stock and that the first purchase was merely a part of the total plan with a second purchase to follow. More to the point and justification for the withdrawal instruction was plaintiff’s specific admission at trial that he was “not solicited with respect to the second purchase of the 200 shares.”

The intended use of withdrawal instructions, as noted in the Supreme Court Committee’s general comment to MAI 34.-01, is when the trial court has received evidence upon an issue which is later abandoned through choice or by reason of inadequate proof for final submission to the jury. Withdrawal instructions are used where the evidence might raise a false issue. Temple v. Atchison, Topeka & Santa Fe Ry. Co., 417 S.W.2d 97 (Mo.1967); De Moulin v. Kissir, 446 S.W.2d 162 (Mo.App.1969). And the giving or refusal of withdrawal instructions is within the discretion of the trial court. Helming v. Adams, 509 S.W.2d 159 (Mo.App.1974). Under the circumstances of this case we can find no abuse of discretion by the trial court’s giving the withdrawal instruction on the second stock purchase. The second purchase of DESI stock, separated by a month’s time from the first purchase, was initiated solely by plaintiff after observing the stock increase in value during that month. The matter of the second purchase was a false issue and the trial judge was justified in withdrawing that issue from the jury’s consideration.

Referring to Price v. Bangert Bros. Road Builders, Inc., 490 S.W.2d 53 (Mo.1973) and Scott v. Thornton, 484 S.W.2d 312 (Mo.1972), plaintiff argues that the withdrawal instruction was tantamount to a directed verdict and that no verdict should be directed for a party having the ultimate burden of proof; that under § 409.402 defendants have the burden of proving the sales exemption. But there is a qualitative deficiency in plaintiff’s thesis due to plaintiffs acknowledgment that the second sale was not solicited. Defendants do have the burden of proving that the sale of stock was exempted from the statute’s prohibition under § 409.402(d). But even if the withdrawal instruction is viewed as a directed verdict in favor of defendants, there is no proscription against a directed verdict. As a general rule the party having a burden of proof is not entitled to a directed verdict. But plaintiff specifically admitted at trial that the second stock purchase was unsolicited, and the evidence is clear that the order was placed without inducement by defendants. Hence, a verdict could properly have been directed against him on this issue, and there was no error in giving the withdrawal instruction as to the second stock purchase, the admission having lifted the weight of the burden of proof. Commerce Trust Co. v. Howard, 429 S.W.2d 702 (Mo.1968); Charles F. Curry & Co. v. Hedrick, 378 S.W.2d 522 (Mo.1964). See also Auffenberg v. Hafley, 457 S.W.2d 929 (Mo.App.1970).

Plaintiff’s second contention is that the trial court erred in giving an instruction allowing the jury to find as a matter of fact that the first sale of DESI stock was unsolicited. He maintains that there was solicitation of the first sale as a matter of law. Again, the issue here is whether the first sale of the stock was unsolicited and therefore exempt under § 409.402(b)(3) from the Missouri Uniform Securities Act general interdiction against the sale of unregistered securities. The statute does not define “solicitation,” so we must look elsewhere to determine if the trial court was correct in allowing the jury to decide as a matter of fact that there was no solicitation.

There are no Missouri cases involving the sale of stock which help us to define the word “solicitation.” An Illinois case involving a Blue Sky statute similar to Missouri’s gives the following general definition:

“A solicited sale is one in which the salesman ‘actively encourages the purchase or sale of a security by a client.’ Unsolicited sales, in which a customer requests that a security be purchased for him and the salesman just takes the order and acts as agent for the purchaser, are not prohibited.” Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274, 279 (1962).

In Link, Petter & Co. v. Pollie, 241 Mich. 356, 217 N.W. 60 (1928), it was held that there was a “solicitation” within the narrowest meaning of the Michigan Blue Sky law when an investment banker “importuned” a customer on the phone by saying “Won’t you buy?” and telling him he “thought he ought to buy.” These two cases, although not binding, help us view our case with some perspective. Although Johnson was the first to mention an unregistered stock, the reference was in response to plaintiff’s inquiring as to what Johnson “was doing and how are you [Johnson] doing” in the market. Johnson merely proceeded to answer plaintiff’s questions about the security. It cannot be said unequivocally that defendant “actively encouraged the purchase” by plaintiff as the Home Indemnity Co. case specified. And, of course, the defendant did nothing resembling the encouragement of the sale in the Link case.

The federal securities case of Sargent v. Genesco, Inc., 492 F.2d 750 (5th Cir. 1974), is meaningful and sheds light on the issue of whether a solicitation is a question of fact or law. In Sargent, it was held that whether a particular communication would be a solicitation of a proxy within the meaning of the federal statutes regulating proxy solicitations would constitute a question of fact and depend upon the nature of the communication and surrounding circumstances. Bittiker v. State Bd. of Registration for Healing Arts, 404 S.W.2d 402 (Mo.App.1966), offers a detailed definition of “solicitation” as used in a Missouri statute. The statute in the Bittiker case, rather than being a Blue Sky law, pertained to the revocation of physicians’ licenses for “soliciting” patronage. The court emphasized that in construing Missouri statutes, nontechnical words and phrases must be taken in their “plain or ordinary and usual sense.” The court found that “solicitation” was not a word of technical meaning as used in the statute under consideration and that all reasonable persons would regard the word “soliciting” in that particular context as “meaning to ask for or to request some thing or action in language which convinces that the asking or requesting is being done in earnest and that the solicitor wants results.” The court adopted the definition in Webster’s International Dictionary as the “plain or ordinary and usual sense” of the word:

“To awake or excite action; to rouse a desire in; to summon; to appeal to; to invite; allure. To endeavor to obtain by asking or pleading. To urge the claims of; to advocate.”

We find that the word “unsolicited” in the Missouri Uniform Securities Act should also be used in a non-technical sense. In view of the definitions offered in Bittiker and the foregoing eases we have cited, and treatment of solicitation in the Sargent case involving federal securities law, we are convinced that the question of solicitation of the first stock purchase presented a fact issue which was correctly submitted to the jury.

We hold further that there was substantial evidence to uphold the jury’s determination that the sale was unsolicited. This is particularly true since plaintiff admitted on cross-examination that he would probably have signed a non-solicitation letter, indicating that the sale was unsolicited, had such a letter been presented to him. Since there is substantial evidence to uphold the jury’s determination, we shall not interfere with that decision. Bower v. Hog Builders, Inc., 461 S.W.2d 784 (Mo.1970); Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494 (Mo.App.1973).

