author: HOGAN, Judge.

text:
    Roseanne Helton CARROTHERS, Helen Perry, and Emma Jean Turner, Individually and as members of the Class of the Interested Public, Plaintiffs-Respondents, v. Lena G. BEAL, Jan Tupper, Richard Craig, Dr. Donald E. Clark, Joe Tichota, Bill Mauldin, George Kriekhaus, Jack Belden, and Carl Boyington, Individually and as Councilmen of the City of Joplin, Missouri, Defendants-Appellants.
    No. 10138.
    Missouri Court of Appeals, Springfield District.
    May 1, 1978.
    George C. Baldridge, City Atty., Joplin, for defendants-appellants.
    Donald E. Sotta, Carver & Sotta, Joplin, David T. Greis, Kansas City, for plaintiffs-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Alleging themselves to be “members of a class known as the interested public, [a class] so numerous and widespread that it is impossible and impracticable to make all members a named party hereto” and further averring that they adequately represented “the interested public,” plaintiffs brought this injunction proceeding under the provisions of the Open Meetings Act, §§ 610.010-610.030, RSMo Supp.1975, also known as the “Sunshine Law.”

The cause was tried to the court, sitting without the aid of a jury, on July 17, 1975. Plaintiff Roseanne Helton Carrothers appeared and testified that she was employed by Omer Carrothers Industries, 1820 East 20th Street, Joplin, Missouri. Her employer was a corporation. She was its “secretary-treasurer.” She was also a stockholder. On June 3, 1975, plaintiff Carrothers attended an informal luncheon meeting of the Joplin City Council. She was asked to leave. She refused. She was told she would be “removed by force by the police department if [she] didn’t leave.” She attended the meeting because “[T]he paper on June 3rd stated that the City Council was holding an informal meeting and . [she] thought [she] was justified in attending.” She usually “found out” about meetings by reading her newspaper. She was not a resident of Joplin.

Plaintiff Helen L. Perry lived in Joplin. She sometimes attended meetings of the city council, but she had not gone very often because the city council “didn’t act like they wanted us down there to start with.” Plaintiff Perry had never been denied entry to a “formal” meeting and could not say whether she had ever been denied entry to an “informal” meeting. She knew of no standard procedure used to notify the general public of city council meetings, but usually there was some article in the local newspaper “usually in the back of the paper or towards the middle.” It did not appear that plaintiff Perry attempted to attend the informal luncheon meeting from which plaintiff Carrothers was excused or ejected.

We find no testimony given by plaintiff Emma Jean Turner, indeed no indication that she was present at the trial. In connection with the luncheon meeting of June 3, 1975, it appears that members of the Joplin City Council, or some of the members, intended to discuss an evaluation of the personnel of the Joplin Police Department being prepared by some think tank. It does not appear that any official action was taken at the time.

The cause was taken under advisement. On August 21, 1975, the trial court issued a broad and perpetual injunctive order, but for our purposes it is unnecessary to discuss the injunction in detail. As a preliminary to the issuance of a decree, the trial court filed extensive findings. The court considered, among other things, that the Open Meetings Act permitted “closed” meetings, but the charter of the City of Joplin did not. The trial court noticed judicially that Article II, § 2.11 of the charter required, as it then did, that “[A]ll meetings of the council shall be open to the public.” The court further concluded that to avail itself of the protective provisions of § 610.025, RSMo Supp.1975, the City of Joplin would have to amend its charter. It is clear that the trial court based its judgment on the charter provisions rather than the express command of the Open Meetings Act.

The cause was duly argued and submitted in this court and in due course an opinion was prepared and adopted. We concluded that the injunctive order was overly broad, that the plaintiffs probably lacked standing to bring the action and that in any event reversal was required because there had been no compliance with Rule 52.08, V.A. M.R., which governs the maintenance of class actions. Before the opinion was published, however, it came to our attention that the- Joplin City Council had prepared an amendment to Article II, § 2.11 of the Charter of the City of Joplin, conforming § 2.11 to the provisions of the Open Meetings Act. Upon inquiry, the City Clerk of the City of Joplin certified to the court that at the regular municipal election held April 4,1978, the voters of the City of Joplin had approved Charter Amendment No. 22, styled and submitted, in pertinent part, as a “[Cjharter Amendment to put the City in compliance with the State Sunshine Law by amending the second sentence of Section 2.11 . . From the manner of proposal and adoption of Charter Amendment No. 22, it is quite clear to us that the City Council and the voters of the City of Joplin intended to and have, literally, incorporated the provisions of the Open Meetings Act into Article II, § 2.11 of the Charter of the City of Joplin.

It has been said many times that the appellate courts of this state do not sit as moot courts to determine speculative issues for the benefit of some other case in judgment at some other time. State ex rei. Fischer v. Thomas, 249 Mo. 103, 108, 155 S.W. 401, 402[1] (banc 1913); State ex rel. Thompson v. Simmons, 499 S.W.2d 819, 820-821 (Mo.App.1973). Moreover, it has long been held that for the purpose of determining the moot character of a case before us, we may notice facts and consider matters outside the record. State ex rel. Donnell v, Searcy, 347 Mo. 1052, 1059, 152 S.W.2d 8, 10[2] (banc 1941); Mudgett v. Peterson, 482 S.W.2d 472, 474[2] (Mo.1972); State ex rel. Thompson v. Simmons, supra, 499 S.W.2d at 820[1], To the extent the injunctive order was proper, it has been supplanted by charter amendment. Accordingly the appeal is dismissed as moot.

All of the Judges concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    Orrin P. HULL, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent.
    No. KCD 28636.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Panethiere & Helfand, Henry A. Panethi-ere, Richard Helfand, Kansas City, for appellant.
    Robert M. Kroenert, Morrison, Hecker, Curtis, Kuder & Parrish, James E. Taylor, Kansas City, Jack C. Lorenz, St. Louis, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Orrin Hull suffered an injury during the course of his employment with Southwestern Bell and received an award of $8,677.50 for his Workmen’s Compensation benefits. From this amount the referee allowed a credit to Bell of $3,166.80 for payments Bell made to Hull under an employee benefit plan. On Hull’s appeal the Labor and Industrial Relations Commission affirmed. A further appeal to the circuit court resulted in affirmance also.

On this appeal Hull questions only the propriety of allowing Bell a credit for payments made under the benefit plan. Affirmed.

As a part of the collective bargaining agreement between Bell and the communication workers, Bell maintained an employee benefit plan. Under this plan Bell agreed to pay certain benefits when employees were injured, with such benefits including the amount the employee would be entitled to receive under Workmen’s Compensation.

The same plan involved in this case was extensively reviewed and considered by the St. Louis District of this court in Strohmeyer v. Southwestern Bell Telephone Co., 396 S.W.2d 1 (Mo.App.1965) and by this court in Cowan v. Southwestern Bell Telephone Co., 529 S.W.2d 485 (Mo.App.1975). No contention is made that any changes have been made in the plan as it was considered in Cowan and Strohmeyer. It was observed in both Cowan and Strohmeyer and remains true in this case that the plan is not contributory on the part of the employees and the benefits are payable by Bell.

The only new contention made by Hull is that the employees indirectly contribute to Bell for the benefits payable under the plan because the union, in negotiating a contract with Bell prior to the date of this injury, gave up certain wage increases in order to retain the benefits of the plan. The only evidence introduced to prove this contention was the testimony of a union negotiator who stated the union first attempted to obtain fringe benefit increases and then adjusted its wage demands in view of its success on the benefits package. There was no evidence as to any precise adjustment in wage demands, nor was there any evidence to show the company considered the benefits payable under the plan to be directly or indirectly related to the amount of wage increase granted by the agreement. In short, the contention the employees indirectly contributed to the plan by reason of tempered wage demands is wholly the subjective conclusion of the employee.

Hull pitches his argument against the allowance of credit on the premise the claimed indirect contribution converts the plan into insurance under § 287.270, RSMo 1969. This section provides that no savings or insurance of the employee may be considered in determining the amount of Workmen’s Compensation. It was specifically held in both Cowan and Strohmeyer that the plan under consideration is not insurance within the meaning of this section. Cowan at 488[2] and Strohmeyer at 5[4]. The argument advanced fails because of a failure of proof and because this plan has already been held not to be insurance under § 287.270.

It would serve no useful purpose to prolong this opinion with a discussion of the plan. The only new matter raised by Hull has already been discussed. All other facets of the plan and the fact that Bell is entitled to credit for payments made under the plan have been fully discussed and considered in Cowan and Strohmeyer. This includes Hull’s contention that credit should be limited only to temporary total disability payments. This likewise was specifically ruled in Cowan at 489.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Wilson MOORE et al., Harrison Dale Hooker, et al., Defendants-Respondents.
    No. KCD 28757.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      Bruce A. Ring, Chief Counsel, George M. Johnson, Asst. Counsel, Springfield, for plaintiff-appellant.
    J. B. Carter, Carter & Becker, P.C., Clayton, for defendants-respondents.
    Before WELBORN, Special Judge Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action in eminent domain to acquire interests in real estate owned by Harrison Dale Hooker, Allieen Hooker, and Big Piney Aggregate, Inc, Appeal by State Highway Commission from verdict and judgment which awarded the owners $425,000 damages for the taking. Appellant’s contentions question the court’s rulings in admission of evidence. Affirmed.

