author: NORWIN D. HOUSER,

text:
    STATE of Missouri, Respondent, v. Brad Ellis REYNOLDS, Appellant.
    No. 38296.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 13, 1977.
    L. W. Boschert, St. Charles, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Crim. Div., Michael H. Finkelstein, Asst. Attys. Gen., Jefferson City, James G. Gregory, Pros. Atty., Montgomery City, for respondent.
   NORWIN D. HOUSER,

Special Judge.

Brad Ellis Reynolds, found guilty of second degree burglary and stealing and sentenced to concurrent 2-year terms on each charge, has appealed. He contends (1) there was insufficient evidence upon which to base a conviction and (2) the trial court erroneously admitted in evidence acts and declarations of an alleged coconspirator implicating this appellant, without proof of a conspiracy; that the coconspirator’s alleged acts and statements were not made under oath, were not subject to cross-examination, and were made outside appellant’s presence, all in contravention of the hearsay rule and appellant’s constitutional right of confrontation.

(1) On the sufficiency of the evidence

Between 9:30 and 10 p. m. on April 17 Paul Angel discovered that a burglary had occurred at his barn located off Highway 19 two and a half miles south of Wellsville. Missing from the locked inner room inside the barn, which had been broken open, were two acetylene gas welding tanks and cart, a welder’s mask, a gas welder, a tip of a torch, a tool chest, toolbox, a drawer of miscellaneous tools, a wheel and a motorcycle shield. A pickup truck, license number 7J3818, was parked in front of Angel’s property. Angel drove to Wellsville, located sheriff deputies Covington and Whyte and reported the burglary. The officers accompanied Angel to the scene. The pickup truck was no longer parked in front of Angel’s house when he and the officers returned. Search of the premises disclosed the missing tool chest, which had been removed from the barn, lifted over a fence between the barn and road, and abandoned near the fence. Angel could not lift the tool chest by his own efforts because it was too heavy. He and his grandson carried it back into the barn. A neighbor, driving past a point on the road one and a half miles west of Angel’s farm at 6:10 on the morning of April 18, saw the welding tanks, cart and some of the missing tools lying in the ditch on the right side of the road. He picked up these items, put them in his pickup truck, informed Angel, and later turned them over to the sheriff’s office. He had not observed these items as he passed there at 4:30 on the afternoon of April 17. At about 11:20 p. m. on April 17 Deputy Cov-ington found the pickup truck, license number 7J3818, wrecked, standing in a fence row four and a half miles south of Montgomery City, headed toward that city on the road which led into the city on Pickering Street. The officers found Angel’s toolbox, lying in a fence row at the scene of the wreck, ten to fifteen yards from the pickup. Deputy Sheriff Creech, notified that evening that the pickup truck had been located, started from Montgomery City traveling north toward the scene of the wreck. He drove to Route 161, turned north on Pickering Street, and there at about 11:30 p. m. he encountered appellant and Mike Rohmann, walking fast or trotting, proceeding south on Pickering. Interrogated, they said they had “lost” a truck and were searching for it. Deputy Creech picked them up and took them to the scene of the wreck. Appellant had a cut on his face, a small cut across the nose, a cut finger, and there was blood on his glasses and little patches of blood on his clothing. Appellant told Deputy Creech his face was bloody because he had a nosebleed. Rohmann was limping on one foot, and had cuts on the legs of his britches. At the sheriff’s office on the morning of April 18, after having been given Miranda warnings, appellant told Deputy Covington that he had been with Rohmann the entire night of April 17, from 9:00 o’clock on. On that morning Deputy Creech had a discussion with Rohmann in which Rohmann related that he and appellant had been together all evening on April 17 between 9:00 o’clock p. m. and the time he and appellant were picked up by Deputy Creech. The officer told Rohmann he was interested in getting the property back and would like it if Roh-mann would show Creech “where it was so that [they] could return the property” the owner had lost. After that conversation Deputy Creech and Rohmann drove first to the place of the accident, then to the scene of the burglary. Starting from the latter place, Deputy Creech and Rohmann drove over a route through various country roads described at the trial by the deputy. Finally Rohmann directed Creech to stop, saying “I think this is the place.” He directed the officer to “back up.” They stopped, got out of the police car, and there Rohmann found a wheel, a chisel and a tip of a torch (items missing from Angel’s barn).

Mike Rohmann did not testify.

Appellant testified as follows: He and Rohmann were operating a borrowed pickup truck in Montgomery City about 9 p. m. on April 17. Appellant suggested to Roh-mann, who was driving, that they go to Wellsville to check on some parts for his car. On the way and about 9:15 p. m., when they were still close to Wellsville, the truck “quit” because of electrical trouble. They walked to Wellsville to a filling station for help, passing the station at 10 o’clock p. m. Finding no one to help them, they walked back, intending to fix the truck themselves. The pickup truck was gone when they returned. They decided to walk the gravel roads in an effort to find the pickup truck. They did walk “quite a ways,” finally reaching Montgomery City, where they saw Deputy Creech, who hailed them. They reporting missing a pickup truck. The officer said he had a call on a truck and invited them to go with him to see if it was their truck.

At trial appellant denied he had been in the pickup truck at the time it was wrecked. He said the cuts on his face, etc. were caused that afternoon when a jack handle flew off and hit him in the face; that his scratched knuckles resulted from “pulling the car (at Mr. and Mrs. Boyer’s place) out there and trying to get the air in the tires and stuff like that.” He accounted for Rohmann’s limp by claiming Roh-mann sprained his ankle in a physical education class at high school. He denied participation in the burglary. He admitted that three weeks before the burglary he and Rohmann had been at the Angel farm “to see about a pickup truck.” On that occasion he saw other motor vehicles there. Appellant’s father operates a body shop. Appellant does body work; works on automobiles. He testified that cutting torches and tools are used in body work.

There is sufficient circumstantial evidence for a jury to find that appellant, acting in concert with Mike Rohmann, being interested in automobiles, automobile parts, and tools and appliances useful in appellant’s work of automobile body work, and having knowledge from a previous visit that such things were kept at the Angel farm, borrowed a truck and went to Angel’s at a time when Angel was not at home, broke into the inner room of the barn, removed the lighter, smaller items described and placed them in the pickup truck, removed a portable air tank from the inner room in the barn and deposited it in the hallway of the shed, ready to be carried later to the truck; that the tool chest, too heavy for one person to lift, was carried by both appellant and Rohmann from the barn and lifted over the fence, on the way to the truck; that they were interrupted by the return of Paul Angel; that they abandoned the tool chest, leaving it near the fence; that after Angel went to report the burglary appellant and Rohmann left the scene, drove the pickup truck to a point a mile and a half west of the farm, where they discarded the tank cart and other items, throwing them beside the road; that they proceeded on in haste, overturning as they rounded a-curve; that other articles belonging to Angel, later found near the wrecked truck, were thrown out of the truck; that in the course of the wreck they sustained the personal injuries observed by the officers later that evening; that the wreck occurred somewhere between 10 and 10:30 p. m., four and a half miles from Montgomery City; that notwithstanding their injuries they could walk; that after the wreck the two walked to Montgomery City; that in their condition it took them slightly more than an hour to walk that distance; that they encountered Deputy Creech at about 11:30 p. m.; that the average walking speed of a person is 4 or 5 miles per hour.

Appellant’s testimony raises unresolved doubts. Appellant testified that the borrowed truck “quit” due to mechanical trouble; that he and Rohmann tried unsuccessfully to fix the trouble, and that he and Rohmann walked to Wellsville, where they went to a filling station seeking assistance, at about 10 p. m. Appellant’s testimony does not jibe with Angel’s testimony that as Angel traversed that same road, both going to and coming from reporting the burglary to the authorities, Angel saw no one on the road. Unexplained is the failure of the officers, who were at and about the filling station at 10 p. m., to see or encounter appellant and his companion. Appellant testified that when he and Rohmann failed to get help at the filling station they returned to the place where they had left the truck, but it was no longer there. Unexplained is how an inoperable truck was able to move from the place where they had left it parked, to the place where it was found in a wrecked condition. Appellant testified that upon discovery that the truck was missing the two men started walking around through the countryside looking for the truck. Unexplained is why they did not report to the authorities that the truck was missing, instead of making an unnatural, unusual nocturnal search on foot. Appellant was with Rohmann all evening. They were operating this truck together. The evidence is overwhelming that the stolen goods were carried away from Angel’s place in the pickup truck being operated that evening by appellant and Rohmann. Some of the stolen items were recovered in the immediate vicinity of the truck. Unexplained is how those stolen items got there if not through the agency of appellant and his companion.

The circumstances proved by the State are consistent with each other and inconsistent with any reasonable theory of appellant’s innocence. There was sufficient evidence from which the jury could find that appellant, acting in concert with Rohmann, knowingly and with a common purpose, burglarized the inner shed in Angel’s barn and stole the articles in question.

(2) Inadmissible acts or declarations of coconspirator?

The testimony objected to at trial and which forms the basis of appellant’s second point is the testimony of Deputy Creech (a) that on the morning of April 18 he had a discussion with Rohmann in which Roh-mann told him that he and appellant had been together all evening, and (b) that responding to his request that Rohmann show where the (stolen) property was, Rohmann accompanied the officer to the spot where several of the stolen items were found. The objection at trial was that this called for hearsay testimony, was irrelevant and immaterial, and that there had been no showing of a conspiracy.

