text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Lee BRANNOM, Defendant-Appellant.
    No. 37040.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.

      Herbert A. Kasten, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

This case involves a double homicide which originated with an argument over a hat. Defendant was convicted by a jury in the Circuit Court of the City of St. Louis, Missouri, of manslaughter in two counts for the deaths of Eugene Smith and Robert Rogers. The jury assessed punishment to be ten years imprisonment for Count I and two years for Count II. The court imposed sentences in accordance with the verdict, specifying that the sentences were to run consecutively. Defendant appeals on two grounds: (1) that the court was without jurisdiction to allow prosecution of both counts at a single trial; and, (2) that there was insufficient evidence to show knowing and intentional aid or encouragement by the defendant towards the offenses charged.

The challenge to the sufficiency of the evidence necessitates a detailed discussion of the facts. At trial defendant’s two sisters Marie Rogers and Ernestine Bran-nom, both witnesses for the State, testified that at about 7 p. m. on March 1, 1974, there was an argument between defendant and Robert Rogers, Marie’s husband. This argument took place on North Twenty-Third Street in front of the house which was shared by four people: Marie and Robert Rogers, Ernestine Brannom, and Eugene Smith, who was Ernestine’s boyfriend. The argument concerned a hat which defendant had in his possession but which belonged to Robert Rogers. It ended by Rogers chasing defendant and throwing a brick at him, which did not hit him. Code-fendant Herbert Trotter was present during this incident and defendant and Trotter left together in a blue Oldsmobile which belonged to Trotter’s father.

State’s witness Mrs. Joyce Horton, who lived next door to the Rogers’ house, testified that she and her husband Donald stopped by their home momentarily at about 8:30 p. m. on March 1. They parked their car in back of a dark blue Oldsmobile. She waited in the car while her husband went in the house with packages. They both saw a black man get into the Oldsmobile and both Mr. and Mrs. Horton positively identified this man as codefendant, Herbert Trotter. They also saw Eugene Smith in the front doorway of his house and defendant talking with him. This was about three or four feet from where Mrs. Horton waited in the car. As Mrs. Horton waited, she heard defendant say to Smith, “I have something in my pocket that will shoot seven times without stopping.” Then she saw him pull out a gun and show it to Smith. Smith answered, “I believe you, but not around here, because we don’t have that kind of stuff around here.” Defendant said, “If I give it to him right now, he will shoot it. If you don’t believe me, I will give it to him right now.” Then defendant put the gun back in his pocket, got in the Oldsmobile where Trotter was sitting, and drove away.

The Hortons were getting ready for bed at about 12:30 a. m. and heard breaking noises outside. Mr. Horton looked out the bedroom window and saw Herbert Trotter standing in the doorway of the house next door, and firing a gun. Horton ran to call the police. When he looked out the window a second time he saw defendant pull himself up to the back window of the house where the shooting had occurred and look inside the house, then run away towards the back of the house. Horton also saw Herbert Trotter running on the sidewalk.

Ernestine Brannom, defendant’s sister, testified that at about 12:30 a. m. she was in her bedroom and Eugene Smith and Robert Rogers were in the kitchen. There was a knock on the door and Eugene Smith answered it. Herbert Trotter was standing in the doorway holding a gun and defendant was behind him. Trotter shot her boyfriend Eugene Smith twice. Trotter then said to Robert Rogers, “Why did you want to do it?” Rogers turned to run out of the kitchen into the bedroom and Trotter shot him in the back. Ernestine ran out of the house and hid under a truck until the police came. She saw two pair of feet go by and heard Trotter say, “We are not going to find that bitch,” and then the two men separated and ran.

The above recitation of the facts demonstrates that there was ample evidence of defendant’s aid and encouragement toward the offenses charged. Presence at the scene of a crime raises wholly different inferences under differing circumstances, and each case must stand upon its own facts. State v. Simmons, 494 S.W.2d 302, 305[5] (Mo.1973). “Presence, companionship and conduct before and after the offense are circumstances from which a defendant’s participation in the criminal intent may be inferred.” State v. Johnson, 510 S.W.2d 485, 489[6] (Mo.App.1974). See also 22 C.J.S. Criminal Law § 88(2) (1961).

In this case all the facts point unequivocally to defendant’s encouragement and aid. Defendant threatened Eugene Smith by showing him a gun and saying, “If I give it to him right now, he will shoot it.” Trotter acting alone had no reason to kill the two men; the only motive for the shooting was the altercation between victim Rogers and defendant over a hat. The evidence further showed that defendant returned and looked into the window of the house and then fled from the scene. Most revealing of all is the fact that defendant stood unprotestingly behind Trotter as Trotter shot defendant’s brother-in-law and the boyfriend of defendant’s sister, which caused defendant’s sister Ernestine to run from the house in fear of her own life. All these facts show aid and encouragement on the part of the defendant. Furthermore, while Ernestine hid under the truck she saw the feet of her brother and Trotter pass by, and heard Trotter say, “We are not going to find that bitch.” The use of the plural pronoun allows the inference that Trotter and the defendant were acting together.

Defendant also objects on the grounds that “the court was without jurisdiction to allow prosecution of two offenses at a single trial, because there exists no statutory authorization therefore, and defendant made known his objection thereto prior to trial and preserved same in his motion for new trial.” Although there is no statutory authorization for the joinder of the two counts, there is authorization in the rules of court, specifically, Rule 24.04. This rule permits trial on a multi-count indictment for “offenses . . . which are part of the same transaction . or which constitute parts of a common scheme . . . This rule has been held to be constitutional. State v. Baker, 524 S.W.2d 122, 126[3, 4] (Mo. banc 1975); State v. McCollum, 527 S.W.2d 710, 714[4] (Mo.App.1975).

Defendant claims that his pretrial motions requesting severance of the offenses charged in Counts I and II should have been granted as a matter of right. We disagree. Broad joinder is encouraged in the federal rules in the interest of more efficient administration of criminal justice, Rule 8. “The desirability of joinder of offenses arising out of the same or related acts is apparent.” Wright, 1 Federal Practice and Procedure § 143 (1969). Our Rule 24.04 is patterned after Rule 8(a), State v. Johnson, 508 S.W.2d 18, 20 (Mo.App.1974), and has the same interest in the efficient administration of criminal justice. Thus, our state law holds that under Rule 24.04 joinder of offenses which were part of the same occurrence is proper. State v. Neal, 514 S.W.2d 544, 548[4] (Mo. banc 1974); State v. Johnson, 508 S.W.2d 18, 20[5] (Mo.App.1974); State v. Johnson, 505 S.W.2d 11, 12[2] (Mo.App.1974).

Furthermore, the grant or denial of a severance or separate trials of offenses charged against a defendant is within the discretion of the trial court. United States v. Barrett, 505 F.2d 1091, 1106[11, 12] (7th Cir. 1974); United States v. Hoog, 504 F.2d 45, 49[3] (8th Cir. 1974). Likewise, in the recent case of State v. Toney, 537 S.W.2d 586 (Mo.App.1976), the court, relying on State v. Baker, supra, held that it was not error for the trial court to deny the defendant’s motion for a severance of counts. We find no abuse of discretion in the trial court’s denial of defendant’s motion for severance.

The judgment is affirmed.

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

      . See generally Scurlock, Basic Principles of the Administration of Criminal Justice with Particular Reference to Missouri Law, 44 UMKCL Rev. 139, 190 (1975).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Daniel L. FAUGHT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10174.
    Missouri Court of Appeals, Springfield District.
    July 28, 1976.
    Devon F. Sherwood, Sherwood & Bruer, Springfield, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Daniel Lee Faught was jury-convicted of first degree murder in the Circuit Court of Greene County. On June 25, 1975, he appealed from that conviction and that appeal is now pending in this Court in Case No. 10,068. Before the transcript on appeal was filed in Case No. 10,068, Faught filed in the Circuit Court of Greene County what he denominated as a “Petition for Writ of Ha-beas Corpus,” but which in truth was a motion in the nature of a Rule 27.26 V.A. M.R. proceeding to vacate the judgment and sentence in Case No. 10,068. Following an evidentiary hearing, the Circuit Court of Greene County denied relief and this appeal followed.

Rule 27.26(b)(2) provides: “A motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.” Because, as above noted, Faught has pending in this Court a direct appeal from the conviction he seeks to attack by his petition-motion under Rule 27.-26, he cannot invoke postconviction remedies until his direct appeal is determined. Maupin v. State, 536 S.W.2d 507 (Mo.App.1976); Gibson v. State, 536 S.W.2d 506 (Mo.App.1976).

The appeal is dismissed.

All concur.


text:
    Keith L. CULLY et al., Plaintiffs-Appellants, v. Bob FRANKLIN and Marceline Franklin, Defendants-Respondents.
    No. 10168.
    Missouri Court of Appeals, Springfield District.
    July 28, 1976.
    J. Douglas Cassity, Robert W. Freeman, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for plaintiffs-appellants.
    Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-respondents.
   PER CURIAM:

Plaintiffs, as appellants, filed the transcript on appeal 6 January 1976. Rule 84.-05(a) required plaintiffs to file their brief on appeal within 60 days thereafter. No request was made or allowed for an enlargement of time. Rule 44.01(b). Therefore, the brief should have been filed on or before 8 March 1976. More than four months has now elapsed since the brief was due. Our attention has not been called to any good cause why this appeal should not be dismissed or why the interests of justice otherwise require anything but a dismissal. When an appellant fails to comply with Rule 84.05, we are permitted by Rule 84.08 to dismiss the appeal at any time. The foregoing clearly demonstrates a failure to comply with Rule 84.05(a). Accordingly, the appeal herein is dismissed.

