author: TURNAGE, Judge.

text:
    Goldie M. PIEL, Plaintiff-Appellant, v. Harley GALBOL, M.D., Defendant-Respondent.
    No. KCD 28653.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Application to Transfer Denied Oct. 11, 1977.
    Lamar Dye, Kansas City, Elwyn L. Cady, Jr., Independence, for plaintiff-appellant.
    John R. Phillips, Benjamin F. Mann, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

Goldie Piel brought suit against Dr. Harley Galbol in which she alleged Dr. Galbol failed to diagnose a cervical cancer. She alleged the failure to make this diagnosis resulted in delayed treatment and prolonged her pain and suffering. At the close of the plaintiff’s evidence, presented to a jury, the court sustained a motion for directed verdict in favor of Dr. Galbol. Mrs. Piel appeals from the judgment entered after this motion was sustained.

On this appeal plaintiff contends the court erred because the evidence showed Piel had a large tumor growing from the cervix and the court should have applied the common knowledge doctrine to allow the jury to find, without medical testimony, Galbol was negligent in failing to have a biopsy performed and in failing to properly diagnose her condition. In the alternative, Piel seeks a new trial in order to allow her to present expert testimony. Affirmed.

The oral testimony consisted of Mrs. Piel and her two daughters. This evidence revealed Mrs. Piel had been a patient of Dr. Galbol for some years and in 1972, she consulted Dr. Galbol with reference to a bloody discharge accompanied by a foul odor. She stated Dr. Galbol treated her with injections. She had a fear of cancer and asked Dr. Galbol directly if she had cancer. He replied he did not think so, but thought she had an infection.

In addition to his treatment by injection, Dr. Galbol ran a pap smear test in May, 1972, and in October, 1972. Both of these came back from the laboratory with the result “Class 2, slightly active, but benign, no tumor cells. Repeat in about six months.”

Dr. Galbol performed a pelvic examination in October, 1972, but no finding was made as to the existence of a tumor. Mrs. Piel did not testify that she was aware of a tumor.

Mrs. Piel stated in December, 1972, she was not getting any better and at the insistence of her daughter went to see Dr. Lamar, a gynecologist. Dr. Lamar discovered a large cervical tumor which was later diagnosed to be cancer. When she first consulted Dr. Lamar, he ran three pap smear tests. He sent these to the same lab Dr. Galbol had used in May and October. The results came back to Dr. Lamar on two as showing no cancer, but the third indicated highly suspicious atypsia, or the possible presence of precancerous conditions. Subsequent treatment and surgery resulted in eradication of the tumor and cancer. The evidence showed that up to the date of trial there was no further evidence of any presence of cancer.

Piel first contends she made a submissible case because under the common knowledge doctrine the failure of Galbol to have a biopsy performed was prima facie negligence. Piel relies primarily upon Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955). In that case Mrs. Corn consulted Dr. French who discovered a lump on her breast. She testified she repeatedly told Dr. French she did not want her breast removed unless a test were run which would show she in fact had cancer. Despite his promises that no such operation would be undertaken without a positive test showing the existence of cancer, Dr. French removed her breast without any test. A test performed after the surgery revealed there was no cancer. The Nevada Supreme Court held the jury was entitled to infer from their common knowledge that Dr. French should have had a microscopic examination of tissue made to determine the presence of cancer before he removed the breast.

That ease does not aid Mrs. Piel here. In Hart v. Steele, 416 S.W.2d 927, 931[7, 8] (Mo.1967) the court stated:

In a great majority of malpractice cases “a submissible case may only be made by expert medical testimony for otherwise a jury may not know (or guess) whether the defendant’s acts did or did not conform to the required standards.”

It was further held in Hart that the burden of proving negligence in a medical malpractice suit rests with the plaintiff and no presumption of negligence will be indulged merely by reason of an adverse result from medical treatment. Of course a physician is required to use and exercise that degree of care, skill and proficiency which is commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in a similar practice under the same and similar conditions. Fisher v. Wilkinson, 382 S.W.2d 627, 630[1-3] (Mo.1964). In this case there was no evidence from which a jury could find or infer that Dr. Galbol’s treatment or diagnosis did not measure up to the required standard.

Here Piel failed to produce any evidence showing the existence of a tumor upon which Dr. Galbol should have run a biopsy. It would require expert testimony to establish the tumor found by Dr. Lamar in December must have been present in October and that Dr. Galbol should have discovered it. Further, it would require expert testimony to demonstrate Dr. Galbol was negligent in failing to run any tests in addition to the pap smears. To apply the common knowledge doctrine in this case would require the jury to know what diagnosis should have been made and what tests should have been run in view of the symptoms and complaints made by Piel. In addition the jury would have to know the scope and limitations of a pap smear test. This would be pure speculation and not common knowledge. To hold a jury knows a woman’s breast should not be removed without a biopsy of a lump to determine the existence of cancer is quite different from ascribing sufficient knowledge to a jury to take complaints and symptoms and make a diagnosis and prescribe the tests to be run to determine the proper treatment.

It is true Mrs. Piel was entitled to have her evidence viewed in the light most favorable to her and to receive the benefit of all favorable inferences. Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 815[6] (Mo.App.1975). However, viewing the evidence in this light does not supply a basis upon which a jury could diagnose Mrs. Piel’s condition and decide if Dr. Galbol made the right diagnosis and ordered the correct tests.

It is apparent the evidence in this case would not lend itself to a submission to the jury under any conceivable application of the common knowledge doctrine. The court was correct in directing a verdict in favor of Dr. Galbol.

Piel finally contends she is entitled to have the judgment reversed and the cause remanded to afford her the opportunity to again present her case with expert testimony. This contention was fully answered in Surface v. Ranger Insurance Company, 526 S.W.2d 44, 49[6, 7] (Mo.App.1975) when the court stated:

If, on the other hand, the respondent had obtained a judgment without error, we have no power to reverse and remand in order to allow the appellant to pursue a different theory, whether it be a theory of recovery or of defense. Owings v. White, 391 S.W.2d 195, 197[1-3] (Mo. banc 1965).

Here, Dr. Galbol obtained a judgment without any error. Remand is, therefore, not possible.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    E’Thelbert RUCKER, Plaintiff-Respondent, v. Brownlee THROWER, Defendant-Appellant.
    No. 37352-53-54.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 9, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Paskal, Edwards, Olian & Hadican, J. Martin Hadican, Clayton, for defendant-appellant.
    Joseph S. McDuffie, St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Brownlee Thrower, defendant, appeals from the action of the trial court denying his motions to quash executions in three cases. The three appeals have been consolidated in this court.

The underlying judgments were entered in 1973 as a result of defendant’s default. The petitions in each case alleged conversion. Defendant, through an attorney, filed a motion to dismiss as to each. These motions were denied. No answers were filed. After plaintiff had obtained the default judgments, defendant, through the same attorney, timely filed motions to set the default judgments aside. These motions were denied by the trial court and timely appeals were taken to this court, again by the same attorney. These appeals were dismissed by this court for failure to perfect them under the rules.

Defendant now seeks to predicate error upon the trial court’s refusal to quash execution because (1) the record on its face shows a defective return of service and (2) the default judgments should be set aside because defendant was abandoned by his attorney.

A motion to quash execution constitutes a collateral attack upon the underlying judgment. It lies only if the record on its face establishes that the judgment is void. Vincel v. Vincel, 439 S.W.2d 227 (Mo.App.1969) [4, 5]. If the return of service was defective, such defect was waived by defendant’s motion to dismiss on non-jurisdictional grounds and his motion to set aside the default judgments, again on non-jurisdictional grounds. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955) [2].

Defendant’s claim of abandonment by his attorney does not appear from the face of the record. Furthermore, the claimed failures of the attorney do not fit within the “abandonment” cases such as Boeckmann v. Smith, 238 Mo.App. 855, 189 S.W.2d 449 (1945); Parks v. Coyne, 156 Mo.App. 379, 137 S.W. 335 (1911); and Whitledge v. Anderson Air Activities, supra. First of all, those cases arose either on motions to set aside the default judgment before it became final or on a separate suit in equity to set aside the judgment. They did not arise on a motion to quash execution. Secondly, the activities of defendant’s lawyer here do not establish “abandonment” by the attorney as was found in those cases. Rather, the charged misconduct of defendant’s attorney here was negligence in failing to properly handle the litigation and in neglecting to mail the answers which counsel had prepared. Such negligence is imputable to defendant. Fulton v. I. T. & T. Corp., 528 S.W.2d 466 (Mo.App.1975); Whitledge v. Anderson Air Activities, supra. [4].

The actions of the trial court are affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert Gene BURROUGHS, Appellant.
    No. 38201.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant Robert Burroughs guilty of first degree robbery. Sections 560.120 and 560.135, RSMo., 1969, VAMS. After denying his motion for a new trial the court, under the Second Offender Act, announced it was sentencing defendant to 15 years’ imprisonment to run concurrently with a three-year sentence recently imposed on another charge. The court then set this aside and in its formal judgment ordered the two sentences to run consecutively. Defendant filed an amended motion for a new trial without challenging the amended judgment; our review is therefore limited to plain error. (Rule 27.-20(c)).

