author: ROBERT R. WELBORN, Special Judge.

text:
    RANGER INSURANCE COMPANY, Appellant, v. Wilbert and Vesta AILSHIRE, d/b/a Independence Memorial Airport, Respondents.
    No. 28071.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Max W. Foust, Russell D. Jacobson, Morris, Foust, Beckett & Ponick, Kansas City, for appellant.
    Graham, Paden, Welch, Martin & Albano, Michael J. Albano, Independence, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by insurer of aircraft to recover from insureds under subrogation provisions of policy, $9,000 paid lienholder upon destruction of airplane. Insureds counterclaimed for $10,500 face amount of policy, less $500 deductible and $9,000 paid lien-holder, or $1,000. Trial to court resulted in judgment in favor of defendants on their counterclaim and against plaintiff on its claim. Plaintiff appeals.

Wilbert and Vesta Ailshire owned a 1968 Piper PA-28 aircraft. Ranger Insurance Company issued to them its policy for a term September 19, 1968 to September 19, 1969, covering the aircraft. The policy included all risks coverage in the amount of $10,500, less a $500 deductible. By Breach of Warranty Endorsement, Noland Road Bank was protected to the extent of their lien of $9,000 for a loan made by the bank to the Ailshires for the purchase of the aircraft.

A “Special Provisions Endorsement” attached to the policy contained the following provision:

“This Policy does not apply to any occurrence or to any loss or damage occurring while the aircraft is being operated in flight by a Student Pilot unless each flight is under the supervision and specifically approved by a properly qualified Plight Instructor certificated by the Federal Aviation Administration.

“This exclusion is not applicable to any Student Pilot following issuance of a Private Pilot Certificate.”

In June, 1969, Robert L. Bone, Jr., the holder of a Student Pilot certificate, worked for defendants at the airport where the plane was hangared. Mrs. Ailshire promised Bone that for his compensation he could have two hours free flying time on the airplane, but he would have to await the return of his instructor who was out of town and that upon his return, Bone could schedule the use of the plane as he had done previously.

On June 9,1969, Bone came to the airport in Mrs. Ailshire’s absence and without her knowledge or permission obtained the keys to the plane from the line boy. Bone took off from the airport without supervision of an instructor. The flight terminated in a crash in which Bone was killed and the plane destroyed.

Ranger denied the Ailshires’ demand for payment to them of the insurance coverage for the plane, less the deductible and the amount paid the bank, or $1,000.00. Ranger denied the claim on the grounds that there was no coverage under its policy at the time of the crash because the plane was being operated at the time by a student pilot, without supervision of an instructor and the flight had not been specifically approved by an instructor.

Relying upon the subrogation provisions of the Breach of Warranty Endorsement of its policy, Ranger sued Ailshires for the amount paid the bank on a claim as to which no liability therefor existed toward the insured. The Ailshires counterclaimed for the balance due under the terms of the policy. Trial to the court on stipulated facts, answers to interrogatories and the deposition of Mrs. Ailshire resulted in a judgment in favor of defendants on their counterclaim and against plaintiff on its petition.

On this appeal, Ranger asserts that, since the flight which resulted in the destruction of the aircraft was in violation of the special provisions endorsement of the policy, no coverage under the policy was available to the Ailshires.

Appellant’s principal reliance is upon the case of Deutsch v. State Farm Mutual Automobile Ins. Co., 457 S.W.2d 823 (Mo.App.1970). That case involved an automobile insurance policy excluding coverage when the auto was operated by a named son of the insured. Despite extreme measures by the father to prevent the son’s use of the auto, the son took the auto without his father’s permission and was involved in a collision, resulting in the son’s death and the destruction of the auto. In the father’s action to recover from the insurer for the value of the automobile, the insurer relied upon the exclusionary endorsement and the father replied that the use was without his knowledge or consent. The court of appeals rejected the father’s contention, stating:

«* * * We believe the consent element is immaterial. Consent of the parent is not made part of the exclusionary provision. Plaintiff cites no case to sustain this contention. On the contrary, our research discloses that courts have held that lack of consent is immaterial.” 457 S.W.2d at 826.

The court then cites State Farm Mutual Automobile Ins. Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970 (1938); Texas Indemnity Ins. Co. v. McLelland, 80 S.W.2d 1101 (Tex.Civ.App.1935), and Hossley v. Union Indemnity Co. of New York, 137 Miss. 537, 102 So. 561 (1925).

In this case, respondents have cited in support of their position cases in which recovery was sought under theft provisions of auto or aircraft policies and the insurer resisted payment on the grounds that the use at the time of actual destruction or loss of the insured vehicle was within an exclusionary clause of the policy. Thus, in Sunny South Aircraft Service, Inc. v. American Fire and Casualty Company, 140 So.2d 78 (Fla.App.1962), affirmed, 151 So.2d 276 (Fla.1963), the insured aircraft had been hijacked to Cuba where it was destroyed by gunfire by a Cuban Air Force plane. The insurer sought to apply the exclusion of loss due to “war, etc.,” but the court permitted recovery under the theft coverage of the policy.

In General Ins. Corporation v. Kinney, 279 Ky. 76, 129 S.W.2d 1014 (1939), an insured auto had been stolen and was subsequently seized by government officials and impounded because of its use in transporting illegal moonshine. The insurer sought to avoid recovery on the basis of an exclusion in its policy of loss due to government confiscation for illegal use. The court held the exclusion inapplicable because the auto had previously been stolen.

In Schwab v. Ranger Insurance Company, 438 S.W.2d 121 (Tex.Civ.App.1969), the policy required an aircraft to be operated by a named person or by others with at least 1000 hours flying time. The craft was destroyed while flown by a pilot with less than 1000 hours. The insured sought to avoid the effect of the policy limitation by contending that the use at the time of the accident was without his permission, but a jury, on submission of that issue, found against the owner. Respondents say that in that case the court recognized inferentially that lack of consent to the use of the plane by the unqualified pilot would have avoided the effect of the exclusionary clause. Since the insured failed in his burden of proof on the lack of consent, the court did not actually consider the legal effect of such a defense, had it been proved in the case.

Finally, respondents cite Delametter v. Home Ins. Co., 233 Mo.App. 645,126 S.W.2d 262 (1939). In that case, the owner of a motor truck trailer sought recovery under his fire insurance policy for the loss of the trailer which occurred when the tractor unit caught fire, causing a collision in which the trailer was destroyed, although not touched by the fire. The court held that fire was the proximate cause of the loss and that the fire insurance covered it. The court said that coverage was not limited to instances where the insured item was destroyed by fire but also included “losses from other sources or agencies which have been set in motion as the direct result of an antecedent fire.” 126 S.W.2d at 265.

Respondents deduce from those cases the rule that an exclusionary clause in an insurance policy is inapplicable when there is an unauthorized taking which amounts to a theft and which sets in motion the act resulting in damage to the insured property.

Insofar as the applicability of the exclusionary provision is concerned, consent is not, as stated in Deutsch, a decisive factor. Consent becomes relevant in determining whether or not the insured auto or aircraft was taken under such circumstances as constitute theft within the meaning of the policy provision protecting from loss on that account. As pointed out by the trial court, if the aircraft is in fact stolen, the insurer should not be permitted to defend against payment of the loss on the grounds that the thief was a student pilot.

What appears to be a correct application of the rule is found in Pacific Indemnity Company v. Kohlhase, 9 Ariz.App. 595, 455 P.2d 277 (1969). In that case an all risks policy had been issued on an aircraft. The exclusionary provisions of the policy called for no coverage if the plane was piloted by other than named persons or pilots with specified qualifications. The plane was placed in the custody of an airport manager for sale. He was given the keys and instructions limiting the use of the plane. In violation of such instructions, a student pilot, not meeting the qualifications in the exclusionary provision, was allowed to take the plane on a flight which resulted in a crash. The court held that there was no coverage because the evidence showed conclusively that the aircraft was in flight and piloted by one other than the pilot designated in the declarations.

The owner’s claim that the use was non-permissive was rejected. “ * * * [T]he insured’s consent is not a prerequisite to the operability of the exclusion clause.’’ 455 P.2d at 280.

