author: McMILLIAN, Judge.

text:
    Leo Joseph WHITE, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Defendant-Appellant.
    No. 36827.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 4, 1976.
    Motion for Rehearing or to Modify Opinion or Transfer Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Gerald D. Morris, St. Louis, for defendant-appellant.
    Jo B. Gardner, Inc., Monett, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal from a jury verdict and judgment of $45,000 in favor of plaintiff-respondent in a suit under the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 (hereinafter referred to as FELA). For the reasons discussed below, we reverse and remand for a new trial.

The plaintiff herein is Leo J. White, a resident of Monett, Missouri. He started to work for the defendant, St. Louis-San Francisco Railway Company (hereinafter referred to as Frisco) in 1923. He was promoted to engineer in 1943. He worked as an engineer until November 25, 1953, when he was held out of service by Frisco’s medical director because it was discovered that he had syphilis in an advanced stage. He returned to work in 1965 and worked for three (3) years operating switch engines in the Frisco yards at Ft. Smith, Arkansas. Thereafter, during his last three years of active service with the railroad, he was an engineer on defendant’s local trains between Monett, Missouri and Tulsa, Oklahoma. On May 24, 1971, at approximately sixty-seven (67) years of age, he ceased active service for Frisco. At that time, he was senior engineer in his division of the railroad. The Union Agreement would have forced his retirement at age seventy (70).

The Monett-Tulsa run is 144 miles long. There are upwards of thirty (30) points along the line that require switching work by the local train. During switching operations, the engineer has to repeatedly lean out the window to see signals from the ground. A trip time of fourteen hours is not unusual. Engineers on this run work six days a week.

To power the local trains on the Monett-Tulsa run, defendant used locomotives of the type known as GP-7’s, general purpose diesel locomotives suitable for either switching or road work. Like all railroad locomotives, the GP-7’s are constructed so that the engineer’s seat, controls and working area are located on the right-hand side of the cab. The distance between the engineer’s seat and the bulkhead immediately to the right of the engineer is five (5) inches. Built into this bulkhead is a window frame. The bottom part of the window frame has a steel channel along which two windowpanes slide horizontally in opposite directions. This steel channel is about six feet long, two inches high, and one-half inch wide. It is so situated that, when an engineer leans out the window, his side and back come in contact with its inside edge, which is mould-ed into the shape of a half circle about one-fourth to one-half inch in diameter.

When the GP-7 locomotives were delivered to defendant in the early 50’s, each was equipped with a pad, or armrest, made of two-inch foam rubber covered with imitation leather. These pads were fixed by hinges to the inside of the bulkhead. So long as the windows were open, these pads could be laid across the rounded portion of the channel for the full length of the window frame. With this type pad in place, when an engineer leaned out the window, his body contacted only the padding and did not come in contact with the rounded steel channel or any portion of the bottom of the window frame. When not in use, the pad could be folded back so that it hung by the hinges inside the cab and the window could be closed. This type pad was referred to throughout the trial as the “foldover” or “flopover” pad.

In about 1960, locomotive manufacturers discontinued the use of the “flopover” pad and replaced it with what was referred to during the trial as the “rigid” type pad. These were long pads, fixed permanently to the outside of the cab bulkhead approximately even with the bottom of the window frame, which did not interfere with the opening and closing of the window. They formed a more or less padded armrest for the engineer as he leaned out the window— but did not afford any direct protection at the point where the engineer’s body contacted the rounded window channel as he leaned out.

As the original “flopover” pads on the GP-7’s wore out and became unusable, defendant replaced them with the new “rigid” type pads then being manufactured.

As the changeover of pads took place, a number of engineers operating GP-7’s found that prolonged exposure to the moulded steel window channel resulted in discomfort. Some of them, including plaintiff, complained of inadequate padding on work forms they were required to fill out at the end of each run. Some, including plaintiff, went so far as to take the matter up with the local chairman of their union, who, in turn, took the matter up with the appropriate officials of the railroad. Although these complaints referred only to discomfort, not harm or injury, all of the locomotives which were called to defendant’s attention were fixed. However, engineers were not always assigned to the same locomotive; and, if the assigned locomotive was not equipped with a “flopover” pad, the engineer could not refuse to go on the run.

Most of the GP-7 engineers whose runs demanded that they lean out the window a considerable amount of time coped with the situation by obtaining and carrying their own custom made pads, which they placed across the channel and window frame. These shared one drawback with the “flop-over” type; they had to be moved before the window could be closed. Although the railroad issued no orders that the engineers had to use supplemental custom pads, it provided such a pad to any engineer who wanted one. Plaintiff had discussed getting such a pad with the foreman at Tulsa but never got it. Plaintiff, however, had tried a supplemental pad of his own making and discontinued its use because he found it inconvenient.

There is no evidence that, at any time before he left active service, plaintiff made it known to the railroad that he thought he was injured. The fact, however, that plaintiff was walking with the aid of a cane came to the attention of his supervisor, Mr. Richardson. Since he was concerned about the safety of plaintiff’s operating locomotives, if he found it necessary to walk with a cane, Mr. Richardson set into motion the administrative procedure which resulted in plaintiff’s physical examination. Plaintiff was notified on May 24, 1971, to report to the Glass-Nelson Clinic, which handled Frisco’s medical problems in the Tulsa area, for a physical examination.

Meanwhile, on that same day, May 24, 1971, plaintiff independently came to the conclusion that he was disabled by his back problem. His decision was brought about by the circumstance that his last six days of service, the last three round trips between Monett and Tulsa, were in GP-7 locomotives which had either inadequate padding or no padding at all.

On May 25, 1971, plaintiff presented himself at the clinic and was examined by Dr. Phelps. The examination revealed that plaintiff’s musculo-skeletal system was more or less normal but that he had high blood pressure. This was reported to Frisco’s Chief Surgeon, Dr. Hollo, who advised plaintiff to see a private physician and recommended that he be placed on a 90-day leave of absence because of his high blood pressure. This was done. Plaintiff saw Dr. Hollo in person in St. Louis on September 23,1971, at which time he complained about the steel window channel and his back. This was the first time that plaintiff advised defendant that he had a back injury. Dr. Hollo recommended another 90-day leave so that plaintiff could get treatment for his high blood pressure and diabetes.

On October 11,1971, plaintiff started seeing Dr. Murphy, D.O., of Monett. Dr. Murphy diagnosed plaintiff as having three distinct health problems: anemia, a thoracic-lumbar-rib strain, and nephrosis, a mild irritation of the kidneys. In October, 1971, Dr. Murphy advised Dr. Hollo by letter that plaintiff was able to return to work. However, Dr. Murphy never responded to Dr. Hollo’s requests for additional information.

Finally, in December of 1971, Dr. Hollo received an unsolicited report from a Dr. Glass in Monett, who had no connection with either Frisco or the Glass-Nelson Clinic, which indicated that plaintiff was on three kinds of medicine for high blood pressure. Since this medicine could cause side effects making it unsafe for plaintiff to operate a locomotive, he was continued on leave of absence.

On June 11, 1973, plaintiff filed suit against Frisco under the provisions of the FELA. The petition alleged that plaintiff had been permanently disabled by defendant’s negligence in failing to furnish a reasonably safe place to work. Specifically, plaintiff claimed that his back, kidneys and surrounding areas were injured because he had to lean out the cab window in such a way that said areas were subjected to repeated jarring without adequate protective padding. He claimed that he had been damaged in the amount of $250,000.

Happenings at the trial or other particular aspects of the evidence will be mentioned hereafter under the points to which they pertain.

On appeal, defendant raises five points. First, it contends that plaintiff failed to make a case for the jury as to negligence because the harm was not foreseeable and, therefore, that the trial court erred in failing to sustain defendant’s motion for a directed verdict at the close of all the evidence. Second, it contends that the trial court erred in holding as a matter of law there was no issue of contributory negligence and thus refusing Instructions A and B which submitted the issues of contributory negligence and mitigation of damages. Third, it contends that the trial court erred in verdict-directing Instruction MAI 24.01, instead of MAI 17.01; or, if MAI 24.01 was the correct Instruction, its submission was erroneous because its form was altered so as to set apart and emphasize the alleged negligent act and because it failed to include the paragraph submitting foreseeability to the jury. Fourth, it contends that statements of plaintiffs counsel in opening and closing argument that defendant thought more of machines than men and that plaintiff was not getting a pension and had been zilched were prejudicial; and, therefore, that the court erred in overruling defendant’s objections and requests for a mistrial. Fifth, it contends that the verdict is so excessive as to necessitate a new trial or, in the alternative, the verdict is not in accord with the rule of uniformity so that a remittitur should be ordered.

Although we find that plaintiff did make a case for the jury on negligence, we reverse on the contributory negligence issue and remand for a new trial. The other issues need not be resolved as they may not recur at the new trial. McCaffrey v. Estate of Clarence Brennan, 533 S.W.2d 264, 1976 (Mo.App.).