All concur.

      . References to rules are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      . The 60th day was Saturday, 6 March 1976, and the day following was, of course, Sunday. Neither day, therefore, is included in the computation. Rule 44.01(a).


author: STONE, Presiding Judge.

text:
    Carlos JENKINS and Bobby D. Van Stavern, Plaintiffs-Respondents, v. Larry McSHANE and Dona McShane, Defendants-Appellants.
    No. 9689.
    Missouri Court of Appeals, Springfield District.
    July 29, 1976.

      Gerald H. Lowther, J. Douglas Cassity, Robert W. Freeman, Lowther, Cassity, Ferguson, Carnahan & Freeman, Springfield, for defendants-appellants.
    John A. Honssinger, Low & Honssinger, Lebanon, for plaintiffs-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   STONE, Presiding Judge.

This appeal arises in a suit on a promissory note in the principal sum of $22,500 (with interest from date at seven percent per annum and a reasonable attorney’s fee if placed in the hands of an attorney for collection) given by defendants to plaintiffs on April 15, 1969, in a transaction involving the sale of two used automatic car wash systems to defendants. By their answer, defendants admitted execution of the note and appropriate demand for payment. However, alleging a fraud had been worked on them in that the age and condition of the car wash equipment had been materially misrepresented, defendants denied the validity of the note. The pleadings and testimony indicate that only some $1,500 in interest, and nothing on principal, had been paid to plaintiffs under the terms of the note. At the time of trial, a sum in excess of $29,000 allegedly was due and owing on that instrument.

After trial to a jury, and due deliberation, a unanimous verdict was returned in the following form:

“We, the jury, find the issues in favor of the plaintiffs and assess their damages at $ no principal, and $ no interest, and $1,000 attorneys fee, being the total sum of $1,000.”

During an ensuing colloquy between court and counsel, the correctness and consistency of the verdict were discussed. At that time, counsel for defendants argued that the verdict was “impossible” and the jury should be sent “back out” to prepare and “return another verdict.” On the other hand, counsel for plaintiffs urged acceptance of the verdict “as it is presented” and declared “[i]t is in proper form.” Commenting that “I don’t think I can do anything but to (sic) accept their verdict,” the court proceeded to do so and discharged the jury. Apparently regarding the verdict as a general finding for plaintiffs, the court subsequently sustained plaintiffs’ timely motion for new trial but limited the new trial to the sole issue of damages.

No ground or grounds on which the new trial was granted or so limited were stated of record as then required by Rule 78.01, V.A.M.S. (now Rule 78.03). Although defendants did not require plaintiffs to prepare the original brief on appeal as they might have done under Rule 84.05(b), nevertheless under that rule the burden of overcoming the presumption of error in granting the motion for new trial shifted to and here rests upon plaintiffs. Curtis v. Curtis, 491 S.W.2d 29, 32-33(3) (Mo.App.1973). In this connection, see Artstein v. Pallo, 388 S.W.2d 877, 880(1) (Mo.banc 1965), where as here defendant had appealed from an order granting to plaintiff a new trial on the issue of damages only.

Plaintiffs undertake to carry their burden by pointing to their scanty motion for new trial and the “obvious” truth of the reasons stated therein. The correctness of the court’s action is grounded, by plaintiffs’ argument, on the unsupported assertion that an award of an attorney’s fee must be accompanied by a finding of some amount due and owing on the note, a proposition which “requires no citation of authority.” This, coupled with the purported general finding for plaintiffs, is offered as ample support for the order now placed before us for review. On the other hand, defendants now press us to leave the verdict, and the judgment entered thereon, undisturbed. Neither side attends the fundamental conflict between that portion of the verdict which found the issues in favor of plaintiffs and that portion which found nothing, either principal or interest, due on the note.

In Boone v. Richardson, 388 S.W.2d 68, 76-77(17) (Mo.App.1965), this court, in a situation strongly analogous to that presented on the present appeal, observed that the trial court apparently had construed the jury’s verdict as a general finding for plaintiff since a new trial was granted on the issue of damages only:

“[U]pon careful consideration, it is our view that the verdict returned is not merely equivocal or uncertain; the jury’s finding of the issues for the plaintiff flatly contradicts its finding that the plaintiff suffered no damages whatever. To take either the first clause (‘we * * find the issues in favor of the plaintiff and against the defendant’) or the second (‘and assess plaintiff’s damages at the sum of $ O’) as the true judgment of the jury is to disregard the balance of the sentence. The verdict cannot be fairly resolved into a definite finding for either party, and therefore it will not support the entry of any judgment. [Citing numerous cases]”

In a situation such as that under consideration, the parties are entitled to an unconditional verdict [Boone v. Richardson, supra, 388 S.W.2d 76(14)], and primarily it is the responsibility of the court to require correction of a defective verdict by the jury. Thorne v. Thorne, 350 S.W.2d 754, 759 (Mo.1961); Stroud v. Govreau, 495 S.W.2d 682, 684-685(3) (Mo.App.1973). No entry of judgment on a null verdict is possible. MFA Cooperative Ass’n of Ash Grove v. Elliott, 479 S.W.2d 129, 133(2) (Mo.App.1972); Boone v. Richardson, supra, 388 S.W.2d at 76-77(12, 16). The defect in the present verdict is not merely one of form as opposed to substance. E. g., Bunch v. Crader, 369 S.W.2d 768, 775 (Mo.App.1963). Neither is the jury’s intent so clear that “all that is needed are slight changes in form to accord with the jury’s conclusion actually reached.” Haas Baking Co. v. Luzio, 512 S.W.2d 428, 430(3) (Mo.App.1974).

In the present case, the jury could have found the issues generally for plaintiffs only as authorized by their verdict-directing instruction 3, which required, inter alia, findings that defendants “received good and valuable consideration” for the note in suit and “that the note is due and unpaid.” Upon a finding of the issues submitted in instruction 3, plaintiffs’ instruction 4 mandated an award to them of “such sums as damages as you believe plaintiffs are owed by defendants by the terms of the note . . . .” Manifestly, the aberrant, anomalous verdict returned by the jury was impermissible under the court’s instructions and, in returning that verdict, the jury patently ignored not only the stated instructional requirements for a plaintiffs’ verdict but also the instructional directions concerning the amount to be awarded to plaintiffs in the event of a verdict for them.

Although we cannot escape the conclusion that the verdict could have no proper legal standing whatever, we are met by defendants’ argument that “plaintiff (sic) waived any defect in the verdict or error in the trial when plaintiff (sic) failed to make timely objection to the form of the jury verdict as rendered and to the verdict being accepted by the court . . . However, failure to preserve complaint by timely and appropriate action in the trial court does not foreclose review of an impossible verdict [Stroud v. Govreau, supra, 495 S.W.2d at 684-85(2, 3)], and inaction which might waive defects in some verdicts has no impact on one which is “wholly insufficient” on its face. Thorne v. Thorne, supra, 350 S.W.2d at 759. See Bunch v. Crader, supra, 369 S.W.2d at 774(18). We conclude that plaintiffs’ failure to complain during the trial and prior to the filing of their motion for new trial should not and does not foreclose our setting aside the void judgment entered on a legally impermissible and impossible verdict.

In their final point, defendants seek to save the judgment under consideration on the theory that plain tiffs’ request during the aforementioned colloquy of court and counsel that the court accept the verdict “as brought in by the jury” irrevocably committed them to that position and that “the judgment which was entered by the Court was not a judicial determination of the rights of the parties, but rather a recital of an agreement,” concerning which plaintiffs thereafter were estopped to complain. Our initial observation is that the record persuasively indicates that the court’s subsequent course of action was neither the result of, nor materially influenced by, either (a) the above-noted affirmative request by plaintiffs’ counsel for acceptance of the verdict or (b) the contemporaneous negative request of defendants’ counsel that “the jury be sent back out” because “the verdict is an impossible verdict and . . . they should return another verdict.” Having heard both requests the court responded “Gentlemen, I don’t think I can do anything but to (sic) accept their verdict,” albeit immediately indicating his personal doubt or uncertainty by inviting further exploration of the propriety of that action, “I would be glad to pursue whether or not it should be entered in accordance with the verdict.”

In arguing this point in their brief, defendants’ counsel primarily rely upon State ex rel. Fletcher v. New Amsterdam Casualty Co., 430 S.W.2d 642 (Mo.App.1968), in which relator Fletcher and defendant New Amsterdam “voluntarily entered into [a] ‘Stipulation for Settlement’ ” which “[t]he court approved,” and “only the formal mechanics of concluding the settlement remained” when relator sought to set aside the court’s order of approval. 430 S.W.2d at 645. Obviously, the order there under consideration was “not a judicial determination of rights, but a recital of an agreement” of the parties concerning which they would not be heard to complain on appeal. In striking contrast, instant plaintiffs and defendants were never in a state of common consent or mutual agreement. When read in the light of the facts of that particular case, as the opinion in each case must be read [State on Inf. of Dalton v. Miles Laboratories, 365 Mo. 350, 364, 282 S.W.2d 564, 573(12) (banc 1955); Odum v. Cejas, 510 S.W.2d 218, 225 (Mo.App.1974)], neither Fletcher nor either of the other two cases cited under this point [Foger v. Johnson, 362 S.W.2d 763 (Mo.App.1962); Stanford v. Utley, 341 F.2d 265 (8th Cir. 1965)] affords support for instant defendants’ position on the transcript before us.