Plaintiff petitioned to condemn a number of tracts of land, including the Hooker tract, for construction and improvement of 4.871 miles of Interstate Route 44 between Missouri Highway 28 and the Phelps County line in Pulaski County, Missouri. Commissioners filed their report and both sides excepted from the award of damages for the Hooker taking. September 25, 1974, appears as the date of taking.

Prior to the taking, the Hooker tract consisted of 168.84 acres, lying north of 1-44 near Devil’s Elbow, a few miles east of the Saint Robert interchange. Part of the tract was utilized as a sand and gravel removal operation on Big Piney River. This operation was affected by the taking of 32.8 acres for new highway right of way through the property.

Harrison Dale Hooker acquired the property in question in 1941. He gave a description of its location and features in which he referred to a bridge on old U.S. Highway 66 and its erosive effect on the course of the river along the property. He identified a lease agreement of 1967 with Big Piney Aggregate for removal of sand and gravel from the tract, and referred to requirements in the lease including maintenance of a levee around the property. The royalty was $0.07 per ton. The lease was modified in 1971 to provide for construction of a lake as the extraction operation progressed, change in method of excavation, and increase in royalty. In his opinion, the highest and best use of his property was mining of sand and gravel. He valued his whole property prior to the taking at $650,-000 to $675,000. He identified the new right of way for 1-44 through his property and described the effect of the taking on his property. He expressed a belief of an ' adverse effect to his property as a result of a new bridge across Big Piney River; he would have no access to 1-44; he believed he would experience difficulty in trying to use a road under a previously constructed bridge. He valued his property after the taking at $200 per acre, $25,000 to $27,000 (net damages of $623,000 to $650,000).

Roscoe Thomas, superintendent for Howard Construction Company at its gravel and ready-mix concrete plant at Waynesville, described the sand and gravel business in the area of the Hooker property, and made some comparisons with Howard’s operation on Forestry Service land at Fort Leonard Wood, where Howard paid a royalty of $0.10 per yard. He explained how a crusher is employed to crush rock to designated gradation, and that Howard had not used a crusher on either the Big Piney or Gasco-nade River sites.

George Winter, Jr., had been in the sand and gravel business since 1946. He described his operation near St. Louis, and his familiarity with the Big Piney Aggregate plant. He valued Big Piney Aggregate’s facilities at $300,000 and the land at $1,000 per acre. He valued the whole property prior to the taking at $460,000 to $470,000. He gave the property an after-taking value of $26,000 for a grazing operation. He arrived at net damages for the taking of $430,000. His opinion reflected reports indicating presence of 1½ million tons of gravel on the property.

Harold “Bud” Hoff, with a background in the sand and gravel and construction businesses, was familiar with the Big Piney Aggregate operation in question as its overseer. He described his company’s samplings of sand and gravel on the Hooker tract and its predevelopment estimate of 1.8 to 2.5 million tons of sand and gravel in the ground. He calculated that in excess of 600,000 tons of material existed within the new right-of-way taking alone. He did not believe it would be feasible for his company to attempt to operate on the Hooker tract after removal of the right-of-way area. Part of this was attributable to problems of hauling under the old Highway 66 bridge. He described his company’s costs of putting its plant in operation and placed the cost of setup as of September 25, 1974, at $353,000.

He described his company’s search for a new sand and gravel site, and the eventual relocation at U.S. Highway 63 and Little Piney River. This site, RoHa, was acquired in August, 1973, with the purchase of 610 acres for $138,000. He described increased hauling costs between mine and market, and the lag of 15 to 16 months from acquisition of RoHa to production. He believed his company lost $130,000 in the move from the Big Piney site to RoHa.

R. Dale Rueff, geologist with the Missouri Geological Survey, supported the owners’ ideas of the availability of material in the general area of the Big Piney Aggregate operation.

George Wilson appraised subject property and determined the fair market value on the date of taking at $436,246, attributing $267,406 to plant and $168,840 to the 168.84 acres of land. In his after-taking situation, 62.49 acres remaining south of the new right of way had a value of $500 per acre, and 73.55 acres remaining to the north had a value of $200 per acre. He placed the damages at $391,311. He mentioned several comparable sales, and estimated cost of a new plant in excess of $300,000.

J. Harvey Hyams appraised the property and determined its fair market value at the time of taking at $438,000. He believed $0.25 per ton to be a fair royalty, and used a 9% capitalization rate and a 7.768 conversion factor in an income approach to value. His computation did not involve salvage value for the plant. His damages figure was $394,600.

Joseph Movshin made an appraisal of the plant on behalf of the Highway Commission. He estimated net value of the plant in place at $30,875, and reconstruction cost new at $76,500. He was cross-examined on his ideas of cost of plant items.

Charles R. Turner, District Highway Design Engineer, made the acreage computations involved in the Hooker taking. He also described acreages of areas determined to be gravel deposits by Dr. William C. Hayes, a geologist. He also computed costs of constructing haul roads necessary to mining remaining deposits.

Doctor Hayes made a geological study of the Hooker tract. In his judgment there were 850,917 cubic yards of recoverable materials in place, prior to the taking, and 562,898.4 cubic yards of materials remained outside the right of way after the taking.

Bob Harrison made an appraisal of the property for the Commission using acreages, volumes, and values of industrial equipment in evidence via Mr. Turner, Dr. Hayes, and Mr. Movshin. He determined the value of material deposits as of the date of taking at $80,400, to which he added $170 per acre, $88,800, for base value of 49.46 acres of land containing recoverable material. He valued 20 acres of stockpile area at $170 per acre, to which he added rental income for 10.34 years discounted at 9%, for a total of $11,-265, excluding the built-up base. He valued 70 acres of land for agricultural purposes at $350 per acre, $24,500. He estimated value of mined-out land at $170 per acre and rounded it at $5,000. In this manner he arrived at a total value for land prior to taking of $129,565. He added improvements at $76,455 for a total pretaking value of $206,000. In the after-taking situation he believed the only improvement remaining was 2,000 feet of haul road, and that the value of the tract now was $62,300 and, thus total net damages of $133,700 were due the owners.

William Baker inspected the scale used at Big Piney Aggregate’s plant December 12, 1974. He valued such a scale new at $8,500 to $9,000 and believed that similar scales in present condition would sell for $500 to $2,500.

Norman Goad, operator of a sand and gravel plant, thought it would be feasible to operate such a plant on the Hooker tract in its after-taking condition.

Donald Becker, Jr., a Highway Commission employee in its Division of Bridges, could find no Commission records of any work done to stop scour or to stabilize banks near the old bridge, and described the effect of the new bridges to be built over the Big Piney River upstream and downstream from the (old) bridge.

Jack Bennett was employed as a right-of-way appraiser by the Highway Commission. In his opinion, the pretaking value of the Hooker tract was $124,000 and the improvements $73,500, for a total of $197,500. He appraised the remainder after taking at $66,600, arriving at net damage of $130,900.

Tom McReynolds also appraised the Hooker taking for the Commission. He gave it a pretaking value of $193,000 and valued the remainder at $62,000, for net damages of $131,000. He used a market data approach to his appraisal. He had also made an income approach as described by Mr. Harrison and Mr. Bennett to arrive at a pretaking value of $187,000, but concluded damages to be at the higher figure he found by using market data. He was asked about but knew nothing of a rock crusher in Big Piney Aggregate’s relocation at RoHa.

Mr. Hoff gave rebuttal for the owners on the effect of heavy hauling machinery on 10" aggregate base haul roads, the amount of base under Big Piney Aggregate’s stockpile, and the condition of the scale in question.

Mr. Hooker drove from Columbia to the condemnation site during trial to take some pictures underneath the bridge south of his property and testified there were 18 pilings under the bridge.

Appellant charges the court erred (I) in allowing testimony by Mr. Hooker on conditions resulting from construction and maintenance of the existing Highway 66 bridge immediately south of subject property, and in rebuttal with respect to the pictures taken during trial of wood pilings around the footings of the bridge. Appellant argues that such testimony should have been excluded under the rule quoted from VI Wigmore on Evidence, 3rd Ed. 1864, that “the ‘simplicative rules’ of evidence * * * ‘exclude * * * certain kinds of evidence (otherwise admissible so far as Relevancy is concerned) which are found to have an improper effect by obstructing or confusing rather than aiding or facilitating the process of ascertaining the truth. * * So * * * if certain eventual material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an unfair prejudice to the opponent, * * * there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.’ ” Daniels v. Dillinger, 445 S.W.2d 410, 418 (Mo.App.1969).

Appellant makes a number of transcript references where the Highway 66 bridge was mentioned by Mr. Hoff, Mr. Turner, Mr. Becker, and counsel in argument. However, the only transcript references to such testimony by Mr. Hooker are those in which he testified that from physical observations as owner of the property, he noted erosion to his property along Big Piney River due, in his judgment, to channel changes caused by the center pier of the bridge; that such conditions bore on his ideas of the value of the property in question; that the Commission had driven pilings in the area in an effort to correct the condition; and, in rebuttal to testimony from Mr. Becker, that he took pictures of same during the trial.

The rule cited by appellant could have been applied by the trial court to exclude this evidence, but it does not require reversal of the trial court for its admission of same. The tendency of the authorities is to admit any evidence as to value of realty condemned which sheds light on the question, leaving it to the discretion of the trial court to keep it within bounds. If the witness knows the property and has such information, knowledge and skill which enable him to form judgment superior to that of the jury, he should be permitted to testify. State ex rel. State Highway Commission v. Barron, 400 S.W.2d 33, 37 (Mo.1966). The trial court had similar discretion with respect to receipt of Mr. Hooker’s evidence in rebuttal. Peters v. Dodd, 328 S.W.2d 603 (Mo.1959); Rutledge v. Baldi, 392 S.W.2d 244 (Mo.1965).