Defendant’s first contention is that, at the close of plaintiff’s evidence, the trial court should have granted defendant’s motion for a directed verdict. Defendant asserts that plaintiff did not make a case in negligence because he failed to show by substantial evidence or reasonable inferences that defendant, in the exercise of ordinary care, should have known that the absence of padding was a condition which was likely to cause injury to plaintiff. In short, defendant asks that the issue be taken from the jury. The intention of Congress, however, is that railroad employees have the right to a jury determination of their cases under the FELA. Rogers v. Missouri Pacific RR Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Further, little evidence is necessary to create a jury question on negligence. Stinson v. Atlantic Coast Line RR Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93 (1957); Wilmoth v. Chicago, Rock Island and Pacific RR Co., 486 S.W.2d 631 (Mo. 1972). Only when there is a complete absence of facts to support negligence can the case be taken from the jury. Adams v. Atchison, Topeka and Santa Fe Ry. Co., 280 S.W.2d 84 (Mo.1955). Judicial review is confined to the reasonableness of the jury finding; the court cannot reweigh the evidence merely because the jury could have drawn different inferences or because the court feels that other results are more reasonable. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959); Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944).

Liability under the FELA is founded on the concept of negligence as that term has been defined by the Federal courts. Copeland v. St. Louis-San Francisco Ry. Co., 291 F.2d 119 (10th Cir. 1961). The federal decisions have held that foreseeability of harm is an essential ingredient of FELA negligence. E. g., Brady v. Southern Ry. Co., 320 U.S. 476, 483, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Padgett v. Southern Ry. Co., 396 F.2d 303, 306 (6th Cir. 1968) and Wolfe v. Henwood, 162 F.2d 998, 100 (8th Cir. 1947). FELA negligence exists where the employer knew or should have known of the possibility of harm. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). A protest or request by the employee may be evidence of the employer’s negligence. Wilmoth v. Chicago, Rock Island and Pacific RR Co., supra. Foreseeability is for the jury. Hughes v. Terminal Railroad Ass’n of St. Louis, 265 S.W.2d 273 (Mo. banc 1954).

With these standards in mind, we move to the question of whether there was any substantial evidence in the record from which the jury could find that negligence by defendant played any part in producing plaintiff’s injuries. The record is replete with evidence of protests by plaintiff and others about the lack of padding. This evidence would support a finding that defendant knew or should have known of the possibility of harm to plaintiff. Therefore, this evidence is sufficient to make a jury case on foreseeability. True, these protests referred to discomfort, not to harm or injury; but it is not our province to search the record for conflicting evidence in order to take the case away from the jury. Tennant v. Peoria & Pekin Union Ry. Co., supra. The jury presumably weighed the conflicting evidence, and, on review, the jury’s finding is reasonable. Consequently, we hold that the trial court properly denied defendant’s motion for a directed verdict.

Defendant’s second contention is that defendant made a submissible case on contributory negligence. Although assumption of risk and contributory negligence have been completely abolished as defenses in FELA actions, 45 U.S.C.A. § 54, an employee’s own negligence may diminish the amount of his recovery in proportion to the amount of his negligence, 45 U.S.C.A. § 53. Tiller v. Atlantic Coast Line RR Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943). An employee is contributorily negligent when he fails to use those precautions for his own safety, which ordinary prudence requires. Schlemmer v. Buffalo, Rochester and Pittsburgh Ry. Co., 220 U.S. 590, 596, 31 S.Ct. 561, 55 L.Ed. 596 (1911) and Murray v. New York, New Haven & Hartford RR Co., 255 F.2d 42, 44 (2d Cir. 1958). The same standards as to proof and causation apply to both FELA plaintiffs and defendants. Plaintiff has the burden of proof in his cause, while the defendant has the burden of proof on plaintiff’s contributory negligence. As to causation, plaintiff makes a jury case if his proof justifies, with reason, the conclusion that employer negligence played any part, even the slightest, in producing his injury. 45 U.S.C.A. § 51; Rogers v. Missouri Pacific RR Co., supra. Likewise, if negligence on the part of plaintiff contributed in any way to causing his injury, a submissible jury case of mitigating negligence is made. Ganotis v. New York Central RR Co., 342 F.2d 767 (6th Cir. 1965). Where the evidence is such that reasonable minds could draw different conclusions as to negligence and causation, the issues should be submitted to a jury. Wilkerson v. McCarthy, 336 U.S. 53, 63, 69 S.Ct. 413, 93 L.Ed. 497 (1949).

There is no contributory negligence as a matter of law where an innocent cause concurs with the defendant’s negligence in causing an injury. For example, in Farmer v. Pennsylvania RR Co., 311 F.Supp. 1074 (W.D.Pa.1970), where plaintiff had lung damage from breathing chemical mist, the court properly refused an instruction that the jury should apportion the damages between defendant’s negligence and plaintiff’s preexisting tubercular condition.

At the opposite extreme, . .if the employer provides safety precautions of which the employee has failed to take advantage, then that employee is contributorily negligent as a matter of law.” Del Raso v. Elgin, Joliet & Eastern Ry. Co., 84 Ill. App.2d 344, 228 N.E.2d 470 (1967). For example, in Crowley v. Elgin, Joliet & Eastern RR Co., 1 Ill.App.2d 481, 117 N.E.2d 843 (1954), the employee, who knew that his dermatitis was caused by contact with petroleum, returned to work against doctor’s orders and failed to use the creams and ointments provided by the employer specifically for protection against such dermatitis, was contributorily negligent as a matter of law.

Clearly, the evidence in this case does not meet either of the above standards. We are not dealing with an innocent preexisting condition as in Farmer, supra; there is evidence which could indicate that plaintiff failed to take the reasonable precaution, taken by others, of procuring a personal pad. Unlike Del Raso, supra, plaintiff knew that such pads existed, such pads were not prohibitively expensive, and there is conflicting evidence on whether defendant furnished them. On the other hand, even if defendant would have furnished a personal pad on request, Crowley, supra, is distinguishable. There the employer not only furnished the means for protection but also went to great lengths to publicize their availability, so that plaintiff’s failure to use them was undoubtedly intentional. Here, what precautions plaintiff should have taken, for his own safety, are in dispute.

However, defendant is not contending that plaintiff was contributorily negligent as a matter of law. Defendant claims only that it made a submissible case. Since the evidence is such that reasonable minds could differ, the issue should go to the jury. Therefore, we reverse and remand for a new trial.

Regarding defendant’s third point, we do not reach the prejudicial effect of the instruction as given. However, we do note in passing that MAI 24.01 was the verdict-directing instruction, which is mandatory in FELA cases. MAI 17.01 submits the common-law standard of causation, whereas MAI 24.01 incorporates the more liberal statutory standard. However, unless there is a violation of a safety rule, the negligence instruction must require a finding of foreseeability. See Adams v. Atchison, Topeka & Santa Fe Ry. Co., supra, at 92; Hughes v. Terminal RR Ass’n of St. Louis, supra, at 280-281. This is especially significant since, as discussed under the first contention, this element is the crux of defendant’s case. Therefore, on retrial, as provided by the “Notes on Use,” the additional paragraph should be inserted submitting whether “defendant knew or by using ordinary care should have known of such condition, and that such condition was reasonably likely to cause substantial harm.”

Similarly, on defendant’s fourth point, we do not reach the prejudicial effect of these opening and closing arguments. However, on retrial, we caution plaintiff’s counsel to confine himself to relevant evidence, Gilmore v. Union Construction Co., 439 S.W.2d 763 (Mo.1969), and not to draw inferences from matters not in evidence, Reese v. Illinois Terminal RR Co., 273 S.W.2d 217 (Mo. 1954).

For the above reasons, judgment is reversed and the cause remanded for a new trial.

WEIER, P. J., and RENDLEN, J., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerome Cecil SMITH, Defendant-Appellant.
    No. 37154.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 18, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    C. Adelman-Adler, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Crim. Div., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his conviction for manslaughter and a sentence to 10 years imprisonment under the Second Offender Act. On appeal defendant’s only contention is that the trial court erred in failing to instruct on excusable homicide. We find no error and affirm the judgment.

This appeal is from the second trial of this case, as a conviction of the defendant for second degree murder was reversed and the cause remanded for new trial in State v. Smith, 518 S.W.2d 665 (Mo.App.1975), for the trial court’s failure to instruct the jury on manslaughter. The facts of the case are set forth extensively in State v. Smith, supra, and need be indited only briefly here.

Shortly before midnight on July 20, 1972, Lou Jones, the owner of a St. Louis liquor store, was shot and killed by the defendant. An employee of the store, Norman Anderson, testified that the defendant entered the store, pointed a pistol at the employee and stated, “this is it” in an apparent reference of intent to commit robbery. According to Anderson, the defendant ordered Lou Jones, who was nearby, to stand so that he could be searched for a weapon. While being patted down, Mr. Jones grabbed at the defendant’s arm and drew his own weapon. Anderson testified that while he was in the process of beating a hasty retreat to obtain a gun located at the rear of the store, he observed defendant and Jones “tussling” and heard an exchange of gun shots between the two: “I saw Lou [Jones]. I heard some shots and that’s when Lou fell, you know, dropped one of his arms and just stood there and they [Jones and defendant] just started shooting.” Jones fell dead from a gunshot wound, and defendant ran from the store. Defendant, who was wounded from gun fire from Mr. Jones, was picked up by police a short distance from the store while trying to hail a taxicab. Police took defendant’s gun from him and noted that it had five spent cartridges in the cylinder.