The trial court proposes to proceed, erroneously in our view, as if the jury had made a merely inadequate finding of damages on a general finding for plaintiffs. Because it cannot be said with certainty that the jury actually made a proper determination of either the general issue of liability or the specific issue of damages, we are definitely of the opinion that in remanding this cause for a new trial all issues must again be submitted. Artstein v. Pallo, supra, 388 S.W.2d at 882(8, 9); Boone v. Richardson, supra, 388 S.W.2d at 76-77(17). Stroud v. Govreau, supra, 495 S.W.2d at 684(2), in which an exceptional situation made a new trial limited to damages appropriate, is neither factually analogous nor legally controlling here.

In the particular facts and circumstances of this case, we are convinced that our appellate disposition should be, and accordingly is, (a) that the order of the Circuit Court of Camden County sustaining plaintiffs’ motion for new trial “as to the issue of damages” and directing a new trial “on [the] sole issue of amount of damages” should be, and hereby is, set aside and for naught held, (b) that the cause should be, and hereby is, remanded to the Circuit Court of Camden County for retrial on all issues, and (c) that the costs of this appeal be taxed against plaintiffs-respondents.

      . Plaintiffs’ motion for new trial contained four numbered paragraphs assigning the following grounds for their request:
      “1. Because the verdict of the jury is not responsive to the issues in this case.
      “2. Because the jury did not follow the evidence and court’s instructions in this case.
      “3. Because the verdict of the jury was in effect no verdict at all.
      “4. Because of the aforementioned reasons, a mistrial should be declared in this case, and a new trial ordered.”


author: ANDREW J. HIGGINS, Special Judge.

text:
    Flossie E. MARTIN, Respondent, v. Wayne T. MARTIN, Appellant.
    No. KCD 27256.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Robert E. Gregg, Donald E. Raymond, Kansas City, for appellant.

      W. Hugh McLaughlin, William J. Hill, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from decree of divorce and attendant award of child support. The question is whether the court exceeded its jurisdiction when it purported to award support for an adult child of the parties. Reversed in part and remanded.

Flossie E. and Wayne T. Martin were married September 15,1951. To them were born four children: Daryl W., born March 16, 1952, Sharon P., born May 28, 1954, Sandra R., born June 7, 1955, and Marjorie E., born May 31, 1959.

The cause was tried November 15, 1973, on plaintiff’s petition and defendant’s amended cross-petition for divorce. On November 20, 1973, the court entered the decree, which provided: “ * * * that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same are hereby dissolved * * * that the plaintiff have the care, custody and control of the dependent child, Daryl W. Martin, age 21, and the minor children, Sharon P. Martin, age 19, and Marjorie Martin, age 14, born of said marriage relation, * * * that defendant pay to plaintiff as support and maintenance of said children the sum of $56.00 per week, * * that defendant pay to plaintiff as alimony the sum of $1.00 per month, * * * that defendant pay to plaintiff as attorney’s fee the sum of $755.00 * * * and * * * recover * * * her costs * *

Appellant does not question the decree with respect to the divorce, custody, alimony, and attorney’s fees and costs awards. He contends (I) that the' child support award is excessive for the reason that it is beyond the needs of plaintiff and beyond the ability of defendant to pay; and (II) that the court exceeded its jurisdiction in attempting to award custody of and support for one adult and one emancipated child of the parties.

There is no question that Daryl W. Martin was over 21 years of age at the time the decree of divorce was entered; and the decree shows on its face that he is one of “said children” for whom plaintiff was awarded $56.00 per week as and for child support and maintenance.

Section 452.070, RSMo 1969, provides the authority for a court to enter orders touching maintenance of children when a divorce is adjudged. It “make[s] no provision for the maintenance of adult incapacitated children and the courts cannot write such a provision in the statute.” State v. Carroll, 309 S.W.2d 654, 662[15] (Mo.App.1958). The power of a divorce court to make orders touching maintenance of children ceases with the minority of the children. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762 (banc 1932). “Largely in reliance upon the commonly expressed rule that when a child of the parties to a divorce or separation action attains his majority, authority of the court over such child comes to an end, it has been held or recognized, except in a few scattered cases, that a court in a divorce or separation suit is without power to provide for the support of, or aid to, an adult child of the parties * * 162 ALR 1085. “This, of course, does not include the question of a parent’s common-law liability for necessities furnished a dependent adult child or the power of a court to require a parent to support his adult child, otherwise than by virtue of a judgment in a divorce action or a proceeding based thereon.” 162 ALR 1084.

In this latter sense a divorced wife can maintain an independent action for support of children in her custody who attain majority before entry of the divorce decree. Kelly v. Kelly, supra; Fower v. Fower Estate, 448 S.W.2d 585 (Mo.1970). Also, when a child reaches age twenty-one, his disability is removed and, if an obligation to provide support exists, the child may proceed in his own right in a separate suit to establish such obligation. An award of child support is made to the custodial parent for the benefit of children who because of minority lack legal status to bring suit directly against a parent. Block v. Lieberman, 506 S.W.2d 485 (Mo.App.1974).

Accordingly, the court’s adjudication of an obligation to render support to an adult child was outside and beyond the jurisdiction of the divorce court, and cannot stand. Meyer v. Meyer, 493 S.W.2d 42, 47 (Mo.App.1973).

Respondent suggests that the child support award was not in excess of the court’s jurisdiction for the reason that appellant “consented thereto, arbitrated it and acquiesced therein.”

Although there is evidence of some understanding between Mr. and Mrs. Martin with respect to custody, housing, and support of their children, including the invalid adult, Daryl, there is nothing in the decree to indicate it to be a consent decree or a product of arbitration. Consent will not confer jurisdiction where none exists, and the record fails to show any attempt to convert this matter into a subject for statutory arbitration under Section 435.020, RSMo 1969.

Neither is it possible to determine from this decree how the child support award was to be apportioned between Daryl, Sharon, and Marjorie. Accordingly, the matter of a child support award needs to be reconsidered in entirety.

Respondent suggests also that none of the foregoing is for review because appellant did not preserve his point in his motion for new trial. “For appellate review of cases tried without a jury * * * [no] motion for new trial * * * is necessary to preserve any matter for appellate review.” Rule 73.01.2(b), V.A.M.R.

Decree of divorce and attendant awards to plaintiff of child custody, alimony, attorney’s fees and costs affirmed; award of child support reversed and cause remanded for further proceedings with respect to child support.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Kathleen M. RYAN, Respondent, v. John E. RYAN, Appellant.
    No. KCD 27355.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    James R. Wyrsch, Kansas City (Michael dayman, Kansas City, of counsel), for appellant.
    William B. Korth, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from modification of divorce decree. The question is whether there were new circumstances or a change in circumstances upon which the court could modify the decree. Reversed and remanded.

On January 25,1972, the court awarded a divorce to Kathleen M. Ryan from John E. Ryan, together with $200 per month alimony; awarded her care and custody of Mary Eileen and Ann Theresa, minor daughters of the parties, together with $100 per month per child for their maintenance and support; awarded him care and custody of John Patrick, Timothy Casey, and Danny Gerard, minor sons of the parties, and temporary custody of Mary Eileen and Ann Theresa from 9:00 a.m. Saturday to 7:00 p.m. Sunday of every other weekend.

On July 11, 1972, John Ryan, alleging that “circumstances have changed between the parties,” moved to modify the decree to obtain permanent custody of Mary Eileen and Ann Theresa, and to reduce the child support and alimony allowances.

On November 8, 1973, Kathleen Ryan, alleging “a substantial change of condition in that defendant has received numerous salary increases and other benefits, that he is earning approximately $20,000.00 per year * * * that the defendant is addicted to alcoholic beverages, * * * is seldom at home, does not take care of the boys, * * * that defendant has openly and notoriously associated with other women * * * in the presence of the boys * * * that the defendant has on occasion struck and physically abused the three boys * * * that the defendant is maintaining an unwholesome and detrimental atmosphere * * * and as a result, these children are receiving no discipline,” moved to modify the decree to obtain custody of John Patrick, Timothy Casey, and Danny Gerard, and to obtain an award of “such sums of money * * * as will adequately support and maintain the five children born of the marriage.”

On April 22 and 25, 1974, the motions came on for hearing, and, at the conclusion of the hearing, the court announced:

«* * Motion to Modify the Divorce Decree filed by the petitioner is sustained. The respondent is to pay $100.00 a month for support of Eileen and $175.00 a month for the minor child Ann. The attorney’s fees of $500.00, which Pm not stating is the full amount earned but that’s all that is to be paid by the respondent.
“The respondent’s Motion to Modify visitation is sustained. The younger child, Ann, is to have visitation with her father. He is to have visitation with her from Saturday morning until Sunday evening * * 7:00 a.m. Until 7:00 p.m. Sunday on alternate weekends.”

Appellant does not question the award of attorney’s fees. With respect to the modification of the child support award, he contends the court erred: (I) in its increase of child support payments for Ann Theresa Ryan because Kathleen M. Ryan did not sustain her burden of proof of “facts that had arisen from the entry of the prior decree or facts that were unknown to the court at the time of the entry of the decree which would indicate a substantial change had occurred in the circumstances of the children, their custodian, or the financial resources or needs of the noncustodial parent.” He contends the court erred: (II) in failing to reduce the allowances for maintenance (alimony) and child support because he did sustain his burden of proof of a change of circumstances; and that the evidence shows “as a matter of law, the eldest daughter, Eileen, 18, was self-supporting and should be declared emancipated.”

Respondent has not appealed from the change in the temporary custody award to Mr. Ryan, and has not briefed this appeal.

It makes no difference whether this appeal is determined under the divorce, alimony, and separate maintenance provisions of Chapter 452, RSMo 1969, or the dissolution of marriage provisions of Sections 452.300 to 452.415, RSMo 1973 Supplement, effective January 1, 1974, because the application of either to this appeal compels the same result.