As said, the trial court announced a 15-year sentence to run concurrently with a three-year sentence on the prior conviction for assault. Immediately following this the court held a hearing on defendant’s motion to appeal as a poor person and defense counsel mentioned there was a rape charge pending against defendant. The court digressed to question both counsel about defendant’s background, and then set aside its order for concurrent sentences and formally entered judgment making the 15-year sentence run consecutively to defendant’s prior three-year sentence.

The issue raised is whether it was within the trial court’s power to increase the originally announced sentence.

A trial court has an inherent right to modify its judgment before it has become effective. In Ex parte Simpson, 300 S.W. 491[1, 2] (Mo.1927) it was held: “The right of the circuit judge at the same term to set aside its [prior judgment] and to enter a new judgment, before petitioner was taken to the penitentiary, is not and could not well be questioned.” For widespread acceptance of this principle see cases at 24 C.J.S. Criminal Law §§ 1587b and 1588.

Defendant argues that in entering the formal judgment of consecutive sentences the court impermissibly considered other charged offenses. Bearing in mind that defendant relies on the plain error rule, we have examined the record and find that the trial court did not commit a manifest injustice in ordering the two sentences to run consecutively nor did the consecutive sentencing result in a miscarriage of justice.

In United States ex rel. Starner v. Russell, 378 F.2d 808[1] (1967), it was held that vacating a sentence and then resentencing does not constitute double punishment where accused has not begun serving the original sentence. We hold it was within the trial court’s power to amend the original judgment when defendant was still in the court’s presence and the original judgment had not been put into operation.

We deny defendant’s challenge to the judgment and take up his point on denying a mistrial.

Defendant contends the trial court improperly overruled his objections to the prosecutor’s remarks in closing argument and erroneously denied his motion for mistrial. When a prosecutor stays within the evidence and its reasonable inferences his argument is permissible. State v. Bolden, 525 S.W.2d 625[14] (Mo.App.1975). In closing argument counsel may draw non-evi-dentiary conclusions justified by inferences from the evidence. State v. Bailey, 526 S.W.2d 40[5] (Mo.App.1975).

Defendant cites an instance where the prosecutor argued that the stolen bicycle was put into the back of defendant’s car and “probably they split the money” after selling it. The trial court overruled defendant’s objection of “no evidence” and “pure speculations.” Defendant argues no witness saw the bicycle in the car nor suggested defendant received the money. The testimony was that defendant’s accomplice rode the stolen bicycle away from the scene alongside defendant’s automobile; about an hour later a third person was apprehended with the bicycle in his car and told the officer he had paid $20 for the bicycle which had been taken out of defendant’s car. The prosecutor’s statement was a reasonable inference and proper argument.

Next, the prosecutor’s argument, “This is a street robbery — he wants you [defense counsel] to characterize it just a simple little assault,” was a reasonable response to defense counsel’s attempt to denigrate the offense, as in State v. Phelps, 478 S.W.2d 304[9] (Mo.1972). No error here.

Other statements by the prosecutor objected to as not being supported by the evidence were inferences reasonably drawn from the evidence.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: DON W. KENNEDY, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Dale HOLT, Defendant-Appellant.
    No. 10399.
    Missouri Court of Appeals, Springfield District.
    Aug. 26, 1977.
    Motion for Rehearing or Transfer Denied Sept. 21, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Loren R. Honecker, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and KENNEDY, CROW and BACON, Special Judges.
   DON W. KENNEDY, Special Judge.

In a jury-tried case in the Circuit Court of Greene County, defendant Donald Dale Holt was convicted on April 19, 1976, of striking Springfield police officer Harvey Rector while the officer was engaged in the performance of his legal duties, in violation of § 557.215, RSMo 1969. Under the Habitual Criminal Act the court fixed his punishment at two years in the Department of Corrections. His motion for a new trial was overruled.

On this appeal defendant puts forward three points of alleged error which he claims entitle him to a reversal.

The first point is that the evidence is not sufficient to support his conviction. In particular, he says, it is insufficient to show that his kicking officer Rector was “willful”, and then he says that it is insufficient to show that the officer was engaged in the performance of his legal duties. Both these facts are required to be shown under § 557.215.

The following account of the incident in question is gathered from the state’s evidence.

Officer Rector on the evening of May 28, 1975, was attempting to arrest defendant’s 16-year-old nephew, James Hickey, outside Bud Perry’s tire store in Springfield. Hickey, apparently drunk, and wishing to take up with Perry a controversy over a tire, had kicked in the plate glass door at the tire store, had struck a bystander, and was using loud and profane language. During the disturbance, the officer arrived on the scene and undertook to arrest Hickey. Hickey resisted Rector’s attempts to arrest him. Rector had Hickey on the ground in an attempt to handcuff and subdue him when defendant, who had accompanied his nephew to the store, but who up to this point had remained somewhat inconspicuous, angrily protested the arrest and attempted to pull the policeman off Hickey.

A second Springfield police officer, Don Adamson, arrived on the scene, followed by a Greene County deputy sheriff. Adamson, with some force, removed the defendant from the fray. Rector, after getting Hickey under control with the aid of the deputy sheriff, turned his attention to defendant. He told him he was under arrest “for obstructing an officer, and for being drunk.” The officers’ attempts to handcuff defendant were energetically opposed, by both vocal and physical means. Defendant cursed the officers, struck at them, kicked at them, and screamed that they were not going to take him to jail. In the course of the struggle, he “knee’d” officer Rector in the groin.

When the arrest was finally completed, defendant, along with Hickey, was hauled off in the paddy wagon.

Defendant’s version of the incident, coming from Hickey and from the defendant himself, described a slower-paced, quieter and more peaceful event. Defendant denied kneeing officer Rector. He stated that he had once kicked at the officers, but missed. In view of the adverse verdict, it is not necessary to detail defendant’s evidence.

The “willfulness” of an act is a matter rarely capable of direct proof, but must be found, if at all, in the circumstances. In this case, the state’s testimony of the blow itself, surrounded as it was by the defendant’s emphatic and profane protests, his kicking and striking, was descriptive of an intentional act. The jury could have found it so to have been, as they did by their verdict. State v. Reed, 453 S.W.2d 946 (Mo.1970).

As to the alleged deficiency in the evidence showing that the officer was “actively engaged in the performance of duties imposed upon him by law”:

The police officers were constituted by law “conservators of the peace” and enjoined “to arrest ... all persons who shall break the peace,” § 85.840, RSMo 1969. This court does not need to examine critically the arrest, nor determine precisely what, if any, city ordinance or state statute the defendant had violated before, and for which the officer attempted to arrest him. To make such an arrest as this, to quell the affray, to prevent its fresh outbreak, is well within the ambit of their legal duties. There could be policemen’s activities so far removed from the normal, the expected and the mandated, as to be beyond the scope of the phrase “duties imposed ... by law,” but other cases will locate the perimeter of that concept, for here the actions of the officers were at or very near its center. Kansas City v. LaRose, 524 S.W.2d 112, 119 (Mo. banc 1975); State v. Briggs, 435 S.W.2d 361, 364, 365 (Mo.1968); State v. Nunes, 546 S.W.2d 759, 762, 765 (Mo.App.1977); State v. Bradley, 515 S.W.2d 826, 828, 829 (Mo.App.1974).

Next, the defendant says the court erred in failing to instruct on common assault, claiming that common assault is a lesser included offense within the charged offense.

This exact point has been presented and disallowed in State v. Taylor, 498 S.W.2d 614, 617 (Mo.App.1973), which held that no common assault instruction was required when it was clear that the victim of the striking was a police officer who was at the time engaged in his official duties. That is the situation here. We have earlier said that there was sufficient evidence of these facts to make a submissible issue; we now go further and say there was no substantial evidence to the contrary.

Finally, defendant says the conviction should be reversed because his trial was too long delayed, and he was thereby deprived of his constitutional right to a speedy trial.

The speedy trial issue was raised for the first time in defendant’s motion for a new trial. In order to be preserved for consideration on appeal, it must have been presented at the earliest feasible time and kept alive through successive stages of the trial. In this case it must have been raised by pretrial motion, and it is too late when it appears for the first time in the motion for a new trial. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). We have, however, considered the argument in a cursory way, and believe that the constitutional standards of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in the circumstances of this case, were not offended by the lapse of ten and one-half months from the date of offense to time of trial.

The judgment is affirmed.

HOGAN, P. J., and BACON, Special Judge, concur.

CROW, Special Judge, not participating.


text:
    Paul F. MAX, Appellant, v. John J. REIDLER, Respondent.
    No. 38359.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.

      Sommers & Holloran, Inc., Don B. Som-mers, St. Louis, for appellant.
    Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, J. C. Jaeckel, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Intersection collision. Defendant got the verdict and plaintiff appeals, contending there was no evidentiary support for the contributory negligence instruction on plaintiff’s failure to keep a careful lookout. MAI 32.01-17.05. The issue is whether plaintiff’s tentative glance at defendant’s approaching vehicle fulfilled plaintiff’s continuous duty to keep a careful lookout. We say no.

The collision occurred on a dark, wet day at an uncontrolled intersection. Plaintiff was driving west and defendant driving north, both at 25-30 miles per hour, and neither reduced speed before the collision. As to the critical issue of plaintiff’s failure to keep a careful lookout, he testified he was at some unspecified distance back from the intersection when he saw defendants approaching car “out of the comer of my eye on the left ... I thought he was far enough away that he would swing in behind me or something.” But plaintiff neither looked again nor changed his speed thereafter.