The court then considered the owner’s contention that the student’s flight, without his consent and without the permission of the airport manager, constituted a theft of the aircraft. On that issue the court said (455 P.2d 280-281):

“The modern trend today, where the word ‘theft’ is not defined in the insurance policy, is to give it a liberal construction, namely a common and ordinary meaning according to the understanding of persons

in ordinary walks of life. See P. E. Ashton Company v. Joyner, 17 Utah 2d 162, 406 P.2d 306 (1965); Toms v. Hartford Fire Insurance Company, 146 Ohio St. 39, 63 N.E.2d 909 (1945). The term ‘theft’ has

been construed to include any wrongful deprivation of the property of another with-

out claim or color of right, Munchick v. Fidelity & Casualty Company of New York, 2 Ohio St.2d 303, 209 N.E.2d 167 (1965), the

fraudulent and wrongful taking of the property of another, Hall v. Great National Lloyds, 154 Tex. 200, 275 S.W.2d 88 (1955), or a taking where the natural consequence thereof creates an unreasonable risk of permanent loss to the owner. Sunny South Aircraft Serv. v. American Fire & Cas. Co., Fla.App., 140 So.2d 78, aff’d, Fla., 151 So.2d 276 (1963). See also 11 Couch on Insurance 2d § 42:250; World Investment Company v. Manchester Insurance & Indemnity Co., 380 S.W.2d 487 (Mo.App.1964).

“Here, concededly, the aircraft was taken without the consent of the owner. The evidence, however, is undisputed that the student pilot did have permission to fly the airplane — permission of the flying instructor who worked at the airport. This instructor was an independent operator in that he charged for flying instructions and the airport manager charged rental for the planes used by his students. Under these circumstances, regardless of what the understanding may have been between the aircraft’s owner and the airport manager as to the use of the airplane, and notwithstanding the broad scope afforded theft coverage, we cannot conceive that the pilot’s use of the airplane constituted a theft. See Smith v. East & West Ins. Co., 37 So.2d 376 (La.App.1948).

“It has been held that when an article insured against theft is stolen and is subsequently damaged under circumstances which, but for the theft, would fall within an exclusionary provision, the loss represented by such damage is recoverable under the theft provision and the exclusionary clause is inapplicable. Sunny South Aircraft Serv. v. American Fire & Cas. Co., supra; General Exchange Insurance Corporation v. Kinney, 279 Ky. 76, 129 S.W.2d 1014, 122 A.L.R. 920 (1939). This principle, however, has no application here, if at all, since there was no theft of the airplane.”

In the Deutsch case, supra, relied upon by appellant, the St. Louis Division of the Court of Appeals did not pursue the question of liability based upon the theft provision of the policy. On the appeal the insurer had contended that it was not liable under its policy because of the use by an excluded driver and also, because there was no evidence that the son “took the automobile with the intent to permanently deprive the plaintiff of the automobile.” 457 S.W.2d 825. The Court of Appeals concluded that the judgment in favor of the insurer should be affirmed if the trial court’s sustaining of its motion for judgment could be upheld on either ground.

Inasmuch as the opinion in Deutsch does not indicate whether or not the respondent on the appeal asserted liability based upon the theft provision of the policy, that case is not a direct holding that operation of a vehicle by an excluded driver prevents recovery under the theft protection of a policy of insurance against physical loss. The three cases, above referred to, which the court cited in support of its conclusion that lack of consent is immaterial in the enforcement of an exclusionary provision of a policy of insurance, all involved liability coverage, not property loss coverage. Since the Deutsch case did not reach the question here decided, that case is not controlling.

In this case the trial court found: “There is no question but that Robert Bone was not authorized to operate the plane.” However, it is clear that in neither the trial court nor in this court have the respondents asserted liability on the part of appellant on the basis of the theft coverage of the policy. Respondents’ counterclaim cannot be found to be so premised, particularly since it concedes the allowance of the $500 deductible amount stated in the policy, whereas the policy by its terms provides that the deductible should not be applicable in case of loss by theft.

Likewise, in this court, the unauthorized taking has been advanced by respondents as nullifying the exclusionary provision relied upon by appellant rather than as a basis for a finding that the loss was within the theft coverage of the policy.

Although this case was submitted upon stipulated facts and although the desirability of finally terminating litigation should be furthered where possible and practicable, nevertheless an appellate court should not interject a theory of liability not actually advanced by the parties to the litigation and decide the case on such basis.

In this case, the trial court’s determination that respondents were entitled to recover because the unauthorized use of the plane negatived the exclusionary provision was erroneous because the exclusionary provision was not limited to consensual use. This error requires that the judgment entered in favor of respondents on their counterclaim be reversed. However, in the interest of justice, respondents should, if they see fit, be permitted to amend their counterclaim and to have the cause heard and determined consistently with the views herein expressed.

Therefore, the judgment in favor of the respondents is reversed and the judgment against appellant on its petition is likewise reversed and the cause remanded for new trial.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bobby LANE, Defendant-Appellant.
    No. KCD 27609.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11,1977.

      Paul R. Hales, St. Louis, William Kun-stler, New York City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOPFORD, P. J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

Defendant appeals his conviction of first degree murder in connection with a robbery and a mandatory sentence of life imprisonment. This appeal is from the third trial of defendant for the murder of Officer Ronald Yoakum of the Kansas City, Missouri, Police Department, on November 26, 1968. The first trial resulted in a conviction set aside by the trial court on defendant’s motion. A conviction of conventional first degree murder in defendant’s second trial was affirmed by the Supreme Court in State v. Lane, 475 S.W.2d 91 (Mo.1971), but the defendant’s 27.26 motion was sustained by the trial court. In this appeal, as in his appeal to the Supreme Court on the second trial, defendant argues the sufficiency of the evidence to sustain the conviction.

Where a question of sufficiency is raised, this court must consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom, State v. Thomas, 309 S.W.2d 607 (Mo.1958); State v. Taylor, 324 S.W.2d 643 (Mo.1959); and evidence and inferences to the contrary are rejected. State v. Colton, 529 S.W.2d 919 (Mo.App.1975).

So viewed, the evidence showed that defendant and a man later identified as Carl Primous went to an apartment building where defendant had previously occupied an apartment. Defendant had not been to his apartment for four to five weeks, and the landlord had since commenced an eviction proceeding against defendant and changed the lock. The resident manager, Mrs. Lewis, did not have a key to the apartment, but informed defendant that he should get his things out of there. Mrs. Lewis reentered her apartment, and the defendant and Primous started up to the second floor. They then borrowed a table knife and a butcher knife from a second floor tenant and proceeded to defendant’s third floor apartment. Some girls living across the hall who had observed defendant and Primous attempting to “jimmy” the door informed Mrs. Lewis that someone was trying to break in to that apartment, and Mrs. Lewis called the police.

Officers Mynatt, Smith, and Yoakum of the Kansas City, Missouri, Police Department were dispatched in response to Mrs. Lewis’ call. Officer Mynatt arrived first and was directed to the third floor by Mrs. Lewis. He started up the stairs with his service revolver drawn; and, as he approached the third floor, he saw defendant with a table knife in hand. He ordered defendant to drop the knife, and he did so. When Officer Mynatt reached the top of the stairs, he saw Carl Primous with a butcher knife. When Officer Mynatt told Primous to drop the knife, both Primous and the defendant lunged at him grabbing his service revolver. He was struck in the neck and chest by both men. Primous was able to disarm Officer Mynatt after kicking him in the head. Primous was holding the gun to Officer Mynatt’s head when the defendant told him to leave the officer alone and then said, “Let’s get out of here.” The defendant and Primous then both ran down the stairway, Primous still carrying the service revolver when last seen by Officer Mynatt.

Officers Smith and Yoakum were just arriving when the defendant and Primous started for the first floor. Officer Smith was standing in the doorway behind Officer Yoakum when he observed the defendant running down the stairs followed by Pri-mous carrying an automatic. Defendant jumped on Officer Yoakum, and they both fell to the floor struggling. Primous also fell and, from a sitting position approximately three feet from defendant and Officer Yoakum, aimed the automatic at them. Officer Smith heard a shot and shot at Primous who then aimed at Officer Smith. Officer Smith then heard another shot and shot again at Primous who fell back. Pri-mous then ran down the hallway, turned and aimed again at Officer Smith who ran up seven or eight steps and then shot Pri-mous twice. The defendant then got up from struggling with Officer Yoakum and grabbed the cylinder of Officer Smith’s gun, after which more police officers arrived and subdued him.