The defendant’s testimony was that in his employment as a security guard in the neighborhood of Mr. Jones’ liquor store he was permitted to drink on the job so long as he removed his security job accouterments before making a purchase of liquor; that although he was not licensed to carry a pistol he had been told by his employer that it was all right to be armed while on duty. Defendant testified that on the night Mr. Jones was killed, he was on his security patrol and had removed the identifying objects of his security guard uniform preparatory to entering the liquor store to purchase some wine to drink while he was working. Defendant related that he had called to Mr. Jones to ask about some wine and had noted that Mr. Jones became nervous when he observed the handle of defendant’s pistol extending from defendant’s pants pocket. Defendant testified that Mr. Jones then produced a pistol and began firing at defendant; that to defend himself, defendant had returned the fire: “I fired some shots.” Defendant acknowledged that his gun contained five bullets, but he could not recall firing all of them.

The jury was instructed on second degree murder, manslaughter and justifiable homicide, and the jury found the defendant guilty of manslaughter.

On appeal, defendant contends that the jury should have been instructed on accidental death, even though no request was made for such an instruction and defendant’s motion for new trial contained no reference to the trial court’s failure to give such instruction. Defendant asserts that the trial court’s failure to instruct on accidental death constituted plain error requiring reversal.

We need not discuss whether plain error was committed by the lack of the accidental death instruction. We find that such an instruction was not called for under the facts and circumstances of this case.

Defendant argues that giving full effect to Norman Anderson’s testimony regarding the scuffle between Mr. Jones and defendant that it is conceivable that Mr. Jones was accidentally shot during the tussle; hence, an accidental death instruction was warranted. Defendant’s argument is absolutely without merit. There are two reasons for holding that no accidental death instruction should have been given: 1) Mr. Jones was killed during the commission of an illegal act; 2) there was no evidence of accident.

Norman Anderson testified that defendant displayed his weapon from the time he approached Anderson with “this is it” until the enfilade of gun fire subsided, leaving Mr. Jones the victim of defendant’s weapon. Anderson’s testimony with regard to the defendant’s display of his pistol was as follows:

“Q. (by Ms. Adelman-Adler) [defendant’s attorney] When you observed Mr. Jones grab or reach forward toward Mr. Smith, where did the defendant have his gun?
A. [Norman Anderson] In his hand.
Q. In his right hand? A. Yes.
* ⅜ ⅝ * ⅜ ⅝
Q. [by prosecuting attorney] From the time you saw the defendant for the first time with the gun in his hand — this was after you had made change, is that right? A. Yes.
Q. — until the time the first shot was fired, did the defendant ever put that gun back in his pocket?
A. No, he didn’t.
Q. And Lou [Jones] came walking up from where he had been sitting. He had the box in his hand, but he did not have a gun in his hand, did he?
A. The gun was in the box.
Q. The gun was in the box and he was carrying the box? A. Yes.
Q. When he got up to the gate, the defendant still had his gun in his hand, is that right?
A. Yes.
Q. At that point Lou was still holding the box with the gun in it, but he didn’t have a gun his [sic] his hand?
A. That’s right.”

The defendant relies on Mr. Anderson’s testimony regarding the scuffle to establish accident, but it is that testimony which is fatal to defendant’s argument of accident. According to Anderson, defendant was displaying his gun in an illegal manner and for an illegal purpose before, during and after the scuffle. We, of course, recognize that if the evidence supports an instruction on excusable homicide because of accident, such an instruction must be given as part of the law of the case. State v. Cook, 512 S.W.2d 907 (Mo.App.1974); State v. Moore, 499 S.W.2d 826 (Mo.App.1973). But it is axiomatic that an accidental killing does not constitute excusable homicide if the killing is perpetrated in the commission of an unlawful act, and in such case an accidental death instruction is not to be given. State v. Browning, 442 S.W.2d 55 (Mo. banc 1969); State v. Simon, 534 S.W.2d 839 (Mo.App.1976); State v. Cook, supra. Defendant relies on Anderson’s testimony to establish accidental death, but Anderson has defendant flourishing his pistol in an illegal manner and for an illegal purpose from the time defendant first announced “this is it” through his killing of Mr. Jones. Thus, defendant derives no benefit from Mr. Anderson’s testimony that the struggle between Mr. Jones and the defendant created a basis for an accidental death instruction.

The record is also devoid of any evidence of accidental death. The defendant contends that Norman Anderson’s testimony concerning the struggle between the defendant and Jones before the first shot was fired was sufficient to support his defense of accidental killing. The defendant urges that the mere fact that there was a struggle gives rise to the reasonable inference that the defendant’s gun discharged accidentally. Anderson only saw the “tussle” and did not actually see how the defendant’s gun was discharged. There was no evidence in the record demonstrating that the gun was discharged accidentally. Based on Anderson’s testimony, the jury would be forced to resort to speculation and conjecture in concluding that the defendant’s gun was fired by accident. Anderson’s testimony does not show, nor can it be reasonably inferred from his account as to what transpired, that the defendant’s gun discharged by accident. Certainly, defendant’s testimony does not establish accidental death, for his defense was self-defense, which is entirely inconsistent with accident. State v. Brown, 502 S.W.2d 295 (Mo.1973) cert. den. 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 562 (1974). Defendant acknowledges that he shot at Jones several times and apparently unloaded his five shot pistol shooting at Mr. Jones — scarcely accidental action. The defendant’s testimony clearly demonstrates that he fired his gun deliberately — not accidentally. We thus conclude that there was no evidence from Mr. Anderson that the shooting was accidental, and the fact that the shooting of Mr. Jones was the defendant’s deliberate act and no accident was firmly and conclusively established by the defendant’s own testimony. Where no evidence of accident exists — as in this case — no accidental death instruction is warranted. State v. Slaten, 252 S.W.2d 330 (Mo.1952); State v. Simon, supra; State v. Manley, 513 S.W.2d 703 (Mo.App.1974).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . Defendant’s employer testified that drinking by employees while on the job was absolutely prohibited and that defendant had been suspended at one time for a two week period as a disciplinary measure for having drunk intoxi-eating liquor while working. The employer also testified that his employees were strictly forbidden from carrying weapons, as they were not licensed to do so.

      . For a comprehensive treatment of instructions on excusable homicide see, MAI-CR Comments: Excusable Homicide (1974).

      . See State v. Parker, 509 S.W.2d 67 (Mo.1974), holding that a second degree murder instruction was not necessary where the defendant had fired three shots.


author: WEIER, Presiding Judge.

text:
    LACLEDE GAS COMPANY, a corporation, Plaintiff-Respondent, v. SOLON GERSHMAN, INC., a corporation, Defendant-Appellant.
    No. 36817.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 25, 1976.
    Motion for Rehearing or Transfer Denied July 8, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Gross & Goodman, Michael A. Gross, St. Louis, for defendant-appellant.
    Paul B. Hunder, Jr., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Plaintiff, Laclede Gas Company, a gas utility, sued defendant, Solon Gershman, Inc., a real estate management corporation, for $5,709.59, a balance due for natural gas consumed by defendant between September 15, 1967 and October 18, 1971. To plaintiff’s petition, defendant filed answer setting out a defense of estoppel and a counterclaim seeking damages because of plaintiff’s negligence. Plaintiff’s motion to dismiss the counterclaim on the basis that the counterclaim sought a special rebate contrary to the law was sustained by the court. The cause was then submitted to the court upon a stipulation of facts. Judgment was rendered against the defendant in the amount prayed for in the petition.

The facts disclose that between the dates mentioned in plaintiff’s petition, plaintiff had sold to defendant gas used by defendant upon certain commercial premises in Clayton, Missouri, which comprised twenty-nine apartments and four commercial stores. The metering equipment installed by plaintiff at these premises was equipped with a 20 cubic foot internal drive. Instead of having a 20 cubic foot index on the face of the meter, plaintiff had installed a 10 cubic foot index which recorded only one-half of the total amount of gas actually consumed. Defendant had been billed for $6,513.78 during the time that this meter was in operation, leaving a balance actually due plaintiff of $5,709.59 after adjustments, according to the rate tariffs which were on file with the Missouri Public Service Commission. The agreed statement of facts contains this statement: “The erroneous billing * * * occurred solely as a result of plaintiff’s error and defendant committed no act or made no omission contributing to the error. If defendant had received the correct billings, the rental rates charged to its tenants would have reflected the additional billing in its entirety and at this time defendant cannot go back and collect these sums.”

