author: BARDGETT, Presiding Judge. PER CURIAM.

text:
    LAKEWOOD PARK CEMETERY ASSOCIATION, Plaintiff-Appellant, v. METROPOLITAN ST. LOUIS SEWER DISTRICT et al., Defendants, The Metropolitan St. Louis Sewer District and Bank of St. Louis, Defendants-Respondents.
    No. 57666.
    Supreme Court of Missouri, En Banc.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.

      Eugene V. Krell, St. Louis, for appellant.
    Thompson & Mitchell, Donald J. Stohr, George C. Hays, St. Louis, for defendant Metropolitan St. Louis Sewer District-respondent.
    Lowenhaupt, Chasnoff, Freeman & Holland, Richard D. Fitzgibbon, Jr., Harry L. Bell, St. Louis, for Bank of St. Louis, defendant-respondent.
   BARDGETT, Presiding Judge.

Plaintiff appeals from a judgment dismissing its two-count petition for injunc-tive relief and declaratory judgment and from a judgment in favor of defendant-respondent Bank of St. Louis on its counterclaim. The effect of the judgments is that certain special benefit tax bills issued by the Metropolitan St. Louis Sewer District against plaintiff as one of the landowners within Special Benefit Subdistrict No. 42 (Lakewood Area) for the construction of certain lateral sanitary sewers and which were assigned by Crow Contracting Company, the construction company, to defendant Bank of St. Louis were held to be valid.

The alleged basis for Supreme Court jurisdiction of this direct appeal is, at best, tenuous; however, the court has decided to entertain jurisdiction on the basis that one of plaintiff’s contentions is that it is not subject to special benefit tax assessments because it is a nonprofit cemetery and exempt from real property taxation under Art. X, sec. 6, Mo.Const. 1945, V.A.M.S. and sec. 137.100, RSMo 1969, V. A.M.S. The fact that this litigation dates back to 1959, was once on appeal to the St. Louis Court of Appeals in 1965 and transferred here for lack of jurisdiction in that court under Art. V, sec. 3, Mo.Const.1945, prior to the amendments effective January 1, 1972, Lakewood Pk. C. Assn. v. Metropolitan St. Louis Sewer Dist., 396 S.W.2d 744 (Mo.App.1965), after which the appeal was dismissed as premature by this court in 1966, after which the counterclaim was finally tried in 1971 and appealed just five days after the effective date of our new jurisdiction under Art. V, Mo.Const. 1945, as amended, has played a significant part in our decision to retain and decide this case. We do so under authority of Mo. Const., Art. V, Sec. 10. Foremost-McKesson v. Davis, 488 S.W.2d 193, 196 (Mo.1972); Ginnings v. State, 506 S.W.2d 422, 423 (Mo.1974).

Lakewood Park Cemetery Association, plaintiff-appellant, is, admittedly, a nonprofit cemetery located in the south part of St. Louis County and is within the territory which comprises the Metropolitan St. Louis Sewer District, hereafter Sewer District. On September 2, 1958, the board of trustees of the Sewer District adopted ordinance No. 228 confirming a contract between that district and Crow Contracting Co. for the construction of certain lateral sanitary sewers in an area designated Special Benefit Subdistrict No. 42 known as Lakewood Subdistrict and hereafter referred to as such. Crow undertook the construction of the sewers which construction was accepted and approved by the Sewer District.

On October 22, 1959, the Sewer District passed ordinance 336 which levied special benefit assessments against land within the Lakewood Subdistrict. Appellant’s cemetery lies, in part, within the Lakewood Subdistrict. The special tax bills were duly recorded and delivered to Crow Contracting Co. which assigned them to the Bank of St. Louis.

On November 24, 1959, appellant filed this suit against the Sewer District, Crow Contracting Co., and Bank of St. Louis, seeking a decree holding the special tax bills issued by the district invalid as to appellant’s land. Appellant’s original and first amended petition are not in the record on appeal. Defendant Bank filed an answer to plaintiff-appellant’s first amended petition and the other two defendants filed motions to dismiss plaintiff’s petition. On March 18, 1961, plaintiff, by leave, filed its second amended petition in two counts in which Crow was dropped as a defendant. Count 1 sought an injunction restraining the Sewer District from enforcing ordinance 336; restraining the Bank from enforcing the special tax bills against plaintiff’s property; and for an order cancelling the special tax bills. Count 2 prayed for a decree that plaintiff’s property was not subject to special assessment for construction of sewer improvements. The Bank and the Sewer District filed motions to dismiss both counts of plaintiff’s second amended petition on the ground that it failed to state a claim upon which relief could be granted. Bank of St. Louis filed a counterclaim alleging the special tax bills directed to the property of plaintiff were validly issued and seeking a declaration that said bills to be a valid enforceable lien upon plaintiff’s property.

At this point it is noted that the issue presented by both plaintiff’s petition and the Bank’s counterclaim is essentially the same — the validity or invalidity of the special tax bills.

A year later on November 20, 1962, plaintiff filed a third amended petition against the Sewer District and the Bank. The third amended petition recites that it is filed by leave of court; however, it is questionable as to whether or not the court formally granted leave to file it. In any event, the Sewer District noticed plaintiff that the Sewer District’s motion to dismiss filed March 31, 1961, would be heard January 11, 1963, at which time the Sewer District would seek an order dismissing plaintiff’s cause of action with prejudice. Plaintiff filed a motion to strike the Bank’s and Sewer District’s motions to dismiss plaintiff’s second amended petition on the grounds that plaintiff had, by leave of court, filed a third amended petition and the previous motions to dismiss were therefore moot.

Plaintiff also filed a motion to strike or dismiss the Bank’s counterclaim on the grounds that the Bank had failed to file an answer to plaintiff’s second amended petition and that the counterclaim failed to state a claim upon which relief could be granted. The Bank then filed a motion to strike plaintiff’s third amended petition alleging several procedural grounds.

On June 1, 1964, the trial court entered the following order:

"FINAL JUDGMENT OF DISMISSAL

“(Caption omitted.)

“This cause, on due notice, came on for hearing on the motion of defendant, The Metropolitan St. Louis Sewer District, for a final judgment of dismissal of the plaintiff’s cause of action with prejudice for failure of the plaintiff to amend its petition within the time allowed therefor in the order dismissing the plaintiff’s amended petition, as extended by leave of Court.

“The hearing having been held, and the Court being fully advised in the premises, finds that the plaintiff failed to amend its petition in any material respect by the time permitted in the court’s order of dismissal of the plaintiff’s Amended Petition, as extended by leave of court, and that the plaintiff’s failure to amend its petition is not due to excusable neglect.

“It is, therefore, adjudged that the plaintiff’s cause of action is finally dismissed.

“Motion of Defendant Bank of St. Louis to strike plaintiff’s Third Amended Petition sustained.”

Plaintiff moved the court to set aside its judgment of dismissal and to rehear the matter, or alternatively to dismiss the Bank’s counterclaim, which motion was overruled on September 11, 1964, and plaintiff took an appeal to the then St. Louis Court of Appeals in September 1964. As noted supra the court of appeals transferred the appeal to this court, and thereafter this court dismissed the appeal as premature.

After remand to the circuit court, the plaintiff filed its answer to the counterclaim of the Bank by which, inter alia, the validity of the special tax bills was denied.

Trial on the counterclaim began April 29, 1970. One witness testified and the parties were given time to file briefs. On September 3, 1970, the court found that ordinance 336 was legally and validly adopted by the Sewer District trustees; that the tax bill directed to plaintiff’s property was delivered to Crow Contracting Co. and thereafter assigned and transferred to the Bank, and concluded that the special tax bill directed to plaintiff’s property was validly issued, constitutional, and constituted a lien on plaintiff’s property. The decree of the court was: “THEREFORE it is hereby ordered, adjudged and decreed that the Special Tax bill owned by Defendant Bank of St. Louis constitutes a valid, enforceable lien upon the property of the Plaintiff. Costs against the plaintiff.”

Plaintiff moved the court to set aside its findings of fact, conclusions of law and decree entered September 3, 1970, and for a rehearing. It appears from the motion that plaintiff’s position, inter alia, was that it did not receive adequate notice of the trial so as to prepare to litigate all of the issues with respect to the validity or invalidity of the special tax bills and the liability, if any, of plaintiff, a not-for-profit cemetery, therefor. On December 10, 1970, the trial court sustained plaintiff’s motion for rehearing, set aside its findings and decree of September 3, 1970, and reset the cause for the taking of additional testimony and evidence.

At the rehearing Pauline Schulze testified for plaintiff. Mrs. Schulze had been the bookkeeper and secretary for Lakewood Park Cemetery for 28 years and became superintendent of the cemetery on December 19, 1970, when her husband died. Her husband, Wilbur Schulze, had been superintendent of the cemetery for about 28 years and they resided in a home on the cemetery property which was not within the subdistrict territory. In summary, she testified that her husband had been the cemetery superintendent for 28 years and had been an officer of the board of trustees or directors since sometime after 1959. Their home, which also contained the cemetery office, was on the cemetery property. Mrs. Schulze had been employed as a bookkeeper-secretary for Lakewood Cemetery for 28 years in this capacity. To her knowledge the first time the cemetery board was informed that there was a proposal to set up a Lakewood Subdistrict was when the board received the special tax bill by mail in 1959. She stated there was no notice given to the cemetery nor to other homeowners in the neighborhood of the proposed sewer construction. During the time Mr. Schulze was secretary of the board, Mrs. Schulze attended board meetings and typed the minutes of those meetings.