Appellant charges the court erred (II) in allowing Mr. Hooker to testify to the highest and best use of subject property as a sand and gravel plant and damages thereto with no showing of expertise in absence of ownership of all interests which would entitle him to so testify as the landowner. Appellant argues that Mr. Hooker’s testimony should have been excluded under authorities which recognize that ownership alone does not always make testimony on value of property admissible.

In addition to Mr. Hooker’s ownership of the real estate in question, the evidence shows that he was a lessor for purposes of the sand and gravel mining operation thereon; that he was familiar with the sand and gravel business generally, and this operation particularly; that he had experience and present responsibilities in business ventures. In such circumstances, Mr. Hooker’s testimony fell within the rule that an owner of real estate is competent on the issue of its value in eminent domain when he is particularly familiar with it and knows of the uses to which it is particularly adaptable. Shelby County R-IV School District v. Herman, 392 S.W.2d 609 (Mo.1965); Ward v. Deck, 419 S.W.2d 286 (Mo.App.1967).

Appellant charges the court erred (III) in allowing evidence of the cost and problems in setting up the RoHa plant as a substitute for the plant being taken because such tends to cause a jury to award costs incident to establishing a new plant which is not within the proper measure of damages.

Cost of construction of new facilities to replace condemned facilities is not admissible for purposes of determining value of land taken in eminent domain. State v. Schaefer, 530 S.W.2d 813 (Tex.1975); Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100 (1941); Gauley & E. Ry. Co. v. Conley, 84 W.Va. 489, 100 S.E. 290 (1919); Fiorini v. City of Kenosha, 208 Wis. 496, 243 N.W. 761 (1932); Nichols on Eminent Domain, 3rd Ed. 14.2472. However, the evidence in question, in its context, is not subject to the foregoing rule.

The first reference to the RoHa plant came during the Commission’s cross-examination of Mr. Wilson, by asking him if he was aware that a sand and gravel plant had been set up on a tract south of RoHa for $138,000.

Specifically, appellant complains of testimony by Mr. Hoff that it took 15 to 16 months for Big Piney Aggregate, Inc. to get its RoHa plant into production. The Commission’s objection was that the testimony was not relevant. It came in on redirect examination after the Commission’s cross-examination in which it attempted to support its position, contrary to that of the owners, that Big Piney Aggregate, Inc., could continue to operate a profitable sand and gravel plant on the several parcels of land remaining after condemnation of the Big Piney’s plant at the Big Piney River site.

Appellant’s charge goes also to an opinion expressed by Mr. Wilson that a new plant would cost in excess of $300,000. The context of this opinion did not relate to costs of the substitute plant at RoHa. Again, the opinion was elicited on redirect examination after cross-examination by the Commission going to its position that the remainder provided deposits and land to support a feasible mining operation.

Appellant’s next specification goes to testimony elicited from Mr. Movshin on cross-examination by the owners with respect to cost of various sizes of rock crushers. Mr. Movshin had just testified at length as the Commission’s expert on the value of sand and gravel plants, and the cross-examination in question went to his knowledge of the business without any attempt to relate the value of a rock crusher to the issue of damages.

Similar specification is made with respect to a question to Mr. McReynolds on cross-examination if he knew whether there was a crusher on the RoHa plant. No question of error was preserved by timely objection.

This entire point is aptly postured by appellant’s assertion that “[tjhese mentions of this piece of equipment as well as many others throughout the trial could serve only to establish in the minds of the jury that additional expense was being heaped upon these Defendants to conduct their business elsewhere”; and its concession that “in fairness to Defendants, the direct context of these remarks was an indication of the unworthiness of the remainder of the subject property and not a blatant plea for set up costs.”

Appellant charges the court erred (IV) in allowing Mr. Hyams to testify that he had valued the land by capitalizing a royalty value of processed sand and gravel by weight at the scales rather than determining the value of the deposit in the ground and capitalizing that value per unit “because the degree of speculation necessary to his method is not helpful or proper in that the determination the jury must make is the value of the land with the deposit in it.”

“Where the entire tract is being taken * * * just compensation is measured by the reasonable market value of the land in its condition on the day of the appropriation. * * * When the land contains minerals, the measure of compensation is the value of the land with the minerals in it.” Union Electric Co. v. Jones, 356 S.W.2d 857, 862 (Mo.1962).

Where, as in this case, less than the whole tract is taken, several techniques, including the capitalization approach, may be used. In this case Mr. Hyams used the capitalization approach on behalf of the owners, as did Mr. Bennett and Mr. Harrison on behalf of the Commission. Mr. McReynolds for the Commission used both market data and income approaches in arriving at his appraisal. The approach was substantially the same with each witness, the major and obvious difference being the choice of capitalization rate. Appellant does not demonstrate how it can use the capitalization approach and at the same time relegate Mr. Hyams’ use of the same theory to the realm of inadmissibility.

Appellant charges the court erred (V) in failing to sustain its motion for mistrial after striking certain testimony of Mr. Hyams going to “economic viability” of a plant.

Appellant concedes that the court, although refusing to declare a mistrial, did instruct the jury to disregard Mr. Hyams’ testimony in question, and no manifest abuse of discretion is demonstrated to require interference with the trial court’s action. Gathright v. Pendegraft, 433 S.W.2d 299, 306 (Mo.1968).

Appellant charges the court erred (VI) when it permitted the owners to read into evidence paragraph 19.21 of the original petition “because * * * it is not an admission against the interest of” the Commission.

Mr. Hoff gave his opinion that the highest and best use of the owner’s remainder after the condemnation was not for a sand and gravel operation. Part of the basis for his opinion was the cost and use of a certain road under a bridge. An issue arose as to who bore the cost of damage to the bridge in using such road. Mr. Hoff was asked his opinion; the court properly refused it. He was then permitted to read original paragraph 19.21 of the petition which provided, “In the event of damages to said structure * * * caused by defendants * * * all such cost of repair or replacement * * shall be borne by defendants.” This portion of 19.21 was deleted by amendment at the outset of the trial.

All appraisals had been made on that basis; it bore on the owner’s theory that it was not feasible to reconstruct a sand and gravel operation on their remainder after condemnation; and the Commission had Mr. Hoff read the amended version in support of its side of the issue. In this context, paragraph 19.21 was admissible as an admission against interest. Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34, 39 (Mo.App.1967).

Appellant charges the court erred (VII) “throughout the trial” in allowing improper interrogation techniques by defendants’ counsel “because these techniques removed any possibility of a proper jury verdict in that the effect was to confuse the jury and to appeal to their passion and prejudice.”

Beyond this general statement, appellant suggests one transcript reference to support its charge. Cited by page reference is the cross-examination of Mr. Movsh-in as it relates to his past experience as an appraiser in blighted areas of St. Louis, a proper field for testing Mr. Movshin’s expertise for appraisal of a sand and gravel operation. The excuse for failure to cite reviewable page references is that “Plaintiff is hesitant to go through 1109 pages of transcript looking for all examples of improper or questionable examination questions and comments by defendants’ attorney.” The court is not obliged to do so for the appellant.

Appellant charges the court erred (VIII) with respect to rebuttal testimony offered by the landowners.

The first specification relates to Mr. Hoff’s testimony on the condition of the scale at the Big Piney plant; the second to the testimony of Mr. Hooker as to the photographs and existence of pilings around the 66 bridge. The testimony of Mr. Hoff was within the court’s discretion in answer to that given by Commission witnesses Movshin and Baker; the admissibility of Mr. Hooker’s testimony has been considered under (I) above. Peters v. Dodd, supra.

Finally, appellant charges (IX) that “the errors set out in Points I through VIII certainly were prejudicial to the result in this law suit either individually or viewed together.” Suffice to say that Points I through VIII have been found wanting individually, and they acquire no additional substance “viewed together.” Chism v. Cowan, 425 S.W.2d 942 (Mo.1967).

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Steven Craig THOE, Appellant.
    No. KCD 28767.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    J. Arnott Hill, Hill & Gamm, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Steven Thoe was convicted of bombing in violation of § 564.560, RSMo 1969, in connection with an explosion in the city hall of Weatherby Lake. After the jury was unable to agree upon punishment the court sentenced Thoe to four years imprisonment.

On this appeal Thoe contends there was insufficient evidence to sustain his conviction. His other points need not be discussed because the insufficiency of the evidence is dispositive of this appeal. Reversed.

The following drawing, which was introduced as Exhibit 23 at the trial, will simplify a description of the vicinity of the bombing.

Blair Road runs generally east and west and 71st Street runs north and south. The city hall of Weatherby Lake is located as indicated. The building was of frame construction and had the general appearance of a small residence. Lengthwise the building ran in a general north-south direction.

Shortly after midnight on the night of October 30, 1975, and the early morning of October 31, an explosion blew out the entire west end of the city hall and did considerable damage to the building. Tests performed on a piece of paper and a rag found in the crater of the explosion indicated the explosion was caused by commercial dynamite.