Reference to the host of cases annotated at 4A Mo.Dig., Automobiles, Lookout, shows that a motorist’s duty to keep a lookout is continuous.

Wells v. Wachtelborn, 410 S.W.2d 558, 560[15] (Mo.App.1966), is an appropriate example. There, as here, plaintiff knew defendant’s car was approaching the intersection but “did not once look to estimate the speed of the approaching car or its distance from the intersection. Instead he drove his car on a collision course when a glance . would have alerted him to the hazards of the situation in time to have avoided it . His conduct was one of complete indifference to apparent danger and constituted negligence as a matter of law.”

The court did not err in submitting the issue of plaintiff’s contributory negligence to the jury.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE ex rel. Lyle WADE, d/b/a Wade Construction Company, Relator, v. Honorable Donald E. DALTON, Judge of the Circuit Court of St. Charles County, Missouri, Respondent.
    No. 38805.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.

      Gerald L. Birnbaum, O’Fallon, for relator.
    Larry D. Nesslage, St. Charles, for respondent.
   CLEMENS, Presiding Judge.

Original action in prohibition to prevent respondent circuit judge from taking jurisdiction of an appeal from a magistrate court because of an allegedly defective notice of appeal.

Relator Lyle Wade filed suit in magistrate court against Mary Nell Wade for the value of labor and materials furnished her. Defendant counterclaimed for $1,500, alleging plaintiff took possession of her automobile. The magistrate court gave plaintiff judgment for $600 and found against defendant on her counterclaim.

Defendant then filed the challenged notice of appeal: “TAKE NOTICE, that an appeal has been taken from the judgment of William T. Lohmar, Judge of the Magistrate Court of St. Charles County, Missouri, _District (Division) rendered on the 23rd day of August, 1976, for $600 and costs, in favor of the said Plaintiff Lyle D. Wade against the said Defendant Mary Nell Wade.”

In the circuit court plaintiff-relator moved to dismiss defendant’s appeal, claiming her notice of appeal was defective in that the “attempted appeal is from designated portions of the judgment. . . . ” The respondent-judge denied plaintiff’s motion to dismiss and accepted jurisdiction.

Relator-plaintiff’s petition for prohibition followed, seeking to prohibit respondent circuit judge from proceeding with a de novo trial. We issued our preliminary writ. The sole question before us is whether defendant’s notice of appeal to the circuit court was defective, thereby depriving respondent of jurisdiction. We think not, and quash our preliminary writ.

In a given case a magistrate court is authorized to render only one judgment— not divisible judgments — and cannot enter separate judgments on a petition and a crossclaim. Section 517.270, VAMS; Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16[1] (Mo.App.1962). An appeal to the circuit court can only be from the complete magistrate court judgment. “A notice of appeal wherein an attempt is made to appeal . from less than the entire judgment is insufficient to confer jurisdiction on the Circuit Court.” Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118, 122[7] (Mo.App.1951).

The relator compares the above quoted notice of appeal with that in Preston Plumbing, Inc. v. Melman, 528 S.W.2d 524 (Mo.App.1975), contending that ease, which found the notice of appeal defective, controls here. However, in Preston, at l. c. 526, this court ruled: “It is manifest from Mel-man’s motion to amend its notice of appeal and from the various memoranda of law filed with the circuit court on behalf of Melman that initially Melman fully intended to appeal only a portion of the judgment.” Here, we have no motion to amend the notice of appeal nor memoranda of the type ruled in Preston and find it distinguishable and not dispositive of the issue now before us.

Relator cites two additional cases discussed in Preston which we find inapposite. In Rudy-Fick, supra, the plaintiff appealed on “plaintiff’s petition only (our emphasis).” In Gloria Lee Realty Co., supra, there was no final judgment; the parties appealed from the verdict on plaintiff’s petition and the jury verdict on the first and fourth counts and crossclaims. The court found the parties “were attempting to restrict a trial in the circuit court to only part of the issues in the case.”

We have no explicit restriction here and find the case of Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267 (1920) controlling on the issue now presented.

Davenport is best understood by considering the underlying case before the Springfield Court of Appeals, 196 S.W. 1035 (Mo.App.1917), certified to the supreme court upon the dissent of Allen, J. There, judgment before a justice of the peace was for plaintiff on its petition and against defendant on his counterclaim. As here, defendant filed a notice of appeal from the judgment in favor of plaintiff for $203.62, without mentioning defendant’s counterclaim. The circuit court dismissed the appeal on the ground “the notice [of appeal] did not describe the judgment . . . .”

The court of appeals upheld dismissal of the appeal, but in his dissenting certification — later followed by the supreme court— Judge Allen declared: “That the notice does not mention the judgment on the counterclaim cannot affect its validity, since the statute merely requires enough to specify the judgment appealed from . . . The statute does not require that the judgment be fully described, but merely provides that it state ‘the fact that an appeal has been taken from the judgment therein specified.’ . It is manifest that the appellee in fact had notice that an appeal had been taken in the case, which is all that the statute contemplates. And having thus been notified, appellee ought not to be permitted to come into the court where the appeal is pending and secure any advantage by reason of formal defects or inadvertent errors in the notice, which did not in fact mislead or prejudice it.”

Upon transfer to the supreme court, the circuit court’s dismissal of the appeal was reversed as Judge Allen had urged, and the cause remanded for trial in the circuit court. The court pointed out that, as here, “the judgment included a finding for plaintiff on defendant’s counterclaim [but] the counterclaim is not mentioned in the notice [of appeal].” In upholding the notice of appeal the supreme court reasoned: “The question for determination is whether the notice served would necessarily inform the plaintiff of the identity of the judgment appealed from, and whether in fact it did so inform the plaintiff. . . . The notice is sufficient to inform, and in fact did inform, the plaintiff’s attorneys that the appeal was taken in the case actually appealed from. That is, the judgment was sufficiently ‘therein specified’ to inform counsel which judgment it was.”

In sum, as in Davenport, the judgment here included a judgment against defendant on her counterclaim, but in the notice of appeal the counterclaim was not separately mentioned. The supreme court held such a notice of appeal is sufficient, notwithstanding this omission. We are bound by the decision in Davenport and conclude the respondent circuit judge properly assumed jurisdiction.

We hold our preliminary writ was improvidently granted and is now ordered quashed.

DOWD and SMITH, JJ., concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    FIRST NATIONAL BANK OF INDEPENDENCE, Plaintiff-Appellant, v. MID-CENTURY INSURANCE COMPANY, Defendant-Respondent.
    No. KCD 28251.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Danny L. Curtis, Niewald, Risjord & Wal-deck, Kansas City, for plaintiff-appellant.
    Sylvester Powell, Jr., Heilbron & Powell, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by mortgagee to recover on policy of insurance against loss by theft issued to owner of mortgaged vehicle. Judgment appealed from was in favor of insurer.

Mid-Century Insurance Company issued its policy of insurance to Willis Corley for comprehensive coverage on a 1968 Chevelle automobile. Corley had given the First National Bank of Independence a mortgage on the vehicle to secure a loan and the bank was named as a mortgagee in the policy declarations, by which the interest of the mortgagee was “continuous until can-celled.” A renewal premium was due on the policy August 17, 1968. The premium was not paid and the insurer notified Corley of the cancellation of the policy. The contested issue in this case is whether or not notice of cancellation was received by the bank.

The insured vehicle was stolen October 19, 1968. On October 31, 1968, Corley advised the bank of the theft and the fact that the vehicle had been recovered, “stripped.” He told the person with whom he dealt at the bank that his insurance had been cancelled before the loss and he sought a loan for another auto which was denied.

The bank checked with the insurer and was advised that, by the latter’s records, the bank had been notified on September 4 of cancellation of Corley’s policy, effective September 24. No record of the receipt of such notice was found in the bank’s file.

In view of the information that Corley’s insurance had been cancelled, the bank filed a “Precautionary Claim” covering the loss on its “single interest” coverage by Federal Insurance Company. The bank demanded payment of its note from Corley and on nonpayment sued him, recovering judgment on January 29, 1969 for the amount due of approximately $2,800. Corley was adjudicated bankrupt in February, 1969. On February 11,1969, the bank gave written notice of loss to Mid-Century and requested forms for proof of loss. Mid-Century denied the claim.

On September 27, 1972, the bank sued Mid-Century in the Jackson County Magistrate Court which entered default judgment in favor of plaintiff. Defendant appealed to the Jackson County Circuit Court. On trial to the court, jury having been waived, the court gave a verdict for defendant insurer. The bank appealed.

On this appeal, the respondent insurer acknowledges that it had the burden to establish its defense that the coverage extended the bank had been cancelled prior to the date of the loss. Farrar v. Mayabb, 326 S.W.2d 337, 341[407] (Mo.App.1959).

By the terms of the policy, the cancellation or lapse of the policy was not effective as to the interest of the lienholder unless the insurer notified the lienholder at least ten days before the cancellation became effective. Because of a change in 1969 of the record keeping system of the insurer to a computer system, the only item in the insurer’s file with respect to the policy was the original application for insurance executed by Corley in 1967. The bank produced its copy of the “Lienholder’s Certificate of Insurance,” issued by respondent for Corley’s policy.

