author: REINHARD, Judge.

text:
    Charles WALTERS, Plaintiff-Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Respondent.
    No. 37257.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Alan E. Popkin, Richard C. Witzel, Stan J. Goodkin, Rosecan, Popkin & Chervitz, St. Louis, for plaintiff-appellant.
    Robert C. Ely, St. Louis, for defendant-respondent.
   REINHARD, Judge.

This is a suit for damages for permanent injuries received by plaintiff when his automobile was struck by defendant’s train. The jury returned a verdict in favor of plaintiff in the amount of Eleven Thousand Dollars ($11,000.00), but the court sustained defendant’s motion for judgment in accordance with defendant’s motion for a directed verdict at the close of all the evidence. Plaintiff appeals.

The accident occurred on the evening of November 23, 1971, at the intersection of Bartold Avenue and defendant’s single set of railroad tracks in Maplewood. In the immediate vicinity of the intersection, Bar-told runs in a northerly-southerly direction, and the tracks intersect Bartold in a generally easterly-westerly direction. Approximately 200-250 feet south of the crossing, Bartold winds sharply to the west. To a motorist proceeding north on Bartold, the railroad crossing becomes visible just after he rounds the turn. From this point, Bar-told grades downward until it intersects with Manchester Road.

As one approaches the tracks from the south, his view to the west is obstructed by a hill which rises sharply from the southwest corner of the intersection, two utility poles near the base of the hill, a utility pole further south of the intersection on the west side of Bartold, and a 4' X 6' business sign at the base of the hill. There are no flashing signals but there is a wooden cross-arm sign located at the southeast corner of the intersection. The speed limit on Bar-told is 30 miles per hour.

Plaintiff had lived in the vicinity of the railroad crossing for about fifteen months prior to the time of the accident but worked outside the area during the week. He was familiar with the crossing, although he traveled over the crossing only on weekends. He claimed he had never seen a train at the Bartold crossing.

The evening of the accident, plaintiff was proceeding north on Bartold. It was dark outside, and plaintiff’s car radio was turned off. When he made the turn from the west to the north on Bartold, he was traveling less than 20 miles per hour. With his foot on the brake, he was reducing his speed as he drove down the hill in the direction of Manchester Road. As he approached the tracks, he did not look to his left. He heard a whistle, at which time he looked to his left and saw the light of the train approximately thirty (30) feet away. Prior to hearing the whistle which alerted him to the train’s presence, plaintiff heard no other whistle or bell. Plaintiff stipulated that the train was traveling eight (8) miles per hour as it approached the Bartold crossing from the west.

The only evidence of stopping distance came from questions asked of plaintiff by defendant:

“Q. Within a distance of 50 feet going at the speed you were going when you came down the street that evening, if you had chosen to stop your automobile by applying your brakes could you have stopped at 50 feet?
A. I believe so.
Q. And if you could stop at 50 feet, you could of course stop at 75 feet?
A. Yes sir.”

Plaintiff called as witnesses Robert Bower, the train’s engineer, Harry Bremer, the switchman, and Carl Morgan, who was riding with the engineer. Morgan testified he could not see “too far” up Bartold because “the hill gets in your way”, and that when a train is one hundred feet up the track, he can only see 30-40 feet up Bartold because of the hillside and trees. Bower, the engineer, stated the train was about “35 feet, 40, 50 feet” from the intersection when he first saw plaintiff’s car. He could not have seen it sooner because of a big factory and a hill. Bower said he was unaware of a Maplewood City ordinance requiring the bells to be rung 80 rods before a crossing and admitted that the bell was not rung from a point 80 rods back. He testified the bell was rung and the whistle blown about 300 feet from the crossing. Morgan said the horn was blown 100-150 feet from the intersection. A police report, admitted into evidence without objection, indicated all three crew members had stated that as the train neared the crossing, its light was flashing. At trial, however, the engineer denied this statement and testified the light was on but was not flashing.

Plaintiff presented Jay P. Mueller, an engineer and surveyor who had prepared a plat of the area showing various elevations. On cross-examination he testified that when a motorist is 80 feet south of the crossing on Bartold, he can see 180 feet down the track to the west; from a point 50 feet south of the track, a motorist could see 250 feet to the west; and at a point 30 feet south of the tracks, the hill to the west of Bartold would not obstruct a motorist’s view of the tracks to the west, though the 4' X 6' business sign would. These distances were based on computations made by the witness on the stand using the plat he had prepared. Photographs of the scene, taken by witness Allen Davis, were admitted in evidence.

Plaintiff submitted on defendant’s common law duty to warn and its failure to comply with an ordinance of the City of Maplewood requiring that, “The bell of each locomotive engine shall be rung at the distance of at least eighty rods from the place where the railroad shall cross any street or thoroughfare of this City, and shall run continually until said engine has passed such crossing.” Plaintiff made a submissible case on both theories.

Plaintiff argues that he was not contribu-torily negligent as a matter of law and that the court erred in sustaining defendant’s motion for judgment in accordance with its motion for a directed verdict. Defendant contends plaintiff was contributorily negligent as a matter of law because:

Plaintiff’s own evidence from himself and his surveyor and his photographer show that when plaintiff was 75 feet from the railroad crossing he was traveling at a speed within which he could stop before reaching the crossing, and at that time the train was clearly within his view, . By his own admission, plaintiff did not look for a train; although he was fully aware of the existence and location of the railroad crossing. There was no evidence to the contrary, and plaintiff is bound by that testimony.

In other words, defendant claims the evidence conclusively establishes that if plaintiff had looked he would have seen the train and that at the speed he was traveling he could have stopped in time to have avoided the accident.

The rule in Missouri as to whether contributory negligence has been established as a matter of law in cases such as these is that pronounced in Zumault v. Wabash R. Co., 302 S.W.2d 861, 862-63 (Mo. 1957):

The burden of proving plaintiff’s contributory negligence was on the defendant. The plaintiff was not obliged to prove as a part of his case that he was in the exercise of due care for his own safety. * * * * * *
Before the court can declare that contributory negligence is shown as a matter of law, such negligence must clearly appear from admitted or conclusively proved facts. If reasonable men may honestly differ with respect to the inferences to be drawn from such facts, then the question whether the driver exercised the care required for his own safety is for the jury. (Citations omitted). . . . [Plaintiff's evidence must be considered as true and he must be given the benefit of any and all reasonable inferences therefrom and the aid of any evidence offered by the defendant which is favorable to him. In order for the defendant to maintain its position ... it must show that the evidence, even when considered most favorably to the plaintiff, unequivocally establishes his contributory negligence.

It has been said that a railroad track is a warning of danger. It was plaintiff’s duty, when approaching the crossing, to exercise the highest degree of care. He must look at a place where, if possible, he may see the train; he must look at a place where it is reasonably effective to do so, and a motorist approaching a railroad crossing with which he is familiar, who fails to look and see that which is plainly visible if he performs his duty to look is contributorily negligent. Fugate v. St. Louis-San Francisco Railway Co., 348 S.W.2d 718, 723 (Mo.App.1961). In this case, plaintiff had a duty not only to look to the left, but also to the right and ahead.

The law is well established. “The difficulty . . . is in applying the law to the particular facts and circumstances in each case. Distances, speed, physical facts, and conduct of [plaintiff], together with all the other facts and circumstances, must be taken into consideration in passing upon the question of contributory negligence. Each case is more or less different on the facts, and no hard and fast rules may be laid down applicable alike to all cases.” Flannagan v. St. Louis-San Francisco Railway Co., 297 S.W. 463, 466 (Mo.App.1927).

Plaintiff stipulated the train was traveling eight (8) miles an hour and is bound by this speed. However, as a general rule, a plaintiff is not bound by his estimates of speed or distance. Baldwin v. Atchison, Topeka & Santa Fe Railway Co., 425 S.W.2d 905, 911 (Mo.1968). There was no testimony of plaintiff’s exact speed. He stated he was traveling at something less than 20 miles per hour and in answer to a question whether he could have stopped within 50 feet of the tracks, he answered “I believe so.” “If you could stop at 50 feet, you could stop at 75?” Answer, “Yes.” Testimony of his speed, stopping distance and the distance of the train when he first saw it were mere estimates. Since the evidence consists of estimates which were not intended to be exact, the plaintiff is not bound thereby; and calculations based thereon cannot convict plaintiff of contributory negligence as a matter of law. Zu-mault v. Wabash Railroad Co., 302 S.W.2d 861, 864 (Mo.1957).