Mr. and Mrs. Gaul lived at 7100 Blair Road. Mrs. Gaul testified she heard the explosion and immediately got her husband out of bed and they both ran outside. Within two or three minutes after the explosion they heard someone running through the bushes along the “x” marks on Exhibit 23 to the rear and south of the house at 7107 Blair Road. Mrs. Gaul stated after they heard the footsteps they later saw a young man run behind 7101 Blair Road and then run west on 71st Street. Both Mr. and Mrs. Gaul described the young man as about 5T1" to 6'1", with shoulder length hair, thin build, and wearing glasses. Mrs. Gaul saw the boy for less than thirty seconds at the intersection of 71st Street and Blair Road.

After the boy ran west on 71st Street, the Gauls saw a car which made a loud noise traveling west on 71st Street. There was one person in the car but Mrs. Gaul did not think the boy she had seen running was the occupant of the ear. She did not identify the occupant. Mrs. Gaul could not identify Thoe as the boy she saw running. Neither could her husband identify Thoe.

Max Rutledge testified that he lived at 6931 Blair Road. He likewise heard the explosion and went outside. He saw a boy running who was between the ages of 17 and 23 years, 5' 10" to 6' 1" in height, weighing 140-145 lbs., slim build, with long hair and dark rimmed glasses. Rutledge saw the boy run west on 71st Street and then south between 9613 and 9619 71st Street. About three or four minutes after Rutledge saw the boy running, he saw an automobile with one occupant enter the intersection of 71st Street and Blair Road. It is not clear from which direction the car had come. Rutledge could not identify Thoe as the person he had seen running or in the car.

Testimony indicated on October 30, 1975, Thoe was 5' 10" in height, slender build, shoulder length hair, and wore wire rimmed glasses. Although his age was not given, he appeared as a witness and the jury could observe him. A fair inference from the evidence is that he was of the age of the boy seen running. He lived in Weatherby Lake.

Agents of the Federal Alcohol, Tobacco and Firearm Bureau (ATF) investigated the bombing. In their investigation they found a knife on the morning of October 31 located at the point indicated on Exhibit 23 between the fence surrounding the open area south of city hall and Blair Road. The fence next to the knife appeared to have been depressed. The knife was described as about eight inches long with a four inch blade. The handle was of brown plastic with a stag deer design. When found the blade had rust on it. The knife was described as a mass production model with no personalized features. No tests were run on the knife to determine the presence of fingerprints or dynamite residue.

The agents also found a cardboard box at the place indicated on Exhibit 23 between 7107 and 7101 Blair Road. Tests later performed on the box showed it had contained commercial dynamite. No connection between Thoe and the box was shown.

ATF agents requested Thoe to appear voluntarily on November 3 for questioning and he did so. When asked if he owned a hunting knife Thoe stated he did. When he was shown the knife found between the open field and Blair Road, Agent Randol said Thoe stated “it sure looked like his knife, that there couldn’t be many more like that around.”

Agent Randol inquired where Thoe had kept his knife and Thoe stated he kept it in • the trunk of his car. He said he had not loaned the knife to anyone although his brother Terry had use of the car. Thoe stated he had not seen the knife in about two months.

A picture of a Chevrolet Malibu 2-door was introduced in evidence and identified as one similar to the car seen on 71st Street shortly after the man was seen running. This picture was further identified as being a car similar to one owned by Russell Jones, a friend of Thoe.

ATF agents obtained a search warrant and searched the room occupied by Thoe in his parents’ home in Weatherby Lake. A small section of fuse was found which was described as a type used to detonate explosives. The fuse was not tested for the presence of chemicals used in dynamite. Also found were looseleaf notebook pages on which Thoe had written chemical formulas, among them one for gun powder and a, reference to a catalog for “Things That Go Boom.”

A forensic chemist employed by ATF testified there are certain chemicals found in commercial dynamite. Such chemicals adhere to the hands of a person handling dynamite. The presence of such chemicals can be detected by swabbing the hands with a solution which will transfer the chemicals to a cotton swab. The chemist was given the swabs with which Thoe’s hands had been tested as well as scrapings from under Thoe’s fingernails. The chemist concluded the swabs had been contaminated prior to the time they were applied to Thoe’s hands. For this reason he was unable to state positively that dynamite chemicals were present on Thoe’s hands. However, the chemist stated the chemical residue from commercial dynamite was found in a greater quantity in the fingernail scrapings than in the hand swabs and based on this, he had the opinion Thoe had handled commercial dynamite on or about the date of the explosion.

Thoe did not dispute the above evidence. The only factual dispute presented to the jury concerned Thoe’s alibi. In its case in chief, the State introduced evidence through ATF agents that Thoe stated he had been at Robin Morgan’s house on the night of October 30-31. Thoe stated he met Russell Jones there and played chess. The State produced Robin Morgan who stated Thoe was at her house only for about 15 minutes about 8:00 P.M. on October 30. She stated Jones was there until about 11:00 P.M. She said she did not see Thoe at her house after about 8:15 P.M.

Russell Jones was called in rebuttal and he stated he met Thoe at Robin’s house at about 11:00 P.M. on October 30, and played a game of chess with Thoe. Jones left Robin’s house about 11:45 P.M. and Thoe was leaving at the same time. Jones stated they left in separate cars. Jones denied he and Thoe planned to blow up the city hall.

Although the State undertook to set up an alibi in its case in chief and then disprove it, such evidence does not aid the State in meeting its burden of proof to produce substantial evidence from which the jury would be authorized to find Thoe guilty. The alibi was unrelated to the bombing incident. The question the jury was to decide was whether or not Thoe was guilty of placing explosives and blowing up the city hall. The jury was not called upon to decide whether or not Thoe was at Robin Morgan’s house during the time he told the agent he was there.

It is obvious the State’s case is based upon circumstantial evidence. The well worn rule by which the sufficiency of the evidence in such a case is to be measured is stated in State v. Franco, 544 S.W.2d 533, 534[1~4] (Mo. banc 1976) as follows: “ ‘[T]he facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.’ ”

In summary, the State relies upon the following facts to meet its burden under the above rule. (1) A person with the same physical description as Thoe was seen running away from the city hall within a few minutes after the explosion. (2) A car similar to one owned by Russell Jones was seen leaving the vicinity where the boy was running. (3) A knife which may be assumed to have belonged to Thoe was found near the City Hall. (4) Thoe’s hands gave evidence that he had handled commercial dynamite about the time the explosion occurred.

Although the boy seen running near 71st and Blair Road was observed by three people, none of them were able to identify Thoe as that person. There was nothing unusual about the description given of the person. This includes the shoulder length hair which Thoe was described as possessing, since many young men wear their hair that length. There was no unusual feature about Thoe’s appearance which would distinguish him through observation. In short, there was no evidence from which a reasonable inference could be drawn that the person seen running was in fact Thoe. Such inference could be drawn only by the same physical description. Without some identification of Thoe as being the person the witnesses saw running, and absent any other evidence which would connect Thoe with that person, the jury would be required to speculate that the person observed by the witnesses was Thoe. To identify Thoe as the person seen by the witnesses based only on a similarity of the general physical description does not exclude a reasonable hypothesis of innocence because any number of persons in addition to Thoe could fit the general physical description of the person running near the scene. In short, this evidence was insufficient to provide a base for the jury to find the person running was Thoe. Bull v. Commonwealth, 208 Va. 447, 158 S.E.2d 669, 672[4] (1968).

The State appears to rely more on the discovery of the knife than on the description of the boy as given by the witnesses. However, the presence of the knife also requires speculation to connect Thoe with the crime. There was no evidence the knife was in the exclusive possession of Thoe prior to the explosion. In fact the only evidence concerning this aspect showed Thoe kept the knife in his car and the car was used by his brother. Of greater significance is the fact the evidence totally fails to show any connection between the knife and the crime. The knife was found alongside a road some distance from the city hall. There is no evidence to indicate the knife was actually used in the commission of this crime. There were no tests to determine if the knife had been in contact with commercial dynamite nor were any fingerprints found on it. The location of the knife is not inconsistent with a number of reasonable theories of innocence on the part of Thoe.

There is no evidence to exclude the reasonable theory the knife was left where found at some time other than the night of the explosion. Absent some evidence by which the knife could be connected with the crime, the presence of the knife at the point discovered would not exclude a number of reasonable theories of innocence on the part of Thoe.

The State in its argument in this court stated the only evidence it had to connect Thoe with the commission of the crime was the description of the boy seen running and the discovery of the knife. Neither of these facts exclude any number of reasonable theories of innocence and, therefore, do not constitute sufficient evidence under the circumstantial evidence rule to support the conviction. However, the jury had the additional evidence of the presence of a car similar to Russell Jones’ being seen in the vicinity of the boy running. There was no evidence from which the jury could find Thoe was in the car or that he was with Jones at that time. The only evidence on this question showed that Jones and Thoe were not together after they left Robin’s house.

Further the indication that Thoe had handled commercial dynamite, standing alone, would not exclude any number of reasonable theories of innocence. Without evidence to connect Thoe with the commission of the crime, handling of dynamite could have occurred as easily in an innocent fashion as it could have in connection with the commission of the crime charged. This evidence, standing alone, would not meet the requirements of the circumstantial evidence rule.

Likewise, the items found in Thoe’s room show no connection with the commission of the crime. In fact, the chemical formula for homemade gun powder is at war with the State’s evidence which showed the explosion was caused by commercial dynamite. The segment of fuse was not shown to have any connection with the crime and its presence in Thoe’s bedroom did not connect him with the crime.