Section 452.070, RSMo 1969, which, prior to January 1, 1974, provided the court’s power to modify child support allowances, has been uniformly interpreted to place upon one who moves for modification of a divorce decree the burden “to show new circumstances from which the trial court could judicially determine that future care required more money than originally allowed * * Jenkins v. Jenkins, 453 S.W.2d 619, 621[4] (Mo.App.1970). Section 452.370, RSMo 1973 Supplement, effective January 1, 1974, provides that “any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances * *

The court made no findings of new or changed conditions or circumstances upon which to modify the decree by an increase in child support. Respondent, through her failure to brief the question, does not demonstrate evidentiary support for any of her allegations of changed conditions, and independent review is not productive of new or changed conditions or circumstances upon which to award increased child support. The evidence shows only that Mr. Ryan is in the same financial condition with respect to income and expenses as he was at the time of the original decree. Such continuing condition does not justify an increase in child support to Mrs. Ryan; neither does it justify a decrease in the obligation of Mr. Ryan to pay the original child support award. Jenkins v. Jenkins, supra.

Since the evidence adduced does not support the court’s modification, it, except for the uncontested award of attorney’s fees and the uncontested changed visitation right, is reversed and the cause is remanded for further proceedings. Rule 73.01, V.A.M.R.; Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Reversed and remanded.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY n/k/a Burlington Northern, Inc., an Illinois Corporation, et al., Respondents.
    No. 27436.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Terry P. Thompson, Asst. Counsel, Missouri State Highway Commission, Kansas City, for appellant.
    Charles S. Wilcox, St. Joseph, Wilcox & Houts, of counsel, St. Joseph, for respondent Union Terminal Railway Co.
    R. A. Brown, St. Joseph, Brown, Douglas & Brown, St. Joseph, of counsel, for respondent Pioneer Materials Co., Inc.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

This is a condemnation suit for a right of way for the construction of Interstate Highway 229, which will circle the west side of St. Joseph, Missouri, thence extending through Buchanan and Andrew counties.

Appellant’s claim is that the trial court erred in “holding in its order distributing the commissioners’ award that the respondent Union Terminal Railway Company and the respondent Union Terminal Railway Company, Inc., owned a fee simple interest in part of Tract No. 707 and that the respondent Union Terminal Railway Company owned a fee simple interest in all of tracts 703, 719, 720, 721 and 722.” The basis for appellant’s claim that the percentage of apportionment allotted by the trial court, which carries through to the jury trial on the exceptions to the commissioners’ award as filed by the various parties is that it could preclude appellant from bringing before the jury possible title defects and their effect on valuation of the market value of the property “if the determination of interests in the court’s Order did actually decide the strength of the title of the respondents.”

The matter of whether appellant is an “aggrieved” party with a right of appeal under § 512.020, RSMo 1969, must first be noticed. It claims that it is aggrieved by reason, as condemnor, of being made an interested party under the apportionment statute, § 523.053(1), RSMo 1969. It would appear that this statute is merely for the protection of the condemnor where a con-demnee, after exceptions are filed, draws down the commissioners’ award pending the final award as determined by the jury. It is highly doubtful that appellant is aggrieved by the court’s order of apportionment in the sense that it has suffered a pecuniary loss as the result of the order. “The con-demnor is not concerned with the rights of rival claimants to the award because the fund deposited in court is substituted for the property taken in condemnation.” State ex rel. Highway Commission v. Paul, et al., 368 S.W.2d 419, 423 (Mo.banc 1963). Appellant has never claimed any interest or title to the property being condemned by it. “[OJrdinarily a judgment or decree which affects or determines rights in particular property does not aggrieve a party who has, or claims, no interest or title to the property, * * Campbell Street Lumber Company v. Central Mortgage Co., et al., 436 S.W.2d 57, 60 (Mo.App.1968). Because of the importance of the question of the admissibility of evidence bearing upon the sole ownership of respondents as it may arise upon trial of the damage issues to a jury (i. e., the issues of whether any defects of title bear upon the evaluation of the fair market value of the property, this court [treating appellant as an aggrieved party only in the sense of its entitlement at a later trial to introduce evidence that respondents owned less, than a fee simple, and treating the case in the nature of a declaratory judgment of the rights of the parties in that respect]) will examine the pleadings and evidence to ascertain if the trial court did in fact properly determine ownership to be in respondents as an incident to the apportionment order.

Appellant’s order of publication of notice to the unknown heirs, grantees, successors and assigns of certain named defendants, other than respondents, is contained in 60 pages of the transcript. It is said that every conceivable person who might have had an interest in the property to be condemned was made a party. A rough count of the known and unknown persons, trustees, organizations and corporations named totals about 467. None of these persons appeared or asserted any interest in the property, by way of a reversion of a fee interest if all respondents had was an easement, or otherwise.

A guardian ad litem was appointed for all of the unknown heirs, and he filed answer to the petition in condemnation. Union Terminal filed separate answer, and by paragraph 7 thereof affirmatively stated “that it is the owner of said property.” Pioneer Materials Company, Inc., filed no answer, but by motion it stated to the court that there were other defendants claiming an interest in the $407,457.00 commissioners’ award for Tract No. 707, and asked that the court determine the percentages of the award to which each of the parties were entitled. The court set off $211,000.00 to Pioneer and $110,700.00 to Union of this award. As to Tract No. 703, Union moved that the entire $110.00 award be apportioned to it, alleging that no other defendants had any right, title or interest in the premises condemned. Union made the same motions as to Tract No. 719 ($4,084.00); Tract No. 720 ($3,034.00); Tract No. 721 ($27,084.00); and Tract No. 722 ($3,100.00).

Pioneer’s evidence was that its $211,000.00 apportionment was largely for property owned by it separate and apart from any underlying real estate except for one parcel which it had acquired from Union by quit claim deed on June 8, 1973, for $7,200. The commissioners’ award for this parcel was $7,700.00. Union presented as evidence deeds which it had received from the Chicago, Burlington and Quincy Railroad Company covering Tracts Nos. 703, 707, 719, 720 and part of 721, twenty-two tracts in all. There was no showing of how Burlington originally acquired its title. It is impossible to match the descriptions in the various deeds with the land described in appellant’s petition, or on the plat of the area of highway construction introduced by the guardian ad litem as an exhibit. Since appellant does not question the statements about the deeds contained in respondents’ brief, it must be assumed that they affect the land taken in condemnation. There are 21 exchange deeds, each reciting a consideration ranging from $50.00 to $500.00 between Union and Burlington. There is a quit claim deed from Burlington to Union dated February 29, 1912. On September 6, 1910, the St. Louis and Kansas City Land Company deeded to Union a part of Tract No. 703 for $750.00. Another deed between the same parties for the same consideration was in evidence. Three deeds relating to exchanges of property between Pioneer and Union as to Tracts Nos. 719, 720 and 721, and three other deeds relating to the latter tract, reciting considerations of $660.00, $660.00 and $1.00 were in evidence. There was a deed in evidence on Tracts Nos. 721 and 722 reciting a consideration of $10,-000.00.

In addition to the above deeds Union had testimony that for at least 25 years it had claimed the real estate (except that conveyed to Pioneer, and that claimed by Pioneer Sand) openly, notoriously and adversely to all others. The deeds certainly give color to the claim of adverse possession, and Union’s ownership has never been questioned. At various times since 1903 Union has leased tracts or parts thereof to others, which fact also evidences a claim of ownership.

The law is settled that a railroad company may have a fee simple title of land which it has purchased for a valuable consideration (not voluntary) with no limitation on the quantum of estate conveyed, all of which is reflected in the foregoing deeds. None of these deeds have any reference to rights of way as was the three time recital in the deed in Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666, 668[3] (Mo.1969). Cases holding that a fee simple title to real estate may be taken by a railroad for consideration are: Coates & Hopkins Realty Co. v. Kansas City T. Ry. Co., 328 Mo. 1118, 43 S.W.2d 817, 822[9] (1931); and Clay v. Missouri State Highway Commission, 362 Mo. 60, 239 S.W.2d 505, 508[5, 6] (1951). The Clay case distinguished Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649 (Mo.1941), upon the basis that the latter was a voluntary conveyance, i. e., one without consideration. The evidence here is abundant that respondents paid a valuable consideration for the tracts in question, and furthermore, for more than 25 years they held the land by adverse possession against all persons, which fact further strengthens respondents’ claims of absolute ownership. Moran v. Roaring River Development Company, 461 S.W.2d 822, 831[6] (Mo.1970), where it was said, “Adverse possession confers a full title in fee, as much so as a warranty deed from the owner. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339.”

Not by separate point but in argument under its Point II, appellant presents the proposition that because of constitutional restrictions; the authorization of Union’s charter; the fact that Union is excepted from the application of the General Corporation Law of Missouri, § 351.020, RSMo 1969; and the fact that Union is incorporated under Chapter 388, all that Union has by way of interest in the tracts in question is an easement. § 388.210(2) provides that a voluntary grant shall be held by the railroad for the purpose of such grant only. It says nothing about a conveyance to a railroad upon a valuable consideration, which fact here and the cases above referred to enables the railroad to hold real estate in fee simple.