(a) With respect to the testimony of the officer that Rohmann stated upon inquiry that he and appellant had been together all evening: Appellant is in no position to complain about the admission of this obviously hearsay testimony, because appellant himself took the stand and on direct examination testified freely concerning his whereabouts and peregrinations during the evening in question, from beginning to end, in great detail, in the course of which appellant demonstrated that at all of the times and places mentioned and continuously he and Rohmann were together. On cross-examination appellant testified as follows: “Q You were with Mike Rohmann from approximately 8:00 o’clock p. m. on the night of April 17, 1975 until you were stopped by Mr. Creech, is that correct? A Yes, sir. Q Mr. Rohmann was not out of your sight during that time? A No, sir.” In view of appellant’s own direct testimony as to this fact appellant could not have been prejudiced by hearsay evidence of the fact. “Appellant may not be heard to charge prejudice on account of testimony produced by appellant’s own counsel.” State v. Mayo, 559 S.W.2d 264 (Mo.App.1977).

Appellant argues, however, that there is no evidence that appellant knew Rohmann’s intention to commit a burglary that night and no proof that appellant planned, participated or “had anything to do with the alleged crime”; that mere presence is insufficient to establish a conspiracy. There is more than mere presence. There is strong circumstantial evidence that the heavy tool chest was carried from the barn to and over the fence, a feat which under the evidence required the joint act of two people and could not have been accomplished by one person acting alone. From this evidence, taken in conjunction with the other facts and circumstances shown, the jury could infer appellant’s connection with the burglary and stealing.

(b) With respect to Rohmann’s acts and declarations leading the officer to three items stolen from Angel’s barn, appellant seeks to invoke the following rule: “Generally it is said that after the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.” State v. Chernick, 280 S.W.2d 56, 59-60 (Mo.1955). The rule has its exceptions. For instance, it may be shown that any one of the coconspirators was in possession of the fruits of the crime, or the weapon or instrument with which the crime was committed. State v. Tripp, 303 S.W.2d 627, 632[6] (Mo.1957); State v. Costello, 252 S.W. 727 (Mo.1923). An illustrative case is Catching v. State, 364 S.W.2d 691 (Tex.Cr.App.1962), an abortion case in which, over appellant’s objection, the state was permitted to show that the day after the alleged abortion the officers went to the garbage dump in Texas City and, acting upon instructions given by one Forehand, a cocon-spirator, there they found the fetus of a male child in a plastic sack wrapped in plastic. After stating the exception in cases involving the possession of the fruits of the crime, or the weapon or instrument used, the court said, 364 S.W.2d l. c. 695: “The fact that Forehand assisted the officers in finding the fetus did not render evidence of such discovery inadmissible. The finding of the fetus did not tend to criminate the appellant, * * Fully applicable here is the exception in burglary cases rendering admissible declarations and acts of one of the coconspirators leading to a finding of the property claimed to have been stolen. 22A C.J.S. Criminal Law § 767 e., p. 1151. In this connection we endorse what the court said in Sims v. State, 95 Tex.Cr.R. 164, 253 S.W. 278 (1922), a burglary case, wherein one Vickers, an accomplice of appellant, after being jailed, went with three officers to certain places where the stolen goods were found, as applicable to the case before us. Over objection Vick-ers and the officers were permitted to testify that Vickers went with the officers and. directed them where to go, and that they found the stolen property. In ruling the testimony admissible the court said, 253 S.W. 1. c. 281-282: “It could hardly be claimed that the declarations or acts of one coconspirator in revealing to the officers the whereabouts of stolen property were in pursuance of the common design actuating" him and his fellows in the commission of the theft or burglary by which said property was acquired. Such acts or declarations could not have for their purpose the furtherance of a common design, but would seem to be in derogation thereof. The admissibility of the testimony under consideration does not seem referable to the above rule. What was done by the officers in searching for and recovering the stolen property is admissible in the development of the case. We see no sort of distinction between testimony of the acts of others in this regard and that of the acts of Vickers. * * * In Funk v. State, 84 Tex.Cr.R. 402, 208 S.W. 509, it is made to appear that an officer testified that he went with two participants in the alleged crime and under their direction to a certain culvert, where he found certain pistols and cartridges which were identified at the trial as those used in the homicide. This testimony was held admissible. * * * Bearing in mind that Vickers was with the officers all the time during the search for and recovery of the stolen property, their statements that Vickers showed them, or that he directed them, were not necessarily a relation of anything said by Vickers, nor does anything appear in the testimony relative to the search for and recovery of the property which by any course of reasoning or from any standpoint can be taken to more than properly develop the transaction. It does no more than develop the crime, and does not point to the defendant as a guilty participant therein, and can in no sense be said to be injurious to him. * * * The objection to the testimony of Vickers to the fact that he went with the officers and directed them, or that he said he told them where to go, has no force, in view of the fact that Vickers was with the officers in all of their search, and his testimony on this point contains a narration of no fact aiding or lending force to the proposition of the guilty connection of the accused with said property.”

Cases cited by appellant, of which State v. Newell, 462 S.W.2d 794 (Mo.1971), is illustrative, are inapposite. In Newell the coparticipant’s statements and declarations demonstrated clearly that the accused was guilty of the crime alleged; they were “crucial and devastating,” and the jury may have inferred that the statements were not only made but also that they were true. In contrast, nothing Rohmann is related to have said or done on the morning of April 18 named appellant, connected appellant with the crime, or criminated him individually. Appellant was not prejudiced by this testimony.

Appellant makes the further contention that he was deprived of an opportunity to cross-examine Rohmann by the failure of the State to endorse Rohmann’s name on the information and to subpoena or produce him in court as a witness. Appellant had an equal opportunity, but he made no effort to avail himself of Rohmann’s testimony. Perhaps the reason neither side called Roh-mann as a witness is to be found in the statement of counsel for appellant in open court during a posttrial hearing: “ * * * I was informed by [Rohmann’s] attorney that he would take the Fifth Amendment on all questions * * *.” In any event, there is no obligation on the part of the state, to produce any particular witness.

No error appearing, the judgment of conviction is affirmed.

SIMEONE C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ernestine WEBB, Appellant.
    No. 37902.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 13, 1977.

      Harris, Kirksey & Thomas, Allen I. Harris, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Robert Paul 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.

This is a “pigeon drop” case. The state charged defendant Ernestine Webb, alias “Mildred,” with violating the confidence game statute, RSMo. § 561.450. After a guilty verdict the trial court imposed a one-year jail sentence and defendant has appealed.

Two issues are raised. Defendant challenges the state’s information, contending it is fatally vague, and contends the trial court erred in admitting demonstrative evidence seized from her motel room. We look first to the information, with our emphasis on the challenged portion:

“THAT ERNISTINE TODD WEBB also known as ‘MILDRED’ ACTING WITH ANOTHER in the City of St. Louis/State of Missouri, on the 22 day of July 1974 did unlawfully and feloniously steal by means of certain false pretenses and deceit, to-wit: by pretending to have found ten thousand dollars lawful money of the United States in an envelope, which pretenses were made to CORENE CRESEWELL (sic) and were known to be false and untrue by the said ERNISTINE TODD WEBB also known as ‘MILDRED’ and CORENE CRESEWELL (sic) relying on said false statements, pretenses and deceit thereby was induced to part with approximately one thousand three hundred and ten dollars lawful money of the United States, with the felonious intent then and there to steal and permanently deprive the owner of the use thereof and convert the same to her own use and use of another by means of deceit; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

Defendant argues the information is unclear as to who stole the money and from whom it was stolen. We are urged to read the information as if it stopped with the name “CRESEWELL.” So read, and without a comma after the name “MILDRED,” defendant’s argument might stand. But reading on, the words “relying on said statements” make it clear Corene Creswell is the victim, not another accused. The trial court commented that the information was “not artfully drawn” but denied defendant’s motion to dismiss.

Hodges v. State, 462 S.W.2d 786[1] (Mo.1971), holds an information must state essential facts constituting the offense charged, must adequately notify defendant of the charge and must constitute a bar to further prosecution. The information here meets that test. We so decide in the light of State v. Fields, 366 S.W.2d 462[3] (Mo.1963) holding: “The term ‘confidence game’ cannot easily be defined so as to cover all the cases falling within it, since schemes devised for the swindling of others ‘are as various as the mind of man is suggestive’; the term has a relative and variable meaning, each case depending on its peculiar circumstances.” We deny defendant’s first point which we conclude is specious. As said, defendant also claims the court erred in admitting items seized in her motel room. Since this raises an issue of probable cause, we state facts concerning the confidence game.

Victim Corene Creswell was on a grocery-store parking lot when defendant introduced herself as Mildred, showed identification, and said she was making a survey. As they were talking, Ida Wilson, defendant’s confederate purporting to be a stranger, interrupted to ask if they had seen a man drop “this packet I picked up.” Defendant said she had seen it and Ida told her the envelope contained money; defendant counted it and said it contained $10,000. Ida said she worked at a bank and knew lost money could be traced by serial numbers. To avoid this, Ida suggested that if the three of them could raise $10,000 in other money of their own they could take their “clean money” to the bank for inspection and divide the found money equally.

Ida gave defendant an envelope which she said contained $5,000 she had been saving to buy a house. The three women then drove to Mrs. Creswell’s house and she gave defendant $1,310 in money. Defendant then left Mrs. Creswell with Ida, saying she was going to the bank to have the new money inspected. When defendant did not return, Ida became restive and Mrs. Cres-well suspicious. Ida tried to run away but Mrs. Creswell grappled with her roughly and partly disrobed her. Police arrived and arrested Ida. At jail, Ida had only her undergarments and asked to make a phone call to Room No. 6 at the Rainbow Motel in East St. Louis to have some clothes brought to her. By then Mrs. Creswell had given police a description of defendant — by age, complexion, attire and her light-colored car with a Texas license. Instead of making the telephone call police went to East St. Louis and contacted local police.