Plaintiff placed in evidence the minutes of the March 10, 1958, meeting of the Metropolitan Sewer District Board of Trustees and other exhibits. The minutes of the March 10, 1958, meeting show that the board received a report dated March 5, 1958, in reference to subdistrict No. 42 (Lakewood) which stated that a public hearing was held for subdistrict 42 on March 4, 1958, at Heege elementary school; that about 175 people were present; and at the close of the hearing a show of hands was requested and that almost all of the people favored the subdis-trict and only 13 people were opposed to it. Notification of the hearing was accomplished by hand-delivering the notice to each resident of the district. The name and address of each resident was acquired and a letter of reminder was sent to each name and address of owners and residents. There were about 333 homes in the subdis-trict and approximately 540 recorded plats of property.

A resolution was presented and read and adopted whereby the board found and declared it to be in the public interest that the proposed sanitary sewer improvement be made and directed that the project proceed. Trustee Gragg said he did not believe the district went far enough in its procedure in notifying property owners and residents and suggested that nothing be left undone to see that, if at all possible, all property owners who were to be taxed be fully aware of the cost of construction. The board unanimously adopted the resolution ordering the project to proceed after which trustee Gragg stated he voted aye after assurance by the executive director that his suggestion would be followed.

Respondents introduced into evidence a document entitled, “Notice of Public Hearing”, which reflects that, in addition to the notice shown in the board’s minutes of March 10, 1958, there had been posted on utility poles located in ten places within the proposed subdistrict a notice of hearing at the Heege school.

Almost all of plaintiff’s points on its first effort to appeal the dismissal of its petition relate to pleading procedures that took place prior to the trial of the counterclaim of the Bank. As noted supra, the claim and the counterclaim presented the same issue which was whether the special tax bills were valid and enforceable as to plaintiff’s property. On the trial of the counterclaim, plaintiff was not restricted in any way in the admission of evidence and plaintiff did undertake to defend against the counterclaim by raising and arguing all of the reasons set forth in its petition as to why the special tax bills were invalid as to plaintiff. Thus it clearly appears that plaintiff had available a full trial on all of its contentions on the singular ultimate issue presented by its petition and defendant’s counterclaim. The court therefore holds that in these particulars, and in a sense peculiar circumstances, no purpose would be served by considering and deciding procedural matters which occurred prior to the trial as they would not affect the ultimate decision on the merits of this appeal. Those issues were, in effect, mooted by the trial of the cause because it was the trial of the counterclaim that, as it turned out, provided plaintiff with the opportunity to litigate all of its contentions.

Plaintiff contends that because it is a non-profit cemetery it is exempt from special benefit tax assessments under Art. X, sec. 6, Mo.Const.1945, and therefore the special tax bill issued against plaintiff’s property is unconstitutional.

Art. X, sec. 6, Mo.Const.1945, exempts, inter alia, non-profit cemeteries from taxation. The parties agree and from the record it appears that plaintiff is a non-profit cemetery. Plaintiff principally relies upon Troost Ave. Cemetery Co. v. Kansas City, 348 Mo. 561, 154 S.W.2d 90, 95 (banc 1941), extracting from that opinion the following: “. . .we think the law is well established in this and other states that cemeteries operated for profit, and parts thereof, are subject to special benefit assessments, and that the assessments should be levied against the land as a whole, subject to the rights of grave lot owners, rather than solely against scattered spaces not occupied by graves and necessary appurtenances. (Emphasis added.)”

Plaintiff argues that since the cemetery is not operated for a profit the inverse rule of law is applicable—that a non-profit cemetery is not subject to special benefit assessment tax bills. The Troost Ave. Cemetery Co. was operated for profit, but the inference plaintiff seeks to derive from the quote from the Troost case is incorrect.

In Mullins v. Mt. St. Mary’s Cemetery Ass’n, 239 Mo. 681, 144 S.W. 109, 110 (1911), the court held that the provision of the Missouri Constitution exempting nonprofit cemeteries from taxation applies to general taxes levied and collected for the support and maintenance of the state and not to special assessments to pay the cost of local improvements. Mullins v. Mt. St. Mary’s Cemetery Ass’n was cited with approval in the Troost and is the law in this state.

Sec. 3.020(21) of the Plan of the Metropolitan St. Louis Sewer District empowers it “[t]o fix, levy, and collect special benefit assessments for the construction, improvement, or extension of sewer or drainage facilities, levied ratably by area upon such lots or parcels of ground within the District, whether public or private, . . .” (Emphasis added.) This provision is not contrary to Art. X, sec. 6, Mo.Const.1945.

The trustees of the Metropolitan St. Louis Sewer District acted pursuant to the power granted by sec. 3.020(21) of the plan. Sec. 3.020(21) does not violate Art. X, sec. 6, Mo.Const.1945, in authorizing special benefit assessments as to non-profit cemeteries. The point is overruled.

Plaintiff contends that the assessment of benefits under the area rule against the whole 108 acres of its property within the subdistrict for sanitary sewer construction was arbitrary and capricious in that the board of trustees failed to take into consideration the use to which the property was being used contrary to Art. 7, sec. 7.200 of the plan. The special benefit assessments were made at the rate of .06911802 cents per square foot of all property within the subdistrict.

If this contention is directed to the decision to include cemetery property within the subdistrict, then the answer is that that decision was a matter of legislative discretion and the authority to make it is vested in the Board of Trustees of the Metropolitan Sewer District and in the absence of fraud or unless a real and arbitrary abuse of discretion clearly appears is conclusive on the courts. Heman v. Schulte, 166 Mo. 409, 66 S.W. 163, 166 (1901); City of Webster Groves v. Taylor, 321 Mo. 955, 13 S.W.2d 646, 647 (1928); Reis v. Metro. St. Louis Sewer Dist., 373 S.W.2d 22, 29 (Mo.1963).

There is no evidence of fraud nor of an arbitrary abuse of discretion in this case.

It may be that plaintiff’s contention that the board of trustees violated Art. 7, sec. 7.200 of the plan, is directed to the rate per square foot applied to plaintiff’s property. The rate was uniformly applied to all property within the subdistrict. There is no evidence that the board of trustees failed to consider the use to which the property was being put when it made its assessment on the property within the subdistrict. The point is overruled.

Plaintiff contends that ordinance 336 was invalid because there was no evidence that the suggestion of trustee Gragg, noted supra, was followed with reference to notice of the cost of construction. The minutes reflect that ordinance 336 was unanimously adopted by the board of trustees. This was a legislative act on the part of the board and its validity cannot be made dependent upon the satisfaction of certain reservations in the mind of a member of the board. The point is overruled.

Plaintiff contends the Sewer District should not have applied the area rule to the entire property of plaintiff within the subdistrict citing State ex rel. State Highway Commission v. Barbeau, 397 S.W.2d 561 (Mo.1965). However, that was a condemnation case and involved the valuation of cemetery land taken by the State Highway Commission and was not concerned with special benefit assessments where the cost of a project is apportioned among the property owners on a per-square-foot basis.

The decree of the trial court was that the special tax bill owned by respondent Bank was validly issued, constitutional and proper, and constituted a lien upon the property of plaintiff. This case does not concern the enforcement of the lien nor an attempt to sell the property to satisfy the lien, nor the application of special rules with respect to the sale of cemetery property to satisfy a lien. See Troost Ave. Cemetery Co. v. Kansas City, supra, loc. cit. 100-101 of 154 S.W.2d.

The judgment is affirmed.

All of the Judges concur.

PER CURIAM.

This appeal was transferred to the court en banc after the divisional opinion was handed down in order to consider the effect, if any, of the recent case of DeFraties v. Kansas City, 521 S.W.2d 385 (Mo.1975), on the instant matter. By this per curiam opinion we now adopt the foregoing divisional opinion by Bardgett, J.

In DeFraties the court held that a special benefit assessment for the cost of change in grade of a street could not be made against the adjoining homeowners because the change did not benefit the adjoining property hut, to the contrary, constituted a detriment to that property. There, Kansas City converted Hardesty Avenue, a dead-end residential street into a four-lane through trafficway, with no sidewalks, and designed to carry greatly increased traffic of larger and heavier vehicles between highway 50 and another traf-ficway. The record in DeFraties demonstrated the detriment and on that basis this court affirmed the trial court’s judgment restraining the city from levying special benefit assessments for the change in grade costs against the plaintiffs’ adjoining properties.

In the instant case, no one has even suggested that the installation of sanitary sewers in the subdistrict constituted a detriment to the use of appellant’s property as a cemetery nor that the sanitary sewers adversely affected the value of appellant’s land as such. It would appear that such a proposition would be untenable on its face.

And, if the question is whether channeling raw sewage in enclosed conduits to a disposal point, as opposed to permitting raw sewage to meander through open land and seep into adjoining ground, confers a benefit upon the abutting property, the answer would certainly appear to be that the property is benefited by the sanitary sewer. This is so even though the property owner does not directly use the sewer himself. It is not essential that the benefits be direct or immediate to justify an assessment to particular lands, but it is essential that they have a better basis than mere speculation or conjecture. Kansas City R. Co. v. Road Improvement Dist., 266 U.S. 379, 45 S.Ct. 136, 69 L.Ed. 335 (1924).

It appears that appellant approaches the question of “benefits” to the property from the standpoint that only when the use to which the property is put involves generating raw sewage which would be disposed of by a sanitary sewer does a benefit to the property accrue. Thus, if the use of the property produces raw sewage, then the disposal of the sewage benefits the property, and if no sewage is produced then no benefit is conferred and ergo, the land is not subject to a special tax bill. This approach is fundamentally wrong.

Sanitary sewers exist basically for the protection of the health of the people. One of the consequences of their installation is the enhancement of property values which simply results from the removal of filth which is known to be a cause of disease. The Metropolitan St. Louis Sewer District was established “[i]n the interest of the public health . . . .” Sec. 1.010 of the plan.