A .380 automatic was found in Primous’ hand, and two service revolvers, one belonging to Officer Mynatt and one belonging to Officer Yoakum, were found in the hallway. Officer Mynatt’s service revolver had been fired six times and Officer Yoakum’s one time. Lint in the barrel of the automatic as well as an imprint on one of the cartridges indicated that it had not been fired at all.

Officer Yoakum died as a result of three gunshot wounds, in the lip, near an armpit and near the breastbone. Bullet fragments recovered from Officer Yoakum’s body were fired from Officer Mynatt’s service revolver. Powder burns on Officer Yoa-kum’s clothing indicated that he had been shot from less than four feet, and there was evidence that the breast wound was a contact wound from a gun fired at less than a foot.

Defendant in the brief premises his argument as to submissibility on a failure of the State to prove that he shot Officer Yoakum. Under the felony murder rule, the felonious intent necessary to a murder conviction may be shown by the perpetration of a felony. State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). If the evidence was sufficient to make a submissible case that defendant and Primous robbed Officer My-natt and that “the killing occurred ‘in flight from the scene of the crime to prevent detection or promote escape’ ”, then it was adequate to support his conviction under the felony murder submission. State v. Johnson, 524 S.W.2d 97, 100 (Mo. banc 1975). The evidence viewed most favorable for the State was clearly sufficient to support a first degree felony murder conviction. Adopting the language of the Supreme Court in State v. Lane, supra, we find that, “The trier of facts reasonably could find that the killing of Officer Yoa-kum during a fight with defendant was a part of one continuous episode and the result of a joint effort and common purpose of defendant and Primous to escape, by use of whatever means necessary, after their joint assault upon and robbery of Officer Mynatt, . . . ” State v. Lane, supra, at 95.

Prior to a consideration of the principal point briefed and argued by the defendant, a congerie of issues need some consideration; and, although they were not argued, most of them were submitted by counsel on the basis of the briefing with the tacit admission that some of these issues were not properly raised. These will be referred to under the numbered point in which they appear in defendant’s brief.

The first of these is defendant’s Point III, that a manslaughter instruction should have been given. This was not properly raised in the motion for new trial, the only mention of this instruction in the motion being a contradictory one and not specific enough to properly raise the issue. State v. Cheek, 413 S.W.2d 231 (Mo.1967); State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

In any event, there is no error, the defendant’s reliance upon State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), to support an automatic submission of manslaughter being misplaced, since only cases tried after the March 1, 1975 amendments to the Notes on Use to MAI-Cr 6.02 require automatic submission of manslaughter. State v. Mudgett, 531 S.W.2d 275, 280 (Mo. banc 1975). It is clear that there is no evidentiary basis for the submission of manslaughter in this case. The defendant’s theory .that the manslaughter instruction was required is based upon a sudden encounter with uniformed police officers. In such circumstances, under the law prior to Staple-ton, evidentiary support is required before the necessity of giving of a manslaughter instruction arises. These facts do not give rise to any submissible issue of manslaughter. State v. Spaugh, 200 Mo. 571, 98 S.W. 55 (1906); State v. Duncan, 116 Mo. 288, 22 S.W. 699 (1893), appeal dismissed 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894).

Defendant raises as his fourth point that the trial court erred in proceeding on an amended information in lieu of indictment because the State had not been granted leave to file an amended information, and defendant was not granted a preliminary hearing. Defendant admits that he would not be entitled to a preliminary hearing if the trial court did grant the State leave to amend. No error is shown. “Appellant complains that no leave was sought or granted for filing the second information, but where the record reflects the filing of such information, as it does here, it is ‘presumed the trial court “permitted” the filing in accordance with Rule 24.02.’ ” State v. Colbart, 411 S.W.2d 92, 95 (Mo.1967); State v. McCrady, 416 S.W.2d 175 (Mo.1967).

During oral argument, counsel for defendant stated that while he does not waive his fifth point [The court erred in overruling appellant’s application for a change of venue] and his sixth point [The court erred in failing to conduct an evidentiary hearing on defendant’s assertion that the jury panel was not representative of the community in that black persons were excluded in violation of his right to equal protection], but admitted that the points lack adequate buttressing in the record to be considered by this court.

The record has been examined and on the issue as to the racial composition, the defendant never requested an evidentiary hearing. Absent that request and a record basis for review of the contention, the issue is not before this court. State v. Jones, 531 S.W.2d 67 (Mo.App.1975).

On the issue of the trial court’s refusal of the change of venue, the record made by defendant simply does not demonstrate the prejudice required under Rule 30.04. The testimony offered was simply not evidence of prejudice against the defendant as the trial court indicated in his comments overruling the request for a change of venue. The cases cited by defendant are irrelevant to the issue raised. This is not a case where the issue is one of an abuse of discretion by the trial court on the basis of evidence presented.

Defendant’s seventh point is that the trial court erred in failing to give a converse instruction with respect to the evidence offered by defendant that he was unconscious when Officer Yoakum was shot. Defendant admits that no converse was offered. A similar argument was made by the defendant in State v. Banks, 491 S.W.2d 247 (Mo.1973). In Banks, the defendant was convicted of first degree murder for shooting his sister-in-law. He testified that he did not shoot his sister-in-law but that the gun went off while he was wrestling with her. The court held that the defendant’s testimony did not establish a defense which must be instructed on as a part of the law of the case, but rather was merely a denial of the offense charged. The court went on to hold that since a converse instruction is not part of the law of the case, it is not error for the trial court to fail to give such an instruction when there is no request therefor. Accord, State v. Smith, 515 S.W.2d 761 (Mo.App.1974). Banks is controlling in this fact situation.

Defendant’s eighth point asserts denial of a speedy trial in violation of the Sixth Amendment to the Constitution of the United States. The only case cited is Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). That case turns on a finding that the delay of seven years from the offense to trial was for the convenience of the State.

In contrast, the delays in this case were not exclusively for the convenience of the State. The initial indictment was filed on December 6, 1968. At the end of the first trial, defendant’s motion for new trial was granted on April 15, 1970, because of fatal variance between the indictment and proof. An information in lieu of indictment was filed June 30, 1970, and defendant was convicted in a court-tried case on July 9, 1970. That conviction was later affirmed on appeal, State v. Lane, 475 S.W.2d 91 (Mo.1970), but vacated by the circuit court on September 20, 1973, on the basis of a 27.26 attack upon the information in lieu of indictment as defectively failing to charge that defendant’s conduct was “felonious.” The amended information in lieu of indictment was filed on November 27,1973, after which the trial now appealed from followed on May 20, 1974. Under the authority of State v. Thompson, 414 S.W.2d 261 (Mo.1967) and State v. Hadley, 249 S.W.2d 857 (Mo.1952), defendant is not entitled to be discharged on the basis of denial of his right to a speedy trial. Here, as in those cases, there was error in connection with defendant’s earlier convictions, and the error was corrected, in this case by the circuit court when the questions were presented. “That merely entitles defendant to a new trial. The delay involved does not entitle defendant herein to be discharged without a retrial . . .. This delay is attributable to defendant . . . The fact that the prosecuting attorney made a mistake in amending the information should not entitle defendant to discharge for failure to receive a speedy trial, any more than he should be so entitled if the state commits some error in an earlier trial such as offering evidence not properly admissible or tendering an incorrect instruction.” Thompson, at 266-267. See also Bayless v. United States, 147 F.2d 169 (8th Cir. 1945), modified 150 F.2d 236 (8th Cir. 1945).

The State correctly points out in its brief that this issue was not raised until the motion for new trial and therefore not preserved for appellate review. State v. Flynn, 519 S.W.2d 10 (Mo.1975); State ex rel. State Highway Comm’n v. Harper, 542 S.W.2d 555 (Mo.App.1976). However, from the foregoing, it is apparent that there was no infringement of defendant’s right to a speedy trial, much less manifest injustice under the plain error standard of review. Furthermore, the record on appeal does not reveal that any demand for trial was ever made and refused. “[A] defendant’s failure to take affirmative action seeking a speedy trial constitutes a waiver of that right.” State v. Harper, 473 S.W.2d 419, 424 (Mo. banc 1971); State v. Horn, 498 S.W.2d 771 (Mo.1973).

