author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Barry T. McINTOSH, Appellant.
    No. KCD 29019.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      J. Arnot Hill, Hill & Gamm, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

Following a jury trial the appellant (defendant) was convicted of Burglary in the Second Degree and Stealing and was sentenced to two (2) years on each charge, such sentences to run concurrently.

On this appeal the defendant seeks reversal upon only one point, namely, that the court erred in overruling his motion for a judgment of acquittal at the close of all the evidence for the reason that the evidence was insufficient to establish beyond a reasonable doubt that defendant was guilty of either burglary or stealing. The thrust of his argument in support of this point is that the state’s evidence was based upon circumstantial evidence which was entirely consistent with his testimony demonstrating his innocence and showed nothing more than the fact that the defendant had an opportunity to commit the crimes.

It is the position of the state that in the light of all the surrounding circumstances shown in evidence, including the facts that he admitted driving to the scene of the crime, transporting an individual who actually physically executed the crime; transported the burglar and the loot away from the scene to a point where it was concealed in some bushes and thus was in physical possession of the stolen property; and, was later arrested en route back to the location where the loot was concealed — constituted sufficient factual basis to permit the jury to infer the defendant’s guilt. Further, the state argues that the statement of the defendant, as a witness for the defense, that he lacked any knowledge of his companion’s purpose or intent to commit a burglary and stealing, and that he, the defendant, had no intent to participate therein, in any capacity, still left to the jury the question of whether or not the defendant’s version of his role was believable.

The positions of the parties hereto thus explicated requires that the evidence adduced at the trial be reviewed. In so doing, deference must be given to the rule that where a conviction has resulted, the evidence must be reviewed and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the state, and all evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533, 534 [1] (Mo. banc 1976). This principle applies whether the evidence, so reviewed, is circumstantial or direct in nature. State v. Sallee, 436 S.W.2d 246, 249 [1] (Mo.1969); State v. Cobb, 444 S.W.2d 408, 412 [1-3] (Mo. banc 1969).

On January 12, 1976, Harry A. Eib left his home at 8302 Pico in Kansas City, Jackson County, Missouri at 7:00 a. m. He left the house unoccupied, locked and had not given anyone permission to enter his home. Mr. Eib returned home at about 5:00 p. m. and found that the front door had been forced, his “things were scattered around” and his General Electric portable color TV set was missing. He called the police and upon the arrival of a police officer and check with headquarters, it was found that the missing TV (identified by serial number) was then in possession of the police.

To fill the void between 7:00 a. m. and 5:00 p. m. on the date of the burglary, the state offered the evidence of a Mrs. De-Coursey who had been visiting her mother, who lived in the vicinity of 79th and Charlotte. As she left her mother’s home she observed a small red car with a black vinyl top with a man in the car and another man “hiding” some objects in the bushes. The persons who resided at 7900 Charlotte notified the police at about 12:55 p. m. on that day that there were items of property in the bushes on the back of their lot. Upon investigation, the police found the TV set of Mr. Eib, a camera and case concealed in the bushes. The police also found a couple of hats and some incense across the street and a screwdriver at the edge of the road. A short time later, the police received a call that a black-over-red Mustang automobile had come by the bushes at 7900 Charlotte, stopped and the occupants had scrutinized the area. The observer had taken down the license number of the car and gave this information to the police and a pickup or investigation order was apparently broadcast for the car.

At 2:15 p. m. the defendant was arrested at 77th and Grand traveling in the automobile in question which was also occupied by one Daryl Gilyard, the registered owner of the car.

The defendant gave an oral statement to the police. This statement of defendant was introduced as direct evidence as part of the state’s case through the testimony of Officer Cole. It was substantially the same as the defendant’s testimony at the trial.

The defendant’s version of the events of January 12, 1976 was that he had borrowed the Mustang automobile from his friend, Daryl Gilyard, the owner, in order to go to the Bendix plant on 94th Street, east of Troost, to seek employment. As he was driving south on Troost he was flagged down by one Robert Wilson who was a former schoolmate in high school. Wilson was carrying a shopping bag. Wilson asked the defendant to drive him to his destination and offered to pay him $5.00 for gasoline. Defendant agreed and Wilson got in the car and directed the defendant to go to a house at 83rd and Pico (Eib’s residence). Upon arrival at that address Wilson left the car, asked defendant to wait, returned in a few minutes with the Eib TV set and placed it in the rear seat of the car.

The defendant’s version of the following, events was that Wilson admitted that he had stolen the TV; that this was the defendant’s first knowledge of the burglary and theft; that he then insisted that Wilson get the set out of the car; that he drove Wilson to 79th Street between Charlotte and Campbell where Wilson hid the TV (and some other items he had with him) in the bushes; and, then proceeded to drive Wilson to 79th and Troost where he let him out of the car.

The defendant then picked up Daryl Gil-yard, the owner of the car, and while they were driving back to the place where the “stuff” had been concealed in the bushes, they were stopped and arrested.

The police had been unable to locate Robert Wilson at the time of the trial, and the defendant denied any knowledge of his whereabouts.

When the state’s case rests upon circumstantial evidence and the inferences to be drawn therefrom, a somewhat higher standard as to the burden of proof is required. It has been held that, as a general rule, such circumstances must be consistent with each other, consistent with the hypothesis of defendant’s guilt, inconsistent with innocence, and point clearly and satisfactorily to his guilt so as to exclude every reasonable hypothesis of innocence. State v. Sallee, supra, at 249, 250 [1]; State v. Kramer, 534 S.W.2d 281, 283 [3] (Mo.App.1976).

A corollary of this general rule, however, is that the burden upon the state in a circumstantial evidence case does not require that the facts, circumstances and inferences demonstrate the impossibility of innocence. The mere existence of another hypothesis is not enough to remove the case from the jury. State v. Franco, supra, at 534, 535 [3]. If a trial judge directed an acquittal whenever in his opinion the evidence failed to exclude every hypothesis other than that of guilt, he would preempt the functions of the jury.

An equally well-established rule in this state is that exclusive unexplained possession of recently stolen property gives rise to a permissible inference of guilt and is sufficient proof to submit a burglary case to a jury. State v. Sallee, supra, at 250 [3]; State v. Lang, 536 S.W.2d 52, 54 [2] (Mo.App. 1976); State v. Cobb, supra, at 408, 414 [6-7], and cases cited therein.

The requirement under this rule that the possession be “exclusive” is satisfied where joint possession is shown provided there is something else shown by the evidence to connect the defendant with the offense. State v. Brame, 542 S.W.2d 591, 594 [2] (Mo.App.1976); State v. Pruett, 522 S.W.2d 823, 824 [1, 2] (Mo.App.1975). Presence at the scene and an opportunity to commit the crime, and presence as a passenger in the car used to transport the stolen goods, have been held to constitute evidence of joint and exclusive possession under the rule. State v. Cobb, supra, at 414 [7-10]. See also, State v. Schleicher, 458 S.W.2d 351, 353-354 [1-3] (Mo. banc 1970), where an effort by the defendant to aid in the disposition of the stolen property was considered a factor showing joint and exclusive possession. In Schleicher, the defendant was placed in proximity to the scene of the crime and was apprehended while a passenger in a car from which the stolen goods had been thrown during a high-speed chase. To like effect is State v. Durham, 367 S.W.2d 619 (Mo.1963), cert. den. 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89 (1963).

Furthermore, the requirement that the possession of the stolen goods be “unexplained” does not mean that the defendant proffers no explanation of his possession whatsoever. This principle simply means that the explanation of possession of recently stolen property is a question of fact peculiarly within the province of the jury and if the jury does not believe the explanation offered, the accused’s possession stands as though “unexplained”. State v. Cobb, supra; State v. Durham, supra; State v. Kramer, supra.

The appellant places great emphasis upon the fact that the evidence of the state and the testimony of the defendant are not inconsistent with that of the state and therefore, he was entitled to a directed verdict of acquittal. This position completely ignores the fact that the jury was at liberty to reject the self-serving portion of the defendant’s statement as to his ignorance of the burglary and his lack of intentional participation therein. State v. Sterling, 534 S.W.2d 76, 79-80 [5] (Mo.App. 1976); State v. Present, 344 S.W.2d 9 (Mo.1961). As to this subjective lack of intent the defendant’s credibility was directly in question and it was for the jury to believe or disbelieve his story. By its verdict the jury’s determination was clear and unequivocal.

Having rejected the defendant’s explanation of his innocence and unknowing connection with the crimes charged, the evidence conclusively established facts and circumstances and reasonable inferences to be drawn therefrom from which the jury could (and did) find that the defendant was an active coperpetrator along with Wilson in the burglary of Eib’s home and the stealing of his TV set. See and compare: State v. Mayfield, 520 S.W.2d 680, 682 (Mo.App. 1975); State v. McRae, 533 S.W.2d 663, 665 (Mo.App. 1976); State v. Jones, 524 S.W.2d 186, 187 (Mo.App. 1975); and State v. Johnson, 510 S.W.2d 485, 489 (Mo.App. 1974).

The cases cited and relied upon by defendant have been carefully reviewed and are inapposite to the facts presented here and in no way weaken the firmly fixed principles herein relied upon.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Daryle GILYARD, Defendant-Appellant.
    No. KCD 29038.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a conviction for burglary and stealing. The jury sentenced him to six years for burglary and four years for stealing.

The sole issue raised is the propriety of the trial court’s action in permitting the jury to examine and compare two exhibits, which were keys used to accomplish the burglary.