Defendant contends that the circuit court erred in entering judgment for plaintiff since the plaintiff should have been es-topped from asserting its claim because of its negligence in installing a defective meter. Plaintiff, on the other hand, counters by stating that it was entitled to recover the difference between the amount erroneously billed and the correct amount which was owing it for gas used by the defendant because, as a public utility, it could not charge less than the rates established by law. To determine whether the court committed error in its judgment, we consider the special relationship of the parties under Missouri statutory and case law.

The Missouri Public Service Commission has jurisdiction over natural gas distribution companies. § 386.250(5), RSMo 1969. The Commission alone authorizes the rates charged by such utilities. May Department Stores Co. v. Union Electric Light & Power Co., 341 Mo. 299, 107 S.W.2d 41, 57[18] (1937). The rates so authorized are “prima facie lawful and reasonable until found otherwise” in a special statutory action brought to determine invalidity. § 386.270, RSMo 1969; State ex rel. Dyer v. Public Service Commission, 341 S.W.2d 795, 799[3] (Mo.1961), cert. den., 366 U.S. 924, 81 S.Ct. 1351, 6 L.Ed.2d 384. § 393.130, RSMo 1969 provides in subsection (2) that: “No gas corporation * * * shall directly or indirectly by any special rate, rebate, drawback or other device or methods, charge, demand, collect or receive from any person or corporation a greater or less compensation for gas, * * * or for any service rendered or to be rendered in connection therewith, except as authorized in this chapter, than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous service with respect thereto under the same or substantially similar circumstances or conditions.” Undue or unreasonable preference or advantage to any person or corporation or locality is forbidden in the next subsection.

No gas utility rate collection case in Missouri has been found by counsel or this court, but in Mellon v. Stockton & Lampkin, 326 Mo. 129, 30 S.W.2d 974 (1930) the court had before it the very issue which is here presented to us except that it involved an undercharge claim by a railroad against one of its shippers. There the court considered the application of § 10444, RSMo 1919 (now § 387.100, RSMo 1969) which contained a prohibition against unjust rate discrimination by carriers in substantially the same words as those contained in § 393.130 applicable to gas utilities. As stated in Mellon at p. 975[2]: “This statute has been construed by our courts on numerous occasions, and it appears to be the settled law of this state, ‘that a carrier cannot, by contract or otherwise, by estoppel or waiver, directly or indirectly, increase or decrease the duly established freight rates, and that the shipper must make good any deficiency not collected regardless of the cause.’ ” (Emphasis added.) Because of lack of jurisdiction, the Supreme Court in Mellon transferred the case to the Kansas City Court of Appeals where the court directly held that the duty of a carrier to collect the total amount due under its tariff rates could not be defeated by estoppel. Mellon v. Stockton & Lampkin, 225 Mo.App. 122, 35 S.W.2d 612, 613[2] (1931). See also May Department Stores Co. v. Union Electric Light & Power Co., supra, 107 S.W.2d 41, where at p. 59 the court cited Mellon (Mo.) in support of the statement that estoppel could not be invoked to prevent recovery of unlawful overcharges. As pointed out in Mellon (Mo.App.), one of the chief evils which was sought to be remedied by the Public Service Act was the abolition and prevention of favoritism and discrimination. To permit the defense of estoppel would be merely another way of evading the provisions of the law prohibiting rate discrimination. In the case before us, the circuit court correctly ruled that estoppel was not a defense to plaintiff’s action for a balance due on the gas consumed by defendant which was caused by installation of a defective meter.

We pass to the contention that the court should not have dismissed defendant’s counterclaim against plaintiff for damages caused by the negligent installation of an improper index on the face of the meter which caused the underbilling and which in turn caused defendant to be placed in a position where it could not recover as a part of the rent the additional amount which it was compelled to pay for the gas used upon the premises. Obviously defendant here is in a different position than a residential or non-commercial user. Like the manufacturer of a product, defendant had to consider the cost of utilities furnished to its customers, or tenants, when it determined the rental to be charged for the use of the rented premises because defendant paid the gas bill. Plaintiff, by joining in the stipulation of facts, admitted that the erroneous billing occurred solely as the result of its error and not by reason of any act or omission of the defendant. As to damages, it was further agreed that: “If defendant had received the correct billings, the rental rates charged to its tenants would have reflected the additional billing in its entirety and at this time defendant cannot go back and collect these sums.” But here again we run into the harsh rule which has been established in the railroad cases that a consignor cannot plead a counterclaim no matter how meritorious his claim may be. Bush v. Keystone Driller Co., 199 Mo.App. 152, 199 S.W. 597, 599 (1917). This was decided upon the reasoning that the court would be compelled to undertake the impossible task of holding the carrier to diligence and good faith in preparing and presenting its defenses in order to prevent the granting and receiving of rebates “ ‘by insidious agreement between the parties’ ” in regard to the disposition of the case. Although in Bush the question arose in connection with a counterclaim filed in a suit for unpaid freight charges on an interstate shipment and federal court decisions under the Interstate Commerce Act were used as authority to support the rule, in St. Louis-San Francisco Ry. Co. v. Morgan, 221 Mo.App. 43, 297 S.W. 717, 718[2] (1927) the same rule was applied to a counterclaim filed in an action by a carrier against a shipper for intrastate transportation charges. See also Wabash Railroad Company v. Berg, 318 S.W.2d 504, 508-510[1, 2] (Mo.App.1958) where defendant was prevented from asserting estoppel or a counterclaim against the railroad under the Interstate Commerce Act in a suit filed by the railroad for a rate charge deficiency.

The carrier cases, however, are based in part upon the reasoning that lawful tariffs are published and are available to the pub-lie. The fact that a shipper is misled by an employee of the carrier cannot override the purpose of fixed rates which must be inflexibly adhered to in order to overcome rate preferences and other forms of discrimination. The shipper must be held to notice of the lawful rate in effect at the time of shipment. Here, there is no misrepresentation of a lawful rate by the gas company, or a billing based upon an unlawful rate. The negligent assembly and installation of an inaccurate meter by the gas company that recorded only half of the gas consumed caused the underbilling and the consequent damage to the defendant.

Although a utility company must be compensated for the full amount lawfully due it under the law and the rates fixed by the Public Service Commission, it “cannot divorce itself from the consequences of its own failure to use ordinary care to avoid harm to its consumers.” National Food Stores, Inc. v. Union Electric Co., 494 S.W.2d 379, 384[8] (Mo.App.1973). We have concluded that the plaintiff is entitled to collect the full deficiency due it. Since the underbilling occurred, however, not because of misrepresentation of a lawfully established rate which could also be correctly determined by inquiry on the part of the consumer, but rather because of the defective metering device which could not be detected by the consumer, the plaintiff should be held accountable for any damage caused to defendant.

Although the parties have agreed to the facts of negligence and that the amount of the underbilling is the damage to the defendant, in order to avoid any appearance of complicity which could give rise to a charge of discrimination, the procedure followed and approved in Union Electric Co. v. Mansion House Center North Redevelopment Company, 494 S.W.2d 309, 312[1] (Mo.1973) should be followed here in that the counterclaim which must be filed under the compulsion of Rule 55.45(a) should be separately tried under Rule 66.02. The stipulation of facts should not be completely relied upon by the court in determining the damages arising from the acknowledged negligence of the plaintiff. A separate inquiry should be undertaken to determine the facts of negligence and the actual damage, if any, suffered by the defendant.

We finally consider a charge made by plaintiff that defendant failed to preserve its right to appeal from the action of the trial court in sustaining the motion to dismiss when it failed to file a notice of appeal within ten days after this ruling by the court. The ruling on the motion did not dispose of the plaintiffs suit and did not constitute a final appealable judgment. A judgment to be final and appealable is generally one that disposes of all parties and all issues. Brown Supply Company v. J. C. Penney Company, 505 S.W.2d 463, 466[1] (Mo.App.1974). If a separate trial of a counterclaim is had before a jury, judgment therein is final for purposes of appeal. But where the court tries claims arising out of the same transaction separately, the judgment entered on each is not final until the last one is entered or the court specifically designates it is final. Rule 81.06.

The judgment in favor of plaintiff and against defendant on plaintiff’s cause of action is affirmed. The judgment dismissing defendant’s counterclaim is reversed and remanded for trial on the counterclaim in accordance with the instructions herein contained. Costs are assessed equally against plaintiff and defendant.

McMILLIAN and RENDLEN, JJ., concur.


author: DOWD, Judge.

text:
    Herman M. LEWIS, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. 36677.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 25, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Brassil, Rohlfing & McDonald, James L. Rohlfing, St. Louis, for petitioner-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, Mo., for respondent.
   DOWD, Judge.

Defendant appeals the trial court’s denial of postconviction relief under Rule 27.26. We affirm.

On April 9, 1973, the defendant, appearing in court with his attorney, entered a plea of guilty to the charge of second degree murder. The court accepted his plea and sentenced him to twenty years imprisonment.