The defendant’s ninth point is that the trial court erred in not granting a continuance to enable him to obtain the materials he had prepared and needed to act as co-counsel at his trial. Prior to jury selection, a colloquy occurred between the defendant and the court during which the defendant requested that he be allowed to obtain certain materials, “All my copies of every writ that I have filed, my legal dictionary, all my research in relationship to the writs that I filed, and all of the letters, stipulations, and so forth that I obtained from my attorney, you know, everything that is required, even information in relationship to witnesses . . . ” Defendant said that these materials were in the possession of a certain person in Blue Springs and that the police department there had intentionally diverted his efforts to obtain them. While defendant did not, in terms, ask for a continuance, it is clear from his discussion with the trial court that one was being requested. “[A]n application for a continuance in a criminal case is addressed to the sound discretion of the trial court; and . an appellate court will not interfere, unless it clearly appears that such discretion has been abused.” State v. Le Beau, 306 S.W.2d 482, 486 (Mo.1957). A defendant must demonstrate that the denial of a continuance prejudiced his case. State v. Tash, 528 S.W.2d 775 (Mo.App.1975). Defendant admits that the burden of demonstrating prejudice is on him. He argues that the trial court’s denial prejudiced his case because he was acting as co-counsel and his papers and notes were needed to adequately assist in his defense. However, the defendant goes on to admit that his co-counsel performed adequately, arguing only that he would have been better able to assist counsel if he had had his notes and materials. “ ‘[I]t requires a very strong showing to induce the higher court to interfere, and it will disturb the action of the trial court only where a clear abuse of discretion is shown.’ ” State v. Thomas, 433 S.W.2d 537, 539 (Mo.1968); State v. Cukovich, 485 S.W.2d 16, 21-22 (Mo. banc 1972); State v. Lynch, 528 S.W.2d 454, 457 (Mo.App.1975). The materials were never described, their use was never made explicit, and, so far as the record shows, they were not unavailable. Trial counsel made no record to support the need for such materials or of his inability to defend based on the fact they were not available.

In his tenth point, defendant argues that the trial court committed prejudicial error in permitting the trial to proceed after it became known to the venireman on voir dire that he had been associated with a disturbance in the county jail during the week prior to trial. The basis for the knowledge of defendant’s involvement occurred because a venireman indicated he had read a newspaper account of the disturbance.

The difficulty with defendant’s position is that nowhere in the record does there appear to have been a motion for a mistrial or a motion to discharge the panel. Counsel for defendant asked the venireman whether he had read about this case, and then asked the court if it wanted challenges then or later, to which the court replied later. No objection of any kind was made. The record reveals that the juror was not among those chosen to serve.

Defendant’s argument is that he was prejudiced because other veniremen were informed by this colloquy that defendant had been a participant in a jail disturbance. Even assuming such an inference could be made from what was said, defendant did not seek the relief, the denial of which is now complained of. However, such relief would have properly been denied even if it had been requested. In State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65 (1938), the Supreme Court held that the defendant’s oral motion to discharge the panel was properly denied. On the day of the voir dire examination, newspaper articles appeared which recited that the defendant was beginning his second trial for an offense after the first trial resulted in a mistrial. Several veniremen returned from lunch with the papers and were questioned. Some had noticed the headline only, and only three had read the articles. Those three were excused. The court held, “No one of the twenty-four was shown to have formed or expressed an opinion as to defendant’s guilt or innocence or to have been in any way biased. The court properly refused to discharge the entire panel on the showing made. Goffstein, at 70.

Defendant’s reliance on State v. Raspberry, 452 S.W.2d 169 (Mo.1970), is misplaced. Defendant refers to that part of Raspberry holding that “The receipt by a juror of possibly prejudicial information during the trial of a felony case requires that the verdict be set aside unless the state affirmatively shows that the jury was not subject to improper influences.” Raspberry, at 174. Here we are dealing with an unobjected to incident during voir dire. “In this context the trial court not being requested to act until too late cannot be error. A trial court is under no duty to strike any venireman on its own motion.” State v. Gamache, 519 S.W.2d 34, 41 (Mo.App.1975).

The defendant’s eleventh point is that the court erred in failing to admonish the prosecutor, advise the jury to disregard his remarks or declare a mistrial when the prosecutor made an allegedly inflammatory remark not supported by the evidence during closing argument. The remark referred to was as follows:

PROSECUTOR: “If Primous was coming down the steps with both guns firing and after everybody . . .”
COUNSEL FOR DEFENDANT: “If the court please there is no evidence in this case that Primous came down the steps with two guns firing. I think it is highly inflammatory and prejudicial.”
THE COURT: “The jury will remember what the evidence is; that is their function. Proceed.”

Again, defendant seeks relief on appeal not requested at trial. There is no error where the defendant expressed apparent satisfaction with the action taken by the trial court. State v. Woolford, 545 S.W.2d 367, 372 (Mo.App.1976); State v. Platt, 525 S.W.2d 637 (Mo.App.1975); State v. Bibee, 496 S.W.2d 305 (Mo.App.1973). In State v. Jackson, 511 S.W.2d 771, 775 (Mo.1974), the court also dealt with prosecutorial misstatement of the evidence. The court held, “When defense counsel correctly objected that there was no evidence of that, the court stated: ‘The jury will be guided solely by the evidence it has heard from the stand.’ The trial court’s response was adequate in view of the objection and the absence of request for any further relief precludes the conclusion that such ruling affords the basis for a new trial.” Defendant’s point is without merit.

The final issue to be determined and one strongly urged by the defendant both in his brief and oral argument is that the court erred in not instructing on common law second degree felony murder.

Defendant explicates this point by asserting that the evidence would have supported such a submission and that even absent a request the court was under a duty to so instruct on a lesser included offense supported by the evidence under Section 546.-070(4), RSMo-1969, and Rule 26.02(6). Defendant further contends that State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972), controls and requires on the facts of this case a submission upon the theory of second degree common law felony murder.

Significantly, defendant does not assert that the submission by the trial court of conventional second degree murder was not supported by the evidence. Such a submission is patently proper on the record here presented.

The defendant’s contention thus is that the trial court was required to give two second degree instructions. Case law squarely raising this issue is rare since a defendant ordinarily does not want the jury to have instructions giving the jury a double opportunity to convict. The failure to so instruct on such lesser included offenses might very well be sustained on the ground that, if it be error, it is error favorable to the defendant of which he cannot complain. See State v. Brim, 339 S.W.2d 775 (Mo.1960), and State v. Smith, 365 S.W.2d 505, 508 (Mo.1963).

More persuasive grounds appear to deny effect to the contention made. There was evidence in this record that would have supported the conviction of defendant under a second degree instruction, a matter which defendant does not contest. A second degree murder instruction was required — and given — because it is the duty of the court to give instructions which cover “ ‘all the essential elements of an offense embraced within the charge,’ ” or, as put another way, the instructions must declare the law “ ‘applicable to every crime, or grade of crime, of which, under the evidence, the jury might convict the accused.’ ” State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 317-318 (1946). The trial court performed its duty by giving the second degree conventional instruction. An additional second degree instruction based on the theory of nonstatutory felony-murder in connection with resisting arrest was not necessary. The felony-murder rule does not make the underlying felony an element of the felony-murder (whether in the first or second degree), but rather provides a means of proving the requisite felonious intent. State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975). The essential elements of second degree murder, willfulness and premeditation, were submitted by the instruction given. See State v. Harley, 543 S.W.2d 288, 292-293 (Mo.App.1976), where there was evidence of both first degree conventional and first degree felony murder. The court held that, although the information charged first degree murder in the conventional form, the trial court did not err in instructing on first degree felony murder but not on first degree murder in conventional form. Implicit in this holding is the rule that the state and the court were not required to submit alternative theories.

In the instant case, the trial court has performed its duty to instruct upon the law of the case by offering an instruction proper under the evidence which would have permitted the jury to find the defendant guilty of second degree murder. The jury did, of course, find the defendant guilty of first degree murder under a felony murder instruction, a finding well supported in the evidence. The defendant characterizes the failure to give the common law felony murder instruction as “egregious” because ,the jury “had not opportunity to consider the lesser degree of felony murder.” What defendant’s argument thus demonstrates is that the prejudice claimed is not that the jury was not permitted to find him guilty of second degree murder but that defendant was not afforded a defensive posture that would have defeated the first degree felony conviction so amply justified on this record. When, as here, the only reason advanced for the giving of an instruction for a finding of guilt on a different theory is the tactical advantage to the defendant, then defendant must request the instruction. This rule will also serve to prevent the attack that would inevitably follow if the state offered and the trial court gave instructions on two theories of second degree murder. In such circumstances, a defendant might well argue that prejudice ensued from such alternative submissions.