The policy service manager for the Farmers Insurance Group (which included respondent) testified that, according to the usual business practice of the insurer, a notice would have gone to Corley on about August 2,1968, notifying him that a premium of $104.26 should be paid by August 17 to avoid cancellation of the policy. According to the witness, some 15 to 20 days following the stated cancellation date, “the computer” scans its records and if the premium has not been paid, a notice is prepared by the computer notifying the insured that his policy has been cancelled as of the specified date. At the same time the computer prepares a similar notice to the agent. A “Notice of Cancellation to Mortgagee or Other Interest” is attached to the form of notice to the insured. If interest of a mortgagee is involved, the computer completes the form, notifying the mortgagee of cancellation of the policy as to its interest on a date specified in the notice, usually 20 days following preparation of the notice. According to the witness, the forms are printed simultaneously in the computer operation. The computer is situated in Los An-geles and the forms which it prepares are mailed from Los Angeles to the insured, etc., at the address shown on the policy.

As above noted, Corley received his notice that the policy was out of force as did the agent who sold the policy.

Appellant contends that the trial court erred in admitting over its objection, the testimony as to the receipt of the notice of cancellation by Corley and the agent because such evidence was without probative value on the issue of whether the appellant received notice of cancellation of its interest. It also contends that evidence of the custom and practice of respondent in the handling of cancellation notices was improperly admitted “because a party’s own custom is not proper for determining whether his conduct in a particular case was appropriate.” In support of the latter proposition, appellant relies upon Barkley v. Mitchell, 411 S.W.2d 817, 825 (Mo.App.1967), which holds that the defendant’s custom, as distinguished from general custom, is not a proper basis for a standard of care. Here, a standard of care is not the question. The question is whether or not the evidence of its custom and practice had probative value in support of respondent’s contention that it did send notice of cancellation to appellant.

That, in turn, depends upon what evidence may be relied upon for proof of mailing in order to give rise to the presumption of receipt by an addressee. Appellant does not address itself to that question, but, relying upon its contention that the evidence it objected to was inadmissible, asserts that the only evidence before the court on the issue was its evidence that it did not receive the notice which “was some evidence that it was not mailed.” Ireland v. Manufacturers & Merchants Indemnity Co., 298 S.W.2d 529, 533[1-4] (Mo.App.1957).

The rule with respect to proof of mailing which gives rise to a presumption of delivery is frequently said to require proof that the letter was placed in an envelope properly addressed to the addressee, with adequate postage and deposited in the mail. Hood v. M.F.A. Mutual Insurance Company, 379 S.W.2d 806, 809[1, 2] (Mo.App.1964); 29 Am.Jur.2d Evidence § 194, p. 247 (1967). However, it has been recognized that, in large offices which handle a volume of mail, direct proof with respect to a particular letter is impractical. The courts have held that proof of “settled custom and usage of [the sender’s] office, regularly and systematically followed in the transaction of its business” may, in such cases, suffice. Armour & Co. v. American Automobile Ins. Co., 336 Mo. 551, 80 S.W.2d 685, 689 (1935). Under that holding, evidence of the custom and business practice of respondent was proper.

Likewise the evidence that Corley and the agent received their notices was some evidence that the practice was followed with respect to Corley’s policy. See Lieb v. Webster, 30 Wash.2d 43, 190 P.2d 701, 703[1] (1948). Such evidence was for consideration of the trier of fact in that regard.

The court also had before it an undated memorandum from appellant’s files, introduced in evidence by appellant, relating to the Corley policy and the nonpayment of the premium, which included this statement: “Their records indicate they notified us 9/4 effective 9/24/68.” This is some evidence that a record had existed showing that notice of cancellation had been given.

The court sitting without a jury did have evidence before it which it was entitled to weigh as against appellant's denial that it had received the notice. Price v. Ford Motor Credit Company, 530 S.W.2d 249, 253[5, 6] (Mo.App.1975). The burden of appellant here was to convince this court that the evidence was unsubstantial or that the trial court’s finding was against the weight of the evidence (Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)) and appellant has not carried that burden.

Judgment affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Alton M. PERKINS, Appellant.
    No. KCD 28633.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., SWOF-FORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

After a jury verdict of conviction, the appellant (defendant) was sentenced to fifty (50) years for Robbery First Degree (Section 560.135 RSMo 1969) and to two (2) years for Assault with Intent to Rape (Section 559.190 RSMo 1969), such sentences to run concurrently.

He appeals from this judgment and raises a single point upon which he seeks reversal and remand. He asserts that the court erred in overruling his motion to suppress and subsequently allowing testimony concerning identification of the defendant because such identification procedure was conducted after he had been charged with the crimes, without the presence or assistance of counsel, in violation of his constitutional rights.

Although defendant does not challenge the sufficiency of the evidence, in order to rule his sole point on appeal it is necessary to note some evidentiary facts.

On June 17,1974, Mrs. Wanda Reese, the manager of an apartment building at 4425 Jarboe, Kansas City, Missouri, responded to the door bell of her apartment and found two black men at her door. They inquired if she had any vacancies and were told that there were none. While she was writing down her telephone number so that they could call her later to see if any vacancies had occurred, they came into her apartment; one of them placed a gun to her ribs; and, they took $80.00 in cash from her purse and a jar in the apartment. The man with the gun, whom she identified as the defendant, then forced her, at gunpoint, to a second floor bedroom and told her to get on the bed and take her clothes off and then momentarily left the room. Afraid that she would be raped or murdered, she fled to a balcony outside the bedroom, called for help, and receiving no response, was attempting to climb down from the balcony when she fell some 25 or 30 feet to the ground below. As a result of this fall she sustained a broken collar bone and shoulder, fractures of all ribs on the right side (some of which punctured her lung) and a broken leg which had to be amputated. The robbers fled the apartment to where she lay, observed her lying on the ground, jumped into an automobile and drove off.

Mrs. Reese testified that the men were in her apartment for 15 or 20 minutes, neither were masked, the lighting was good, she clearly observed their features, and observed the defendant when he forced her upstairs from a distance of one foot.

On July 30, 1974, the defendant was arrested on suspicion and because there was an outstanding Kansas City, Missouri warrant for him “for not appearing in court”.

At police headquarters the defendant was given the Miranda warning by Detective Clarence Luther and signed a waiver. Luther then interrogated him about the Reese robbery and others. As a result, the defendant signed a statement admitting his participation.

On July 30, 1974, the defendant was placed in a lineup with six or seven other men. At that time, he had not been charged with the Reese robbery and assault and was not represented by counsel at the lineup. Mrs. Reese was then in the hospital and was, of course, not present at the lineup, but the police did take photographs of the lineup. A complaint was filed in the Magistrate Court on July 81, 1974, the day following the lineup, but the record is devoid of any further details concerning this complaint.

On August 2, 1974, Detective Luther showed the lineup photographs to Mrs. Reese and she identified the defendant and another man in the lineup as the men who had robbed her. The defendant was indicted by the grand jury on August 16,1974 on the charges here involved and on August 20, 1974 was arraigned in the Circuit Court of Jackson County, Missouri and was then represented by appointed counsel.

Before this trial commenced on November 12,1975, the defendant filed his motion to suppress both his written admission of guilt given to Detective Luther and the identification of him by Mrs. Reese, and a hearing was had thereon. Both requests were denied. No attention need be given to the evidence as to the admissions of guilt either at the suppression hearing or at trial for the reason that error is not urged on this appeal as to the court’s rulings thereon.

As to the photographic identification by Mrs. Reese it should be noted that not one scintilla of evidence was adduced at the pre-trial hearing or at the trial that such identification was in any way tainted by coercion, suggestion or other improper activity by Detective Luther or anyone else but was voluntarily and freely made without any such taint.

Likewise, the in-court identification by Mrs. Reese of the defendant was positive and unequivocal and the circumstances, above related, disclosed that she had ample time and opportunity during the robbery to observe the defendant and there was a firm, independent factual basis, aside from the photographs, upon which her identification of the defendant rested.

The defendant’s position appears to be that in view of the fact that at the time the lineup photographs were shown to Mrs. Reese, he had been charged by complaint in the Magistrate Court, he was entitled to be represented by counsel upon that occasion under the authority of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Wade case did hold that a post-indictment lineup was a “critical stage of the prosecution” at which the person charged was entitled to counsel, but is inapposite on the facts and not controlling authority here. The courts of this state have now firmly held that a lineup after a complaint has been filed and a warrant issued does not require the presence of counsel under the Wade rule but such rule is applicable only after an indictment is returned or an information filed. Morris v. State of Missouri, 532 S.W.2d 455, 456-457[1] (Mo. banc 1976) [overruling Arnold v. State of Missouri, 484 S.W.2d 248 (Mo.1972) and other earlier opinions].

Further, the case at bar does not, in fact, involve a lineup at all but merely a pre-indictment exhibition of lineup photographs to a witness for possible identification. The defendant attempts to equate this incident to lineup identification.

However, both the Supreme Court of the United States and the appellate courts of Missouri have held that the Sixth and Fourteenth Amendments of the United States Constitution do not mandate that the defendant’s counsel be present when a witness is shown photographs of the defendant for identification purposes even after the defendant has been indicted for the offense. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); State v. Lynch, 528 S.W.2d 454, 461 (Mo.App.1975), and cases cited therein. To hold otherwise would place an intolerable and completely impractical burden upon law enforcement and prosecutorial authorities.

