author: SIMEONE, Presiding Judge.

text:
    Joe Kenneth BAKER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 35570.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 25, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 19, 1975.

      Edward W. Fordyce, Jr., Clayton, for movant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   SIMEONE, Presiding Judge.

This is an appeal from an order and judgment of the circuit court of the City of St. Louis, entered July 2, 1973, denying after an evidentiary hearing movant-appellant’s motion to vacate sentence filed pursuant to Rule 27.26, V.A.M.R. We affirm.

Movant-appellant, Joe Kenneth Baker, entered a plea of guilty on February 1, 1971, to robbery in the first degree by means of a dangerous and deadly weapon and assault. On April 30, 1971, he was sentenced to eight years on the robbery charge and two years on the assault charge to run concurrently.

On October 12, 1971, Mr. Baker filed his motion to vacate. In his motion he alleged that the sentence should be vacated because: (a) “[mjovant was ineffectively assisted by counsel in that all of the possible consequences of his guilty plea were not beforehand explained to him”; (b) “movant was ineffectively assisted by counsel in that counsel induced movant’s guilty plea through the elements of fear and persuasion” and (c) “movant’s guilty plea was involuntarily made in that he was not possessed with legal knowledge and was not advised as to all of the possible consequences of a guilty plea to the charge against him.”

On July 26, 1972, movant made a motion to amend his prior motion by seeking to include a paragraph that he was denied effective assistance of counsel for the reason that he did not have available to him a complete, official transcript of the preliminary hearing. He also sought in the motion to amend to subpoena certain court personnel at the preliminary hearing.

The state moved to strike the motion to amend on the ground that the movant was not entitled to a transcript of the preliminary hearing except in cases of homicide. § 544.370, RSMo 1969, V.A.M.S.

At the hearing the parties stipulated that the original motion be in fact amended but that the motion to strike be treated as a motion in response and a motion to quash subpoenas. The assistant circuit attorney urged the court to deny the request for the transcript, since, under the statute and judicial decisions, movant was not entitled to same.

At the evidentiary hearing, movant testified that his fiancee Shirley Baker and his father retained an attorney for him. On October 13, 1970, he was arraigned on the charges for the alleged offenses committed on September 19, 1970. Private counsel was retained in early December, 1970, and the plea was entered February 1, 1971. At the hearing movant testified that he was aware of the charges, that his attorney explained the range of punishment, that he knew a co-defendant received a sentence of life imprisonment, and knowing that “I told him I’d take the eight” after the state had first recommended a ten-year sentence. He further testified that his attorney explained that he would lose his civil rights, although “[h]e didn’t explain them, he said I would be losing them.” He further testified that he never gave his counsel the names of any witnesses who might be contacted. He testified that it was explained to him that he would have a right to a trial by jury. He did not claim any alibi defense. At the hearing on the motion, certain portions of the plea record were read to movant. At the time of the plea, he admitted that he desired to withdraw his plea of not guilty and desired to plead guilty. At the plea, the facts of the case were explained to the court concerning the alleged robbery and assault. Movant admitted that no one had threatened him in order to obtain the plea, that no one promised probation or parole, that he did not claim alibi, that he was entitled to a trial and that he was waiving the right to trial. He was asked if he had discussed the matter with his attorney, and his reply was in the affirmative.

At the evidentiary hearing on his motion, he testified that “. . .1 really couldn’t say” what consequences of the plea were not explained and that the “fear” was a fear of going to the penitentiary and if he went to trial he was fearful of getting a life sentence.

The retained counsel also testified at the evidentiary hearing. He testified that he explained the nature of the penalty, but didn’t believe he explained the loss of civil rights. He made no promises of probation. He did not attempt to obtain a transcript of the preliminary hearing, and did not interview any witnesses. Counsel stated that the movant wanted him to do the best he could by getting either not to serve any time or the least amount of time as possible. “. . . [I]s that your understanding that you were being employed to do? A Yes.” Counsel felt then and at the time of the hearing that movant made a wise choice in accepting the plea of guilty.

On February 12, 1973, the court entered an order sustaining the state’s motion to strike the movant’s motion to amend and “overruled” the movant’s motion to amend. But on March 2, 1973, this order was set aside and held for naught. Then on July 2, 1973, the court sustained the motion to amend and made extensive findings of fact and conclusions of law.

The movant appealed. He contends that the trial court erred because (a) counsel failed to “adequately and thoroughly” explain the consequences of his plea of guilty, (b) counsel failed to adequately explain the elements of the offense and investigate the facts, (c) the court precluded movant from amending his motion to obtain the transcript of the preliminary hearing and (d) the court did not make sufficient findings of fact and conclusions of law.

Each of the appellant’s contentions is without merit. The record is clear that the appellant was adequately informed of all his rights and that the plea was voluntarily and intelligently made. Appellant contends that he was not adequately informed of the loss of his specific civil rights, including the right to vote and the right to be an executor of an estate. Movant admitted that his attorney informed him he would lose his civil rights but that they were not explained to him.

The test is not a particular ritual or whether each and every detail is explained to a defendant but whether in fact the plea is voluntarily and intelligently made. Flood v. State, 476 S.W.2d 529, 534 (Mo.1972). Under this record we have no hesitancy in holding that the trial court was not clearly erroneous in its finding on this issue. There were no threats or promises inducing a plea; he understood he was entitled to a jury trial; he understood the nature of the charge. Although we know of no such requirement, movant admitted that his retained attorney informed him he would lose his civil rights. We know of no rule or decision that the court or an attorney must explain in detail each and every loss of civil rights upon a plea of guilty.

Appellant complains that his retained attorney did not investigate the cause “so that a legal opinion with a proper foundation as to appellant’s guilt or innocence could be given to appellant, thus preventing appellant from voluntarily and understandingly entering the guilty pleas.” Whether counsel is ineffective must be determined under the facts of a particular case.

“The myriad peculiarities inherent in sundry adversary proceedings between the state and accuseds in criminal cases, especially when viewed with an awareness that the desires and capacities of various accuseds are different and that all are distinct and different personalities in their own right, preclude laying down an absolute objective rule for determining the effectiveness of counsel in a given case. . . .” Williams v. State, 508 S.W.2d 211, 213 (Mo.App.1974).

Once a guilty plea is entered, a determination of the adequacy of representation is immaterial except as it bears on the issues of voluntariness and understanding. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971). We have never held that counsel must investigate and interview witnesses in each and every case regardless of the circumstances. The myriad of criminal charges, the peculiarities of each ease, the nature of the cause, the desires of the client as well as many other considerations preclude the laying down of an absolute rule. The test is whether the representation of an attorney reaches the level of adequacy so that the plea is voluntarily and understandingly made. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). See Thomas v. State, 516 S.W.2d 761, 765 (Mo.App.1974).

We find no inadequacy here. The movant knew that a co-defendant had received a life sentence; movant admitted his guilt; he told his attorney that he wanted him to do the best for him by getting him the least amount of time possible; no witnesses were furnished counsel; he did not claim an alibi defense. Movant informed retained counsel that he wished to plead guilty and did not provide counsel with any witnesses. Under the circumstances, we cannot say in this case that retained counsel who had “hundreds” of criminal cases was ineffective. The adequacy of counsel cannot be measured by the number of visits with the movant. Fields v. State, 484 S.W.2d 208, 210 (Mo.1972); State v. Pedicord, 437 S.W.2d 87, 91 (Mo.1969).

The contentions raised by appellant that counsel failed to provide movant with a “well founded legal opinion as to his guilt or innocence” prior to the plea, and that once appellant had made a decision to plead guilty he was entitled to “an evaluation of that decision” are without merit.

The court did not err as movant contends in not permitting an amendment of the motion and failing to make sufficient findings. The court in its final order indicated that the motion to amend was sustained and the state’s motion to quash subpoenas was also sustained. The court stated in its findings that movant stated that he “ ‘. . . believes that the testimony of the two witnesses . . . may tend to show a denial of movant’s constitutional rights.’ ” But the court concluded that movant did not assert that his rights have been violated or denied, “nor does he state positively that any such rights were denied.” The court concluded that denial of constitutional rights cannot be predicated upon mere speculation. State v. Prigett, 470 S.W.2d 459, 463 (Mo.1971).

Furthermore, there is no requirement that a transcript of a preliminary hearing be provided in this type of case. § 544.370; Rule 23.12; State v. Benison, 415 S.W.2d 773, 775-776 (Mo.1967); State v. McCaine, 460 S.W.2d 618, 620-621 (Mo.1970).

Finally, appellant alleges that the trial court failed to make sufficient findings of fact and conclusions of law as to all of the issues presented as required by Rule 27.26(i), V.A.M.R., and that such failure necessitates a remand. In support of his claim, appellant cites Durham v. State, 473 S.W.2d 397 (Mo.1971), and Larson v. State, 437 S.W.2d 67 (Mo.1969), which we believe are distinguishable. In Durham the trial court’s failure to consider one of the grounds asserted in the motion to vacate compelled remand, and in Larson the court remanded because the trial court failed to announce any findings or conclusions.

We hold that the findings of fact and conclusions of law required under Rule 27.-26(i) were complete and adequate.

In conclusion, the movant has failed to sustain his burden of proof that his plea was involuntary and that he was denied effective assistance of counsel. We have scrutinized the complete record, read the briefs and authorities cited and are convinced that the trial court’s findings of fact and conclusions of law are not clearly erroneous.