Plaintiff’s third assignment of error is that the trial court erred in failing to admit a certain document into evidence. The document in question was a sales memorandum prepared by Reinholdt & Gardner which warns agents of the company to carefully follow the Blue Sky statutes when dealing with unregistered stock. Counsel for the defendants objected to the exhibit on the grounds it was a reference to Michigan law and therefore immaterial; that it dealt with a legal conclusion. The objection was sustained. Plaintiff correctly points out that although the memorandum was expressly “adapted from a Notice in the Securities Bulletin, State of Michigan,” it does specifically deal with the Missouri Blue Sky statute. Plaintiff contends that the memorandum should have been admitted into evidence, since it offered guidelines for compliance with the Missouri statute and was therefore relevant. Upon examination of the proposed exhibit we conclude that it does not offer any clear guidelines for compliance with Missouri’s Uniform Securities Act. The memorandum merely warns that “it may be difficult to determine whether or not the element of solicitation is present,” and that agents should use the utmost care in dealing with unregistered securities. Although Johnson testified at trial that it was open to question whether he complied with the policies set out in the memorandum, we do not find that the proffered exhibit was necessarily relevant to the question in issue. Even if the memorandum had set forth definite principles for defendants’ agents to follow and which Johnson had clearly violated (which is not the case here), that fact would not be conclusive that a violation of the Missouri Uniform Securities Act had occurred. As defendants emphasize, the memorandum is not the law of Missouri, and since it did not offer a clear set of rules for defendants’ agents to follow when dealing with unregistered stock, it is less helpful to try to measure Johnson’s conduct against any company standard. Since the probative value of this evidence was questionable, admission of the memorandum was within the sound discretion of the trial court. State ex rel. State Highway Com’n v. City of Sullivan, 520 S.W.2d 186 (Mo.App.1975); Cardello v. Bauer, 433 S.W.2d 81 (Mo.App.1968). We do not find any abuse of the trial judge’s discretion in rejecting the exhibit and will not interfere with his decision as to the admissibility of the memorandum. State ex rel. State Highway Com’n v. City of Sullivan, supra.

Plaintiff’s final contention of error concerns defendants’ counsel’s reference in his closing argument to the second purchase of stock by plaintiff. Objection was made when defendants’ counsel reminded the jury of the second purchase of DESI stock which had been withdrawn from the jury’s consideration. Defendants’ counsel mentioned to the jury that plaintiff had held the stock as long as it was increasing in value, bought 200 shares more, then sold the 200 shares when the value decreased and retained the initial 300 shares for a longer period of time.

It is indeed true, as plaintiff adroitly argues, that in closing argument counsel should not present or draw inferences from matters not in evidence. Davis v. City of Independence, 404 S.W.2d 718 (Mo.1966). Nor, should there be conflict between closing argument and submitted instructions. Moss v. Mindlin’s, Inc., 301 S.W.2d 761 (Mo.1957). But as stated in Beesley v. Howe, 478 S.W.2d 649 at 652, 653 (Mo.1972):

“The regulation of argument is a matter largely within the discretion of the trial court and it is the policy of the law to indulge a liberal attitude in ruling contentions relating to jury argument.”

The trial court possesses a coign of vantage which best permits it to observe the proceedings and judge the prejudicial force exerted on the jury by counsel’s comments. In Cassin v. Theodorow, 504 S.W.2d 208 (Mo.App.1973), the gauge for measuring whether argument of counsel required reversal of a jury’s verdict was set forth as follows, l.c. 205:

“. . . the applicable rule is as stated in Handshy v. Nolte Petroleum Company, 421 S.W.2d 198, 202 (Mo.1967), where the court noted that the trial judge is in the best position to determine the effect of an alleged prejudicial argument and stated: ‘. . .we are inclined to defer to his rulings unless it appears that the protested arguments so patently pass legitimate bounds as to be manifestly prejudicial and the ruling of the trial court thereon a clear abuse of discretion.’ ”

Defendants’ brief reference to the second purchase of DESI stock cannot be held to have “so patently passed legitimate bounds.” Therefore, plaintiff’s case as to the first purchase, which was imply described, was not so manifestly prejudiced as to require a reversal of the trial court. Cassin v. Theodorow, supra. This is particularly true since evidence of the second transaction had been presented to the jury by both parties, even though later withdrawn from consideration. The trial judge had the opportunity to consider the possible prejudice of this aspect of the closing argument on motion for new trial and by overruling the motion determined that the argument did not improperly influence the jury. We defer to the trial court’s discretion in this regard and find under the circumstances of this case that the comments of defendants’ counsel in closing argument were not manifestly prejudicial. Nor was there a clear abuse of the trial court’s discretion in denying plaintiff’s motion for new trial based on closing argument of defendants’ counsel. Sestrich v. R. H. Macy & Co., Inc., 493 S.W.2d 52 (Mo.App.1973). See also Paris v. Keefhaver, 512 S.W.2d 892 (Mo.App.1974).

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Statutory references are to RSMo 1969. The Missouri Uniform Securities Act is found in §§ 409.101-409.418. § 409.102 was amended in 1971.

      . A non-solicitation letter, according to plaintiffs testimony and understanding, would state that the plaintiff had initiated the order and had not been solicited for the sale of DESI stock.

      . Other definitions of “solicit” are:
      Solicit mean's to entreat, importune, to plead for, to tempt, beseech, crave, implore. Urick v. Appeal Bd. of Michigan Unemployment Compensation Commission, 325 Mich. 599, 39 N.W.2d 85, 87 (1949); To entreat, importune, to approach with a request or plea, to seek actively. Bigelow Co. v. Waselik, 133 Conn. 304, 50 A.2d 769, 770 (1946); To appeal for something; to apply to for obtaining something; to ask earnestly; to entreat, to implore, to importune; to plead for; to try to obtain; Black’s Law Dictionary, 4th Ed. Rev. 1968.

      . See also Carrel v. Wilkerson, 507 S.W.2d 82 (Mo.App.1974).


author: STEWART, Judge.

text:
    In re the Marriage of V. M., Petitioner-Respondent, v. L. M., Respondent-Appellant.
    No. 36060.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 26, 1975.

      Colson & Wagner, James E. Alexander, Farmington, for respondent-appellant.
    Charles G. Hyler, Farmington, for petitioner-respondent.
   STEWART, Judge.

This proceeding for the dissolution of the marriage of V.M. and L.M. under § 452.300 et seq. was commenced by V.M., the husband, as petitioner. The trial court found that the marriage was irretrievably broken and entered judgment dissolving the marriage. As more fully developed herein, the court made a division of marital property; granted custody of 3 of the unemancipated minor children to respondent, and 2 of the children to petitioner, and made an order for maintenance and child support.

The wife appeals contesting the division of the property, the allowances for maintenance and child support and the award of custody of Mary Jane, age 16, and Andy, age 15, to the father all for the reason that the trial court failed to consider all relevant factors as set forth in the applicable statutes.

The parties were married for one month short of twenty-five years when they separated. Eight children were born of the marriage. At the time of the trial five of the children were minors. Richard (18), Mary Jane (16), Andy (15), Joe (12), and Betsy (14), a retarded child. The husband and wife had acquired a fair amount of property.

We shall develop the facts more fully as they relate to the points raised.

Sections 452.300 to 452.415, titled Dissolution of Marriage, which became effective January 1, 1974, have made significant changes in the field of family law in Missouri. Our legislation is patterned after the Uniform Divorce Act (U.L.A.) Sections 301-410, with notable exceptions. Primarily this act has eliminated the concept of the innocent and injured spouse who may discard the miscreant spouse. The basis for severing the marriage bond is now based upon the factual finding that the marriage is irretrievably broken. § 452.305.

That portion of the decree dissolving the marriage is not contested. There was sufficient substantial evidence to support the finding. We need not discuss § 452.305 further.