The defendant does not challenge the sufficiency of the evidence to support the conviction, and a summary statement of facts will suffice. The owner of an apartment in an apartment complex returned from vacation to find her apartment burglarized. A security guard for the apartment complex identified the defendant as a person who had solicited the guard in obtaining a master key and master tenant list for the apartment complex. The guard furnished the key and list in return for an agreement to receive one-third of all proceeds from potential burglaries. The guard then identified a master key to the apartment complex recovered by police. The guard had pled to separate charges in return for this information. Based on information obtained from the guard, a police officer arrested the defendant, and thereafter, upon the basis of a search warrant, searched the defendant’s girlfriend’s apartment. On those premises, the police located the master key previously identified, the defendant’s driver’s license and other identification, and torn pieces of paper which ultimately proved to be a photocopy of the apartment complex tenant list. The manager of the apartment complex identified the master key recovered in the search and furnished to the State her own master key. While on the stand, she compared her master key with the one recovered from the defendant’s girlfriend’s apartment, saying they were the same. The two master keys were then passed to the jury over objection. A fingerprint of the defendant was found on a metal box in the victim’s apartment. The defendant testified to a permissive entry to the premises which was, on rebuttal, denied by the victim. The victim’s denial was corroborated by other evidence.

The defendant claims the trial court erred in permitting the jury to examine the master key found pursuant to the search warrant and the master key furnished by the manager of the apartment complex. Defendant’s argument is that only an expert could have made the necessary comparison and given opinion evidence as to the identity of the key found in the constructive possession of the defendant and the key which was admittedly a master key to the apartment complex.

The basic legal postulates upon which this appeal turn are beyond dispute. If a jury can intelligently resolve an issue on the basis of common and ordinary knowledge, then expert opinion is not proper on that issue. State v. Burley, 523 S.W.2d 575 (Mo.App.1975); Superior Ice and Coal Co. v. Belger Cartage Service, Inc., 337 S.W.2d 897 (Mo.1960). The opinion of a witness as to identity of things is competent when resting on facts within the knowledge of the witness. State v. James, 194 Mo. 268, 92 S.W. 679 (1906); State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935).

In the instant appeal, both parties who testified as to the two keys being the same had some degree of familiarity with the keys. The guard who had access to the key and who also had given the key to the defendant stated he was able to identify the key both by the numbered plastic strip on the key and by the key’s cut. The manager had familiarity with the key in her role as apartment manager. The testimony of both of these witnesses would appear permissible under the ambit of James and McGee. The testimonial evidence of similarity is proper.

Defendant cites no cases, either in Missouri or any other jurisdiction, holding that expert identification is necessary when comparing keys. A recent Missouri case, although not exactly in point as to the facts of the instant appeal, appears persuasive in view of its similarity to the present situation. In State v. Eaton, 504 S.W.2d 12 (Mo.1973), the court upheld a defendant’s burglary conviction despite the fact that a policeman had been permitted to testify that the end of a pair of pliers found in the defendant’s automobile fit perfectly into an indentation found on the siding of the burglarized home. There was no testimony that the officer was an expert in making such comparisons. The court held that such comparisons were not matters requiring special skills, knowledge, or expertise not within the understanding of mankind generally and, thus, the testimony of a lay witness was proper.

It is within the realm of common knowledge that keys, unidentified otherwise as to the accessed premises, are by lay persons compared with keys known to be keys to the accessed premises. Such comparisons involve only visual and common sense skills possessed by any member of the jury. The jury’s visual comparison of the two exhibits could only corroborate or impeach the oral testimony as to identity. It seems the jury comparison agreed with the oral testimony as to identity of the keys. No error appears.

Judgment and conviction affirmed.

All concur.


author: PER CURIAM.

text:
    William D. MAIN, Respondent, v. Betty A. MAIN, Appellant.
    No. KCD 29039.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Effie F. Day, Kansas City, Dwayne W. McConnell, Liberty, K. Colleen Nunnelly, Kansas City, for appellant.
    Charles B. Cash, Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   PER CURIAM.

Proceeding to change child custody. The decree dated August 19,1974, dissolving the marriage of these parties, awarded custody of two minor children to the mother and ordered the father to make monthly support payments. On May 11, 1976, the father filed a motion to amend the decree by changing custody of the boy, then ten years old, and the girl, then seven years old, to him, and the mother in due course filed a cross-motion to increase the amount of child support to be paid to her. The trial court granted the father’s motion and denied the mother’s motion. The mother appeals.

The mother’s Points on Appeal can be condensed and summarized as follows: 1) that the father failed to carry his burden of proof to show a change of conditions since 1974 adversely affecting the children; 2) that there was no substantial evidence to show that a change was in the best interest of the children and the court’s conclusion in that regard was against the weight of the evidence which failed to overcome the presumption in favor of custody to the mother; and 3) that the court erred in failing to increase child support payable to the mother.

The failure to increase child support follows a fortiori and drops out as an issue if the modification order changing custody to the father be correct. As to the latter question, Rule 73.01 and Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976) command affirmance unless the trial court committed an error of law or unless the judgment was not supported by substantial evidence or was against the weight of the evidence. Study of the briefs and scrutiny of the record discloses no error of law, shows the order to be supported by substantial evidence, and fails to leave a firm belief that the judgment of the trial court was wrong. We dispense with a detailed opinion, which would have no precedential value, under the authority of Rule 84.16(b).


text:
    In re MARRIAGE OF Leo D. HALLAK, Respondent, and Velma R. Hallak, Appellant.
    Nos. KCD 29052, KCD 29319.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Bert H. Jacob and Ronald G. Byers, Ro-senwald & Jacob, Kansas City, for appellant.
    Barbieri, Combs & Gotsehall, John R. O’Malley, Roger J. Barbieri, Kansas City, for respondent.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   PER CURIAM.

The wife has appealed from a decree entered in a dissolution of marriage proceeding. The fragmented nature of the wife’s appeal accounts for the two numbers assigned to the case by this court, and no issue attaches thereto.

The wife was awarded custody of the two minor children born of the marriage, Leo and Andrew, two and one-half and four years of age, respectively, at the time of the hearing. Her dissatisfaction with the decree is limited to those portions which permit the husband to have the two minor children during certain designated hours on every Sunday and alternate weekends, for six weeks during June, July and August in increments of one, two or three weeks, and on certain holidays on an alternate basis.

More specifically, the wife on appeal successively contends, by way of “Points Relied On”, that such “finding[s] . . . [are] against the overwhelming weight of the evidence” and that “the evidence of record is insufficient to support a finding that any such specific awards are in the best interests of the children”.

The format employed by the wife on appeal in the “Points Relied On” was obviously intended to place the complained of portions of the decree beyond the perimeter of affirmance circumscribed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It is patent that the complained of portions of the decree are adjunctive to the primary question of custody of the minor children. Such being the case, it is axiomatic that the best interests of the children are of paramount importance, and the trial court’s judgment in the matter should not be disturbed on appeal unless the “best interests” of the children so demand. On appeal deference is given to the trial court’s assessment of what serves the “best interests” of the children, and its decree should be affirmed unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, supra. See also: R_ G_ T_ v. Y_ G_ T_, 543 S.W.2d 330, 331-32 (Mo.App.1976); and In Re Marriage of B_ A_ S_, 541 S.W.2d 762, 763 (Mo.App.1976).

As previously noted, the wife castigates the complained of portions of the decree as not warranting affirmance and demanding reversal under Murphy v. Carron, supra, because they are against the weight of the evidence at the very best, and lack substantial evidence to support them at the very worst. A review of the record fails to support the “all or nothing” position advanced by the wife. The record’s most telling feature is its total lack of any hard evidence that the privileges granted to the father were destructive of the “best interests” of the children or in any way detri-. mental to their emotional or physical development and well-being. Although the record in all candor may be slightly threadbare in certain places, it is not totally naked, and for this reason it cannot be said in good conscience that the complained of portions of the decree lacked substantial evidence to support them. Nor can it be said in good conscience that the complained of portions of the decree were against the overwhelming weight of the evidence in view of the admonition contained in Murphy v. Carron, supra, that “[ajppellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

As no error of law appears, and having determined that an extended opinion would have no precedential value, the decree entered by the trial court is affirmed under Rule 84.16(b).

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene Elmwood BROYLES, Defendant-Appellant.
    No. KCD 29072.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Donald L. Clough, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Eugene Broyles waived a jury trial and was found guilty of murder in the second degree and sentenced to ten years imprisonment by the court.

On this appeal Broyles contends the court erred in failing to grant him a continuance because of the failure of the State to make disclosure pursuant to his request. Affirmed.

Broyles does not challenge the sufficiency of the evidence to support his conviction. The evidence presented by the State showed Broyles was in the G & G Bar in St. James, Missouri. At the request of the owner of the bar, one Bratcher, who was a large man, twisted Broyles’ arm behind his back and escorted him from the bar. Broyles immediately went to his car, which was parked within a few feet of the door, obtained a .22 caliber rifle and returned. He opened the door of the bar and fired one shot which struck Bratcher in the chest. Bratcher died almost immediately. Most of the State’s witnesses stated Broyles fired on Bratcher while the two were separated by a few feet. Other witnesses stated Bratcher grabbed the barrel of the gun before it was fired.