The order denying the motion to vacate is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . This motion is directed only to the sentence on the robbery charge, since the sentence on the assault charge had expired.

      . §§ 111.021 (vote); 452.010 (former cause for divorce); 409.204 (broker); and 473.140 (executor).

      . See United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971). “This Court is . . aware of no precedent . . . for the proposition that due process requires that a defendant be informed of each and every right which is waived by a guilty plea . . Carrying Kelly’s [defendant] argument to its logical conclusion, the court, before accepting a guilty plea, would be required to inform a defendant of his right to a speedy and public trial, his right to an impartial jury, his right to compulsory process for obtaining witnesses, his right to be free from cruel and unusual punishment, his right to be free from unreasonable searches and seizures, his right to have excluded from the trial any evidence illegally seized, and many more. . . .”
      There is no requirement that the court explain the accused is entitled to a competency hearing. Jones v. State, 471 S.W.2d 223, 226 (Mo.1971). The fact that a plea results from a plea bargain does not make the plea involuntary. Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973).
      A plea to escape a heavier sentence is not involuntary. Goodloe v. State, 486 S.W.2d 430, 432 (Mo.1972).


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    Elizabeth Ellen RICHARDSON, Plaintiff-Respondent, v. William Dorsey RICHARDSON, Defendant-Appellant.
    No. 35960.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 1, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 19, 1975.

      Anderson, Wollrab & Wilson, Barry A. Wilson, St. Louis, for defendant-appellant.
    Bartley, Goffstein, Bollato & Lange, Gary H. Lange, Clayton, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of a decree of divorce entered by the Circuit Court of St. Charles County, Missouri, granting plaintiff a divorce, custody of their two minor children, and one dollar ($1.00) a year as and for alimony, §§ 452.-010, 452.070 and 452.120, RSMo 1969, V.A. M.S.

Since defendant questions the sufficiency of the evidence to show that plaintiff was the innocent and injured party, we set out the evidence keeping in mind that in a non-jury court-tried case our review is upon both the law and the evidence. Rule 73.01(d), V.A.M.R. While the court is not bound by the trial court’s findings and can make its own, yet the judgment should be set aside only if clearly erroneous, Harrison v. Harrison, 339 S.W.2d 509, 514 (Mo.App.1960); Rule 73.01(d), and should be affirmed if sustainable on any theory, In re M — K—, 493 S.W.2d 686, 688 (Mo.App.1973). Consideration is given to the trial court’s ability to judge the credibility of the witnesses, Rule 73.01(d). Where there is conflicting testimony, deference is given to the trial court’s conclusions, Nutz v. Shepherd, 490 S.W.2d 366, 369 (Mo.App.1973), and where no specific findings are made, all fact issues are deemed to have been found in accordance with the results reached, Rule 73.01(b).

On December 13, 1973, plaintiff, appearing with counsel, testified that the defendant had failed to support her and that defendant had physically and verbally abused her on numerous occasions. Although neither defendant nor defendant’s counsel appeared at the 9:00 A.M. divorce hearing, defendant allegedly called to inform the court of his anticipated tardiness. When he arrived at the court at 9:25 A.M., the divorce hearing was concluded.

The court found that plaintiff was the innocent and injured party and ordered that the divorce be granted. Plaintiff was awarded custody of the two children, allowed $10 per week per child as support, $1 per year ás alimony and attorney’s fees of $300 were taxed against defendant. The court stated that the defendant failed to appear but the divorce was not a default.

On January 14, 1974, defendant filed a motion to set aside the judgment, a motion for a new trial, and a request for a change of venue. All of the motions were denied and on January 22, 1974, defendant filed notice of this appeal.

Defendant claims error in the trial court’s findings that the plaintiff was the innocent and injured party. He also contends that the granting of the ex parte divorce under the circumstances of this case was erroneous. Finally, defendant contends that the prior court erred in awarding defendant’s entire official income as alimony and in allowing the hospital records into evidence at the pendente lite hearing.

Since the new Missouri divorce law became effective on January 1,1974, that law is not applicable to the present case because the divorce decree, the final judgment in this case, was issued on December 13, 1973.

A thorough examination of all of the contentions of the defendant reveals no grounds for reversal of the trial court’s decision and, therefore, the decision of the trial court is affirmed.

Defendant’s first major group of contentions might be effectively classified as relating to the burden of proof; that is, the party seeking a divorce must prove that she is an injured and innocent party, C v. C, 474 S.W.2d 41 (Mo.App.1971). He contends that the plaintiff failed to prove either injury or innocence.

To establish injury, plaintiff must prove some statutory grounds provided in § 452.010, RSMo 1969, V.A.M.S. As suggested by the defendant non-support by the husband is not grounds for divorce, Hess v. Hess, 232 Mo.App. 825, 113 S.W.2d 139 (1938). On the other hand, while non-support alone is not grounds for divorce, nonsupport plus other indignities may be a sufficient basis for a decree of divorce, Lowe v. Lowe, 229 S.W.2d 7 (Mo.App.1950). In Klamberg v. Klamberg, 428 S.W.2d 889 (Mo.App.1968), the court found non-support plus the general “sulkiness” of the husband to be sufficient grounds. In Markham v. Markham, 429 S.W.2d 320 (Mo.App.1968), the court found that the non-support by the husband, when funds were available, amounted to a species of mental cruelty creating an intolerable condition justifying divorce.

In the present case, the plaintiff claims more than non-support. She testified that on numerous occasions defendant physically and verbally abused her. These indignities coupled with the allegation of non-support could reasonably be found by the court to be sufficient to warrant divorce. The substantiality of the indignities are to be determined in light of the particular circumstances of each case, Rogers v. Rogers, 430 S.W.2d 305 (Mo.App.1968); Schwarz v. Schwarz, 427 S.W.2d 734 (Mo.App.1968); Reeves v. Reeves, 399 S.W.2d 641 (Mo.App.1966) and Missouri Family Law Binder (1970) 1220. This court, under the circumstance herein, cannot say that verbal and physical abuse coupled with nonsupport by the husband was not substantial enough to warrant divorce.

Having effectively established injury, the plaintiff, nonetheless, is not relieved of her burden to also establish her innocence. But innocence, in this context, does not mean freedom from all fault, but simply that the party seeking a divorce show that she has committed no offense which is a ground for divorce, J v. K, 419 S.W.2d 461 (Mo.App.1967); C v. C, 474 S.W.2d 41 (Mo.App.1971) and Schwarz v. Schwarz, supra. Defendant asserts that his wife has committed an offense prohibited by the statute by deserting him. “Desertion” is defined under the statute as being absent without a reasonable cause for a year, § 452.010, RSMo 1969, V.A.M.S. In the present ease, arguably there was reasonable cause for plaintiff’s departure and more importantly, plaintiff was not absent for a period of one year. Defendant has, therefore, failed to demonstrate any action by the plaintiff amounting to an offense under the statute. Consequently, we hold that the court’s finding that plaintiff was the innocent party was not clearly erroneous.

Next, defendant claims that the court abused its discretion by conducting the hearing and granting the divorce in his absence. It is apparent from § 452.090, RSMo 1969, V.A.M.S., that a trial court is authorized to enter an ex parte decree. No claim is made that defendant did not know that the case had been set for trial on the day of the hearing. We also note that this was not a default judgment because defendant had entered his appearance and filed an answer. In defendant’s unverified motion for a new trial he purports to raise for the first time that: (1) he called a Miss J. Dussold, the court clerk, and advised her that it would be impossible for him to appear at the 9:00 A.M., December 13, 1973 trial setting, but that he would definitely appear after a reasonable delay, and (2) he, in fact, did appear at 9:25 A.M., December 13, 1973.

At the outset we note that defendant’s motion for a new trial was unverified, and that he filed no affidavit to support the claim made therein pertaining to the alleged telephone call. Nor do we find any evidence in the record, sworn or unsworn, to substantiate the claim now being set forth. Inasmuch as these unverified allegations now being urged do not prove themselves, we are reluctant, under these circumstances, to hold that the trial court abused its discretion. See Gehner v. McPherson, 430 S.W.2d 312, 316-17 (Mo.App.1968) and Whitlock v. Whitlock, 395 S.W.2d 468, 471 (Mo.App.1965). Here, the proceedings had extended over a six month period and even the telephone call, now alleged to have been made, contained neither the reason why defendant could not be present on time nor the time when defendant would appear. Consequently, we find no abuse of discretion and refuse to convict the trial court of error on this point.

Defendant also alleges error in the trial judge’s awarding $1 alimony where the defendant’s official earnings were only $1 per year. He urges this court to find that such an award was an abuse of discretion because it effectively left the defendant with no allowance for his support. This court finds no such abuse of discretion. Additionally, it has been held that the proper consideration in determining the adequacy of marital allowances is the husband’s capacity to pay. The husband’s present and past earnings are evidence of this capacity, Weiss v. Weiss, 392 S.W.2d 646 (Mo.App.1965). In the present case, the petitioner had earned substantial incomes in previous years, adequately supported himself at the time of the proceedings and anticipated a significant income upon completion of the project on which he was then employed. Thus we rule this point against defendant.

Defendant’s final contention relates to the introduction of certain adverse medical records at the pendente lite proceeding. Without reaching the question of the admissibility of such records, the court notes that the contention was not properly presented for review. The pendente lite hearing is an interim proceeding for the purpose of determining alimony, support and custody pending the final divorce proceeding and is an appealable final order. Bradley v. Bradley, 295 S.W.2d 592 (Mo.App.1956). Allegations of error in such an interim proceeding are not properly presented on this appeal since defendant failed to appeal from the pendente lite order.