In accordance with Rule 73.-01(3)(a) it is our duty in this court-tried case to review both the law and evidence and to render such judgment as the trial court ought to have given. T. v. T., 447 S.W.2d 795 (Mo.App.1969). To properly fulfill our obligation we must be presented with a record upon which we can function with a “degree of confidence in the accuracy of our final judgment”. State ex rel. Highway Commission v. Hill, 373 S.W.2d 666, 668 (Mo.App.1963). With these principles in mind, as developed hereafter, we must reverse this case in part and remand it to the trial court for further proceedings.

CUSTODY

The wife challenges the award of custody of Mary Jane, age 16, and Andy, age 15, to the husband. The husband has not sought custody of the other three children and has not contested the award of those children to their mother. At the time of the trial the children, Richard (18), Betsy (14) and Joe (12) lived with their mother in the family home at Delassus, Missouri, which adjoins Farmington, Missouri. Betsy, who is retarded, attends a special school at the State Hospital in Farmington. The husband was living in open adultery with another woman and Mary Jane was living in the house with her father and the other woman and her daughter. Andy was living by himself in a small house near his father’s business. The wife, prior to the dissolution proceedings, took Andy to' his father because she was unable to manage him. The father was “unable” to keep him in the house with his lady friend so he put Andy by himself in a small house near his business.

Probably the most difficult task faced by a trial court is that of determining custody of children. § 452.375 now governs the question of custody in a proceeding to dissolve a marriage. It is no panacea for this problem. That section reads as follows:

“The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s párente as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.”

The factors listed in the statute are not exclusive. They must be considered along with all other relevant factors. The prime consideration is still the best interest of the child. There is no exact formula for the determination under this worthy but nebulous standard. Some of the general precepts which have long been enunciated are still germane to this problem. An award of custody may not be used to reward or punish a parent. L. v. N., 326 S.W.2d 751 (Mo.App.1959). Adultery in itself will not necessarily disqualify a parent as unfit. Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974). However, the moral fitness of the person seeking custody of a child is a proper subject for the court’s consideration. Stockton v. Guthary, 415 S.W.2d 308 (Mo.App.1967).

With respect to the wishes of the parents, the wife specifically testified that she wanted custody of each of the children. There is no direct testimony from the husband on this factor. He does not permit Andy to live in the house with him but opposes a change of the award of custody. Mary Jane lives with him and from his actions we can infer that he wishes custody of his daughter.

The evidence of the children’s wishes is purely hearsay. The husband testified that Andy would rather be with his mother. He further testified that Mary Jane would prefer being with him. Mrs. M. said that Mary Jane would like to come with her but Mr. M. would not repair Mary Jane’s car if she returned to her mother. There is no evidence in the record that the court interviewed the children as provided in § 452.-385.

There is no evidence concerning the interaction or of the relationship between these two children and their brothers and sisters; none as to the relationship with the parents except that the father said that Andy loved his mother, and there was a problem between the mother and Mary Jane concerning the girl’s motorcycle. As to Mary Jane’s interaction and relationship with the woman her father is living with and who may “significantly affect her best interest”, the record is devoid of any evidence. All we know is that this woman is living in open adultery with the father and that Mary Jane lives in the house with them.

The transcript is practically devoid of evidence on the factors (4) and (5) listed above.

The moral fitness of the mother is not questioned. The father who is living in open adultery testified that he had been associating with “various women” prior to the time he moved in with his present woman. He was going with a different woman when he and his wife were separated. Though not fully developed there was some evidence indicating excessive drinking on the part of the father.

We note that no investigation and report was made under the provisions of § 452.390. We are cognizant of the fact that this provision is not mandatory but it is most salutary.

There are no perfect parents and we are painfully aware of the difficulties of supervising teenage children. We have not found a case in which the court has knowingly made an award of custody to a parent living in open adultery. Upon the meager record before us we are not prepared to say that separating Mary Jane and Andy from each other and from the other minor children and awarding their custody to the parent living in open adultery is in the best interest of the children. J. v. E., 417 S.W.2d 199 (Mo.App.1967). See Ortiz v. Ortiz, 465 S.W.2d 662 (Mo.App.1971); and Hoffmann v. Hoffmann, 395 S.W.2d 277 (Mo.App.1965). The award of Andy to his father who permits him to live by himself appears to be no award of custody at all. There is no evidence as to the extent of supervision given him or of the conditions under which he lives. It may be that upon a retrial the court may give some thought to placing these children under the supervision of 3rd parties if neither parent is prepared to handle the responsibility. Stockton v. Guthary, supra.

On the record before us we are in no position to render a judgment with respect to the custody of these children. Some time has passed since the award of custody was made, some of the problems faced by parties may have dissipated. We deem it to be in the best interests of all persons involved to remand this case for a hearing de novo respecting the custody of Andy and Mary Jane. McCallister v. McCallister, 455 S.W.2d 31 (Mo.App.1970).

DIVISION OF PROPERTY

The husband had been the major source of the income for the family. He operated the oil company which he founded. The wife worked in a shoe factory for a few months right after they were married. She took in washing for 9 months in 1957 when the husband was unemployed. Primarily she was a homemaker raising the eight children of the marriage. Neither party is possessed of separate property.

The property of the parties, for the most part, consisted of real estate and a 90% interest in a closely held corporation operated by the husband.

The concept of marital property and the powers granted to the trial court for its division between the spouses is one of the statute’s innovations. The governing section is 452.330.

In view of the conclusion which we must reach in this case it will serve no useful purpose to extend this opinion with a gratuitous discussion of the factors delineated in the statute.

It is conceded that all assets are marital property therefore we need not consider the statutory definition.

The extent and valuation of the property came almost exclusively from the oral testimony of the husband. There was no expert testimony and no books or records were introduced into evidence. The husband referred to a document marked as Exhibit “A.”, which was apparently a list of assets drawn up by him. This exhibit was not introduced into evidence and is not before us.

The court decreed that the wife have the family home valued at $24,000 with an in-cumbrance of $6607.89 which is to be assumed and paid by her; the contents of the home valued at $6,000 and the 1971 Pontiac valued at $2,300.

The decree evidently sought to award the remaining marital property to the husband, however we are unable to reconcile the facts elicited in the trial with the judgment entered by the court. The husband testified that 268 shares or 90% of the stock of the oil company was issued in his name. 2 shares were in the name of his wife and the balance was in the names of the two older children. The husband testified that the corporation was worth $44,000 with incum-brances of $16,000. The decree makes no specific disposition of the corporate stock but decrees that the husband “shall have the property owned by and the business known as M— Oil Company Inc. . and the Delassus Service Station and Car Wash and the following described real estate . . .” One of the three parcels described is occupied by the filling station and main office of M_Oil Company, the corporation. The decree designates this real estate as being titled in the name of Mr. & Mrs. M. There was no evidence introduced at trial as to the ownership or valuation of this real estate. From the record we are unable to determine whether this real estate might have been erroneously considered in the valuation of the corporation or whether this parcel was omitted from the total valuation of the marital property.

On the record before us we are unable to render a fair judgment and must remand for a full determination of the assets and their fair valuation and a division of the marital assets in accordance with the factors enumerated in the statute along with other relevant factors. In Re M_ P_ S_, 342 S.W.2d 277, 283 (Mo.App.1961).