Mo.Const. Art. 11, § 5, does provide that no corporation shall engage in business other than that authorized by its charter or by law, nor hold any real estate except as is necessary and proper for the carrying out of its legitimate business. Union’s charter authorizes it “to form a Company for the purpose of constructing, maintaining and operating a standard gauge railroad for public use in the conveyance of persons and property * * If as appellant contends, Union’s leasing of the lands involved in this condemnation are for non-railroad purposes and thus were ultra vires acts under the constitutional provisions and Union’s charter, appellant has no standing to raise the question. With some exceptions such as a stockholder who is not estopped by accepting pecuniary benefits, see 19 Am.Jur.2d Corporations, § 969, p. 447, only the attorney general of the state, or any circuit or prosecuting attorney of the county in which the action is commenced, may raise the question of ultra vires acts of a corporation. See § 531.010, RSMo 1969. Land v. Coffman, et al., 50 Mo. 243 (1872); Atlantic & Pacific R.R. Co. v. City of St. Louis, 66 Mo. 228, 251 (1877); Chambers v. City of St. Louis, 29 Mo. 543, 576 (1860). In the Land case, defendant, in a situation similar to that of Union here, claimed title through the Pacific Railroad Company. Plaintiff challenged the railroad’s power to hold the land in question. Inter alia, the court held that no one except the state in a direct proceedings could raise the question as to the amount of land which might be held. See also Hovelman v. The Kansas City Horse R.R. Co., 79 Mo. 632, 639 (1883); Shewalter v. Pirner, et al., 55 Mo. 218, 233 (1874); Martindale v. Kas. C., St. Jo. & C. B. R. R. Co., 60 Mo. 508, 510 (1875); and Coates & Hopkins Realty Co. v. Kansas City T. Ry. Co., 328 Mo. 1118, 43 S.W.2d 817, 822 (1931).

The trial court did not err in apportioning the commissioners’ awards as it did. It follows that no evidence in disparagement of respondents’ ownership or title will be admissible in the trial to a jury of the issue of the fair market values of the properties.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    INTERSTATE MOTOR FREIGHT SYSTEM, INC., Plaintiff-Respondent, v. WRIGHT BROKERAGE COMPANY, Defendant-Appellant.
    No. KCD 27440.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      Warren H. Sapp, Kansas City, for defendant-appellant.
    Thomas A. Schwindt, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff initiated this case by suit in a magistrate court for freight charges of $924.38 plus interest. From a judgment for defendant, plaintiff appealed to the circuit court. That court reversed and entered judgment for plaintiff, from which defendant now appeals to this court.

The case was submitted on stipulated facts. United Consumer Products Co. shipped certain merchandise from Philadelphia, Pennsylvania, to defendant in Independence, Missouri. Defendant received, accepted and retained the merchandise on November 6, 1969. The freight bill covering that shipment bears a typewritten notation that the total charges had been “prepaid.”

In the course of its business defendant arranged for the shipment of these products to various customers of United Consumer, receiving payment for the goods from those customers. Periodically defendant remitted the funds so collected, less its own charges and expenses, to United Consumer, the last such remittance occurring on March 13, 1970. Not until August 13,1970, did plaintiff advise defendant that the freight charges in question had not been paid by United Consumer. Plaintiff on the latter date made demand on defendant for payment of the freight bill, to which defendant has refused to accede.

Defendant contends that plaintiff made an affirmative written representation of prepayment of the freight charges, that defendant made its remittances to United Consumer in reliance upon that representation, that had the representation not been made or had it been corrected within a reasonable time, defendant could have protected itself by withholding the amount of freight charges from the remittances to United Consumer, but that it is now too late for defendant to so protect itself. Plaintiff rejoins that under 49 U.S.C.A. § 323, defendant is absolutely liable for the freight charges in question because of its status as consignee and acceptance of the goods and that under the non-diseriminato-ry provisions of 49 U.S.C.A. § 316(d) and § 317(b), plaintiff as an interstate motor carrier cannot waive or be estopped from enforcing that statutory obligation.

Before discussing the merits of the issue so joined, a procedural matter raised by plaintiff requires disposition. Plaintiff has moved to dismiss this appeal on the ground that the Points and Authorities portion of defendant’s brief as appellant fails to comply with Rule 84.04(d). This objection is justified. However, because of the simplicity of the facts, the sharply defined legal issue presented, and the general public importance of that legal question, strict enforcement of Rule 84.04(d) will be suspended in this particular case.

Turning to the merits, federal law controls since the shipment was one in interstate commerce. City of St. Charles v. Wabash Ry. Co., 65 S.W.2d 655, 658 (Mo.App.1933); Chicago & E. R. Co. v. Lightfoot, 206 Mo.App. 436, 232 S.W. 176 (1921). On the issue here, the federal authorities stand in some disarray. For a partial collection of the conflicting cases see the Annotation in 88 A.L.R.2d 1375, § 6 at page 1386.

Some cases hold that under the provisions of the Interstate Commerce Act, the consignee becomes absolutely liable upon acceptance of delivery and no defense based upon estoppel or other equitable consideration can be made even though the carrier represented the shipment as being prepaid. The leading case so holding is Central Warehouse Co. v. Chicago, R. I. & P. Ry. Co., 20 F.2d 828 (8th Cir. 1927). Among the numerous cases likewise following that rule, although conceding that it may work a hardship, are Great Northern Ry. Co. v. Hyder, 279 F. 783 (D.C.Wash.1922); Western and Atlantic R. Co. v. Underwood, 281 F. 891 (D.C.Ga.1922); Southern Pacific Co. v. United States, 243 F.Supp. 834 (D.C.Del.1960); Chicago & N.W. Ry. Co. v. J. I. Case Plow Works, 173 Wis. 237, 180 N.W. 846 (1921); Atlantic Coast Line R. Co. v. Wannamaker Chemical Co., 216 S.C. 226, 57 S.E.2d 311 (1950); New York, N.H. & H. R. Co. v. Lord & Spencer, 273 Mass. 583, 174 N.E. 179 (1931); Aero Mayflower Transit Co. v. Rae, 203 Misc. 801, 118 N.Y.S.2d 895 (1952); Pennsylvania R. Co. v. L. N. White & Co., 280 App.Div. 587, 116 N.Y.S.2d 361, aff’d 305 N.Y. 801, 113 N.E.2d 553 (1953). This line of cases relies heavily upon the result which has been reached in the situation where a carrier in error has billed and accepted a deficient charge which is lower than the applicable tariff. In that situation, the cases uniformly hold that the carrier is entitled to recover the amount of the deficiency against either the consignor or the consignee and that such recovery cannot be barred by estoppel. The leading case so holding is Pittsburgh, C., C. & St.L. Ry. Co. v. Fink, 250 U.S. 577, 583, 40 S.Ct. 27, 63 L.Ed. 1151 (1919) in which the United States Supreme Court used the much quoted language that “[ejstoppel could not become the means of successfully avoiding the requirement of the Act as to equal rates, in violation of the provisions of the statute.”

On the other hand, there were cases from an early date holding that Fink and like decisions relating to freight undercharges do not control in a situation as here presented involving an affirmative representation by the carrier as to prepayment by the consignor. These latter cases proceed on the basis that the reason for a consignee not being permitted to rely on the statement made by the carrier as to the amount of the freight charge, is that the correct amount is covered by published tariffs which are open to all and of which the consignee is conclusively bound to have constructive knowledge. Therefore there is no right in the undercharge cases to rely on the carrier’s statement, which is a necessary predicate for a successful defense of estop-pel. On the other hand, the matter of “prepayment” is not published for public notice, and the consignee does have a right to rely on the carrier’s statement. These cases hold, additionally, that the only concern of the anti-discrimination provisions of the Interstate Commerce Act is to assure that someone will be required to pay the full tariff charge, but that the statute has no concern with respect to who that payor shall be. These cases further point out that in the cases where the carrier has represented prepayment and the consignee has made remittance in reliance on that representation, the consignee has not asked for or received any preference; rather (unlike the undercharge cases where the consignee has never paid the whole freight charge due) the consignee has already made full payment once to the consignor and if the carrier be not estopped, then the consignee would be required to make a second and duplicate payment to the carrier. The leading case for the result of allowing a defense of estoppel under these circumstances is Davis v. Akron Feed and Milling Co., 296 F. 675 (6th Cir. 1924).

For many years the Davis case was accompanied by only a relatively few other cases, principally: Southern Ry. Co. v. W. A. Simpkins Co., 178 N.C. 273, 100 S.E. 418 (1919); Cincinnati Northern R. Co. v. Beveridge, 8 F.2d 372 (D.C.Va.1925); United States v. Mason & Dixon Lines, 222 F.2d 646 (6th Cir. 1955); Southern Pacific Co. v. Valley Frosted Foods, 178 Pa.Super. 217, 116 A.2d 70 (1955); Griffin Grocery Co. v. Pennsylvania Railroad Co., 93 Ga.App. 546, 92 S.E.2d 254 (1956); and Airborne Freight Corp. v. Irving Trust Co., 26 A.D.2d 507, 275 N.Y.S.2d 863 (1966). These cases were frequently referred to as representing the minority view. Griffin Grocery Co. v. Pennsylvania Railroad Co., supra; Atlantic Coast Line R. Co. v. Wannamaker Chemical Co., supra; Southern Pacific Co. v. United States, supra; Pennsylvania R. Co. v. L. N. White & Co., supra.