Judgment of the trial court is affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: WEIER, Presiding Judge.

text:
    Walter S. CZARNECKI and Janice M. Czarnecki, Plaintiffs-Appellants, v. PHILLIPS PIPE LINE COMPANY et al., Defendants-Respondents.
    Nos. 35731, 35887.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 8, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 19, 1975.
    Application to Transfer Denied July 14, 1975.

      Joe Bill Carter, Clayton, for plaintiffs-appellants.
    Lashly, Caruthers, Thies, Rava & Hamel, Albert H. Hamel, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Robert C. Jones, Clayton, Bryan, Cave, McPheeters & McRoberts, Veryl L. Riddle, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

In this court tried case, at the conclusion of all of the evidence, the court rendered judgment in favor of defendants Anheuser-Busch, Inc. and St. Paul Title Insurance Corporation as to Counts II and III of the petition. Counts I and IV against defendant Phillips Pipe Line Company were taken under advisement, and some months later the court rendered judgment on those counts in favor of the defendant Phillips Pipe Line Company. The plaintiffs appealed from each judgment. Thereupon, both appeals were consolidated and submitted as one in this court. After a consideration of the contentions advanced by plaintiffs, we have determined that they have no merit and affirm the judgments below.

Walter S. Czarnecki and Janice M. Czar-necki purchased a residence and lot in St. Louis County, Missouri on May 14, 1971. They knew when they purchased the property that there was a pipeline easement across the rear of their lot. The real estate salesman had pointed it out as being at the back of the lot. But their concern which precipitated the filing of this lawsuit assumed major proportions when in the early part of March, 1972 Mr. Czarnecki came home from work, went out to his backyard and saw stakes at both sides of his property, and found that the defendant Phillips Pipe Line Company was going to construct a new pipeline which would be very close to the back of his residence. The petition upon which the suit was tried consisted of four counts. Count I sought an injunction against the defendant Phillips. It alleged that the defendant Phillips by reason of certain recorded right-of-way documents had acquired an interest in the plaintiffs’ property and that because of an alleged mutual mistake of fact between Phillips and Czarneckis’ predecessor in title, Phillips was planning to construct its pipeline outside of the easement area and therefore should be enjoined. Count II was an action for $20,000.00 in damages against St. Paul Title Insurance Corporation for alleged negligence in issuing its certificate of title which, according to plaintiffs, failed to indicate that Phillips actually had two or more easements running through the property. Count III was an action for damages in the sum of $20,000.00 against the defendant Anheuser-Busch, Inc., the grantor in the warranty deed conveying the real estate to the plaintiffs. Plaintiffs complained that the deed referred only to a right-of-way thirty feet wide and failed to show that the pipelines were not within the easement described but rather outside of the boundaries of this thirty foot right-of-way. Count IV was an action in trespass for damages against the defendant Phillips alleging that the pipelines were not within the thirty foot easement. Copies of the instruments describing the easement were attached and made a part of the petition. To illuminate the issues, we set forth a chronology of events concerning the easements presented by the evidence.

The first pipeline was an eight inch line installed on the premises in 1930. No document was introduced in the evidence concerning this original construction and we assume that none was recorded. The first document introduced in the evidence was entitled “Right-of-way Grant” and was executed on the 20th day of August, 1941 by Eva Meyer and Ferdinand Meyer, and recorded in the recorder’s office of St. Louis County. This purported to grant to Phillips Petroleum Company, the predecessor in interest to the defendant Phillips Pipe Line Company, the right to maintain an existing pipeline and construct one additional pipeline across certain land. This land was later subdivided and one of the lots became the subject of this suit. The description contained in this grant to Phillips read as follows: “A tract thirty feet wide across that portion of the West half of the Northeast Quarter of Section 4, Township 43 North, Range 6 East in St. Louis County, Missouri, which lies North of the Mattese Road containing 40.80 acres, more or less. The center line of the above thirty foot tract is the Grantee’s present pipe line, as now located and laid, more particularly described as follows: Entering the above described property at a point in the West boundary line approximately 20 feet South of the Northwest Corner and running in a Northerly (sic) direction approximately parallel to the North line of said property and leaving said property at a point in the East line approximately 20 feet south of the Northeast Corner of the above described property.”

On September 25, 1951 a second instrument entitled “Supplemental Right-of-way Grant” was executed by Guy and Anna Burnette to Phillips Pipe Line Company. This incorporated by reference the first document and proposed to amend the first right-of-way grant to allow Phillips to construct a IOV4 inch pipeline alongside the existing 8 inch pipeline, the prior grant having limited the size of any additional pipeline to 8 inches. This second document describes two tracts, each a little larger than five acres, across which the pipeline easement ran. But aside from referring to the previous recording, it did not specifically locate the easement within the tracts described.

The third right-of-way instrument was executed on January 9, 1967 by Charles R. Kruse and Doris M. Kruse, his wife, wherein they granted to Phillips the right to construct, operate, inspect, maintain and remove its present pipelines and additional pipelines which may be laid in the future, describing the right-of-way granted as follows: “A tract of land being thirty feet (30') wide across Lots 15-16 & 17, Sir Winston Estates, plat of which is recorded in Book 118, Page 25, Records of St. Louis County, Missouri. The center line of the above thirty foot (30') tract being the Grantees’ present existing eight inch (8") pipe line as it is now located on said premises. The said eight inch (8") pipe line being the most northerly of two existing pipelines owned by Grantee. (Book 6134, page 133.)” This document does not refer to any of the previous documents above described. It should be noted that the execution of this instrument followed by five days a meeting between the right-of-way agent of Phillips and Mr. Kruse, who together with his wife owned the property at that time and who was constructing a house on the premises. This meeting came about because the house was being built very near the southernmost of two parallel pipelines of Phillips. The pipelines were uncovered and they were observed in relation to the house then being built. It was at this time that the third instrument was drawn up and executed.

Plaintiffs, on appeal, first contend that the court erred in rendering judgment on Count I of their petition in favor of defendant Phillips Pipe Line Company because the third easement executed January 9, 1967 was executed under mutual mistake of fact and that the legal description was insufficient to locate the new easement, resulting in the existence of a continuous trespass across the property by reason of the location of pipelines outside the only easement of record. The answer to the first part of this contention is found in the facts that support the court’s judgment. The defendant Phillips wanted to and did clarify the location of the easement by a new agreement with the then owners of the premises in 1967 so that there would be no doubt as to its right to have working room and the right to install an additional pipeline. This right-of-way contract dated January 9, 1967 followed closely the conference of the right-of-way agent of Phillips with the owner-builder at the subject premises and the observation of the uncovered pipelines in relation to the house which was then being constructed. Under those circumstances there could be no mutual mistake of the parties since each clearly knew what the situation was with respect to the location of the pipelines. Mutual mistake has been defined as one common to both contracting parties, wherein each labors under the same misconception as to a past or existing material fact. Artman v. O’Brien, 398 S.W.2d 24, 27[4] (Mo.App.1965).

The second part of plaintiffs’ contention of error as to the court’s judgment on Count I of plaintiffs’ petition, that is, that the legal description in the 1967 right-of-way was insufficient, and plaintiffs’ contention on appeal that the judgment as to Count IV of plaintiffs’ petition denying plaintiffs damages against defendant Phillips for trespass in that defendant Phillips’ pipelines are not within the thirty foot easement area, blend into each other in the sense that what plaintiffs are essentially saying is that the descriptions contained in the easement documents were such that the easement could not be properly located upon the premises. If located by the metes and bounds description contained in the first instrument, it would place that easement in a different location than where the pipes are actually located, thus giving rise to a claim of trespass. We will therefore consider both of these matters at the same time to prevent undue length and repetition in the opinion.

It may be stated as a general rule that any description in the conveyance of an interest in real property is sufficient if it affords the means of identification of the property. Such a conveyance will not be declared void for uncertainty of description unless, after resorting to oral proof or after relying upon other extrinsic or external proof or evidence, that which was intended by the instrument remains a mere matter of conjecture. Hamburg Realty Company v. Woods, 327 S.W.2d 138, 150[2, 4] (Mo.1959). Thus, in a case where the validity of a utility easement was assailed by a successor to the grantor of the easement because it did not sufficiently describe the course along which a power line was to be constructed, the court determined that since the easement gave the power company the right to enter a specifically described tract of land and erect, construct and maintain its transmission line over, along and across the land, the evidence indicating that the line had been constructed, that the consideration had been paid, and that it had been maintained openly for more than thirty years, were such circumstances as to prevent the easement from being void for indefiniteness. Kansas City Power & Light Company v. Riss, 319 S.W.2d 262, 264[2] (Mo.App.1958). There, no center line was described. The novelty of the situation here is that the easement does not call for the erection of a utility line over and above the surface of the ground but rather the construction and maintenance of a pipeline to be buried beneath the surface. The eight inch line of 1930 is the center line of the easement described in both the first and third grants of right-of-way. The question then arises: Is the eight inch pipeline constructed thirty-seven years before the execution of the third right-of-way instrument such a monument as to give definiteness to the description and make it possible to locate the thirty foot easement across plaintiffs’ property?