We might also point out that the court had no authority to award the business known as M— Oil Company Inc. and the property of the corporation to the husband. This decree purports to affect the property of the Corporation and the rights of the remaining shareholders. “A judgment can be taken only for or against a party to the action”. 49 C.J.S. Judgments § 28. As to the corporation the court was limited to the disposition of the stock owned by the parties which is admittedly marital property.

We also note that the record makes references of the sale of a house by the husband to the older son, Michael. It appears that there is an outstanding note or obligation on this property, possibly to the husband. The parties may also wish to clarify this subject.

MAINTENANCE

The court made an award of maintenance to the wife in the sum of $75.00 per week. The award of maintenance is governed by § 452.335. The first factor to be determined by the court reads:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; ”

In view of the disposition we have made of the issue of the division of marital property we must, of necessity, remand this case for retrial on the issue of maintenance, because we cannot anticipate what division will be made of the marital property upon retrial. The extent and nature of the property apportioned to the parties is one of the items which the court must consider.

SUPPORT

The court also made an award of $20.00 per week for support of each child awarded to the wife.

The question of child support would also depend to some extent upon the division of property because by § 452.340(3), (6) “the financial resources of the custodial parent” and “the financial resources and needs of the noncustodial parent” must be considered. All necessary factors can only be fully developed upon the division of property upon retrial. We should not attempt to make a determination of the amount of support for those children in the custody of the wife upon the record before us. Simon v. Simon, 248 S.W.2d 560, 568 (Mo.1952).

For the reasons herein we remand this case for a retrial of the issues of the custody of Andy and Mary Jane; the determination of the extent, value and division of the marital property, the amount of maintenance and the amount for support. The judgment is affirmed in all other respects.

CLEMENS, P. J., and KELLY, J., concur.

      . All references are to RSMo Supp. 1973 unless otherwise indicated.

      . With respect to the award of maintenance the conduct of the party seeking maintenance is a factor. In the division of marital property the conduct of the parties is a factor.

      . See 9 Uniform Laws Annotated 456, 457, Uniform Marriage and Divorce Act, Prefatory Note.


author: McMILLIAN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Mildred SCHWARTZ et al., on the Exceptions of Hill-Behan Lumber Company, Defendant-Appellant.
    No. 36031.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 26, 1975.

      Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Richard B. Scherrer, St. Louis, for defendant-appellant.
    Bruce A. Ring, Jefferson City, Thomas H. Pearson, Kirkwood, Gregory F. Hoffmann, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal by defendant from a judgment entered on January 15, 1974 by the Circuit Court of St. Louis County following a jury verdict awarding defendant Hill-Behan Lumber Company (hereafter Hill-Behan) the sum of $17,000 for the taking of certain property by plaintiff State Highway Commission (hereafter Commission). We affirm.

Hill-Behan owns five retail stores, one of which is located on the subject property. That tract of land fronts on New Tesson Ferry Road and was formerly bounded on the rear by Old Tesson Ferry Road. The Commission condemned a section at the rear of this property consisting of 3,900 square feet (0.09 acre). Following this condemnation a new raised section of Highway 21 was constructed in such a way as to replace Old Tesson Ferry Road as the rear boundary of the property and to eliminate the rear access to the property.

Prior to the taking, there were two separate business operations on the subject property, a retail outlet at the front and a wholesale outlet at the rear. The retail customers used the entrance and exit on New Tesson Ferry Road. The trucks servicing the wholesale operation used the entrance and exit on Old Tesson Ferry Road. Hill-Behan discontinued its wholesale operations at this site after the taking. However, there was conflicting testimony and evidence on whether it was, in fact, unfeasible for the trucks to use the front access.

In 1968, the Commission filed its petition for condemnation. The property was condemned. The report of the commissioners was filed, and an award was made in the amount of $25,750. Both the Commission and Hill-Behan filed written exceptions to the Commissioners’ award and requested a jury appraisement. In January 1974, trial was held resulting in a verdict of $17,000. Hill-Behan’s motion for a new trial was overruled. Hill-Behan appealed.

Hill-Behan alleges three basic errors on appeal. The first is that the trial court erred in overruling defendant’s motion for a new trial in that the verdict was so inadequate- as to be against the weight of the evidence. The second is that the trial court erred in giving Instruction No. Two, which was MAI 3.02, Burden of Proof-Eminent Domain (1973 Revision). The third is that the trial court abused its discretion in overruling objections to the admissibility of evidence as to defendant’s damages, in-sustaining plaintiff’s objections to defendant’s testimony in rebuttal, and in permitting plaintiff to question defendant’s witness about the deed to the subject property.

Defendant’s contention that the verdict was so inadequate as to be against the weight of the evidence is grounded on the assumption that the taking forced defendant to discontinue wholesale operations. Defendant maintains that being blocked caused more significant damage than the amount of footage taken would indicate. Based on footage taken plus alleged loss of use, defendant calculated the damages to be $44,500. However, this theory was not un-contradicted. The two real estate appraisers who testified for the commission expressed the opinion that the property was not special use property and that the limitation of access did not affect the use of the property. They computed damages, based solely on the amount of footage taken, to be $3500 to $3700. Both theories were presented to the jury, whose prerogative it was to resolve the conflict and determine just compensation.

Appellate courts will not reweigh the evidence unless damages are grossly excessive or inadequate. Missouri Public Service Commission v. Argenbright, 457 S.W.2d 777, 782 (Mo.1970). The applicable rule in condemnation actions is that, “. The opinion of one qualified witness as to the extent of damages constitutes substantial evidence . . . ” State ex rel. State Highway Commission v. Bopp, 516 S.W.2d 38, 39 (Mo.App.1974). Here the jury assessment was within the range presented by the witnesses. It is not relevant to say, as defendant does, that plaintiff’s witnesses were not experts in the lumber business. The measure of damages is diminution in market value of the property, not loss of business profits. State ex rel. State Highway Commission v. Johnson, 392 S.W.2d 251 (Mo.1965). Both plaintiff’s witnesses were qualified real estate appraisers. Therefore, the jury assessment was supported by substantial evidence.

Defendant contends that the trial court erred in giving Instruction No. Two because MAI 35.08 Illustration should have been given in place of MAI 3.02 Burden of Proof-Eminent Domain (1973 Revision). The basis for this contention is that MAI 3.02 and MAI 35.08 are in conflict concerning a defendant’s burden of proof in condemnation cases. MAI 3.02 states, “The burden is on the defendant to cause you to believe that he has sustained damage and the amount thereof.” MAI 35.08 states, “The burden is upon Defendant to cause you to believe the evidence necessary to support the amount of his damages. . . . ” MAI 35.08 does seem to place a lesser burden on a defendant in that it assumes that damage has been sustained and only requires the defendant to show the amount thereof. However, the recent modification of MAI 3.02 indicates that the heavier burden is intended. In State ex rel. State Highway Commission v. Sams, 484 S.W.2d 276 (Mo.1972), the Supreme Court conceded that MAI 3.02 (effective September 1, 1969) placed too slight a burden on defendants and recognized the need for a reevaluation. On December 19, 1972, the Supreme Court Committee modified MAI 3.02 to its present form, effective July 1, 1973. See State ex rel. State Highway Commission v. Baker, 505 S.W.2d 433 (Mo.App.1974).