Nor does Jasper compel a different result as defendant argues. The holding in Jasper is that there was no evidence of conventional form second degree murder and that, therefore, the jury was misdirected with respect to the offense. The court reversed on that ground and remanded the cause because the evidence clearly showed that a conviction of second degree murder could be sustained upon the evidence in that case if the instruction on common law felony murder was before the jury. The case does not hold that the giving of a second degree common law felony murder instruction is required in a situation where the record will support and the court has given a proper second degree instruction.

Judgment affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    PROTECTION MUTUAL INSURANCE COMPANY, Respondent, v. KANSAS CITY, Missouri, Appellant.
    No. KCD 27826.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11,1977.

      Aaron A. Wilson, City Atty., Carrol C. Kennett, Asst. City Atty., Kansas City, for appellant.
    Thomas J. Conway, Stephen G. Scholl, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

This case arises out of the tragic 1968 riots in Kansas City, Missouri. During the civil commotion of April 10 and 11, 1968, one drugstore of Parkview Gem, Inc. was fire bombed and another was vandalized. Those losses were covered by an insurance policy issued by Protection Mutual Insurance Company, and Protection Mutual paid Parkview Gem $125,088.75 under that coverage. Thereafter on October 4, 1968, Protection Mutual submitted claim of damage to the City of Kansas City under the Missouri Mob Violence Statute, Section 537.140 RSMo 1969, for the amount which it had paid to Parkview Gem less salvage recovered of $15,354.36. The claim was denied, and Protection Mutual filed suit on December 28, 1970.

The City thereupon filed a motion to dismiss on the ground that the petition failed to state a cause of action. The circuit court sustained the motion, and Protection Mutual filed appeal to the Missouri Supreme Court. On that appeal, the City defended exclusively on the single theory that the Mob Violence Statute applied only to first and second class, cities (as stated in the official revised statutes), whereas Kansas City is a constitutional charter city. The Supreme Court reversed in Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127 (Mo.1974) on the ground that the wording of the statute had been improperly changed in the revised statutes from that contained in the original legislation, and that the Mob Violence Statute did in fact apply to all cities of the State having population in excess of 25,000 inhabitants, regardless of classification.

On remand to the circuit court, the City filed another motion to dismiss alleging for the first time that Protection Mutual did not qualify as one of the classes of persons entitled to protection under the Mob Violence Statute and that the statute did not apply to Kansas City because the State had deprived it of control over the Kansas City Missouri Police Department. That motion was overruled, and the City repeated the same defenses in its answer. The case went to trial before a jury, resulting in a verdict of $110,890.68. Immediately prior to submission to the jury, the parties had stipulated that if the court determined as a matter of law that pretrial interest was proper, then such interest would be calculated and added to the jury verdict. The trial court did determine that pretrial interest was proper and pursuant to the stipulation calculated and added pretrial interest from the date of Protection Mutual’s demand upon the City, in the amount of $40,540.41, as part of the total judgment.

The City’s points of error on the present appeal may be summarized as follows: 1) that Protection Mutual has no standing to make claim; 2) that the City is not subject to the statute mentioned because the State has taken from the City the power to direct the police agency; 3) that the trial court erred in holding that the City is barred from reliance on the first two points just mentioned because of the prior Supreme Court decision in this case; 4) that the allowance of pre-judgment interest was improper; and 5) that the repeal of the Mob Violence Statute in 1975 by H.B. No. 398 terminated all rights of recovery thereunder and has discharged the City from any liability. If the City be correct in the last of those points, then the other assignments of error become immaterial. A discussion of this fifth point therefore calls for first attention.

I.

This point of error was not set forth in the City’s principal brief even though the repeal statute was finally approved by the Governor on June 17,1975, and even though the City’s principal brief in this court was not filed until September 19, 1975. Disregard of this point would therefore be justified because of failure to raise the point in proper and timely fashion. Inclusion of a point on appeal in a reply brief for the first time comes too late. Morris v. Reed, 510 S.W.2d 234 (Mo.App.1974). Nevertheless, because this case involves public rights of a major metropolis, we prefer not to dispose of this point on the procedural ground, and will therefore address the point on the merits.

The City argues that Protection Mutual’s claim depends entirely upon the Mob Violence Statute, that the repeal of that statute destroyed the cause of action, that all proceedings to enforce the claim must stop upon the effective date of the repeal if recovery has not been completely consummated, and that this result must follow even at the stage of an appeal after a judgment has been entered. That result could be true, however, only in the absence of a statutory clause saving pending causes of action.

A saving provision sufficient for the purposes of this case is provided in the companion statutory provisions §§ 1.170 and 1.180 RSMo 1969. The first of those statutes provides as follows:

“The repeal of any statutory provision does not affect any act done or right accrued or established in any proceeding, suit or prosecution, had or commenced in any civil case previous to the time when the repeal takes effect; but every such act, right and proceeding remains as valid and effectual as if the provisions so repealed had remained in force.”

The second of those statutes provides:

“No action or plea, pending at the time any statutory provisions are repealed, shall be affected by the repeal; but the same shall proceed, in all respects, as if the statutory provisions had not been repealed, except that all proceedings had after the repeal becomes effective are governed by procedural rules and laws then in effect, insofar as they are applicable.”

Whenever the legislature repeals an existing statute, it is considered to have done so in contemplation of the general saving clauses above quoted; and unless the legislature specifically makes the repeal retroactive, it ds presumed that those saving provisions are to be incorporated by reference with the same effect as if the repealing statute contained its own special saving clause. As stated in 2A Sands Sutherland Statutory Construction § 47.13:

“A legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing act indicates that it was not the legislative intention that particular rights and remedies should be saved. Although a legislature cannot bind future legislatures and each subsequent legislature can make its laws prevail over any preceding legislature, yet as all legislatures are presumed to act with a knowledge of existing law, it is presumed that they act with reference to any general saving statute. Thus, when a repeal is enacted unaccompanied by a provision saving existing rights which would be affected by its action, it is presumed that the legislature has acted with the intent to afford the protection of the general saving statute. In such cases the repealing act is to be considered as limited in its effect and operation in the same manner and to the same extent as if it contained the customary saving clause.”

Applying this principle are State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 199 S.W. 990 (banc 1917); Christine v. Luyties, 280 Mo. 416, 217 S.W. 55 (1920); Rogers v. Pacific Railroad, 35 Mo. 153 (1864); State v. Ross, 49 Mo. 416 (1872). The principle just mentioned is buttressed by the general presumption against retroactive effect of a statute. State ex rel. Wabash Ry. Co. v. Public Service Commission, 317 Mo. 172, 295 S.W. 86 (1927); Biedermann v. Mermod, Jaccard & King Jewelry Co., 210 Mo.App. 158, 242 S.W. 126 (1922).

Seeking to avoid the impact of the foregoing principles, the City argues strenuously that neither Parkview Gem nor its subrogee Protection Mutual has any “vested right” in a right of action against the City to recover for the mob violence. However, the wording of Sections 1.170 and 1.180 does not confine the operation of those sections to the preservation of “vested rights.” Moreover, the City has cited no Missouri case, and independent research discloses none, construing those sections in such a limited fashion. Still further, the narrow construction which the City seeks to give to these statutes is inconsistent with the interpretation by the Missouri Supreme Court of the underlying concepts in State ex rel. St.Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409 (Mo. banc 1974) where the court discussed with reference to the retroactivity of statutes the concepts of “procedural rights,” “substantive rights” and “vested rights.” In that connection the court remarked at 1. c. 411:

“It is best to keep in mind that the underlying repugnance to the retrospective application of laws is that an act or transaction, to which certain legal effects were ascribed, at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto. Merely to label certain consequences as substantive and others as procedural does not give sufficient consideration to this principle, and notions of justice and fair play in a particular case are always germane.”