Whitsett v. City of Carthage, 270 Mo. 269, 193 S.W. 21 (1917), involved a suit to enjoin construction of a sewer on the grounds that the ordinance authorizing its construction was unreasonable, unjust and oppressive, in that the plaintiffs’ lands, used for agricultural and gardening purposes, would have to bear a large portion of the cost of construction and would not be correspondingly benefited. In upholding the denial of the injunction, this court stated at 24-25:

“Every person in this state and country holds his property subject to the laws providing for the public health, safety, morals, and general welfare, and, if taken or damaged for any one or more of those purposes, then he is entitled to just compensation therefor; likewise, his property must bear its just portion of the cost and expense securing that protection. . . . The public health is menaced and endangered by the aggregation of filth and refuse of the entire district, and is not limited to accumulations thereof upon or about each separate lot or tract of ground located therein. . . .

‘‘Counsel for plaintiffs seem to think that the benefits to real estate only can be considered in the construction of sewers. While in a technical sense that may be true, in a practical sense it is only indirectly true, in a primary sense the benefits are conferred upon the entire people of the district, and secondarily upon the real estate, . . . ” (Emphasis added.)

The special assessment levied against appellant’s property is necessary and incidental to an overall plan to promote the general health and welfare of the entire subdistrict of which appellant’s land forms a part.

Although cemeteries are used to bury the dead, it is live people who perform that task and they congregate at grave sites for that purpose. They also return periodically to visit the graves of their loved ones. Appellant-cemetery is not located in some remote rural area. It is within the metropolitan St. Louis area and is adjoined by Pebble Hill subdivision, a residential development located on land that was, at an earlier time, part of the cemetery property.

The legislative determination by the Sewer District board of trustees of the necessity for the sanitary sewer, pursuant to sec. 9.010 of the plan, creates a presumption that the property in the subdistrict is benefited thereby, 70 Am.Jur.2d Special or Local Assessments, sec. 8 (1973), and the burden of establishing the contrary rests upon appellant.

In Mullins v. Mt. St. Mary’s Cemetery Ass’n, 268 Mo. 691, 187 S.W. 1169 (1916), this court in rejecting a claim that cemetery lands were not benefited by a storm sewer, said at 1170: “There is a presumption in favor of the reasonableness of such an ordinance, and the burden of establishing the contrary rests upon the objector. Hislop v. Joplin, 250 Mo. 588, 157 S.W. 625; St. Louis v. Theater Co., 202 Mo. 690, 100 S.W. 627. That prima facie case must be overcome 'in the most satisfactory manner.’ Morse v. City of West Port, 110 Mo. 502, 19 S.W. 831.”

The court holds that appellant has failed to overcome the presumption that benefits accrue to the cemetery property as a result of the sanitary sewers in question. DeFraties does not warrant a different result than that reached in the divisional opinion in the instant case.

On rehearing by the court en banc, appellant, for the first time in the fifteen years this litigation has been pending, complained of a discrepancy that appears in the special tax bill. The description of the property appearing at one place in the tax bill describes a rectangle 385 feet by 170 feet. This totals 65450 square feet. At the place on the tax bill where the tax computation appears the amount of appellant’s property included within the subdis-trict is shown to be 97151.72 square feet. The rate per square foot is applied to the 97151.72 square-foot figure and results in a bill of $6714.98. The lesser square footage would amount to a bill of $4523.77.

Sec. 9.060 of the plan provides in part:

“ . . . They [special tax bills] shall be prima facie evidence of what they contain and of their own validity, and no mere informality or clerical mistake in any of the proceedings shall be a defense thereto . .

Appellant instituted this litigation and at no time contested the amount of the tax bill nor the square footage of its property which was included within the subdistrict. Indeed, the appellant’s petition, second-amended petition, third-amended petition, and appellant’s answer to the counterclaim, alleged and admitted that 97200 square feet of appellant’s property was included within the subdistrict. This is more square footage than that for which appellant was billed.

The court can only conclude that appellant, by its pleadings, conceded the discrepancy to be a clerical mistake and, therefore, did not choose to litigate the question in circuit court. The point is overruled.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Bossie T. PRICE, Plaintiff-Respondent, v. FORD MOTOR CREDIT COMPANY, Defendant-Appellant.
    No. KCD 26901.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

      James B. Lowe, Michael H. Fishman, Ku-raner, Dingman, Brockus, Kinton & Lowe, Kansas City, for defendant-appellant.
    Arthur C. Popham, Jr., Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Defendant Ford Motor Credit Company appeals from a jury verdict of $600 actual and $25,000 punitive damages for wrongful conversion of plaintiff Bossie T. Price’s automobile. Plaintiff purchased the automobile in 1969 under a retail installment contract which was assigned to defendant. Payments were due the twenty-eighth day of each month. A combination of faulty bookkeeping by defendant and the loss of one payment in the mail resulted in steps that led to repossession of the automobile by defendant on April 6, 1971.

Prior to the consideration of the events of March and April of 1971, the history of the Price accounts needs to be related. The Price account was paid late on many occasions. On several of these occasions, the defendant undertook collection activity. Significantly, although the payment was often late, the defendant had not exercised its right to accelerate. In July, 1970, an agent of the defendant, acting pursuant to directions from the then officer in charge at Gary, Indiana, called on plaintiff and received a cash payment. For this, he gave a receipt, and pursuant to his directions, forwarded the funds to the Gary office. He designated the payment with the account number given to him as being that of plaintiff in the written instructions received from the defendant’s office. The account number was erroneous, and the payment was never properly recorded to plaintiff’s account until plaintiff’s lawyer, in the course of taking depositions, caused it to be located and properly identified. There was also an error in the summary of payments for collection purposes because of a clerical error in failing to include in the computer data a payment made in July of 1969. Both of these errors which had the cumulative effect of showing plaintiff’s account two months delinquent when it was not were solely the result of errors by defendant’s personnel. Thus, in January and February, Mr. Grasa, the person in charge of the collection of the Price account, was possessed of erroneous information as to the status of plaintiff’s account. The correct status of plaintiff’s account in January of 1971 was that it was current, a fact which some of the defendant’s records reflected, as testified to at trial. Thus, some agents of the defendant knew or should have known of the correct status of the account. This confusion in the defendant’s record keeping carried on through the preparation for trial, the defendant filing just before trial amended answers to interrogatories showing the correct status of the account.

The events occurring in March and April of 1971, considered in the light of this history of the account, pose the issues.

On April 1, defendant’s employee, Paul Colyer, called at the Price home demanding payment. Mrs. Price claimed the payments had been made and showed him receipts for money orders made out in the amounts due and payable to defendant. Mr. Colyer took no action, but called Grasa.

A payment had been due on February 28. Plaintiff was in Gary, Indiana working, and he purchased a money order and mailed it in the envelope provided by the defendant. The defendant also purchased another consecutively numbered money order to another payee mailed at the same time, and in due course, received by that payee. The one to defendant was never cashed and, ultimately, plaintiff received reimbursement from the money order company.

In any event, Mr. Grasa, on March 22, ordered repossession of plaintiff’s car. This was six days prior to the due date of the March 28 payment. Admittedly, Grasa was acting on the assumption that plaintiff owed three payments when, in fact, assuming no receipt was made by defendant of the February money order, only one payment was due.

Mr. Grasa spoke by telephone with Mrs. Price on April 2. She gave him the numbers of the money orders. He told her that defendant would not repossess the car until she could verify whether the money orders had been received. Nevertheless, Mr. Grasa did not inform defendant’s repossession agent, who had been notified on March 22 to repossess the Price automobile, about this promise. Nor did Mr. Grasa investigate to determine if the money orders had been issued. There was no further contact between plaintiff and defendant until April 6 when the car was repossessed.

In the meantime and on March 26, the payment which plaintiff thought was due March 28 was received by defendant’s agent. There is a dispute as to when the information as to this payment would or should have reached Grasa, but in any event, it was received at a bank lock box on March 26, eleven days prior to the repossession.

Thus, when all is said and done, the welter of evidence concerning payments boils down to the basic factual situation that Grasa should have known that plaintiff was only one payment in arrears. He further knew by his own admission that plaintiff claimed to have purchased a money order and mailed it to defendant. By the admission in its answer filed, the defendant claims Grasa promised only to check the lock box for the missing payment, an action he never took, for by the defendant’s own testimony, Grasa would have discovered the March 26 payment by any sort of a check of payments made by plaintiff, and that would have apprised him that the order of March 22 to repossess was premature but for the mistaken belief that plaintiff was three payments in arrears.

The evidence offered by the defendant and its exhibits show that there were two separate computerized records made by the defendant. One might be characterized as a serial listing of accounts showing current payments and the other an account receivable ledger which showed the current balance and reflected all payments credited. Both of these records were in error until after the litigation had progressed to the stage of depositions. The account receivable ledger was in error as to only one payment (the July, 1970 payment misidentified by defendant with an incorrect account number). Grasa, even after repossession, never checked the more basic account receivable ledger for, in his preparation of the repossession analysis, he used a balance of $1,604.32, which accounts for only twenty payments, while it is conceded the plaintiff made 21 payments.

The confusion engendered by the evidence does not stand alone. The pleadings and instructions are also confusing. Plaintiff pleaded in four counts, two were dismissed during trial, and two counts (I and II) remained at the time of submission. In prolix fashion, Count I pleaded a cause of action in conversion based on wrongful repossession on alternative factual grounds, viz., first, that all payments had been timely made, and the defendant had no right to repossess, or second, that defendant promised not to repossess until an opportunity was afforded to check on the receipt of payments. This count prayed in terms for only compensatory damages. Count I was reiterated in Count II, and an allegation of wilful and wanton conduct was added. Count II prayed in terms for only punitive damages.