Monuments, of course, are among the more important indicias of boundaries. They are classified into natural and artificial. Natural monuments are permanent objects found on the land as they were placed by nature. Artificial monuments are landmarks or signs erected by the hand of man. 11 C.J.S. Boundaries §§ 6 and 7, pages 546, 547. “[I]t is one of the settled rules of the law of boundaries that calls for courses and distances, quantity, etc., will, in case of a conflict, be controlled by, and yield to, one for a natural object or landmark or permanent artificial monument.” 12 Am.Jur.2d Boundaries, § 67, page 604; Houska v. Frederick, 447 S.W.2d 514, 518 (Mo.1969). A monument has been defined as being a “fixed, visible object”. Koch v. Gordon, 231 Mo. 645, 133 S.W. 609, 610 (1910). Considering this definition, an eight inch pipe buried in the ground is certainly a fixed object and is visible if uncovered. The mere fact that it is generally covered would not necessarily destroy its position and significance as a monument since it can always be uncovered and made visible. It is in much the same situation as a cornerstone that is covered by a deposit of eroded soil, or an iron stake which has been covered by vines and other vegetation. In most cases, in fact, it would be in a better state of preservation than most artificial monuments because of its protection from the environment. That buried monuments have been used and sometimes favored in surveying in the past is indicated in Clark’s “Treatise on the Law of Surveying and Boundaries”, First Edition 1922, § 217, page 202, wherein the author suggests that memorials, such as glass, stoneware, marked stones, cast iron, charcoal, or charred stakes buried twelve or twenty-four inches under the surface be used at corners. In this work, the author particularly recommended buried charcoal or stone pottery because of their durability and effectiveness. Brown in “Boundary Control and Legal Principles”, page 166, ff. (1957), in discussing the durability of monuments comments on the fact that unfortunately most of the cornerstones used for that purpose have been destroyed where cultivation or construction work has been in progress. Mounds of stone become weathered and concealed by bushes and shrubs. Posts or wooden stakes set as corners are seldom found in later years. Pits and mounds are frequently filled and eroded until hardly recognizable.

In the controversy before us, even though the eight inch pipeline is buried under earth, it can be located and has a quality of permanence that can be claimed for few artificial monuments. The description used in the third instrument executed in 1967 is definite and one that can be used by a surveyor to determine the extent of the easement conveyed. As to the first easement (the right-of-way grant of 1941), since the eight inch pipeline was used as a monument for determining the position of the pipeline easement, it would govern over the inaccurate and vague course and distance description. Houska v. Frederick, supra, 417 S.W.2d 514, 518 (Mo.1969). The judgment favoring Phillips Pipe Line Company is therefore affirmed as to both Counts I and IV.

We turn our attention to the judgment of the trial court favoring defendant Anheuser-Busch, Inc. and St. Paul Title Insurance Corporation. Plaintiffs contend that this judgment was in error in that the warranty deed executed by Anheuser-Busch and the certificate of title executed by St. Paul Title Insurance Corporation each subjected the title of the property to this encumbrance: “ ‘right-of-way, thirty feet wide, granted to Phillips Petroleum Company, according to instrument recorded in Book 1779, Page 564; Book 2991, Page 325; Book 6134, Page 133.’ ” The trouble, they assert, is that the encumbrance described as a thirty foot right-of-way is in the singular whereas under legal descriptions contained in the first instrument the easement for that pipeline would be to the rear of the property and the easement described in the third instrument because of the location of the eight inch pipeline referred to therein is in a different location. Because the easement referred to in the deed and title is referred to in the singular rather than the plural, plaintiffs submit that there is an undisclosed permanent easement on the land of which the purchaser had no actual or constructive knowledge. The exception set out in the deed and title referred to three different recordings, indicating that there could be three different instruments. Furthermore, the position that we take is that there is only one easement described by these instruments and the eight inch pipeline is the center line of the easement. Its location is governed by the location of the pipeline upon the land. As a monument, its location takes precedence over the course-and-distance description set out in the 1941 instrument where the pipeline line was described as being parallel to the north line and approximately twenty feet distant from it. There was only one thirty foot right-of-way across the plaintiffs’ land of which the eight inch pipeline was the center line. The choice of singular form rather than plural in describing the easement was correct even though there were three instruments that had to do with the easement itself. The certificate of title and the warranty deed did not mislead the plaintiffs but indicated that there was a thirty foot easement across the land and that the easement was described or referred to in three different recordings with the book and page number of those records. The fact that only one easement was described in the encumbrance which further referred to three different recordings should have caused the plaintiffs-purchasers to be more careful to ascertain the location of this easement before they accepted the warranty deed and paid the purchase price for the premises. The description of the 1967 or third grant, with no courses and distances should have especially alerted the plaintiffs to the importance of ascertaining the easement’s location before closing their transaction. We find no merit in the contentions of plaintiffs as to error in the judgment favoring defendants Anheuser-Busch, Inc. and St. Paul Title Insurance Corporation.

The judgments are affirmed.

DOWD and RENDLEN, JJ., concur.


author: GUNN, Judge.

text:
    Zella Maxine LARISON, Plaintiff-Respondent, v. Robert Lee LARISON, Defendant-Appellant.
    No. 35982.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 22, 1975.
    Motion for Rehearing or for Modification or to Transfer to Supreme Court Denied May 19, 1975.
    Application to Transfer Denied July 14, 1975.

      Ellsworth W. Ginsberg, Clayton, for defendant-appellant.
    Cundiff & Turken, St. Charles, for plaintiff-respondent.
   GUNN, Judge.

This appeal arises out of a dissolution of marriage action involving custody of a child. The defendant husband appeals from an order, judgment and decree awarding custody of a minor child to the plaintiff-wife together with an award for maintenance, child support and attorney’s fees and costs. The husband alleges that the trial court erred: 1) in granting custody of the child to the wife; and 2) in awarding the wife maintenance of $5.00 per week, child support in the sum of $25.00 per week and attorney’s fees of $1,800. The husband’s challenge to the judgment is that there was insufficient evidence to support the trial court’s rulings. No challenge is raised as to the termination of the marriage between the husband and wife.

We first consider the issue of child custody. It is within the sound discretion of the trial court to determine what is in the best interest and welfare of a child in a child custody dispute. Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975). The court of appeals will not disturb a child custody decree of a trial court unless there has been an abuse of discretion or unless the court is convinced that the child’s welfare requires some other disposition than that made by the trial court. Hugeback v. Hugeback, 444 S.W.2d 23 (Mo.App.1969); Payne v. Payne, 399 S.W.2d 619 (Mo.App.1966). Our review of the record gives us no reason to disturb the trial court’s finding as to the award of custody of the child to the plaintiff-mother.

The husband has alleged that the trial court’s award of maintenance, child support and attorney’s fees was made without sufficient evidence to support such order. At the time of trial, the wife had been employed as a waitress in a small restaurant in Rogersville, Missouri, earning $1.25 an hour and receiving very little from tips. She worked, at most, a 40 hour week, and prior to her current job she had taken home only about $19.00 per week. Her only other source of income was a welfare benefit check of $80.00 a month. Her only asset was a marital interest in a 1972 pickup truck kept by the husband. Thus, her financial worth scarcely allowed for sybaritic living. Even if it could be found that the earnings or financial resources of the wife were sufficient to provide the bare necessities for her and her child, a court may still order a father to pay support money to the custodial mother. Williams v. Williams, 510 S.W.2d 452 (Mo. banc 1974). We find from the record that the father had sufficient income to justify the award of child support money in this case, see Page v. Page, 516 S.W.2d 537 (Mo.App.1974). At the time of trial the husband’s wages were $188.33 per week from one job, but there was evidence that he received income from time to time from a second job. His earnings for the year prior to trial were $12,000. In setting the amount of child support, the trial court has the obligation to determine the reasonable needs of the child and the reasonable ability of the father to meet those needs. Fugate v. Fugate, 510 S.W.2d 705 (Mo.App.1974); McM. v. McM., 506 S.W.2d 14 (Mo.App.1974). Determination of the amount awarded rests within the sound discretion of the trial court, and we find no abuse of the trial court’s discretion in this case in awarding child support of $25.00 per week. Fugate v. Fugate, supra; Bryan v. Bryan, 452 S.W.2d 293 (Mo.App.1970). Similarly, the allowance of alimony is within the discretion of the court, and we find no abuse of the trial court’s discretion in awarding the wife $5.00 per week alimony in this case. Forrest v. Forrest, 503 S.W.2d 80 (Mo.App.1973).

A wife is allowed attorney’s fees where she does not possess sufficient means of her own to finance the litigation, but there must be evidence to establish the wife’s need to have the expense borne by the husband. McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974); McFadden v. McFadden, 477 S.W.2d 722 (Mo.App.1972). Broad discretion is vested in the trial court in making an award of attorney’s fees, and if the disparity of means to pay is sufficient, the wife should be allowed to look to her husband for payment of attorney’s fees. McGinley v. McGinley, supra; Lester v. Lester, 452 S.W.2d 269 (Mo.App.1970). Upon evaluation of all circumstances and evidence, particularly that of the wife’s meager income and the husband’s ability to pay, we find that the awards here made for child support, alimony and attorney’s fees were sufficiently supported by competent evidence.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.


text:
    CITY OF WEBSTER GROVES, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. INSTITUTIONAL AND PUBLIC EMPLOYEES UNION, etc., Defendants-Appellants.
    No. 36689.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 22, 1975.
    Motion for Rehearing to Amend Opinion Denied May 19, 1975.