The City lays its heaviest emphasis on the case of Shelton v. City of Chicago, 42 Ill.2d 468, 248 N.E.2d 121 (1969) which involved a suit to collect damages under an Illinois statute permitting damages against a municipality because of civil riot, and where subsequent to the riot in question the legislature repealed the statute giving rise to the cause of action. In that case, the Illinois court held that the repeal eliminated the cause of action and that this resulted despite another statute constituting a general saving clause. With respect to the effect of this latter statute, the Illinois Supreme Court at 1. c. 123 had this to say:

“If this statutory expression of legislative intention was before the court for the first time, the plaintiffs’ contention would not lack persuasiveness, for the statute refers to the effect of express repeals upon claims that have arisen. But we are not at liberty to disregard the earlier decisions of this court construing the Statutory Construction Act, for those decisions must have entered into the General Assembly’s understanding of the meaning of that Act.”

The Shelton opinion is not controlling here. The Illinois court felt itself bound by prior Illinois decisions construing the general saving statute. Our concern in this case is to apply Missouri, not Illinois, law. The Missouri decisions construing Sections 1.170 and 1.180, discussed above, are completely different and reflect a completely different philosophy than the Illinois decisions by which the court felt bound in the Shelton case.

The City also presses hard the decisions construing the effect of the Portal-to-Portal Act which amended the Federal Wage and Hour Law. Those cases hold generally that the amendment operated retroactively and prevented recovery even in cases pending on appeal after entry of judgment by a trial court. The City urges particularly for consideration the decision in Kemp v. Day & Zimmerman, 239 Iowa 829, 33 N.W.2d 569 (1948). Kemp and similar cases are readily distinguishable on the ground that the Portal-to-Portal Act disclosed on its face, as recognized by the court decisions in question, a specific intention to make that- statute retroactive.

The city also urges in support of its contention State ex rel. McKittrick v. Bair, 333 Mo. 1, 63 S.W.2d 64 (banc 1933), where a repealing statute was held effective to bar recovery in a case pending at the time of the repeal. However, that result is explained by the same reason that applies to the Portal-to-Portal cases, namely that the repealing statute itself evidenced a specific intention to make the repeal effective retroactively. Thus the Bair case states at l.c. 67: “With respect to the act here assailed, we do not yield to the presumption just stated [against retroactive application], since it is overwhelmed by the language of the act itself, which declares the existence of a situation, arising from lack of public revenue, so grave and exigent as to imperil the functioning of the state government itself in its essential branches, and implies that the remedy lies in changing the mode of collection, and thereby accelerating the collection, of delinquent taxes through the remission of the retarding penalties. This consideration impels the conclusion that in its fostering care for the transcendent public interest the Legislature intended that the act should suspend all provisions of law repugnant to the same or out of harmony therewith.”

Other cases cited by the City have all been considered, but none are inconsistent with the principles discussed above. Nothing would be gained by extending this opinion to include an individual discussion of each of those authorities.

II.

The City intermingles in its argument the three separate contentions identified earlier in this opinion as Points 1, 2 and 3 in our summary of the City’s assignments of error. Those points are in fact interrelated and can best be discussed together.

The principal defense made by the City in the trial court and here is that an insurer has no standing to press a claim under § 537.140, either as a subrogee or as an assignee. In support of this contention it relies upon Interstate Fire & Casualty Co. v. City of Milwaukee, 45 Wis.2d 331, 173 N.W.2d 187 (1970) which overruled a prior Wisconsin case, Northern Assur. Co. v. City of Milwaukee, 227 Wis. 124, 277 N.W. 149 (1938) which had held that the insurer could recover as subrogee under the Wisconsin Mob Violence Act. The City also relies upon American Ins. Co. v. City of Milwaukee, 51 Wis.2d 346, 187 N.W.2d 142 (1971) which extended the doctrine of the Interstate case to cover also the situation where the insurer took an express assignment of rights from its insured. The City cites also A. & B. Auto Stores of Jones St., Inc. v. City of Newark, 59 N.J. 5, 279 A.2d 693 (1971) which followed the Interstate decision. Not cited by the City but also following Interstate by a divided vote is Wolf v. County of Allegheny, 3 Pa.Cmwlth. 27, 281 A.2d 82 (1971).

On the other hand, Protection Mutual counters with the argument that those decisions were all result-oriented because they were decided at a time when thousands of live claims and hundreds of lawsuits were pending against the respective defendant cities, which threatened those municipalities with financial catastrophe. Protection Mutual points out that the same is not true in this case; the parties have stipulated that this case is one of only two live lawsuits pending in which a claim is being made for damage against Kansas City as a result of the April 1968 riot; the statute of limitations has completely run on all other claims; and the 1975 repeal of the Missouri Mob Violence Statute eliminates the prospect of any new similar litigation in the future. Protection Mutual urges that in the absence of compelling practical circumstances such as were present in the cases cited by the City, the rule announced in English cases which allow subrogation under such circum-

stances should be followed. Mason v. Sainsbury, 99 Eng Reprint 538 (K.B. 1782); Clark v. The Inhabitants of the Hundred of Blything, 107 Eng Reprint 378 (K.B. 1823).

A secondary defense advanced by the City is that when the General Assembly deprived the City of control over the Kansas City Police Department by the provisions of § 84.350 et seq. RSMo 1969, it impliedly relieved the City of any further obligation under § 537.140. Protection Mutual replies to this by saying that notwithstanding § 84.350 et seq., the City still retains sufficient power to protect against riots and that there was no implied repeal of § 537.140.

The trial court found it unnecessary to rule upon either of the City’s two defenses just mentioned, on the ground that both of those defenses are barred by res judicata. In this connection, Judge Clark stated:

“The opinion rendered January 14,1974 [504 S.W.2d 127] leaves no doubt as to the right of plaintiff to maintain this action and the duty of defendant City to respond. All that remained upon trial of the cause under the mandate was an evi-dentiary showing by plaintiff that the conditions set forth in Laws 1881, Section 2 were met. The standing of plaintiff to maintain the action and applicability of strict liability to defendant City under the statute are no longer issues remaining for litigation. As such is the thrust of each of the points asserted by defendant under the first of its arguments, they must be ruled against defendant.
“In this regard, it must be conceded that the court on appeal did not rule in this case on any issues except the question presented, i.e., the effect of publication by the revisors of the statutes of different language from that used by the legislature in the original enactment in 1881. The court file reflects that such was the only point raised by defendant in its motion to dismiss filed under Civil Rule 55.33 (Now included in Civil Rule 55.27) and the only point presented to the Supreme Court on appeal. It is apparent, however, that the contentions now advanced by defendant wherein the issues are the standing of plaintiff to maintain this action under the statute and the application of the statute to defendant are matters within the scope of defendant’s original motion to dismiss. That motion and the subsequent appeal afforded defendant the opportunity fully to litigate the sufficiency of plaintiff’s alleged cause of action as stated in the petition upon which this cause was subsequently tried. Having failed to raise these points at a time when, with reasonable diligence, they could have been asserted, these issues are no longer available under the doctrine of res judicata. A party is not permitted to assert defenses piecemeal but must offer each ground of contest when the issue is being or could be litigated.”

The City complains that the trial court incorrectly applied the doctrine of res judicata rather than the related doctrine of law of the case. The City argues that under the latter doctrine, the decision by the Supreme Court on the first appeal of this case bars only the issue that was actually decided and does not bar the additional defenses urged for the first time after remand.

Where, as occurred here, an appellate court reverses a dismissal of the cause of action and remands the case for trial, the appellate ruling strictly speaking does not constitute res judicata, but it does govern all further proceedings as the law of the case. Some disagreement exists among the cases as to the effect of the appellate decision as precluding questions which were not presented but which could have been presented to the appellate court. The general rule declares that all questions which could have been presented become barred, but there are some decisions to the contrary. 5 Am.Jur.2d Appeal and Error § 552, p. 196; 5B C.J.S. Appeal and Error § 1825, p. 197.

Missouri follows the general rule. As stated in Wilson v. Toliver, 305 S.W.2d 423, 428 (Mo.1957), “the decision on the former appeal will be deemed an adjudication, not only on all questions directly raised and passed on, but also of matters which arose prior to the first appeal and which might have been presented at that time but were not.” The same doctrine is expressed in Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951) and is followed in a most recent statement by a Missouri court on the subject in Langdon v. Koch, 435 S.W.2d 730, 733 (Mo.App.1968).

