author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Paul Michael WILLIAMS.
    No. 39932.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

In a felony-murder case the defendant was convicted of first degree robbery and first degree murder. The jury assessed the punishment for the robbery at five years and a day and life imprisonment for the murder. The appeal charges the trial court with the following prejudicial errors: (1) failing to grant his request for a mistrial when the prosecutor asked the defendant on cross-examination whether he had committed a prior felony; (2) overruling his objection to the prosecutor’s closing argument alleged to be a misstatement of the law; (3) denying his motions for judgment of acquittal and challenging the indictment; (4) in giving an alleged deviation from MAI-CR 6.19. We affirm.

What commenced as a purse snatching escapade terminated in the grim and unexpected death of 66 year old Virginia Am-brow. The State’s evidence established that at approximately 9:00 p. m. on a midsummer’s evening, Mrs. Ambrow and her husband had just completed their shopping at a Richmond Heights victualery. As Mr. Ambrow was placing the groceries in the trunk of his auto, he heard his wife call his name. He looked up to see Mrs. Ambrow being dragged on her back across the store parking lot by a man. She was desperately clutching onto her purse while her assailant was just as determined to wrest it from her. After being dragged about 45 feet, Mrs. Ambrow finally lost her grip as she struck a concrete car stop on the parking lot. Her assailant, victorious in his struggle for the purse, leaped into the passenger’s seat of an awaiting auto driven by a companion and sped off with the malgained booty. An ambulance was summoned to aid Mrs. Am-brow, and she was immediately taken to a hospital. Massive medical efforts to sustain her life were futile. At 10:17 p. m. — a little over an hour after the assault — she succumbed to a cardiac arrest.

The evidence established that Mrs. Am-brow had suffered a stroke approximately one year previously; that apparently she had recently experienced two myocardial infarctions — one, two to five days old and the other, one to two weeks old. However, the State’s medical expert witness positively attributed Mrs. Ambrow’s mortal heart attack to her being knocked down and dragged across the parking lot in the purse snatching episode.

Identification of Mrs. Ambrow’s assailant was given by Philbert Mack. Mack testified that he had driven the defendant to the grocery store parking lot and waited in the auto while the assault on Mrs. Ambrow took place. When the defendant had accomplished his purpose, he leaped into Mack’s auto and the two fled. After divvying the monetary contents with Mack, the defendant threw the purse, some credit cards and other items into a sewer. Mack later took police to the sewer where the purse and other of Mrs. Ambrow’s personal items were retrieved. Further inculpatory-evidence was given by an acquaintance of the defendant who testified that he had blatantly acknowledged killing Mrs. Am-brow.

The first point raised by defendant causes substantial difficulty. The case was well tried by both counsel. The State produced substantial and convincing evidence of defendant’s guilt of the crime charged — robbery and felony-murder. Yet, when the defendant, who had no prior record of convictions, testified the prosecutor regrettably strayed perilously close to the precipice of prejudicial error by asking the following question on cross-examination:

Q. [prosecutor] Now Mr. Williams [defendant], on Friday, April 23 of 1976, about ten A. M., did you commit the felony of — ?

Defendant’s counsel interrupted with an objection and request for a mistrial. The trial court, specifically noting that it was exercising its discretion, denied the motion for mistrial but on defendant’s counsel’s request directed the prosecutor to refrain from further questioning on the issue.

There was no apparent bad faith attributable to the prosecutor by her question, for the record shows that both parties agreed that the defendant had indeed been charged with another crime with the case set for trial the same week as the instant proceeding. The prosecutor obeyed the trial court’s ruling, and nothing further was said before the jury beyond the incomplete question and defendant’s counsel’s objection and request for mistrial.

Further, at the time of the prosecutor’s question, under Missouri law inquiry as to whether the defendant had committed another crime even though not convicted thereof had been held to be a proper line of inquiry. State v. Foster, 349 S.W.2d 922 (Mo.1961). But in the meantime, between defendant’s trial and his appeal, State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979), has intervened.

In Dunn, the defendant was asked the following question on cross-examination:

Q. Mr. Dunn, on February the 17th, 1975, did you steal property from an automobile in St. Louis County. Mr. Taylor (defense counsel) I am going to object to that, your honor. That is completely improper. I am going to ask for a mistrial. That is an improper question about some other crime.
The Court: Overruled.
Q. (By Mr. McConnell) (Prosecutor)
You may answer sir.
A. No, sir, I did not. Id. at 650.