During the guilty plea proceeding the prosecutor summarized the state’s evidence. About 1:20 a. m. on June 17, 1972, in the City of St. Louis, defendant and the female victim returned to their apartment from a tavern. The apartment was also the residence of the victim’s grandmother, who witnessed the killing. The defendant and the victim became involved in a violent argument, during which the victim picked up a butcher knife that defendant then took away from her. The victim then picked up a crowbar and defendant also took this away from her. Defendant then picked up a hammer and struck the victim on the head, fatally injuring her.

During his guilty plea the defendant admitted striking the victim with the hammer. But he said he did this in self-defense after the victim had first hit him with a crowbar and then lunged at him with the butcher knife.

On appeal defendant contends the trial court erred in denying his motion to vacate the sentence. Defendant claims his guilty plea “raised the affirmative defense of self-defense and, therefore, was not responsive as a plea of guilty to Murder Second Degree.” Defendant argues the trial court should not have accepted the guilty plea because the defendant’s self-defense assertions made his plea equivocal and qualified.

In Missouri if a defendant pleads guilty voluntarily, knowingly and with understanding, his actual guilt, or an express admission of guilt, is not a constitutional prerequisite to the imposition of a criminal penalty. Bradley v. State, 494 S.W.2d 45[4] (Mo.1973).

Likewise, a guilty plea knowingly and voluntarily rendered will be accepted if at the time of the plea the defendant stated to the court facts showing a defense of self-defense. Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973).

The key question is whether the defendant’s guilty plea was knowingly and voluntarily made and with understanding of the nature of the charge. To discover the defendant’s state of mind when he made his plea, it is necessary to consider the plea against the totality of events and circumstances that preceded its entry. Ray-ford v. State, supra, at 289-90. We will consider the transcripts of the guilty plea proceeding and the 27.26 hearing. Robinson v. State, 482 S.W.2d 492[1] (Mo.1972).

A number of facts and circumstances have led us to conclude that the defendant’s guilty plea, despite its self-defense assertions, was voluntarily and knowingly made.

The defendant was aware that his defense of self-defense was very weak. Both during the guilty plea proceeding and at the 27.26 hearing, the defense counsel related his unsuccessful efforts to find good defense witnesses. One witness mentioned by the defendant could not be located. A second witness suggested by defendant was a police officer who said he could not offer any relevant testimony. Counsel interviewed a third witness and determined he could only serve as a character witness; counsel cautioned the defendant that the use of this witness would enable the prosecutor to present evidence of bad character, including his prior troubles with the law. Finally, counsel interviewed the eyewitness, the victim’s grandmother, who said she would testify that no self-defense was involved. Counsel advised the defendant that the self-defense element would mean a credibility contest between him and the eyewitness.

Faced with the state’s evidence and the lack of his own witnesses, defendant became an active participant in plea bargaining. Just before the trial the prosecuting attorney asked defense counsel if the defendant would plead guilty in return for a recommended sentence of “twenty-five [years] or so.” The defendant replied he would so plead in return for a recommended sentence of five years. The prosecutor refused. Later, after defendant was informed that an investigator had failed to find the prospective defense witness, the defendant said he would plead guilty in return for a recommended fifteen year sentence. The prosecutor asked counsel to determine whether defendant would plead for a recommended twenty year sentence. The defendant replied “I guess that is what I got to do” after asking counsel how much of the twenty years would probably have to be actually spent in jail.

With the plea bargaining completed, the guilty plea proceeding began. Toward the end of the proceeding the following exchange occurred:

“THE COURT: Now as far as any plea bargaining is concerned, I haven’t promised you a thing; have I?
MR. LEWIS: No.
THE COURT: I have never talked to you about how much time you are going to get?
MR. LEWIS: Right.
THE COURT: But you are willing to plead guilty here on the basis that the State’s Attorney has indicated that he would recommend that I accept a period of 20 years; is that right?
MR. LEWIS: True, sir.
THE COURT: Now with that recommendation not made by me but by the State’s Attorney, are you asking me to accept your plea?
MR. LEWIS: Yes, sir. But like I say, you know—
THE COURT: Do you understand that as a result of withdrawing your plea you will be sentenced?
MR. LEWIS: Yes, sir.
THE COURT: All right. And you are making this plea and you have made this explanation in open court and it is strictly voluntary?
MR. LEWIS: Yes, sir, with my Lawyer; yes, sir.”

Finally, we note that defendant was quite familiar with the nature and consequences of guilty pleas. On at least three previous occasions defendant had pleaded guilty to felonies and had received jail terms.

Based on these facts and circumstances, we conclude the guilty plea was knowingly and voluntarily entered. The trial court did not err when it denied defendant’s motion to vacate his sentence. The defendant, who had previously entered guilty pleas to felonies on at least three occasions, apparently “lost his nerve” after the jury was selected. Being fully informed by his counsel concerning the elements of self-defense, the strength of the state’s evidence, and. the weaknesses of his own case, the defendant actively participated in the plea bargaining. During the guilty plea proceeding itself, the defendant was informed of the state’s evidence, the various rights he was waiving, and the fact that he would be sentenced to prison after his plea. Although defendant asserted his actions were prompted by self-defense, he nevertheless decided to plead guilty, as the court noted, “on the basis that the State’s Attorney has indicated that he would recommend that I accept a period of 20 years.” We find no error.

The judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.


author: ALDEN A. STOCKARD, Special Judge. NORWIN D. HOUSER, Special Judge, SMITH, Chief Judge

text:
    Stephen LEWIS and Bettye L. Lewis, his wife, Appellants, v. Linda Sue ESSELMAN et al., Respondents.
    No. 36916.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 25, 1976.
    Motion for Rehearing to Court En Banc or Transfer to Supreme Court Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Jack F. Allen, Clayton, for appellants.
    Robert L. Officer, St. Louis, for Essel-man.
    Mary Lake, J. Richard Roberts, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for Herlocker.
    Leon M. Newman, St. Louis, for Crites.
   ALDEN A. STOCKARD, Special Judge.

Plaintiffs originally sued Linda Sue Es-selman and later joined Lawrence Herlocker and Linard Ray Crites. A previous appeal from the action of the trial court in dismissing the petition as to Herlocker and Crites was held to be premature on the grounds that there had been no disposition of all parties and issues. Lewis v. Esselman, 512 S.W.2d 423 (Mo.App.1974). That situation does not now exist. Plaintiffs have now appealed from the judgment of the trial court dismissing their petition as to defendants Herlocker and Crites for failure to state facts upon which relief can be granted. We affirm.

For the purposes of this appeal we may state the ultimate facts alleged in plaintiffs’ amended petition.

About 2:00 o’clock in the morning of June 24, 1972, a collision occurred between two automobiles being operated in a westerly direction on Interstate Highway 44 by Lawrence Herlocker and Linard Ray Crites. The negligence of each operator contributed to cause the collision. A few minutes after the collision plaintiff, Stephen Lewis, was driving along the north service road of the highway referred to as North Highway Drive. He parked his automobile, jumped the fence separating the two roads, and went to offer aid. After recognizing that medical attention was required, he went back over the fence and arranged for an ambulance to be summoned. Plaintiff then returned to the scene of the accident, administered such assistance as he could, and remained there until the ambulance and the police officers arrived. Plaintiff then jumped the fence and returned to the area of his parked automobile. At this time the emergency vehicles which had congregated at the collision scene on Interstate Highway 44 had red and yellow flashing emergency lights, and the accident scene was in full and direct view of the east bound traffic on North Highway Drive. While plaintiff was standing at or near the south edge of the paved portion of North Highway Drive he was struck and injured by an automobile being operated by Linda Sue Esselman, who, while driving her automobile, was observing the accident scene on Interstate Highway 44.

Plaintiffs’ claimed cause of action is premised on the contention that the combined negligence of Herlocker and Crites could be found by a jury to have caused a condition (the spectacle of an accident with the flashing lights from the attending emergency vehicles, termed in Greenwood v. Vanarsdall, 356 S.W.2d 109, 114 (Mo.App.1962), to be “an attractive nuisance for adults” and by plaintiff as a “gaper block”) which in turn caused Esselman to “gape” at the accident scene while operating her automobile on the nearby North Highway Drive and strike and injure plaintiff, and that the negligence of Herlocker and Crites was therefore the proximate cause, as the term is legally defined, of plaintiff’s injuries.