Broyles testified in his own defense. He agreed Bratcher had forced him from the bar, but contended that occurred in the morning and he did not return until late afternoon. He stated he returned to the bar to pawn his rifle with the owner. He thought the gun was unloaded because his friend who accompanied him had placed shells on the car seat. He stated as he entered the bar, Bratcher grabbed the barrel and the two engaged in a tugging match over the rifle during which the gun discharged accidentally.

On this appeal, Boyles contends the court erred in refusing to grant a continuance because the State failed to comply with his disclosure motion. Broyles contends the State failed to give him a copy of the coroner’s report, a copy of a report of a physician who examined Bratcher’s body, and failed to make available the clothing worn by Bratcher. Broyles also contends the State failed to deliver a tape recording of a statement made by him to the sheriff and police chief. Broyles finally contends the State failed to give him the address of the lady who owned the bar and her husband.

The granting of a continuance is one of the sanctions permitted to be made under Rule 25.45 on the failure of a party to comply with a discovery rule. The imposition of a particular sanction is within the trial court’s discretion. State v. Moten, 542 S.W.2d 317, 320[2] (Mo.App.1976). “Basically, the question is whether or not the failure to produce as required by the rules results in fundamental unfairness to the defendant. State v. Buckner, 526 S.W.2d 387 (Mo.App.1975).” State v. Moten, supra.

Thus, the question presented is whether or not the failure of the State to make disclosure resulted in Broyles’ trial being fundamentally unfair.

Turning first to the coroner’s and physician’s reports, the record reveals both of these persons testified at Broyles’ preliminary hearing. Broyles’ counsel participated in the preliminary hearing and a transcript of this hearing was furnished to counsel. The reports were apparently misplaced so they were unavailable to be delivered to counsel. However, the prosecutor did make his entire file available to counsel well in advance of trial.

The coroner stated he made a short report which simply indicated Bratcher died as result of gunshot wounds. No discrepancy between his testimony at the preliminary hearing and at trial was shown. The physician testified he did not make a formal report, but simply advised the coroner by letter that he had examined the body and determined death was caused by a gunshot wound to the chest.

There is no contention either the coroner or the physician testified to any fact at the trial which came as a surprise to Broyles or that any evidence was withheld from Broyles by the failure to produce the two documents. While it would have been preferable for the documents to have been available and copies delivered to Broyles, there is no showing that any information whatever was contained in the two documents which was not fully developed at the preliminary hearing. Thus, for at least eight months prior to the trial, counsel was fully aware of the facts about which the coroner and physician testified. Moreover, during that time no complaint was made to the court concerning the failure to produce these documents. This failure to object or request action by the court for a long period of time does not suggest an abuse of discretion by the court when sanction was finally requested. State v. Thompson, 539 S.W.2d 647, 649[4] (Mo.App.1976).

Broyles does not claim any suppression of evidence or any surprise. He simply makes the conclusionary statement that he was deprived of a fair trial because of the failure to deliver these two reports. There is no substance to this claim of error.

Broyles next contends the State failed to deliver the clothing worn by Bratcher so that Broyles would have this available to introduce in evidence. Broyles contends the clothing would have revealed powder burns which would support his alternate defense of accidental firing to show the gun was in close proximity to Bratcher at the time it was fired. There is no basis to find the State suppressed the clothing as evidence or failed to disclose because the record shows the clothing was removed at the mortuary and destroyed there without the knowledge or consent of police officials. However, the police chief did testify that Bratcher’s shirt did bear a powder burn.

What has been said with respect to the previous claim of error applies to this claim. The State did not suppress any evidence and whatever evidence Broyles sought to elicit from the clothing was, in fact, presented through the testimony of the police chief.

Broyles next contends the State failed to deliver a tape recording which contained Broyles’ oral statement made the day following the murder to the police chief and sheriff. The record shows Broyles’ counsel told the court in his motion for a continuance that a transcript of this oral statement had been delivered to him. The sheriff stated the tape containing the statement had been erased.

The sheriff and police chief both testified at the preliminary hearing. Both stated the substance of the statements made by Broyles in which he recounted the struggle over the gun. Again, no discrepancy was shown between their testimony at the preliminary hearing and the trial. Likewise, neither testified to any fact or statement which was not contained in the transcript furnished Broyles. Again, it may be said that ideally the tape should have been made available to Broyles, but Broyles has failed to demonstrate any suppression of evidence and has failed to demonstrate how his trial was made fundamentally unfair by the failure to deliver the tape itself.

The purpose to be served by the disclosure of statements made by a defendant is to allow him to properly prepare for trial and especially for cross-examination. State v. Hindman, 543 S.W.2d 278, 285[18] (Mo.App.1976). Here the full purpose was accomplished when a transcript of the tape was given counsel. No contention is raised as to the accuracy of that transcript. This, coupled with the transcript of the testimony of the two officers together with their cross-examination at the preliminary hearing allowed Broyles’ counsel to fully prepare for trial and for his cross-examination of the officers.

Broyles finally contends the State failed to make disclosure by withholding the address of the lady who owned the bar and her husband. The record shows the police chief stated he had just obtained their address in Arkansas on the Saturday before the trial. However, neither the bar owner nor her husband were called as witnesses for the State. Furthermore, the request made by Broyles sought only the names and last known addresses of those persons the State intended to call as witnesses.

While the bar owner did testify at the preliminary hearing, her testimony was not introduced in the trial. No suppression of evidence is shown by the State and no reason is advanced by Broyles as to why the State was required to give him the address of persons who were not called as witnesses.

The judgment is affirmed.

All concur.


text:
    Carolyn GAYMAN, Respondent, v. Dale GAYMAN, Appellant.
    No. 29074.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Dale Gayman, pro se.
    Edward J. Murphy, Butler, for respondent.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   PER CURIAM.

The father of a ten year old male child has appealed from a custody modification order entered in the Circuit Court of Bates County at the behest of the mother. The modification order, same being the second modification of the original custody order, limits the number and length of visitations by the father and restricts them to a neutral location. Suffice it to say, the modification order substantially reduces the father’s visitation privileges as compared to his rights of visitation under both the original and previously modified custody order.

As disclosed by the evidence, the father is a man of stout beliefs and possesses an unyielding commitment to their practice and advancement. The record is rife with evidence from which the trial court could reasonably find that the father espoused and advanced his beliefs in the presence of his ten year old son on frequent occasions, while exercising his visitation privileges, and that doing so endangered the child’s physical health and impaired his emotional stability.

Section 452.400, RSMo Supp.1973, provides, in part, as follows: “2. The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his emotional development.” It leaves no room for doubt that the “best interests” of the child is the polestar to guide on when charting restrictions to parental visitation rights. The appeasement of unfulfilled parental desires or of claimed parental priorities has no bearing on the matter.

Deference should be given to the trial court’s assessment of what “best” serves the interests of the child in matters pertaining to visitation rights, and once it has spoken its decision with respect thereto should be affirmed on appeal unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); R_G_T_ v. Y_G_T_, 543 S.W.2d 330, 331-32 (Mo.App.1976); and in Re Marriage of BAS. 541 S.W.2d 762, 763 (Mo.App.1976). No reason falling within the purview of the scope of appellate review just mentioned exists to justify reversal of the trial court’s order.

As no error of law appears, and having determined that an extensive opinion would have no precedential value, the modification order entered by the trial court is affirmed under Rule 84.16(b).

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Mack Henry TEEGARDEN, Appellant.
    No. KCD 29142.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      David V. Bear, Bear, Hines & Thomas, Columbia, 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.
   SOMERVILLE, Judge.

The homicidal death of Arlie Everett Whittle (victim) on May 1, 1974, in Miller County, Missouri, resulted in Mack Henry Teegarden (defendant) being charged by information with first degree murder (Section 559.010, RSMo 1969). The jury before whom defendant was tried found him guilty of second degree murder (Section 559.020, RSMo 1969) and fixed his punishment at forty years imprisonment in the Missouri Department of Corrections.

On appeal defendant questions (1) the trial court’s refusal to declare a mistrial, (2) the trial court’s refusal to grant a continuance, (3) the trial court’s refusal to quash the information, and (4) the trial court’s conduct in permitting the Sheriff of Miller County to sit at the counsel table with the prosecuting attorney throughout the trial.

In view of defendant’s tacit acceptance of the evidence as sufficient to support his conviction for second degree murder, only such facts believed necessary to give a broad overview of the case will be set forth. Prior to May 1, 1974, a feud erupted between the defendant and the victim. This feud, whose violent nature was manifested by several preliminary exchanges of violence, culminated in the victim’s death. More particularly, defendant accosted the victim outside the latter’s house near Eldon, Missouri, during the early morning hours of May 1, 1974, shot him with a shotgun, took him, while still alive, inside the house, and then set the house afire. The fire became such a blazing inferno that it destroyed the house and virtually destroyed the victim’s body.