Before finding judicial error in allowing the foregoing question to stand, the Missouri Supreme Court made a careful review of the law regarding cross-examination of a defendant and other witnesses as to prior convictions, acts of misconduct and traits of character. The following conclusions were reached in State v. Dunn. Id. at 653:

. [Although a defendant testifying in his own defense may, as a general proposition, be impeached the same as any other witness, nevertheless, a court should, on objection being made, limit certain cross-examination of a defendant where the cross-examination is technically purely collateral as to general credibility and the nature is such as to impair the defendant’s right to a fair trial on the charge brought against him. This does not apply to prior convictions of criminal offenses.
******
The extent of cross-examination rests largely in the discretion of the trial court and an appellate court will not interfere unless the discretion is abused. State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492 (1948). Cross-examining a defendant as to alleged prior acts of misconduct, particularly where details are stated and the acts are somewhat similar to the case on trial, as here, lends itself to the creation of substantial prejudice even though the answers are in the negative. The cases of State v. Foster, supra, State v. Williams, [492 S.W.2d 1 (Mo.App.1973)] and State v. Summers, [506 S.W.2d 67 (Mo.App.1974)], ... do not require a trial court to permit all cross-examination of a defendant as to prior acts of misconduct and do not preclude an appellate court from determining that the specific questioning was erroneous and constituted prejudicial error.

Therefore, under Dunn, it appears that reversible error would have occurred had the prosecutor completed her question by designating the specific crime alleged to have been committed by defendant. But Dunn leaves it manifestly clear that the trial court is vested with broad discretion in controlling the extent of cross-examination.

The trial court here was positive in expressing that its action in denying the motion for mistrial was based on the exercise of its discretion. The question does stop short of detailing the particular acts alleged to have been committed by the defendant which were similar to those for which he was on trial. Also, the trial court absolutely forbade the prosecutor from making any further inquiry which would force the defendant to exercise his Fifth Amendment rights. We therefore believe that under the particular circumstances of this case there was no reversible error, as: (1) the inquiry did not go into the specific details of the alleged crime; (2) the question was incomplete; (3) the trial court forbade any further inquiry regarding the commission of crimes; (4) the defendant was not required to make any answer; (5) the trial court in the exercise of its discretion and from its unique coign of vantage was able to specifically determine the prejudicial effect of the incomplete question. State v. Stowers, 580 S.W.2d 516 (Mo.App.1979); (6) that at the time of trial such inquiry was proper under State v. Foster, supra. We believe that our conclusions are within the guidelines of State v. Dunn, supra. But we also believe that prosecutors should be extremely circumspect in making any inquiry into prior acts of misconduct and should not make specific inquiry of a defendant as to whether he has committed other crimes. The type of question under attack here should be absolutely avoided under peril of a declaration of mistrial.

Defendant next contends that the trial court committed error in overruling an objection to the following prosecutorial remarks during closing argument: “It isn’t some case where maybe he had a lady sitting down in a bus and takes a purse off her lap and she dies from a heart attack. That would make him guilty of Murder First Degree, anyhow.” Defendant’s counsel objected to the comment as a misstatement of the law. The objection was overruled with the trial court stating that the jury had been instructed that remarks made in closing argument were not evidence. Defendant is correct in asserting that during closing argument counsel should not argue questions of law, present false issues, or explain substantive law. State v. Holzwarth, 520 S.W.2d 17 (Mo. banc 1975); State v. Van, 543 S.W.2d 827 (Mo.App.1976). But assuming that the comment was improper, it is not every such remark that will constitute ground for reversal. State v. Lacy, 548 S.W.2d 251 (Mo.App.1977); State v. Belleville, 530 S.W.2d 392 (Mo.App.1975). We are persuaded by the precept that the trial court has substantial discretion in monitoring closing argument and determining whether comments are erroneously prejudicial. State v. Moomey, 581 S.W.2d 899 (Mo.App.1979). We cannot say as a matter of law that the jury was misled or confused as to the applicable law to constitute reversible error. State v. Belleville, supra.

Defendant’s third point of alleged error pertains to the indictment and proof of guilt. He claims that there was no causal connection between the robbery and the death and that the indictment was too vague. He stresses that Mrs. Ambrow had a pre-existing heart condition which had recently caused two prior myocardial in-farctions. We need not detail the evidence beyond that previously set forth. There was substantial credible evidence from the State’s medical expert that the assault on Mrs. Ambrow in the taking of her purse was the absolute cause of her fatal heart attack. After the prosecutor formulated a hypothetical question inclusive of the relative facts of the case including the pre-ex-isting heart condition, the following question was posed to the State’s medical expert:

Q. Mrs. Ambrow’s heart had those incidents occur to her as I described in my hypothetical. Would that incident cause her heart to go into failure, the stress from being drugged (sic) across the parking lot?
A. I am of the strong opinion that they would and that they did.

State v. Zweifel, 570 S.W.2d 792 (Mo.App.1978), is felicitous to the situation here. In Zweifel, the victim who had experienced a recent mild cardial infarction, succumbed to another when the defendant initiated a brouhaha with him. It was held that the medical testimony that the altercation “was the more probable cause” of the victim’s death was sufficient evidence to support the defendant’s conviction even though another possible cause of death existed by reason of the prior heart attack. Such is the situation and proof in this case. See: State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946).

Defendant next argues that the indictment was too vague. The alleged defective indictment, in pertinent part, reads:

. on or about the last day of July, 1976, the defendants) did willfully, unlawfully, and feloniously acting with another, steal a purse and its contents, . the property of one Virginia Ambrow, then and there in the lawful care and custody of Virginia Ambrow, and did then and there feloniously and by force and violence to the person of said Virginia Ambrow, rob and steal the said property from the person of, in the presence of, and permanently deprive the owner of the use thereof and to convert the same to his own use;
******
. on or about the 1st day of July, 1976, the defendants) did unlawfully and feloniously acting with another, cause the death of Virginia Ambrow, while committing the offense of robbery for force and violence against Virginia Ambrow on July 1, 1976; ....