At the motel the police found defendant’s car, as described by Mrs. Creswell, and at the door of Room No. 6 overheard conversations about not worrying because bondsmen were on the way. As the police entered they saw a purse on a chair by the door. They found defendant, dressed as described by Mrs. Creswell, and a man who threw a tablet into a closet; police arrested both. On the tablet was written a “pigeon drop” plan and with it were some packets of play money. Inside the purse police found the driver’s license defendant had shown Mrs. Creswell and also $620 in money. All of these items were received in evidence.

At trial defendant first objected to the written “pigeon drop” plan and the play money. The objection was overruled on the ground the items were found in plain view. Defendant also objected to introducing the contents of her purse and this was also overruled on the ground the seizure was incident to a lawful arrest based on probable cause. These two points in turn.

We make a threshold determination that there was probable cause for the arrest. State v. Maxwell, 502 S.W.2d 382[1] (Mo.App.1973), holds “Probable cause consists of the facts available to officers at the moment of the arrest, and whether at that time such facts would warrant a man of reasonable caution in believing that an offense had been committed, and whether at that time the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man into believing that the movant had committed or was committing an offense . . . It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.”

Here, officers had information from Mrs. Creswell that her money had been stolen in a “pigeon drop” scheme in which one woman had been caught and another named Mildred (defendant) had gotten away. Mrs. Creswell had described Mildred and her car in detail. The officers knew Ida had been caught and had asked to call Room No. 6 of the Rainbow Motel to get clothing. When the Missouri officers arrived at the motel they saw a white Plymouth bearing a Texas license plate. The motel operator told them this car had just recently returned. Outside of Room 6 the officers heard the conversation about bondsmen being on the way. At this point an officer knocked and one of the occupants opened the door.

Maxwell supports the state’s theory of probable cause to make the arrest. The officers, acting as reasonable and prudent men — not legal technicians — had probable cause to believe a crime had been committed and, after considering the facts and circumstances then available, reasonably believed that one of the perpetrators was in the motel room, thereby rendering lawful the warrantless arrest of defendant.

As to police seizure of the tablet and play money, upon entering Room 6 two officers saw a man pick up a tablet and throw it into an open closet. After the occupants were arrested, one officer looked inside the open closet and found the tablet and packs of play money on the floor. The state contends this was justified because the items were not seized in a search but because they were within plain view, citing State v. Collett, 542 S.W.2d 783[5] (Mo.1975).

We must decide whether seizure of the tablet and play money was reasonably justified. Requirements to satisfy the plain view doctrine are considered in Collett: “Plain view alone is not enough to justify a warrantless seizure. It is necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence be inadvertent and (3) it is apparent to the police that they have evidence before them.” Those three requirements were met here. Compare the factually similar case of United States v. Riso, 405 F.2d 134 (7th Cir., 1968), cert. den., 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560 (1968).

We hold the trial court did not err in admitting the tablet and play money into evidence, and now consider defendant’s challenge to the admission of her purse and contents into evidence.

After defendant was arrested in the motel room, officers searched for weapons. Defendant’s purse, seen in a chair by the door, was seized and searched, revealing her driver’s license, social security card and a wallet with $620 in currency. This was a lawful arrest based on a probable cause. The warrantless search here is comparable to that in State v. Brasel, 538 S.W.2d 325 (Mo.1976), where defendant was arrested in a motel room. Police searched his attache case and drugs from the case were admitted into evidence. The court held the search came within the exception to the warrant requirement which allows officers to search for objects in the immediate area of the accused when arrested. In our ease there is no testimony as to just how far the purse was from the defendant when she was arrested and the purse was seized, but the room in the motel was small and crowded.

As the court pointed out in Brasel the search is lawful if there is nothing in the record to show it was impossible for the defendant to get at the object searched. In our case, as in Brasel, there was no indication the police were so positioned as to make it impossible for defendant or one of the other suspects to get to the purse and retrieve a weapon or incriminating evidence. We conclude that the seizure of the purse and its contents was legal because it was found in a search incident to lawful arrest.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . It appears that in the jargon of confidence men “pigeon” refers to a gullible victim; “drop” refers to the “pigeon” parting with money.


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond DAY, Defendant-Appellant.
    No. 38485.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Dec. 13, 1977.
    Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMillian, Judge.

Defendant Raymond Day appeals from a judgment entered on a jury verdict in the circuit court of the City of St. Louis finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon, a felony, §§ 560.120, 560.135, RSMo 1969. The trial court sentenced defendant under the Second Offender Act,. § 556.280, RSMo 1969, to a term of (18) eighteen years imprisonment in the State Department of Corrections. For reversal defendant argues that the trial court erred in overruling defendant’s motions for acquittal because the state failed to prove the victim was “in fear of some immediate injury,” a necessary element of the crime of robbery in the first degree. For the reasons discussed below, we affirm the judgment.

On October 16, 1975, Mr. Curtis Balls was working in his shop, Balls’ Velvet Freeze. At about 5:00 p. m., defendant and another man entered the shop and demanded all the money in the cash registers and Balls’ wallet and watch. Both men were armed with handguns. After the two men left, Mr. Balls ran outside and flagged down a police car. The police officer broadcasted Mr. Balls’ general description of the two men and pursued them in the direction indicated by Mr. Balls. Defendant and the other man were arrested on an adjacent street corner and subsequently identified by Mr. Balls as the robbers.

Defendant’s sole point on appeal is that the trial court erred in overruling his motions for acquittal at the end of the state’s case and at the end of all the evidence. Defendant relies on Mr. Balls’ testimony that he had a total lack of fear during the robbery. Defendant argues that the state failed to prove the victim was “in fear of some immediate injury,” a necessary element of the crime charged, and therefore failed to make a submissible case of robbery in the first degree by means of a dangerous and deadly weapon.

Reviewing Mr. Balls’ testimony, we do not understand Mr. Balls to have said that he was without fear. Mr. Balls testified that he was not particularly afraid during the robbery and had no fear of death, at least not the type of fear that would make him hysterical. Mr. Balls did admit, however, that he was scared. “. . . It is contrary to the universal experience of all mankind to say that a person would experience no fear when confronted with a gun in the hands of a robber. . . . ” State v. Ray, 354 S.W.2d 840, 843 (Mo.1962).

The distinctive element of robbery in the first degree. is the taking of the property of another by violence or by putting the victim in fear. State v. Hayes, 518 S.W.2d 40 (Mo.1975); State v. Hamilton, 513 S.W.2d 771 (Mo.App.1974). Fear of immediate injury, however, need not be expressly shown, e. g., State v. Underwood, 470 S.W.2d 485, 486 (Mo.1971), cert. den., 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802 (1972). A presumption of fear will arise from evidence showing some reasonable grounds therefor. State v. Ray, supra; State v. Tidwell, 500 S.W.2d 329 (Mo.App.1973).

In this case the victim was confronted by an armed robber who demanded the victim’s wallet and watch and the money from the cash register. Mr. Balls’ compliance with the demands of the robber is indicative of his fear of the consequences which could have resulted if he had not complied. In the Tidwell case the court concluded that the victim of a robbery had been in fear of immediate injury when he surrendered his wallet because one assailant was holding a gun to him even though the victim had stated he had not been afraid. State v. Tidwell, supra, at 332. In State v. Parker, 324 S.W.2d 717 (Mo.1959), our supreme court held there could be no merit in the contention that the victim was not motivated by fear when the victim testified he handed over his money at gunpoint but was not personally afraid at the time. We believe the reasoning of these similar cases is persuasive and conclude that the trial court did not err in overruling defendant’s motions for acquittal.

Accordingly, judgment is affirmed.

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


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Edward LAWSON, Defendant-Appellant.
    No. 10780.
    Missouri Court of Appeals, Springfield District.
    Dec. 19, 1977.
    Motion for Rehearing Denied Jan. 4, 1978.

    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Sandra L. Skinner, Budd & Skinner, Springfield, for defendant-appellant.

       Motion for reinstatement treated as motion for rehearing and denied.

   PER CURIAM:

A jury in the Circuit Court of Greene County found defendant, a habitual offender, guilty of assault with intent to do great bodily harm. § 559.190, V.A.M.S. On August 11, 1977, defendant’s motion for a new trial was heard and overruled, defendant was afforded allocution and sentenced by the court to five years’ imprisonment.

The circuit clerk on August 16, 1977, without having received the $20 docket fee required by Rule 81.04, V.A.M.R., improperly filed defendant’s notice of appeal. On August 25, 1977, or on the 14th day after sentence and judgment, the trial court “sustained defendant’s application and/or motion to appeal as a poor person.”

“Rule 81.04 [supra] provides: No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.’ The notice of appeal . . . was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976); State v. Peek, 536 S.W.2d 511 (Mo.App.1976); State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975). Because the filing of the . notice of appeal was invalid . . . , we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo.1966).” Keeney v. State, 556 S.W.2d 514-515 (Mo.App.1977).

Appeal dismissed.

All concur.

      . The attention of counsel for defendant is directed to the provisions of Rule 28.07, V.A.M.R.


author: FLANIGAN, Judge.

text:
    SAVEWAY OIL COMPANY, Edgar Barnhill and Nadine Barnhill, Respondents, v. SEARS, ROEBUCK AND COMPANY and Arvin Industries, Inc., Appellants.
    No. 10569.
    Missouri Court of Appeals, Springfield District.
    Dec. 19, 1977.
    Motions for Rehearing or Transfer Denied Jan. 11, 1978.
    Application to Transfer Denied Feb. 8, 1978.
    Kenneth L. Dement, Sikeston, for appellants.
    Stephen E. Strom, Finch, Bradshaw, Strom & Steele, Cape Girardeau, Weber Gilmore, Gilmore & Gilmore, Sikeston, for respondents.

      Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This products liability action arose out of a fire which occurred on February 11, 1974, at Wyatt, Missouri. The plaintiffs are Saveway Oil Company, a Missouri corporation, and Edgar Barnhill and his wife Nadine. Saveway, the owner of the premises on which the fire occurred, sought recovery for damages to a building and loss of rentals. The Barnhills, tenants of Saveway, operate a service station, a tire store, a restaurant and a motel on the leased premises. They sought recovery for loss of personal property located on the premises and for loss of business profits.

The Barnhills sublet a portion of the premises to Louise Moreton. Louise owned a space heater which she had purchased from defendant Sears, Roebuck and Company and which had been manufactured by defendant Arvin Industries, Inc. Plaintiffs’ trial theory was that the fire resulted from Louise’s use of a “common household extension cord” in connecting the heater to an electrical outlet. Such use allegedly caused the extension cord and the heater cord to overheat and to ignite papers on a desk across which a portion of the heater cord was lying. Each defendant was charged with negligence in failing to warn of the danger of such use.

The jury found the issues in favor of both defendants and against the three plaintiffs. Neither defendant contends that any plaintiff failed to make a submissible case against it.

■ [1] One of the grounds contained in plaintiffs’ motion for new trial was that the trial court erred “in giving instructions numbered 3, 5, 7 and 9 in that the giving thereof violated the MAI prohibitions against the giving of multiple converse instructions, to the prejudice of plaintiffs.” The trial court granted the new trial and its order specified that it was granted on the quoted ground and on a second ground. If either ground was a valid basis for the order, the latter must be affirmed. State v. Klipsch, 414 S.W.2d 783, 786[4] (Mo.1967); Bertram v. Wunning, 417 S.W.2d 120, 124[1] (Mo.App.1967). This court holds that the quoted ground was not a valid one. The second ground will receive discussion later.

Four verdict-directing instructions were submitted to the jury, two at the instance of plaintiff Saveway (Instruction No. 2 against defendant Sears and Instruction No. 4 against defendant Arvin) and two at the instance of the plaintiffs Barnhill (Instruction No. 6 against defendant Sears and Instruction No. 8 against defendant Arvin).

Defendant Sears gave two converse instructions, one (Instruction No. 3) directed against Instruction No. 2 and the other (Instruction No. 7) directed against Instruction No. 6.

The two verdict-directing instructions against defendant Sears, and the latter’s two converse instructions respectively directed thereto, read as follows:

Instruction No. 2
Your verdict must be for Plaintiff Saveway against Defendant Sears if you believe:
First, Defendant Sears sold the heater to the public as its own product, and
Second, the heater if used with a common household extension cord was likely to cause the extension cord and the heater cord to overheat and the heater if so used was thereby dangerous to property in the vicinity of its probable use while it was being used in the manner and for the purpose intended, and
Third, Defendant Sears knew or by using ordinary care could have known of this danger, and
Fourth, Defendant Sears knew or by using ordinary care could have known that some persons were likely to use the heater with a common household extension cord unless warned of this danger, and
Fifth, Defendant Sears failed to give an adequate warning of this danger to users of the heater, and
Sixth, Defendant Sears was thereby negligent, and
Seventh, while the heater was being used in the manner and for the purpose intended with a common household extension cord, Plaintiff Saveway was damaged as a direct result of such dangerous use.
Instruction No. 3
Your verdict must be for defendant Sears, Roebuck and Co., on plaintiff Saveway Oil Co’s, claim for damages unless you believe that defendant Sears, Roebuck and Co., was negligent as submitted in Instruction No. 2 and that plaintiff, Saveway Oil Co. sustained damage as a direct result thereof.
Instruction No. 6
Your verdict must be for plaintiff, Edgar Barnhill and Nadine Barnhill against defendant Sears if you believe:
First, defendant Sears sold the heater to the public as its own product, and
Second, the heater if used with a common household extension cord was likely to cause the extension cord and the heater cord to overheat and the heater if so used was thereby dangerous to property in the vicinity of its probable use while it was being used in the manner and for the purpose intended, and
Third, defendant Sears knew or by using ordinary care could have known of this danger, and
Fourth, defendant Sears knew or by using ordinary care could have known that some persons were likely to use the heater with a common household extension cord unless warned of this danger, and
Fifth, Defendant Sears failed to give an adequate warning of this danger to users of the heater, and
Sixth, defendant Sears was thereby negligent, and
Seventh, while the heater was being used in the manner and for the purpose intended with a common household extension cord, plaintiffs, Edgar Barnhill and Nadine Barnhill, were damaged as a direct result of such dangerous use.
Instruction No. 7
Your verdict must be for defendant Sears, Roebuck and Co., on plaintiffs Edgar Barnhill and Nadine Barnhill’s claim for damages unless you believe that defendant Sears, Roebuck and Co. was negligent as submitted in Instruction No. 6 and that plaintiffs Edgar Barnhill and Nadine Barnhill sustained damage as a direct result thereof.

Paragraphs First, Second, Third, Fourth, Fifth and Sixth of Instruction No. 6 are identical with the similarly numbered paragraphs of Instruction No. 2. The two instructions differ only in that Instruction No. 2 names plaintiff Saveway in its introductory clause and in paragraph Seventh while Instruction No. 6 names plaintiffs Edgar Barnhill and Nadine Barnhill in its introductory clause and paragraph Seventh.

Plaintiffs contend that the giving of Instruction Nos. 3 and 7, at the instance of defendant Sears, was error because Save-way and the Barnhills submitted the same theory of recovery against Sears and, that being the situation, say plaintiffs, Sears was entitled to only one converse instruction even though Saveway and the Barn-hills submitted separate verdict-directing instructions against Sears.

Instruction No. 3 and Instruction No. 7 were, according to defendant Sears, based on MAI 33.03(5), which converses “damages and causation.” It is one of five instructions set forth in MAI 33.03. The Notes on Use (Supplemental), found in 1976 Pocket Part to MAI 33.03, p. 186, read:

“Case law has refined the rules regarding the use of converse instructions with multiple verdict-directing instructions. The concluding paragraph of Notes on Use is withdrawn and amended to read:
“When multiple verdict directing instructions submit different theories of recovery a converse instruction may be given for each such verdict directing instruction.
“When multiple parties submit the same theory of recovery or defense but an additional element of proof is necessary to establish such recovery or defense by one or more of such parties, then an additional converse instruction may be submitted to meet such additional element of proof. Thus if husband and wife join in an action for injury to the husband and consequent loss of consortium to the wife and each submit in separate instructions the same theory of recovery and the verdict directing instruction for the wife includes an additional finding of damage to her, then the defendant or defendants may submit an additional converse to meet the issue of the wife’s claim of damage.”

On p. 356 of MAI is found the “concluding paragraph of Notes on Use” which, according to the above, “is withdrawn and amended.” It reads:

“When plaintiff submits two separate verdict directing instructions, defendant may converse each such submission with any of the approved converse instruction forms. Defendant may give only one converse for each verdict directing instruction.”

Careful reading of the above quotations from p. 356 of MAI and p. 186 of the 1976 Pocket Part to MAI 33.03 discloses that the giving by defendant Sears of Instruction No. 3 and Instruction No. 7 does not violate any specific prohibition contained in either quotation.

Perusal of the appellate decisions dealing with the correctness of converse instructions reveals that a trial attorney contemplating the giving of one is walking into a veritable minefield of potential error.

Review of the case law relied upon by plaintiffs must be conducted in light of the following principle. “Any reported opinion should be read in the light of the facts of that particular case, and it would be unfair as well as improper ‘to give permanent and controlling effect to casual statements outside the scope of the real inquiry.’ ” State v. Miles Laboratories, 282 S.W.2d 564, 573[12] (Mo. banc 1955).

Of the cases relied on by plaintiffs, five involved situations where the co-plaintiffs were husband and wife and one spouse claimed personal injuries and the other spouse claimed only a derivative loss. Those cases are Cragin v. Lobbey, 537 S.W.2d 193 (Mo.App.1976); Burrow v. Moyer, 519 S.W.2d 568 (Mo.App.1975); Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974); Joggerst v. O’Toole, 513 S.W.2d 722 (Mo.App.1974); Scheele v. American Bakeries Company, 427 S.W.2d 361 (Mo.1968). In that situation, when both spouses submit the same theory of recovery in separate instructions, it is error to give more than one instruction conversing that theory; however, the defendant is entitled to an additional converse instruction which “must be directed and limited to what is necessary to meet” the element of damages contained in the derivative claim. Wyatt at p. 370. To similar effect is Cragin.

In Burrow defendant erroneously sought to converse, by one instruction, both the negligence elements and the damage elements of both verdict-directors. The error lay in covering by one instruction matters which should have been covered by two instructions. In Joggerst defendant erred in submitting two converse instructions, each of which conversed the element of negligence which was common to the two verdict-directors. In Scheele there were two defendants, one the driver of the vehicle and the other his employer. Agency between the two defendants was conceded so that the jury could properly find only “against both or neither of them.” Accordingly it was error for each of the defendants to offer separate converse instructions conversing only the negligence element contained in the verdict-directing instruction of the injured spouse. The defendants also erred in giving two converse instructions, each conversing the element of negligence contained in the verdict-director submitting the derivative claim.