When the cause was submitted, the trial court gave an instruction (No. 2) embodying the theory that all payments had been made. This instruction referred to “Count I.” Likewise, the court gave an instruction on the theory that defendant had promised to withhold action and referred to this as “Count II.” The court further instructed the jury by Instruction 11 that if they found for plaintiff on Count I, they must find for defendant on Count II and, conversely, if they found for plaintiff on Count II, they must find for defendant on Count I. So instructed, the jury returned a verdict for plaintiff on “Count II.”

The damage instructions then authorized by separate instructions actual damages on either count and punitive damages on either count.

Defendant claims instructions 2 and 4 were improperly given because they are inconsistent with the pleadings and “unfairly permitted the jury two opportunities to find against defendant.”

The propriety of instructions 2 and 4 and the trial court’s requirement by Instruction 11 of a finding on only one theory is not necessary for decision. The defendant in his motion for a new trial does not even mention Instruction No. 2. The references to Instruction No. 4 do not, in the vaguest way, raise the issue presented in the defendant’s brief. The points are simply not preserved for appellate review. Rule 78.07. Helming v. Adams, 509 S.W.2d 159, 168 (Mo.App.1974); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11 (Mo.App.1974); Harding v. Grant City Sale Barn, Inc., 492 S.W.2d 99, 103 (Mo.App.1973).

Defendant assigns as error the giving of the punitive damage instruction, claiming there was no evidence of wilful, wanton or malicious misconduct. As defendant states, the standard for assessment of punitive damages is that there be a wrongful act intentionally committed and without just cause or excuse. The defendant must know the act was wrongful when he did it. Beggs v. Universal C. I. T. Credit Corporation, 409 S.W.2d 719, 35 A.L.R.3d 1007 (Mo.1966); Luhmann v. Schaefer, 142 S.W.2d 1088 (Mo.App.1940). As plaintiff points out, legal malice also can arise from acts done in reckless disregard for another’s rights. Pashalian v. Big-4 Chevrolet Company, 348 S.W.2d 628 (Mo.App.1961); Klingbiel v. Commercial Credit Corporation, 439 F.2d 1303 (C.A. 10, 1971). Good faith mistake is a defense to a malicious misconduct count. Thomas v. Commercial Credit Corporation, 335 S.W.2d 703 (Mo.App.1960).

In its attempt to apply these principles to the evidence, defendant claims it had no legal malice and did not intentionally do a wrongful act. It reasons that it had just cause or excuse to believe it was entitled to repossess the Price car since the plaintiff actually was in default at the time of repossession. Defendant places great weight on its assertion that there was a default, saying this is necessarily true since on Instruction No. 2 (in which the jury could have found plaintiff had made and defendant had received the February payment) there was a finding for defendant. But as plaintiff points out, the trial court in Instruction No. 11 forbade a finding by the jury that plaintiff had paid the February payment and that plaintiff relied on defendant’s promise not to repossess. When the trial court required the jury to find for plaintiff on one theory only, if at all, it cannot be said that because the jury chose one theory it necessarily rejected the other. Clearly, there was evidence from which the jury could have found for plaintiff on the theory that the February payment was made. As plaintiff points out, proof of proper mailing creates a rebuttable presumption of receipt by the addressee and proof to the contrary when offered as it was here simply creates a jury issue. Williams v. Northeast Mut. Ins. Ass’n, 72 S.W.2d 166 (Mo.App.1934). Construing the verdict in the light of the instruction 11, the propriety of which is not in issue, the verdict is equivocal on the issue of whether plaintiff was in default. There is no clear finding by the jury on that issue.

More importantly, the issue of default is irrelevant on this appeal because the jury found that defendant promised not to repossess, then broke its promise. So even if there was a default, an issue not decided here, the jury still had a basis to assess punitive damages if it found the acts of the defendant were done with legal malice.

Similarly, the fact that defendant’s agent, Frank Grasa, did not know the taking was wrongful does not help defendant. Defendant’s good faith must be measured against the broken promise not to repossess, not against its belief about a default. From the evidence, the jury could have found that in light of the promise not to repossess and the failure to notify the repossession agent to delay action, defendant knew or should have known the repossession was wrongful, or at the least, defendant acted with reckless disregard toward plaintiff’s rights.

The real thrust of defendant’s argument is that the corporate defendant cannot be held liable for punitive damages because those agents of the defendant actively participating did not know they were mistaken in repossession. Even disregarding the fact that Grasa had to know he was violating the promise to withhold action when he permitted the repossession to occur, the corporate defendant is bound by the knowledge of all of its agents, and it cannot make Grasa’s actions proper by his ignorance of the true facts. Put another way, Grasa’s misinformation, created by other agents’ mistakes, does not avail the corporate defendant of the defense of good faith action. The cases cited by defendant on this point are clearly distinguishable on this point since none involve knowledge by one agent not communicated to another.

As plaintiff in his brief points out, the retention of possession by the corporate defendant in the face of the promise not to take possession made by Grasa (as the jury found), is an element bearing on the wilful or wanton or reckless indifference to plaintiff’s rights which constitutes legal malice. Davis v. Nash Central Motors, 332 S.W.2d 475 (Mo.App.1960); Thomas v. Commercial Credit Corporation, supra.

Defendant also argues that it cannot be said, as a matter of law, that four days time to trace the money orders before repossession was unreasonable. Thus, the argument goes, the element of malice is rebutted by Mr. Grasa’s good faith belief that his action was reasonable. Mr. Grasa’s testimony was introduced through his deposition. There is nothing in his testimony to indicate he believed this time period was reasonable. To the contrary, when he made the promise to Mrs. Price, he already knew there was an order out to have the car repossessed, and he did nothing to stop that order, although he could have communicated easily to the repossession agent such an instruction. The repossession could as well have happened the morning of April 3. It is a mere fortuity that it happened four days after the promise rather than sooner. The issue was submitted to the jury, and they found against the defendant.

Defendant cites Calhoun v. Universal Credit Co., 106 Utah 166, 146 P.2d 284 (1944) as “very similar” to this'case. There, seller waived strict compliance with the contract and gave the buyer time in which to sell or refinance his car. After repeated attempts to contact the purchaser, defendant-seller finally notified the buyer’s sister, who was the only person who could be contacted at the buyer’s address, that it would repossess if the buyer did not act. The buyer did not act, and the seller repossessed. Under these circumstances, no punitive damages were allowed although the repossession was held wrongful. Calhoun contrasts to defendant’s conduct herein. There, defendant waived what it thought was its right to repossess, fully attempted to comply with its promise with the buyer and finally repossessed in good faith. The only similarity with the instant case is the promise to delay repossession. Defendant here made no attempt to make good its promise. Its repossession, in light of Gra-sa’s assurance he would not, is more appropriately characterized as an act in bad faith.

In another assignment, defendant says the theory of liability of Instruction No. 4 will not support a punitive damages award. Defendant relies on its view that Instruction No. 4 is based on contract theory — that the instruction presented a question of breach of agreement, i. e., contract. It is unnecessary to reach the contract question because the wrongful act by defendant was not breach of contract but conversion. The jury found that defendant agreed plaintiff could keep the automobile at least until the matter of the unaccounted for money orders could be settled. The right of possession was in plaintiff. Defendant’s taking was against this claim of right. “The law of conversion is concerned with possession, not title, and its essence is not in the acquisition of the property by the wrongdoer, but in the wrongful deprivation of it to the owner. There need only be some repudiation of the owner’s right or some exercise of dominion over it inconsistent with some right.” McCullough v. Beatty Oil Company, 444 S.W.2d 53 (Mo.App.1969), citing 89 C.J.S. Trover and Conversion § 3, pp. 533, 534, and Milne Lumber Company v. Michigan Cent. R. Co., 57 S.W.2d 782, 736 (Mo.App.1933). An action might contain elements of both breach of contract and conversion and be decided on either theory. McCullough v. Beatty Oil Company, supra. In the instant case, although the word “agreement” appears in the pleadings, it is clear the action was not for breach of contract, but for a tortious wrongful taking inconsistent with plaintiff’s right to continued possession. Clearly, no issue appears in this case of award of punitive damages for breach of contract. The colloquy between counsel and the trial judge on a variety of occasions demonstrates the case was tried on a theory of conversion. That the plaintiff’s right to continued possession arises out of the defendant’s promise to withhold repossession does not change the theory of the action which was purely in conversion.

Defendant also urges that in regard to Instruction No. 4, the trial court should have required a finding by the jury that Frank Grasa, as agent for Ford Motor Credit Company, was acting within the scope of his authority when he allegedly promised Mrs. Price not to repossess the car until the money orders could be traced.

Defendant correctly states that, in general, there is no presumption of agency, and that plaintiff has the burden of proof on the issue. What defendant ignores is the decisional law holding that under certain circumstances, when an issue is uncontroverted, the trial judge is not required to submit the issue to the jury in its instructions. Davidson v. St. Louis Transit Co., 211 Mo. 320, 356, 109 S.W. 583, 593 (1908); Jones v. Missouri Petroleum Products Company, 331 S.W.2d 573 (Mo.1960). Specifically, when agency is uncontroverted, it is correct for the trial court to give instruction ignoring the issue. Price v. Haeberle, 25 Mo.App. 201 (1887); Hanser v. Lerner, 153 S.W.2d 806 (Mo.App.1941).