The testimony of one of the state’s witnesses on direct examination revealed that defendant was an ex-convict. Defense counsel made no objection thereto, nor did he move to strike the testimony or request a mistrial at the time. Later, during the course of questioning the Sheriff of Miller County on direct examination, the state referred to the testimony just mentioned and asked the sheriff if he .was notified when defendant was released from the penitentiary. The sheriff’s response was that he thought he had received a “letter” to that effect. Again, defense counsel failed to object or seek affirmative relief of any kind. As a matter of fact, defense counsel extensively cross-examined the sheriff about his present knowledge of defendant’s status as an ex-convict. Defense counsel’s cross-examination of the sheriff raised a cloud of doubt as to whether the sheriff ever received a “letter” notifying him of defendant’s release from the penitentiary. On redirect examination the state attempted to rehabilitate the sheriff by handing him what is surmised to have been an F.B.I. “rap sheet”. It is impossible to tell whether the “rap sheet” was handed to the sheriff for the purpose of seeking to have it identified and admitted into evidence or whether it was handed to him for the purpose of refreshing his recollection. Regardless of the purpose sought to be achieved by the state, defense counsel objected to the “rap sheet” on the sole ground that it was not properly authenticated. Whereupon, the prosecuting attorney advised the court, “I’ll withdraw it then, Your Honor”, and did so. The “rap sheet” was withdrawn over the following protestation of defense counsel, “I want it in if you can get it in, if you’ll present it in evidence.” This unusual series of evidentiary events occurred toward the end of the second day of the trial. When the court recessed at 6:00 P.M. it appeared that the whole matter had been laid to rest. However, when trial of the case resumed the following morning defense counsel resurrected the matter by moving for a mistrial on the ground that the state had prej-udicially injected evidence of defendant’s conviction of a prior offense “before defendant's character had been put in issue.”

It is important to bear in mind that defendant’s request for declaration of a mistrial revolves around certain evidence of the state which was never objected to by defendant, which never became the subject of a motion to strike by defendant, and which was never seized upon as the basis for a mistrial until long after defense counsel had paraded it before the jury by extensively cross-examining the sheriff. To cap the matter, defense counsel stated in open court, with reference to the F.B.I. “rap sheet” supposedly showing defendant’s previous conviction, “I want it in if you can get it in, if you’ll present it in evidence.” This court concludes that defense counsel, by reason of some theory of trial strategy, intentionally refrained from objecting to or seeking to strike the presently complained of evidence. Defendant’s belated effort to have a mistrial declared was wholly inconsistent with all related preceding events and militates against his present claim. Closely in point, when a state’s witness testifies as to an inadmissible matter without objection and is then extensively cross-examined by defense counsel, a subsequent motion to strike comes too late and no error attaches when it is denied. State v. Young, 24 S.W.2d 1046 (Mo.1930); State v. Lehman, 175 Mo. 619, 75 S.W. 139, 141 (1903). By the same logic, when a state’s witness testifies to an inadmissible matter without objection or a motion to strike and is then extensively cross-examined by defense counsel, a subsequent motion for declaration of a mistrial comes too late and no error attaches when it is denied. An additional and equally compelling reason exists for holding the trial court free of error for not having declared a mistrial. Defendant took the stand on his own behalf and candidly admitted on direct examination that he had previously been convicted of a felony (stealing). Doing so, as a practical matter, reached back and wiped the purported basis of his motion for a mistrial clean of any prejudice. State v. James, 194 Mo. 268, 92 S.W. 679, 683 (1906).

Defendant faults the trial court for ruling unfavorably on his motion for a continuance. The original information lodged against defendant, filed June 13, 1974, charged that the victim’s death resulted from the infliction of a mortal wound by means of a 12-gauge shotgun. On May 14, 1976, a copy of an amended information was delivered to defense counsel’s office, which did not come to his attention until the following day, May 15, 1976. The case was set for trial for May 19, 1976. The state was given leave to file the amended information on May 18,1976. This prompted the filing of a motion for a continuance by defendant which was denied by the trial court. The only change effected by the amended information charged that the victim’s death resulted from the infliction of a wound upon the victim’s body by means of a 12-gauge shotgun and by burning the victim’s body. Rule 24.15 (Information— Amendment or Substitution — Continuance) reads as follows:

“No amendment of the information or substitution of an information for an indictment as provided in these Rules shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment or substitution has made it necessary that he have additional time in which to prepare his defense.”

This rule, by its very terms, explicitly vests trial courts with considerable discretion in granting or denying continuances sought in connection with the amendment of informa-tions. As a broad, general proposition, reviewing courts duly refrain from interfering with denials by trial courts of requests for continuances, absent being convinced that the latter abused their discretion by acting in an arbitrary, capricious, or oppressive manner. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974); State v. Cuckovich, 485 S.W.2d 16, 21-22 (Mo.banc 1972); and State v. Davison, 545 S.W.2d 723, 724-25 (Mo.App.1977). More specifically, when an accused fails to demonstrate that he has been prejudiced, a charge will not lie that a trial court arbitrarily, capriciously or oppressively abused its discretion by refusing to grant a request for a continuance occasioned by an amended information. State v. Withers, 347 S.W.2d 146, 148-49 (Mo.1961). Defendant failed to suggest or offer any convincing proof that he was prejudicially surprised by the contents of the amendment or that a continuance was necessary in order to prepare an adequate defense. Weighing heavily against any claim of prejudice or surprise is the fact that the record discloses that the burning of the victim’s body was thoroughly gone into at defendant’s preliminary hearing. Defendant’s failure to demonstrate that he was surprised by the contents of the amendment and therefore needed additional time to prepare an adequate defense, negates any claim of prejudice associated with the trial court’s refusal to grant a continuance. State v. Withers, supra; and Rule 24.15, supra.

Immediately prior to start of the trial defendant moved to quash the amended information on the ground that to proceed would violate his constitutionally guaranteed right to a speedy trial. Chronologically, defendant was charged with murder in the first degree by information on June 13, 1974, and his trial commenced on May 19, 1976. With the exception of several days, defendant was free on bond during the crucial period of time.

The “speedy trial” guarantee of the Sixth Amendment to the Constitution of the United States is applicable to state court proceedings by reason of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The period of time which elapses between a criminal charge and a subsequent trial is not conclusive as to whether an accused has been denied a speedy trial. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972), concluded that there was no fixed formula that could be universally employed to determine when an accused had been denied his constitutional right to a speedy trial. Instead the Supreme Court formulated an ad hoc balancing test to be used at the appellate level for determining whether an accused has been denied a speedy trial. A balance is struck by weighing four factors: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right; and (4) prejudice to the accused. In the instant case, notwithstanding a delay of approximately two years, no claim was made by the accused that his ability to defend himself was impaired, no effort was made by him to secure an earlier trial date, and the trial court was caught in the throes of an extremely crowded docket. On balance, it cannot be said that defendant was denied a “speedy trial” in a constitutional sense.

Finally, defendant questions the propriety of the Sheriff of Miller County sitting at the counsel table with the prosecuting attorney throughout the trial. The sheriff was the complaining witness in the ease and no one invoked the rule to exclude the witnesses. Historically, sheriffs in Miller County always sat at the counsel table with the prosecuting attorney during the trial of criminal cases, apparently on the theory that the sheriff was the state’s alter ego and in that sense a party to the action. A consistent practice, however steeped in antiquity, cannot be condoned on that basis alone. In many instances, to do so would only serve to perpetuate a wrong. This court concludes that for dispositional purposes the practice under attack falls into that virtually fathomless legal grey area formally spoken of as judicial discretion. An abuse of judicial discretion, not merely an exercise of judicial discretion, must be shown to afford an accused relief. Although defendant has questioned the propriety of permitting the sheriff to sit at the counsel table with the prosecuting attorney throughout the trial, he has failed to suggest or demonstrate any resultant prejudice. Consequently, the matter is controlled by the broad principle that conduct of a trial, save only as to procedures prescribed by statute or rule, generally rests within the sound discretion of the trial court. State v. Johnson, 485 S.W.2d 106, 117 (Mo.1972); State v. Pinkston, 333 S.W.2d 63, 66-67 (Mo.1960); and 23 C.J.S. Criminal Law § 961, p. 836. Permitting the sheriff to sit where he did throughout the trial was an acceptable exercise of judicial discretion as no resultant prejudice indicative of an abuse of discretion was shown and no statute or rule existed compelling a different procedure.

Judgment affirmed.

All concur.

      . Repealed by Laws, 1975.


text:
    D. L. C., Petitioner-Respondent, v. L. C. C., Respondent-Appellant.
    No. KCD 29160.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      A. V. McCalley, McCalley & Thiebes, Richmond, for respondent-appellant.
    Robert L. Langdon, Bradley & Langdon, Lexington, for petitioner-respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

D.L.C., the husband, filed a petition for dissolution of marriage from his wife, L.C.C. The wife appeals claiming as error (1) a finding that her child, adopted by the husband, was “born” of the marriage; (2) the division of marital property; (3) the award of custody of the three children to the husband; (4) the order requiring the wife to pay child support; and (5) failure to award wife attorney fees. Affirmed as modified.

The wife first complains of the finding that there were three children born of this marriage. Both the petition and answer allege there were three children born of this marriage. However, the evidence brought out the fact the older child was born to the wife prior to her marriage to the husband, but the husband adopted this child after their marriage. By § 453.090, RSMo 1969, an adopted child is “deemed and held to be for every purpose the child of his parent or parents by adoption as fully as though born to him or them in lawful wedlock.” The court was correct in finding this child, after his adoption, was a child born of this marriage.

The wife next urges the court erred in the division of the marital property. The marital property consisted of a house where the parties lived with an estimated present value of $22,000 to $25,000. There was a total of $16,500 owed on it. The house had been purchased for $20,500 and the monthly payments were $168.

The parties owned a 1972 Olds, with an encumbrance of $2,000 and a 1974 Scout which was clear. In addition, the parties owed $500 on a bank note and the husband was ordered to pay all indebtedness.

The court awarded the husband the house, a 1972 pickup, a 1971 Toronado, and the household furniture, except for personal items belonging to the wife. There was no estimate as to the value of the furniture. The court awarded the Scout to the wife.