Defendant’s contention that plaintiff is bound by the testimony of sight distances of the surveyor must also fail. The witness testified for the purpose of laying a foundation for the admission of a plat prepared by him. It is apparent from the record that he had made no sight distance tests at the scene and that his testimony was based on computations made from the plat while on the witness stand. His estimates pertained only to the obstruction of the hill and did not take into consideration other possible obstructions such as the business sign and the several utility poles. The surveyor did state the business sign might obstruct a motorist’s view to the west at a point 30 feet from the tracks. Moreover, the witness had no knowledge of the height of the train or the position of the engine’s headlight, factors which are of particular importance in the case of a nighttime collision.

Missouri courts have placed great emphasis on photographs in determining visibility in railroad cases. As stated in Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, 891 (1954): “What may be seen from a certain place under admitted or undisputed conditions and circumstances, and the view or line of sight under such circumstances is a physical fact, clearly and unequivocally demonstrable by photographic evidence. And where physical facts speak with a force which overcomes testimony to the contrary, reasonable minds must accept and follow the physical facts .”

Plaintiff’s photographic exhibits demonstrate that a motorist’s visibility from northbound Bartold to the west is extremely limited. Exhibit No. 17, a photograph taken on Bartold Avenue 125 feet south of the railroad tracks, depicts the view of a motorist proceeding north toward the tracks. To the driver’s left is the steep hill and two utility poles immediately alongside the traveled part of Bartold. The business sign, facing the tracks, stands at the southwest corner of the intersection of Bartold and the railroad tracks. On the other side of the tracks appear several buildings and utility poles. Plaintiff’s Exhibit No. 19 is a photograph taken 75 feet south of the tracks with a view to the west. Visibility is severely restricted by the hill, utility poles, and the business sign. Exhibit No. 20, taken 50 feet south of the rail with a view to the west, shows very little change in visibility with the sign being an even greater factor. Plaintiff’s Exhibit No. 24 was taken 75 feet south of the tracks and shows an eastbound train just west of the intersection. The front of the engine is fully visible but much of the engine is obstructed by a utility pole and the business sign. Parts of the first two cars of the train are also visible. Plaintiff’s Exhibit No. 25, taken 75 feet south of the tracks, shows the train as it first becomes visible; the engine’s headlights are barely visible and nearly obstructed by a utility pole. Only a small portion of the train can be seen. Plaintiff’s Exhibit No. 22 was taken 200 feet west of the intersection from a point ten feet above the railroad tracks; it depicts the view of the intersection from the train. A car comes into partial view just south of the intersection on Bartold. This exhibit demonstrates the restricted visibility to the west of a motorist approaching the tracks from the south on Bartold.

Plaintiff’s testimony indicated that he first heard a warning just prior to the accident. The triers of fact were authorized to accept his testimony and reject the testimony of the trainmen that the train’s bell and whistle were sounded sooner. There was no evidence plaintiff was driving at an unlawful speed, and we cannot say as a matter of law that it was unreasonable. It is significant the accident occurred at nighttime when visibility would be all the more impaired. The essential consideration, then, is not plaintiff’s ability to see the train as such, but his ability to see the train’s headlight.

We conclude that on all the evidence, the question of what was plainly visible to the plaintiff from a particular point in the street was a question for the jury. The evidence of visibility, the relative positions of the automobile and the train, the speed at which plaintiff was traveling, and his ability to stop, was too inconclusive to warrant a directed verdict. We cannot say, as a matter of law, that if plaintiff had looked to the west sooner than he did, he could have seen the train in time to have taken effective action. His conduct therefore did not constitute contributory negligence as a matter of law. Fugate v. St. Louis-San Francisco Railway Co., supra.

There was substantial evidence of plaintiff’s contributory negligence but the jury resolved this issue in favor of the plaintiff.

The order of the trial court is reversed and case is remanded with instruction to reinstate the verdict of the jury.

STEWART, P. J., and STEPHAN, J., concur.

Pltf’s. Exhibit 17

125 FEET SOUTH OF RAIL

Pltf’s. Exhibit 19

75 FEET SOUTH OF RAIL 3 FEET EAST OF CENTER LINE BARTOLD

Pltf’s. Exhibit 20

50 FEET SOUTH OF RAIL 3 FEET EAST OF CENTER LINE BARTOLD

      . See also Davenport v. Wabash Railroad Co., 435 S.W.2d 641 (Mo. banc 1968); Willis v. Wabash Railroad Co., 377 S.W.2d 489 (Mo. App.1964).

      . All photographic exhibits with a view to the north and west were taken with the camera approximately three feet east of the center line of Bartold at a height of 4' 9". Plaintiffs Exhibits 17, 19, and 20 are attached.

      . As stated in Roques v. Butler County R. Co., 264 S.W. 474, 477 (Mo.App.1924):
      The traveler can rely upon the statutory signals being given where his view is so obstructed that he cannot by the exercise of due care see an approaching train. If the traveler can hear and listens, and hears no signals and no sound of an approaching train, and cannot by the exercise of due care see an approaching train because of obstructions, then he is not required to leave his vehicle, and go forward on foot to ascertain if a train is approaching, but in such case he may proceed relying upon and depending upon the statutory signals being given.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Earl HOSKINS, Defendant-Appellant.
    No. KCD 28851.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Kevin R. Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals his conviction for burglary and stealing and consecutive three-year sentences.

No question of sufficiency is raised. Passers-by who noted a burglary in progress at a western clothing store followed a vehicle from the scene, memorized the license number, and reported to the police the number and the car’s description. Defendant and a companion were arrested in the vehicle so described and bearing that license number within minutes. The defendant had a fresh laceration on his finger and on his forehead. Entry was gained to the burglarized premises by the breaking of glass in a doorway. The door was not unlocked, the burglars entering through the break in the glass. The burglary scene was processed for blood samples and fingerprints. No useable evidence of either was found.

Defendant raises a single issue, that the trial court erred in refusing to declare a mistrial because of claimed error in the prosecutor’s argument.

That portion of the prosecutor’s closing argument objected to by appellant follows:

MR. SCHAFFER: We also didn’t have for you the fingerprints which were actually prints of Michael Hoskins—
MR. BENSON: I object to that, Your Honor. There was absolutely no evidence of fingerprints.
THE COURT: The objection is sustained.
MR. BENSON: And I would ask that the jury be instructed to disregard that comment.
THE COURT: The jury is instructed to disregard the last statement of counsel.
MR. BENSON: Your Honor, I ask for a mistrial at this time.
THE COURT: Your motion is overruled.
MR. SCHAFFER: We also had, as I told you, at the time that the scene was processed, there was no evidence of blood, so there was no evidence about blood, Michael Hoskins’ blood. But we also didn’t have a motion picture of the crime, and that would have been the best thing of all, because we then wouldn’t even have needed to have the trial.
But you’ll recall what we did have for you — and we had eight witnesses.

This argument and its connotations must be considered in the context of the trial. In his opening statement, the prosecutor noted that the scene had been processed and that no fingerprints of value had been found. He also observed that no blood samples were found.

During cross-examination of the State’s witnesses, defense counsel had elicited responses that informed the jury a police “lab” technician was present at the scene and checking for fingerprints. The defense also attempted to show he was examining for blood samples at the scene, but an objection was sustained; however, the witness did admit he did not know whether blood stains were present at the scene. It thus appears that prior to the argument the jury’s attention had been directed to the absence of any evidence of fingerprints or blood stains linking the defendant to the scene of the crime.

Although ineptly verbalized, the argument simply reflects what the jury must have already known, that the State did not present any evidence by fingerprint or blood sample to link defendant to the offense. Defendant argues that the prosecutor’s statement gives rise to the inference that fingerprints of defendant found at the scene existed. This argument is buttressed by quoting only a portion of the prosecutor’s statement, “the fingerprints which were actually prints of Michael Hoskins — .” Out of its context, this might support the inference defendant seeks to draw. In the context of the trial and the argument as made, it does not. The remarks of a prosecutor when ambiguous or less than crystal clear do not require a court to lightly infer the most damaging possible meaning. Don-nelly v. DeChristoioro, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); State v. Neal, 526 S.W.2d 898, 903 (Mo.App.1975).