For the purpose of this appeal we accept as a fact that both Herlocker and Crites were negligent in causing the collision on Interstate Highway 44. But, for a negligent act to constitute the proximate cause of an injury to another, some injury must have been reasonably foreseeable. Dickerson v. St. Louis Public Service Company, 365 Mo. 738, 286 S.W.2d 820 (1956). The causal connection need not be established by direct and positive evidence but may be inferred from the facts and circumstances, and the “facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions as common sense dictates deduced therefrom.” Anderson v. Asphalt Distributing Co., 55 S.W.2d 688, 693 (Mo.1932). “However, the question is not whether the particular injury under consideration should have been anticipated, but whether, after the occurrence, such injury then appears to have been the reasonable and probable consequence of the negligent act or omission.” Leek v. Dillard, 304 S.W.2d 60, 65 (Mo.App.1957). It is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable. Mrazek v. Terminal R.R. Ass’n of St. Louis, 341 Mo. 1054, 111 S.W.2d 26 (1937). The above general rules must be considered in connection with the doctrine of intervening efficient cause, which when applicable results in the negligent acts which created the situation becoming or constituting what in law is termed the remote cause. In Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613, 617 (Mo.1957), the Supreme Court of this State announced the doctrine as follows:

“ ‘Where a second actor has or should have become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.’ 65 C.J.S. Negligence § 111 b, notes 44, 45, p. 692.
‘A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though the injury would not have occurred but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause; and, if an independent negligent act or defective condition sets into operation the circumstances which result in injury because of the pri- or defective condition, such subsequent act or condition is the proximate cause.’ 65 C.J.S. Negligence § 111 d, p. 693.”

In this case it can be argued that the injury to plaintiff would not have occurred “but for” the negligence of Herlocker and Crites. But no danger to plaintiff existed in or from the condition resulting from the negligence of Herlocker and Crites. Plaintiff had left the scene of the collision; he had crossed the fence between Interstate Highway 44, and had returned to a separate and different highway where he was safe from injury reasonably flowing from the condition caused by the negligence of Her-locker and Crites. The danger to plaintiff, and his subsequent injury, resulted from the independent negligent act of Esselman in negligently operating her automobile on a highway different and separate from Interstate Highway 44 and there striking and injuring plaintiff. In these circumstances the negligence of Esselman, and not that of Herlocker and Crites, was the proximate cause of plaintiff’s injuries.

The judgment is affirmed.

SMITH, C. J., concurs in separate concurring opinion.

NORWIN D. HOUSER, Special Judge,

concurs on the basis that the combined negligence of Herlocker and Crites was not the proximate cause of plaintiff’s injuries, but constituted nothing more than an antecedent contributing circumstance.

SMITH, Chief Judge

(concurring).

I concur because Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613 (Mo.1957) controls this case. Therefore, the intervening negligence of Esselman insulates Herlocker and Crites from liability as a matter of law. Were I free from the constraints of Duke, I would conclude that under the particular facts here proximate cause should be a factual determination.

Plaintiff was a rescuer-and as such his presence at the scene was foreseeable. I believe he continued to occupy that status until he returned to his original place of safety, which he had not done when he was injured. I also regard the inattention of Esselman as a foreseeable consequence of the Herlocker and Crites negligence. This is not to say that any accident caused by a “gaper block” imposes liability upon the originally negligent motorists. But where, as here, the plaintiff is a foreseeable and, probably, an anticipated participant in assisting at the accident scene I believe his injury by a motorist distracted because of the original negligence should present a factual question of proximate cause.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeffrey Charles SKAGGS, Defendant-Appellant.
    No. 37058.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 25, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Cornelius T. Lane, Jr., James C. Jones, Charles D. Kitchin, Robert C. Babione, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEWART, Judge.

Defendant appeals from a conviction of robbery in the first degree by means of a dangerous and deadly weapon and a sentence of 12 years imprisonment.

It is conceded by the parties that the motion for new trial was not timely filed. Rule 27.20(a). The motion is therefore a nullity and preserves nothing for appellate review. State v. Tucker, 451 S.W.2d 91, 92[1-3] (Mo.1970); State v. Laden, 536 S.W.2d 880 (Mo.App.1976).

Defendant, in recognition of the above principle urges us to review his contentions as plain error under Rule 27.20(c).

Defendant’s points relied on urge reversal because the trial court (1) admitted alleged improper identification evidence and (2) restricted defendant’s closing argument. The court did not permit defendant to argue absence of fingerprints when the only evidence was that the E.T.U. (Evidence Technical Unit) reported to the scene. We have read the transcript and studied the briefs. We are convinced that the trial did not result in manifest injustice and that there was no miscarriage of justice. Any discussion would be of no precedential value. See State v. Tidwell, 500 S.W.2d 329 (Mo.App.1973); State v. Dethrow, 510 S.W.2d 207 (Mo.App.1974).

We have made the review required under Rule 28.02. The indictment is in proper form, the judgment is responsive to the indictment and the sentence is within the limits provided by law.

The judgment is affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robin Geray CABELL, Defendant-Appellant.
    No. 36962.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 1, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Robert A. Ciuffa, St. Louis, for defendant-appellant.
    Preston Dean, Douglas Mooney, Asst. At-tys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of two counts of robbery by means of a dangerous and deadly weapon, § 560.120, RSMo. 1969, and sentenced to ten years in the custody of the Department of Corrections on each count. The sentences are to run concurrently. Defendant’s appeal is based upon contentions that only one count of robbery should have been submitted to the jury since no two separable robberies occurred, and that his right to a fair and unbiased trial was prejudiced by remarks in the closing argument of the prosecutor. We affirm the conviction.

At approximately 10:00 o’clock on the evening of April 10, 1974, defendant and a female companion knocked on the door of the residence of Mr. & Mrs. Wild in St. Louis County. Mrs. Wild answered the door. Defendant inquired about an auto in her driveway and she recognized him as having been to the house inquiring about purchasing the auto three times during the preceding month. Mrs. Wild summoned her husband who came to the door. Two additional men joined the first couple and a heated discussion developed over the lateness of the hour and the purchase of the car. Mr. Wild recognized defendant and another of the men as ones who had been to his house asking about the auto previously. One male pulled a gun and ordered Mr. Wild into the house. Defendant directed a second gun at the Wilds as they were ordered to lie face-down on the floor of their livingroom. Several items were taken during the robbery including two television sets, a radio, Mr. Wild’s' wristwatch and' wallet, and Mrs. Wild’s engagement ring, purse, and necklace. The Wilds were left on their livingroom floor tied with a telephone cord and electric blanket wire.

The police lineup and in-court identification of defendant and testimony of Mr. & Mrs. Wild was corroborated by Adrianne Franklin, the female participant in the robbery. She was apprehended in connection with the attempted fraudulent use of Mrs. Wild’s credit card and offered immunity from prosecution in exchange for her testimony.

Defendant took the witness stand, and he and one of his friends testified that they were in Illinois at the house of relatives the entire night of the robbery. They also stated that Adrianne Franklin was a troublemaker, that she had reason to dislike defendant, and that she was a person who might lie to harm someone she disliked.

Defendant contends that only one count of robbery occurred since this case involves one act, the forceable taking of the property of a married couple. Missouri Supreme Court Rule 24.04 allows joinder of counts in a criminal ease when there are “two or more acts which are part of the same transaction or * * * two or more acts or transactions which constitute parts of a common scheme or plan * * Separate counts may not be joined where the facts necessary to prove both crimes are identical or where the incidents of one crime are entirely contained in the other. State v. Parsons, 513 S.W.2d 430, 437-438[5—9] (Mo.1974). The fact that two crimes occurred at substantially the same time or that substantially the same evidence is presented to prove both does not, however, require there be only one charge. State v. Neal, 514 S.W.2d 544, 548[6, 7] (Mo.1974). The important question is whether two separate robberies occurred.

The essential elements of robbery by means of a dangerous and deadly weapon are a person who is put in fear of immediate injury to himself, and some property not owned by defendant and at least in custody of the victim taken from the custody of the victim at that time. State v. Moton, 476 S.W.2d 785, 788[3] (Mo.1972). Here, two persons, Mr. & Mrs. Wild, were threatened. Property belonging to each separately and to the couple jointly was taken. Since two distinct persons were frightened and relieved of their individual separate property, a separable robbery of each did occur.

Defendant contends § 560.120, supra, makes the robbery of a wife the same act as the robbery of a husband. This interpretation of the statute is unwarranted. Section 560.120 provides:

“Every person who shall be convicted of feloniously taking the property of another from his person, * ⅜ * or from the person of his wife, servant, clerk or agent, in charge thereof, * * * by violence * ⅜ * or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.”

Clearly the reference to a “wife” is to establish custody of the property, as in the instance of an agent, servant, or clerk. These are words of description properly listing several relationships for which proper custody will be assumed. State v. Pughe, 403 S.W.2d 635, 637[1, 2] (Mo.1966). Two separate counts of robbery have repeatedly been properly submitted where property was taken from the custody of two individual agents or clerks of one employer at substantially the same time. State v. Neal, supra; State v. Johnson, 499 S.W.2d 371, 375[7—9] (Mo.1973). Since the engagement ring was removed from the finger of Mrs. Wild and the wristwatch was stolen from the person of Mr. Wild, the evidence of separate custody and control of the property is clear. This case was properly submitted to the jury on two counts, one of the robbery of Mrs. Wild and one of the robbery of Mr. Wild.