Neither does the fact that Mrs. Reese’ initial identification of the defendant was made from a lineup photograph change the conclusion here reached. No constitutional distinction is justified by this fact from a situation where she might have been shown six or seven “mug” shots of persons.

There is no validity to defendant’s position.

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert E. BENSON, Appellant.
    No. KCD 28776.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Robert E. Benson was convicted of robbery in the first degree, § 560.120, RSMo 1969, and sentenced to five years imprisonment.

On this appeal Benson contends the court erred in failing to admit certain evidence and refusing to grant a mistrial after certain remarks made by the court. Affirmed.

Benson does not raise any question concerning the sufficiency of the evidence. He was identified by several participants in a dice game as the person who had been also participating in the game but drew a gun and relieved the other participants of their money.

One of the State’s witnesses was Roy Odom, who was the lessor of the building in which the game was being held. He had sub-leased the actual site of the game to Ernest Jones. Odom testified he had gone to the room where the game was being held at the request of Jones because it was discovered Benson had a gun in his belt. Odom stated when he entered the room Benson drew his gun and placed it at Odom’s head and announced the holdup. Odom identified Benson as the person who had placed the gun to his head.

In an effort to impeach Odom, the defense called a police officer who stated he had taken a statement from Odom at a hospital after the robbery. Odom’s hospitalization was not related to the robbery. The officer stated Odom told him the man who had robbed him was the man who had been shot by a guard at the Southeast State Bank.

Benson called Otis Atkins, a guard at the Southeast State Bank, as a witness. Atkins was examined out of the presence of the jury to afford the court an opportunity to pass on the State’s objections to his testimony. This examination revealed the purpose in calling Atkins was to establish that a person named Booker Powell was the one who had been shot at the Bank. The State objected to Atkins’ testimony on the grounds it was not relevant to any issue in the trial of Benson. Benson contended such evidence was relevant to show the name of the person who had been shot at the Bank. From other evidence it was apparent the person shot at the Bank was not Benson.

Under the rule followed in this State as announced in State v. Granberry, 491 S.W.2d 528, 530 (Mo. banc 1973) it was proper for the extrajudicial statement made by Odom, in which he did not identify Benson as the robber, to be shown to impeach or discredit Odom’s testimony. However, such rule further provides such impeachment evidence is not competent as substantive evidence of the facts to which the statement relates.

Thus, Benson was properly allowed to impeach witness Odom by his previous extrajudicial statement. However, this does not dictate that Benson be permitted to go further to prove the identity of the person who was shot at the Bank when it was apparent such person was not Benson. The question of who was shot at the Bank was completely irrelevant to any matter at issue in the trial of Benson. State v. Walden, 490 S.W.2d 391, 393[l-3] (Mo.App.1973). For that reason the court did not err in refusing the testimony of witness Atkins.

Benson next complains about a remark directed to his counsel by the court during a discussion at the bench out of the hearing of the jury. During this discussion the court noted the many delays in the trial caused by Benson’s counsel. The court advised counsel because of these delays his performance had been very unsatisfactory.

After this discussion, evidence was presented to show at least some of the remarks made by the court were, or could have been, heard by the jury. The court made it clear that such remarks were intended to be out of the hearing of the jury. Following a recess, which occurred immediately after the conference of which complaint is made, the court instructed the jury that it was not to consider any remarks which it may have overheard while any conference was being held at the bench. The court further reminded the jury of a previous instruction that they were not to consider any statement, ruling or remark the court made during the trial as indicating any opinion of the court as to what the facts in the case were. The court then overruled Benson’s motion for a mistrial based on the statement made to counsel.

It is beyond dispute the trial court has the duty to maintain order and decorum in the courtroom and to exercise general control over the trial. In the performance of this duty, the court may correct or reprimand counsel when it becomes necessary, “provided it is done in a manner that does not subject counsel to ‘contempt or ridicule, or which does not prejudice the party he represents with the jury.’ State v. Hudson, supra [358 Mo. 424, 215 S.W.2d 441] at 442[6].” State v. Nevills, 530 S.W.2d 52, 54 (Mo.App.1975).

The remarks made by the court here were first intended to be out of the hearing of the jury. Assuming, however, the jury may have heard part or all of the court’s remarks, no prejudice is shown to exist. The court was not indicating the result which it thought the jury should reach in this case. Further the court promptly instructed the jury that the conference held at the bench, even if overheard by the jury, was to be disregarded by them. More important, the remarks made by the court were justified by the delays Benson’s counsel had occasioned. The single remark made in this circumstance did not subject counsel to contempt or ridicule. The court’s remarks did not require a mistrial. State v. Teeter, 239 Mo. 475, 144 S.W. 445, 447[4] (1912).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Merel R. TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28921.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

Defendant appeals from a denial of his motion under Rule 27.26 to vacate sentences aggregating 25 years entered upon his pleas of guilty. The sole ground urged by defendant for reversal is that his guilty pleas were involuntary in that he believed subjectively that the sentencing court was bound to accept a plea bargain that the sentences would total only ten years.

The charges against defendant arose out of two different incidents. The offenses alleged consisted of two counts of assault with intent to kill with pistol with malice and one count of assault with intent to rob with malice. Defendant’s retained counsel and the prosecuting attorney negotiated an agreement for defendant to plead guilty in return for which the prosecution would recommend that defendant receive ten (10) years on each of three counts, to run concurrently. Defendant testified that before the pleas of guilty were actually entered, his attorney stated to him “that the Court might not be bound by the recommendation” but that defendant “would get two ten-year sentences run together and they would total up to one.” Defendant also offered into evidence a letter written to him by his attorney shortly after the hearing before Judge Sprinkle on accepting the guilty pleas in which the attorney stated “that the problem is that Judge Sprinkle is not bound by any recommendation” but then went on to state “that it is the custom of most judges to follow closely the recommendation of the State, especially when the defendant is a first-time offender as is the case with you.”

At the hearing on the guilty pleas held before Judge Sprinkle, the court inquired whether defendant knew the range of punishment and defendant answered that he knew that range to be “two to life” on each count. In response to further questioning by the court, defendant acknowledged knowing that the court was not bound by the recommendation which had been made by the prosecutor. Immediately after making those acknowledgments, defendant told Judge Sprinkle that he nevertheless wanted to plead guilty. Notwithstanding the agreement which had been reached between the defense and the prosecution and the recommendation made by the prosecutor pursuant to that agreement, Judge Sprinkle sentenced defendant to ten years’ imprisonment on each of two counts, and five years on the third count, those sentences to run consecutively.

Subsequent to those sentences being imposed, defendant filed his present motion under Rule 27.26, and a hearing was held before Judge Stubbs. Evidence was received, including 'defendant’s testimony that it was his belief at the time he pleaded guilty that Judge Sprinkle had to follow the recommendation of the prosecuting attorney. After the conclusion of that hearing, Judge Stubbs filed findings of fact and conclusions of law in which he concluded: “Movant could not have justifiably relied on any impressions that he would receive sentences in accordance with the prosecutor’s recommendation when he was clearly informed during the proceeding and before the plea was accepted of the range of punishment for each crime, and the fact that the court was not bound to follow any recommendation.”

Defendant’s expectation that he would receive concurrent sentences on the three counts is not controlling. A disappointed hope of a lesser sentence than that actually received does not make the pleas involuntary. The record here clearly shows that defendant understood that Judge Sprinkle would not be bound by a recommendation of the prosecutor. Abrams v. State, 521 S.W.2d 177, l. c. 180 (Mo.App.1975) and cases there cited. Even though defendant’s trial attorney may have given a strong opinion that Judge Sprinkle was likely to adopt the recommendation, such opinions “do not make a plea involuntary when the attorneys’ opinions are offered with the warning the court need not accept their recommendations.” State v. Bonds, 521 S.W.2d 18, l. c. 21 (Mo.App.1975). Furthermore, the attorney’s warning here was fortified by the court’s questioning at the plea hearing by which the court made certain that defendant understood the court would not be bound to accept the recommendation.

The findings, conclusions and judgment of the trial court are not clearly erroneous. Therefore, pursuant to the dictate of Rule 27.26(j), the judgment denying defendant’s motion is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ronald BOYD, Appellant.
    No. KCD 28966.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, 16th Judicial Circuit, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of assault with intent to rape without malice aforethought and was sentenced to imprisonment for a term of five years. On appeal he contends the proof was insufficient for conviction.

The evidence taken most favorable to the jury verdict shows that a female acquaintance of T. C., the victim, brought two men to her apartment for an evening of badinage. In a short time, the victim and the defendant left to purchase some soft drinks. She did not learn until later that what the defendant had obtained and consumed was wine. Some four hours after arrival, the other couple left the apartment but the defendant remained on the expectation that the other man was to return for him.

He left the apartment to see if his ride had come, and when it did not, he asked to re-enter the apartment to summon a ride. He then sat for a while and commenced to act and speak strangely and intimidated T. C. by talk and manual gestures of assault. She became frightened and went next door to ask a neighbor for help, but he refused to become involved. The defendant followed her into the hallway and when she attempted to keep him from re-entrance, he forced his way into the apartment and told her he was about to beat her with his knuckles.

T. C. went for a can of mace in the bedroom and the defendant followed. As she attempted to spray the mace, he took her arm and began to choke her. As they struggled, he ripped her pants and brassiere off and her jeans fell. She attempted to escape through the back door, but he grasped her around the neck, threw her upon the bed and began to throttle her. By then, his trousers were undone and down, and his penis was exposed and erect. The police arrived as he hovered over her in that posture.