A mistrial is a drastic remedy within the discretion of the trial court and should not be granted unless prejudice cannot be removed by other means. State v. Charles, 542 S.W.2d 606 (Mo.App.1976); State v. Lacy, 548 S.W.2d 251, 252 (Mo.App.1977). The trial judge instructed the jury to disregard the statement of the prosecutor. Whether anything more was required to remove any prejudice was a matter within the discretion of the trial court, and this court should not interfere unless an abuse of discretion is shown. State v. Wright, 515 S.W.2d 421, 432 (Mo. banc 1974).

For statements made in argument to be reversible error, they must be plainly unwarranted and clearly injurious. State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970).

The judgment and conviction are affirmed.

All concur.


author: WEIER, Judge.

text:
    Milton S. YUST et al., Appellants, v. Jane Y. LINK (Muich), Respondent.
    No. 38576.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 19, 1978. Application to Transfer Denied Sept. 12,1978.

      W. W. Sleater, Clayton, for appellants.
    Carter, Brinker, Doyen & Kovacs, Steven G. Schumaier, Daniel E. Wilke, Clayton, for respondent.
   WEIER, Judge.

A car driven by plaintiff Milton S. Yust collided with a car driven by defendant Jane V. Link at an uncontrolled intersection. Milton S. Yust filed suit for personal injuries and Yust, Inc., joined in Count II for damages to the automobile driven by Yust. A jury found the issues in favor of defendant and on her counterclaim awarded her $600 for property damage. Plaintiffs appeal contending the trial court erred: (1) in not permitting plaintiffs’ attorney to ask prospective jurors a question concerning insurance; (2) in declaring a mistrial when plaintiffs’ attorney asked such a question to a previous jury panel; (3) in refusing to allow the jury to examine plaintiffs’ car; (4) in receiving into evidence some allegedly distorted pictures offered by defendant; and (5) in giving four instructions. We affirm.

Plaintiffs first contend “[t]he trial court committed prejudicial error in stating before trial that it would permit plaintiffs’ attorney to ask but one question of the prospective jury panel pertaining to insurance at voir dire . . .” The record reveals that plaintiffs’ attorney asked on voir dire if any jurors had “any connection with the State Farm Mutual Insurance Company” and four jurors answered that they had policies with State Farm and one answered that he was considering a policy. Plaintiffs’ attorney then asked: “Those of you have a policy of insurance with them, do you think if they have an interest in the outcome of this case that would in anyway —” Then out of the hearing of the jury defendant’s attorney objected to plaintiffs’ attorney’s “interrogation on voir dire referring to State Farm Insurance Company. It has not been determined that the State Farm has an interest in the case. The question was not asked properly. I think, it has prejudiced the jury — he has asked several questions on it, and at this time I object to it, and ask for a mistrial.” The court sustained the motion and taxed costs against plaintiffs. Plaintiffs’ attorney said, “It was covered in depositions.” The court replied, “It’s the Court’s understanding you have to make a record prior to the proceeding on what questions the Court is going to permit you to ask, and I think, you have gone improperly.” Court recessed and later a second jury panel was sworn. Plaintiffs’ attorney asked only one question concerning insurance to this panel. The question was: “Now, do any of you have a financial interest or are you employed by the State Farm Mutual Insurance_” Nowhere in the record do we find a statement or ruling by the trial court that it would permit only one question as to insurance. Reversible error cannot be predicated on statements or rulings which do not appear in the record. Empire Gas Corporation v. Randolph, 552 S.W.2d 82, 83-84[3, 5, 6] (Mo.App.1977); Holt v. Rabun, 519 S.W.2d 561, 562 (Mo. App.1975).

In a related point-plaintiffs argue that the trial court abused its discretion when it declared a mistrial and assessed costs against plaintiffs after plaintiffs’ attorney asked the second question concerning insurance because “such arbitrary action intimidated plaintiffs and plaintiffs’ counsel and thereby prevented plaintiffs from having a trial before a fair and impartial jury.” The decision on whether to grant or deny a motion for a mistrial is committed to the sound discretion of the trial court and such decisions on such matters will not be disturbed on appeal unless there is a clear abuse of discretion. State ex rel. Highway Commission v. Drisko, 537 S.W.2d 645, 648[2, 3] (Mo.App.1976).

Trial courts have broad discretion in controlling voir dire examinations. State v. Hurd, 550 S.W.2d 804, 805[2] (Mo.App. 1977). If an attorney wishes to voir dire prospective jurors about their interest in or connection with an insurance carrier interested in the defense or prosecution of a case he should lay a foundation “prior to voir dire by inquiring on the record and out of the hearing of the jury as to the name of any insurance company or companies interested in the outcome of the case. This evidences the good faith of the attorney who seeks to voir dire on this matter.” State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 152[3] (Mo.App. 1974). During this conference counsel should request the court to rule on what questions and in what manner the trial court will permit inquiry concerning insurance. See, Barrett v. Morris, 495 S.W.2d 100, 102-103 (Mo.App.1973). Inquiry in accordance with the court’s instructions will necessarily be in good faith. As was the situation in State ex rel. State Highway Commission v. Beaty, supra, plaintiffs’ attorney here did not lay a prior foundation and his good faith in asking about the jurors’ connection with this insurance company was not evident. Unlike Beaty, plaintiffs here never showed the trial court during voir dire out of the hearing of the jury any evidence that State Farm Insurance Company was interested in this case and he never asked defendant’s attorney to admit that such was the case. On the evidence before the trial court, it could reasonably conclude that the questions were asked in bad faith. The order granting the motion for a mistrial was not an abuse of discretion.

Plaintiffs’ third contention is that the trial court committed reversible error in not allowing the jurors to examine plaintiffs’ car, which was parked in a parking lot at the courthouse. After the court refused to let the jury view the car, plaintiffs offered and the court received into evidence eight photographs of the car. Plaintiffs acknowledged the pictures fairly represented the condition of the car shortly after the collision. There was no abuse of discretion. Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 619[9, 10] (Mo.1970); Mills v. Keith Marsh Chevrolet, Inc., 549 S.W.2d 604, 608[8] (Mo.App.1977).

Plaintiffs next contend the trial court erred in permitting interrogation and accepting into evidence defendant’s Exhibit A “being purported pictures of the scene of the collision, because said pictures were pieced together and grossly distorted as to the distances and general scene, particularly when compared to the professional photographs introduced into evidence by the plaintiffs . . .” Plaintiff Yust, who stated earlier that he was very familiar with this intersection, identified defendant’s Exhibit A (two pairs of stapled-together photographs) and acknowledged that the pictures fairly and accurately represented the scene of the collision. The authenticity of photographs may be established by any witness who is familiar with the scene portrayed. State ex rel. State Highway Commission v. Eilers, 406 S.W.2d 567, 570[1] (Mo.1966). There is no confusing disparity between these photographs and photographs offered by plaintiffs as was the case in Silvey v. Missouri Pacific Railroad Com pany, 445 S.W.2d 354, 358 (Mo.1969) and, more importantly, plaintiffs failed to preserve this point for review because the objection at trial was not on this ground. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632[6] (Mo.App.1976). There was no abuse of discretion in admitting defendant’s Exhibit A into evidence.

Plaintiffs also contend the trial court erred in giving Instruction No. 10 (M.A.I. 4.02, modified) “because there was no evidence before the court as to the fair market value after the damage.” Defendant testified that the fair market value of her car immediately before the accident was $600. She further testified that her car was “totalled from the accident” and that after the accident the fair market was “nothing.” Plaintiffs presented no evidence on the fair market value of defendant’s car after the accident. Unlike Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 609[1] (Mo.App.1971), relied on by plaintiffs, there was substantial evidence in this case to support the giving of this instruction.

Plaintiffs’ next Point Relied On states: “The court further erred in reading Instruction No. 10, M.A.I. 4.02, to the jury without giving a definition of fair market value.” This point violates Rule 84.04(d) in that it does not state “wherein and why” the trial court erred. This is so even if this Point Relied On is considered as a subpoint under the previous Point Relied On, which stated: “The court erred in giving and reading to the jury Instruction No. 10, M.A.I. 4.02, because there was no evidence before the court as to the fair market value after the damage.” This point will not be considered. Oasis Car Wash, Inc. v. First North County Bank, 558 S.W.2d 683, 687[11] (Mo.App.1977).