In Murphy v. Land, 420 S.W.2d 505 (Mo.1967) and in Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971), also cited by plaintiffs, the claim of an injured child and the derivative claim of his parent were in litigation. In Murphy the defendant erroneously submitted two instructions, one conversing all negligence generally and the other, with needless repetition, conversing specific negligence. This was error because the same theory of recovery was submitted on behalf of both plaintiffs. In Watterson separate verdict-directors on behalf of the child and his parent submitted the same theory of recovery. The defendant erred in submitting two converse instructions, each conversing the element of negligence in the verdict-director against which it was leveled.

In the foregoing husband-wife and child-parent cases, the party asserting the derivative claim had the burden, as pointed out by MAI 31.04, of proving that his co-plaintiff was injured and, in addition, that he sustained derivative damage. In those cases the additional element of the derivative claim is susceptible to being conversed by an instruction limited to that element. Such is not the situation in the case at bar.

The four claims in litigation here are mutually independent. Each could succeed or fail without any automatic effect upon the fate of any of the other three. It was not incumbent upon Saveway, in making its case against Sears, to prove that the Barn-hills were damaged. It was not incumbent upon the Barnhills to prove that Saveway was damaged. Moreover, neither Saveway nor the Barnhills, in establishing liability on the part of Sears, had the burden of showing that Arvin was also liable. Although the joinder of the claims and the parties was procedurally permissible, it was not required.

Plaintiffs do not claim that either Instruction No. 3 or Instruction No. 7 constituted a misstatement of the law. Their sole complaint is that Instruction No. 7 was repetitious of Instruction No. 3 in conversing the negligence of Sears. Although the fact of such repetition must be conceded, it should be noted that it was achieved by the use of only a few words in a single sentence.

Other authorities relied on by plaintiffs are Mayberry v. Clarkson Construction Co., 482 S.W.2d 721 (Mo.1972); Nugent v. Hamilton & Son, Inc., 417 S.W.2d 939 (Mo.1967); Brown v. Jones Store, 493 S.W.2d 39 (Mo.App.1973); and Royal Indemnity Company v. Schneider, 485 S.W.2d 452 (Mo.App.1972).

In Nugent there was only one plaintiff and he submitted only one verdict-director. The defendant erroneously gave three converse instructions, one conversing several of the elements of negligence, one conversing a specific element of negligence, and the third conversing another specific element of negligence. This was held a violation of the “positive direction” that “only one converse instruction may be given for each verdict-directing instruction.”

In Brown no instruction error was found, where the plaintiff submitted two separate theories of recovery and the defendant conversed each such submission.

In Royal Indemnity there was only one plaintiff but he submitted two theories of recovery, one in contract and one in negligence. On the contract theory the plaintiff submitted one verdict-director against all the defendants. On the negligence theory plaintiff submitted two additional verdict-directors. One of the latter was directed against defendant Schneider and the other was directed against Schneider’s alleged principals. Three converse instructions were given. All the defendants joined in the converse instruction directed against the verdict-director submitting the contract theory. Schneider gave a converse instruction directed against the negligence theory and the other defendants gave a converse against the negligence theory which conversed not only the element of agency but the element of Schneider’s negligence. Thus the element of Schneider’s negligence had been twice conversed.

The element of agency, in Royal Indemnity, was “an additional element of proof . necessary to establish” recovery against Schneider’s alleged principals. In that situation, in accordance with the language contained in the 1976 Pocket Part to MAI 33.03, p. 186, an additional converse instruction could have been submitted to meet such additional element of proof. This was not done. The additional converse instruction conversed not only agency but also, and unnecessarily, negligence of the alleged agent. No such facts are present here.

In Mayberry the co-plaintiffs were husband and wife, but unlike the husband-wife cases discussed previously, each spouse asserted a personal injury claim and a derivative claim based on the loss of the co-plaintiff’s services. In Mayberry the defendant committed error, not in submitting too many converse instructions, but in submitting only one. There the instruction was held to be “confusing, misleading and erroneous.” It improperly told the jury that plaintiffs were entitled to recover on the three claims (the husband’s personal injury claim and both derivative claims) or on none of them. Thus the instruction in May-berry was a misstatement of the law.

It must be conceded that there is language in Mayberry, perhaps unnecessary to the decision in that case, which lends support to plaintiff’s attack upon the giving of Instruction Nos. 3 and 7. That language, found at p. 726 of Mayberry, is:

“Defendant is limited to tendering one converse in this case and he may be entitled to tender a general converse, but general converse 33.13 found in MAI, second edition, page 371, obviously cannot be adapted or modified so as to be used where, as here, there are multiple claims by multiple plaintiffs. There is no MAI general converse instruction applicable to this situation, but MAI 33.02(2) may, until the court’s committee on jury instructions recommends and the court approves another instruction, be modified to converse every element in a case involving multiple plaintiffs. It lends itself more readily to accurate modification than does MAI 33.13. See Illustrations, 35.-05, pp. 404^-407, Instruction No. 5 (MAI 33.02(2) Modified.)” (Emphasis added)

It must be remembered that in Mayberry each plaintiff was asserting a personal injury claim and a derivative claim. The claim of each plaintiff for personal injuries sustained by that plaintiff was independent of the similar claim of the co-plaintiff. In other words it was not an element of the husband’s claim for his own personal injuries that he prove that his wife also had sustained personal injuries. Nevertheless the quoted language would indicate the defendant was limited to one converse instruction. There were in fact four claims in Mayberry, two primary and two derivative, and if the defendant was limited to one converse instruction in that situation, it would clearly be limited to one converse instruction had it been confronted by only the two primary claims, although they were independent of each other.

Mayberry was decided in July 1972. By an order entered on December 19, 1972, the supreme court adopted certain “changes in and additions to MAI.” The latter included the Notes on Use (Supplemental) found in 1976 Pocket Part to MAI 33.03, p. 186, quoted above. The new language specifically permits “an additional converse to meet the issue” of the damage element asserted by the holder of the derivative claim.

The St. Louis district of this court has pointed out that MAI No. 32.01, relating to contributory negligence, “does not specifically condemn multiple instructions as does MAI 33.01” dealing with converse instructions. Demko v. H & H Investment Company, 527 S.W.2d 382, 388[9] (Mo.App.1975). In Demko there was one plaintiff and five defendants. The plaintiff submitted five verdict-directors, one against each defendant. Five converse instructions were given, one on behalf of each defendant. Three of the defendants “gave identical converse instructions, each of which required a verdict for that defendant unless the jury found the defendant ‘negligent.’ ” The court pointed out that the plaintiff had asserted a separate and distinct theory against each defendant. The court held “that where a plaintiff asserts a separate theory of liability against multiple defendants where there is no derivative liability existing among the defendants, and plaintiff submits a separate verdict instruction as to each defendant, then each defendant may submit a separate converse instruction.” Demko, at p. 388[7].

The giving in this case of four converse instructions, to a slight degree tinged with repetitiousness, would seem no more likely to influence unduly or even confuse a jury than would the giving of five converse instructions in Demko where the latter procedure was approved. In the case at bar there were four independent claims. The outcome of any one of those claims had no automatic effect upon the outcome of the other three. This is demonstrated by the fact that the jury received forms for six different verdicts. Each of the four claims could have been the subject of a separate lawsuit. There was no procedural necessity for the joinder of plaintiffs or for the join-der of defendants. The decision to effectuate joinder was a tactical one made solely by the plaintiffs. Neither defendant had any voice in that decision. If the four claims had been asserted in four separate lawsuits, each of the four converse instructions could properly have been leveled against its respective verdict-director. Indeed the refusal to have given them would have been error. The number of lawsuits was a matter over which plaintiffs had control and defendants had none, or at least the defendants were limited to making a request for separate trials.

This court holds that there was no prejudicial error in the giving of Instruction No. 3 and Instruction No. 7. For similar reasons the giving of Instruction No. 5 and Instruction No. 9, submitted by defendant Arvin Industries, Inc., was not prejudicial error. This court also holds that the giving of Instruction Nos. 3, 5, 7 and 9 was not prejudicial error.

The second ground on which the trial court based its order granting a new trial was that defendants’ counsel improperly injected into the case the fact that the Barn-hills had insurance which covered the personal property which they lost by reason of the fire.

This court has reviewed those portions of the transcript which pertain to this ground. No precedential purpose would be served by recounting that evidence. This court has concluded that the trial court did not abuse its discretion in determining that the injection of insurance was improper and was prejudicial to the Barnhills. Halford v. Yandell, 558 S.W.2d 400 (Mo.App.Spg.Dist.1977). See Oventrop v. Bi-State Development Agency, 521 S.W.2d 488, 492[1-4] (Mo. App.1975).

Accordingly that portion of the trial court’s order granting plaintiffs Barnhill a new trial, on all issues, Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673, 678[11] (1933); Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885, 889 (1935), against both defendants is approved.

The evidence underlying the second ground is found in the testimony of Edgar Barnhill on cross-examination by defendants’ counsel. In it there is no mention of Saveway or any insurance policy of Save-way. Nothing in that portion creates any inference that Saveway was insured against all or part of their fire loss. In short, there is no basis for the trial court’s determination that Saveway was prejudiced by the evidence underlying the second ground.

It has been said that “the long established rule has been that one defendant cannot complain of error committed against a co-defendant. . . . [Tjhere is an exception (or a corollary) to the foregoing rule to the effect that if the error committed as to one defendant is prejudicial to the rights of the co-defendant then the co-defendant may justifiably complain.” (Emphasis added) Steele v. Yacovelli, 419 S.W.2d 477, 479 (Mo.App.1967). See also Dean v. Young, 396 S.W.2d 549, 558[13] (Mo.1965); State v. Haid, 328 Mo. 208, 40 S.W.2d 1048 (1931).