While the circumstances are discussed singly, a consideration of them collectively leads to the same result. The weakness in each link in the State’s chain of circumstances is as apparent when considered alone or in concert.

The facts shown by the State and the reasonable inferences to be drawn therefrom, viewed as they must be in the light most favorable to the State, throw suspicion on Thoe. However, the law casts a greater burden on the State than to prove a set of suspicious circumstances. It is stated in Franco the State’s evidence need not be absolutely conclusive of guilt, nor demonstrate the impossibility of innocence. Nor is the existence of other possible hypotheses sufficient to remove the case from the jury. Nevertheless, the requirements of the circumstantial evidence rule remain that the facts and circumstances must be consistent with each other and with the hypothesis of guilt and must be inconsistent with the defendant’s innocence and exclude every reasonable hypothesis of innocence. When measured by the circumstantial evidence rule it must be held the State failed to meet its burden to produce sufficient evidence from which the jury would be authorized to convict Thoe. State v. Keller, 471 S.W.2d 196 (Mo.1971).

There is nothing in the record to indicate the State has any additional evidence available. The State has not requested this court to remand the ease in the event the evidence was found insufficient. For these reasons, the judgment is' reversed and Steven Thoe is ordered discharged.

All concur.


author: PRITCHARD, Judge.

text:
    Cecil C. BASSETT and Doris J. Bassett, Respondents, v. FEDERAL KEMPER INSURANCE COMPANY, Appellant.
    No. KCD 29079.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      Wiley W. Morrison, Raytown, for appellant; Morrison, Baker & Odneal, Raytown, of counsel.
    Ronald E. Taylor, St. Joseph, for respondents.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge and PRITCHARD, J.
   PRITCHARD, Judge.

One dispositive issue is whether appellant is liable for respondents’ loss for collision loss to their van under a policy of insurance where the policy was cancelled by the appellant company retroactively prior to the collision by notice given by a premium finance company acting under insureds’ power of attorney for nonpayment of premium, which notice was given to appellant after the collision occurred. Another question is whether appellant is liable for damages for vexatious delay in the payment of the loss under § 375.420, RSMo 1969 (Amended, Laws 1975, p. 369, H.B.No. 93, § 1).

Appellant sold the policy through its agent, Don Ireland, in December, 1974. The Bassetts arranged with Ireland to pay the premium on a monthly basis, and it was financed by appellant through National Agents Service Company (NASCO), all of the communications being through Ireland to NASCO. The van was added to the policy in January, 1975, and on July 27, 1975, Cecil Bassett’s brother was added to the coverage, but the bill for October, 1975, was for a six month premium, $103.62, rather than for a little over one month, the brother’s coverage being deleted September 1, 1975. On advice of Ireland, respondents paid $26.14. The bill for November, 1975, was again $104.40, including a $2.35 finance charge, and after consulting Ireland, respondents, according to exhibits, including credits for removing the brother from coverage, paid these additional premiums: 11-16-75, $46.27; 12-1-75, $30.00; 12-16-75, $26.87; 12-30-75, $26.50. A computation of total charge, total payments and total credits, shows that there is still owed to respondents $26.87 by appellant.

On November 25, 1975, the collision occurred and Ireland was notified that night and he told Mrs. Bassett to get the medical bills and three estimates, which she did, thereafter taking them to Ireland. In early December, 1975, Walter Jones, the adjuster, directed respondents to take the van to Detweiler’s Auto Service and Body Shop, which they did. On January 12, 1976, Mrs. Bassett inquired of Ireland why they had not received a check for the repair of the van, and while she was in his office, he called appellant, and then told her a check had already been mailed to the body shop. The following week respondents received a letter dated January 13, 1976, from appellant notifying them that their insurance had been cancelled as of November 4, 1975 [which date was prior to the time of the collision, the notification being made after that time.]. On January 17 or 18, 1976, Mrs. Bassett contacted Ireland, who again called appellant, and informed her that the check was on the way, but that their insurance was cancelled. The check was received by the body shop before respondents were allowed to take possession of the van, which was delivered to them about the first of February. Mrs. Bassett saw the check at the body shop, but appellant refused to accept it on presentment.

Shortly after respondents got the van from Detweiler, the paint began peeling off and Mr. Bassett took it back to the body shop. When he returned with the van, the owner of the shop then blocked it with another car and refused to let him remove it, demanding payment for the previous repairs. At the time, because Mr. Bassett had no other vehicle, he could not get to work, and as a result he lost $56.00 in wages. He also incurred $11.00 for costs in filing a replevin action the following week to recover the van. The owner of the body shop required respondents to pay for the repairs because appellant did not pay him, and they had to borrow the money to pay him, even though they had endorsed the check to him.

At the time NASCO financed the premiums for respondents, they gave it a power of attorney to request cancellation (of appellant) when payments were not made. Appellant’s underwriting department supervisor, Dwaine Eugene Cook, testified that his ■ department handled cancellations, and had received a copy of the finance agreement between respondents and NAS-CO. He also received a request to remove Mr. Bassett’s brother from coverage, which was done and which resulted in a credit of $75.67, which was given to NASCO on November 20, 1975. NASCO, however, applied this credit to respondents November 16, 1975, billing [which was erroneously billed by NASCO as $104.40 instead of the regular monthly payment of around $26.14]. On December 18, 1975, appellant received a letter from NASCO requesting cancellation as of November 4, 1975, which appellant did, treating it as an insureds’ cancellation under respondents’ power of attorney given to NASCO.

It appears from the evidence that respondents were never actually in default in the payment'of proper premiums through NAS-CO, and certainly it would seem that appellant would be charged with knowledge of what a proper audit of its own records with respect to respondents’ account would reveal. But any issue as to those matters is not here presented by respondents to justify the trial court’s judgment.

Appellant’s first point contention is that there is no evidence from which the trial court could conclude that the policy was not effectively cancelled prior to loss because appellant had a right or duty to accede to the request by NASCO, respondents’ attorney in fact, to cancel the policy. As first stated, the real issue is: Can an insurance company cancel a policy retroactively and make cancellation effective prior to the date that a loss occurred and thus avoid liability?

The date of the loss, November 25, 1975, was known to appellant as it sent out its adjuster in early December, 1975, who authorized the repairs at Detweiler’s Body Shop. Then, on December 18, 1975, it received from NASCO the request to cancel the policy under the respondents’ power of attorney as of November 4, 1975. The real issue posed above has its answer in the following analogous cases, and, first, these excerpts bearing on the issue from Apple-man, Insurance Law and Practice: § 4226, p. 660, “A request for cancellation does not take effect until received by the insurer, or by his agent authorized to receive the same. So, if a loss occurs before a notice or request for cancellation is received by the insurer, the liability of the company is not extinguished.”; § 4197, p. 621, “ * * * [0]bviously a cancellation would have no effect on a right of action which had previously accrued under the policy.”; and § 4193, p. 597, “ * * * [T]he burden of proving a valid cancellation is upon the party asserting it.” See also 45 C.J.S. Insurance § 453, pp. 105, 106. And note here that the policy, here in evidence, paragraph 16 of Conditions, provides: “This policy may be cancelled by the insured named in Item 1 of the declarations by surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating that thereafter the cancellation shall be effective.” [Italics added.] There is nothing to show that NASCO complied with this policy provision in giving the notice of cancellation under the power of attorney.

In Kingsland v. Missouri State Life Ins. Co., 228 Mo.App. 198, 66 S.W.2d 959 (1933) [overruled on other grounds, Schuerman v. General American Life Ins. Co., 232 Mo. App. 352, 106 S.W.2d 920, 922[1] (1937)], a disability group policy was cancelled by the employer before a six month disability of plaintiff employee had become fixed, i. e. before the liability attached under the policy. The court, although affirming a judgment on the pleadings, observed, 66 S.W.2d 961[l-4], “To defeat liability on an insurance contract, there must be cancellation made before the liability attaches.” In Mil-itello v. Banker’s Life and Casualty Company, 141 So.2d 454 (La.App.1962), insured was admitted to a hospital for the second time for a coronary condition at which time he was notified that the policy was being cancelled. About a year later, insured was again hospitalized for the same condition and the insurer refused to pay. The court said, 141 So.2d 457[1], “As the disability arose while the policy was in effect the subsequent cancellation could not affect a claim which had already arisen.” The facts of Detroit Auto. Inter-Insurance Exchange v. Ayvazian, 62 Mich.App. 94, 233 N.W.2d 200 (1975), were that a father of a first-named insured was involved in a collision in February, 1972. The daughter, first-named insured, contacted the insurer about cancel-ling the policy. The insurer advised her that she could cancel retroactively to November 1, 1971, and get a refund of premium from November 1, 1971, to March, 1972, which she did. On the father’s claim, the insurer contended that he could not recover because the daughter had cancelled the policy prior to the date of the collision. The court rejected the contention saying, 233 N.W.2d 203[3] “ * * * ‘[S]ince coverage existed at the time the accident occurred that coverage would have continued from that moment on regardless of the subsequent acts of the parties.’ ” The Ayvazian court quoted from 1 Long, The Law of Liability Insurance, § 3.25: “ ‘The liability of the insurer with respect to insurance * * * becomes absolute whenever injury or damage covered by such policy occurs. The policy may not be cancelled or annulled as to such liability by agreement between the insurer and the insured after the occurrence of the injury or damage.’ ”

In accordance with the foregoing authorities, it must be held that, because liability had attached for respondent’s collision loss, the retroactive cancellation was of no effect, and appellant’s assertions to the contrary are overruled.