      Charles R. Oldham, St. Louis, for defendants-appellants.
    George J. Bude, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Plaintiff City of Webster Groves, a municipal corporation, filed suit to make permanent a temporary injunction restraining defendants, members of Institutional and Public Employees Union, AFSCME, Local 410, AFL-CIO, from picketing in designated areas of Webster Groves. Defendants filed a counterclaim for vacation pay allegedly owed to certain union members who were discharged employees of Webster Groves. The trial court granted a permanent injunction and denied relief on defendants’ counterclaim. Defendants have appealed.

In September, 1972 the Secretary-Treasurer of defendant union sent a letter to Webster Groves officials requesting that Local 410 be recognized as the exclusive bargaining agent for an appropriate bargaining unit among the public works employees. After further correspondence between these parties, the Missouri State Board of Mediation was requested to conduct an election.

Prior to the events related above, in June, 1972, Webster Groves had begun a move to increase the salaries of some city employees. A Chicago firm was preparing a position classification and pay plan for Webster Groves. All city employees were notified at this time that such a study was being conducted and that some of them could expect to receive a salary increase, if warranted, later in the year. This study was completed in October, 1972 and submitted to Webster Groves officials. The matter was discussed at a November 21, 1972 meeting of the City Council. A plan for salary increases was to be implemented. Under this plan, wage increases would be granted to some forty employees of Webster Groves, including sixteen members of the bargaining unit sought by Local 410.

The union election was scheduled for January 4, 1973. Plaintiff’s City Manager called a meeting of the Public Works Department employees on January 3 and advised them of the election. He outlined the election procedure to be followed and read the state statutes covering the right of public employees to organize. He also dis-' cussed the recently-completed study which had been put into operation. Concerning the new system of personnel administration, he added that whether or not there was a union, salary increases would continue to be recommended by department heads and forwarded to him.

Also, on January 3, 1973, based on the study and the decision of the City Council to implement it, a number of employees in the Public Works Department were given a pay increase. Several defendants testified that they received notice of the pay increase from the Public Works Director, who informed them that they should remember the wage increase when they voted.

The union won the election by a vote of 28 to 9 and was certified as the collective bargaining agent by the State Board of Mediation. After the election and certification, negotiating teams representing both plaintiff and defendants met on a number of occasions to discuss wages, hours, and employment conditions for the Public Works Department employees. While no written agreement resulted from these negotiations, oral agreement was reached on a number of items.

However, on May 25, 1973, members of the union negotiating team charged that plaintiff had attempted to “break” the union. Defendants claimed that an employee had been discharged without cause. Webster Groves representatives disclaimed any efforts to “break” the union and stated that the discharge in question resulted from insubordination. City officials further took the position that the discharge in any case was not a proper subject for negotiation, and requested that the negotiations be continued. In response, the union representatives left and did not return for further negotiating sessions.

On June 26, a regular work day, seventeen full-time employees of the department failed to go to work and set up a picket line in front of the city service center (also called the city garage) and at the city hall. These employees, together with members of Local 410, carried signs alleging that the City of Webster Groves was “unfair to Local 410”. This picket line halted construction of a wing to the city hall. A regular gasoline delivery to the city scheduled for the week of June 25 was not received until late Friday, June 29. The city service center (city garage) was the point at which all other materials for the Public Works Department were to be delivered. The City Manager informed the striking employees by letter of June 26 that they would be fired the following day if they did not return to work. The next day all employees continuing the strike were notified of their immediate discharge, with reasons stated.

A temporary restraining order halting the picketing was issued Friday, June 29, by the Circuit Court of St. Louis County. After issuance of the order, construction on the addition to city hall resumed and the gasoline deliveries were made to Webster Groves. The circuit court then issued a temporary injunction on July 24. After a trial on the merits, a permanent injunction, entered October 25, 1973, enjoined defendants from picketing the job site of the city hall addition, the city service center, any road construction work within Webster Groves, and from doing violence or threatening violence on any city official. However, the permanent injunction order specifically permitted informational picketing along the north side of the city hall.

On appeal, defendants initially invoke the doctrine of unclean hands and contend that plaintiff was not entitled to equitable relief. Defendants thereby claim that the trial court erred by granting the injunction. According to defendants, plaintiff committed illegal acts in an effort to “break” the union prior to the strike and to prevent the employees from exercising their rights to join and to form labor unions. In support of this contention, defendants claim that plaintiff made threats against certain employees, that plaintiff intended to deprive employees of wage increases if they participated in the union, that plaintiff threatened to fire newly-hired employees if they joined the union, and that plaintiff promised wage increases to employees who refrained from union activity. Such allegations, if proven, could constitute unfair labor practices by a municipality, and public employees are entitled to relief against a governmental body committing unfair labor practices. See State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969). Defendants introduced some testimony as to threats made by plaintiff City to employees concerning union activities and involvement. Defendants also claimed that the firing of Walter Lloyd, a union shop steward, constituted another unfair labor practice. However, plaintiff introduced testimony of its City Manager and Director of Public Works to refute and to explain testimony adduced by defendants. Even some former employees testified that no threats were made against them and that they knew of no such threats. Further, evidence was presented to the effect that Walter Lloyd’s discharge resulted from insubordination and not union bias by plaintiff.

Defendants also contend that the unilateral wage increase effected by plaintiff immediately prior to the election, failure by plaintiff to accept the “good offices” of the State Board of Mediation in resolving the labor disputes, and the calling of a meeting by plaintiff officials to discuss the election with the employees, all were illegal and unfair labor practices. However, defendants have failed to demonstrate in what way such activities violated any provision of Chapter 105, RSMo 1969; nor have defendants cited any cases holding such actions by a governmental unit to be illegal. This was a court-tried ease. Thus factual resolutions and issues of credibility were to be decided by the trial judge. To this determination, we normally defer. In our review of the record and the evidence we find no error in the judgment of the trial court. Rule 73.01(3), V.A.M.R. Defendants’ contentions to the contrary are without merit.

Defendants next submit that the trial court erred by enjoining their informational picketing because a strike no longer existed against Webster Groves. They assert that since peaceful picketing is protected by both the United States and Missouri Constitutions, their constitutional rights have been abridged by the issuance of the injunction.

Defendants agree that public employees have no right to strike under Missouri law. But they claim that since they have been fired there no longer exists an employer-employee relationship between plaintiff City and defendants. They point out that plaintiff has no plans to rehire them, that they are not considered employees, and therefore they are not picketing as public employees in support of a strike. Thus defendants urge that they have the constitutional right to inform the public of the “unfair labor practices” of the City of Webster Groves, and that plaintiff has shown no high and compelling reason to deprive defendants of their constitutional guarantees.

We of course agree with defendants’ general contention that peaceful picketing is protected by both the federal and state constitutions. However, the right to picket, as is the case with many constitutional safeguards, is not absolute. While it is difficult here to separate defendants’ original strike from the later picketing, their main contention in this case centers on their status after the discharges. As noted above, defendants claim that they can no longer be considered public employees. But nowhere do defendants define their status after the dismissals.

Picketing by employees or union members is not protected by constitutional-safeguards when the result or objective is against state law or policy. Baue v. Embalmers Federal Labor Union No. 21301 AFL-CIO, 376 S.W.2d 230, 234[2], 235[3, 4] (Mo. banc 1964). Actual or threatened wrongs to a governmental body constitute a sufficient reason to enjoin picketing and governmental functions may not be impeded or obstructed by strikes or picketing. City of Grandview v. Moore, 481 S.W.2d 555, 557-558[2, 3] (Mo.App.1972). After their discharges, whether defendants be considered public employees or private union members, their picketing could be enjoined if plaintiff’s governmental functions were disrupted or impeded. Further, even assuming that defendants were merely private citizens after the discharges, they would have no right to picket anywhere they chose. Picketing by private citizens is not protected where such activities disrupt governmental functions, or cause problems to public health or safety.

Here, the evidence tended to show that plaintiff’s governmental services and functions were disrupted by the picketing. The picket line halted construction of a wing to the city hall. A regular gasoline delivery to the city could not be made until the picketing had been halted. This gasoline was to be used for the operation of all city vehicles, including fire trucks and police cars. Likewise, the city service center was the point at which all other materials for the Public Works Department were to be delivered. The trial court could find from the evidence that the picketing was disruptive of governmental services and should have been enjoined. Further, the court’s injunction did not prohibit all picketing by defendants. They were permitted to continue their picket line along Lockwood Avenue on the north side of the city hall. Thus, defendants were left in a position to exercise their right to picket peacefully. We find no error by the trial court in its issuance of the injunction.

Defendants further contend that the trial court erred by denying their counterclaim for vacation pay. They maintain that plaintiff had no authority to appropriate their vacation pay, since this constituted earned wages. Defendants urge that vacation pay is deferred compensation in lieu of wages earned, that it is payable at some later time, and as such it cannot be withheld from the employee upon voluntary or involuntary termination of employment.

Here, plaintiff had enacted personnel rules and regulations providing that regular city employees leaving the city’s service could receive accrued vacation compensation only if they resigned in good standing. A particular procedure was to be followed in order “[t]o resign in good standing.” But plaintiff’s theory that the vacation pay abated under the provisions of the personnel rules and regulations fails in face of the fact that defendants did not resign but were discharged. The personnel director and city manager of the City of Webster Groves wrote each of the defendants on June 27,1973, and notified each one he was “discharged from the service of the City of Webster Groves” effective that day.