It will be noticed the court awarded a 1972 pickup and a 1971 Toronado to the husband but failed to make disposition of the 1972 Olds. This was an obvious oversight since the 1972 pickup and the 1971 Toronado had been disposed of. In view of the large encumbrance on the 1972 Olds, it is apparent the court intended to award this car to the husband and require him to pay the encumbrance thereon. The decree will be modified to substitute the 1972 Olds for the 1972 pickup and 1971 Toronado.

The court “is entrusted with wide discretion in dividing marital property . . . Davis v. Davis, 544 S.W.2d 259, 264[8, 9] (Mo.App.1976). The division is required to be just but not equal. In Re Marriage of B. K. S., 535 S.W.2d 534, 536[4] (Mo.App.1976). Section 452.330 requires the court to consider the desirability of awarding the family home to the spouse having custody of the children. Here, the husband was awarded custody of the three boys, the youngest of whom was three years old at trial time. The family home represented the only asset with any appreciable equity. In view of the factors the court was required to consider the division made was not an abuse of discretion.

The wife next contends the court erred in awarding custody of the three boys to the husband. It is not necessary to detail all of the evidence concerning the conduct of both parties. Suffice it to say the wife had left the children with the husband to take an apartment in Kansas City, at least during the week, while she worked in a department store. She admitted frequent association with a man convicted of a felony drug offense. In addition, she had sought the assistance of a physician for emotional problems.

While both parties admitted extramarital affairs, the evidence justified the court in believing the husband to be a stable father who loved his children and would provide a good home for them.

“A trial court’s order fixing custody should not be disturbed on appeal unless the welfare and best interest of the child compel a different disposition.” In Re Marriage of Byler, 544 S.W.2d 284[1 — 5] (Mo.App.1976). After a careful review of all the evidence, this court is unable to say the best interest of the children require a different disposition than that made by the trial court.

The wife next complains of the order requiring her to pay the sum of $20 per week to the husband for child support. The wife testified she earned $75 per week take-home pay. The husband earned $10,000 to $12,000 per year. There was no evidence as to his take-home pay.

The husband did not request child support from the wife nor was there any evidence as to the amount required to properly support the boys.

By § 452.340, RSMo 1975 Supp., the court is required to consider, among other things, (1) the father’s primary responsibility for support, (2) the financial resources of the custodial parent, and (3) the financial resources and needs of the non-custodial parent. In view of the factors to be considered and the relative financial position of the parties, the court abused its discretion in ordering the wife to pay the husband the sum of $20 per week child support.

The wife finally complains in the failure of the court to make any award to her for attorney fees. The wife testified the husband had paid $350 in attorney fees. She also stated she was able to pay her attorney fees, although she might have to pay them in installments. As in other matters, the court is vested with discretion as to the award of attorney fees. In Re Marriage of Heddy, 535 S.W.2d 276, 280[9, 10] (Mo.App.1976). No evidence was introduced as to the reasonable value of the services rendered by the wife’s attorney nor was there any evidence as to the amount of time spent by her attorney. In view of all the circumstances it cannot be said the court abused its discretion in failing to award the wife a further amount for attorney fees.

The decree is modified by showing the 1972 Olds is awarded to the husband and he is required to pay the encumbrance thereon and to hold the wife harmless from any liability on such encumbrance, to eliminate reference to the 1972 pickup and the 1971 Toronado; and by eliminating therefrom the obligation of the wife to pay the husband the sum of $20 per week child support. As modified, the judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Lavina M. RIGGEN, Respondent, v. PARIS PRINTING COMPANY and the Travelers Insurance Company, Appellants.
    No. 29281.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Gary E. Lowe, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellants.
    Ward B. Stuckey, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by employer and insurer from judgment in affirmance of an award of compensation to employee by the Industrial Commission. The dispositive question is whether the employee’s injury arose out of and in the course or scope of the employment. Reversed.

On March 15, 1973, Lavina M. Riggen lived near Liberty, Missouri, and was an employee of Paris Printing Company, 401 East 22nd Street, Kansas City, Missouri. She had been so employed since May, 1972, as “a bookbinder in shipping in a one girl shop.” Her job was to “gather books in certain shipments, sometimes you run them on the machine for stitching and wrapped them, and shipped them.” Her immediate supervisor was John Frye, whose supervisor was plant superintendent Wes Frentrop, who was under Homer Paris, founder of the company, and his son, Gene Paris. Paris Printing Company was a union shop and Mrs. Riggen was a member of the bookbinders’ union. Her regular hours were the same as those of the plant, from 7:30 a. m. to 3:80 p. m.

On March 15, 1973, Mrs. Riggen arrived at work around 5:45 a. m. She always went to work early because she “didn’t like crossing the Paseo Bridge.” She commenced working - “wrapping packages and getting them ready for our one driver that comes in and always goes out first * * *. He * * * came around seven and I wanted to get them ready.” She completed this job and before she could get some other finished jobs “written up,” “Wes Frentrop and Mr. Gene Paris and the group came back and said, let’s go down to breakfast, that we are late now, and I said I would like to finish so I could get it written up, and they said, you can finish it when you get back.” The subject of the foregoing was the annual Kiwanis benefit breakfast at Municipal Auditorium. She “didn’t know what it was about, I know that they [Paris Printing, Mr. Homer Paris] were sponsoring it. * * * Mr. Frye had mentioned it the day before * * *. He didn’t say whether he was going or what. * * * Somebody mentioned something about tickets, and I believe it was Gene said that Dad is down there and he has the tickets. * * * I just pushed the table over and went and got my purse, they were waiting for me, I got my purse and went with them. * * * They were turning them [lights] out over the presses, the pressmen weren’t running the presses * * * but they were around * * *. We got in the station wagon [driven by Jim Weisher, a salesman] and went downtown and parked. I walked down about half a block and stepped off the curb, and got about half way from the curb and turned my ankle and fell.” She was taken in the station wagon to St. Mary’s Hospital by Mr. Weisher and Jim Brooks, “the two that went up with me, and shortly afterwards Mr. Gene Paris came and these salesmen came up to the hospital.” She was found to have sustained a severe break in her ankle which called for three hospitalizations and surgeries over the succeeding months.

With respect to the breakfast event, Mrs. Riggen stated, “They didn’t order me. I had the impression that I should, I mean everybody else was going, and they stood and waited, and if I had stayed I would have been the only one left in the plant.” There was no discussion about pay in relation to attendance; if she had not gone to the breakfast, she would have continued with her work. She knew where the “group” was going by the invitation, “Let’s go to breakfast.” She knew that Mr. Homer Paris was involved to the extent of serving the pancakes that morning and said “[T]his I have to see.”

The Paris plant operated on a “pretty formal” chain of command and her orders, whether oral or written, were “all in the * * * bookbinding work, in the printing work.” She credited both Gene Paris and Wes Frentrop with authority to hire or fire her. When she came to work early, she got off early unless something had to go out, in which case she stayed on, got it out, and was paid overtime.

Mr. Riggen called Mr. Homer Paris about her medical bills to determine whether she should turn them in to Graphic Arts, her group health insurance through the bookbinders’ union, or Workmen’s Compensation, and he advised her to give the Graphic Arts number.

An advertisement of the Kiwanis Pancake Day had been placed by the coffee machine sometime before the event which indicated its time as “7 a. m. till 8 p. m.” and also indicated, see “H. E. Paris for free ticket.” Mrs. Riggen was aware that her group left for the breakfast in time to return before the plant opened at its regular time of 7:30 a. m.

With respect to pressures, if any, brought on her to attend the breakfast, Mrs. Riggen was asked and answered:

“Q [by Mr. Lowe for Appellants] Now did anyone, and I am speaking of Mr. Fren-trop, or Mr. Paris, or Mr. Fry, or any other person in any way pressure you, or indicate that you should go or you were expected to go to the pancake breakfast? A I felt I was expected to go, they were, they came, everybody at the plant at that time came through and they stood there and waited and I— Q The business hadn’t started for any of them, had it? A Not to my knowledge. I don’t know if they were working up in the plate room, I don’t know what they were doing up there. Q You have indicated that everybody that was in the plant did go to the breakfast including yourself. A Yes. Q But you don’t know whether anyone had started work other than yourself? A No, I don’t. * * *

“Q They in no way attempted to regulate your social life, did they? A No. Q They didn’t tell you where or when to eat lunch, or when and where to have dinner, or anything like that, did they? A No. Q So you are not trying to imply, I am certain, Mrs. Riggen, that because there was a suggestion that you go and have breakfast an hour and fifteen minutes prior to the plant even opening up that this was considered by you to have been an order from anyone, were you? A Well, at least— Q Are you trying to say that? A No, I wasn’t ordered to go. Q Wasn’t this just a group of people, anywhere from twenty-five to thirty-five per cent of the employees at your company that went down to have pancakes at the Kiwanis Pancake Breakfast, isn’t that a fact, an hour and fifteen minutes before work began? A Yes.

“Q Now your job as a bookbinder, or at least in the bookbinding area, I believe you called it a one girl shop? A Yes. Q You were kind of a Jill-of-all-trades, I guess, in respect to that type of work. Did you have any contact with the public in your type of work? A Yes. Q What type of contact did you have? Was it there at the plant? A No, not always, sometimes it was over the telephone about a job. Q You didn’t do any sales work, though, or go out and get accounts, or try to get jobs, or any type of bids for Paris Printing? A No. Q So if you would have gone to the breakfast that morning and been successful and arrived in good shape you wouldn’t have been doing any, shall we say job seeking that day for Paris Printing Company, would you? A No. Q You certainly didn’t take any jobs with you? A No. Q So you weren’t doing any work at that time when you went to the breakfast? A No.