Furthermore, the “Notes on Use” to MAI 3.02 specifically require that it be used in all eminent domain cases, whereas 35.08 is merely an illustration. Supreme Court Rule 70.01(b) provides that whenever MAI contains an applicable instruction, which the court decides to submit, it shall be given to the exclusion of any other on the same subject. Rule 70.01(c) provides that the giving of an instruction in violation of this Rule shall constitute error. Therefore, the court was bound to use MAI 3.02, and to have given MAI 35.08 would clearly have been an error. State ex rel. State Highway Commission v. Nickerson & Nickerson, Inc., 494 S.W.2d 344 (Mo.1973).

Defendant also contends that Instruction No. Two was prejudicial because it used the plural pronoun “they” in place of a singular pronoun to refer to Hill-Behan. Such a mistake is admittedly an error. However, where the mistake was inadvertent and substantially correct and the jury was aware of the real party in interest, the error does not amount to prejudicial error. Gormly v. Johnson, 451 S.W.2d 45 (Mo.1970) and Newsom v. Crockett, 453 S.W.2d 674 (Mo.App.1970).

Defendant’s remaining objections all charge abuse of discretion in the admission or exclusion of evidence. Therefore, it is expedient to establish the standard for abuse at the outset. “. . . in land damage cases errors in admission or exclusion of evidence will not result in the reversal of verdicts unless there is substantial and glaring injustice. . . .” State ex rel. State Highway Commission v. Texaco, Inc., 502 S.W.2d 284, 289 (Mo.1973).

Defendant asserts errors with respect to the court’s rulings on the admissibility of evidence as to its damages arising from its discontinuance of wholesale operations. The court admitted, over defendant’s objections, plaintiff’s photographic exhibits 3, 5 and 6 showing two parked trucks on the rear part of the subject property ten days before trial. Defendant contends that these photographs were not relevant on the issue of whether defendant could operate a wholesale business on the property after the taking because one truck was supplying the retail store and the other belonged to a construction company doing work on the adjoining railroad track. However, the photographs did support plaintiff’s position that the property was still adaptable for a wholesale business because it was physically possible for trucks to reach the rear of the property. Therefore, the photographs did not divert the minds of the jurors to irrelevant or improper considerations, and their admissibility was within the sound discretion of the trial judge. State ex rel. State Highway Commission v. Cone, 338 S.W.2d 22, 27 (Mo.1960) and State ex rel. State Highway Commission v. Thelnor, Inc., 485 S.W.2d 443, 446 (Mo.App.1972). We see no abuse of discretion in the ruling of the court. Defendant also objects to the court’s permitting plaintiff’s real estate appraiser witnesses to testify, over defendant’s objections that they were not qualified as experts, that defendant could continue to operate a wholesale business. As discussed above, plaintiff’s witnesses did not purport to have knowledge of the lumber business, but as real estate appraisers, they were qualified to testify as to whether it was special use property. Wt see no abuse of discretion in the ruling of the court.

Defendant asserts that the court erred in failing to afford defendant a fair opportunity to rebut the plaintiff’s evidence that defendant sustained no damages as a result of discontinuance of its wholesale operation. Specifically the court sustained objections by plaintiff to defendant’s testimony in rebuttal explaining the photographic exhibits, stating that no trucks had operated on the property in connection with the wholesale operation since the taking, and enumerating the factors which led to discontinuing the wholesale operation. Plaintiffs objections were on the basis of repetition. Rebuttal evidence is “evidence tending to disprove ‘new points first opened by’ the opposite party. . . . ” Peters v. Dodd, 328 S.W.2d 603, 610 (Mo.1959). The trial court has discretion to exclude testimony in rebuttal not only where it would be repetitive but also where it “. should have been offered in the presentation of the case in chief. . . .” Rutledge v. Baldi, 392 S.W.2d 244, 248 (Mo.1965); Jensen v. Walker, 496 S.W.2d 317 (Mo.App.1973) and Parrott v. Kisco Boiler &, Engineering Co., 332 S.W.2d 41 (Mo.App.1960). Here, defendant, in its case in chief, introduced the theory that the loss of rear access caused defendant to discontinue its wholesale operation and thereby reduced the value of its property. Plaintiff’s witnesses reached the opposite conclusion. In rebuttal defendant attempted to fortify its theory. Such evidence was not offered to disprove any new point first opened by plaintiff. Therefore, the trial court did not abuse its discretion in excluding the proffered evidence.

Defendant asserts that the trial court erred in permitting plaintiff’s counsel to question defendant’s witness, over objection, about defendant’s deed to the subject property for the purpose of refreshing the witness’ memory with regard to the purchase price of the subject property. Defendant contends first that the purchase price was too remote in time to be relevant to the issue of market value at the time of taking and secondly, even if purchase price were relevant, the deed was not material since it contained a recital of only nominal consideration. Evidence of purchase value is competent to prove market value at the time of the taking provided it is not so remote in time as to be wholly lacking in probative value. State ex rel. State Highway Commission v. Crain, 496 S.W.2d 867 (Mo.App.1973). The admissibility of the purchase price is discretionary with the trial court. State v. Crain, supra. Here, the deed was dated 13 years before the taking. On objection, the court properly ruled that remoteness in time went to weight rather than admissibility. State ex rel. State Highway Commission v. Ogle, 402 S.W.2d 605, 610-11 (Mo.App.1966). Therefore, the trial court did not abuse its discretion. Moreover, if there had been an error, it could not be deemed prejudicial since the witness never recollected — and the jury never learned — the purchase price.

The judgment of the trial court is hereby affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel SMITH, Jr., Defendant-Appellant.
    No. 35795.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 26, 1975.

      Charles D. Kitchin, Public Defender, David M. Adams, Howard Paperner, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant was convicted by a jury of robbery by means of a dangerous and deadly weapon and upon the jury’s inability to agree on punishment was sentenced by the court to seven years imprisonment. He appeals.

No question of the sufficiency of the evidence is raised. The victim of the robbery was in his apartment when he was held up by three men with guns. He was bound and gagged and was in the presence of the robbers 45 to 50 minutes. He identified defendant as one of the robbers and testified he had seen defendant once before the robbery when he let him into the apartment house to visit an apartment. One other witness identified defendant as one of three men she saw leaving the victim’s apartment shortly before the robbery was discovered. She also had seen defendant before.

Defendant’s only point on appeal is that a pre-trial confrontation was unduly suggestive and led to irreparable mistaken identity and therefore the court erred in failing to suppress the in-court identification. Defendant made no objection to the evidence of the pre-trial identification itself. It was upon defendant’s cross-examination of the victim that the fact was first brought out to the jury that a pre-trial identification was made.