Under Rule 78.01 the trial court had authority to grant a new trial of any issue “upon good cause shown.” The trial court also had the power to grant a new trial “to all or any of the parties and on all or part of the issues.” Under Rule 84.14 this court has authority to award a new trial or partial new trial, to reverse or affirm the judgment or order of the trial court, or to give such judgment as the court ought to give but the same rule commands that no new trial shall be ordered as to issues in which no error appears.

This court concludes that the matters complained of in the second ground did not prejudice Saveway and that the trial court erred in granting a new trial to Saveway.

That portion of the trial court’s order granting plaintiffs Edgar Barnhill and Nadine Barnhill a new trial against both defendants on all issues is affirmed; that portion of the trial court’s order granting plaintiff Saveway Oil Company a new trial is reversed and the cause is remanded with instructions to the trial court to enter judgment against plaintiff Saveway Oil Company and in favor of both defendants.

All concur.

      . That this paragraph retains at least some degree of vitality is demonstrated by the fact that it appears at p. 191 and p. 192 of the 1976 Pocket Part to MAI, in the Notes on Use under MAI 33.14 and MAI 33.15.

      . Many of the hazards are discussed in 42 Mo. L.Rev. 175, “Converse Instructions Under MAI” by Prof. Elwood L. Thomas. At p. 197 it is said: “It would appear that the harm in allowing some duplication in converse instructions would be more than outweighed by the benefits of a simple rule which would allow each defendant to submit one separate converse instruction for each verdict director submitted against him.”

      . Actually, in Nugent there were two defendants, a truck driver and his employer. Apparently agency was not an issue because the two defendants joined in each of the three converse instructions.

      . By invoking Rule 66.01(c) a defendant, confronted by a personal injury claim of a married person, may force the joinder or waiver of a derivative claim of the other spouse.

      . Instruction No. 5 read:
      INSTRUCTION NO. 5 Your verdict must be for defendant Arvin Industries, Inc. on plaintiff Saveway Oil Co.’s claim for damages unless you believe that defendant Arvin Industries, Inc., was negligent as submitted in Instruction No. 4 and that plaintiff Saveway Oil Co. sustained damage as a direct result thereof. Instruction No. 9 read:
      INSTRUCTION NO. 9 Your verdict must be for defendant Arvin Industries, Inc., on plaintiffs Edgar Barnhill and Nadine Barnhill’s claim for damages unless you believe that defendant Arvin Industries, Inc., was negligent as submitted in Instruction No. 8 and that plaintiffs Edgar Barnhill and Nadine Barnhill sustained damage as a direct .result thereof.
      Saveway’s verdict-director against Arvin was Instruction No. 4. Barnhills’ verdict-director against Arvin was Instruction No. 8. Instruction No. 4 differed from Instruction No. 2 (Saveway’s verdict-director against Sears) in these respects: (1) In each place where Instruction No. 2 used the language “defendant Sears,” Instruction No. 4 used “defendant Ar-vin.” (2) Instead of the language contained in paragraph First of Instruction No. 2, Instruction No. 4 used the following: First, defendant Arvin manufactured the heater for sale to the public and, .
      Instruction No. 8 was the same as Instruction No. 4 except that the names of Edgar Barnhill and Nadine Barnhill were substituted for the name of Saveway in the introductory paragraph and in paragraph Seventh.


author: ROBERT R. WELBORN, Special Judge.

text:
    NORFOLK & WESTERN RAILWAY COMPANY, Appellant, v. RISS INTERNATIONAL CORPORATION, Respondent.
    No. KCD 28444.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Logan J. Wilson, Kansas City, for appellant.
    Rodger J. Walsh, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by railroad to recover charges claimed owed it by truck line for transporting trailers. Truck line counterclaimed for damage to trailers. Trial court directed verdict for plaintiff on counterclaim. Jury found for defendant on plaintiff’s claim. Plaintiff appeals.

Between August, 1968, and August 1973, Riss International Corporation (“Riss”), a Kansas City based trucking company, employed the services of Norfolk & Western Railway Company (“N & W”) in transporting loaded and empty truck trailers between various points served by N & W and connecting rail lines. The Riss-N & W trailer-on-flatcar (TOFC) operation was under what is known as “Plan 1” TOFC service. Under this plan, freight moves in the motor truck trailers, based upon the trucker’s motor carrier tariff. The railroad’s compensation for its service is determined by agreement between the trucker and the railroad, published in what is known as a “division sheet,” which sets the railroad’s compensation for the transportation of trailers between various points.

Under a Plan 1 operation, the trailer moves over the railroad on a waybill issued by the railroad. The waybill is the basis for the billing of the trucker by the railroad. It includes the trailer description by owner and number, its weight, the rail routing, and the railroad’s charge for its service. The amount of the charge is usually entered from the appropriate division sheet by the clerk who prepares the waybill. On some occasions the entry is not made until the waybill reaches the railroad’s billing office. The trucking company is billed periodically on the basis of the waybills.

During the time here involved, N & W moved 738 trailers for Riss. Riss generally paid the billings regularly made by N & W. The controversy arises primarily out of charges claimed by N & W upon subsequent audit of the original charges stated in the waybills. As an example, on December 6, 1972, N & W billed Riss for $52.53 “balance of charges” on three shipments under waybills dated November 23, 1970, October 15, 1970 and September 17, 1970.

N & W’s original petition, filed July 27, 1973, claimed $7,000 was owed by Riss for shipments from August 1, 1970 to the date of filing. By an amended petition further amended at trial, N & W claimed $15,020.39 for shipments from August 1, 1968.

In proof of its claim, N & W offered the testimony of Mr. Jerry B. Shaver, the N & W assistant to the manager in motor pricing. According to the witness, he was “responsible for the pricing and negotiation and publication of the Plan 1 division sheets.” He produced and identified as N & W business records the division sheets applicable to the N & W-Riss dealings during the period in question and N & W file copies (or photostats thereof) of all waybills under which Riss trailers moved. He also produced twenty-one handwritten sheets which contained summaries of information found on the waybills, including shipments involved, the basis of charges, including division sheet, minimum weight, rate and charge based upon such information. Further information included bill number, amount billed for each movement and amount paid. Under the heading “Balances” was a debit column in which appeared the difference between the amount paid and the correct charge when the amount paid was less. An excess of payment over the charge appeared in a credit column. As originally computed, debits to-talled $15,819.45 and credits $841.81, leaving a balance of $14,977.64. In the examination and cross-examination of the witness, errors in arithmetic and failure to credit Riss for over-payment in several instances were pointed out and acknowledged by the witness. Recalculation, upon correcting those items, increased the amount claimed to be due N & W by $42.75 to $15,020.39.

According to the witness, N & W’s Zone Revision Bureau listed all Riss shipments on the sheets and he and his predecessor in his position “were responsible for taking the raw data * * * and computing and figuring up the proper charge from the applicable division sheets * *

The only witness offered by Riss testified in support of its counterclaim for damage to its trailers.

At the conclusion of the presentation of evidence, motions for directed verdict on behalf of both parties were overruled. Plaintiff’s motion directed to defendant’s counterclaim was sustained. Plaintiff’s claim was submitted to the jury which found for defendant. -Defendant filed a post-trial motion, requesting, alternatively, judgment in accordance with its motion for directed verdict or a new trial. The motion was overruled and plaintiff appealed.

In this court, plaintiff contends that it was entitled to a directed verdict because “every element essential to the Norfolk and Western’s cause of action was established by documentary evidence uncontradicted by Riss * *

An oft-repeated statement of the rule relied upon by appellant appears in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693[2] (1942), as follows (citations omitted):

“ * * * It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. * * * There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. * * * >>

Appellant contends that its case was proved by the following documentary evidence:

1. The correspondence between Riss and N & W establishing Plan 1 TOFC arrangements.
2. The applicable division sheets.
3. The waybills for Riss shipments.
4. The summary of the 738 separate shipments involved, showing the applicable charges derived from the division sheets, the amount paid to date of trial by Riss and the remaining balance.

That there were TOFC arrangements between Riss and N & W was not an issue. Riss admitted in its answer that N & W transported trailers for it on the basis of agreements between them. Although Riss made some objections to the division sheets placed in evidence, their authenticity was not seriously questioned. The same is true of the waybills. However, no effort was made to relate the waybills to the numerous division sheets and N & W obviously did not expect the jury to find the division sheet applicable to each movement for which a waybill existed and to determine the proper charge for the movement.

Basically, the proof of N & W’s claim depended upon the summary sheets. Those sheets were written, but they were not documents to which Riss was a party. Riss did not acknowledge the correctness of the summary sheets. Cross-examination of N & W’s witness was directed at errors in arithmetic, and omissions notable on the face of the documents. Riss’ cross-examination brought out some 24 instances in which the summary sheets failed to allow Riss credit for overpayments. The witness also pointed out several errors in computation on the sheets.

Although the summary sheets were admissible in evidence (Rol Miller & Sons, Inc. v. Schultz Products Company, 418 S.W.2d 721, 723[3, 4] (Mo.App.1967)), their probative value was not thereby established as a matter of law. It remained the burden of plaintiff to show that the summary accurately and correctly showed the state of the account between N & W and Riss. As above noted, this is not a case of a running account where charges simultaneous with a transaction are made and payments received and applied against the charges. Here, for the most part, the charges were made and payments received and thereafter, N & W, months later, sought increased charges. While the somewhat cursory explanation for the changed charges might have been adequate to have permitted a jury to find that the amounts were owed, the summaries coupled with the oral testimony do not require that conclusion as a matter of law.