Plaintiffs’ next two contentions are that the trial court erred in giving Instructions 6 and 7 because there was no evidence to support any of the three elements of negligence submitted in the instructions. Instruction No. 6 directed the jury to find for defendant on plaintiffs’ claims if they believed plaintiff Yust either “failed to yield the right of way to defendant, or failed to keep a careful lookout, or drove at an excessive speed” and plaintiff’s conduct in any one or more of these respects was negligent. Instruction No. 7 directed the jury to find for defendant on defendant’s counterclaim if they believed plaintiff Yust was negligent in any one or more of the respects mentioned in Instruction No. 6. It is true that “each element of a disjunctive verdict directing instruction must be supported by substantial evidence and that the lack of such support on any one element renders the submission erroneous.” Schneider v. Finley, 553 S.W.2d 727, 730[2] (Mo.App.1977). Furthermore, instructions based on failure to keep a careful lookout or driving at an excessive speed should only be submitted if there is evidence that the alleged acts were the proximate cause of the collision. Schneider v. Finley, supra at 730[3—5]. In determining whether these three elements are supported here, we view the evidence favorably to defendant with a disregard for plaintiff’s evidence unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489[1] (Mo. 1971).

Viewing the evidence in this light, there is substantial evidence to support each of the three elements. Concerning the failure to yield the right of way, the evidence shows the two vehicles reached the intersection at approximately the same time. Defendant’s car was to the right of plaintiff’s car when it entered the intersection. In an uncontrolled intersection, such as this, § 304.351.2 RSMo 1969 requires that the driver of the vehicle on the left yield the right of way to the driver of the vehicle on the right when two vehicles enter an intersection at “approximately the same time.” There was substantial evidence that plaintiff failed to yield the right of way when required to do so. See, Kratzer v. King, 401 S.W.2d 405, 408[3] (Mo.1966). Concerning failure to keep a careful lookout, there was evidence that plaintiff did not slow down or swerve prior to the accident. From this evidence the jury could reasonably infer that plaintiff was not keeping a careful lookout (in spite of his statements that he saw defendant’s car ninety feet before he entered the intersection). There was also evidence that defendant had her bright lights on and plaintiff, according to the photographs introduced in evidence, could have seen defendant’s car in time to slow down or stop and avoid the collision if he had been keeping a careful lookout. Concerning excessive speed, there was testimony that plaintiff was traveling between thirty-five and forty miles an hour in a twenty-five mile an hour zone, that he did not reduce his speed prior to the collision and that the accident could have been avoided if plaintiff had not been speeding. These two elements were supported by substantial evidence.

Plaintiffs’ last point on appeal is that the trial court erred “in giving and reading to the jury the third paragraph of Instruction No. 11, which said third paragraph was offered at the request of defendant . . . because there was no evidence to support such a finding . . ” Instruction No. 11 was a combination of M.A.I. 14.02 and 14.03, defining “right of way.” As the transcript indicates this instruction was “Submitted by Plaintiffs.” Nothing in the record indicates that any part of it was submitted by defendant. Plaintiffs, therefore, cannot predicate error on the giving of this instruction. Horton v. State Farm Fire & Casualty Co., 550 S.W.2d 806, 810[8] (Mo.App.1977); Beard v. Jackson, 502 S.W.2d 416, 419[4] (Mo.App.1973).

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . Plaintiffs’ last two Points Relied On clearly violate Rule 84.04(d) and will not be considered.

      . Instruction 10 stated: “If you find the issues in favor of the defendant on defendant’s counterclaim for damages, then you must award the defendant such sum as you may find from the evidence to be the difference between the fair market value of her car before it was damaged and its fair market value after it was damaged.”


author: SMITH, Judge.

text:
    Maurice E. KINGSLEY, Plain tiff-Respondent, v. UNITED STATES of America, Defendant, and Shirley Kingsley, Defendant-Appellant.
    No. 38591.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Gideon H. Schiller, Clayton, for defendant-appellant.
    William Maier, St. Louis, Joseph B. Moore, Asst. U. S. Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant Shirley Kingsley (hereinafter Shirley) appeals from an interlocutory judgment in partition finding the property in question to be owned by plaintiff Maurice Kingsley and Shirley as a tenancy in common and ordering partition. Such an order is appealable. See Sec. 512.020 RSMo 1969.

Plaintiff filed the suit to quiet title and partition eight parcels of real estate owned by plaintiff and Shirley. The petition alleged liens against said real estate by the Internal Revenue Service arising from the joint income tax return of Maurice and Shirley for 1971 and the individual return of Maurice for 1973. The petition alleged residency of Maurice in Switzerland and Shirley in New York. The United States of America was named as a defendant. Shirley defaulted. The United States and Maurice stipulated that Maurice and Shirley had acquired the property in 1969 as “joint tenants” and that subsequently Maurice had conveyed his interest in the property and then reacquired it and that the conveyance created a tenancy in common. It was stipulated that the equity of Maurice and Shirley in the property, exclusive of the tax lien, is $150,000.

At trial the only evidence introduced was the oral testimony of Maurice’s lawyer concerning the original acquisition of the property and the subsequent dealings with it by Maurice.

On appeal Shirley contends that the Court erred in ordering partition because plaintiff failed to exhibit proof of his title pursuant to Rule 96.15. We agree. Rule 96.15 provides:

“Judgment by Default shall be Rendered — When—Proof of Title to be Exhibited. If any of the parties, duly notified according to law, shall not appear and answer within the time allowed for that purpose, the default shall be entered, but the plaintiffs shall, nevertheless, exhibit proofs of their title.”

This is nearly identical to Sec. 528.150 RSMo 1969. “Exhibit” means to show or display, to offer or present for inspection, Black’s Law Dictionary, 4th Edition; to present to view, show, display, Webster’s 3rd New International Dictionary. It has long been the law of this state that evidence of title cannot be established by parol evidence. Gee v. Sherman, 221 Mo.App. 121, 293 S.W. 789 (1927); Clark v. McAtee, 227 Mo. 152, 127 S.W. 37 (1910). The provision of Rule 96.15 and the statute are consistent with that rule of law. Partitions are not to be granted in the absence of documentary proof that the party seeking partition has a partitionable interest in the real estate involved. No such proof was exhibited here and the trial court erred in decreeing partition.

It is apparent that in this case the matter is of importance. At least in 1971 Maurice and Shirley were married as evidenced by their joint tax return. There is no evidence that they were not married in 1969 when they acquired the property and that they are not married now. There exists a presumption that property conveyed to a husband and wife is held by them by the entireties, Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295 (1945) [5], and a further presumption that a legal status, such as marriage, continues until the contrary is shown. Nelson v. Jones, 245 Mo. 579, 151 S.W. 80 (1912) [2], Property held by the entireties is not subject to partition. Otto F. Stifel’s Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67 (1918) [3]; Rule 96.01. Parol evidence that the Kingsleys had acquired the land as joint tenants rather than by the entireties is not an adequate base upon which to deny Shirley Kingsley her proper interest in the real estate, whether she is in default or not. Plaintiff has called our attention to a motion to dismiss filed out of time by Shirley and which denied the Kingsleys were tenants in common but were “joint tenants.” This parol statement does not establish that plaintiff held a partitionable interest in the real estate, nor does it constitute proof of title.

Judgment reversed and cause remanded for further proceedings.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: DOWD, Presiding Judge.

text:
    Randy I. GIVAN and Charles Givan, Plaintiffs-Appellants, v. MACK TRUCK, INC., Defendant-Respondent.
    No. 38597.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14,. 1978.
    Application to Transfer Denied Sept. 12,1978.

      John L. Oliver, Jr., Oliver, Oliver & Jones, P.C., Cape Girardeau, for plaintiffs-appellants.
    Limbaugh, Limbaugh & Russell, Rebecca Cook, Joseph J. Russell, Cape Girardeau, for defendant-respondent.
   DOWD, Presiding Judge.

A warranty case.

Plaintiffs Charles and Randy Givan brought suit to recover damages for breach of warranty regarding a truck which had been manufactured by defendant. The trial court, sitting without a jury, found for the defendant and plaintiffs appeal.

The facts: On or about September 27, 1972 Charles Givan purchased a 1972 Mack Truck from Harris Truck and Tractor Sales of Cape Girardeau. He bought it for the purpose of leasing it to Sam Tanksley Trucking Company. He and his son Randy had made an agreement whereby the title to the truck would be in Charles Givan’s name and Charles Givan would make the down payment. Randy Givan was to pay the balance due, drive the truck for Sam Tanksley Trucking Company, maintain the truck, and would receive a salary from his father for his efforts. The evidence showed that Charles Givan paid $3500 as a down payment. The unpaid balance, including cost of collision insurance and finance charge, was $36,476.16 to be paid in 48 monthly payments of $759.92. Randy made the first monthly payment on November 17, 1972. No further payments were ever made, although Randy Givan continued to operate the truck and his father received monthly notices of nonpayment.