The right to vacation pay upon termination of the employer-employee relationship is a contractual right. It may be the subject of the provisions of a written contract. Brackett v. Easton Boot and Shoe Company, 388 S.W.2d 842, 847[2] (Mo.1965); Birch v. Glasgow Savings Bank, 114 Mo.App. 711, 90 S.W. 746 (1905). Or it may be established by implied contract. State ex rel. H. K. Porter Company, Inc. v. Nangle, 405 S.W.2d 501 (Mo.App.1966); Vail v. Rumsey & Sikemeier Co., 137 Mo.App. 446, 119 S.W. 42[3] (1909). Customs and usages may by implication become part of the parties’ contract. State ex rel. H. K. Porter Company, Inc. v. Nangle, supra, 405 S.W.2d at 503[7].

In the case before us, the city manager, who also occupied the positions of director of finance and director of personnel for the City, acknowledged that the defendants as city employees had accrued vacation days at the time of their discharge. These days were accrued at the rate of five-sixths of a day for every month of service. According to the City records, the amounts of accrued vacation pay varied from as low as $35.82 for one defendant to as high as $505.56 for another. We see no reason why this vacation pay was not awarded to the defendants on their counterclaim. Admittedly, there was some vacation pay due almost all of the defendants at the time of their discharge on June 27,1973. Although they had improperly gone on strike June 26, 1973, they had previously earned their vacation pay under contract with the City as acknowledged by the city manager. They obviously had no intention of resigning when they went on strike. Their separation from their employment came when they were discharged by the City because they participated in an illegal strike. No provision of the city rules and regulations pointed out to this court would prevent them from receiving accrued vacation pay when they were discharged.

The judgment for plaintiff on plaintiff’s petition is affirmed. The judgment for plaintiff on defendants’ counterclaim is reversed and the cause remanded so that the trial court may determine the amount of vacation pay due each defendant, if any, and render judgment thereon in accordance with this decision. Costs are taxed against the plaintiff.

DOWD and RENDLEN, JJ., concur.

      . Chapter 105, RSMo 1969, V.A.M.S., guarantees public employees, with certain specific exceptions, the right to join labor unions.

      . In the Missey case, public employees charged and proved unfair labor practices in order to regain their jobs with the City of Cabool.

      . Defendants argue that “the First and Fourteenth Amendments of the Federal Constitution and Sections 8, 9, 10, 25 (sic), 29 and 31 (sic) of Article 1 of the Constitution of Missouri” protect their right to picket peacefully.

      .§ 105.530 RSMo 1969, V.A.M.S. provides: “Nothing contained in sections 105.500 to 105.530 shall be construed as granting a right to employees covered in sections 105.-500 to 105.530 to strike.”

      . “ * * * A regular employee leaving the city’s service shall be compensated for vacation leave accrued to the date of separation only if he has complied with the provisions of Section 11.6 hereof.” Section 10.4, Personnel Rules and Regulations of the City of Webster Groves.
      “Section 11.6 Resignation: To resign in good standing an employee must give the appointing authority at least fourteen calendar days prior notice unless the appointing authority, because of extenuating circumstances, agrees to permit a shorter period of notice. A written resignation shall be supplied by the employee to the appointing authority giving reasons for leaving. * * ”

      . See for example: Vangilder v. City of Jackson, 492 S.W.2d 15 (Mo.App.1973) wherein this court upheld the right of an ill employee to sick-leave pay accrued at the time his employment was terminated by a city; and Bruce v. City of St. Louis, 217 S.W.2d 744 (Mo.App.1949) wherein this court upheld the right of a city employee to accrued vacation pay after discharge even though he had been employed elsewhere.


text:
    Leo B. PELLIGREEN, Jr., Plaintiff-Appellant, v. CENTURY FURNITURE & APPLIANCE CO. et al., Defendants, Nathan and Ruth Taksel et al., Defendants-Respondents.
    No. 36114.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 29, 1975.
    Rehearing Denied June 12, 1975.

      Greensfelder, Hemker, Wiese, Gale & Chappelow, John J. Bahnak, Jr., Jerry D. Perryman, St. Louis, for plaintiff-appellant.
    Marvin Moldafsky, Michael A. Gross, Clayton, for defendants-respondents.
   WEIER, Presiding Judge.

Plaintiff Leo B. Pelligreen, Jr. instituted an action in two counts against defendant Century Furniture & Appliance Co. (hereinafter Century) and the other designated defendants individually for rent due, damages, interest, and attorneys’ fees. After a non-jury trial, the court entered judgment in favor of plaintiff for $10,-473.06 against defendant Century. However, the court rendered judgment in favor of the remaining defendants. It is from this decision that plaintiff has appealed. We affirm.

This case involves a commercial lease. In March, 1966 plaintiff, as lessor, entered into a lease agreement with defendant Century as lessee under the terms of which Century leased the ground floor of the premises at 6101-03 Easton Ave. (also known as 1511 Hodiamont Ave.) in the City of St. Louis. The lease term was a two-year period from April 15, 1966 to April 14, 1968, and the monthly rental was $600.00. Other specific terms included lessee’s obligation to return the premises with all plate glass and windows intact and in a clean condition. The individual defendants in this case personally and individually guaranteed Century’s performance of the lease and payment of attorneys’ fees to enforce collection. The lease contained an option to lessee to extend its terms for an additional three years, provided lessee gave lessor written notice ninety days before termination of the lease of lessee’s intent to exercise this option.

Defendant Century occupied the premises for two years under the terms of the lease, and paid the $600.00 monthly rental. After the expiration of the lease term, April 14, 1968, Century continued in possession of the premises until December 31, 1969. From April, 1968 through February, 1969 defendant paid a monthly rental of $666.66 (the amount provided in the option to extend). But after March 1, 1969 defendant paid no rent. When defendant vacated the premises broken windows were discovered; debris was also found in the area and had to be cleaned up.

Plaintiff sought recovery of the rent due through December 31, 1969, for ten months at $666.66 per month, damages for the window breakage, expenses for cleanup, attorneys’ fees, and interest. Plaintiff’s position at trial was that defendant had exercised the option to extend, all the terms of the original lease remained in force and effect, and thus the individual defendants were liable as guarantors for the amount pleaded. The trial court found that defendant Century owed plaintiff the amount sought, that the option to extend had not been exercised, and that the individual defendants were no longer guarantors after expiration of the initial lease term.

Plaintiff raises two points on appeal. He initially contends that the trial court erred by admitting the testimony of defendant Nathan Taksel, officer of defendant Century, as to conversations between Taksel and Charles Degnan, plaintiff’s agent, concerning the option to extend. According to this testimony, Degnan, who handled plaintiff’s affairs with defendants, asked Taksel if Century would continue to occupy the leased premises on a month-to-month basis after the lease expired, since Taksel had informed him that Century would not exercise the option to extend. Since Degnan was deceased at the time of trial, plaintiff • submits that Taksel was an incompetent witness regarding this conversation pursuant to § 491.010, RSMo 1969, V.A.M.S. The trial court permitted this testimony over objection on the basis that other disinterested witnesses were present.

Section 491.010 removes the common law disqualification of witnesses by reason of interest, and disqualifies them only as to the specific matters enumerated by the statute. Galemore v. Haley, 471 S.W.2d 518, 521[3] (Mo.App.1971). The death of a contracting agent disqualifies the other person to the contract from testifying under this statute. State ex rel. State Highway Commission v. Jacobs, 281 S.W.2d 597, 598[1] (Mo.App.1955). Under the statute, Taksel would be an incompetent witness as to transactions with the deceased agent that concerned the option to extend. The trial court incorrectly overruled the objection to Taksel’s testimony. The existence of living uninterested witnesses to the conversations with the deceased agent does not make the interested survivor competent. McCracken v. Schuster, 179 S.W. 757, 759[3] (Mo.App.1915). Assuming arguendo that this testimony was admitted erroneously, since this was a court-tried case, we review the law and the facts de novo. Rule 73.01(3)(a), V.A.M.R. In such review, we cannot consider evidence which was admitted improperly. Rackers and Baclesse, Inc. v. Kinstler, 497 S.W.2d 549, 552[1] (Mo.App.1973). But even though evidence is admitted improperly, when other competent evidence supports a judgment in a court-tried case such as this, or an equity case, harmless error results. Bashor v. Turpin, 506 S.W.2d 412, 421[8] (Mo.1974); Nordquist v. Nordquist, 321 Mo. 1244, 14 S.W.2d 583, 588[4] (1929). Further, in its amended judgment, the trial court recognized the applicability of § 491.010 and reached the same decision without considering the challenged testimony. For these reasons, we conclude that any error committed by the trial court in the admission of this testimony does not constitute a basis for granting a new trial.

Plaintiff next contends that the trial court should have ruled as a matter of law in his favor against the individual defendants because defendant Century exercised the option to extend, thereby continuing the remaining defendants’ status as guarantors as provided in the lease agreement. As mentioned earlier, the option to extend was to be exercised if the lessee provided lessor with ninety days’ written notice before expiration of the two-year lease term. It is not disputed by the parties that no written notice was provided. Plaintiff testified that neither he nor his agent received any written notice. Taksel testified that defendant Century sent no written notice to plaintiff. But plaintiff maintains that options can be exercised other than by written notice if the intent to do so is shown. He asserts that here defendant Century manifested such intent by holding over and by paying the increased rent as provided by the option.