Defendant’s remaining three contentions refer to the closing argument of the prosecution. As a general rule, the trial court has discretion in judging the propriety of closing arguments and reversal will occur only in clear cases of abuse of this discretion. State v. Jewell, 473 S.W.2d 734, 741[8] (Mo.1971). We cannot say that the trial court abused its discretion in this case.

Defendant’s first objection is that matters outside the record were presented in which the prosecutor improperly personalized his statements. The remark referred to was:

“All I can say is if you believe I would allow her to testify any differently in any other trial, then you have to believe that I’m unethical. That’s the implication he’s making. If you allow different testimony from the same witness at two different trials, and there’s no evidence she did that, that’s pure innuendo on his part to prejudice you against Adrianne Franklin

Prior to this, defendant’s attorney had vigorously argued Adrianne Franklin was lying and had implied she would testify differently at the trial of her boyfriend. The prosecutor’s argument was in retaliation to this argument. Retaliatory comment of this nature cannot be used to reverse a judgment when the defendant raises the issue by his argument. State v. Granberry, 484 S.W.2d 295, 300[17] (Mo. banc 1972); State v. Ward, 518 S.W.2d 686, 689[7] (Mo.App.1975). This comment specifically related to the charge of lying by Adrianne Franklin. It is not prejudicial to defendant.

Defendant’s next objection is that the prosecutor made an unfavorable comment on defendant’s exercise of his right to trial by jury and his failure to plead guilty. During his rebuttal, the prosecutor stated: “I submit to you once again that you’re not dealing with somebody who is showing remorse; you’re dealing with somebody who says, ‘Prove I did it.’ ‘I’ve got people to say — ’ ” After the objection to this argument and a motion in the alternative to instruct the jury to disregard or declare a mistrial were overruled, the prosecutor again stated: “He pled not guilty; he’s saying prove it. I have proved to you that he did it. I think there is no reasonable doubt, there is no doubt. I’m going to ask you to return a sentence of 25 years.” All of this occurred after the prosecutor clearly stated: “I’ll talk to you about what sort of sentence you should impose. I don’t think any more time need be spent about guilt or innocence.” The prosecutor did not return to any argument of defendant’s guilt but was addressing this comment to the severity of sentence to impose. Although reference was made to defendant’s plea of not guilty, this was a matter of record and surely a matter of common knowledge with the members of the jury. Otherwise the case would not be for trial. The comment was obviously directed to the lack of contrition on the part of defendant and designed to have the jury consider this in assessing punishment, an element many judges consider when they assess punishment. The prosecutor had referred to the requirement of reasonable doubt and mentioned that he thought there was none here. Although asking for punishment of 25 years, the jury only assessed 10 years. Reference to a plea of not guilty is not per se improper. State v. Cox, 352 S.W.2d 665, 671[13] (Mo.1961). In order that oral argument be reversible error, the statements used must have been unwarranted and clearly injurious. State v. Neal, 526 S.W.2d 898, 903[14] (Mo.App.1975). In light of the substantial evidence against defendant and considering the entire record, we find no reversible error on this point.

Defendant’s third objection is directed to the prosecutor’s repeated comment on defendant’s failure to call other witnesses to refute testimony of Adrianne Franklin and corroborate defendant’s friend and alibi witness. Comment on the failure of the accused to testify would be improper. State v. Jenkins, 516 S.W.2d 522, 528[18] (Mo.App.1974). But the prosecutor can properly refer to defendant’s failure to call witnesses. State v. Pruitt, 479 S.W.2d 785, 789[8] (Mo. banc 1972). The prohibition against comment on a person’s failure to testify is limited to the accused or spouse of the accused. State v. Baldwin, 358 S.W.2d 18, 26[11, 12] (Mo.1962); Rule 26.08. Defendant himself testified at the trial. This comment cannot be an improper comment on defendant’s failure to testify.

One absent witness was the sister of defendant who defendant inferred would have supported the charge of hostility of state’s witness Franklin. The others were cousins of defendant’s alibi witness and friend. They lived in Illinois and it was at their house defendant allegedly spent the night when the robberies occurred. All could be considered uniquely available to defendant as witnesses and could be expected to give favorable testimony in defendant’s behalf. Their absence could be commented on by the prosecutor. State v. Barron, 465 S.W.2d 523, 529[8] (Mo.1971). No prejudice is apparent from the record.

The judgment is affirmed.

McMILLIAN and RENDLEN, JJ., concur.


author: RENDLEN, Judge.

text:
    Robert Henry TAYLOR, Movant, v. STATE of Missouri, Respondent.
    No. 36845.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 8, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Robert C. Babione, Public Defender, James C. Jones, Christelle Adelman-Adler, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, St. Louis, for respondent.
   RENDLEN, Judge.

Appeal from denial of Rule 27.26, V.A. M.R. motion seeking to vacate a murder second degree conviction and fifteen year sentence entered on a plea of guilty. The contentions of error concern the trial court’s failure to hold an evidentiary hearing.

At the outset we note that except for the most liberal construction the trial court could not have found the allegations in appellant’s motion sufficient to state a claim for relief under Rule 27.26. It has been held that “[a] 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411[1] (Mo.Banc 1974) cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). Adopting the trial court’s liberal construction as to the sufficiency of the pleadings, we turn to the merits.

Mindful that movant was entitled to an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” Rule 27.26[e], V.A.M.R., we nonetheless approve the trial court’s finding that no hearing was required since the allegations, if true, were insufficient to warrant the relief sought.

The 27.26 motion alleged that the guilty plea was involuntary in that: (1) movant was threatened with the death penalty if he went to trial; (2) he was told that a confession obtained from him by force would be used by the prosecutor if he went to trial; and (3) blacks suffer the death penalty more frequently than whites, “and thus, the death penalty that was going to be used against movant was discriminatory and coerced movant into pleading guilty.”

Examining the allegations in the order presented, movant’s first contention, that his plea was the result of fear of the death penalty which according to him was threatened by both his attorney and the prosecutor if he went to trial, does not state a ground for relief. It is settled that a plea of guilty entered to avoid the possibility of the death penalty is not thereby rendered involuntary. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Clay, 520 S.W.2d 172, 176[3] (Mo.App.1975); Beeman v. State, 502 S.W.2d 254, 255[2] (Mo.1973); Skaggs v. State, 476 S.W.2d 524, 528[6] (Mo.1972).

The motion alleges that movant’s attorney Dewitt Lawson “will testify that he did explain to movant about the death penalty.” Movant was charged with murder first degree and the death penalty was then within the range of punishment for that offense. It was his attorney’s duty to advise movant of the possible consequences of taking the case to trial so that he could intelligently decide whether to plead guilty. The motion further alleges that the assistant circuit attorney “will testify that he told movant about the death penalty at the arraignment and . . that he would have asked for the death penalty if movant would have went to trial.” This statement by the assistant circuit attorney was a disclosure of intent which if a “threat” does not constitute duress sufficient to render the plea involuntary. Movant cannot by characterizing these statements as threatening, without more, state a ground for relief. See Smith v. State, supra at 411[3].

Movant next alleges his guilty plea was coerced by threats that a confession obtained from him by force and terror (thus legally inadmissible) would in fact be used against him at the trial. It has consistently been held that even if this were true it would not be grounds to vacate a guilty plea, voluntarily entered. “The fact that there was an allegedly inadmissible confession in existence which might have been used in evidence against appellant is no sufficient reason to vacate the judgment and sentence entered pursuant to a plea of guilty, where the plea was otherwise voluntarily and understandably made.” Maxwell v. State, 459 S.W.2d 388, 392[2] (Mo.1970); Kunkel v. State, 501 S.W.2d 52, 54[2] (Mo.1973); Jackson v. State, 512 S.W.2d 249, 252[4] (Mo.App.1974); and the rule is the same in Federal Courts, see McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), “a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus.”

The trial court properly found movant’s third allegation set out above is a mere conclusion not stating a proper ground for relief.

As none of the allegations raised by movant would, without more, have entitled him to relief under Rule 27.26, we examine the record to determine whether the plea was otherwise voluntarily and understandably made.

At the plea hearing the trial court took care to establish an unhurried atmosphere. Movant was encouraged to ask questions freely. Discovering movant had a speech defect which made it difficult for him to express himself, the trial court reviewed a psychiatric report which noted the speech defect but stated that movant was otherwise competent and again urged movant to take as much time as necessary when responding to the questions of the court. The court enumerated each of the rights movant would waive if a plea were entered. The substance of the crime was read aloud and movant affirmed he had committed the acts charged. The court determined that mov-ant had discussed fully with counsel the range of punishment for first and second degree murder and agreed to plead guilty to the lesser offense. Movant was informed that the court was not bound to impose the recommended sentence but was assured that if the court could not accept the State’s recommendation he would be allowed to withdraw the plea. The prosecutor having elected to proceed on the charge, murder second degree, movant entered his plea of guilty thereto. After accepting the plea and sentencing movant to the recommended term, the court assured itself that the length of the sentence had been discussed with movant. Movant’s only question during the proceedings was a request that he be sent to a hospital instead of the penitentiary. The court explained that place of confinement was solely within the hands of the Department of Corrections and inquired whether movant still desired to plead guilty. This careful questioning of the defendant in an unhurried atmosphere guaranteed the defendant the full measure of his rights when entering his plea and provided a clear and complete record for this court. The trial judge’s careful and just handling of that proceeding is to be commended. It is clear that movant entered his plea with full knowledge of his rights and the consequences of his act. The judgment is affirmed.