More recent cases, however, have taken a decided swing in favor of the Davis view. Thus in 1969 the 3rd Circuit joined in the 6th Circuit’s position in Missouri Pacific Railroad Co. v. National Milling Co., 276 F.Supp. 367, aff’d 409 F.2d 882. Then in 1971, the 7th Circuit joined the 3rd and 6th Circuits and disagreed with the 8th Circuit. Consolidated Freightways Corp. of Del. v. Admiral Corp., 442 F.2d 56. Soon afterwards the 8th Circuit itself, in Southern Pacific Transportation Co. v. Campbell Soup Co., 455 F.2d 1219 (1972), permitted a defense of estoppel in this situation, failing to follow its own previous Central Warehouse decision and instead cited the Davis, Consolidated Freightways and National Milling Co. decisions with approval. Following these decisions by the 3rd, 7th and 8th Circuits, a host of state cases joined in recognizing the new majority rule, including the following: Tom Hicks Trans. Co. v. Ford, Bacon & Davis Texas Inc., 482 S.W.2d 364 (Tex.Civ.App.1972); Lyon Van Lines, Inc. v. Cole, 9 Wash.App. 382, 512 P.2d 1108 (1973); Aero Mayflower Transit Co. v. Harbin, 126 Ga.App. 72, 190 S.E.2d 91 (1972); Consolidated Freightways Corp. of Del. v. Eddy, 266 Or. 385, 513 P.2d 1161 (banc 1973); Penbrook Hauling Co., Inc. v. Sovereign Const. Co., Ltd., 128 N.J.Super. 179, 319 A.2d 277 (1974), aff’d 136 N.J.Super. 395, 346 A.2d 433 (1975); Aero Mayflower Transit Co. v. Hofberger, 532 S.W.2d 759 (Ark.1976). These cases last mentioned quite clearly now state the prevailing rule which governs interstate shipment and which does permit a consignee to rely on estoppel in a case of this sort where the carrier has marked the freight bill prepaid and the consignee has paid the full freight charge to the consignor in reliance upon that representation.

Defendant seeks to distinguish these cases by arguing that the stipulation contains nothing to show that defendant did pay the freight charges to the consign- or. It is quite true that the stipulation does not state that any part of the payments from defendant to United Consumer was separately identified and designated as a payment of the freight charges. However, the stipulation does say that defendant received payment for the merchandise from United Consumer’s customers and “remitted the funds so collected, less its own charges and expenses.” As a matter of economic necessity, the price for the merchandise charged by United Consumer to its customers had to include all elements of cost, including the cost of freight. When the stipulation states that defendant received “payment” from those customers, that compels the implication that the price so charged and received included as an element the freight due, and the remittance by defendant likewise constituted a remittance of the freight charges. No case has been found which has denied the defense of es-toppel simply because the remittance by the consignee failed to segregate and separately identify the freight charge from the balance of the payment. To the contrary, such separate identification obviously would have no importance under the decision in Lyon Van Lines, Inc. v. Cole, supra, and its unmateriality seems to be reflected in Griffin Grocery Co. v. Pennsylvania Railroad Co., supra.

Another possible distinction not directly articulated by defendant but which may be implicit in its argument would be that defendant did not advance its own money in making remittances to United Consumer, but rather as a commission merchant merely transmitted funds received by it from United Consumer’s customers. Such a purported distinction might find some minimal support in the language of Missouri Pacific Railroad Co. v. National Milling Co., supra, 276 F.Supp. at page 372, distinguishing Central Warehouse, and arguably from what appears to be the distinguishing of the Central Warehouse decision in Campbell Soup (the basis for that distinction not being explained in the Campbell Soup opinion). However, any distinction on this ground must be deemed specious. Little realistic difference can be seen for the purpose of this case between defendant selling United Consumer’s merchandise on commission and remitting collections; as against defendant buying the merchandise outright, selling to its own customers, and after collecting payment on its own sales, making remittance of its purchase price to United Consumer. In either situation, defendant would be equally damaged. Just as would be the case if it had made sales to its own customers, so also here defendant could have protected itself, if it had not been misled by plaintiff, by simply withholding the amount of the freight charge from the remittances to United Consumer. Moreover, the defense of estoppel was permitted by a commission merchant in precisely these same circumstances in Cincinnati Northern R. Co. v. Beveridge, supra, and it was permitted under analogous circumstances in Southern Ry. Co. v. W. A. Simpkins, Co., supra.

Defendant cites as denying the defense of estoppel the decision of the St. Louis Court of Appeals in Long Island R. Co. v. Midland Valley Lumber Co., 237 Mo.App. 147, 164 S.W.2d 930 (1942). That case involved suit against a consignor, not a consignee, and the denial of the claim of estoppel arose under facts completely dissimilar to those here. In any event, the decision in the Long Island R. Co. case antedated the more recent federal decisions on this subject and anything said in that opinion does not reflect the currently prevailing federal rule; accordingly, that case is not binding nor persuasive. Penbrook Hauling Co., Inc. v. Sovereign Const. Co., Ltd., supra.

The judgment of the circuit court is reversed and the .case is remanded with instructions to enter judgment for defendant.

All concur.

      . Under the I.C.C. Regulations, 49 C.F.R. § 1322.1, the carrier may extend credit to the shipper for only 7 days, excluding Saturdays, Sundays and legal holidays, subject to an extension for an additional 30 days.


author: R. KENNETH ELLIOTT, Special Judge.

text:
    SEARS, ROEBUCK AND COMPANY, Respondent, v. PEERLESS PRODUCTS, INC., Appellant.
    No. KCD 27485.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      Roy F. Carter and Laurence R. Tucker, Kansas City, for appellant; Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, of counsel.
    John R. Gibson and John W. Cowden, Kansas City, for respondent; Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, of counsel.
    Before PRITCHARD, C. J., and ELLIOTT, CONNETT, Jr., and McFARLAND, Special Judges.
   R. KENNETH ELLIOTT, Special Judge.

This is an appeal from a judgment for respondent in the sum of $4,109.50, pursuant to a court determination of liability and a jury verdict as to damages. Affirmed.

Sears, plaintiff-respondent, alleged that defendant Peerless, had been installing siding which plaintiff might sell, and on September 11, 1963, plaintiff sent defendant an order which contained the following language:

“By the acceptance of this order you agree to protect and indemnify said customer and Sears, Roebuck and Company from all claims or demands on account of injury to persons or property occurring during or as a result of said installation.”

One Charles Van Collins was procured by defendant Peerless to do the work required by the Sears order. Van Collins instituted a workmen’s compensation claim in Kansas against Sears as a statutory employer for an injury sustained on the job in question. Sears impleaded Peerless and its insurance carrier, Consolidated Underwriters. After a series of hearings and appeals the matter was settled by Peerless and Consolidated before presentation to the Supreme Court of Kansas on the question of whether Van Collins was an independent contractor. Sears paid no part of the settlement, although it participated in the defense of said claim through the various steps until settlement. Sears then filed the instant case against Peerless for reimbursement of expenses and costs defending the workmen’s compensation proceeding, praying for the same amount as awarded by the jury verdict.

Peerless, under Point I of its brief, complains of error committed by the trial court in granting a summary judgment on the issue of liability. It is obvious from the record that plaintiff’s motion for summary judgment was overruled by the trial court, and in fact Peerless admitted this on oral argument before this court.

The evidence has been examined and it is found that the trial court did not err in granting its interlocutory judgment for Sears. The only issue appearing was the language of the order from Sears to Peerless. The trial court, in a later motion for separate trials of the issues of liability and damages, determined that the only question was one of law, and the finding in favor of Sears will be affirmed on this review if it can be sustained on any reasonable theory. Simpson v. Spellman, 522 S.W.2d 615 (Mo.App.1975).

The trial court properly interpreted the language contained in the order to Peerless. Sears incurred expense and demand was made upon Peerless to defend the compensation claim, which Peerless failed to do. In City of Grandview, Missouri v. Hudson, 377 F.2d 694 (CA 8th 1967), the court states as follows:

“GC-29 by its plain terms is an indemnifying agreement. So viewed, there is sound authority that the indemnitee, the City, is entitled to recover from the in-demnitors, as a part of its damages, reasonable attorney fees which City incurred in defending a suit brought against it in reference to the matters against which it was indemnified. This is so even though the indemnity agreement does not specifically include or mention ‘attorney fees’.”

See also 42 C.J.S. Indemnity § 13d, p. 583.

Peerless next complains as to the action of the trial court in giving Instruction No. 2, because it was a misdirection in violation of the spirit and intent of the Missouri Approved Instructions. Instruction No. 2 is MAI 3.01, the “Burden of Proof” instruction. There is no merit to this complaint of Peerless. The notes on use under MAI 3.01 clearly require that this instruction be given in every case, and that no other instruction on burden of proof may be given.

The next point raised by Peerless was that the trial court erred in giving Instruction No. 3 (Modified MAI 4.01) because the instruction gave the jury direction for a verdict. Since the jury had only one issue to determine—the amount of damages, Instruction No. 3, by necessity, had to be modified to require a verdict for plaintiff in view of the fact that the court had already determined the question of liability. In a similar situation our Supreme Court specifically approved a similar modification where the only issue for the jury was the amount of damages. Reynolds v. Arnold, 443 S.W.2d 793 (Mo.1969).

In this case, our Supreme Court stated at page 797,

“* * * It did not direct a verdict on the issue of causation, as claimed. It did assume that Reynolds was entitled to recover compensation for whatever damages the jury found, but properly so, based upon the prior adjudication of the issues of negligence and general causation. Defendants therefore were not deprived of but rather were accorded a jury trial on the remaining issue of the nature and extent of the injuries and conditions resulting from the collision and the amount to be awarded as damages.
M.A.I. 4.01 is designed for use when all three elements of a negligence claim are to be submitted to the same trial jury. It was inappropriate and needed modification to fit the situation presented here, in which only one of the three elements was to be submitted to the jury. The modification made was necessary and proper. It worked no prejudice to the rights of defendants.”

Peerless also complains that the instruction was erroneous because it did not include specific references to the reasonableness of expenses, costs and attorney’s fees. Once these items have survived the test of admissibility they are proper items of damages which the jury may consider, and the general language in Instruction No. 3 was not prejudicial, but in fact submitted the ultimate issue. Bonenberger v. Sears, Roebuck and Company, 449 S.W.2d 385, 391 (Mo.App.1969).