Appellant next contends that the penalty for vexatious refusal to pay the loss under § 375.420 should not have been imposed, because, citing Cox v. Washington National Insurance Co., 520 S.W.2d 76 (Mo.App.1974), it was not the intent of the statute to punish insurers who seek decisions in the courts on uncertain issues. Under the above cited authority [of which, appellant, being in the insurance business, must have known] to the effect that a policy may not be cancelled to avoid a preexisting loss claim, and considering that appellant knew of the loss prior to the time it received the power of attorney notice of NASCO, the issue here cannot be uncertain. Appellant’s conduct must be deemed “vexatious” under the statute as that term is defined in Hay v. Utica Mutual Insurance Co., 551 S.W.2d 954 (Mo.App.1977), as meaning “without reasonable or probable cause or excuse.” The contention is overruled.

Lastly, appellant contends that the damages awarded exceed the amount permitted by § 375.420. It is argued, without citation of authority, that the court erred in including $11.00 for replevin costs in seeking recovery of the van from the body shop (which held it after it was returned because appellant had refused to honor its draft), and $56.00 lost wages to Mr. Bassett occasioned by the body shop’s detention of the van. In this argument, appellant is correct because the detention of the van was not a wrongful act of appellant, but was the act of the owner of the body shop who is not a party to this action. The statute, being penal in nature, must be strictly construed, Kay v. Metropolitan Life Ins. Co., 548 S.W.2d 629, 632[7] (Mo.App. 1977), and the statute provides for the damages as a penalty for refusal to pay a loss without reasonable cause or excuse, i. e., 20% on the first $1,500.00 of the loss under the policy, interest (not here prayed for or given by the trial court), and a reasonable attorney’s fee. The statutory provision necessarily excludes other consequential or collateral damages which do not arise under the policy. The consequential or collateral damages here, totalling $67.00, were improperly included, but since, as held, damages for vexatious refusal to pay were allowable, the amount may be readily computed: $816.62 net collision loss; $115.00 medical payments, totalling $931.62, plus 20% penalty, $186.32, plus $400.00 attorney’s fees, a grand total of $1,517.94.

The judgment is affirmed, except that part including $67.00 consequential or collateral damages, which is reversed, and the case is remanded with directions to enter a new judgment against appellant in the amount of $1,517.94 and for costs.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Glenn BAUGHMAN, Appellant.
    No. KCD 29205.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John O. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged by information with sodomy per os, an offense proscribed by Sec. 563.230, RSMo 1969. Trial to a jury resulted in a verdict of guilty. The trial court, in view of the jury’s inability to agree thereupon, assessed defendant’s punishment at ten years imprisonment.

The unsavory nature of the facts, coupled with defendant’s tacit concession of their sufficiency to sustain the guilty verdict, makes minimal reference to them highly appropriate.

The state presented evidence from which the jury could find beyond a reasonable doubt that on two occasions on July 10, 1975, defendant inserted his penis into the mouth of his eleven year old daughter. On the latter occasion, defendant ejaculated into the pathic’s mouth and she spat the exudate onto the basement floor. A chemical analysis thereof, although failing to reveal the presence of any sperm cells, did reveal the presence of acid phosphatase, a material produced by the male prostate gland and a constituent of seminal fluid. Pure saliva does not contain acid phosphatase. Although it was acknowledged that certain ingestible vegetable matter reacts weakly to acid phosphatase tests, the sample of expectoration under analysis reacted strongly and positively to an acid phosphatase test.

A single point is advanced by defendant on appeal — error in not permitting him to inquire of the prosecuting witness on cross-examination as to whether she had previously made similar accusations of sexual assaults upon her by others. To defendant’s dismay, this point was not preserved for appellate review because it was never included in his motion for a new trial. State v. Nolan, 423 S.W.2d 815 (Mo.1968); and State v. Angel, 520 S.W.2d 687 (Mo. App.1975). Defendant’s imploration that it be reviewed as “plain error” under Rule 27.20(c) is rejected. After studying the asserted claim of plain error, records, briefs, and cited cases with great scrupulosity this court is constrained to conclude that “manifest injustice” or a “miscarriage of justice” are not contemporaries of defendant’s conviction and sentence.

Judgment affirmed.

All concur.

      . By way of general observation defendant failed to refine his point to the extent of charging that the “similar accusations” referred to were false and mere fabrications of the prosecuting witness’s mind. In view of his failure to do so, sound authority exists to exonerate the trial court of any error in limiting defendant’s cross-examination of the eleven year old prosecuting witness. See 75 A.L.R.2d 508; and People v. Pacheco, 220 Cal.App.2d 320, 33 Cal. Rptr. 735 (1963).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. David W. BOLEY, Appellant.
    No. KCD 29308.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      Jack N. Peace, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for appellant.
    John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Defendant, charged by information with the crime of forgery (Sec. 561.011, RSMo 1969), waived trial by jury, and upon trial to the court was found guilty and sentenced to five years imprisonment.

As the points of error presented on appeal by defendant (five in number) do not call for an extended synopsis of the facts for their resolution, an abbreviated statement appears appropriate. The trial court could, and obviously did, find beyond a reasonable doubt that at approximately 1:00 P.M. on October 11, 1976, defendant approached the “walk-up” window of the Citizens National Bank in Chillicothe, Missouri, and presented to Margo Carter, the teller on duty, a check purportedly drawn on said bank by Ralph Blakely as maker and naming Viral Johnson as payee. The check was dated October 11, 1976, and was in the amount of fifty dollars. The check had already been endorsed when it was presented to the teller. Defendant asked the teller to cash the check and she complied and gave defendant fifty dollars in United States Currency. Ralph Blakely, a checking account customer of the bank and purported maker of the check, testified that he did not sign the check nor did Blakely make or deliver any check to either defendant or Viral Johnson. Defendant was at the “walk-up” window approximately three minutes concluding the transaction. During this three minutes the teller was actually looking at defendant approximately a minute and a half. It was clear and sunny at the time and the teller had an unobstructed view of defendant from the waist up. The teller positively identified defendant at the trial as the person who presented the check to her on October 11, 1976, and received fifty dollars in cash. No explanation of defendant’s possession of the check was ever offered.

Defendant impugns his conviction and sentence on the grounds (1) that the trial court erred in permitting the state, over defendant’s objection, to introduce evidence that defendant attempted to cash forged checks of a similar nature at the bank on two subsequent occasions, to-wit, on Wednesday, October 13, 1976, and on Friday, October 15, 1976, (2) that the trial court erred in admitting, over defendant’s objection, certain state’s exhibits, (3) that the evidence was insufficient to identify defendant as perpetrator of the offense, and (4) that the five year term of imprisonment imposed by the trial court constituted “cruel and unusual” punishment in contravention of defendant’s rights under the Eighth Amendment to the Constitution of the United States and Art. I, § 21, Mo. Const.1945.

Defendant’s first point revolves around the contention that the testimony by certain state’s witnesses to the effect that defendant on two subsequent occasions attempted to present two other cheeks to the bank for payment naming Viral Johnson as payee impermissibly injected evidence of other crimes. The complained of testimony came from state’s witnesses Margo Carter, Donna Boon and Bill Watson. Margo Carter, the teller who cashed the check for which defendant was prosecuted, testified that defendant again came to “her window” on Friday, October 15, 1976, at which time she did not “transact any business with him”; Donna Boon, a teller at the window in the lobby of the main banking house of the Citizens National Bank, testified that at approximately 1:00 P.M. on Wednesday, October 13, 1976, a person, whom she identified as being the defendant, presented a check naming Viral Johnson as payee at her window for payment which she refused to “cash”; and Bill Watson, Vice-President of the Citizens National Bank, testified that on Friday, October 15, 1976, he encountered a person, whom he identified as being the defendant, at the bank’s drive-up window who presented a check for payment purportedly made by Ralph Blakely and naming Viral Johnson as payee, and although defendant said he was Viral Johnson, Watson refused to cash said check, and in response to defendant’s inquiry as to why he refused to do so he told defendant that he thought the check was a forgery.

Defendant hammers away at the well established principle that evidence of the commission of other crimes is generally inadmissible. He conveniently ignores the equally well established obverse principle that evidence of other crimes is competent to prove the specific crime charged when it tends to establish motive, intent, identity, absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768 (1953); and State v. Smith, 431 S.W.2d 74, 79 (Mo.1968). The “acid” test for determining whether evidence of other crimes falls within any of the recognized exceptions is its logical .relevancy to the particular excepted purpose or purposes for which it is sought to be introduced, and if it reasonably tends to prove a material fact in issue it is not to be rejected merely because it incidentally tends to prove the accused’s guilt of another crime. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954).

Assuming that the testimony of Margo Carter, Donna Boon and Bill Watson showed that defendant forged other cheeks during the week of October 11, 1976, such testimony was admissible because of its logical relevancy to establish intent and a common scheme or plan relative to the charged offense.