“Q [By Mr. Stuckey for Respondent] Mrs. Riggen, when Gene Paris or Wes Fren-trop while you were on the premises of the Paris Printing Company made a reasonable request of you was it your custom to follow those requests? A Yes, definitely. Q Did you consider both of the people the boss? A Yes, I did. Q Did they have to give a specific order to you to get you to do something? A No. * * *

“Q [By Mr. Lowe] But my point is, Mr. Stuckey referred to this as being a reasonable request, which it may well have been, or a suggestion, whatever it in fact was, but you were not required to do this, it was not put to you as an order, was it? A No, it wasn’t. Q So in fact it was your own time, and you could have gone or not gone, couldn’t you? A Yes.

“Q And if they had asked you to do something similar to this on your own time at four thirty in the afternoon you could have gone, or not gone, couldn’t you? A Yes.

“Q But, in fact, if they had asked you to do something between seven forty-five in the morning and three thirty in the afternoon, your union contract hours pertaining to your job with respect to shipping, with respect to bookbinding, then you would have accepted that suggestion or request, would you not? A Yes, I would. Q Because that pertained to your job? A Yes. Q But, in fact, going to breakfast really didn’t pertain to your job, did it? A No.

“Q [By Mr. Stuckey] Again, Mrs. Rig-gen, did you consider it part of your working days to accept a suggestion that you go to breakfast, whether it would have been at Kiwanis, or at Winstead, or Sidney’s, did you consider that part of your job? A It wasn’t my job, no that wasn’t my line of work. Q Pardon me. A That wasn’t my line of work. Q Eating breakfast wasn’t considered to be part of your line of work, although we all have to do it, right? A Right. Q This was just a social engagement, wasn’t it? A Yes.”

Homer Paris, Jr., was Chairman of the Board of Paris Printing Company, a small family business. He is actively engaged in Downtown Kiwanis Club and its annual pancake breakfast and, in this case, the breakfast of March 15, 1973. He and his son recognized service clubs as a means to expose their business to other businessmen and the general public. He did not know whether Gene or Mr. Frentrop asked or ordered any of the Paris employees to go to the breakfast; and he was unaware which, if any, employers have their people in attendance. His company purchased approximately twenty-five tickets each year which were available free to plant employees who would like to go. There was no attendance requirement.

Homer Eugene Paris, III (Gene), was president of the company. He, too, acknowledged that activity in service clubs, he in Cosmopolitan, was a device that the company used to expose itself to the public, and that his father’s activity in Kiwanis was utilized to meet other businessmen. There was no pressure on any employee to attend the breakfast, he knew of no such pressure applied to Mrs. Riggen, and he and Wes Frentrop and the others in “the group” went because they had free tickets for the breakfast; it was only a social gathering and free breakfast.

Wesley Frentrop conducted himself informally on the job and did not order people around. He did not exert any pressure on Mrs. Riggen to go to the free breakfast. When he said, “Come on Vi, let’s go,” she joined the group that headed for the breakfast. “We left the shop early enough to get down to eat and get back by starting time.” All of the company’s employees were invited to attend each year. Six or seven went the year in question.

The question, now recast, is whether an employee, en route to an annual benefit pancake breakfast, sponsored in part and encouraged by the employer, and to which all employees are invited but not compelled to attend, and at a time when the employer’s business is not open and its plant is down, slips and falls and sustains an injury on a public street leading to the place where the breakfast is being served, can look to the employer for compensation on the theory that the accident arose out of and in the course of the employment. As stated in Stout v. Sterling Aluminum Products Co., 213 S.W.2d 244, 246 (Mo.App.1948), the courts of Missouri have never gone so far in applying such liberal construction to the Workmen’s Compensation Act.

The problem posed by Mrs. Riggen’s claim for compensation is treated at length in Annotation: Workmen’s Compensation: Injury Sustained While Attending Employer-Sponsored Social Affair As Arising Out Of And In The Course Of Employment, 47 A.L.R.3d 566, et seq. As there indicated, all the cases discussed appear to recognize that under appropriate circumstances an injury sustained by an employee while attending or traveling to or from an employer-sponsored social affair may arise out of the course of employment so as to be compensa-ble under workmen’s compensation.

The cases reveal that no general rule has been developed which can be applied to all situations for the determination of the circumstances under which the injury may be considered to have arisen out of and in the course of employment, with the result that the determination is made by the consideration of various relevant factors, accorded varying degrees of weight, applied to the particular facts and circumstances of each case. Inasmuch as injuries sustained by an employee in connection with an employer-sponsored event usually occur while the employee is not performing the duties for which he was employed, the inquiry is whether the social affair is sufficiently related to the employment to justify the conclusion that the injury arose out of and in the course of employment. Whether an employee injured while attending or traveling to or from an employer-sponsored social affair was compelled, directly or indirectly to attend, whether the employer derived some benefit from his sponsorship of the function, the extent to which the employer sponsored, controlled, or participated in the activity, and whether the social affair was a benefit or consideration of the employment to which the employee was entitled, have been recognized as the primary elements to be considered in determining the compensa-bility of the injury.

The presence or absence of any one factor is not necessarily determinative; but this generality is subject, perhaps, to one exception, that being the element of actual compulsion, which, standing alone, has been deemed sufficient to make an injury sustained in connection with the affair com-pensable. In such situation, the accident arises out of and in the course of the employment, because in attending the function, the employee is engaged in fulfilling the employer’s requirements.

The statement shows that the operative facts are not disputed. Homer Paris, Jr., a member of the Downtown Kiwanis Club, participated with his fellow Kiwani-ans in conducting the annual Kiwanis Breakfast in the course of which he brought his company, Paris Printing, into sponsorship of the event. For purposes of this decision, it can be assumed that Paris Printing was the sponsor of the affair; that Mr. Paris and his company sponsored the affair for purposes of benefit to business interests. There is no evidence that attendance by Paris employees was any part of the anticipated benefit, or that the affair was a benefit or consideration of the employment of Mrs. Riggen or any other Paris employee. Nor is there any evidence of compulsion, direct or indirect, upon Mrs. Riggen or any other employee to attend. To the contrary, she stated more than once that she was under no order to go, she would not have been disciplined for failure to attend, the breakfast was not in her line of work and was “just a social engagement.” In such circumstances, the award that should be entered by the Industrial Commission becomes a question of law and the Commission’s conclusions are not binding on the appellate court. Corp v. Joplin Cement Co., 337 S.W.2d 252, 258[7] (Mo. banc 1960).

Stout v. Sterling Aluminum Products Company, supra, is analogous. Stout, the employee, attended the third annual picnic sponsored by Sterling for its employees. The plant was closed down and all employees and families were invited to attend and were given tickets for free food, refreshments, and carnival rides. The purpose of the annual picnic was to create good will and make fellowship among the employees. Upon leaving the picnic, the employee fell on steps leading to the bus line and injured his knee. An award of compensation was reversed because the benefits of the compensation statute cannot be extended within reason to include an injury at a social function sponsored by the employer, when the employee is under no compulsion to attend and suffers no penalty for failure to attend.

Graves v. Central Electric Power Cooperative, 306 S.W.2d 500 (Mo.1957), is consistent in its contrast. Graves, the employee, attended the annual picnic sponsored by the employer. All employees and their families were invited to attend, the picnic was free, attendance was optional, the picnic was for purposes of company harmony. On the day of the picnic, Graves was, in effect, ordered to attend to perform standby duty for benefit of the employer. While boating at the picnic, he drowned in an attempt to rescue his son. An award of compensation was affirmed because the accident arose out of the course of the employment in that the employee had been ordered to attend to be available for performance of duties in the scope of his employment. See also Travel ers Insurance Co. v. Majersky, 531 S.W.2d 765 (Mo.App.1975). Majersky, employed as editor of a newspaper, attended a Chamber of Commerce Awards banquet. He was asked to “cover” the event for the paper by its managing editor and the paper provided the ticket. During the dinner he became ill and subsequently succumbed from a condition known as “cafe coronary.” An award of compensation was affirmed because the accident occurred within the scope of employment in that the employee was under direction to attend the function to get a story for his employer’s newspaper.

Respondent would hold this award as a case of “mutual benefit,” as in Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915 (banc 1945). The distinction of that case from the circumstances of Mrs. Riggen’s claim is made in Stout v. Sterling Aluminum Products Co., supra. The employee, Wamhoff, was engaged in plating, polishing, and buffing metals. While so engaged he also was polishing a toy for his daughter when his hand became caught and injured. The practice was encouraged by the employer as an aid to proficiency. The accident occurred during hours, at the place of employment, and while the employee-employer relationship existed. Thus, an accident in the course of employment.

Accordingly, in the absence of evidence to warrant the award of compensation, the judgment in affirmance of such award is, by force of Section 287.490.1(4), RSMo 1969, reversed.