Defendant admitted that Mr. Grasa was its agent authorized to do business on accounts, including the Price account. It is clear from the record that on numerous occasions defendant’s agent, Frank Grasa, and others permitted the Prices to make late payments — as much as sixty to eighty days late according to defendant’s own proof. At no time did defendant argue or present evidence that its agent, Frank Gra-sa, acted beyond the scope of his authority. The closest approximation in the record to such an argument was the introduction into evidence of defendant’s exhibit 33, the retail installment contract, and the reading of a paragraph of the contract which precluded alteration of its terms unless in writing. No issue is here made that the provisions of the contract preclude plaintiff’s recovery. Defendant’s brief says several times that the trial judge overruled attempts to argue the scope of Mr. Grasa’s authority. However, defendant does not show where such a request was made, and the record discloses no such request. It was not error for the trial judge to fail to include in the instructions a finding of agency or of the scope of the agent’s authority.

Defendant finally urges the trial court’s error in overruling of the motion for a new trial or to require a remittitur on the issue of excessiveness. Defendant contends the verdict was so excessive as to show the jury was prejudiced and biased. Defendant relies on cases where a remitti-tur was ordered and affirmed or where a remittitur was ordered on appeal. In these and other cases, however, it is clear that the award of punitive damages is discretionary with the jury, cannot be measured by a pre-set formula, varies according to the facts in each case and is not to be reversed except on a clear showing of abuse of discretion, e. g., Beggs v. Universal C. I. T. Credit Corporation, supra. The jury’s discretion is particularly significant because the purpose of punitive damages is to punish wrongdoing and to deter future similar wrongful conduct. The jury must weigh, among other things, what amount this particular defendant should be made to pay so that the penalty will act as an effective deterrent. Wisner v. S. S. Kresge Company, 465 S.W.2d 666 (Mo.App.1971). Deference also is due the trial court when it has used its discretion and ordered a remittitur or upheld the award. Pisha v. Sears, Roebuck & Company, 496 S.W.2d 280 (Mo.App.1973); Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S.W.2d 189 (1951).

In this case, it cannot be said an award of $25,000, approved by the trial court, was a clear abuse of discretion. There was a finding of conduct meriting a punitive damage award. Defendant’s net worth is over 400 million dollars. It has over one million credit accounts. It is a wholly owned subsidiary of one of the nation’s largest corporations.

The facts were before the jury as to the error-ridden records of the defendant, and the failure of defendant’s agents to use the most elementary precautions to determine the accuracy of the information. This, added to Grasa’s plain disregard of his commitment to withhold action, afford a factual basis for the jury’s award. Everything considered, the award cannot be said to be so excessive as to require a remittitur, and the defendant does not couple the claim of ex-cessiveness with any trial error indicating that the amount of the verdict arises out of passion and prejudice.

The verdict and judgment are affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    SEMO GRAIN COMPANY, Respondent, v. OLIVER FARMS, INC., Appellant.
    No. 9852.
    Missouri Court of Appeals, Springfield District.
    Nov. 7, 1975.

      Hux & Green, Sikeston, for respondent.
    Dwight Grader, Sikeston, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Breach of contract for sale of soybeans. A jury was waived, and the court found the defendant had breached the contract and entered judgment for the plaintiff for $93,-750. We affirm.

In March, 1972, the defendant, a farming corporation, entered into a written contract whereby it agreed to sell to plaintiff, a grain dealer, 75,000 bushels of No. 1 yellow soybeans at $3.10 per bushel. Delivery of the soybeans by the defendant was to be made at plaintiff’s elevator during January, 1973. Nothing in the agreement required the defendant to grow the soybeans on any certain lands, and, for that matter, defendant was not obligated to grow the soybeans.

From various farms defendant either owned or rented, 19,855 bushels of soybeans were produced and harvested. These soybeans were sold by the defendant to other grain purchasers for prices in excess of $3.10 per bushel. The defendant did not deliver any soybeans to the plaintiff.

Plaintiff filed this suit in February, 1973, seeking to recover the difference between the contract price and market price of soybeans as of January, 1973. Defendant’s answer, a general denial of plaintiff’s petition, was filed in March, 1973. Trial was held October 8, 1973, and the court took the case under advisement. In December, 1973, defendant filed a motion seeking to file an amended answer in which it alleged it was excused from performing the contract by reason of adverse weather conditions pursuant to § 400.2-613 and § 400.2-615, RSMo 1969. Thereafter, the court overruled this motion of the defendant and made findings of fact and conclusions of law in support of the judgment entered for the plaintiff.

At the trial the defendant attempted to show that heavy rainfall during the growing season of 1972 was the reason why it failed to perform the contract. According to defendant’s president 3500 acres of soybeans were planted but excessive rainfall destroyed all but 1500 acres of the crop and resulted in a harvest of only 19,855 bushels. He acknowledged defendant did not give plaintiff any notice the contract would not be performed and admitted the soybeans produced by the defendant were sold to other grain dealers for prices higher than that specified in the agreement with the plaintiff.

Plaintiff’s objections to defendant’s evidence concerning its excuse for nonperformance of the agreement were sustained by the court as being beyond the scope of the issues framed by the pleadings and thus not relevant.

The defendant contends it was excused from performance because of “casualty to identified goods” due to “bad weather conditions” and in support of this contention cites § 400.2-613 of the Uniform Commercial Code. In opposition to this proposition the plaintiff asserts any excuse relied upon by the defendant to escape liability under the contract was an affirmative defense and was not pleaded; that any evidence in support of an affirmative defense was properly excluded as not being relevant; and, in any event, defendant’s excuse does not fall within the provisions of the Uniform Commercial Code relied upon by the defendant. As we will shortly demonstrate, we agree with the plaintiff and conclude the trial court correctly entered judgment for the plaintiff.

Matters seeking avoidance of a valid contract are affirmative defenses which must be set out in the pleadings. Rules 55.01, 55.08; Forty Four O One Hampton Realty Co. v. Keegan, 426 S.W.2d 701 (Mo.App.1968). The defendant’s general denial placed in issue all material allegations contained in plaintiff’s petition necessary to support plaintiff’s claim, and the defendant was entitled to prove any fact which tended to show plaintiff’s cause of action never had any legal existence. Farley v. Farley, 181 S.W.2d 671 (Mo.App.1944). However, where the defendant “[Ijntends to rest his defense upon some fact not included in the allegations necessary to support the plaintiff’s case [then] he must plead the same specially or affirmatively in his answer as a condition to the admissibility of such evidence at the trial.” Farley v. Farley, supra at 673. Defendant’s attempted assertion of its excuse for nonperformance is clearly an affirmative defense, “[T]hat is, a defense resting on facts not necessary to support plaintiff’s case.” Wilson v. Motors Ins. Corp., 349 S.W.2d 250, 253 (Mo.App.1961). Here, the defendant’s failure to affirmatively plead excuse warranted the exclusion of evidence relating thereto. Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973); John Deere Co. v. Davis, 335 S.W.2d 686 (Mo.App.1960).

This brings us to consideration of defendant’s claim the trial court committed reversible error in denying the proposed amendment to its answer.

We recognize Rule 55.33 allows for liberality in the amendment of pleadings, but are also aware that the disposition of a particular motion to amend remains wholly within the discretion of the trial judge and his decision “[I]s not to be questioned on appeal unless there is a clear abuse of discretion.” State ex rel. Thomas v. Wolfsberger, 519 S.W.2d 559, 560 (Mo.App.1975). In the case before us there is no doubt but that the defendant had knowledge of the facts upon which the proposed affirmative defense was based for more than six months before its answer, a general denial, was filed. Seven months passed and the parties went to trial on the issues joined by plaintiff’s petition and defendant’s answer. Defendant’s claim of excuse for nonperformance first appears in the transcript after the plaintiff had presented its evidence in support of the petition. Even then the defendant delayed making a motion which specified the nature of the proposed amendment to its answer until several weeks after all the evidence had been presented and the case was in the bosom of the court.

In a similar situation, where the defendant went to trial on a general denial of plaintiff’s petition for breach of a contract for sale of hay to the defendant and the defendant complained he should have been permitted to assert an affirmative defense by amendment, the court in Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973), held there was no abuse of discretion by the trial court in denying the amendment. In the circumstances presented in this case we cannot convict the experienced trial judge of an abuse of discretion in denying defendant’s motion to amend its answer to allege the affirmative defense. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971).

Aside from the foregoing, the defendant earnestly argues that it is exonerated from liability because of the Uniform Commercial Code. In support of this position defendant relies on § 400.2-613 and § 400.2-615 and says that if the parties contemplate a sale of all or a certain part of the crop of a particular tract of land, and by reason of drought or other fortuitous event, without fault of the seller, the crop of that land fails or is destroyed, nonperformance is to that extent excused. As additional authority, defendant cites the case of St. Joseph Hay and Feed Co. v. Brewster, 195 S.W. 71 (Mo.App.1917), which antedated the Uniform Commercial Code.

The difficulty inherent in defendant’s contention is that the agreement between the plaintiff and the defendant in this case does not fall within the cited provisions of the Uniform Commercial Code and is not ambiguous in its terms.

In Bunge Corporation v. Recker, 519 F.2d 449 (8th Cir.), 1975, on facts nearly identical to those in the case before us, the seller sought to be excused from performance by reason of an act of God in the destruction of part of his crop and pleaded so defensively. In rejecting this pleaded defense the court said: “Since the beans were not identified other than by kind and amount, we agree with the trial judge that the destruction by weather did not constitute an act of God which would excuse performance under either the provisions of the Missouri Uniform Commercial Code or the decisional law of that state. § 400.2-613, St. Joseph Hay & Feed Co. v. Brewster, 195 S.W. 71 (Mo.App.1917).”