Randy Givan was plagued with numerous problems with this truck. Some of these malfunctions happened only once, like the failure of the heater, (he had to go 100 miles in snowstorm without a defroster), the windshield cracked, the exhaust tube needed replacing, the truck cab leaked water, the oil pressure gauge needed repair, two wheels fell off while he was driving, oil leaked out of the engine around valve covers, and once 21 quarts of oil leaked out. Twice the stack brace broke. The throttle arm broke about four times. There were several problems with the overheating, but the problems were finally repaired in May, 1973. Other problems were recurring and were never properly repaired even after many efforts by authorized Mack Truck dealers around the country. These included loss of engine power, difficulty with the clutch and transmission (which made it difficult to change gears after coming to a stop), problems with steering, and with the air conditioner.

The evidence showed that the Mack truck dealers willingly serviced the truck whenever Randy Givan brought it in with a problem. Most of the work was done without charge under the Mack truck warranty.

In total there were about 30 different occasions that something went wrong with the truck in the nine months that Randy Givan possessed it, and it was in repair shops for 107 days. Sixty of these days were attributed to the incident when the wheels fell off.

Randy Givan remained in possession of the truck until June 9,1973 when the turbocharger burned up in Laramie, Wyoming and the engine stopped running. The odometer read 51,500 miles at this time. Harris Truck and Trailer was notified and they retrieved the truck. It was towed back to Cape Girardeau and repaired. At the time of trial it was still in possession of Harris Truck and Trailer Sales. The attorneys filed a stipulation with this court following oral argument that the truck had been sold and all claims for deficiency against plaintiffs had been released.

In this court-tried case, we must affirm unless the judgment below is not supported by substantial evidence, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30[1] (Mo. banc 1976).

Mack Truck’s express warranty limits its liability to repair and replacement of defective parts. Mack Truck entitled this warranty “Standard Vehicle Warranty.” It reads:

“The Manufacturer warrants each new Mack motor vehicle sold by it or by any of its authorized distributors to be free from defects in material and workmanship under normal use and service, its obligations under this warranty being limited to repairing or replacing, as hereinafter provided, at its option any part or parts of said vehicle found to the Manufacturer’s satisfaction to be defective upon examination by it, . . ”

The disclaimer provision of its express warranty states in bold print:

“THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF THE MANUFACTURER.”

Our statutes and case law grant the right to limit remedies to repair and replacement of parts. § 400.2-719(l)(a); Russo v. Hilltop Lincoln-Mercury, Inc., 479 S.W.2d 211, 213[4] (Mo.App.1972). However, “where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter.” § 400.2-719(2). In this case, there were recurring problems with the steering, the engine losing power, the transmission, and the air conditioner, which were never satisfactorily repaired. The steering difficulty was present the first day the Givans took delivery of the truck. The steering problem was described by Randy Givan as follows: “You couldn’t depend upon making a turn with the steering. If you started into a turn, you could turn the wheel and it wouldn’t respond, it would turn but the wheels themselves didn’t want to respond, and then it would all of a sudden come around.” He took it in for repair about seven times, but it was never fixed. The problem with the transmission was described by Randy Givan as follows: “you just couldn’t shift the truck. Sometimes it would hang in reverse and you just couldn’t hardly get it out, and other times in fourth and fifth; it was very hard to shift.” There were also problems with the clutch which made it difficult to shift gears. This shifting difficulty was described by Randy Givan as: “you could put the clutch in and try to get it in gear, and if you didn’t just go ahead and ram it in gear, sometimes you just couldn’t get it into gear.” On about five occasions he put the truck in a shop to get the problem remedied. A third constant difficulty plaguing the operation of the truck was loss of engine power. The problem was worked on about nine times. At one point, in San Jose, California, the engine lost its power, and the accelerator linkage was sticking. The Mack truck dealer in San Jose refused to repair it under the warranty. Randy Givan continued driving by pulling up the accelerator with the side of his foot. Apparently the problem was never completely remedied. Other recurring problems included problems with the engine overheating. More than once it ov-erboiled, and Randy Givan would stop, let it cool, refill it with antifreeze and find the nearest Mack dealer. According to Randy Givan: “they would check it and say nothing was wrong.” It was worked on six times before it was finally corrected in May in Boise, Idaho. He paid $90.69 for installation of new thermostats there, but after ten miles it overheated again, so he returned to the Boise Mack truck dealer and had metal shavings flushed out of the radiator. This second procedure cost Randy Givan $55.75, which was 45% of the total bill. Another recurring problem was malfunction of the air conditioner, which “kicked out”; on one occasion it also leaked freon, and was recharged, but not repaired, which cost Randy Givan $15.18. It was worked on about six times but never satisfactorily repaired. Randy Givan made a list of these recurring problems and gave a copy to the Mack truck dealer in Cincinnati and another copy to Harris Truck and Tractor Sales. Since he lived in Cincinnati, he preferred to have warranty work done there when possible to save motel expenses.

For the most part, Randy Givan maintained the truck himself. He greased it and changed the oil and tightened nuts and bolts periodically.

When a manufacturer limits its obligation to repair and replacement of defective parts, and repeatedly fails to correct the defect as promised within a reasonable time, it is liable for the breach of that promise as a breach of warranty. Thus, the fact that the manufacturer in good faith attempts to repair the defect whenever requested to do so is not a fulfillment of the warranty; he must demonstrate that the defect is permanently remedied as promised in the express warranty. He can be liable for failure to fulfill the warranty obligation even if his failure to repair is neither wilful nor negligent. Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1371, n. 7[6] (8th Cir. 1977); Beal v. General Motors Corp., 354 F.Supp. 423, 427, n. 2 (D.Del.1973). Furthermore, the buyer is not bound to permit the warrantor to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. The limited, exclusive remedy fails of its purpose and is thus avoided under § 400.2-719(2) whenever the warrantor fails to correct the defect within a reasonable period; and when this occurs, all contractual remedies are available to the buyer.

We hold that Mack truck breached its express warranty by failing to repair within a reasonable time the recurring problems in the steering, the transmission, the loss of engine power, the air conditioning, and by “tinkering” so long before finally repairing the overheating. Since this is so, the limitation of remedy has failed of its essential purpose and all other contractual remedies are available. The most commonly applied formula for damages is stated in § 400.2-714(2) which gives the buyer “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted . . . See, J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 10-2. Other remedies available include the buyer’s incidental and consequential damages resulting from the breach, § 400.2-715. Incidental damages are costs “effecting” cover and any other reasonable expenses incident to the breach. § 400.2-715(1). Consequential damages are losses resulting from the buyer’s general or particular requirements and needs of which the seller had reason to know at the time of contracting and which could not be prevented by cover. § 400.2-715(2). See Kohlen-berger Inc. v. Tyson’s Foods, Inc., 510 S.W.2d 555, 560 (Ark.1974). The most commonly litigated and sought-after item of consequential damages is lost profits. J. White & R. Summers, supra, § 10-4 at 319.

When we examine the facts of this case in light of the stipulation filed by the attorneys, we find it difficult to award plaintiffs extensive damages. The “difference in values” measure of damages of § 400.2-714 is inappropriate where plaintiffs no longer have the truck and the balance due on it has been forgiven. Plaintiffs did not present evidence of their consequential damages, as they are required to do. § 400.2-715, Comment 4. Although loss of profits may be an appropriate measure of consequential damages, Randy Givan was unable to state that there was work available for him during the time the truck was in the shop. Although the Uniform Commercial Code “reject any doctrine that damages must be calculable with mathematical accuracy”, § 400.1-106 official comment 1, there must be a substantial basis for awards of lost profits, and speculation is not permissible. Coonis v. Rogers, 429 S.W.2d 709, 714[2] (Mo.1968). It would be pure speculation for us to award lost profits based on the evidence introduced. Randy Givan also seeks $1,850 as his out-of-pocket damages incident to the breach. However, $1300 of this amount was spent when the wheels fell off the truck and the truck was two months in repair shops. Evidence was introduced showing that this wheel incident was due to Randy Givan’s failure to keep the lug nuts on the wheels properly tightened, so this cost cannot be assessed against the manufacturer. This leaves $550 spent by Randy Givan. These expenses are itemized below. Of these expenses, about $200.00 was proximately caused by the breach of express warranty occasioned by Mack Truck’s failure to repair certain recurring defects when they had the first opportunities to do so. The other expenses of about $350 were related to repairs of non recurring defects under the warranty schedule. The $200 damages sustained by plaintiffs included $15.18 for the air conditioner repair; and both the $90.69 and $55.75 for work done to repair the overheating problem, plus about $40.00 in hotel bills when the overheating was repaired in Boise, Idaho. We hold that plaintiff has been damaged in the amount of $200.00 since these expenses were all occasioned by Mack Truck’s failure to repair these defects at no charge under the express warranty within a reasonable time. Although we have not ruled on whether Mack Truck failed to effectively disclaim its implied warranties of merchantability or fitness for a particular purpose, we do not feel that the remaining $350 spent by Randy Givan demonstrates that the truck was unmerchanta-ble or unfit for the purpose for which it was bought.