If independent grounds for the in-court identification exist, it is not error to permit such in-court identification, even in cases where the pre-trial confrontation is suggestive. See State v. Carey, Mo., 486 S.W.2d 443[2-4]. The court held a hearing to determine whether an independent basis for the victim’s identification existed. The victim had seen defendant once before the robbery and was in a position to view him during much of the 46 to 50 minute period of the robbery at close range. The lighting was good and the description of defendant’s clothing given by the victim matched that of the other witness. The second witness saw defendant after he was arrested for a second crime and she volunteered that he had committed the robbery. Her identification and volunteered statement were not the product of any police arranged confrontation. Immediately following the witness’ volunteered statement, defendant was taken to the victim’s apartment where he immediately and without hesitation identified defendant. This confrontation occurred six weeks after the robbery and was a one on one confrontation in the presence of the police. While the circumstances warrant a conclusion the confrontation was suggestive, that alone does not preclude an in-court identification. The evidence clearly demonstrates that the identification at trial was based upon substantial independent grounds and was not tainted by the pre-trial confrontation. The court did not err in permitting the in-eourt identification. See State v. Sweazea, 460 S.W.2d 614[4] (Mo.1970); State v. Tehee, 445 S.W.2d 285[1] (Mo.1969).

Judgment affirmed.

NORWIN D. HOUSER and ÁLBEN A. STQCKARD, Special Judges, concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Columbus and Mae Frances CRENSHAW, Appellants, v. GREAT CENTRAL INSURANCE COMPANY, a corporation, Respondent.
    No. 36173.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 3, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Oct. 18, 1975.

      Floyd & Roskin, Inc., Preston E. Roskin, Clayton, for appellants.
    Amelung, Wulff & Willenbrock, Robert A. Wulff, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

On September 7,1972, Columbus and Mae Frances Crenshaw, parents of Dale and Gretchen Crenshaw, Minors, and Gretchen, by and through her mother and next friend, filed suit in the Circuit Court of the City of St. Louis against Great Central Insurance Company, in three counts. In Count I, wherein the parents are plaintiffs, it is alleged that on May 27, 1969, Dale was killed due to the negligence of Harry Davis, owner, and Gale Martin, driver, of an uninsured motor vehicle; that an action for wrongful death of their son accrued to them under the laws of this State; that at the time of the collision Dale was covered by a policy of liability insurance issued by the defendant company to Columbus and Mae Frances Crenshaw, providing uninsured motorist coverage for both Dale and plaintiffs in the event of collision with an uninsured motorist; that defendant company has vexatiously refused to pay plaintiffs $10,000, for which they pray, and for $1,000 for vexatious refusal to pay and an attorney’s fee of $2,500. Count II, in which Gretchen is plaintiff, incorporates and adopts the allegations of Count I and alleges that due to the negligence of the uninsured motorists she sustained personal injuries; that at the time of the collision Gretchen was covered by the policy and insured under its uninsured motorist provision, and is qualified for coverage thereunder. Count III, brought by Columbus Crenshaw, incorporates and adopts the allegations of Counts I and II, and alleges that as a result of the negligence of the uninsured motorists he, the father of Gretchen, has been caused to expend money for medical care and attention and will in the future be required to incur expenses (presumably for medical services to his daughter). The uninsured motorist provision is as follows: “The company will pay all sums which the insured . shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle. . . .”

Following removal to the federal court the case was remanded to the Circuit Court of the City of St. Louis. Upon remand defendant company filed a motion to dismiss Count I of the petition, which motion was argued, submitted, granted, and an order entered that “plaintiff’s cause of action as set forth and alleged in Count I [is] dismissed.” From that order and judgment Columbus and Mae Frances Crenshaw have appealed.

On the question of our jurisdiction: No trial was had and no orders were made with reference to Counts II and III. The judgment of dismissal was not specifically designated as a final judgment for purposes of appeal. The court did not by record entry indicate that the order was intended either as final or interlocutory.

Under Rule 81.06, V.A.M.R. the order entered shall not be deemed final for the purposes of appeal if Count I arose “out of the same transactions, occurrences or subject matter” as Counts II and III, but shall be deemed final for the purposes of appeal if Count I is an “entirely separate and independent claim unrelated to” Counts II and III. In a sense, of course, all three counts arose out of the same transactions, occurrences and subject matter, namely, the same automobile accident and the same insurance provision. In a sense, too, the three counts are not entirely separate and independent, but are related in that all three affect members of the same family; that Columbus Crenshaw is a plaintiff in both Counts I and III, and that there ate common questions of law and fact in all three counts, such as the questions of negligence and causation. Rule 81.06, however, does not speak to these kinds of similarities. The rule speaks to a situation where the several claims, counts, etc. are dependent upon each other. Viewed in this light the judgment on Count I must be deemed a final judgment for the purposes of appeal within the meaning of Rule 81.06 for the reason that the disposition of Counts II and III is not “dependent in any respect upon the outcome of or final disposition of” Count I, and for the further reason that the court entered a separate judgment disposing of all of the issues presented by Count I, in its ruling that the 2-year statute of limitations was applicable in the resolution of Count I. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377 (banc 1956). The absence or lack of dependency of the final outcome of Counts II and III upon the outcome of Count I is emphasized and pointed up by the manner in which the final disposition of Count I ensued, that is, on a motion to dismiss based upon the contention that the cause of action stated in Count I is governed by the limitations of the special statute applicable to wrongful death actions (which special statute of limitations has no application to Counts II and III, which are not wrongful death actions). Paraphrasing Pizzo, 295 S.W.2d l.c. 381, it is apparent that the order entered was intended as a judgment separate and apart from any relief that might thereafter be given on the two remaining counts.. The record indicates an exercise of discretion in favor of a separate judgment and nothing appears to indicate an intention that the judgment should be interlocutory or that it was to be held in abeyance until Counts II and III are determined. In such situation the separate judgment entered on Count I is construed as an order for a separate judgment for the purposes of appeal within the meaning of Rule 81.06. If the trial court wanted this judgment to be interlocutory or held in abeyance, or its enforcement stayed, it should have so provided.

Section 537.100 of the wrongful death statute provides: “Evéry action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; * *

Plaintiffs did not, within two years after the collision or thereafter, sue the driver or owner of the automobile involved in the collision alleged to have caused their son’s death. The only suit filed by plaintiffs is this action, commenced against their insurer approximately three years and four months after the death of their son.

Citing Sterns v. M. F. A. Mutual Insurance Co., 401 S.W.2d 510, 517 (Mo.App.1966), and Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 151 (Mo.App.1972), for the proposition that the purpose of the uninsured motorist statute is to give the same protection to a person injured by an uninsured motorist as he would have had if injured in an accident caused by an automobile covered by a standard liability policy, the trial court considered that plaintiffs’ claim against the insurer, predicated upon the wrongful death of their son, is governed by the procedures, including limitations, for actions under the wrongful death statute, which contains a 2-year limitation of exposure to liability thereunder; that plaintiffs’ insurer stands in the place of the uninsured motorist’s absent insurer, and that the contractual relationship between plaintiffs and the insurer “does not broaden or enlarge the provisions of the special statute” of limitations.

Plaintiffs-appellants contend that the court erred in applying the 2-year statute of limitations applicable to wrongful death actions, § 537.100, RSMo 1969, Y.A.M.S., for the reason that this is an action on a contract in which the 10-year statute of limitations, § 516.110, RSMo 1969, V.A.M.S., applies.