Intent to defraud is an element of the crime of forgery and must be averred and proved. See: Sec. 561.011, supra; and State v. Cordray, 200 Mo. 29, 98 S.W. 1 (1906). Consequently, it has been held in a wide range of cases involving various types of forgeries that the admission of evidence showing that the respective accuseds perpetrated similar forgeries near the time and place in question was not error. State v. Minton, 116 Mo. 605, 22 S.W. 808 (1893), forged deed, reversed on other grounds; State v. Hodges, 144 Mo. 50, 45 S.W. 1093 (1898), forged check, State v. Stark, 202 Mo. 210,100 S.W. 642 (1907), forged deeds; and State v. Morro, 313 Mo. 114, 280 S.W. 697 (1926), forged account books.

The following cases involving prosecutions for uttering a check on an account in which the maker had no funds and for obtaining money by false pretenses through the use of a false and bogus check augur in favor of the conclusion that the complained of testimony was admissible to show defendant’s intent to defraud. The accused in State v. McWilliams, 331 S.W.2d 610 (Mo. 1960), reversed on other grounds, was charged with writing a cheek on an account in which he knew he had no funds. The court squarely held in McWilliams that evidence that the accused had passed two similar checks before and two similar checks after the one for which he was charged and standing trial (all five checks were passed over a period of nine days) was admissible as showing accused’s intent to defraud. The accused in State Hartman, 364 Mo. 1109, 273 S.W.2d 198 (banc 1954), was charged with obtaining money by false pretenses on March 15, 1951, through the use of a false and bogus check. The court held in Hartman that evidence that the accused had passed similar checks on March 14, 1951, and May 11, 1951, was admissible on the issue of accused’s intent and that the check passed on May 11, 1951, was not too remote.

The conclusion that the complained of testimony was also admissible to show a common scheme or plan likewise finds support in existing case law. In State v. Burnett, 429 S.W.2d 239 (Mo.1968), the accused was charged with uttering a forged check. There was evidence that accused uttered three other forged checks on the same day and the admission of this evidence was assigned as error on appeal. The court in Burnett held the assignment of error to be without merit and in doing so cited with approval the following language found in State v. Adamson, 346 S.W.2d 85, 88 (Mo. 1961): “It would be difficult to conceive of a better example of a ‘common scheme’ than was shown here in the preparation and passing of these various checks. Evidence of the integral parts of the scheme were admissible to prove elements of the State’s case, not the least of which was an ‘intent to defraud’ in the words of § 561.011.”

Defendant’s stance appears to be that the complained of testimony was inadmissible because it related to offenses committed on days other than the day the charged offense occurred. This distinguishing fact was obviously not the ratio decidendi in the heretofore synopsized cases of State v. McWil-liams, supra, and State v. Hartman, supra. For reasons heretofore stated, this court concludes that the complained of testimony was admissible as it possessed a logical relevancy tending to show a common scheme or plan of intent to defraud.

Defendant’s second point is divided into three subpoints. The third subpoint, and it only partially, is the only one carried forward into the argument portion of defendant’s brief and supported by the' citation of authorities. The first two subpoints, lacking as they do any argument or citations of authority to support them, are deemed to have been abandoned and preserve nothing for appellate review. State v. Drake, 514 S.W.2d 653 (Mo.App.1974). That portion of the third subpoint carried forward in the argument portion of defendant’s brief complains that handwriting exemplars given by defendant and admitted into evidence over his objection should have been excluded because they were incriminatory and the evidence was conflicting as to whether giving them was preceded by a Miranda warning.

The taking of a handwriting exemplar, the content of which is neither testimonial nor communicative, does not violate one’s Fifth Amendment privilege against self-incrimination. It is an identifying physical characteristic which does not fall within the ambit of constitutional protection. Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Hence, a Miranda warning was not required, and the remaining portion of defendant’s third subpoint is of no justiciable moment.

Defendant, by way of his third point, charges that the evidence was insufficient to support the necessary finding by the trial judge that defendant was the person who presented the check in question to the Citizens National Bank on October 11, 1976, for payment. The course of defendant’s argument runs that his identification by Margo Carter, the teller who cashed the check, was fraught with doubt, vagueness and uncertainty. The transcript on appeal admits of no such conclusion. Margo Carter had an unobstructed view of defendant from the waist up for a period of approximately a minute and a half on a clear, sunny day. During the course of the trial she positively and unequivocally identified defendant as the person who presented the forged check to her for payment, and her testimony in this respect stood unshaken on cross-examination. Defendant attempts to sway the issue by a “numbers” argument— only one witness, Margo Carter, identified him as opposed to three alibi witnesses called by defendant who placed him elsewhere at the time the offense was committed. This oft tendered argument invariably fails because the testimony of a single witness, if believed, is sufficient to establish an accused’s identity and will support a conviction. State v. Thomas, 541 S.W.2d 775 (Mo. App.1976); and State v. Graham, 527 S.W.2d 936 (Mo.App.1975). It being sufficient, it is axiomatic that its weight was a matter for the trier of the facts to determine.

In his fourth and final point defendant claims the five year sentence imposed constituted “cruel and unusual punishment” within the constitutional proscriptions of the Eighth Amendment of the Constitution of the United States and Art. I, § 21, Mo. Const.1945. As succinctly pointed out in State v. McCaine, 460 S.W.2d 618, 621 (Mo. 1970), said constitutional provisions generally “refer to the statute fixing the limits of punishment for an offense and not to the individual assessment of punishment by judge or jury within the statutory limits in a particular case.” Defendant has not attacked the statutory limits of punishment fixed by the legislature; to the contrary he limits his attack to the term of confinement fixed by the trial judge. The term of confinement fixed by the trial judge, to-wit, five years imprisonment, was within the statutory limits prescribed by the legislature. Sec. 561.011.2, RSMo 1969. As held in State v. Agee, 474 S.W.2d 817, 821-22 (Mo.1971), citing with approval State v. Brownridge, 353 S.W.2d 715, 718 (Mo.1962), “a punishment [within the statutory limits for the offense] is not cruel and unusual because of its duration ‘. . unless so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.’ ” See also State v. Johnson, 549 S.W.2d 348, 352 (Mo.App. 1977). This court cannot say with abiding conviction that the five year sentence meted out in the instant case was such as to “shock the moral sense of all reasonable men as to what . . . [was] right and proper under the circumstances.”. As a practical matter defendant implores this court to invoke a principle of mandatory appellate review of all sentences under the guise that each presumptively constitutes “cruel and unusual punishment”. This court lacks both the authority and inclination to do so.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Frances S. COOK and Glenn Noble, Plaintiffs-Appellants, v. Julia RUPP, Defendant-Appellant, Neal D. Fanning, John Doe, Foreman of Gang of Laborers, dredging Mud Lake, Richard Roe, Henry Doe, James Roe, Workmen under aforesaid John Doe, full name of said persons unknown by Plaintiffs, and Stanton S. Frakes, Thomas F. Monahan, Lewis Sonnemoser, Gary Pettet and Donald Frakes, constituting the Members of the Board of Supervisors of Halls Levee District, Defendants-Respondents.
    No. KCD 29411.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      Stanley I. Dale, St. Joseph, for plaintiffs-appellants.
    Michael Paul Harris, St. Joseph, for defendant-appellant Julia Rupp.
    Before SHANGLER, P. J., WASSER-STROM, J., and MARTIN and CLARK, Special Judges.
   WASSERSTROM, Judge.

This is an action for mandatory injunction to require defendant Rupp to take certain remedial action to prevent flooding on the land of plaintiff Cook. The trial court granted part of the relief requested. Defendant Rupp appealed with respect to the relief granted, and plaintiffs appealed as to the relief denied. We affirm.

Rupp and Cook own adjoining land within Halls Levee District, just north of Old Mud Lake. Until the latter part of 1975, most of the Rupp tract was marsh land unsuitable for farming. Some of the eastern portion of the Cook land, lying immediately west of the Rupp land, was also marshy and unusable for agricultural, but much of the Cook land was, in fact, farmed. The Cook land drains generally in an easterly direction over the Rupp land. Also draining onto the Rupp property is water from the north through a natural water course known as Contrary Creek Discharge.

Water coming south in this manner passes under a road at the north boundary of the Rupp property through a 30" tube. All water draining onto the Rupp property, both from the west and from the north, runs south into Old Mud Lake. The water from Old Mud Lake drains into New Mud Lake, and from the latter body it eventually drains into the Missouri River.

In November of 1975, Rupp hired defendant Fanning to dredge mud out of Old Mud Lake and deposit it as fill onto the surface of the Rupp land so as to make the Rupp land suitable for farming. In order to handle drainage, a plan was adopted after consultation with an engineer, Robert Williamson, by which a ditch was dug starting at the outlet of the tube under the north road. This new ditch made a right angle turn from the tube, ran parallel to the north road until it reached the boundary between the Rupp and Cook properties, then made another 90 degree turn and ran south to Old Mud Lake. This ditch was some 8' wide at the bottom, 20' wide at the top and 4' deep.

In addition, Rupp commissioned Fanning to build a low water crossing at the southwest corner of Old Mud Lake where the water ran from that body into New Mud Lake. The purpose of this crossing was to enable farm equipment to pass from Rupp land on one side to other of the Rupp land on the opposite side. Testimony offered by Rupp indicated that this crossing was built to a level of 790' above sea level, which was the same as the normal level of water in Old Mud Lake.