In situations involving options to extend leases, the option is for the benefit of the lessee, and a written notice requirement is for the benefit of the lessor and may be waived by him. Blanchon v. Kellerstrass Distilling Corporation, 200 Mo.App. 610, 208 S.W. 484, 485 (1919); Gerhart Realty Co. v. Brecht, 109 Mo.App. 25, 84 S.W. 216, 217 (1904). The general rule is that a holding over by the lessee and waiver of notice by the lessor combine to exercise an option to extend a lease. The law then implies a continuation of the original tenancy upon the same terms, conditions, and covenants as provided by the original lease. Lewis v. Perry, 149 Mo. 257, 50 S.W. 821, 824 (1899); State ex rel. State Highway Commission v. Demarco, 445 S.W.2d 379, 385[5] (Mo.App.1969); Blanchon v. Kellerstrass Distilling Corporation, supra, 208 S.W. at 485. But this principle is qualified if there is something else present, or if something in the conduct of the parties discloses a different intention. Blanchon v. Kellerstrass Distilling Corporation, supra at 486. Situations may and do arise wherein the facts are so uncertain as to make it a question of fact whether or not the lessee elected to exercise an option to extend. Gerhart Realty Co. v. Brecht, supra, 84 S.W. at 218.

We view such to be the situation in this case. The evidence disclosed that defendant Century held over, paid the increased rent provided by the option, and plaintiff accepted the rent payments. However, other facts were present so as to indicate the parties’ intentions. Defendant Taksel was told that Century would have to pay the increased rent whether or not the option was exercised. Testimony was presented to the effect that plaintiff had offered these premises for sale during the period after expiration of the lease. “For sale” signs were on the leased premises during the holdover period. Plaintiff showed the building to prospective purchasers during the holdover period and told them that it was available. Perhaps even more convincing was a notice to terminate tenancy identified by plaintiff. This notice informed Century it would be required to surrender the premises one month after the next rent due date, obviously a notice used to terminate month-to-month tenancy in the form required by § 441.060, RSMo 1969, V.A.M.S. Although it was signed by the deceased agent and testimony of Nathan Taksel concerning it should have been ex-eluded, plaintiff sufficiently identified it to make it admissible. As such it was explanatory of the plaintiff’s intention to consider the holding over not to be an exercise of the option to extend the lease.

The trial court’s determination that the parties intended to establish a month-to-month tenancy was based upon admissible fact and fair inference.

Since the option was not exercised, the individual defendants’ status as guarantors ended upon expiration of the two-year lease term. The liability of a guarantor is to be construed strictly according to the terms agreed upon, and a guarantor is bound only by the precise words of his contract, and no stretching or extension of terms can be indulged in order to hold the guarantor liable. Zoglin v. Layland, 328 S.W.2d 718, 721[2-5] (Mo.App.1959). We find no error in the trial court’s judgment.

The judgment is affirmed.

DOWD, Acting P. J., and RENDLEN, J., concur.

      . § 491.010, RSMo 1969, V.A.M.S. reads in part: “ * * * provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, * * *, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, * *

      . The trial court’s amended judgment ruled in part: “The Court finds that the Dead Man’s Statute does not bar all of the testimony of Nathan Taksel. The Statute was intended to render incompetent as a witness only the testimony which might be subject to question by the other party, if living. The testimony of Nathan Taksel clearly established no intent to exercise the option to renew the lease.”


author: STONE, Judge.

text:
    Dan W. GRAY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9487.
    Missouri Court of Appeals, Springfield District.
    May 29, 1975.
    John R. Fowlkes, Caruthersville, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Mark D. Mittleman, H. David Ro-bards, Asst. Attys. Gen., for respondent.
   STONE, Judge.

For the killing of Cleatus Leo Phillips, a deputy sheriff of New Madrid County, Dan W. Gray was charged with murder in the first degree and convicted of murder in the second degree by a jury which assessed his punishment at imprisonment for a term of sixty years [§§ 559.010, 559.020, 559.030, RSMo 1969, V.A.M.S.], for which on November 30, 1961, judgment was rendered and sentence was pronounced thereon. Since that date, the validity of this conviction and judgment and/or the legal propriety or sufficiency of trial procedures or appellate review have been attacked and considered repeatedly and have been the subject of no less than six reported judicial opinions cited marginally in chronological sequence.

This is an appeal by Gray (hereinafter appellant) from the trial court’s denial of his most recent motion under Rule 27.26, in which he sought credit for time in jail prior to his sentencing on November 30, 1961. Our consideration necessarily is limited to the two complaints pleaded in appellant’s motion ruled by the trial court and here presented thusly in appellant’s points and authorities: “(A) The Legislature, in 1971, in Senate Bill 294 amended Section 546.615 [and] made mandatory the granting of credit for presentence jail time,” and “(B) The refusal to give defendant credit for presentence jail time is violative of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.” Schleicher v. State, 483 S.W.2d 393, 394(2) (Mo. banc 1972); Maggard v. State, 471 S.W.2d 161, 162(1) (Mo.1971); Fritz v. State, 449 S.W.2d 174, 177 (Mo.1970).

Of (A). Actually, the above-quoted statement (A), with which we are in complete agreement, does not reflect appellant’s complaint. Rather, although recognizing in the first sentence of his argument that the 1971 amendment “does not make this statute giving credit for jail time retroactive,” he immediately suggests that “the statute does not prohibit its retroactivity [sic] application” and proceeds to an earnest argument that the amended statute should be given such application. However, it is a settled rule of construction, long accepted and frequently utilized in this jurisdiction, that statutes are construed to operate prospectively unless the legislative intent that they be given retroactive or retrospective operation clearly appears from the express language of the act or by necessary or unavoidable implication [State ex rel. Clay Equipment Corp. v. Jensen, 363 S.W.2d 666, 670(7) (Mo. banc 1963), and cases there cited] or, as otherwise put, unless a different intent is evident beyond reasonable question. State ex rel. Hall v. Vaughn, 483 S.W.2d 396, 398(3) (Mo. banc 1972); State ex rel. Scott v. Dircks, 211 Mo. 568, 577, 111 S.W. 1, 3(1) (banc 1908). Section 546.615, as amended, neither reveals nor implies any intent that it should operate retroactively; and, in consonance with prior appellate determinations that the amended statute should not be accorded retroactive application, we again so hold. Meeks v. State, 512 S.W.2d 215, 217(3) (Mo.App.1974); King v. State, 510 S.W.2d 747, 748(2) (Mo.App.1974); Brown v. State, 509 S.W.2d 472, 473(2) (Mo.App.1974).

Of (B). Whether or not denial of credit for presentence jail time in a final judgment entered prior to the effective date of amended § 546.615 is violative of defendant’s constitutional right to equal protection of the law is a question which has been presented to and uniformly answered in the negative by our appellate courts in numerous reported cases. Gillis v. Swenson, 495 S.W.2d 658, 661(3) (Mo. banc 1973); State v. Crockrell, 470 S.W.2d 507(3) (Mo.1971); Neighbors v. State, 515 S.W.2d 792(1) (Mo.App.1974); Meeks v. State, supra, 512 S.W.2d at 217(5); King v. State, supra, 510 S.W.2d at 748-749(3); Martin v. State, 505 S.W.2d 131 (Mo.App.1973). As in Meeks, supra, we again refer the interested to the discussion and disposition of this question in State v. Crockrell, supra, and again answer the same question in the negative.

The judgment of the circuit court is affirmed.

HOGAN and TITUS, JJ., concur.

BILLINGS, C. J., and FLANIGAN, J., not participating.

      . State v. Gray, 360 S.W.2d 642 (Mo.1962); Gray v. Swenson, 271 F.Supp. 912 (W.D.Mo.1967); State v. Gray, 432 S.W.2d 593 (Mo.1968); Gray v. Swenson, 302 F.Supp. 1162 (W.D.Mo.1969); Gray v. Swenson, 430 F.2d 9 (8th Cir. 1970); State v. Gray, 478 S.W.2d 654 (Mo.1972). A concise review of the prior judicial proceedings appears in the last-cited opinion [478 S.W.2d at 655-657], followed by a succinct summary of the evidence upon trial. 478 S.W.2d at 657-658.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth E. ROBERTS, Appellant.
    No. KCD 26757.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Charles A. Gallipeau, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER end DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant, having been charged with possession of heroin, waived his right to a trial by jury, was tried before the court, and was found guilty. On this direct appeal from that conviction he makes the single claim of error, that the evidence was insufficient to sustain the conviction because there was no evidence showing that defendant had knowing and conscious possession of the contraband substance.