This evidence proves a prima facie assault with an intent to rape. The defendant concedes that an assault contemplates some intentional offer of bodily injury to another under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to carry out the attempt, if not prevented. State v. Parker, 378 S.W.2d 274, 282 (Mo.App.1964). This definition, the defendant argues, involves an overt act which the evidence lacks — and that, at best, nothing more was proved than a preparation to do injury unaccompanied by the act.

His contention becomes curious in the context of the evidence that the defendant was discovered in the very act of violent seizure of the victim for illicit intercourse. If, as appears, the defendant means to argue that the spray of mace upon him was a provocation against which he could lawfully defend, it need only be said that strangulation and sexual aggression were not reasonable responses.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Eddie BRUNSON, Appellant.
    No. KCD 29024.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of burglary, second degree, and stealing. The questions are whether a mistrial should have been declared following mention by a witness that “ * * * we have his record * * * and whether the court erred in allowing the prosecuting attorney to argue for conviction “on the basis of past convictions.” Affirmed.

Appellant does not question the sufficiency of evidence to sustain his conviction. The record shows that a jury reasonably could find that on August 14, 1975, Eddie Brunson broke into the locked dwelling of Ruth E. Gibson, 6400 South Woodland, Kansas City, Missouri, with intent to steal, and took Mrs. Gibson’s wedding ring without her consent and with intent permanently to deprive her of it. §§ 560.045, 560.110, 560.-156, RSMo 1969.

During defendant’s cross-examination of Detective Pete Edlund, the following occurred:

“Q And is it your experience that a suspect, regardless of his guilt or innocence, is somewhat reluctant to involve friends and associates with the police? A Not usually, unless they are arrested with him or the suspects with him. Q And are they sometimes reluctant to volunteer information until they know what is going on? A Yes, sir, sometimes.

“Q Did you ask the defendant whether he had been accused of other crimes by the police? A No, sir, I don’t recall and, we have his record available to us. Q Right.

“MR. STERLING: May we approach the bench. (WHEREUPON, the following proceedings were had in the presence BUT OUTSIDE THE HEARING OF THE JURY.)

“MR. STERLING: Your Honor, at this time, I make a motion for a mistrial on the grounds of the last statement of the witness, due to the fact that he said that they have the records before them and that indicates that the defendant had a record. THE COURT: What was your question to him? MR. STERLING: Did you ask if the defendant had been accused of other crimes by the police? THE COURT: And his answer was? MR. STERLING: We have his records available to us.

“MR. WELCH: Mr. Sterling elicited the very answer that he got. There are records showing that they have the records showing that he has a record or there are records that he has no record. MR. STERLING: I asked him about what the police had done in this particular case, not about what information he had available to him.

“THE COURT: Now, are you asking for a mistrial, at this time? MR. STERLING: That’s right. THE COURT: Are you asking for any other relief, just that? MR. STERLING: In the alternative, I would ask that the jury be advised to disregard the last remark. THE COURT: If there is a request for a mistrial, it’s denied. If you want me to, I’ll tell the jury to disregard the answer or the question and the answer. Just, which, the answer? MR. STERLING: Just the answer. THE COURT: Very well.

“WHEREUPON, the following proceedings were had IN THE PRESENCE AND HEARING OF THE JURY.

“THE COURT: The jury will disregard the last answer of the witness, as not responsive to the question.”

Appellant contends the court erred in its refusal to declare a mistrial asserting that Detective Edlund’s answer constituted proof of separate and distinct crimes. See, e. g., State v. Lee, 486 S.W.2d 412 (Mo. 1972); State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Martin, 506 S.W.2d 473 (Mo.App.1974).

The difficulty in this position is, as recognized by appellant, “that Detective Edlund made no direct reference to any particular crime,” as in State v. Lee and State v. Holbert, supra. Nor did he brand defendant a prior offender as did the court in State v. Martin, supra. The reference to “record” in the foregoing context is ambiguous in that it could denote either presence or absence of a criminal past. A mistrial should be granted only when the incident is so grievous that its prejudicial effect can be removed in no other way, State v. Camper, 391 S.W.2d 926, 928 (Mo.1965); State v. Johnson, 504 S.W.2d 23 (Mo.1973); State v. Duncan, 499 S.W.2d 476 (Mo.1973). This is not such a case. The grant or refusal of a mistrial lies within the discretion of the trial court, State v. Phelps, 478 S.W.2d 304, 308 (Mo.1972); and the court granted defendant’s alternative request and instructed the jury to disregard the unresponsive answer volunteered by Detective Edlund. Such action was not an abuse of the discretion accorded the trial court in such circumstances. See, e. g., State v. Parker, 476 S.W.2d 513, 515-516 (Mo.1972); State v. Key, 557 S.W.2d 696 (Mo.App.1977).

Defendant took the witness stand and, among other things, testified he had three prior convictions for burglary. Such convictions were mentioned further in defendant’s closing argument. During the State’s closing argument, the following occurred: “ * * * I submit to you that the State has proved beyond a reasonable doubt that Eddie Brunson on August 14th, 1975 — he said he was unemployed on the witness stand, remember him saying he was unemployed? He was out doing his business. That’s his job. They go from house to house and burglarize houses.

“MR. STERLING: Objection. May we approach the bench. (WHEREUPON, the following proceedings were had in the presence BUT OUTSIDE THE HEARING OF THE JURY.) MR. STERLING: I’m going to ask for a mistrial. In the State’s closing argument he suggested that the defendant is responsible for more than one burglary in the neighborhood. There has been testimony there was no other burglaries and it’s improper. THE COURT: Overruled. Request denied. MR. STERLING: Your Hon- or, may the jury be instructed to disregard the last statement? THE COURT: No, I shall not. I overruled your objection. MR. STERLING: Right. Okay.”

Defendant’s objection was restated as Point 7 in his motion for new trial. Appellant for the first time now shifts his position to say of this incident that “the trial court erred in allowing the prosecuting attorney to argue * * * the fact of * * prior convictions insofar as said argument was not directed toward * * * credibility but rather was an attempt to convict * * * on the basis of past convictions and thus deprived him of a fair trial.”

The foregoing demonstrates that the error now asserted was not presented to the trial court. Accordingly, it was not preserved for review. State v. Spencer, 486 S.W.2d 433 (Mo.1972); State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).

Appellant does not invoke, nor does it appear that Rule 27.20(c) should be invoked to prevent manifest injustice or miscarriage of justice on this account.

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Chester J. WORDS, a/k/a Jerome C. Words, Appellant.
    No. KCD 29037.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Robert N. Adams, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon, tried by a jury and found guilty, and sentenced by the court to twenty years imprisonment by reason of the jury’s inability to agree on his punishment.

A terse statement of facts surrounding the charged offense is sufficient as defendant’s single point on appeal, infra, does not question the sufficiency of the evidence. On the afternoon of November 6,1974, four men, one of whom was identified as the defendant, entered Smak’s Drive-in Restaurant at 6420 Troost, Kansas City, Missouri, brandished and discharged handguns resulting in the wounding of an employee, and took between $400.00 and $500.00 in cash belonging to Smak’s.

Defendant’s single point on appeal is stated in his brief as follows: “The trial court erred in failing to disqualify himself in that the court had conducted defendant’s competency hearing during which prejudicial remarks were made concerning defendant’s physical appearance.” Defendant’s authorities and argument in support thereof are so wide of the mark that the point itself is somewhat illusory.

Certain tangential facts must be iterated in order to provide the necessary background to understand defendant’s single point. By reason of several trips to the State Hospital at Fulton, Missouri, for psychiatric examinations pursuant to Sec. 552.-020, RSMo Supp.1971, regarding two unrelated matters, defendant was the subject of conflicting psychiatric reports, one to the effect that he had the capacity to understand the proceedings against him and assist in his own defense and one to the effect that he lacked the capacity to do so. In view of these disparate findings, a current psychiatric examination of defendant pursuant to Sec. 552.020, supra, was ordered by the trial court. After the updated psychiatric report became available, a hearing was held on May 27,1976, before the judge who later presided at defendant’s trial on the merits. At the hearing the updated psychiatric report and the correlative testimony of the examining psychiatrist confirmed that defendant was not suffering from a mental disease or defect and had the capacity to understand the proceedings against him and to assist in his own defense. Further, defendant’s disclaimer of any recollection of the day or event in question was characterized as conscious selective amnesia and his lack of communicativeness and cooperation with counsel were attributed to his feigned separation from reality and antisocial attitude. At the conclusion of the hearing the court, on the basis of all the evidence, found that defendant was “fit to proceed within the meaning of Chapter 552” and ordered the case “returned to the active docket”. It is clear that defendant’s bizarre conduct prompted the court, simultaneously with the entry of said order, to address defendant and explain to him, by way of equating defendant’s conduct and appearance with the findings contained in the psychiatric report, why he was going to have to stand trial. In doing so the court stated to defendant: “The Court must take the position that your lack of cooperation is somewhat feigned, assumed, put-on. I wish I had a picture of you at some earlier time. Your hair style is not that of a normal Afro style. It looks more like a bushman from Australia, which undoubtedly is part of your role of acting your antisocial behavior out.”