We affirm, but on a theory different from that adopted by the trial court. This is an action in contract. It is based upon an insurance contract. Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970); Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo.App.1963). It is governed by the 10-year statute of limitations, § 516.110, RSMo 1969, V.A.M.S. In order to prevail in this contract action, however, plaintiffs must establish that at the time this litigation against the insurer was commenced they were legally entitled to recover damages from the owner or operator of the uninsured highway vehicle. In other words, as an essential element of plaintiffs’ cause of action in contract plaintiffs must be able to demonstrate their right to recover for the wrongful death of their son. As a matter of law plaintiffs cannot make such a showing because at the time this action in contract was filed plaintiffs no longer had a cause of action against the third party tort-feasors. There is no common-law right of action for wrongful death; such actions exist only by virtue of a statute. Under the wrongful death statute a cause of action accrued to plaintiffs upon the death of their son, but as aggrieved parties they were obliged to comply with the terms of the statute. Compliance with the requirement that an action for wrongful death be commenced within two years is a necessary condition attached to the right to sue — not merely a statute of limitations in the ordinary sense. Plaintiffs failed to comply with this requirement. “Our wrongful death statutes created a new right, a new and different cause of action (Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920) and at the same time introduced into the terms of the statutes as an inherent part of the cause of action a time limit for its maintenance (5 Cyclopedia of Federal Procedure, Sec. 1514) and we are committed to the view, that the limitations of the death statutes are matters of substantive right and not mere technical limitations or bars to the remedy. Barker v. Hannibal & St. Joseph Ry. Co., 91 Mo. 86, 14 S.W. 280; Chandler v. Chicago & Alton R. Co., supra [251 Mo. 592, 158 S.W. 35]; 16 Am.Jur., Sec. 286. * * * ” Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 646[4] (1947). It was incumbent upon plaintiffs to appropriate the cause of action for wrongful death within the 2-year period prescribed by § 537.100, supra, by filing suit thereon prior to the expiration of that period in a court having jurisdiction in the premises. Krueger v. Walters, 238 Mo.App. 340, 179. S.W.2d 615, 618[3] (1944). Plaintiffs failed to do so and when the 2-year period expired their cause of action was extinguished. We conclude that at the time this action was filed plaintiffs were not “legally entitled to recover” from Harry Davis or Gale Martin for the wrongful death of their son; there could be no liability on the part of the third party tort-fea-sors under the wrongful death statute, and consequently there is and can be no recovery under the insurance contract, which is conditioned on the legal liability of the third party tort-feasors to the insureds.

While this is a case of first impression in this State persuasive authority for our conclusion is found elsewhere in three cases involving litigation between ■ insureds and insurers under uninsured motorist provisions dealing with the right to recover for wrongful death under wrongful death statutes having special limitation periods, where suit was filed after the expiration of the special limitation period. Brown v. Lumbermens Mutual Cas. Co., 19 N.C.App. 391, 199 S.E.2d 42, cert. allowed 285 N.C. 313, 204 S.E.2d 829 (1974); Franco v. Allstate Ins. Co., 496 S.W.2d 150 (Tex.Civ.App.1973); Country Mutual Ins. Co. v. National Bank of Decatur, 109 Ill.App.2d 133, 248 N.E.2d 299 (1969). These cases hold that where the statute authorizing a wrongful death action requires that it be brought within a certain time this requirement is a condition of liability, an integral part of the right in the nature of a condition precedent, and not merely a limitation as to the remedy; that if the action is not brought within the prescribed time period the insured is not “legally entitled to recover” damages from the tort-feasor, has no remedy, and is precluded from recovering under the uninsured motorist’s coverage.

The cases cited by plaintiffs are personal injury actions, not actions for wrongful death. They simply hold that in a suit against the insurer under a policy of automobile insurance containing an uninsured motorist provision the statute of limitations applicable to contract actions applies, and that the general statute of limitations relating to tort actions is inapplicable. None of them involves a death claim under a wrongful death statute which has a built-in limitation period of a substantive nature which qualifies, indeed destroys, the right to sue if the special limitation period is not complied with.

Plaintiffs object that the term “legally entitled to recover” has been construed in Reese v. Preferred Risk Mutual Ins. Co., supra, and in cases cited therein, to refer merely to the fault principle, that is, that the term means simply that the aggrieved party must be able to establish fault on the part of the uninsured motorist and prove the extent of the damages. This construction is not controlling where the cause of action has been extinguished and no longer exists. The term necessarily assumes and presupposes the existence of a live cause of action.

Plaintiffs object that the conclusion we reach conflicts with the Reese case. The cases are distinguishable. In Reese the aggrieved parties appropriated the cause of action for wrongful death by filing suit within the 2-year limitation period, thus perfecting their right to proceed and preventing the extinguishment of their cause of action by lapse of time, whereas plaintiffs in the case here for review let their cause of action die.

The order and judgment dismissing Count I is affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Transnational Ins. Co. v. Simmons, 19 Ariz.App. 354, 507 P.2d 693 (1973); Detroit Automobile Inter-Insurance Exchange v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972); Pickering v. American Employers Ins. Co., 109 R.I. 143, 282 A.2d 584 (1971); Turlay v. Farmers Ins. Exchange, 259 Or. 612, 488 P.2d 406 (1971); Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1969); Sahloff v. Western Casualty & Surety Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969); DeLuca v. Motor Vehicle Accident Indemnification Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Schleif v. Hardware Dealer’s Mutual Fire Ins. Co., 218 Tenn. 489, 404 S.W.2d 490 (1966).


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ralph GORDON, Appellant.
    No. KCD 27244.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, R. William Bloem-ker, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

This case was tried on an amended information charging defendant with first degree murder in conventional form and also alleging defendant’s conviction of a prior felony. The jury found defendant guilty of first degree murder under an instruction setting forth the elements of felony murder. Under the provisions of the Second Offender Act, the imposition of sentence rested with the judge, who assessed life imprisonment. Defendant appeals.

From the evidence the jury could have reasonably found the following facts. In the early morning hours of September 29, 1978, the murder victim, who was a white man, was cruising the locality of 29th and Prospect in Kansas City, Missouri, which was a black area. He was approached in his car by a male prostitute, but since the murder victim stated that he had only $6.00, no “date” was consummated.

Observing the presence of a white man in this black area, defendant invited one Greer to accompany him in robbing this man, but Greer declined. Later, defendant was seen to approach the victim’s car, get in and drive off with the victim. Defendant had in his possession at that time a gun just given him by one Martin, who had stolen it shortly before.

Thereafter, defendant returned to the corner of 29th and Prospect and got into a car occupied by Greer and one Glover. Defendant proceeded to advise these witnesses that he had to kill the man and that he had put him in the trunk of his car. In the course of that conversation, defendant showed Greer and Glover $6.00 and a package of Salem cigarettes which he had gotten from the victim and also showed them the Martin gun which he stated he had used to shoot the victim. One of the bullets in the gun had been fired. Defendant also told witness Roberta that “he killed somebody and robbed him and put him in the trunk.”

Subsequent police investigation showed that a car parked in an alley a few blocks away was that of the deceased victim. The body of the deceased was found in the trunk of the car. The area around the car was muddy, and a number of soil samples were taken by police experts. Subsequent tests upon a soil sample taken from pants worn by defendant on September 29, 1973, showed that sample to match one of the soil samples taken from the area of the automobile. The State also introduced evidence that during the period of time closest to his death the deceased smoked Salem cigarettes, the brand displayed by defendant to Greer and Glover.