All concur.


text:
    STATE ex rel. Albert J. LETZ, Supervisor, Division of Liquor Control, State of Missouri, Relator, v. The Honorable James T. RILEY, Judge of the Circuit Court of Cole County, Missouri, Respondent.
    No. KCD 29681.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      William E. Mounts, Jefferson City, for relator.
    James P. Dalton, Jefferson City, Irwin E. Blond, Robert B. Olsen, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WAS-SERSTROM, SHANGLER, PRITCHARD, DIXON, SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

This original proceeding in prohibition seeks to prohibit the Honorable James T. Riley, Judge of the Circuit Court of Cole County, Missouri (respondent), from temporarily enjoining Albert J. Letz, Supervisor, Division of Liquor Control, State of Missouri (relator), from enforcing “Liquor Control Regulations 15(k) and 25(II)(c)(l)(g) against . . . games conducted by” The Great Atlantic & Pacific Tea Company, Inc. (A & P), Fleming Foods Company (Fleming), and Wetterau, Incorporated (Wetterau), “and their participating stores.” A preliminary rule was issued and the matter now comes up for decision as to whether the rule should be made absolute.

Glendinning Companies of Connecticut, Inc. (Glendinning), Dansico Associates, a Division of Mallory Randall Corporation (Dan-sico), A & P, Fleming, and Wetterau, as plaintiffs, brought an action in two counts against relator, as defendant, in the Circuit Court of Cole County, Missouri, for declaratory judgment and injunctive relief. In support of the relief sought, plaintiffs therein alleged that Glendinning and Dansi-co were engaged in promoting and marketing certain “games.” played in participating stores of A & P, Fleming and Wetterau holding liquor licenses, and that relator was threatening to institute proceedings to revoke or suspend said licenses on grounds that said “games”, “Bingo” and “Gamera-ma”, and the manner in which they were being conducted, violated Liquor Control Regulations 15(k) and 25(II)(c)(l)(g).

The legality of the specific liquor control regulations mentioned is not questioned in the underlying action, merely their applicability to said “games” and the manner in which said “games” are conducted. Respondent is asked in the first count of the underlying petition to declare that said “games” do not violate Liquor Control Regulations 15(k) and 25(II)(c)(l)(g) and in the second count to temporarily enjoin relator from enforcing said regulations against A & P, Wetterau, and Fleming and their participating stores holding liquor licenses.

Certain exhibits attached to the underlying petition, along with certain evidence introduced at the “show cause” hearing held in conjunction with the temporary injunction, disclose the following facts which are deemed highly pertinent. Cash prizes up to $1,000.00 in amounts could be won by those who played the “games”. Detailed instructions were promulgated for use by the participating stores in promoting and conducting the “games”, which, if strictly followed, purportedly exempted the “games” from being construed as lotteries or being in violation of any of the liquor control regulations. These instructions cautioned that slight deviations from prescribed procedures could destroy the exempt status claimed for the “games”. Avoidance of anything which could be Construed as consideration, and complete disassociation with alcoholic beverages in every respect, were stressed in the instructions.

Concern about the “legal” status of the “games” prior to initiating them in Missouri prompted a representative of Glendinning on December 14, 1976, to write the Attorney General’s Office of the State of Missouri and ask for a “No Action Letter” if it was concluded that an abstract version of the “games” submitted did not constitute a prohibited lottery, game, gambling or other activity “under Chapter 563 of the Revised Statutes of Missouri.” The Chief Counsel of the Consumer Protection Division of the Attorney General’s Office acknowledged Glendinning’s request and by letter dated December 29, 1976, replied, in part, as follows: “Based upon the information contained in your letter and my understanding thereof, it is the position of this Division that no action will be taken against any person establishing or advertising such promotions in or from the state of Missouri. Please understand, however, that should other information come to our attention which indicates that this promotion is being conducted differently from the way it is described in your letter and attachments, this Division will re-evaluate its position.”

Relator was appointed Supervisor of the Division of Liquor Control on May 17, 1977. At all relevant times prior thereto, an acting supervisor headed the division. According to relator’s testimony at the “show cause” hearing in connection with issuance of the temporary injunction, neither he nor his predecessor ever approved of the games for or on behalf of the Division of Liquor Control.

The promoters of the games tried in vain to obtain a “no action” letter or some other type of commitment which would be binding on the Supervisor of Liquor Control and thereby insulate the games from enforcement of the liquor control regulations. Their failure to do so is evidenced by a letter dated March 21,1977, from an Assistant Attorney General to Glendinning’s representative, which, in part, advised as follows: “Because the enforcement of the liquor statutes and regulations is in the hands of the Acting Supervisor of Liquor Control and his agents, this office cannot issue a ‘no action’ letter. However, the opinions expressed in this letter have been discussed with the acting Supervisor of Liquor Control and will be used by his office in the enforcement of the rules and regulations.” By way of explanation with reference to the last sentence in the quoted matter, the Assistant Attorney General who authored the letter testified at the “show cause” hearing that although the opinions advanced by the Attorney General’s office had been discussed with relator’s predecessor in office, his predecessor was not bound by them and nothing in the referred to letter should be construed as indicating that relator’s predecessor considered himself bound by the opinions advanced by the Attorney General’s office. Although correspondence subsequently emanated from the Attorney General’s office to those promoting the “games” advising that they “will be deemed not to violate the liquor laws or rules” and indicating that “the Division of Liquor Control has no objection to the utilization of these promotions on licensed premises”, there is not a scintilla of evidence that anyone in the Division of Liquor Control issued a “no action” letter to the promoters of the “games” or otherwise irrevocably committed the Supervisor of Liquor Control to a non-enforcement policy regarding the violation of any liquor control regulation. The promoters of the “games” apparently labored under a misapprehension that the Attorney General’s office was empowered to officially speak for the Division of Liquor Control.

Relator contends respondent exceeded his jurisdiction by temporarily enjoining relator from enforcing Liquor Control Regulations 15(k) and 25(II)(c)(1)(g). In support of this contention relator relies upon the well established rule that an officer of the executive branch of government to whom public duties are confided by law “is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions.” Selecman v. Matthews, 321 Mo. 1047, 1051, 15 S.W .2d 788, 789 (banc 1929). See also: Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506 (1914); and 42 Am.Jur.2d, Injunctions, § 175, pp. 941, 942. Although conceding such to be the general rule, and further conceding that prohibition lies to curb unauthorized judicial acts which transcend jurisdictional limitations, respondent stoutly maintains that invocation of the doctrine of equitable es-toppel, a recognized exception to the general rule previously mentioned, more than adequately justified issuance of the temporary injunction against relator.

The doctrine of equitable estoppel has been jealously withheld and only sparingly applied against governmental bodies and public officers acting in their official capacity. State ex rel Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 184 (Mo.App.1974). Its application against governmental bodies and public officers is limited to “exceptional cases where required by right and justice . . . or to prevent manifest injustice.” Murrell v. Wolff, 408 S.W.2d 842, 851 (Mo.1966). The sustaining theory behind its infrequent application against governmental bodies and public officials is that public rights should yield only in the face of greater equitable rights possessed by private parties. City of St. Joseph v. St. Joseph Terminal R. Co., 268 Mo. 47, 56, 186 S.W. 1080, 1083 (banc 1916).

The office of Supervisor of Liquor Control is a highly sensitive and demanding position. A supervisor who fails to perform the duties imposed upon him by the Liquor Control Law (Chapter 311, RSMo 1969), or who violates any of the provisions thereof,

is deemed guilty of a misdemeanor, and, moreover, his failure to faithfully perform his statutory duties subjects him to removal from office by the governor. Section 311.-670, RSMo 1969. One of the most sensitive and demanding statutory duties impressed upon the Supervisor of Liquor Control is that of suspending or revoking the liquor license of any licensee who violates any duly promulgated regulation. Section 311.-660, RSMo 1969. Although an aggrieved licensee may file an application to have an order suspending or revoking his license reviewed in the circuit court, “[t]he filing of such application for review shall not stay enforcement of the supervisor’s decision”. Section 311.700.2, RSMo 1969. While the matter is pending on review and awaiting a final decision, the circuit court lacks jurisdiction to stay enforcement of the supervisor’s order. State ex rel. Wiggins v. Hall, 452 S.W.2d 106 (Mo. banc 1970). The genesis for attaching such absolute interim validity to orders of the Supervisor of Liquor Control is lucidly and forcibly explained in State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453, 461-468 (banc 1911): “[N]o one has a natural or primary right to manufacture, sell, or refine intoxicating liquors, in any quantity, in this state, but such occupation can only be pursued when the person who desires to engage therein first procures a license from the proper authorities of the state authorizing him to do so. Those authorities also establish the fact that the liquor traffic is not a lawful business, except as authorized by express legislation of the state; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of law, and it is therefore differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges, and immunities of the citizen. . . . When we bear in mind the foregoing idea that the liquor traffic in this state has no legal rights, save and except those expressly granted by license and the statute under which it is issued, then we can more clearly see that the state may impose such conditions, burdens, and regulations as it may deem wise and proper, and no one who engages therein has a right to complain thereof.”