The case was set for trial on July 6,1976. On the morning of trial defense counsel orally moved that the trial judge disqualify himself “based on the fact that Your Honor was the individual who held the competency hearing and directed some remarks at the defendant concerning his hair style.” The trial judge refused to disqualify himself and the trial proceeded with the resultant judgment and sentence which defendant now seeks relief from on appeal.

Rule 30.12 relating to criminal cases specifically provides that its invocation, so as to compel disqualification of a judge as a matter of right, requires “reasonable notice” to the opposite party and the filing of a requisite affidavit as to the judge's “interest or prejudice” not less than five days prior to the date the case is set for trial. There was no semblance of compliance by defendant with the requirements of Rule 30.12, supra, and, everything else being equal, his noncompliance therewith relieved the trial judge of any error in not disqualifying himself. State v. Light, 484 S.W.2d 275 (Mo.1972). Understandably, defendant does not seek to excuse his failure to comply with Rule 30.12, supra, because the purported incident of prejudice occurred at such a late date as to make timely compliance impossible. Bear in mind, the remarks ostensibly personifying prejudice were made on May 27,1976, and defendant made no effort to disqualify the trial judge until July 6, 1976, the morning of the trial.

Notwithstanding defendant’s inexcusable failure to comply with the requirements of Rule 30.12, supra, he appears to blandly argue, without benefit of authority or fact, that the trial judge’s remarks evinced a degree of personal prejudice toward him of such intensity that the trial judge should have recused himself and failure to do so constituted reversible error. It is not beyond the realm of fair comment to observe that the trial judge’s earlier remarks apparently betook a different complexion in the mind’s eye of defendant on the verge of trial. In order to sustain defendant’s position this court would necessarily have to read the complained of remarks out of context, as defendant is prone to do, and then subjectively analyze them as mirroring the inner recesses of a mind filled with prejudice toward defendant. This approach is rejected. The complained of remarks should be read in proper context and objectively analyzed in light of the total record. This approach is not at odds with the zealously guarded belief that a judge free of prejudice is the bulwark of a fair trial. On taking this approach in the instant case it is noteworthy that defendant has failed to point out and this court’s seining of the record has failed to reveal a single instance where the trial judge’s purported prejudice objectively manifested itself, to any degree whatsoever, in prejudice in fact at any stage of the proceedings below. Read in proper context and objectively analyzed in light of the whole record, the faulted remarks of the trial judge are not subject to the prejudicial connotation urged by defendant.

Having failed to find any predilection on the part of the trial judge which implacably demanded self-imposed disqualification, no error attaches for his failure to do so.

Judgment affirmed.

All concur.

      . Section 560.135, RSMo 1969, prescribes the range of imprisonment “[at] not less than five years”.

      . If the request for disqualification of a trial judge is made in accordance with Rule 30.12 it must be granted as a matter of right. State v. Vermillion, 486 S.W.2d 437 (Mo.1972); State ex rel. Oswald v. Buford, 518 S.W.2d 690 (Mo.App.1975).


text:
    April LANGWELL, Plaintiff-Respondent, v. Leonard LANGWELL, Defendant-Appellant.
    No. KCD 29076.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Robert G. Smith, Brookfield, for defendant-appellant.
    Harry L. Porter, Marceline, for plaintiff-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The original decree of dissolution of marriage ordered that the mother have custody of the infant girl and that the father pay $150 per month as child support. The decree was modified thereafter on the motion of the mother to increase the support to $200 per month and by the definition of visitation rights. The father then sought further modification to reduce the support obligation and for an enlarged visitation. The mother moved concurrently to increase support and to eliminate visitation altogether. The court heard evidence and denied the motions of both parties.

On this appeal the father contends that changed circumstances entitle him to a reduction of the support obligation and a more favorable visitation.

The evidence was that the marriage domicile was the city of Marceline. The father was employed as a train engineer and the mother as a school teacher. At the time the support award was increased to $200 per month, the husband earned some $16,-000, but was since reduced to about $14,500. The father owned a 160 acre farm but contended it operated at a loss. He owned a herd of cattle, however, which grew from thirty-five to fifty head and was worth $10,000. Since the last modification his personal expenses had increased but he did not specify the extent.

The mother had worked as a teacher in the Marceline schools during the marriage and attained a salary of $7,700 per year. The marriage was disrupted and thereafter dissolved because of cruel treatment by the husband. His harassment after the dissolution forced her removal, from Marceline to Palmyra, some one hundred miles away. In Palmyra she has attempted a livelihood from the sale of real estate but without success. She resumed work as a teacher and practices that profession part-time to enable her to spend more time with the child. She receives a net of somewhat more than $300 per month from this limited employment, and some small sums from the sale of real estate, so her personal monthly expenses of $550 exceed her income.

The decree sought to be modified by the father allowed him alternate weekend visitations and on alternate Christmas days. Since the mother removed to Palmyra, the father has access to the child only after he has traveled one hundred miles to receive the child and another one hundred miles to return her. He considers this an unreasonable burden and requests that the mother be required to deliver the child to a halfway point. He also requests that holiday visitation now allowed him to be enlarged.

The mother testified that following visits with the father the child would crave her reassurances of love, that her normal affections were withdrawn, and she would not allow anyone to touch her. In this state, the child complains of physical hurts, which have been medically diagnosed as nervous reactions.

A court may modify an order for child support only [§ 452.370]:

upon a showing of changed circumstances so substantial and continuing so as to make the terms unreasonable.

This means that an orginal judgment — or modification — is res judicata to the facts and conditions on which the award rests and the burden to show that the terms of the adjudication have been made unreasonable by change of circumstances rests upon the party who seeks modification. Seelig v. Seelig, 540 S.W.2d 142, 145[1, 2] (Mo.App.1976).

A court may modify an order of visitation [§ 452.400]:

whenever the modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that visitation would endanger the child’s physical health or impair his emotional development.

This means that a determination of visitation by a trial court will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child. Roark v. Harvey, 544 S.W.2d 287, 292[5] (Mo.App.1976).

The questions become whether there was substantial evidence to support the judgment of the trial court on the contentions presented. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). As to the reduction of income, that factor alone does not prove a change of condition where there has been no substantial change in the needs provided for by the order. The standards for modification of a child support order established by § 452.370 intend to discourage repeated or insubstantial motions for such relief. The change of circumstance contemplated by that section are those of a fixed and continuing nature [Seelig v. Seelig, supra, l.c. 146] and not the experience of a random year. The court could have readily found from the evidence that the reduced earnings by the father merely reflected a temporary employment condition and not a substantial change of circumstance, while the needs to be met by the judgment remained unchanged.

As to the denial of modification of the mode and extent of visitation, there was substantial evidence that however much each parent loved the child, their mutual disaffection reflected in an incipient impairment of her physical and emotional health. It is evident that the court considered that however far from ideal the present custody and visitation, any other arrangement was an experiment not yet to be risked.

The judgment rests on substantial evidence and is affirmed.

All concur.


text:
    John C. MURSKI, Plaintiff-Appellant, v. SPORTSMAN CYCLES, INC., et al., Defendants, and Donald D. Baldwin, Defendant-Respondent.
    No. KCD 29156.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Floyd L. Sperry, Jr., M. Sperry Hickman, Inc., Independence, for plaintiff-appellant.
    Charles A. Erickson, Kansas City, for defendant-respondent.

      Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by purchaser of motorcycle against sellers who failed to deliver proper title to vehicle. Jury found for plaintiff and awarded $235 actual damages and $5,000 punitive damages against defendant Donald D. Baldwin. Trial court subsequently sustained defendant’s motion for judgment notwithstanding the verdict insofar as punitive damages were concerned. Alternatively court awarded new trial on issue of punitive damages only on ground that verdict was against the weight of the evidence. Plaintiff appeals.

John Murski purchased a used 1971 Pen-ton motorcycle from Sportsman Cycles, Inc. Murski dealt with Donald D. Baldwin and gave Baldwin his check for $235 in payment for the machine. The cycle was delivered to Murski, along with papers necessary for him to obtain a title to the machine from the Missouri Division of Motor Vehicles. Murski took the papers to an officer of the division and received a license for the vehicle. The application for title and supporting documents were sent to the Jefferson City office.

Sometime later, Murski was notified by the state that the title application was defective because of a difference between the numbers on the former title, issued in Kansas, and the application. Murski contacted Baldwin about the problem and Baldwin promised to straighten out the matter. Murski said that he talked to Baldwin eight or ten times about the situation but received nothing from Baldwin. Murski demanded that he either be given a good title or his money be refunded. He offered to return the vehicle, but when the purchase price was not refunded, he brought this suit.

According to Baldwin, he became aware of the discrepancy in the vehicle numbers after the sale to Murski. Testimony in behalf of the defendant was that the problem arose because the title had been the result of the cannibalization of various parts of two similar motorcycles. Baldwin said that he got in touch with the former owner and asked her to provide him with the affidavits required by the State of Missouri for issuance of a new title. Baldwin said that he offered Murski the refund of his money but Murski failed to show up at a pre-arranged time to make the deal. Baldwin admitted that it took some time to obtain the necessary papers. His explanation involved an illness of the husband of the prior owner. According to Baldwin, when Murski threatened to turn the matter over to an attorney, he prodded the former owner and had the necessary papers ready for Murski, but Murski did not come to get them. Baldwin said that the papers were destroyed in a fire at the shop in May, 1975, some 15 months after the sale.