Peerless also complains that the word “occurrence” although standard language of MAI 4.01, is too broad in this particular case. Clearly the occurrence involved herein was that of the defense of the workmen’s compensation claim and the expenses incurred by Sears. There is no merit to this point. Epperson v. Nolan, 452 S.W.2d 263 (Mo.App.1970).

Peerless complains of the court’s action in giving Instruction No. 5, which was a form of verdict instruction. Since the issue of liability had previously been determined by the court in its interlocutory order, the only matter for the jury to determine was the amount of damages. The trial court was compelled to instruct the jury that it should find a verdict in favor of Sears. With this form, the jury could have found no damages by inserting a zero in the blank provided for the amount of damages, or a sum, as it did. MAI 35.10, Instruction No. 6. Cases on this point cited by Peerless are not persuasive.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Max Allen NICKERSON et al., Exceptions of Max Allen Nickerson et al., and I. J. Nickerson et al., Respondents.
    No. KCD 27660.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      Bruce A. Ring, State Highway Commission, Thomas E. Cheatham, Jefferson City, for appellant.
    Robert C. Smith, Smith, Lewis & Robers, Columbia, Robert J. Quigley, Kay & Quig-ley, Eldon, for respondents.
    Before SHANGLER, P. J., and HANNA O’LEARY and L. SMITH, Special Judges.
   PER CURIAM.

Defendant landowners in this condemnation case obtained judgment for $30,000 pursuant to jury verdict. Plaintiff appeals. The appeal must be dismissed for failure of plaintiff’s counsel to file an adequate brief in compliance with Rule 84.04, Missouri Rules of Civil Procedure.

Defendants filed a motion to dismiss the appeal, following the filing of plaintiff’s original brief, for insufficiencies in the jurisdictional statement, in the statement of facts, and in the statements of points relied on.

By order of this court of June 26, 1975, the motion to dismiss the appeal was “taken with the case” and plaintiff-appellant granted 30 days to rebrief. Within 30 days thereafter plaintiff filed a “Supplemental” brief.

The aforementioned supplemental brief of plaintiff contains only the style of the case and the “Points Relied on”, with case citations. The only thing appearing, not in the original brief of plaintiff, is the addition of a phrase to each of the three points relied on. The original points relied on gave no reasons as to “wherein and why” the rulings of the court sought to be reviewed were claimed to be erroneous. The supplemental brief basically met this deficiency.

However, plaintiff’s statement of facts in the original brief, and not touched upon in the supplemental brief, is inadequate and not in compliance with Missouri Rule 84.-04(c) which provides, “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.”

The three points relied on by plaintiff are:

I. The court erred in refusing to strike the testimony of witness Craig because his values included the value of personal property.

II. The court erred in refusing the testimony of Commissioners, Clotworthy and Anson, to impeach the defendants’ claims that the property taken was used.

III. The court erred in refusing plaintiff’s Instruction Number A which withdrew the element of traffic which is non-compensable.

Examples will be given of some of the deficiencies in the Statement of Facts. With reference to Point I in the Statement of Facts plaintiff makes reference only to witness Craig’s testimony that his values included that of a going business and personal property (the animals) and that plaintiff’s motion to strike the testimony was overruled. Other relevant facts of testimony bearing upon the issue and favorable to defendant are not given. This would include: the witness’ testimony as to the before and after value of the property in question; the witness’ denial at one point that he had taken into consideration the value of any animals; his statement at one point that the animals did not really have a great deal to do with what you would give for the property.

Concerning Point II in the Statement of Facts plaintiff makes only brief reference to plaintiff calling to the stand a court appointed Commissioner to refute the claims that areas within the new right of way (taken by the state) had been used in connection with defendants’ business. The statement omits reference to the fact that Commissioner Clotworthy had stated on direct testimony that he had been appointed by the court to make the appraisal and that such testimony occurred after prior warnings by the court that plaintiff should not inject the Commissioner’s appointment into the trial of the case. Nor is reference made to the fact that Commissioner Anson had never been called by plaintiff as a witness.

With reference to its third point in the Statement of Facts plaintiff merely states that “After the issue of diversion of and loss of traffic was injected into the case by defendants’ witnesses” (with references being made to the transcript) plaintiff offered a certain instruction (for the jury not to consider loss of traffic) which was denied. The statement is argumentative and facts are not set out supporting the plaintiff’s contention that loss of traffic was injected into the case by defendants’ witnesses. And no mention is made as to the offered instruction being a modification of an MAI instruction.

The transcript in this case consists of some 495 pages. Plaintiff’s Statement of Facts is contained in one and one-half pages in its brief. Surplusage is not desired. However, the court is not sufficiently advised of the facts to obtain a full understanding of the case and the issues involved. Plaintiff-appellant had the legal obligation to furnish the reviewing court with an “immediate, accurate and unbiased understanding of such facts so that they may be readily related to the legal issues presented for determination”. Devoy v. Devoy, 502 S.W.2d 428, 430 (Mo.App.1973). Plaintiff’s brief failed in this respect.

Plaintiff’s Statement of Facts emphasizes statements of facts favorable to itself and omits other facts essential to the position of defendants. Such statements do not constitute compliance with Missouri Rule 84.04(c). Geiler v. Boyer, 483 S.W.2d 773, 774 (Mo.App.1972).

With respect to appellant’s brief, it should also be noted that a proper jurisdictional statement is not made and it is improperly stated that the appeal is from a denial of a motion for new trial (rather than from the judgment of the trial court). And in the original brief the style of the case incorrectly shows plaintiff as the respondent and defendants as the appellants.

As pointed out by this court in Ward v. Johnson, 480 S.W.2d 104, 107 (Mo.App.1972):

“(These Rules of Civil Procedure relating to appeals) should and must be substantially followed and not disregarded. The courts in the past have meticulously pointed up the reasons for each rule, laid down simple examples and guidelines, and indulged in generous forgiveness and excuse for deviation.
“But modern realities no longer permit a disregard of these standards by either the bench or the bar.”

As a consequence, many appeals have been dismissed, pursuant to motion, for failure of the appellant to file a brief in accordance with the Rules.

Plaintiff-Appellant failed to file a sufficient brief in compliance with Missouri Rule 84.04(c) even after being advised by order of this court to submit another brief. Neither good cause nor the interests of justice require this court to make an exception in this case to enforcement of above rule.

Accordingly, the appeal is dismissed.

      . Recent examples include: Haywood v. Haywood, 527 S.W.2d 36 (Mo.App.1975); Matter of Search Warrant of Property, etc., 528 S.W.2d 452 (Mo.App.1975); Cope v. McClain, 529 S.W.2d 6 (Mo.App.1975); Matter of Estate of Langford, 529 S.W.2d 31 (Mo.App.1975); Forbes v. Gates, 530 S.W.2d 18 (Mo.App.1975); Collector of Revenue of the City of St. Louis v. Parcels of Land, 531 S.W.2d 100 (Mo.App.1975); Valentine v. State, 532 S.W.2d 877 (Mo.App.1976); State ex rel. State Highway Commission v. Govero, 533 S.W.2d 639 (Mo.App.1976); State v. Curry, 533 S.W.2d 687 (Mo.App.1976); Minton v. ACF Industries, Inc., 535 S.W.2d 503 (Mo.App.1976); State v. Brown, 535 S.W.2d 606 (Mo.App.1976).


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Edward Leon WILLETT, Appellant.
    No. KCD 27760.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      James R. Wyrseh, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Edward Leon Willett was charged with two counts of first degree murder. A jury found him guilty of manslaughter on each count and sentenced him to two years imprisonment on each count. The court ordered the sentences to run consecutively.

On this appeal Willett urges reversal on (1) the unconstitutionality of the provision allowing women to be excused from jury service; (2) in refusing to allow evidence to be admitted concerning the criminal record of the two decedents, Willett’s supposed knowledge of their violent reputations and in refusing to give Willett’s self-defense instruction; (3) in allowing a detective to testify as to the identity of the two decedents based upon papers found upon them, and in limiting Willett’s cross-examination of witnesses who testified as to the identity of the two decedents; (4) in denying Willett a bifurcated trial on the issue of guilt, and once that was established, on the issue of his mental condition; (5) in failing to sustain Willett’s motion for acquittal because the State failed to disprove the defense of justifiable homicide; and (6) in ordering the sentences to run consecutively instead of concurrently. Affirmed as to conviction, but remanded for resentencing.

Willett was charged as a result of the killing of Parker and Courtney. The evidence adduced by the State showed that in the early morning hours the police responded to a call at the home of Willett in Kansas City. The first police officer to arrive stated that as he walked on the front porch of the Willett home, Willett pointed to a shotgun leaning against the house and said “I did it and they are in there”. The officer then asked what he had done and Willett replied, “I shot them and they are in there”.

On entering the house, the officer found Courtney sitting on a couch in the front room with his legs crossed, and his head lying on his shoulder. There was a large wound in the neck. Parker was lying on the floor with a wound in the left side of the chest. The officer could find no signs of life in either man.

Willett produced, as witnesses, two of the six or seven people who were in the room in addition to the two decedents, and testified on his own behalf. From the testimony of these witnesses, it appears Willett and three or four of his friends were visiting various bars in Kansas City. In one of these they encountered Courtney and Parker. Later in the evening Courtney informed Willett he was going home with Willett, and Courtney and Parker then got in Willett’s pickup truck and were driven by Willett to his home.