WEIER, P. J. and McMILLIAN, J., concur.


author: PER CURIAM.

text:
    Billy STEPHAN, Plaintiff-Respondent, v. WORLD WIDE SPORTS, INC. and Roger L. Scherck, Defendant-Appellants.
    No. 37053.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 8, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Roger L. Scherck, St. Louis, for defendants-appellants.
    Norman A. Seiner, Clayton, for plaintiff - respondent.
   PER CURIAM.

This is a civil action for money damages. The first trial in this case took place in June 1970. At the close of plaintiff’s case the trial court sustained defendants’ motion for a directed verdict. However, in August 1970 the trial court sustained plaintiff’s motion for a new trial.

The defendants appealed. In Stephan v. World Wide Sports, Inc., 502 S.W.2d 264 (Mo.1973), the Supreme Court affirmed the action of the trial court in sustaining plaintiff’s motion for a new trial.

The second trial took place in January 1975. The jury found for plaintiff in the amount of $35,000 actual damages against both defendants, and in the amount of $17,-000 punitive damages against defendant Scherck. The trial court subsequently entered an order finding the jury verdict to be excessive as to actual damages and stated in its order that it would sustain the defendants’ motion for a new trial unless plaintiff remitted all but $100 of the actual damages verdict. The plaintiff made the remittitur. Accordingly, the judgment appealed from is $100.00 actual damages against both defendants, and $17,000 punitive damages against defendant Scherck.

We are compelled to dismiss the appeal because appellants have failed to comply with Rule 84.04(c). Devoy v. Devoy, 502 S.W.2d 428[2] (Mo.App.1973). The appellants’ purported “Statement of Facts” utterly fails to be “a fair and concise statement of the facts relevant to the questions presented for determination.” After several paragraphs relating the history of the case prior to the second trial and a statement of the pleadings, the appellants only reference to the second trial is as follows:

“On January 28,1975, trial began in Division 9 of the St. Louis Circuit Court, Judge Daniel T. Tillman presiding, and on January 29, 1975, the jury returned a verdict for plaintiff and against defendants World Wide Sports, Inc. and Roger L. Scherck in the amount of $35,000 actual damages and against defendant Roger L. Scherck only in the amount of $17,000 punitive damages.”

This statement informs us of the result of the second trial but relates not one eviden-tiary fact from the 120 pages of testimony. Also there is not a single specific page reference to the transcript in the purported statement of facts. Rule 84.04(h). Nor does the argument portion of appellants’ brief help us determine the facts. Likewise the argument portion has very few specific page references to the transcript in violation of Rule 84.04(h).

The one sentence statement of facts concerning the second trial is so grossly inadequate that it warrants dismissal of the appeal. Power v. Automobile Club Inter-Insurance Exchange, 516 S.W.2d 541[2] (Mo.App.1974). Nevertheless, we have examined appellants’ points and find them to be without merit.

The appeal is dismissed.

All concur.


text:
    STATE of Missouri, Respondent, v. Charles Andrew LONG, Appellant.
    No. 37114.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 8, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Christelle Adelman-Adler, Asst. Public Defender, Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James J. Bar-ta, Asst. Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Charles Andrew Long appeals his conviction of robbery first degree by means of a dangerous and deadly weapon and sentence of five years imprisonment, asserting as error: (1) insufficiency of the evidence, and (2) refusal to instruct on lesser offenses.

On December 23, 1974, McKinley Buliox was shot and robbed by two armed men in his Delmar Boulevard-St. Louis Apartment. Buliox testified that appellant and a male companion came to his third floor apartment after he had tossed the keys to them from his upstairs window. It was an old building without doorbells and visitors frequently called or whistled to announce their presence. Buliox had known appellant casually for about a month prior to the robbery.

While Buliox sat talking with appellant, the other man left the room; returning shortly he brandished a pistol and demanded money. Startled by this development, Buliox implored appellant to have his friend “cut it out.” Instead appellant ordered Bu-liox to sit down, be quiet and tell where the money was kept. Learning it was in a dresser drawer, appellant took $6 found there and demanded more. Buliox stated that was all he had but would write a check. At this time appellant, who was also holding a gun, searched the dresser for Bu-liox’ checkbook and while doing so, his companion shot Buliox in the face. Appellant came to the room and seeing Buliox bleeding on the couch asked, “Did you pop him, man?” and the other said, “Yes.” Buliox remained motionless for as he explained, “I was afraid if I moved or anything they would have killed me.” The two then took his television set and fled. Bleeding profusely, Buliox called the police and was taken to Homer G. Phillips Hospital. The bullet entered his head near the eyebrow, passing out through the side of his face; fortunately, the brain was untouched. Various portions of Buliox’ testimony were corroborated by the officer responding to the original call, the medical records custodian from Homer G. Phillips Hospital and a detective who investigated the crime.

Appellant, as the sole defense witness, stated he met Buliox about one month prior to the robbery but denied any connection with the crime. He admitted visiting the apartment in the second week of November but testified he left when Buliox made homosexual advances. Appellant testified he refused these advances and Buliox told him, “I will be sorry.”

To support his first contention of error, appellant argues his testimony concerning the homosexual advances (categorically denied by Buliox) cast such doubt on the prosecuting witness’ credibility that as a matter of law the court should not believe him and without his testimony the evidence was insufficient to make a submissible case.

When examining the record to determine sufficiency of the evidence, we “view the facts in evidence and the inferences reasonably to be drawn from them in the light most favorable to the State, to determine whether there was substantial evidence to support the verdict.” State v. Williams, 521 S.W.2d 29[1] (Mo.App.1975).

Appellant’s unsupported allegations of prior bad blood and homosexual advances are insufficient to destroy the State’s witness’ credibility as a matter of law but goes instead to the weight of the testimony. “It is not our function or prerogative to weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is a function of the jury.” State v. Achter, 514 S.W.2d 825, 826[2] (Mo.App.1974). Competent evidence of all elements appearing, a submissible case was made. We find the point without merit.

Next appellant contends the trial court’s refusal to instruct on the lesser offenses of (1) robbery first degree (not with a dangerous and deadly weapon), and (2) stealing from a person, was error. As to the former, appellant’s argument misses the mark since robbery first degree is not a lesser offense which on a proper showing might warrant the proffered instruction. The information charged robbery first degree “contrary to Section 560.120 Missouri Revised Statutes.” It has been held in State v. Vigus, 66 S.W.2d 854, 857[12] (Mo.1933) that, “Robbery in the first degree, if the other elements are present, comprehends an act committed with or without a dangerous and deadly weapon.” (Emphasis ours.) Here the information additionally charged the robbery was committed “by means of a dangerous and deadly weapon, to-wit: pistol . . ” It has been held that “[sjuch an allegation is only for the purpose of invoking the more severe penalty prescribed by the first provision of section 4061,” (now § 560.135, RSMo. 1969). State v. Vigus, supra at 857. As stated in State v. Curtis, 324 Mo. 58, 23 S.W.2d 122, 124[2] (1929), “The new section 3310 [now § 560.135, RSMo. 1969], does not make that a crime which was not a crime before.”

The “dangerous and deadly weapon” element goes merely to the penalty and “it is not a charge of a separate offense, as such.” State v. Pope, 364 S.W.2d 564, 568 [5] (Mo.1963). Under § 560.135, RSMo. 1969, the death penalty was authorized if a dangerous and deadly weapon was employed in a first degree robbery. However under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Terry v. Missouri, 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972), the statutory authority for the death penalty was effectively voided by judicial action and thereafter the range of punishment for robbery first degree with or without a dangerous and deadly weapon has been five years to life imprisonment. The instructions given required an additional finding, not contained in that refused. Thus the State undertook an additional burden of which the defendant may not be heard to complain. The trial court properly refused appellant’s proffered instruction.

Concerning the refused instruction on stealing from a person, it has long been held that the court need not instruct on such offense if the evidence is sufficient to make a submissible case on the charge of first degree robbery with a dangerous and deadly weapon. See State v. Gideon, 453 S.W.2d 938, 940[10] (Mo.1970); State v. Keeney, 425 S.W.2d 85, 89[4] (Mo.1968). Under the evidence defendant was clearly guilty of robbery in the first degree or guilty of no offense at all. Alibi was the only defense. Appellant’s proffered instruction was properly refused. State v. Whalen, 148 Mo. 286, 49 S.W. 989, 990[3] (1899); State v. Thompson, 299 S.W.2d 468, 474[16] (Mo.1957). The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.

      . In 1975, § 560.135 was amended eliminating the death penalty.