Accordingly, the judgment is reversed on the issue of liability since the trial judge erred in failing to apply § 400.2-719(2) to these facts. Murphy v. Carron, supra. We hold that Mack Truck breached its express warranty by failure to remedy certain recurring defects, and plaintiffs are entitled to a judgment for $200 as a result of the breach of the warranty.

The judgment is reversed and the cause remanded with directions to enter judgment in accordance with this opinion.

SNYDER, J, and ALDEN A. STOCKARD, Special Judge, concur.

      . While the main theory of plaintiffs’ petition is breach of implied warranty, there was substantial evidence as to the express warranty. Thus the petition is deemed amended. Rule 55.33(b).

      . There were 2,189 miles on the truck when it was purchased.

      . Mack’s standard vehicle warranty had a warranty schedule which warranted various parts for various time periods. The radiator schedule provided that Mack would pay 100% parts and labor for the first 12,000 miles within 1 year, and from 12,000-100,000 miles, the buyer’s cost of repair was prorated on unused miles, up to 100,000 miles in 1 year.

      . See, e. g., Matthews v. Ford Motor Co., 479 F.2d 399[3] (4th Cir. 1973); Courtesy Ford Sales, Inc. v. Farrior, 53 Ala.App. 94, 298 So.2d 26, 33 (1974); Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 148[4] (banc 1965); John Deere Industrial Equipment Co., Inc. v. Ponder, 135 Ga.App. 688, 218 S.E.2d 686, 687[2] (1975); Jacobs v. Metro Chrysier-Plymouth, Inc., 125 Ga.App. 462, 188 S.E.2d 250[3] (1972); Ford Motor Co. v. Gunn, 123 Ga.App. 550, 181 S.E.2d 694, 696[1] (1971); Alien v. Brown, 181 Kan. 301, 310 P.2d 923[4] (1957); Cox Motor Car Co. v. Castle, 402 S.W.2d 429, 431 (Ky.App.1966). See generally 77 C.J.S. Sales § 340.

      . See, e. g., John Deere Industrial Equipment Co. v. Ponder, 135 Ga.App. 688, 218 S.E.2d 686 (1975); Beech Aircrañ Corp. v. Flexible Tubing Corp., 270 F.Supp. 548, 564[31] (D.Conn.1967); Schroeder v. Fageol Motors, Inc., 12 Wash. App. 161, 528 P.2d 992, 995 (1974).

      . See, e. g., 77 C.J.S. Sales § 340; Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638, 644[9] (1969); General Motors Corp. v. Earnest, 279 Ala. 299, 184 So.2d 811, 814[3] (1966); Jorgensen v. Pressnali, 274 Or. 285, 545 P.2d 1382, 1385[6] (1976); Cannon v. Pulliam Motor Co., 230 S.C. 131, 94 S.E.2d 397, 400[4] (1956); Schroeder v. Fageol Motors, Inc., 12 Wash. App. 161, 528 P.2d 992, 995[4] (1974).

      . The official comment to § 400-2.719(2) explains: “. . . it is of the very essence of a sales contract that at least minimum adequate remedies be available. . . . [Ujnder subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this article.” Many other jurisdictions have found similar repair/replace remedy limitations in warranties to fail of their essential purpose when the defect is never repaired. See, e. g., Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1370[3] (8th Cir. 1977); Riley v. Ford Motor Co., 442 F.2d 670, 673 (5th Cir. 1971); Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428 F.Supp. 364, 381-82[29] (E.D.Mich.1977); Walker Truck Con., Inc. v. Crane Carrier Co., 405 F.Supp. 911, 919 (E.D. Tenn.1975); Beal v. General Motors Corp., 354 F.Supp. 423, 426[2] (D.Del.1973); Jones & McKnight Corp. v. Birdsboro Corp., 320 F.Supp. 39, 43-44 (N.D.Ill.1970); Earl M. Jorgensen Co. v. Mack Construction Inc., 56 Haw. 466, 540 P.2d 978, 986[16, 17] (1975); Adams v. J.I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1, 7-8 (1970); Bosway Tube & Steel v. McKay Machine Co., 65 Mich.App. 426, 237 N.W.2d 488, 490[2] (1975); Eckstein v. Cummins, 41 Ohio App.2d 1, 321 N.E.2d 897, 904[5] (1974); Ehlers v. Chrysler Motor Corp., 226 N.W.2d 157, 161 [7, 8] (S.D.1975); Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227, 229[1] (Tenn.App.1972). See generally 67 Am.Jur.2d Sales § 534, at 718-719; J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 12-10 at 382 (1972).

      . Furthermore, even if such measure were appropriate, plaintiffs failed to present any evidence of the value of a new 1972 Mack truck with the uncured defects, as the trial judge noted in the judgment.

      . On direct examination he stated, “Well, I couldn’t say exactly whether there was work available because when I have to call in to report that I have to go to the shop, then they take me out of service, so I can’t truthfully say that there was definitely work available.” He introduced evidence that he only made $16,-019.89 in the 9 months he drove the truck as compared to the average yearly earnings of $70,000 of drivers under similar type leases. However, we cannot assume he would have made $52,500 in that 9 months (3/t of $70,000) since cross examination showed that the $70,-000 figure varies greatly and depends upon many unknown factors. Furthermore, it appears the Givans have ultimately made money on the use of this truck. Testimony was elicited that the fair rental value of this truck was $150 a day. The Givans drove it nine months and paid only $4,259.92 (the down payment and one monthly payment). If they had rented it for that period of 252 days, (and not paid rent for the 107 days the truck spent in the shop), it would still have cost them $21,750.00. We are not to overcompensate the Givans, but are only to put the Givans in as good a position as if there had been no breach of warranty, § 400.1-106.

      .Randy Givan listed his expenses as follows: $177.76 for a new windshield on December 18, 1972; $33.60 to replace the heater core on March 18, 1973; $5.50 to replace the stack brace on the same date; $27.42 to replace a wheel seal and left rear drive axle, on April 27, 1973; $15.18 to recharge the air conditioner in May of 1973; $90.69 to install new thermostats on May 17, 1973; $55.75 to have the radiator flushed out on the same date; and $23.69 to replace a rotted air line also in May of 1973. These total $429.82; apparently the other $120 he claims he spent was due to motel and sundry expenses; he spent 3 days in Omaha, Nebraska getting an oil leak repaired, he had to buy 21 quarts of oil there to replace what had leaked, and spent 3 days in Boise, Idaho when the radiator was being repaired.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John Henry WARD, Appellant.
    No. 38631.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Robert C. Babione, Public Defender, John Putzel, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant was charged with carrying a concealed weapon in violation of § 564.610, V.A.M.S. His motion to suppress evidence was heard and denied. The jury found him guilty and the trial court assessed punishment at five years’ imprisonment. Defendant has appealed.

Defendant preliminarily contends the information is fatally defective because it contains no word indicating an intent to carry a concealed weapon. An indictment or information must be a plain, concise and definite statement of the essential facts. Supreme Court Rule 24.01(a), VAMR. Intent is a necessary element of the offense charged. State v. Carter, 259 Mo. 349, 168 S.W. 679[2] (1919); State v. Jones, 523 S.W.2d 152[8] (Mo.App.1975).

State v. Jordan, 495 S.W.2d 717[7] (Mo.App.1973), held intent may be inferred from the act of concealment. State v. Con-nor, 318 Mo. 592, 300 S.W. 685[2] (1927), held an information charging an act to have been done “unlawfully and feloniously,” as here, sufficiently implies the act was done “willfully” unless the statute defining the crime specifically makes willfullness an element thereof. Here the information charges defendant with “unlawfully and fe-loniously” carrying a concealed weapon upon his person. Accordingly, intent to do the act is inferred and need not be expressly stated.