The case was submitted against the individual defendant Donald Baldwin only and resulted in a verdict for plaintiff for $235 actual and $5,000 punitive damages, with the post trial proceeding as above noted.

In this court, Murski contends that the trial court erred in sustaining respondent’s motion for judgment notwithstanding the verdict because plaintiff’s evidence showed that respondent failed and refused to provide a proper title from February, 1974 to the date of trial on September 28, 1976, and this evidence constituted “a failure intentionally done without just cause and excuse” and supported the claim for punitive damages. In passing upon this contention, this court considers only the evidence favorable to the verdict and disregards the defendant’s evidence, except insofar as it aids plaintiff. Ogden v. Toth, 542 S.W.2d 17, 19[1, 2] (Mo.App.1976).

To support an award for punitive damages, plaintiff must show that the defendant intentionally committed a wrongful act without just cause or excuse. “The defendant must know the act was wrongful when he did it.” Price v. Ford Motor Credit Company, 530 S.W.2d 249, 253[2-4] (Mo.App.1975). Appellant here points to testimony of Baldwin that he knew that failure to provide a proper title at the time of sale was a violation of § 301.210(4), RSMo 1969, subjecting him to criminal action. Appellant then points to his testimony that the title papers furnished him were defective and that respondent failed to remedy the matter although appellant asked him to do so repeatedly over a period of some eight months.

The difficulty with appellant’s position is that, if he is to sustain his burden with respect to punitive damages, he was required to show that respondent knew at the time of the transfer the title documents furnished the purchaser were insufficient. Appellant has not done so here. In his brief he states that respondent failed to correct the situation “when it was called to his attention.” He makes no claim that respondent had notice of the problem before appellant called it to his attention. Evidence that respondent was aware of the requirements of law for the transfer of title to the vehicle is not sufficient to show that the respondent here knew at the time of the transaction that the documents which he provided were insufficient to meet legal requirements.

The cases of Ferm v. Miller Pontiac Company, 407 S.W.2d 55 (Mo.App.1966), and Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26 (Mo.App.1976), relied upon by appellant, are distinguishable. In Ferm, a sale of a motor vehicle without providing title to the purchaser was involved. However, there the seller was shown to have had no title and to have known of such fact, making the act wrongful at the time of the sale. No such proof was made here. Owens involved the conversion of a vehicle by a financing bank which had refused to permit a debtor to recover his vehicle unless the debtor paid an unwarranted levy.

This case is more akin to that of Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968). In that case the operator of a business in Archie, Missouri purchased an advertisement to be placed in the telephone directory, but the ad as produced erroneously listed his business under the numbers for Adrian, Missouri, rather than Archie. Plaintiff made repeated unsuccessful attempts to correct the error, which was repeated the following year. In setting aside a verdict for punitive damages, the court held that the conduct of the defendant, although perhaps exaggerated negligence, did not meet the standard of misconduct which would support an award of punitive damages. Here, plaintiff showed only a failure to correct the defective title after the matter had been called to the respondent’s attention. Such a showing alone will not support an award of punitive damages and the trial court properly sustained respondent’s motion for judgment notwithstanding the verdict.

Having reached this conclusion, the propriety of the alternative order for new trial need not be considered.

Judgment affirmed.

All concur.


text:
    In re the MARRIAGE OF Sammilyn MILLSAP, Appellant, and Robert Dale Millsap, Respondent.
    No. KCD 29274.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Jon A. Matthew, North Kansas City, for appellant.
    Gerald M. Handley, Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

The protagonists in this appeal are the divorced parents of a three year old male child, custody of whom was originally awarded to the mother. Some two years later, however, the father filed a motion to modify the original custody order and, after a “default hearing” obtained custody of the child.

On appeal the mother seeks to vacate the order transferring custody of the child to the father. Three points, each containing numerous sub-points, are advanced by the mother to support her plea for vacation. Although convoluted in nature by reason of being extensively subdivided, they may be fairly compressed as follows for dispositional purposes: (1) lack of notice to the mother as to the date of the hearing invalidated the modification order; (2) the trial court’s refusal to sustain the mother’s motion to vacate or set aside the modification order constituted an abuse of discretion; and (3) transfer of custody of the three year old male child from the mother to the father was “against the law and the weight of the evidence”.

A few perspicuous facts adequately set the stage for disposition of the mother’s first point. A summons and copy of the father’s motion for modification were served on the mother on October 4, 1976. The mother failed to file or serve a responsive pleading of any kind or otherwise enter her appearance prior to entry of the controversial order. Consequently, without further notice to the mother, and absent her presence, a hearing on the father’s motion to modify was held by the trial court on November 15, 1976, resulting in an order transferring custody of the minor child to the father. As previously noted, the mother attacks the legal efficacy of the hearing by reason of lack of notice. By failing to responsively plead to the motion according to the admonition contained in the summons served upon her the mother was in default and the father was under no compulsion, after the expiration of thirty days, to give her notice as to when the motion for modification would be heard and the trial court committed no error in proceeding to hear the matter ex parte. Williams v. Williams, 488 S.W.2d 294 (Mo.App.1972); and Rule 43.01(a).

Next, the mother seeks to overturn the modification order by charging the trial court with an abuse of discretion in overruling her motion to vacate and set aside the modification order. Before a trial court’s refusal to set aside an order and judgment entered against a defaulting party can be castigated as an abuse of discretion, the complaining party must first show (1) he had a meritorious defense and (2) the existence of a good reason or excuse to explain away the default. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116 (Mo.1955); Clinton v. Clinton, 444 S.W.2d 677, 681 (Mo.App.1969); and Cole v. Cole, 462 S.W.2d 172, 174 (Mo.App.1972). Absent such a showing, a default has all the trappings of an intolerable attitude of casual indifference toward judicial matters and their orderly and timely disposition. Any attempt on the mother’s part to show she had a meritorious defense was marginal to say the least. Pragmatically construed, the allegations relied upon in her motion to purportedly show she had a meritorious defense were little more than general denials of the father’s allegations in support of the requested change of custody. A general denial is not tantamount to a plea setting forth a meritorious defense when determining whether an order or judgment entered against a defaulting party should be vacated or set aside. Luce v. Anglin, 535 S.W.2d 504, 508 (Mo.App.1976). Moreover, a meritorious defense, standing alone, is not sufficient to warrant vacation of an order or judgment entered against a defaulting party. Fulton v. International Tel. & Tel. Corporation, 528 S.W.2d 466 (Mo.App.1975). Finally, the mother made no pretense of showing the existence of any good reason or excuse to explain away her default. Everything considered, the trial court should not be reprobated for refusing to grant the mother’s motion to vacate or set aside the modification order.

Finally, the mother seeks to upset the order of the trial court effecting the change of custody by claiming that it “was against the law and the weight of the evidence”. She claims that it was against the law in the sense that children of tender years should be placed and remain in the custody of their mother. This often urged principle was never intended to be indulged to the extent of excluding consideration of all other relevant matters, not the least of which is the “best interests” of the child. Suffice it to say, there was an abundance of evidence to justify the trial court’s decision to remove custody of the child from the mother and place it with the father. The trial court cautiously refrained from summarily transferring custody of the child from one parent to the other. Evidence was heard which disclosed that the mother had adopted a nomadic and libertine lifestyle, had several times removed the child from the territorial jurisdiction of the court which originally granted her custody, thereby frustrating the father’s right of visitation, and had improperly fed and cared for the child. Standing in contradiction to the environment provided by .the mother, evidence was heard which disclosed that the father had remarried, his present wife did not work and was able to care for the child, he was earning a substantial income and was capable of providing for the child, and his testimony was replete with instances denoting his care and concern for the child’s best interests.

Gauged by the criteria for review of court tried cases mandated by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), the order below should be affirmed.

Affirmed.

All concur.

      . The summons served upon the mother contained, inter alia, the following: “You are hereby summoned to appear before the above named court and to file your pleading . . . all within thirty days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.”


author: PER CURIAM:

text:
    Billy WARD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29302.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Ronald F. Fisk, Nevada, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   PER CURIAM:

Defendant pleaded guilty on September 22, 1975, to receiving stolen property in violation of § 560.270 RSMo 1969, and he was sentenced to 5 years imprisonment. Thereafter on March 18, 1976, he filed his present motion to set aside the conviction under Rule 27.26. From a denial of that motion, defendant appeals.

His Point on Appeal is that the trial court erred in finding and concluding that the guilty plea was entered knowingly and voluntarily. In support, defendant argues that his evidence established that: 1) he had a meritorious defense; 2) his trial counsel ignored that defense and was concerned only with pleading him guilty; 3) trial counsel misinformed him about the elements of the crime to which he pleaded guilty; and 4) his treatment in jail coupled with extreme boredom and inactivity put him in a frame of mind conducive to making an involuntary plea of guilty.

The burden of proof was on defendant to establish his grounds for relief. Rule 27.26(f). The trial court had the right, as it did here, to reject the testimony introduced on behalf of defendant even though there was no contrary evidence offered by the State. Shoemake v. State, 462 S.W.2d 772, l.c. 775 (Mo. banc 1971); State v. Taylor, 529 S.W.2d 427, l.c. 430 (Mo.App.1975).

The transcript has been carefully reviewed and it cannot be said that the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). An extended opinion would have no prece-dential value. The judgment is therefore affirmed under Rule 84.16(b).