Under that doctrine, the defenses now sought to be asserted by the City have become barred. Its original motion to dismiss was filed February 25, 1971. The Interstate case had been decided by the Wisconsin Supreme Court more than a year earlier on January 9,1970. The doctrine of that case, which is now relied upon by the City, was available at the time the City filed its original motion to dismiss and could have been asserted as an alternative and additional ground for that motion. By the time Judge Stubbs ruled that motion on September 28, 1971, the American Ins. Co. case had also been decided on June 2, 1971, the A. & B. Auto Stores case had been decided on June 30,1971, and the Wolf case had been decided on August 10, 1971. Those cases, as well as the Interstate case were therefore all fully available to the City for citation to the Supreme Court as alternative and additional reasons to support Judge Stubbs’ ruling. Yet the City chose not to make any mention of these authorities in support of what is now its principal defense. Nor did it suggest in any way its secondary defense based on § 84.350 until the case was remanded to the Circuit Court, although there were no new facts or legal authority to support that defense which had not existed during the pendency of this case on the first appeal. It may very well be that the City deliberately refrained from presenting these defenses out of a strategic decision to delay all claimants as long as possible and to postpone to the last possible moment a final determination of its liability under the Mob Violence Statute. Whether that be true or not, the fact remains that the City had ample opportunity to raise these defenses prior to and on the first appeal of this case, and it should not be heard to complain about a declination to hear those matters now at this late date.

This result harmonizes with the spirit of modern pleadings and practice. In the interest of expediting trial for litigants and in order to economize the use of judicial time, the rules of procedure require motions generally to be filed all at one time rather than piecemeal. Rule 55.27. Here the City did file in 1971 a motion to dismiss in which the points which it now belatedly seeks to argue could have been included. See Collins v. Vernon, 512 S.W.2d 470, 474-475 (Mo.App.1974). What was held in Munson Line, Inc. v. Green, 6 F.R.D. 470 (S.D.N.Y. 1947) under somewhat similar circumstances is also appropriate here:

“It appears that in February, 1946, the defendants moved before Judge Conger under Rule 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted and that, at the same time, plaintiff moved for the same relief embraced in (3) of its present motion. In August Judge Conger rendered his opinion, 6 F.R.D. 14, dismissing the second and third causes of action, sustaining the first cause of action and denying plaintiff’s motion. Defendants now ask for summary judgment dismissing this first cause of action.
* * * * * *
“I must accept [Judge Conger’s] decision as the law of the case.
* * *c * * s£
“Defendants . . . say that the questions presented by their motion were not raised or decided upon their previous motion before Judge Conger. In my view, these question could and should have been presented then, for they arise upon the face of the complaint.
* * * * * ¡J:
“The grounds for dismissal now urged could have been urged on the previous motion to dismiss. In my opinion on a motion to dismiss for insufficiency all the reasons for dismissal should be presented and any not presented should be treated as having been waived and not available on a later motion for summary judgment. Although I discover no case directly in point and although the situation is not directly covered by the Rules, it is certainly within their spirit, for they were ‘designed to encourage the consolidation of motions and to discourage the dilatory device of making them in series’

III.

The City’s final contention, a valid one, is that the trial court erred in allowing pretrial interest. The City relies essentially upon the general rule that interest cannot be allowed as part of the damages if the basic damages are unliquidated in nature. That historically has been the conventional rule and is still stated to be the general rule in Missouri. St. Louis Housing Authority v. Magafas, 324 S.W.2d 697 (Mo.1959); Cannon v. Bingman, 383 S.W.2d 169 (Mo.App.1964); General Insurance Co. of Amer. v. Hercules Construction Co., 385 F.2d 13, l.c. 25 (8th Cir. 1967).

Protection Mutual counters with the citation of authorities stating that the modern tendency is to allow interest as part of the damages whenever justice and equity so requires, and it recites many types of legal situations in which interest has been allowed by the Missouri courts even though the basic damages are unliquidated in nature. Cases of this character include suits to recover in quantum meruit, conversion, condemnation, and fraud and deceit. The present case does not fall within any of those classes. Rather this case seems to fit more properly within the Missouri rule that interest will not be allowed on actions ex delicto where no pecuniary benefit could accrue to the defendant by reason of the injury. Gerst v. City of St. Louis, 185 Mo. 191, 84 S.W. 34 (1904); Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267 (1936).

Recovery under the Missouri Mob Violence Act is sui generis. That right was created by statute, and whether interest should be included as recoverable damages should depend on the legislative intention. That intention may be gleaned by a comparison of § 537.140, under which this suit is brought, with the companion § 537.150. The latter section provides that any city paying the value of property destroyed by riot may recover the amount so paid “with 10% added and interest and costs” from the person or persons who engaged in or who abetted riot. On the other hand, § 537.140, which created the cause of action against the City itself, was wholly silent with respect to the collection of anything beyond the simple value of the property destroyed. Because of the contrast between these two sections, it must be inferred that the legislature did not intend the recovery of interest against the City.

The judgment will therefore be modified to delete the allowance of pretrial interest; as so modified, it is affirmed.

All concur.

      . It is to be noted that the New Jersey Supreme Court in A. & B. Auto Stores of Jones St., Inc. v. City of Newark, 59 N.J. 5, 279 A.2d 693, 1. c. 702 (1971), declined to apply Shelton and instead held that a 1968 amendment to the New Jersey riot statute was effective prospectively only.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Millard L. SWENSON, Defendant-Appellant.
    No. KCD 28391.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11,1977.

      Robert G. Duncan, William E. Shull, Duncan & Russell, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a conviction by jury of two counts of kidnapping and two counts of sodomy. The jury imposed sentences of 10 years on each of the counts of kidnapping and sentences of 300 years on each of the counts of sodomy. Defendant raises an issue concerning the prosecutor’s closing argument and the prosecutor’s use of an exhibit. Judgment is affirmed.

The defendant does not challenge the sufficiency of the evidence to support the conviction and a detailed recital of the facts of this case is not required in view of the opinions in State v. Dayton, 535 S.W.2d 469 (Mo.App.1976), and State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). Our reported opinions deal with the convictions of accomplices in the instant case and the statement of facts in those opinions recites substantially the evidence upon which this conviction rests. As necessary to a discussion of the points raised, the evidence will be reviewed upon the record in this case.

The defendant’s first claim is that the prosecutor’s argument was inflammatory and prejudicial under the plain error rule and justifies a reversal. No objection was made to the argument, and the standard of review of this contention is to determine whether or not there was plain error constituting an impairment of substantial rights and manifest injustice under Rule 27.20(c). The complained of argument arose as the prosecutor introduced his argument of the facts produced in evidence as to the guilt of defendant. Thus, the essential issue becomes a dual one — were the expressions of the prosecutor reasonably related to the issues before the jury and based upon record evidence and legitimate inferences?

The boys who were victims were seven and eleven at the time of the offenses. The jury, of course, must perforce have relied upon the credibility of these two young boys in reaching the verdicts. Under the facts of this case, this defendant was not shown to have participated physically in all of the acts charged. The gravamen of one of the offenses was that he was present and participated in the offense by acting in concert, aiding and encouraging the accomplices in the serious offense shown in the evidence.

Thus, the jury was confronted with the issue of the credibility of the young witnesses and the issue of the extent of the defendant’s participation in the acts of the accomplices. The complained of argument must then be tested in the light of those issues and this record.

In the course of his closing argument, the prosecutor stated that the affair was “sordid;” that the matter was “distasteful;” that the boys had to relive the experience countless times testifying; that the boys testified in spite of the “terrors” and “horror” of the experience; that the boys were “treated worse than animals;” that the defendant deserves a “worse jolt” than he gave the boys with the cattle prod; that the defendant should receive a sentence he will “never get out of jail for;” that the men tortured the boys; that the boys will bear psychological scars from the experience; that the jury should consider the pity the defendant showed the boys. It is established in Missouri that the trial court has discretion in permitting or rejecting closing argument by counsel to a jury; abuse of that discretion must be shown before a trial court will be convicted of error for allowing improper argument by counsel. State v. Wright, 515 S.W.2d 421 (Mo. banc 1974); State v. Jewell, 473 S.W.2d 734 (Mo.1971).