On arriving, the three men entered the home and found the friends with whom Willett had been drinking earlier in the evening. Within about fifteen or twenty minutes an argument broke out between Courtney and one of the other men present. This led to some blows being struck by Parker, but when Willett entered the room, he immediately broke up the fight without any difficulty and both men obeyed Wil-lett’s command to be seated. After this, the man struck by Parker obtained a chain saw and began trying to start it as he advanced toward Parker. Willett broke this up as he had the previous affray, and likewise without difficulty.

At this juncture, Courtney and Parker began assuring each other that each had brought his gun and made statements to the effect they could take care of the entire crowd. At this point, Willett left and obtained a shotgun. According to Willett, as he entered the room, with the gun pointed toward the ceiling, Parker immediately got out of his chair and started advancing toward Willett. Willett said at the same time as he started advancing, Parker started to move his hands toward his belt. Wil-lett immediately lowered the shotgun and fired one blast which struck Parker in the left chest.

Willett stated after he shot Parker, he saw Courtney move his hands and immediately swung the gun toward Courtney and fired, striking him in the neck. Courtney never rose from the couch and, as stated, still had his legs crossed when seen by the police officer.

One of the other witnesses confirmed Willett’s version, but one stated Parker never rose from his chair before he was shot.

The officer conducted a search of the bodies and did not find any weapon either on the bodies or anywhere else in the house. Willett stated he did not see any gun on either Courtney or Parker. He stated Parker was wearing a tight fitting tee shirt and trousers when Willett had observed him throughout the evening. Willett also admitted when Parker reached toward his belt, he did not see any sign of a weapon and did not see anything in Parker’s hands. He stated the same concerning Courtney. Willett based his action in shooting both men on the fear that they did have a gun.

Willett first questions the automatic excuse which is granted to women in Missouri from jury service as provided in Article I, Section 22(b), Constitution of 1945, and Section 494.031, RSMo 1969. Willett bases his argument upon the holding of the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) in which a statute somewhat similar to Missouri in Louisiana was struck down.

It is not necessary to decide the validity of the Missouri Constitution and statutes in this case because Willett was tried in November, 1974. Taylor was decided in January, 1975. In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) the Supreme Court held Taylor would not be applied retroactively. Therefore, the status of the Missouri Constitution and statutes concerning women being excused from jury service in effect in November, 1974, controls.

At that time the controlling law in Missouri was State v. Wright, 476 S.W.2d 581 (Mo.1972). In that case the Missouri method of excusing women, which Willett attacks in this case, was upheld. For that reason, the attack here made cannot be considered.

Willett next contends he should have been allowed to show that Courtney and Parker had criminal records and, in fact, were residents of a halfway house under federal probation at the time of their death. He further contends he should have been allowed to introduce testimony on the part of three witnesses concerning their knowledge of the reputation of Courtney and Parker for violence. He further contends he should have been allowed to testify as to a remark made by a bar maid to Parker and Courtney that if they caused trouble she would bar them for good.

Willett concedes the law in this State is against him as to the fact a violent reputation must be established by the reputation the decedents bore in the community and not by evidence of specific acts of violence having no connection with the defendant. This was reaffirmed in State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974). The evidence which Willett sought to show related to the criminal records of Courtney and Parker as shown by their records at the halfway house where they were last staying. Willett conceded he did not know either Courtney or Parker prior to the evening in question, nor did he have any idea as to their reputation. Under the rule prevailing in Missouri, it would have been improper to permit evidence of the criminal record of Courtney and Parker to be shown. Furthermore, under this rule, the accused must know of the violent reputation. State v. Blair, 305 S.W.2d 435 (Mo.1957). The evidence sought to be introduced went only to the criminal record of the deceased, and at best as to some reputation of violence known to others but without showing knowledge of such reputation on the part of Willett.

Willett sought to establish his knowledge of the violent reputation of Courtney and Parker through the statement of the bar maid. However, such statement falls far short of being a statement of the general reputation which these two bore in the community. See State v. Schmidt, 530 S.W.2d 424 (Mo.App.1975).

Further, the statement of the bar maid does not measure up to the statement in State v. Parker, 358 Mo. 262, 214 S.W.2d 25 (1948), where the accused stated he had heard the deceased was “a pretty rough customer”. That statement was a clear statement of reputation which that person bore. The statement of the bar maid was at best highly ambiguous, but certainly carried no indication as to the reputation which Courtney and Parker bore.

Willett also argues that a showing of the criminal record of Courtney and Parker was admissible to show who were the aggressors in the incident. Suffice it to say the rule stated in Maggitt fully answers this argument.

The court gave MAI-CR 2.40 without the additional paragraphs under No. 4. Willett also requested an instruction in which all of the bracketed paragraphs under No. 4 in MAI-CR 2.40 was inserted. These paragraphs relate to threats made, and either communicated or not communicated to Willett, the reputation of Courtney and Parker for a rash, violent and turbulent disposition and character, and the fact that Courtney and Parker may have directed any specific acts of violence against Willett prior to the killing. As shown by the previous discussion, there was no evidence before the jury concerning the reputation which Courtney and Parker bore in the community and the giving of this instruction would have been in plain violation of the well settled rule that instructions must be supported by evidence.

Willett next contends the court erred in permitting Detective Luther to testify as to the identity of Courtney and Parker from papers found on their bodies, but which papers were not available at trial. He further contends the court erred in limiting the cross-examination of Parker’s mother and of Detective Luther.

Detective Luther stated he had found papers on both bodies giving the identity of each person. He further stated he had known Courtney for a number of years and identified him by sight. Willett makes some contention the testimony of Luther without the production of the papers he found on the bodies violated the “best evidence” rule. It is evident this rule of evidence was not violated since the contents of the writing or papers was not the issue in the case and the identity of Courtney and Parker was proved by facts independent of the papers. Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo.App.1965).

In addition to the identification of Courtney made by Luther through his acquaintanceship, the mother of Parker testified and identified a picture of his body as being her son.

Willett’s complaint concerning the restriction of his cross-examination of Luther and Parker’s mother went to Willett’s attempt to prove by both of these witnesses prior criminal records. As discussed previously, such records were not admissible. The cross-examination of these witnesses was within the discretion permitted the trial court and an examination of the rulings here does not show any abuse of such discretion. State v. Johnson, 486 S.W.2d 491 (Mo.1972).

Willett further contends the court erred in failing to grant him a bifurcated or separate trial on the issue of his mental condition and diminished responsibility at the time of the incident in the event the jury found him guilty.

Willett did not comply with Section 552.-030, RSMo 1969, because he failed to enter a plea of not guilty by reason of mental disease or defect excluding responsibility nor did he give written notice of his intent to rely on such defense. Rather, prior to the trial, Willett’s counsel made clear to the court he had no intention of making any issue of Willett’s mental condition at the time of the killing, unless Willett was found guilty. Counsel stated in that event, and only in that event, would he want to make an offer of proof in connection with a defense of not guilty by reason of insanity. Apparently Willett’s position is bottomed on a procedure advocated in a Law Review article. However, such procedure has not been adopted in this State, and by his failure to follow the procedure dictated by Section 552.030, Willett has failed to raise any question concerning a mental defect which would exclude responsibility.

Willett also contends the court erred in failing to sustain his motion for acquittal at the close of all the evidence because the State failed to introduce any evidence to disprove Willett’s claim of self defense. Willett concedes the State produced enough evidence to make a submissible case on homicide, but contends the State was obligated to come forward with other evidence to disprove the evidence which Willett produced and which he claims showed the killings to be the result of self defense or justifiable homicide.

It was stated in State v. Rash, 359 Mo. 215, 221 S.W.2d 124 (1949) [1]: “[o]rdinarily self defense is in the nature of an affirmative defense, and a question for the jury.”

MAI-CR refers to justifiable homicide as a “special negative defense”. MAI-CR, p. 2-31. Under MAI-CR 2.40, the burden of proof is on the State to prove the defendant in a criminal case did not act in lawful self defense. However, this does not mean the State is required to come forward with additional evidence after the defendant produced evidence of self defense or justifiable homicide. The burden cast on the State by this instruction can be met by the evidence produced in the State’s case in chief just the same as the other issues which the State is required to prove can be shown.

Since Willett concedes the State made a submissible case by its case in chief, he has no complaint simply because the State failed to introduce evidence in rebuttal of Willett’s evidence.

Whether the State’s evidence, which is not disputed or contradicted, establishes self defense so as to make a killing justifiable homicide is a question of law. Certainly in this case it cannot be declared as a matter of law the killing was a result of self defense or justifiable homicide. State v. Rash, supra. The question here was for the jury based upon all of the evidence.

Willett’s final contention concerns the making of the two year sentences to run consecutively. While the jury was deliberating, it sent a note to the court asking if Willett were found guilty would the penalty set on each count run concurrently or consecutively. The parties stipulated the court could answer with the word “consecutively”. Thereafter, the jury returned a verdict finding Willett guilty on each count and fixing punishment on each count at two years. Nothing was stated in the verdict as to whether the sentences run concurrently or consecutively. However, in pronouncing sentence, the court specified the sentences were to run consecutively.

This case was tried prior to the decision in State v. Baker, 524 S.W.2d 122 (Mo. banc 1974), in which Section 546.480, RSMo 1969, was declared unconstitutional. The State agrees in this case the court was probably acting under the compulsion of Section 546.480 when it ordered the punishment on each count to run consecutively. Willett requests, and the State agrees, that this cause be remanded for the limited purpose of resentencing.

The judgment of conviction on each count is affirmed, but the sentences pronounced thereon are hereby set aside. This cause is remanded for the limited purpose of resen-tencing by the court in an exercise of discretion whether to impose the sentences consecutively or concurrently. State v. Brown, 525 S.W.2d 565 (Mo.App.1975).

All concur.