The court continued: “Assuming, arguen-do, that parol evidence was admissible to explain the agreement, the appellee is faced with the finding of the court on the facts before it that the beans were not identified. Moreover, appellee’s attempt to show that the . . . beans were to be produced on an identified acreage flies in the face of the agreement, which provided, among other things: 9. Seller warrants that the commodity delivered under this contract was grown within the boundry (sic) of the continental United States. Obviously, appellee could have fulfilled its contractual obligation by acquiring the beans from any place or source as long as they were grown within the United States. To permit the introduction of parol evidence to show that the beans were to be grown on a particular acreage would completely circumvent the provisions of V.A.M.S. § 400.2-202.

Consequently, we are in total agreement with the district judge in his finding and conclusion that appellee was liable in damages for breach of the contract.”

As we earlier indicated herein, the contract of the parties makes no reference to soybeans grown (or to be grown) by the defendant on any identified acreage, nor did it obligate defendant to grow beans at all. Defendant’s obligation under the terms of the agreement was to deliver to plaintiff’s elevator, during the month of January, 1973, 75,000 bushels of No. 1 yellow soybeans. In return, the plaintiff agreed to pay defendant $3.10 per bushel. The instant agreement did not restrict defendant as to where the beans were grown as did the contract in Bunge Corporation v. Becker, supra, and defendant “could have fulfilled its contractual obligation by acquiring the beans from any place or source . . ”

The defendant also complains of the method utilized by the trial judge in assessing damages. Defendant contends the measure of damages should have been the difference between the contract price and the market price of the beans when plaintiff learned of the breach of contract “which was on or before January 1, 1973”. Pursuing this, defendant argues the contract was breached when the soybeans were destroyed by adverse weather in the field (prior to January, 1973) and plaintiff “knew, or should have known” this.

Defendant’s position is unsound. First of all defendant admitted it at no time notified plaintiff it would not or could not fulfill its contract. Second, the argument presupposes that plaintiff was relying on the contract being performed by defendant furnishing beans grown by it on certain acreage, and this supposition is contrary to the agreement of the parties. Third, the first inkling plaintiff had that defendant did not intend to fulfill the contract was when plaintiff’s agent learned defendant was harvesting and selling beans in the latter half of January, 1973. Last but not least, the contract called for January delivery, and the breach did not occur until January 31, 1973. Since the difference between the market price of soybeans during the latter half of January, 1973, and the price specified in the contract was never less than $1.27 per bushel, it cannot be said that an award of $1.25 per bushel damages was excessive.

The judgment is affirmed.

All concur.

      . Immediately following the execution of the agreement between plaintiff and defendant the plaintiff resold the soybeans to a third party. This latter contract called for plaintiff to make January, 1973, delivery of 75,-000 bushels of soybeans. Because of defendant’s default plaintiff was required to “buy in” the specified amount of soybeans.

      . During the presentation of plaintiff’s evidence the defendant sought to cross-examine plaintiff’s president about certain business practices. In response to plaintiff’s objection, counsel for defendant stated: “Judge, this is a case tried before the court, and I will ask the court to take judicial notice of the evidence and ask that the pleadings be amended to conform to the evidence.” The judge, understandably in our view, failed to treat this ambiguous request as a motion and rule it as such. Motions are required to “state with particularity the grounds therefor, and ... set forth the relief or order sought.” Rule 55.-26.

      . Since the appellate court disagreed with the district court’s method of assessment of damages the judgment was vacated and the case remanded on that issue.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Wayne UNDERWOOD, Appellant.
    No. 36290.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 12, 1975.

      Law Offices of Forriss D. Elliott, Richard A. Fredman, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Wayne Underwood, charged with murder in the first degree of Rickie King, was found guilty by a jury of murder in the second degree and sentenced to the custody of the Department of Corrections for a term of twenty years. He has appealed. We affirm.

Appellant does not challenge the sufficiency of the evidence. We need only relate that a jury reasonably could find from the evidence that on October 31, 1974, appellant, then eighteen years of age, and a former student at Northwest High School in the City of St. Louis, went to the High School and shot Rickie King in the abdomen with a shotgun inflicting a mortal wound.

Appellant first contends that prejudicial error resulted from the failure of thé trial court to instruct the jury upon the subject of good character.

Rule 26.02(6), which in substance follows the language of § 546.070(4), RSMo 1969, provides that in all criminal cases the court, whether requested or not, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict, which instruction “shall include whenever necessary the subjects of good character and reasonable doubt.” The term “whenever necessary” as used in the statute and rule, “means that such an instruction is necessary only when there is substantial evidence tending to show the good character of the defendant.” State v. Moore, 303 S.W.2d 60, 70 (Mo. banc 1957). See also the Notes on Use to MAI-CR 2.50.

The testimony which appellant contends was sufficient to require such instruction is that of the Reverend Mr. Kenneth Whitlock given on direct examination as follows:

Q. And in that capacity, have you ever had occasion to know this young man here?
A. Yes, sir.
Q. How long have you known him?
A. Eight months.
Q. And how did you know him during these eight months?
A. He’s a good young man.
Q. How did you know him? Where did you see him?
A. I see him at the services on Saturday and Sunday.
Q. At church?
A. Yes, sir.
Q. On Saturday and Sunday?
A. That’s right.
Q. How many Saturday and Sundays?
A. Every one since he’s been a member of the Mercy Seat Baptist Church, seven or eight months.
Q. You are referring to every Saturday and Sunday of every week?
A. Yes.
Q. Have you had an opportunity to observe him and associate with him during the period of eight months in the church?
A. Yes, sir.
Q. Do you know his reputation in the community of the church for truthfulness?
A. Yes.
Q. What is that reputation?
A. Good, sir.
Q. Good?
A. Yes, sir.

It is readily apparent that the testimony of Mr. Whitlock went only to appellant’s reputation for truthfulness. In State v. Steely, 327 Mo. 16, 33 S.W.2d 938 (Mo.1930), in ruling on an assignment of error that the court erred in failing to instruct on good character, the court said: “The only evidence offered as to the reputation of the defendant was as to his truth and veracity. Therefore, the court was not bound to instruct on good character, under [what is now § 546.070, RSMo 1969], as contended by the defendant.” See also State v. Hayes, 295 S.W. 791 (Mo.1927); and State v. Williams, 337 Mo. 884, 87 S.W.2d 175 (Mo.1935).

We note that at trial appellant took a position inconsistent with that taken on this appeal. He now asserts that the testimony quoted above placed in issue his good character. At the trial he objected, and was sustained, to the State offering rebuttal evidence as to his good character because “His reputation of truthfulness was the only thing put into evidence, that’s the only testimony from Reverend Whitlock — truthfulness.”

Appellant next asserts that prejudicial error resulted when the prosecutor stated in his opening statement that one of the guards at the school who apprehended appellant would testify that appellant said: “I’m tired of him messin’ with me. I’m going to get a machine gun and mow them all down.” At the time appellant’s counsel admitted that he was not claiming that he was not aware of the purported statement, but he was objecting because the statement was “highly inflammatory,” there had been “no admission” on behalf of appellant, it was “injected solely to inflame the jury,” and it was “not relevant at all.”

In argument, appellant asserts that the prosecutor used the term “machine gun” as appellant’s own words, but the guard testified that when apprehended appellant said that “when he got out he would get them all.” He contends this variance demonstrates bad faith.

A prosecuting attorney may outline by opening statement what he expects to show in evidence, and the trial court is vested with wide discretion in determining whether he acted in good faith in making the statement. State v. Paige, 446 S.W.2d 798 (Mo.1969). When made with reasonable grounds to believe the facts stated can be proved, the statement is not improper, State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420 (1933), although the facts are not followed up with proof because evidence is either excluded or omitted. State v. Paige, supra.

It is obvious that the prosecutor expected one of the guards who apprehended appellant to testify to the precise statement he attributed to appellant, and appellant’s counsel admitted, or at least did not deny, that he was aware that the statement was supposed to have been made by appellant. There is no indication of bad faith on the part of the prosecutor.

As to appellant’s claim that the use of the term “machine gun” was “highly prejudicial and inflammatory” and “not relevant at all,” we must disagree. First, no such evidence was placed before the jury, but it is clear that the prosecutor expected such testimony. All admissible testimony adverse to an accused in a criminal ease may be termed “prejudicial” or “inflammatory” when it tends to establish his guilt, but that alone does not make it improper. Appellant has not demonstrated why the statement would not have been admissible if the witness had so testified, and certainly has not shown that .the prosecutor had reason to believe that the statement was not admissible in any event at trial. We find no prejudicial error.

Appellant next asserts that it was error for the trial court to overrule his objection to the statement by the prosecutor in his argument to the jury that “if it was not murder, first degree, the state would charge him with murder, second degree.” Appellant’s counsel said: “I will object to that statement, your Honor. It is improper.” He did not present to the trial court tne reason now advanced on this appeal, which is that “it is improper for a prosecuting attorney to express to the jury in argument his belief of the defendant’s guilt in such a way that it implies knowledge on his part of facts not in evidence pointing to such guilt.”

There are several reasons why appellant’s contention is without merit. First, the objection was general and did not advise the court why the statement was claimed to be improper, and the reason now advanced was not presented to the trial court. Second, the statement when read in context does not carry the implication attributed to it. The prosecutor had just reviewed the facts of the shooting, and he then said: “Ladies and Gentlemen, under the law, this is murder, first degree. That is why the charge is murder, first degree.” He then followed with the statement quoted by appellant. Third, the distinguishing feature between murder, first degree, and murder, second degree, is that the former requires a finding of deliberation. Murder, second degree, is murder absent deliberation. Therefore, the statement could not imply knowledge of “facts not in evidence pointing to such guilt.” It was no more than a comment that the evidence established deliberation. Fourth, the jury found appellant guilty of murder, second degree; not first degree. Therefore, it could not in any event be said that the argument was prejudicial.