The prosecutor has the duty to insure a fair trial for each defendant. Because the position of prosecuting attorney is a quasi-judicial one, the prosecutor should not attempt to inflame the passions or prejudices of the jury against the defendant. An argument to the jury should not invoke personal epithets against a defendant; speculate to the jury about future crimes a defendant might commit, or strike fear of the defendant in the jury. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (Banc 1947); State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973); State v. Harris, 351 S.W.2d 713 (Mo.1961).

By the same token, however, a prosecutor has wide latitude in argument. He may argue all the evidence and any reasonable inferences drawn therefrom. State v. Bolden, 525 S.W.2d 625 (Mo.App.1975); State v. Jackson, 499 S.W.2d 467 (Mo.1973).

Testing the argument in this case against those principles and in the context of the issues presented on this appeal, it is apparent that it is reasonably related to the issues. The argument as to the impact of the events on the boys is directly related to their credibility. The nature of the acts of defendant and his accomplices bears directly on the issue of the defendant’s aiding and abetting rather than occupying the role of a bystander. The defendant also asserts that the argument was inflammatory and prejudicial because of the nature of the adjective description of the record by the State in its argument. It is difficult to read the opinions written in this case heretofore, let alone the full record of the testimony here, without feeling that it is almost impossible for a prosecutor to deal with this fact situation without referring to it in adjectives such as those that were used. A statement of the actual facts of the occurrence impresses one more than the adjectives used, and it is difficult to see how the characterization of the record is more harmful than the record itself.

Continuing the argument, the prosecutor moved to the issue of the punishment and asserted that the defendant should receive a worse jolt than he gave the boys with the cattle prod, that the defendant should receive a sentence that would never permit him to get out of jail, that the defendant and the other participants tortured the boys and that the jury should consider the attitude shown the boys in determining the punishment to be afforded. It was a strong and effective argument on this record for the punishment of this defendant in the light of the evidence shown in the record, but it was factually based and within the language of the argument permitted to a prosecutor in asserting the punishment issues.

It is well established that a prosecutor has wide latitude in arguing to a jury the necessity for strict law enforcement and the deterrent effect of a severe sentence. State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972); State v. Jackson, 477 S.W.2d 47 (Mo.1972); State v. Raspberry, 452 S.W.2d 169 (Mo.1970).

Other comments of which the defendant complains regarding sentencing the defendant were given in the State’s rebuttal to the defendant’s closing argument. The defendant complains about the prosecutor’s comment, “It’s four men against two little boys.” However, this comment is clearly a retaliation to the defendant’s statement in closing argument:

“Is that necessary when we have a staff of thirty-five Assistant Prosecuting Attorneys and Dick Bell [the defense counsel] stands here by himself to resort to that? Is that necessary when they have a staff of fine investigators?”

That it is proper for a prosecutor to retaliate to an issue raised by a defendant’s closing argument even if the prosecutor’s comment would otherwise be improper is without question. State v. Whiteaker, 499 S.W.2d 412 (Mo.1973), cert. denied, 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565 (1974); State v. Johnson, 485 S.W.2d 106 (Mo.1972); State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972). It was proper for the prosecutor to retaliate to the defense counsel’s argument that the prosecuting attorney had a staff of thirty-five lawyers and a staff of fine investigators while defense counsel handled the case alone by pointing out that in the case being tried the crime was committed by four men against two small boys.

The comments by the prosecutor indicating that the jury should impose a heavy sentence on the defendant should be considered in context. The prosecutor followed up these statements immediately with the comment:

“I don’t want to see this crime happen again. I want the word to go out through this jury, and you’ll never have a better opportunity to speak out on this matter, that if anybody ever does this in this community they can know what to expect, and certainly when you take everything into consideration, a sentence of three hundred years for those two crimes against those two little boys is a spit in the bucket.”

Because the thrust in this point of the State’s rebuttal in which these alleged prejudicial comments occurred was that a stiff sentence would deter the defendant as well as others from committing a similar crime, the comments were proper. State v. Pruitt, supra; State v. Jackson, supra. No passion or prejudice was engendered in the jury by reminding them to consider the justice and pity the men showed the boys after the defendant in closing argument had asked the jury for justice and pity for himself. There is no error in the State’s argument in the context of this case.

The defendant’s second point concerns the use of an artificial penis marked as an exhibit. The thrust of the defendant’s point is that the court should not have allowed the prosecutor to mention the exhibit in his opening argument nor display it to the jury because the prosecutor never introduced it into evidence and the exhibit was not properly admissible. However, the exhibit was in evidence just as if it had been formally introduced despite the lack of introduction by the prosecution because the exhibit was marked and used by both the prosecution and the defense before the jury during the course of the trial. State v. Taylor, 433 S.W.2d 273 (Mo.1968); State v. Wilson, 248 S.W.2d 857 (Mo.1952).

Further, demonstrative evidence which tends to establish any fact in issue or throw light on the controversy and aid the jury in any way in arriving at a correct verdict is admissible. If demonstrative evidence is admissible within this rule, then it should not be rejected because it tends to arouse the prejudice of the jury. The only discretion a trial court has to deny admission of demonstrative evidence is if it is both irrelevant to a material issue and also inflammatory or prejudicial. State v. Moore, 303 S.W.2d 60 (Mo. banc 1957); State v. Edwards, 435 S.W.2d 1, 7 (Mo.1968); State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 83 (1933); State v. Mucie, 448 S.W.2d 879 (Mo.1970), cert. denied, 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970).

The exhibit is admissible even though the defendant was not charged with the crime which was perpetrated by the use of the exhibit against D— E— because the defendant was present while that crime occurred and because the use of the exhibit against D— E— was part “of a continuous occurrence intimately connected with the crime for which the defendant is being tried.” State v. Griffin, 497 S.W.2d 133 (Mo.1973); State v. Torrence, 519 S.W.2d 360 (Mo.App.1975); State v. Garner, 530 S.W.2d 420 (Mo.App.1975). In Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975), two knives wielded by persons present at the scene of the crime but not by defendant were held admissible exhibits because the conduct of those third parties wielding the knives was so closely connected with the crime for which the defendant was charged that that conduct constituted part of the res gestae. State v. Cruts, 288 Mo. 107, 231 S.W. 602 (1921). In the instant case, the actual sodomy by the defendant occurred immediately prior to the assault with the exhibit, which assault the men even discussed among themselves before it occurred.

The defendant intimates in his brief that the exhibit was not admissible because the defendant did not establish the chain of control or custody by the State. However, when the victim of a crime identifies an exhibit as having been used in the perpetration of that crime, it is not necessary for the prosecution to establish a chain of control or possession. State v. Granberry, supra; State v. Coleman, 441 S.W.2d 46 (Mo.1969); State v. Rodriguez, 519 S.W.2d 565 (Mo.App.1975). The purpose of establishing a chain of control or possession is only to prevent tampering, alteration or substitution of an exhibit. State v. Rose, 428 S.W.2d 737 (Mo.1968); State v. Lemon, 504 S.W.2d 676, 684 (Mo.App.1973); State v. Rogers, 523 S.W.2d 344, 348 (Mo.App.1975).

State v. Hicks, 535 S.W.2d 308 (Mo.App.1976); State v. Stillman, 310 S.W.2d 886 (Mo.1958), and State v. Fenton, 499 S.W.2d 813, 815 (Mo.App.1973), cases cited by the defendant, hold that a prosecutor in opening argument should not mention evidence which is plainly inadmissible upon objection or for which a witness is unavailable to testify. In those cases, either evidence mentioned by the prosecutor in opening argument was clearly inadmissible or a witness was not available during the trial to corroborate the prosecutor’s statement in opening argument. In the instant case, the exhibit mentioned in the prosecutor’s opening argument, was, as shown above, introduced into evidence and was also properly admissible based upon the positive identification by the victim of the exhibit as the instrument, and the victim’s description of the use of that instrument against him in an assault so closely connected with the crime with which the defendant was charged.

State v. Mayfield, 506 S.W.2d 363 (Mo.1974), State v. Hicks, supra, and State v. Selle, 367 S.W.2d 522 (Mo.1963), cited by defendant, are readily distinguishable on the facts since issues of proper foundation, not present here, controlled the rulings.

The judgment is affirmed.

All concur.