At the trial the State presented two witnesses, Officers Calvin Leslie and Harrell Hockemeier of the Kansas City, Missouri, Police Department. Their testimony, substantially the same in all pertinent respects, reflected that both were members of the Kansas City, Missouri, Police Department on August 10,1972. At approximately 9:45 p. m., both officers were in an unmarked police car patrolling the area around 29th & Prospect. Officer Hockemeier was driving. As they approached the intersection of 29th & Prospect from the south, they were looking for a Wesley Turner, wanted in connection with a robbery. Neither Officer Leslie nor Officer Hockemeier knew Turner personally, but both had been given a description of him as being 5' 9" tall and weighing about 150 pounds. As the officers reached the intersection, they could see two men to their right standing to the north of a building located on the southeast corner. Officer Hockemeier thought one of the men matched the physical description of Turner, and so he turned the car around in an abandoned service station on the northeast corner of this intersection. He stopped the car with the headlights shining on these two men. These two men were also illuminated by a corner street light and light emitting from the building beside them. Officer Hockemeier also shined a searchlight on them. The taller of the two men, Arlester Scott, was then observed to drop small objects into defendant’s cupped hands. Scott thereupon saw the lights of the police car, turned around, walked to the corner, and proceeded to walk south on Prospect. Officer Leslie described Scott’s gait as “a pretty fast walk.” Defendant, after seeing the police vehicle, then bent down, released some objects, and followed Scott. Officer Hockemeier drove the car to the curb, and both officers jumped out. Officer Leslie pursued Scott, and when he ordered him to stop, Scott stopped, turned around, and jammed his hand into his pocket. Officer Leslie ordered him to take his hand from his pocket, and when he did so a syringe fell from his hand. Officer Leslie retrieved it and then took Scott back to the police vehicle, where Officer Hockemeier had defendant in custody. While Officer Leslie guarded Scott and defendant, Officer Hockemeier went and picked up the objects which defendant had dropped. Officer Hockemeier retrieved two red balloons and some automobile keys. There were no other objects, trash, or debris in the immediate area where these objects were found by Officer Hockemeier. The two balloons each contained some capsules which were analyzed and shown to contain heroin.

In order to make out a case of illegal possession of a controlled substance under § 195.020, RSMo 1969, Y.A.M.S., it must be shown that the accused was in conscious possession of the particular substance. State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Berry, 488 S.W.2d 667 (Mo.App.1972). The test of whether the accused had conscious possession is whether or not he was aware of the presence and character of the particular substance [State v. Burns, supra; State v. Berry, supra], and proof of such conscious possession can be, and usually is, supplied circumstantially by evidence of the acts or conduct of the accused from which it may be fairly inferred that he knew of the existence of the contraband. State v. Scarlett, 486 S.W.2d 409 (Mo.1972); State v. Burns, supra; 28 C.J.S. Supp. Drugs and Narcotics § 204, pp. 299, 300. Here, the facts that defendant received the balloons from Scott and immediately bent down, dropped them, and began following Scott after he realized he was being observed, was sufficient evidence to support a finding of knowing possession of contraband. See State v. Scarlett, supra; People v. Perez, 213 Cal.App.2d 436, 28 Cal.Rptr. 751 (1963); People v. Groom, 60 Cal.2d 694, 36 Cal.Rptr. 327, 388 P.2d 359 (1964).

The evidence in this case was sufficient to sustain a conviction, and the conviction is, therefore, affirmed. See State v. Small, 423 S.W.2d 750 (Mo.1968); State v. Davis, 510 S.W.2d 790 (Mo.App.1974); State v. Boykins, 434 S.W.2d 484 (Mo.1968); State v. Bryson, 506 S.W.2d 358 (Mo.1974).

All concur.


text:
    STATE of Missouri, Respondent, v. James Glade HAMAKER, Appellant.
    No. KCD 27471.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    R. E. Moulthrop, Bethany, for appellant.
    H. M. Kilpatrick, Bethany, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals from a misdemeanor conviction of driving while intoxicated. A jury rendered the verdict of guilty and assessed punishment of a fine of $100.00.

Between the hours of 10:15 and 10:30 P.M. on the evening of September 14, 1973, defendant was operating a tractor-trailer unit near Bethany, Missouri. Shortly after turning east on Highway 136 from its junction with Highway 69, the unit ran onto the shoulder of the road and became mired in mud. Defendant began to radio for assist-anee when a passerby, George Jinks, stopped alongside within no more than a very few minutes to offer his aid. The Jinks vehicle was situated in the eastbound lane of Highway 136 with taillights flashing. Defendant then put his tractor into gear and pulled his unit completely off the road, but before anything further could transpire, Mr. Jink’s car was struck in the rear by a second automobile operated by Richard Warner. Highway Patrolmen were summoned at 10:30 P.M. and arrived shortly thereafter, followed within 5 or 10 minutes by City police officers from Bethany. During the ensuing police investigation, defendant was placed under arrest for driving while intoxicated.

The first two points proffered in this appeal are substantially similar and will be considered together. Defendant claims there was insufficient evidence from which to find that he was intoxicated while actually operating his vehicle, and that any finding to that effect must have been im-permissibly based solely on the disbelief of his testimony. In support of this argument, defendant stresses his own testimony which firmly denied any alcoholic consumption prior to the accident. It was, according to defendant, only after his tractor-trailer became stuck and while he was waiting for the troopers to arrive that he partook of five or six cans of beer. This testimony, it is claimed, provided the only affirmative evidence as to when his drinking took place, and therefore the State’s case respecting this element was insufficient of itself and rested totally on a disbelief ⅛ of defendant. In reviewing the evidence respecting these contentions, this court will consider as true all evidence favorable to the verdict, together with all favorable inferences reasonably drawn therefrom, and reject all evidence and inferences to the contrary. State v. Chester, 445 S.W.2d 393, 397 (Mo.App.1969); State v. Reed, 453 S.W.2d 946 (Mo.1970); and State v. Harris, 452 S.W.2d 577 (Mo.1970).

While it is true that disbelief of a defendant’s testimony does not constitute substantive proof of a material issue [State v. Dodson, 496 S.W.2d 272, 275 (Mo.App.1973) and State v. Taylor, 422 S.W.2d 633, 638 (Mo.1968)], defendant’s testimony here was far from being the only evidence on the issue. The testimony by witnesses who observed defendant at the scene evidenced that he was intoxicated when he first got out of his tractor immediately after the accident. Highway Patrolman Jack Hooker arrived at the scene of the accident approximately fifteen minutes after its occurrence. As he began his investigation, Trooper Hooker detected an odor of alcohol about defendant as well as rapid slurred speech and a staggered walk. Bethany police officer Donald Stockwell also arrived at the scene shortly after the accident and also made similar observations at that time of defendant having liquor on his breath, being very talkative, “prancing around,” and staggering some of the time. Mr. Warner added to these descriptions his perception of the odor of beer about defendant moments after the collision. This evidence alone serves to distinguish Dodson and Taylor. State v. Milligan, 516 S.W.2d 795, 798 (Mo.App.1974).

Moreover, Trooper Hooker testified that during his interrogation of defendant at patrol headquarters the latter admitted consuming a certain quantity of beer prior to his departure from Kansas City. As in State v. Chester, supra, a case very much in point, the jury was privileged to accept this testimony and fairly conclude that defendant was intoxicated before his truck ran aground. Thus the conviction did not rest merely upon a disbelief of the defendant’s testimony, but rather is supported by other and substantial evidence.

Defendant’s final point postulates error in the admission of Breathalyzer results without an adequate foundation, and in the consequent giving of Instruction 6 (charging the jury as to the inference which may be drawn from such results). All of defendant’s specific complaints revolve around the testimony, or lack thereof, of Trooper Hooker. First faulted is the failure of the officer to indicate that the machine was functioning properly on the night of arrest. There was, however, testimony by Trooper Rex Barnett that the Breathalyzer was working properly at the regular monthly inspections on August 28, 1973 (17 days before the arrest) and on September 22, 1973 (8 days after the arrest). No fact or implication was adduced that would indicate any malfunctioning between the dates of those inspections, and therefore Trooper Barnett’s testimony was sufficient to prove proper functioning during the period in question.

Nor is there merit to defendant’s seeming quarrel with Trooper Hooker’s expressed lack of familiarity with the metric system. The trooper stated, without objection, that as the holder of a Type III permit he is authorized by the Division of Health to conduct tests on the Breathalyzer. Thus the statutory foundation respecting the testing officer’s qualifications was complied with, § 564.441 subd. 2, RSMo 1969, Y.A. M.S., and nothing has been cited or found which would require an additional expertise in the area of the metric system.

Defendant particularly emphasizes under this point the admission by Trooper Hooker during cross-examination that he was not familiar with all of the rules promulgated by the Department of Health relating to these tests. Defendant argues that because of this and a lack of direct testimony that the specified procedures had been followed, the dictates of State v. Sinclair, 474 S.W.2d 865 (Mo.App.1971), have not been met.

In Sinclair, a conviction for drunken driving was reversed and remanded for failure to show that a testing method approved by the Division of Health was employed. That ease, however, must be distinguished for the same reasons expressed in State v. Milligan, supra, l. c. 797, 798:

“A careful examination of Sinclair demonstrates, however, that there was absolutely no effort made to introduce any evidence of the type of machine or the manner of administration of the test. In fact, the State’s evidence showed that it was unable to prove by any competent evidence the conversion of the specified test results from blood alcohol by volume to blood alcohol by weight.”

The record at bar is replete with references to the type and description of the machine used in examining defendant, and Trooper Hooker testified in detail respecting the manner in which the test was administered. Likewise, there is no problem at bar with the proper expression of test results.

Although Trooper Hooker failed to affirmatively state from the witness stand that he was familiar with all the applicable rules and that his procedures were approved thereby, other evidence was introduced which did supply the necessary foundation, At the instance of defense counsel, a “check list” used by Trooper Hooker in performing the test was placed in evidence without qualification. On one side of the document the trooper certified “[tjhere was no deviation from procedures outlined by the manufacturer and those approved by the Division of Health.” Defendant also introduced, again without qualification, the rules of the Division of Health. Nothing there contained nor in the record before this court indicates that the methods used by Trooper Hooker were other than as certified by him and which did comply with the applicable rules. This last point therefore fails. See State v. Barker, 490, S.W.2d 263, 272 (Mo.App.1973) and State v. Milligan, supra, l. c. 798.

Judgment affirmed.

All concur.