Defendant’s principal contention is that the trial court erred in denying his motion to suppress evidence because the weapon was seized in violation of his Fourth Amendment rights.

The record shows police officer Haynes, assigned to a hospital receiving room, saw defendant enter the room and observed a bulge under his shirt which appeared to be the outline of a gun. At the hearing on the motion to suppress, officer Haynes testified he reached under defendant’s shirt, seized the gun and made the arrest.

We hold the trial court properly denied defendant’s motion to suppress since officer Haynes seized the weapon while making a valid “stop and frisk.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that in appropriate circumstances, a policeman may stop an individual for investigative purposes and may conduct a limited search for weapons in the absence of probable cause to arrest. Missouri courts have agreed. See State v. Johnson, 504 S.W.2d 23[1] (Mo.1973); State v. Sanders, 530 S.W.2d 749 (Mo.App.1975); State v. Taylor, 538 S.W .2d 761[4-6] (Mo.App.1976).

A comparable issue was before the court in Johnson, supra. There a patrolling police officer in a “high crime area” saw defendant in a retail store and observed a bulge at his waist that appeared to be a gun. The defendant was acting peacefully but declined to answer the officer’s questions. The officer then “patted” defendant, and when the bulge felt like a weapon he reached under defendant’s coat and found a revolver. In analyzing the admissibility of the weapon, the court distinguished a “stop and frisk” search from a search upon a lawful arrest, and held: “The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. ‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ he may conduct a limited protective search for concealed weapons.”

Here, officer Haynes saw the bulge in defendant’s shirt which appeared to be a gun. In the light of his observation an investigative stop was reasonable. Upon being questioned defendant claimed to be a policeman but could offer no valid identification. He then admitted he was carrying a gun. At that point, officer Haynes was justified in believing defendant was armed and acted reasonably in frisking defendant to protect himself and others in the receiving room. The gun was seized pursuant to a valid “stop and frisk” and the trial court properly denied defendant’s motion to suppress.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    Cornelius C. MATTINGLY et ux., Appellants, v. ST. LOUIS COUNTY, Missouri, Respondent.
    No. 39364.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.
    Sleater & Sleater, W. W. Sleater, Clayton, for appellants.
    Thomas W. Wehrle, County Counseler, Dennis K. Morgan, Associate County Coun-seler, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Plaintiffs’ three-count petition, sounding both in tort and inverse condemnation, was dismissed for failure to state a claim and plaintiffs have appealed. We find the petition insufficient in tort, but sufficient as to inverse condemnation. Accordingly, we reverse and remand.

Common to each count are plaintiffs’ allegations they own or have prescriptive rights in a described tract of land, that defendant in its proprietary capacity constructed a public roadway and in doing so excavated soil “within the cone of support of plaintiff’s property” thereby impairing its lateral support, all to plaintiffs’ damage. Those were the basic allegations of Count I whereby plaintiff sought $20,000 damages.

By Count II plaintiffs further alleged defendant was negligent in specified particulars by removing plaintiffs’ lateral support, and sought $20,000 damages.

By Count III plaintiffs adopted Counts I and II, asserted their prescriptive rights to the realty and sought $20,000 damages.

We look first to plaintiffs’ Count II, charging negligence. Defendant St. Louis County, being a political subdivision of the State, is immune from tort liability. Payne v. County of Jackson, 484 S.W.2d 483 [1, 2] (Mo.1972); Wood v. County of Jackson, 463 S.W.2d 834 [1, 2] (Mo.1971). In opposition to this, plaintiffs cite Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.1977). That case, abrogating sovereign immunity prospectively from August 15, 1978, is patently inapplicable to plaintiffs’ prior claim of negligence. The trial court properly dismissed Count II.

Viewing Count I liberally, as we must on a motion to dismiss, we find it does state a cause of action for inverse condemnation. In Page v. Metropolitan Sewer District, 377 S.W.2d 348 [11-13] (Mo.1964), the court held: “. . . considering the facts alleged in the petition, which indicate that appellants’ property was taken (or damaged) and that such taking or damage was inflicted by the state, for a public use, it is not amiss to suggest the possibility of proceeding under the procedure sometimes referred to as condemnation in reverse or inverse condemnation, under the constitutional provision, Article I, Section 26, ‘That private property shall not be taken or damaged for public use without just compensation.’ ” Again, in Twiehaus v. Wright City, 412 S.W.2d 450 [5-8] (Mo.1967), the court held: “If property is taken or damaged without agreement or legal proceedings, one of several remedies of the owner is that ‘he may waive the tort and sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry.’ ” The trial court erred in dismissing Count I.

Count III also alleges inverse condemnation, but further adopts the allegations of Count II based on negligence. Since the trial court properly dismissed Count II, the reference to negligence is no longer a part of Count III. So considered, Count III does state a cause of action and the court erred in dismissing it.

In sum, the trial court properly dismissed Count II, but erred in dismissing Counts I and III, the inverse condemnation counts. The cause is remanded with direction to the trial court to proceed accordingly.

SMITH and McMILLIAN, JJ., concur.


author: McMillian, judge.

text:
    Jasper C. PARRIS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 39753.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Jasper C. Parris, in pro. per.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent-respondent.
   McMillian, judge.

Appellant appeals from an order of the circuit court denying his request for Rule 27.26, V.A.M.R. relief. For reasons hereinafter given, we reject appellant’s claim and affirm the judgment of the trial court.

Briefly we note the checkered existence of this case: appellant was found guilty of murder in the second degree on October 15, 1971, and was sentenced to fifteen (15) years imprisonment. Our supreme court affirmed this judgment of conviction in State v. Parris, 506 S.W.2d 345 (1974). On October 10, 1974, appellant filed a Rule 27.26, V.A.M.R. motion to vacate, set aside, or correct his judgment and sentence. His theory in his amended motion alleged that he had been denied effective assistance of counsel. This for the reason that his attorney failed to request a mental examination, and further because his attorney failed to inform the court that appellant had been hospitalized and treated for depressive neurosis prior to trial.

After an evidentiary hearing, the trial court denied appellant’s motion. In so doing, inter alia, the court stated,

“Counsel had no basis for seeking a further psychiatric examination of petitioner. The defense of insanity could not have been sustained and it would have detracted from the obvious and more believable defense of accident which was consistently but unsuccessfully relied upon.”

In Parris v. State, 545 S.W.2d 380 (Mo. App.1976), our court affirmed the judgment of the trial court on the above issues.

The present petition asserts three grounds for relief:

“(1) Petitioner was denied effective assistance of counsel becose (sic) his attorney failed to raise mental defects as a defense.
“(2) He was denied effective assistance of counsel because his attorney did not make a motion for a psychiatric examination.
“(3) The trial judge erred by limiting the testimony of petitioner’s psychiatrist in order to save the court time.”

A complete answer to appellant’s first two allegations is Rule 27.26(d) which states, inter alia, where grounds presented in the subsequent application were raised and determined adversely to the applicant on the prior application, the court should not entertain the second motion. Here appellant’s first two contentions were raised and denied in his first 27.26 motion. Parris v. State, supra. Consequently, the court committed no error in this regard. Insofar as appellant’s last claim that the court unduly restricted D.r. Duane Hagen’s testimony, appellant has failed to sustain his burden of proof in this regard.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . While appellant has captioned his appeal as one denying his petition for a writ of habeas corpus, we treat substance and not form. Therefore, we review the appeal as the denial of appellant’s Rule 27.26 motion. See Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. banc 1976); cf Green v. State, 494 S.W.2d 356, 357 (Mo. banc 1973).


author: STEPHAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory SYKES, Defendant-Appellant.
    No. 38827.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 30, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      Paul E. Corning, Jr., Clayton, for defendant-appellant.
    Gregory W. Schroeder, Stanley Robinson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   STEPHAN, Judge.

Defendant Gregory Sykes appeals from a conviction of robbery in the first degree. Pursuant to the jury’s verdict, the circuit court sentenced him to imprisonment for a term of five years. He contends that the trial court erred in (1) failing to grant his motion for acquittal at the close of all the evidence and his post-trial motion to set aside the jury verdict; (2) failing to submit an instruction on the lesser-included offense of stealing; and (3) refusing to declare a mistrial after the prosecutor asked him if he told the officers who arrested him that the gun he used was a toy rather than a real weapon. Upon review of these allegations, we affirm.