Appellant’s final point is that the court erred in “failing to admonish the jury not to converse among themselves, nor to suffer others to converse with them or in their hearing on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.”

After the panel of veniremen was sworn, and during the voir dire examination, a recess was taken until the following morning. At that time the trial court said: “Members of the jury: You can anticipate that the court will read to you an instruction, after twelve of you are sworn as jurors in this case, that you are not to discuss this among yourselves or with others, until the case is given to you to decide. Please keep that instruction in mind on your way home and at home this evening.” Appellant contends that § 546.230, RSMo 1969, required that the court give the admonishment therein provided for to the veniremen when the recess was taken. We find no merit to appellant’s contention of error for at least two reasons.

The material provisions of § 546.230, RSMo 1969, are as follows: “⅜ * * when the jurors are permitted to separate, after being impaneled as provided for in this chapter, and at each adjournment the court must admonish them ⅜ ⅜ ⅜ The requirement is that the jurors, not the veniremen, be admonished when permitted to separate and at each adjournment “after being impaneled as provided for in this chapter.” “By ‘impaneling’ the jury is generally meant the process of examining, challenging, passing, and accepting as jurors on the trial of a particular case certain persons of those present for jury service, who have been summoned for such service. The word ‘impanel’, covers all the steps in ascertaining who shall be the 12 men to sit as jurors in a case, and means the final formation of the jury by the court preceding the oath.” 47 Am.Jur.2d, Jury, § 189. Therefore at the time the recess was taken the jury had not been impaneled, and there was no statutory duty to admonish the veniremen as provided in § 546.280.

In addition to the above, at the time the recess was declared the court gave the veniremen an admonishment which was not completely in compliance with the requirements of § 546.230, but perhaps was sufficient, State v. Harris, 477 S.W.2d 42 (Mo.1972), particularly when there is no attempt to demonstrate any misconduct on the part of any juror or prejudice to appellant. State v. Brown, 502 S.W.2d 295 (Mo.1973). Appellant interposed no objection to the deficiency of the admonishment, assuming any was required or that the one given was deficient, nor did he request that an admonishment be given which met all the requirements of § 546.230. In these circumstances, if there was a duty to admonish the veniremen when the recess was taken, the failure to do so was waived by appellant.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Allen THOMAS, Appellant.
    No. 36599.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 12, 1975.

      Gael T. Infande, Crouppen, Walther & Zwibelman, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Allen Thomas was charged with the felony-murder of Edgar Clark and with robbery in the first degree by means of a dangerous and deadly weapon. He was found not guilty by a jury of murder, but guilty of robbery, and was sentenced to the custody of the Department of Corrections for a term of fifteen years.

Appellant presents two points in his brief to this court; (1) “It was plain error for the court to allow the jury panel to consist of only thirty-four members instead of the required forty-seven; ” and (2) “The jury verdict was against the weight of the evidence because the character of the State’s key witness precluded reasonable people from believing her testimony.”

As to his first point, appellant necessarily relies on Rule 27.20(c) pertaining to plain error because at no time did he object that the jury panel consisted of only thirty-four members instead of forty-seven, and he made no mention of the matter in his motion for new trial.

Appellant was tried in the City of St. Louis, which has a population of over one hundred thousand, and he was charged with murder in the first degree. Therefore the provisions of § 546.180, subsec. 2, were applicable, State v. Williams, 515 S.W.2d 544 (Mo.1974), and he was entitled, at least upon request, to a jury panel consisting of forty-seven qualified members from which he was entitled to twenty peremptory challenges, and the State was entitled to fifteen peremptory challenges.

The right of an accused to a panel of qualified jurors of the number specified in § 546.180, subsec. 2, RSMo 1969, before he may be called upon to make his peremptory challenges “is a matter of exception, pure and simple,” State v. Bell, 166 Mo. 106, 65 S.W. 736 (1901), and the right to exercise peremptory challenges in a criminal case is a right which may be waived by the accused or by the State after a fair opportunity has been given to exercise it. State v. Long, 324 Mo. 205, 22 S.W.2d 809 (1929); State v. Page, 186 S.W.2d 503 (Mo.App.1945); State v. Supinski, 378 S.W.2d 602 (Mo.App.1964); Annotation, 56 A.L.R.2d 742; 47 Am.Jur.2d, Jury, § 241. In State v. Nichols, 165 S.W.2d 674 (Mo.1942), it was expressly held that the failure to object to a jury panel which provided the accused with fewer peremptory challenges than authorized by statute constituted a waiver of the right to a larger panel.

In each of the cases cited and relied on by appellant, State v. Williams, supra; State v. Kinne, 372 S.W.2d 62 (Mo.1963); and State v. May, 168 Mo. 122, 67 S.W. 566 (1902), the defendant objected to being forced to make his peremptory challenges from a panel consisting of less than the number provided by statute, and that issue was then preserved for appellate review. But, as previously noted, appellant made no objection in any manner, and did not present the matter in his motion for new trial. Therefore, the cases relied on by appellant are not controlling.

It has long been the rule that an appellate court, will not consider matters, other than those constituting plain error within the meaning of Rule 27.20(c), raised for the first time on appeal, and it will not convict a trial court of error which was not timely brought to its attention so it could correct the error. This leaves only the question of whether the failure to provide a jury panel of forty-seven members, so that appellant could exercise twenty peremptory challenges instead of twelve, constituted plain error affecting substantial rights within the meaning of Rule 27.20(c), and we hold that it does not.

First. If appellant had presented the matter in his motion for new trial, the failure to object timely would have constituted a waiver of the right to have a jury panel of forty-seven members, and no prejudicial error would have resulted. If there occurred no reversible error, there obviously cannot be plain error adversely affecting substantial rights within the meaning of Rule 27.20(c).

Second. A peremptory challenge is an arbitrary and capricious species of challenge to a certain number of qualified jurors without the need of showing any cause. The peremptory challenge is not exercised in the selection of jurors, but in their rejection. State v. Supinski, 378 S.W.2d 602 (Mo.App.1964). It has been stated that the peremptory challenge permits a litigant, or the accused in a criminal case, to have excused a juror as to whom there are insufficient grounds to support a challenge for cause, but who, in the opinion of the challenger may not be inclined to look with favor upon him or the nature of the controversy. 47 Am.Jur.2d, Jury, § 233. The use of the peremptory challenge is a part of the process of obtaining, and its objective is to obtain, a fair and impartial jury.

Appellant does not contend that he did not have a fair and impartial jury, either as a body or as individual jurors. Therefore, where appellant has waived his right to exercise twenty peremptory challenges by failing to object or move to quash the jury panel, and by failing to present that issue in his motion for new trial, there must be a showing that a fair and impartial jury was not empaneled if we are to set aside the conviction on the basis that plain error occurred adversely affecting substantial rights. Since there is no such claim, much less any proof, there occurred no plain error within the meaning of Rule 27.20(c). For a somewhat comparable case, see State v. Howard, 476 S.W.2d 587 (Mo.1972).

There is another reason why the judgment is not to be reversed. Appellant was entitled, upon request, to a jury panel of forty-seven members because he was charged with murder in the first degree. But, the jury returned a verdict finding him not guilty of murder. Therefore, if the judgment as to robbery, from which this appeal is taken, is to be reversed, upon retrial he would be entitled to a jury panel of thirty-four members, State v. Williams, supra, and that is precisely the number he had in the present trial.

It has been said that error in a criminal trial is presumed to be prejudicial, State v. Allen, 246 S.W. 946 (Mo.1922), but such a presumption is not conclusive, State v. Boone, 355 Mo. 550, 196 S.W.2d 794 (1946), and may be overcome by the facts and circumstances of the particular case. State v. Coleman, 186 Mo. 151, 84 S.W. 978 (1905). Harmless error is not grounds for the reversal of a judgment. State v. Davis, 369 S.W.2d 237 (Mo.1963); State v. Spica, 389 S.W.2d 35 (Mo.1965). In view of the fact that appellant was acquitted of the murder charge, and upon retrial of the robbery charge he would be entitled to the exact number of peremptory challenges he received at the trial of this case we find, at most, a procedural error without prejudice. See State v. Walker, 484 S.W.2d 284, 286 (Mo.1972).

By his second point, that the jury verdict “was against the weight of the evidence,” appellant presents no issue for appellate review. This was an issue for the trial court in ruling on the motion for new trial, but the weight of the evidence is not a matter reviewable by an appellate court. State v. Talbert, 454 S.W.2d 1 (Mo.1970); State v. Williams, 376 S.W .2d 133 (Mo.1964). Appellant argues that the principal witness for the State was not believable because she was an admitted prostitute and a murderer. However, the court properly instructed the jury concerning the believability of the witnesses, and it was for the jury to determine the credibility of the witnesses, including this one. State v. Minor, 282 S.W.2d 545 (Mo.1955). This court determines only whether there was substantial evidence, if believed by the jury, to sustain a verdict of guilty, State v. Missey, 234 S.W.2d 777 (Mo.1950), and appellant does not contend that there was not.

The judgment is affirmed.

SMITH, C. J. and NORWIN D. HOUSER, Special Judge, concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Wyman O’Neal POTTER, Appellant.
    No. 10047.
    Missouri Court of Appeals, Springfield District.
    Nov. 13, 1975.

      John C. Danforth, Atty. Gen., Sheila Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

A jury convicted defendant of second degree burglary (§ 560.045) and stealing (§ 560.156), and fixed his punishment at two years’ imprisonment for each offense. §§ 560.095(2) and 560.110, subd. 1. In pronouncing sentence, the court fixed the terms to run consecutively. § 560.110, subd. 2. Defendant has appealed.