“The general rule as to ‘conclusive documentary evidence’ is stated in Baugh v. Life & Casualty Ins. Co. of Tenn., Mo., 307 S.W.2d 660, 664, as follows: ‘ * * * it must be an instrument or record having legal efficacy to which the one sought to be bound is in some way a party, or the truth of which he vouches for, either expressly or in legal effect, or is estopped to deny.’ ” Bakelite Company v. Miller, 372 S.W.2d 867, 871[4, 5] (Mo.1963). In that case the court stated that a plaintiff’s own books and records are not such documentary evidence. See also Wilson v. Kansas City Life Ins. Co., 233 Mo.App. 1006, 128 S.W.2d 319, 321[3, 4] (1939). If the documentary evidence is not of such nature, the fact that the defendant does not contradict the evidence offered does not make such evidence conclusive. “The jury could believe or not believe plaintiff’s uncontradicted or uncontroverted evidence, and if the jury did not believe plaintiff’s evidence, it properly could find for defendants.” Bakelite Co. v. Miller, supra, 372 S.W.2d at p. 871[1, 2],

Appellant has cited no case in which it has been held that documentary evidence such as that here involved suffices to meet plaintiff’s burden of proof as a matter of law. Generally where the documentary proof has been held to entitle plaintiff to a directed verdict, the document involved is one to which defendant was a party, such as a note in Bradley v. Buffington, 534 S.W.2d 571, 574[8] (Mo.App.1976), or a guaranty agreement, as in Commerce Trust Company v. Howard, 429 S.W.2d 702, 707-708[9, 10] (Mo.1968), and J. R. Watkins Company v. Smith, 421 S.W.2d 527, 531-532[4] (Mo.App.1967). Coleman v. Jackson County, supra, involved written county budget orders and official public records.

A directed verdict for plaintiff has been recognized as a “violent result,” which occurs “very seldom” and then only in “unusual” or “exceptional” cases. Alaska Federal Savings & Loan Ass’n v. Hoffman, 485 S.W.2d 118, 120[1] (Mo.App.1972). This is not such a case and the trial court did not err in refusing to direct a verdict in favor of appellant.

In its post-trial motion for judgment, N & W alleged that it was entitled to judgment as a matter of law “under the applicable rules and regulations of the Interstate Commerce Commission.” This ground was not stated in plaintiff’s motion for a directed verdict. In any event, this assignment of error now based on that theory of liability is necessarily premised upon the assumption that the amount of N & W’s claim has been proved as a matter of law. That contention has already been rejected.

Plaintiff’s after-trial motion included an alternative prayer for a new trial. Other than the allegations upon which the motion for judgment was based, the only ground for new trial stated was that the verdict was against the weight of the evidence.' In this court, appellant contends that it is entitled to a new trial because of error on the part of the trial court in failing to sustain its motion to dismiss defendant’s counterclaim at the close of defendant’s opening statement because the statement failed to show facts entitling defendant to recover on its counterclaim or alternatively because the counterclaim failed to state a cause of action.

As above noted, the trial court did dismiss defendant’s counterclaim at the close of defendant’s case and instructed the jury that all evidence in that regard had been withdrawn from its consideration. Appellant contends, however, that this relief was untimely because it permitted Riss to cross-examine N & W’s witness about the damage claims and to introduce evidence by its own witness on the subject, resulting in prejudice to N & W and confusing the jury.

This ground of error was not called to the trial court’s attention in the motion for new trial. Appellant suggests that it was not required to be because under Rule 78.07 “questions as to the sufficiency of the pleadings to state a claim or defense” are not required to be included in a motion for new trial. While this exception would permit consideration of that question as what was formerly known as a “record” matter, it is doubtful that it was intended to encompass an assignment of error such as here advanced which is directed primarily toward the admission of evidence. Certainly it would not permit the assignment based upon a deficiency in the respondent’s opening statement.

In any event, the trial court is not to be convicted of error based upon the contention that the counterclaim failed to state a claim. It alleged that trailers in good order were delivered by Riss to N & W and that plaintiff damaged and destroyed them. Although somewhat sketchy, the counterclaim, as against the complaint now voiced, was adequate to state a claim for relief under 49 U.S.C. § 20(11) which makes a carrier liable for damage to cargo entrusted to it unless it can show that the damage was caused by the act of God, the public enemy, the act of the shipper, public authority or the inherent vice or the nature of the goods. William A. Smith Contracting Co. v. Missouri Pac. R. Co., 481 S.W.2d 580, 583[1, 2] (Mo.App.1972). This claim of error is without merit.

Appellant finally complains that the trial court erred in admitting into evidence a draft dated November 19, 1969, from Riss, payable to N & W in the amount of $5,864.94. Appellant contends that there was no showing of what the draft was issued for and that it, therefore, was not shown to have any logical or legal relevance to N & W’s claim, Riss’s defense or Riss’s counterclaim. Riss counsel used the instrument in cross-examining witness Shaver in an effort to ascertain where, if at all, the N & W summary took such payment into account. The summary did not account for a payment from Riss in this precise amount.

Appellant’s motion for new trial assigned no error on this ground. Appellant would excuse such lack on the basis that specific objection to the use of the evidence was made at the trial. Appellant overlooks the fact that Rule 78.07 merely permits a general specification of error in a motion for new trial when a definite objection was made at the trial. Since no general specification appears in the motion for new trial, appellant cannot take advantage of this rule. State ex rel. State Highway Comm. v. Parker, 387 S.W.2d 261, 262[2] (Mo.App.1965). Pasley v. Newton, 455 S.W.2d 43, 47-48[3, 4] (Mo.App.1970), relied upon by appellant, does not support appellant’s view of the meaning of Rule 78.07. The case recognizes that a general specification of error in a motion for new trial is sufficient where there has been a specific objection at trial. The case does point out that the purpose of a motion for new trial is to give the trial court a last opportunity to correct its error, and that the motion must call the trial court’s attention to the errors claimed to have been made. The motion for new trial in the case in no manner advises the trial court that appellant sought a new trial based on rulings as to the admissibility of evidence. Therefore, the question has not been preserved for appellate review. Rule 78.07; State ex rel. Highway Comm. v. Parker, supra.

Appellant suggests that review should be made under the “plain error” rule. Rule 84.13(c). As the rule recites, a court will apply the plain error rule only to correct a manifest injustice or to avoid a miscarriage of justice. The error here asserted is not of that nature and this court declines review under the “plain error” rule.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Leo M. MULLEN, M. D., and the Credit Card Corporation, Appellants, v. DIKE DEVELOPMENT COMPANY, INC., and Roy N. Dike and Vicie B. Dike, husband and wife, and Alvaretta D. Allen, and Jackson County Water Company, Respondents.
    Nos. 28493-28655.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Haskell Imes, Kansas City, for appellants.
    Charles W. Hess, Sr., Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for Jackson County Water Co.
    Paul E. Panek, Belton, for Dike et al.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Consolidated appeals from dismissals entered against plaintiffs’ petition. The dis-positive question is whether there is a final judgment for purposes of appeal. Appeal dismissed.

Appellants’ transcript and the files reveal the following pertinent proceedings:

Plaintiffs Leo M. Mullen, M. D., and The Credit Card Corporation filed their “Amended Petition In Two Counts” June 18, 1974. In Count I plaintiffs alleged: that on July 11,1962, “they, the Dikes, * * Allen, and other persons” entered into written agreement with defendant Jackson County Water Company to purchase water from the water company for use in Martin-wood Addition, “and the water company agreed to construct a water system” in Martinwood; that prior to September, 1966, Jackson County Water Company acquired a Certificate of Convenience and Necessity from the Missouri Public Service Commission, and thereafter “the Dikes and said [Dike] development company commenced the installation of said water system * * but did nothing in the Martinwood Addition in which the Plaintiffs were interested”; “that the Dikes, while acting as agents for said Water Company * * * have refused to install water mains in the Martinwood Addition”; “that because of the wrongful refusal of the Defendants Dike to install said water system,” plaintiffs have been damaged; that plaintiffs and others have complained to the Public Service Commission and have had hearings before the Commission resulting in various findings and orders which, among other things, directed Jackson County Water Company to render water service to any applicant in its service area requesting same; “that although Plaintiffs have offered to go along with ‘Dike’ to operate said water district, ‘Dike’ has refused to do so * * The prayer was for “judgment against all defendants” in sum $50,000. Count II of plaintiffs’ petition was omitted from the transcript “at request of Appellants.”

Defendants Dike Development Company, Inc., Roy N. Dike, Vicie B. Dike, and Alvar-etta Allen moved to dismiss Count I of plaintiffs’ petition on grounds the Public Service Commission had exclusive original jurisdiction over all parties and subject matters and, absent appeal of its action to the circuit court under Section 386.510, RSMo 1969, plaintiffs have not exhausted their administrative remedies.

Defendant Jackson County Water Company also moved to dismiss Count I of plaintiffs’ petition on grounds of failure to plead or show exhaustion of administrative remedy.

On November 21, 1975, the court, the Honorable Keith P. Bondurant, Judge, considered the motion of Jackson County Water Company, found that Count I failed to state a cause of action and ordered “that Jackson County Water Company is dismissed as a defendant herein, and Count I of Plaintiffs’ Amended Petition is hereby dismissed.”

On December 4, 1975, plaintiffs filed notice of appeal dated November 28, 1975, from the foregoing dismissal to the Supreme Court of Missouri. On March 11, 1976, the supreme court transferred the appeal to the Missouri Court of Appeals, Kansas City District, where it was assigned number KCD 28,655.