The robbery in question occurred on March 8, 1976, in a Quick Shop market in St. Louis County. Two clerks were on duty at the time: Leonard Grinstead and Patricia Herring. Grinstead testified that he was “more or less” in charge of the cash in the store because he “had the combination to the safe.” Defendant entered the store and, after purchasing a jar of fruit juice which Grinstead placed in a bag, defendant pulled his jacket aside and partially withdrew a small handgun from his pocket. Grinstead testified he “knew for certain (defendant) was pulling a gun.” Grinstead asked defendant if he wanted the money from the cash registers and the safe. (There is some question as to whether Grin-stead or the defendant was the first to mention the safe.) Patricia Herring and a customer who entered the store at this time were ordered by defendant to go into a walk-in cooler, while Grinstead emptied the registers and the safe and placed the money in the bag. Grinstead testified that he was nervous and that “I felt I should give him whatever he asked for because I knew he was armed.” At defendant’s order, Grin-stead entered the cooler. When he emerged a short time later, defendant and the money were gone. Patricia Herring did not testify.

In his defense, Gregory Sykes testified that he intended to carry out the robbery pursuant to a plan devised by Patricia Herring’s husband to pay for a new apartment for the Herrings. Defendant was to go to the Quick Shop where Mrs. Herring worked and she was to turn the money over to him. However, when he found a man (Grinstead) rather than Mrs. Herring behind the counter, defendant was forced to change the plan and carried out the robbery as described above. Because of Grinstead’s calm, cooperative manner, defendant came to believe that he too was aware of the plan, although he had previously been told by the Herrings that Grinstead should not be made aware that this was an “inside heist” and that Mr. Herring could not play the role of the robber because Grinstead was acquainted with Mr. Herring. Defendant further testified that the “gun” he was carrying was, in fact, a toy cap pistol.

First degree robbery is defined in § 560.120, RSMo 1969, to include the felonious taking of another’s property “against his will, by violence to his person, or by putting him in fear of some immediate injury to his person.” Defendant contends that the evidence produced by the state was insufficient to support a conviction of first degree robbery in that it shows that he “did not intentionally say anything or do anything intended to cause either of the employees to be in fear” and that he did not believe the taking to be against the will of Mrs. Herring or Grinstead.

Defendant’s first argument is without merit. Under these circumstances, the exhibition of what appears to be a deadly weapon, with or without a verbal threat, can only be interpreted as a threat of violence and an attempt to induce a fear of the consequences of a failure to comply with the exhibitor’s wishes. The second argument is also without merit. It is irrelevant that, at the time he actually took control of the money, defendant may have come to the conclusion that Grinstead was acting in complicity in the staged robbery. First degree robbery is not a crime of specific intent. State v. Kennebrew, 380 S.W.2d 293, 295 (Mo.1964); State v. Stinson, 379 S.W.2d 545, 547 (Mo.1964). It is sufficient here (coupled with the other necessary elements of the crime) that defendant’s actions did, in fact, put Grinstead in fear of immediate personal injury.

State v. Keeney, 425 S.W.2d 85 (Mo.1968) bears many factual similarities to this case. There, the evidence was that the defendant entered a candy store with his hand in his coat pocket; he pushed his pocket up and directed the clerk to give him the money from the cash register. Believing he had a gun in his pocket, she complied. She had been through three prior robberies; and, when asked if the man’s conduct made her fearful, she responded “Well, it isn’t a wonderful feeling.” Id. 87. Arrested within minutes, the man was found to be unarmed. As in this case, it was argued that the evidence could not support a conviction of first degree robbery and that it was error to fail to instruct on the lesser offense of stealing. After reviewing the facts, the court dismissed both arguments saying, at page 89:

“These circumstances reasonably permit an inference of fear of immediate injury in Mrs. Miller pursuant to which she gave money from the register to appellant. * * * That she complied with her assailant’s demand is indicative of her fear of consequences which reasonably could result from failure to accede to the demand, and there is no evidence suggesting that she would have handed over her employer’s money had she not been motivated by fear.”

In Keeney, the appellant attempted to distinguish cases which involved displayed guns and audible threats of violence such as State v. Ray, 354 S.W.2d 840 (Mo.1962) and State v. Thompson, 299 S.W.2d 468 (Mo. 1957). Such efforts were rejected by the court’s expression of views with which we agree:

“Those cases did involve guns, but the principles cited from those cases are applicable here; and, contrary to appellant’s assertion, Missouri has held that robbery in first degree ‘might be accomplished without an assault by putting him (victim) in fear of personal injury when there was no actual possibility of it, as where the robber flourishes a harmless imitation pistol or falsely pretends to be pointing a pistol supposedly concealed in his pocket.’ State v. Medley, 353 Mo. 925, 185 S.W.2d 633, 634[1, 2]; State v. Scarlett, Mo., 291 S.W.2d 138, 141[6].”

Keeney, 89.

We do not believe the evidence in this case would permit a finding of any crime other than first degree robbery, as defendant maintains in his second point. By defendant’s own admission at trial, Grinstead was not a part of the plan. Given that fact, Grinstead’s actions if not his manner evince no motive other than fear. Regardless of what the offense would have been had the robbery been staged as originally conceived, it could only be first degree robbery as it was actually carried out. The trial court was, therefore, correct in not instructing the jury on a lesser offense. State v. Keeney, supra, 89[4]; State v. Thompson, supra, 474; State v. Long, 539 S.W.2d 592, 595[7] (Mo.App.1976).

Finally, defendant contends that the trial court erred in failing to declare a mistrial when the following exchange occurred during cross-examination of defendant:

“Q (by Mr. Robyn): When you were arrested did you tell the officers that that was a toy gun?
A They never asked me.
Q Did you tell?
MR. GOODLOE: I’ll object, and ask for a mistrial, that a mistrial be declared. The prosecutor knows that a defendant has absolutely no obligation to make any statements to the police officer, and that that question violates my defendant’s constitutional rights to remain silent. I am asking for a mistrial at this time.
THE COURT: Objection will be overruled. And your request for a mistrial will be denied.
Q (by Mr. Robyn): Did you tell the officers it was a toy gun?
MR. GOODLOE: I’ll object to that on the ground—
THE COURT: I already overruled your objection. You may answer, sir.
A No, because they never asked me. They never did ask me about the gun.”

The Missouri Supreme Court has stated that “ . . . the silence of an accused while under arrest is not admissible against him because he is under no duty to speak. . We now hold that an accused’s failure to volunteer an exculpatory statement is not admissible as an admission; that it may not be shown that by his silence he failed to deny or explain while under arrest an incriminating fact as to which no question was asked.” State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970).

We do not believe, however, that the prosecutor’s questioning requires reversal in this case. This is not a case in which a prosecutor was permitted to make reference to defendant’s failure to deny his guilt or his failure to explain seemingly incriminating facts at the time of, or after, his arrest. Here the prosecutor asked defendant whether he had told the arresting officers that he had been carrying a toy gun during the robbery. The most that a jury could possibly infer from this question and defendant’s answer that he had made no such statement is that defendant had actually been carrying a real gun, a fact in no way decisive of this case. Under such circumstances, the principle articulated in Stuart, supra, is inapplicable. State v. Elmore, 467 S.W.2d 915, 918 (Mo.1971); State v. Turn-bough, 497 S.W.2d 856, 859 (Mo.App.1973). See also State v. Hams, 515 S.W.2d 789, 791 (Mo.App.1974). In Stuart, supra, 22, “the sufficiency of the State’s case” depended upon the very fact on which it was shown that the defendant had elected to remain silent at the time of his arrest. From the fact of his silence, the court said, the jury could have inferred an admission of guilt.

Such is not the case here. As was demonstrated in connection with the discussion of the first two points, the issue whether the gun was a toy or a real weapon was immaterial; the decisive fact is whether Grinstead’s perception of it as a weapon could be found to have put him in fear. In summary, although an arrested person’s failure to volunteer an exculpatory statement may not be used against him, if the gun admittedly displayed by this defendant was a toy, such fact would not exculpate defendant: the jury could nevertheless have found him guilty of robbery in the first degree.

Affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . In a signed statement, the voluntariness of which is not an issue in this appeal, Sykes wrote: “I parked the car in front of the, (sic) got by the restaurant and went in and said ‘the (sic) is a robbery, open the safe and empty the cash register.’ I told the people to get in the icebox, and then I left.”