Defendant says the evidence was not enough to sustain the conviction. Although defendant properly preserved this point for appellate review, we would, nevertheless, be bound to recognize it for if the evidence be insufficient to sustain the conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted. State v. White, 439 S.W.2d 752, 753[2] (Mo.1969); State v. McClunie, 438 S.W.2d 267, 268[2] (Mo.1969); State v. Alderman, 500 S.W.2d 35, 36[1] (Mo.App.1973); Rule 27.20(c).

To determine if the evidence was enough to sustain the conviction, we accept all as true which tends to prove defendant’s guilt [State v. Chase, 444 S.W.2d 398, 401[1] (Mo. banc 1969)], and indulge all reasonable inferences favorable to the state [State v. Davis, 516 S.W.2d 784, 785[3] (Mo.App.1974)], bearing in mind that in a cause such as this where the conviction depends upon circumstantial evidence, the circumstances must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the guilt of the defendant, but must be inconsistent with every other reasonable hypothesis including the hypothesis of defendant’s innocence. State v. Cox, 527 S.W. 448, 452[3] (Mo.App.1975); State v. Eye, 492 S.W.2d 166, 167—168[2] (Mo.App.1973); MAI-CR 3.42.

C. L. Watson resided 3½ miles southwest of Senath, Dunklin County, Missouri. At 7:45 p. m. September 11, 1974, he departed the house and returned at 9:15 p. m. to find his home had been forcibly entered and ransacked. The rear glass storm door was broken and the back door had been forced open. A safe, weighing 80 to 100 pounds and containing $800, was missing. Watson notified the authorities and they responded.

A deputy sheriff found “a large piece of jagged glass” on the back porch which had “what appeared to be blood” on it. There was no blood inside the house, but “the next morning ... in the daylight” blood spots were discovered on the graveled driveway at the Watson home.

The next morning, or perhaps the night of the burglary (the record is not clear), tire marks were observed adjacent to the Watson driveway which indicated a U-turn had been made by a vehicle on which were mounted three “regular type tires” and one “mud and snow tire.” In tracking the tire marks, they led to the Coldwater vicinity, some 6 miles southeast of Watson’s home, before being lost when the vehicle traveled onto pavement. Someplace near the tire marks in the Coldwater area, a jewelry box (contents unknown) was discovered the day following the burglary. Watson had not missed the box prior to its discovery.

On the night of the burglary the authorities asked area hospitals to notify them should anyone appear for treatment of a laceration. Responding to a call from the Hayti Hospital (in Pemiscot County about 32 miles from the Watson residence), officers arrived at the hospital about 10:30 p. m. Defendant was in the emergency room with his right hand bandaged as part of the treatment given because of a laceration to the dorsal surface thereof. Outside in the hospital parking lot and waiting for defendant, were Loal Joiner and two lady companions. They were in a Buick automobile owned by Joiner’s mother. The Buick was equipped with three regular tires and one mud and snow tire. Defendant gave his permission for a blood sample to be taken from him; Joiner gave the authorities permission to search the vehicle.

In a search of the automobile by several officers, some bloody newspapers were found in the rear seat and a punch was seen lying under the front seat. The newspapers were removed; the punch was not. Nothing was found inside the trunk of the car. The Buick was towed to a storage lot in Kennett. Defendant and Joiner were arrested; their women companions were not. When defendant was arrested he had 8 cents in his pockets. The amount of money, if any, possessed by Joiner or the two women at the time, was never revealed.

One Franklin McDaniel, who had disappeared from the area by trial time, found the stolen safe in Ditch 6 about 6 miles southwest of Hayti the afternoon of September 17. It had been opened. This discovery prompted another search of the Buick and this time, in the trunk, the offi-eers reported finding some “white material.” The punch was also then removed from the car. About two weeks after the burglary, the officials delivered to a criminologist the blood sample taken from the defendant the night of the burglary, the bloody newspapers, bloody glass found at the Watson residence, the punch found in the car, the “white material” taken from the Buick’s trunk, and a sample of insulation obtained from the safe. The criminologist, a state’s witness, testified it was “highly probable” that the “white material” found in the car trunk and the sample taken from the safe had “a common origin,” that they had “a plaster or gypsum like composition” and “a similar appearance” to “plaster that might come off a wall or concrete that might be on a sidewalk or on a street.” Analysis of the blood items given the criminologist produced “a weak A-type.” The expert stated the blood items had not been kept in the approved manner and the “possibility is that if in the case of an old reactor, I could have, due to a bacterial combination, received a weak A reaction with no [type] 0 reaction.” It was stipulated that defendant’s blood type was “O-Positive.” “The stain material upon the punch turned out to be rust.” No fingerprint analysis was undertaken and no effort was made to match the tire tread marks found at or near the scene of the burglary with the tread of the tires on the Buick belonging to Mrs. Joiner.

What did the foregoing evidence establish? (1) That at some unknown time between 7:45 and 9:15 p. m. September 11, 1974, a burglary and stealing occurred at the Watson residence; (2) that in gaining entry into the home, some person or persons received bleeding lacerations to some part of the body when the glass on the storm door was broken; (3) that an 80 to 100 pound safe containing $800 and a jewelry box with contents unknown was removed from the premises; (4) that at some unknown time before discovery, tire tracks were made at the Watson residence by some unseen vehicle equipped with three regular tires and one mud and snow tire which were traced to a community about 6 miles southeast of the Watson home; (5) that sometime before 10:30 p. m. September 11, defendant was riding in a Buick belonging to Mrs. Joiner, accompanied by Loal Joiner and two women, went to the Hayti Hospital and was treated for a laceration to the back of his right hand; (6) that the stolen safe was discovered in a ditch on September 17, some 30 miles from the Watson home; (7) that three regular tires and one snow tire were mounted on the Buick; (8) that although nothing (save the bloody newspapers and a punch) was found in searching the Buick on the date of the crime, that on the day the safe was found, there was found in the trunk of the ear, some plaster or gypsum or plaster-like material that was highly probable to have had a common origin with the material used for insulating the safe; (9) that an analysis of the blood items made by the criminologist showed them to be a weak A-type; (10) that defendant’s blood type was O-Positive; (11) that the stain material on the punch was rust; (12) that no fingerprint analysis was made and no effort was expended to match the Buick’s tire treads with those found at and near the Watson residence.

More importantly what didn’t the evidence establish? It did not establish this: (a) That the two crimes charged were committed at the same time during Watson’s 1½ hour absence from his home; (b) that the person or persons who committed the burglary were one and the same person or persons who committed the stealing; (c) that the tire marks discovered at the Watson house were made when the crimes were committed; (d) that the tire marks were made by the Buick; (e) that the tire treads on the Buick matched or were similar to the tread marks discovered at and near the Watson property; (f) that even assuming the Buick made the marks, that the marks were made at the time the crimes were committed, or that defendant, who did not own the Buick, was in the ear at anytime it may have been at the Watson house; (g) that the blood discovered at the crime scene was defendant’s blood; (h) that defendant’s laceration was the result of a cut inflicted by glass; (i) that defendant cut his hand when the glass on the storm door was broken; (j) that defendant was ever at or near the Watson residence; (k) that either defendant or Joiner knew of the location of the Watson home before the time the crimes were committed or knew of the existence of the safe, the jewelry box or their contents; (1) that defendant or Joiner ever had the stolen items in their possession; (m) that defendant or Joiner or both put the safe in the ditch where it was discovered; (n) that the punch found in the Buick figured in any way with the crimes charged or in opening the safe; (o) that even assuming some of the stolen property may have been in the Buick, that defendant was in the Buick or aware of their presence therein at anytime.

We do not believe that the evidence relied on by the state is irreconcilable with the hypothesis of defendant’s innocence. Should we concede for present purposes the evidence, which it was not, was sufficient to justify the inference that the Buick was employed in commission of the crimes or to haul away the safe from Watson’s house, this is not enough. To directly connect defendant with the crime it is necessary to also infer that because he was later transported in the Buick to the Hayti Hospital he was present and participated in the burglary and larceny. This is not a permissible inference. State v. Schrum, 347 Mo. 1060, 1065, 152 S.W.2d 17, 19-20[3] (1941). The facts held insufficient to support a conviction in State v. Morse, 515 S.W.2d 608 (Mo.App.1974), in State v. Eye, supra, 492 S.W.2d 166, and in cases therein cited and considered, are more persuasive to support a conviction than the facts in this case. A verdict based on suspicion, surmise or conjecture, however strong, is insufficient to permit a criminal conviction, and that is all we have here. There being no substantial evidence of defendant’s guilt, we must reverse the conviction. Additionally, as it does not appear that upon another trial a submissible case might be made [State v. Goodman, 449 S.W.2d 656, 662[16] (Mo.1970)], the defendant is ordered discharged. Accordingly, the judgment is reversed and the defendant is ordered discharged.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Criminal Procedure, V.A.M.R.

      . We judicially notice the geographical location of cities in the state and the distances between them. Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118[2] (Mo.App.1975).


author: PER CURIAM.

text:
    Faye PEACOCK and Johnny Peacock, Appellants, v. The CITY OF DEXTER, a Municipal Corporation, Respondent.
    No. 10010.
    Missouri Court of Appeals, Springfield District.
    Nov. 13, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied Dec. 1, 1975.
    James E. Spain, Briney, Welborn & Spain, Bloomfield, for appellants.
    Manuel Drumm, Drumm & Stamp, Sike-ston, for respondent.
   PER CURIAM.

Judgment not having been entered on the jury verdict in favor of the respondent, we have no jurisdiction of this premature appeal and it is dismissed.

Appeal dismissed.

All concur.