Defendant took the stand and flatly denied ever being present in the vicinity of 29th and Prospect during the period of time mentioned by the State’s witnesses, much less having participated in any of the actions testified to by those witnesses. Defendant’s other witnesses were his half-sister, who testified that he was asleep in her home all of the time in question, and Shelton, who was in the 29th and Prospect area all of the time in question and who said that he never saw defendant there during that period.

On this appeal, defendant raises the following points: 1) that the taking of a soil sample from his pants constituted an illegal search and seizure;. 2) that in addition to submitting an instruction on the theory of felony murder, the court should have also instructed on conventional murder, which, in turn, would have called for instructions on second degree murder and manslaughter; and 8) that the prosecutor made improper and prejudicial reference in closing argument to defendant’s prior conviction.

I.

With respect to the search and seizure point, the facts are that defendant was arrested on a different charge not here involved on September 29, 1973. After the arrest he was booked and was given jail clothing. The clothes which he was wearing at the time of the arrest were then stored in the police property room for safekeeping. It was not until October 9 that police investigation began to focus on defendant in connection with the present murder and that defendant’s pants were taken from the property room to be subjected to soil testing. Since this clothing was taken without defendant’s consent and without a warrant, he argues that the search was unreasonable and unconstitutional.

United States v. Edwards, 415 U.S. 800, l.c. 806-807, 94 S.Ct. 1234, l.c. 1389, 39 L.Ed.2d 771 (1974) squarely answers this contention. The court in that case held:

“Indeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.
* * * * * *
“. . . once the defendant is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing on the one hand and the taking of the property for use as evidence on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail and at a later time searched and taken for use at the subsequent criminal trial.”

The point is also covered by the even more recent case of United States v. Jenkins, 496 F.2d 57, l.c. 73 (2nd Cir. 1974). In that case the defendant’s money and clothes were taken and placed in safekeeping at the jail after his arrest. Later police officers checked numbers on the bills and found them to be “bait money.” The bills were then seized without warrant. The court pointed out that for all practical purposes the serial numbers on the bills had been fully exposed to police view at the time of the arrest and that “it cannot be said that the ‘second look’ amounts to an intrusion into an area where the owner could any longer reasonably expect privacy.”

Missouri decisions are in accord with these federal cases. Thus in State v. Achter, 512 S.W.2d 894, l.c. 905 (Mo.App.1974), the court held: “Once items have been exposed to police view under unobjectionable circumstances (inventory) then no reasonable expectation of privacy is breached by an officer taking a second look at such items.” See also State v. Williams, 486 S.W.2d 468, 472 (Mo.1972).

II.

If defendant were correct in his contention that an instruction on conventional murder should have been given in addition to that on felony murder, then it would follow that he was also entitled to instructions on second degree murder and on manslaughter as lesser included offenses. This is now required under the Caveats appended to MAI-CR 6.02 which became effective March 1, 1975. Although these new Caveats had not been promulgated at the time of the trial in this case, these Caveats should be considered as merely declaratory and explanatory of existing law; and even if that were not true, rules dealing with this general subject are entitled to retrospective application. State v. Stapleton, 518 S.W.2d 292, l.c. 301 (Mo. banc 1975).

However, an instruction on conventional murder was neither necessary nor proper in this case. The test to be applied for determining whether conventional murder should be submitted to the jury in addition to felony murder is set forth in State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, l.c. 424-425 (1933), which holds that conventional murder may properly be submitted if the facts and circumstances “apart from those of the other crime” tend to prove the necessary elements. Applying that test here, there is a complete lack of facts and circumstances sufficient to show the elements of murder without resort to the fact that the homicide occurred in the course of and as part of the commission of a robbery.

The evidence produced by the prosecution tended only to show a killing in the course of committing robbery and failed to show the elements of murder apart from the robbery. No more did the defendant’s evidence tend to show any degree of homicide independent of a robbery. In fact, defendant and his witnesses stoutly denied that defendant had any part whatsoever in this killing or that he was even anywhere in the vicinity of the killing. The facts present a clean cut situation in which defendant was either guilty of felony murder or of nothing. Accordingly, under the ruling of the Lindsey case, the only proper instruction was that of felony murder.

III.

The statement made by the prosecutor in closing argument to which defendant takes exception was as follows:

“Now, about Mr. Martin; Mr. Haggerty says, will you want to believe the class of person that Mr. Martin is and isn’t it reasonable that if he will steal that he would rob? Do you recall that that is exactly the person this defendant is? He has been convicted of stealing—”

Defendant objected to that comment on the ground that there was no evidence of the defendant having been convicted of any prior crime. The trial court overruled the objection on the basis that the prior conviction had already been disclosed by defendant’s counsel in his opening statement to the jury.

Defendant admits that if his counsel had made a clear, unequivocal admission as to the prior conviction, then that admission would be binding and conclusive on the point. However, he seeks to escape this result by saying that the remark in question during the course of opening statement “was not intended to be evidence in and of itself, but rather was a formulation of what defense counsel anticipated the evidence would show.”

This distinction sought to be made by defendant has been recognized in Bayer v. American Mutual Casualty Co., 359 S.W.2d 748 (Mo.1962). However, it has also been recognized that this distinction represents a thin line and determination of the question on which side of the line a given situation falls is not always clear. Butcher v. Main, 371 S.W.2d 203, 207 (Mo.1963); Divilbiss, “Practice and Procedure in Missouri,” 30 Mo.Law Review 18, 22 (1965).

In view of the difficulty of deciding just how the remark made during the opening statement should be classified for the purpose of this distinction, it was highly important for the actual remark and the context to be included in the transcript on appeal. This has not been done. The duty falls upon the appellant to file the transcript in the appellate court and to insure the inclusion of all of the evidence and proceedings necessary for a determination of the questions presented by the appeal. State v. Davis, 515 S.W.2d 181, l.c. 183 (Mo.App.1974). Defendant, the appellant here, has wholly failed to comply with that duty. Since this vital portion of the proceedings is not before us, error cannot be attributed to the trial judge in his ruling on the present point.

Moreover, the portion of the prosecutor’s argument now in question was invited by defendant and was retaliatory in character. Defense counsel had just argued that one of the prosecution witnesses should not be believed because of his having admittedly stolen a gun. Defense counsel had also outlined a theory that the principal witnesses for the State had conspired to place the blame upon defendant. In elaborating this theory of defense, defense counsel stated to the jury:

“ * * * they had an opportunity to concoct this story, contrive this case and place it upon the defendant. Who else is such a beautiful patsy for this case? Some guy who had just got out of jail . What a beautiful patsy. There he is.” (Emphasis added).

In this argument, defense counsel was trying to take advantage of defendant’s having gotten out of jail just previously to the murder in question, to evoke sympathy and to support his theory that this fact made defendant particularly susceptible to a frame-up by the alleged conspirators. He is in poor position to complain about the prosecution trying to turn the tables by using the same fact of the prior offense to attack defendant’s credibility as a witness. Fair scope is permitted to the prosecution by way of retaliatory argument invited by a defendant, and the trial court is entitled to considerable discretion in determining how far such retaliation is to be permitted. State v. Knighton, 518 S.W.2d 674, 681 (Mo.App.1975); State v. Wrose, 463 S.W.2d 792, 796 (Mo.1971).

Affirmed.

All concur.