On December 11, 1975, the court, Judge Bondurant, considered and sustained a motion of defendants Dike Development Co., et al., to dismiss “Count II” of plaintiffs’ amended petition “and Count II is dismissed.” The court also noted: that on November 21, 1975, “this Court dismissed Count I” of plaintiffs’ amended petition; that defendants Dike Development Company, Inc., and Alvaretta D. Allen dismissed their counterclaim against the plaintiffs; that all pending matters are “thus disposed of.” The court then ordered: “Count II of Plaintiffs’ Amended Petition is dismissed * * *. Plaintiffs’ cause of action herein is dismissed. Defendants’ Counterclaim has been dismissed without prejudice * *

On December 22, 1975, plaintiff Leo M. Mullen, M. D., moved, pro se, to set aside the judgment of November 21, 1975, and “as an alternate to have a hearing * * * by another judge.” Doctor Mullen also moved, pro se, for a change of judge to hear his motion to set aside the judgment of November 21 and to set aside the judgment of December 11, 1975, because of inconsistencies in the proceedings of December 11, 1975, with respect to pending counterclaim, dismissal of various counts, and dismissal of plaintiffs’ cause of action.

On December 24, 1975, the court, Judge Bondurant, entered an order which recited: “that all pending matters * * * were not disposed of by the Court’s Order of Dismissal of December 11, 1975. * * * that on or about December 11 or December 12 defendants Roy N. Dike and Vicie B. Dike filed an amended counterclaim against plaintiffs, * * * that plaintiffs contend that they sought and were not given a hearing on the motion of defendants Dike, Dike Development Company and Allen to dismiss Count II of plaintiffs’ amended petition, and the plaintiffs claiming that this Court is prejudiced * * * in failing to give them said hearing,” and ordered that the order of dismissal of December 11,1975, be set aside; that Count II of plaintiffs’ amended petition be reinstated; that defendants Dike be given leave to file their amended counterclaim; that “[t]he order of November 21, 1975 dismissing Count I of plaintiffs’ amended petition [as to Jackson County Water Company] is confirmed”; that the court disqualifies itself and transfers the cause for reassignment.

On December 24, 1975, plaintiffs filed notice of appeal dated December 22, 1975, from the order of December 11, 1975, to the Missouri Court of Appeals, Kansas City District, where it was assigned number KCD 28,493, and subsequently combined with number KCD 28,655 upon its transfer from the supreme court.

On December 30, 1975, the cause was reassigned to Division 12, the Honorable Lawrence R. Smith, Judge, and subsequently transferred to the Honorable Forest W. Hanna, Division 12 of the court. The record reveals motions, hearings, and correspondents during pendency of the cause in both divisions.

To be final and appealable, a judgment must dispose of- all parties and all issues in the case and leave nothing for future determination, unless the court has ordered a separate trial of any claim or issue or has specified the judgment to be a final judgment for purposes of appeal. Rule 81.06, V.A.M.R.; State ex rel. Schweitzer v. Greene, 438 S.W.2d 229 (Mo. banc 1969); Caudle v. Kelley, 545 S.W.2d 427 (Mo.App.1976); Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976).

In the state of this record it cannot be said that the orders from which plaintiffs would appeal disposed of all the parties and all the issues, and neither was designated final for purposes of appeal. The order of November 21, 1975, was made upon consideration and sustention of a motion to dismiss Count I of plaintiffs’ petition as to Jackson County Water Company, one of several defendants. The order did not affect Count II; and, although it purported to dismiss Count I, it could do so only as against defendant water company. The order of December 11, 1975, was purportedly made upon consideration of a motion to dismiss Count II of plaintiffs’ petition as to defendants Dike, Dike Development Company, and Allen, but no such motion is in the record. The proceedings of December 24, at most, confirmed the state of affairs resulting from the proceedings of November 21, and nullified those of December 11.

Appellants recognize the difficulty with their appeal in that their Point I is devoted to questions of final appealable judgments. They cite a number of cases, none of which is in point, because they involved judgments designated as final for purposes of appeal. See, e. g., Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974); Title Insurance Corp. of St. Louis v. United States, 432 S.W.2d 787 (Mo.App.1968); Johnson v. Great Heritage Life Ins. Co., 490 S.W.2d 686 (Mo.App.1973); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693 (1952); Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377 (banc 1956).

Appeal dismissed as premature.

All concur.

      . The record does not show any motion directed to Count II.


author: PRITCHARD, Presiding Judge.

text:
    BUILDERS BLOCK COMPANY et al., Joe Peterson Masonry Company et al., and John M. Miceli, Inc., a corporation, Respondents, v. WALKER DEVELOPMENT COMPANY, INC., a corporation, Appellant.
    No. KCD 28505.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Von Erdmannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for appellant.
    Terence M. O’Brien, Kansas City, for John M. Miceli, Inc.
    Before PRITCHARD, P. J., and SWAF-FORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

This suit for mechanic’s lien arising out of a construction contract was tried to the court, which after consolidations and after extensive findings of fact and conclusions of law, rendered a net judgment for John M. Miceli, Inc., on its claim for $10,000.00 under Count I, of $7,834.81, after having set off $2,165.19, found due Walker Development Company on its first amended counterclaim; and for Miceli on Count II of its claim, $7,794.37. Mechanic’s liens were granted on the real estate owned by Walker under Count I superior to, and under Count II, subordinate to, a lien of a deed of trust on the property.

Walker’s sole contention here is that the court erred in awarding Miceli a mechanic’s lien and judgment because Miceli failed substantially to complete its construction contract. As argued, the contention is that there was no substantial evidence to support three findings of the trial court as to: 1. Improper laying of foundation; 2. Grading and sodding; 3. Defective stone retaining wall.

As to improper laying of foundation, Walker testified that there was a boulder, which in digging the footing by a backhoe (which was about 2 feet wide) was dug over above it, and right on by it, and the cement went over the top of it, but he could see rock sticking out both sides. Walker’s witness, T. Paul Dwyer, testified that the boulder, being foreign material not monolithic with the concrete wall, would prevent uniform settlement, and it would cause differential settlement and damage to the structure. He, however, testified that he had not seen the rock, and that he did not believe that the building would have settled if drain tile had been placed along the north side of the building. The architect, Cheese-brough, testified that installation of drain tile was not a part of the final contract. [This was a finding of fact made by the trial court.] Cheesebrough testified that he did not see any boulder, and before he could say whether it was good practice to leave it there, he would have to know whether it was a rock ledge or a boulder. There was no evidence of whether it was a rock ledge or a boulder, and if the latter, its size. Although the court overruled an objection to the testimony of Walker about the presence of the boulder, it concluded (No. 23) that appellant could not recover for any item of alleged damages other than those listed in its amendment to interrogatory answers, none of which, nor the counterclaim, set forth any damages occasioned by leaving a boulder in the foundation. “When the court without a jury admits [evidence], it does not follow that he is bound by it as relevant or competent; that is to say, his subsequent judgment may show that he has not been led into error by it.” Powers & Boyd Cornice & Roofing Co. v. Muir, 146 Mo.App. 36, 123 S.W. 490, 496 (1909); Brunke v. Salinger, 8 S.W.2d 88, 92[10] (Mo.App.1928); Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 170[1-7] (Mo.App.1975).

Presumably, in connection with the contention that there was an improper laying of foundation, Walker says that the court erred in not allowing damages for Miceli’s failure to install a concrete flume on the north side of the building. The flume, it says, was for the purpose of providing adequate drainage to prevent saturation of the earth. First, Walker’s answer to interrogatories did not claim as a defect any failure to install a concrete flume. Further interrogatories requested specification and particularization of deficiencies, improper work or materials other than those in the first interrogatories, and Walker answered that there were none. Also, Walker produced no positive evidence that the concrete flume was not installed. Its witness, Dwyer, declined to testify that Miceli did not put in the flume, saying, “I’d have to go back and look. It wasn’t at the time I was there.” In this posture of the case, the trial court did not err in failing to award damages for the concrete flume.

Concerning the grading and sodding and the claimed defective stone retaining wall, Walker had filed a suit against the Kansas City Power & Light Company, claiming damages to the property occasioned by a falling pole. In that suit, Walker gave deposition testimony (after this action was filed) that the building was built in accordance with its architect’s plans and specifications, and that the falling pole had to hit the wall; “it pried the wall out and blowed in the back of the building.” In answer to interrogatories in the K.C.P. & L. case, Walker stated the nature of the damage to the property to be: “There was a retaining wall pushed down which in turn caved in the back of the retail sales building * * *. The fallen utility pole damaged the roof, walls, causing cracks in foundation, and cracked various portions of the sidewalk * * *In the present case, Walker testified that as a result of the fallen pole, the retaining wall to the north of its property was bursted and destroyed and thereby rendered useless. Dwyer’s report of the fallen pole was that the resulting leverage forces were sufficient to cause complete collapse of the retaining wall. In its petition against K.C.P. & L., Walker alleged that the fallen pole necessarily would cause grading behind the building, hauling away dirt, obtaining dirt, backfill and regrading the area of the retaining wall. These admissions against interest were for the court to consider, and constitute substantial evidence to support its judgment. The evidence was conflicting as to the cost of regrading and sodding; Walker claimed $1,800.00; other evidence showed $100.00 for grading, and $225.00 for sodding. The court awarded Walker $325.00 for these items. The conflicts in evidence were for the trial court to resolve, and its award is supported by the evidence.

The record has been reviewed. In fact, it appears that this appeal is entirely without merit. It would be justifiable to award respondent damages for a frivolous appeal under Rule 84.19, had respondent followed the preferred procedure of requesting those damages, thus making them an issue on appeal and thrusting upon appellant the burden to show cause why damages for frivolous appeal should not be granted.

The judgment is not against the weight of the evidence; it does not erroneously declare or apply the law; and it must be sustained because there is no firm belief that it is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is affirmed.

All concur.