Recognizing the existence of jurisdiction in respondent to temporarily enjoin relator from enforcing Liquor Control Regulations 15(k) and 25(II)(c)(1)(g) against A & P, Watterau and Fleming and their participating stores, would, as a practical matter, permit said stores and the purveyors of said “games”, as well as other potential violators of the liquor control regulations, to circumvent the law as dictated by Section 311.700, supra, and as explicated in State ex rel. Wiggins v. Hail, supra. Respondent argues that commitments made to Glendinning, Dansico, A & P, Fleming, and Wetterau, to place abstract versions of the “games” beyond the pale of enforcement of the liquor control regulations, coupled with substantial expenses incurred by plaintiffs in the underlying action by virtue of their reliance thereon, cries out for invocation of the doctrine of equitable estoppel. Four decisive reasons can be quickly marshaled which effectively devitalize this argument. First, neither relator nor his predecessor made any commitment which would immunize the “games” from enforcement of applicable liquor control regulations. Second, the plane occupied by the liquor business in the eyes of the law refutes any contention that equities attached to the protection of private rights involved outweigh equities attached to the protection of public rights involved. Third, relator is impressed with a legal duty of dealing with realities, not abstractions, and respondent does not suggest that relator or his predecessor was ever asked to desist from enforcing liquor control regulations which were, in fact, violated by reason of the manner in which actual, as opposed to abstract, “games” were promoted and conducted. Fourth, any point of view on the abstract version of the “games” attributed to relator’s predecessor by the Attorney General’s Office in its surprisingly solicitous correspondence was neither absolute nor unequivocal, and when said correspondence is read in its entirety it is found to be so laden with cautions and warnings purportedly expressed by relator’s predecessor that a finely honed imagination is required to say that it even constituted an expression of opinion, much less a binding commitment. Even as to parties other than governmental bodies or public officials, it is axiomatic that a mere expressionof opinion will not justify invocation of the doctrine of equitable estoppel. Peerless Supply Co. v. Industrial Plumb. & Heat. Co., 460 S.W.2d 651, 667 (Mo.1970).

The preliminary rule in prohibition is made absolute.

All concur.

      . “No licensee shall allow upon or about his licensed premises, any gambling of any kind or character whatsoever, in which the one who plays stands to win or lose money, trade checks, prizes, merchandise or property or any other consideration whatsoever.
      No licensee shall have any gambling devices upon his licensed premises whereby money, trade checks, prizes, merchandise or property or any other consideration whatsoever may be won or lost.”

      . “(1) Restrictions. ... No advertisement of intoxicating liquor or nonintoxicating beer shall contain: . . . (g) Any statement offering any coupon, premium, prize, rebate, sales price below cost, or discount as an inducement to purchase intoxicating liquor or nonintoxicating beer.”

      . The only explanation in the record as to what is meant by the term “No Action Letter” is that given by Glendinning’s attorney: “A letter in which — this is a term by the way, which Mr. Tettlebaum of the Attorney General’s office first used to me, and he used it to describe a letter in which he would say, we have reviewed this material, and we believe it would not be violative of the laws and, therefore, this office would take no action against your client on a contention that it is a violation of the law.”

      . In the context of this particular case it is unnecessary to decide whether the abstract version of the “games” constitutes a lottery or some other form of gambling proscribed by chapter 563, RSMo 1969, and this court expressly refrains from passing judgment thereon, and nothing in this opinion should be construed as doing so.


author: TITUS, Judge.

text:
    Idella SWIFT, Plaintiff-Respondent, v. Claude W. BAGBY, Defendant-Appellant, John Swift, Jr., Defendant.
    No. 10481.
    Missouri Court of Appeals, Springfield District.
    Dec. 6, 1977.

      L. D. Joslyn, Jeffrey C. Vaughan, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for plaintiff-respondent.
    Manuel Drumm, Sikeston, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Plaintiff was a passenger in an automobile driven by Swift when it collided with a vehicle operated by Bagby. Plaintiff sued both Swift and Bagby. A jury awarded her $5,000 in damages against Swift and exonerated Bagby. The trial court granted plaintiff a new trial on damages as to Swift when he confessed error and granted a new trial as to Bagby “for the reason that the Court erred in not permitting the plaintiff's attorney to make proper inquiry on voir dire examination of the jury panel as to whether or not any member of the panel had an interest in [Bagby’s] insurance company and denied plaintiff’s attorney the right to restate the insurance question to the panel and to receive an answer from the panel as to the insurance question.” Bagby appealed.

Pursuant to an in camera disclosure by Bagby’s lawyer that Aetna Casualty and Surety Company was interested in the action, the court said the insurance question could be asked on voir dire inquiry “if it is not isolated or asked first or last and if it is intermingled with the other questions.” During voir dire examination, plaintiff’s attorney queried, “Now, I want to ask you if any of you on the panel have ever worked for or had any — been an officer or employee in any way of the Aetna Casualty and Surety Company, any of you been an employee, officer or work for the Aetna Casualty and — ”. Bagby’s lawyer interrupted and moved for a mistrial because plaintiff’s counsel “has just done exactly what the Court told him not to do . . .he has repeated; he has emphasized the insurance question.” The motion was overruled and the court told plaintiff’s counsel not to repeat the question but “[y]ou may ask the jury what the answer is to the last question.” No member of the panel responded when plaintiff’s lawyer inquired, “Will you answer the last question that I asked?” The attorney then asked two panel members “can you answer it,” and one responded with “Aetna Insurance Company.” When plaintiff’s lawyer asked the court to have the “reporter read the question back to the jury [because] the jury does not know what the question is at this time,” Bagby’s attorney renewed his motion for mistrial. The motion was denied and the court instructed plaintiff’s counsel, “Go to your next question and forget the last one.” The attorney complied.

It is the duty of each venireman on voir dire examination to fully, truthfully and fairly answer all questions directed to him [Girratono v. Kansas City Public Service Company, 272 S.W.2d 278, 282[6] (Mo.1954)], for litigants have a right to ascertain which jury panel members are, or might be, interested in the result of the lawsuit. Faught v. St. Louis-San Francisco Railway Co., 325 S.W.2d 776, 779[1] (Mo.1959). In particular, plaintiffs have the right to learn if any venireman is connected with an insurance company which has an interest in the litigation. Bunch v. Crader, 369 S.W.2d 768, 770[1] (Mo.App.1963). “A denial of this right is prejudicial to the party entitled to its exercise” [Butler v. Talge, 516 S.W.2d 824, 827[3] (Mo.App.1974)], and “has been held to be reversible error.” Hancock v. Light, 435 S.W.2d 695, 701 (Mo.App.1968). Accessory to the right to ask a proper insurance question, is the right to receive an answer thereto under oath. Olian v. Olian, 332 Mo. 689, 692, 59 S.W.2d 673, 674 (1933).

A trial court is afforded wide discretion in passing on a motion for a new trial which raises an issue concerning the qualification of jurors. Its power to grant a new trial is discretionary only as to questions of fact, and the qualifications of jurors are questions of fact and matters affecting the determination of issues of fact. Tate v. Giunta, 413 S.W.2d 200, 202[1, 2] (Mo.1967). No discretion is available to a trial court in passing on a question of law. State ex rel. St. Hwy. C. v. Nickerson & Nickerson, Inc., 494 S.W.2d 344, 346[1] (Mo.1973). If the trial court had simply prohibited plaintiff via counsel from exercising the right to ask a proper insurance question of the panel, the court would then have had no discretion in passing on a motion for new trial claiming this error because denial of the right would involve an issue of law. Cf. Aiken v. Clary, 396 S.W.2d 668, 677[12] (Mo.1965). On the other hand, if the trial court, under compulsion of a motion for a new trial, is called upon to determine whether plaintiff was prejudiced vel non by being deprived of a right to receive a satisfactory answer to the insurance question or whether the court under the circumstances erred in refusing counsel’s request to repeat the question or to have it read by the reporter, then resolution of these issues would involve questions of fact or, perhaps, mixed questions of fact and law. The purpose of a new trial motion is to give the trial court a second chance to correct any errors that were made during trial, and if it believes its discretion on questions of fact was not wisely exercised and resulted in prejudice, it may order a new trial. Union Electric Company v. Turner, 446 S.W.2d 430, 433[3] (Mo.App.1969).

On appeal from an order granting a new trial on discretionary grounds, an appellate court will indulge every reasonable inference favorable to the ruling and will not reverse -unless there has been a clear abuse of discretion. Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330, 333[4] (Mo.App.1976). Also, an appellate court will be more liberal in upholding a trial court’s action in sustaining a motion for new trial than in denying it. Ogle v. Terminal R. R. Ass’n of St. Louis, 534 S.W.2d 809, 812-813[5] (Mo.App.1976).

Trial courts, in the interest of securing a fair and impartial jury, should give counsel wide latitude as to the questions propounded on voir dire examination [Grundmann v. Knezevich, 449 S.W.2d 874, 878[9] (Mo.App.1970)], but in order to prevent overemphasis of insurance involvement in the ease, it is within the province of trial courts to reasonably circumscribe the voir dire examination as it relates to the insurance question. Butcher v. Main, 426 S.W.2d 356, 360[9] (Mo.1968). As in all cases where an insurance carrier is interested in the lawsuit, the trial court here was faced with the delicate task of marking the boundaries of the insurance question, yet providing counsel sufficient scope in his voir dire examination to fully ascertain if any veniremen were connected with the involved carrier. We believe that initially the court properly set the limits of the insurance question and no one complains on appeal of its delimitation. Nevertheless, in the course of propounding the insurance question and amid attempts to secure answers thereto, there were interruptions, rather lengthy bench conferences and indications that the veniremen had forgotten the question or, at least, had forgotten the true identity of the carrier involved. Regardless of who was responsible for the situation, the net result was that plaintiff’s counsel was effectively denied an adequate inquiry as to which members of the panel, if any, were connected with the Aetna Casualty & Surety Company. Upon reflection and given a second chance to consider the matter, the court concluded it had erred to plaintiff’s prejudice in not permitting counsel to restate the question and to receive an answer thereto. Under the circumstances peculiar to this case, we cannot say that granting a new trial for the reasons stated was a clear abuse of the trial court’s discretion.

The order granting a new trial is affirmed.

All concur.