In the winter of 1975-1976, plaintiff Glenn Noble, who farmed the Cook property, noticed an unusual amount of water accumulating on the Cook property, which was verified by Cook’s son, Tom Graybill, who managed that property. Believing that the rise of said water was due to the work being done by Fanning for Rupp, Cook and Noble joined in filing the present lawsuit in which they sought to restrain and enjoin further work on the Rupp property and in which they further prayed a mandatory injunction requiring that the Rupp property be restored to its former elevation; that the natural flow of Contrary Creek Discharge be restored; that the low water crossing be removed; that trees, stumps and other debris alleged to have been bulldozed into Old Mud Lake be removed; and that the defendants Board of Supervisors of Halls Levee District be ordered to take whatever action was required in connection with the foregoing.

After the filing of this lawsuit, a conference was held by the lawyers with the circuit judge, as a result of which Rupp instructed Fanning to lower the middle portion of the low water crossing. Fanning did so, the amount of the lowering being stated variously in the testimony at from 3" to 9" below the original elevation. With this exception, the reclamation work on the Rupp property continued, and by the time of trial Fanning had virtually completed all of the project at a cost to Rupp of approximately $188,000.

At the trial, plaintiffs estimated that the rise of water on their property had caused them to lose approximately 36 acres of land which had previously been productive farm land. The implication of this testimony was that this change had been due to the reclamation work on the Rupp land which had resulted in the Rupp property being approximately 3' higher in elevation than the Cook property. However, plaintiffs receded from their initial request that Rupp be required to take off all of the fill from her land and restore it to the former low elevation and marsh condition. As their alternative, defendants substituted a request that Rupp build a new ditch on the eastern side of her property which would constitute a continuation directly south from the tube under the north road to Old Mud Lake; that the east-west portion of the existing ditch along the north boundary be blocked off; and that the north-south ditch along the western boundary of the Rupp tract be maintained in place, but that a water gate be installed at the southern end of that ditch so as to prevent backing up of water into that ditch from Old Mud Lake.

After the taking of extensive testimony and submission of many plats and photographs, the trial court made findings of fact and issued an injunctive order. The court found that “[plaintiffs’ evidence is insufficient to support their claim that defendants deposited trees, stumps and other debris along the banks of Old Mud Lake, and that plaintiffs were damaged by the low water crossing constructed at the southwest end of Old Mud Lake.” Plaintiffs’ prayer for relief with respect to those items was therefore denied. The court further found that defendants had improperly obstructed and diverted the flow of Contrary Creek Discharge, and to correct that the court ordered the construction of a new ditch along the east side of the Rupp property and the construction of a barrier in the east-west ditch sufficient to prevent Contrary Creek Discharge from flowing therein.

In her brief in this court, defendant Rupp has abandoned her appeal, and that separate appeal need not be further noticed. On the part of plaintiffs, their Points on Appeal are: (1) that the court failed to grant them full and adequate relief; and (2) that the trial court erred in failing to find that the Rupp private reclamation project was in violation of and barred by the Halls Levee District plan of reclamation.

I.

Scope of Relief

Plaintiffs’ Point I starts off with a complaint that the court erred in failing to order a complete removal of the entire fill on the Rupp land. However, their own engineering witness Chang testified, “I don’t think it is wise to fill this ditch or to push the dirt from this fill area back to the lake.” Based upon the position that plaintiffs took at trial, the court stated in its findings of fact: “Plaintiffs recognize that it would be neither reasonable nor practical to order restoration of the Rupp land to its original elevation.” That comment is verified by plaintiffs’ statement, in their reply brief that “It was Appellants themselves, in the lower Court that suggested to the Court that it would not be reasonable or practical to require Respondents Rupp and Fanning to remove all of the fill deposited on the Rupp property * * In view of those concessions, plaintiffs should not be heard to argue, and indeed they do not seriously argue, that the trial court should have ordered removal of the fill. Instead, the real argument advanced by plaintiffs is that because the fill was not ordered removed, they should have been accorded all of the alternative elements of relief requested by them. The inquiry therefore turns to a consideration of whether the elements of relief requested but which were not granted, were properly denied by the trial court.

The first of these items is the matter of removal of debris allegedly dumped into Old Mud Lake by defendants. The evidence as to whether or not defendants did those alleged acts is conflicting. The trial court after seeing and hearing the witnesses concluded that plaintiffs had not carried their burden of proof on this point. That finding being supported by substantial evidence will not be disturbed. Murphy v. Garrón, 536 S.W.2d 30 (Mo. banc 1976).

The next item to be considered is the matter of the low water crossing. The normal lake level is 790' and it was that level to which the crossing was originally built. Then, after plaintiffs’ complaints, the center part of the crossing was lowered in December, 1975, by from 3" to 9", so that the center portion of the crossing was below lake level and permitted for drainage of water from Old Mud Lake to New Mud Lake. This testimony was corroborated to a degree by plaintiffs’ own engineering expert Chang who testified that in August, 1975, he took eight different elevations of the low water crossing and that seven out of the eight were below 790.

Moreover, defendants’ engineering expert Williamson testified unequivocally that the low water crossing had no adverse affect upon the Cook property and was not responsible for any water being thereon. The evidence as a whole amply supports the trial court’s finding that plaintiffs’ proof was insufficient to support their claim that they had been damaged by the low water crossing in question.

The final item of claimed relief for consideration relates to the matter of a water gate at the south end of the western ditch. The only evidence submitted as to the necessity or possible utility of such a gate came from plaintiffs’ expert Chang. He did recommend the installation of the gate mentioned for the purpose of preventing the backing up of water from the lake onto the Cook property. However, on cross-examination he conceded that there was no problem of water backing up when the lake was at its normal level of 790'. He further conceded that when there is an abnormal water level in Old Mud Lake, then “you will have flooding whether you have one ditch there or two ditches there” and that “the ditches won’t have a thing to do with the flooding.” This testimony leaves it far from clear just how much value the gate in question would have to plaintiffs.

Plaintiffs in a case like this who ask for a mandatory injunction carry a very heavy burden of proof. As stated in Min-ton v. Steakley, 466 S.W.2d 441 (Mo.App. 1971), “it must be borne in mind that a mandatory injunction directing the undoing of that which has been done may not be granted on doubtful proof; the mandatory injunction is a harsh remedy, to be granted only when the right thereto is clearly established, the burden of proof being upon the complainant. * * * The issuance of any injunctive process is a matter resting in the sound discretion of the court.” Moreover, the molding of an appropriate injunctive decree rests largely in the sound discretion of the trial court. As stated in 43A C.J.S. Injunctions Sec. 235, page 512: “The trial court is vestid with a broad discretionary power to shape and fashion injunctive relief to fit particular facts, circumstances, and equities of the case before it.” Under the evidence in this case, no abuse of the trial court’s discretion has been shown.

II.

Alleged Conflict With The Levee District Reclamation Plan

Plaintiffs contend that the Rupp project was a private reclamation which violated the plan of reclamation of Halls Levee District and that the levee district Board of Supervisors “was the master agency of the District and all programs of reclamation must be instituted by it and under its supervision and control.” Their argument continues that since-defendants sought no permission from the Board of Supervisors and received none, their private reclamation merits condemnation.

It should be noted preliminarily that the Board of Supervisors have never made objection to the Rupp project despite full knowledge on their part that the project was in progress. It is also to be noted that the Board of Supervisors took no appeal from the Circuit Court and have filed no brief nor made any appearance in this court. No showing has been made by plaintiffs that they have standing to urge rights on behalf of the Board of Supervisors, although it is only fair to say also that defendants have raised no point in that regard. We will assume for the purpose of this case, without deciding, that plaintiffs do have standing to raise this point.

Nevertheless, the point must be ruled against plaintiffs. The claim of authority which plaintiffs make on behalf of the Supervisors rests upon statutory Sec. 245.095 (all statutory references are to RSMo 1969). However, all of Chapter 245 must be read in conjunction with Chapter 244 which provides for private drainage rights. See Dillen v. Remley, 327 S.W.2d 931 (Mo.App.1959). Section 244.010 gives the owner of any swamp land the right to drain and protect his property for agricultural purposes whether his land be “situated within or without any drainage or levee district.” Thus our statutory law continues to recognize and supplements Rupp’s common law right to reasonably protect and develop her land for agricultural purposes. Young v. Moore, 236 S.W.2d 740 (Mo.App. 1951).

The evidence in this case shows that Rupp’s exercise of her said rights does not conflict with or threaten the levee district or its plan of reclamation. Williamson testified without any contradiction that the Rupp project did not adversely affect in any way the levee district plan of reclamation. Moreover, the Board of Supervisors called two expert witnesses from the United States Corps of Engineers who supported Williamson in that view.

The cases cited by plaintiffs are readily distinguishable. The first of those cases is Drainage District No. 48 of Dunklin County v. Small, 318 S.W.2d 497 (Mo. banc 1958) where the defendant had built a private levee and attached it to the public levee. Defendant’s private levee obstructed an easement which had been acquired by the drainage district and very substantially hindered the flowage of water for which the easement was intended. There was also evidence that the private levee interfered with and had caused serious damage to the public levee. No similar facts exist in the instant case.

The other case principally relied upon by plaintiffs is Halls Levee District of Buchanan County v. Hauber, 461 S.W.2d 16 (Mo. App.1970). In that case, defendant constructed a private dam on the levee district right of way easement without authority from the district. That private construction was found to be to the detriment of the levee district reclamation plan, and a mandatory injunction therefore issued for its removal. Those facts bear no resemblance to those here.

No error appearing, the judgment is affirmed. Costs will be divided one-half against plaintiffs and one-half against defendant Rupp.