The purpose of an indictment or information is to inform the defendant of the nature of the accusation made against him. State v. Jenkins, 494 S.W.2d 14 (Mo.1973). The information in the indictment or information must be sufficiently detailed so that the accused understands the nature of the charges and is able to prepare an adequate defense. State v. Hoelting, 562 S.W.2d 703 (Mo.App.1978). Here, the indictment clearly meets that standard. If defendant believed he needed more details, his recourse was to file a bill of particulars pursuant to Rule 24.03 V.A.M.R. His failure to do so constituted a waiver. State v. Jenkins, supra.

Finally, defendant contends that the trial court committed prejudicial error in giving the State’s verdict directing instruction, in that it failed to conform to the language of MAI — CR 6.19, “Felony Murder: Robbery”. However, the instruction upon which defendant relies was not in effect at the date of the trial. The court gave the proper instruction, MAI-CR 6.19 “Murder in the First Degree in Robbery”, effective as of September 28, 1975, and, therefore, committed no error.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . The holding of this case does not impinge upon the right of inquiry into the conviction for crimes on the issue of a witness’ credibility. § 491.050, RSMo 1978.

      . The MAI-CR 6.19 “Felony-Murder Robbery” instruction submitted by defendant applied to offenses committed before September 28, 1975. The offense here was committed on July 1, 1976.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    N. R., Individually and as Next Friend of N. R. J. D., Plaintiff-Appellant, v. R. J. D., Defendant-Respondent.
    No. 39520.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Deeba, DeStefano, Sauter & Herd, James J. Sauter, St. Louis, for plaintiff-appellant.
    Murphy, Schlapprizzi & Lane, Donald L. Schlapprizzi, Albert Lebowitz, St. Louis, for defendant-respondent.
   STEWART, Judge.

Action was brought against R.J.D., defendant, by N.R. as next friend of N.R.J.D., her infant daughter, and on her own behalf. The amended petition sought to have defendant declared the natural father of N.R. J.D. and for support; the mother also asked for custody and by a fair reading of the petition she sought reimbursement for lying in expenses.

The action was originally filed on November 4,1975. Defendant filed an answer and counterclaim. Discovery was had including depositions. Defendant died on August 7, 1976. Suggestion of death and motion to substitute party was filed on August 12, 1976. On November 8, 1976, after an administrator had been appointed, plaintiff filed a motion requesting that the administrator of the Estate of R.J.D. be substituted as the real party in interest. This motion was denied. Defendant then filed a motion to dismiss after which plaintiffs filed a motion seeking reconsideration of the court’s action with respect to the motion for substitution of party. At the same time plaintiff sought leave to file an amended petition. In Count I of the proposed amended petition the child through its next friend sought a declaration of paternity and a determination of heirship. The mother sought reimbursement for lying in expenses for herself and for moneys expended for pediatric services for the child. The proposed amendment did not seek support for the child. The court denied leave to file the amended petition and sustained J.R.D.’s motion to dismiss.

We consider first the proposed second amended petition because of one issue sought to be raised by that petition and which plaintiffs seek to present at this level. By the proposed amended petition, in addition to a determination of paternity, the infant plaintiff sought a determination of heirship. In seeking to be determined the heir of a putative father the illegitimate child, of necessity, attacks the constitutionality of our statutes on descent and distribution because it has been held that under our statutes an illegitimate child may not inherit from its natural father and the natural father may not inherit from his illegitimate child. §§ 474.060, 474.070, Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833 (1917).

Plaintiff contends that the circuit court had jurisdiction to determine heirship under § 527.040 which authorizes the circuit court by way of declaratory judgment “To ascertain any class of creditors, devisees, legatees, heirs, next of kin or other . . . .”

This issue is not before us for our determination because the circuit court had no jurisdiction to entertain this issue under the circumstances of this case. The estate of R.J.D. had been opened before plaintiffs asked leave to amend. The amended petition sought a determination of heirship for the first time.

By § 472.020 RSMo 1959 “[t]he probate court has jurisdiction over all matters pertaining to probate business ... including jurisdiction of . the determination of heirship.” When the application for letters was filed with the probate court in August of 1976 that court acquired jurisdiction to determine heirship and no other court of concurrent jurisdiction could interfere with its action. Younghaus v. Lakey, 559 S.W.2d 30, 31 (Mo.App.1977).

The issue of heirship was the only significant amendment to the first amended petition. The first amended petition contains all allegations necessary to a full consideration of the other issues to be considered by this court. We will confine our discussions to that petition.

The trial court dismissed plaintiff’s first amended petition. This action gives rise to the issue of whether the court could make a determination of the status of N.R.J.D. and entertain the claim of N.R. for lying in expenses after the death of defendant.

Primarily we note that at common law the illegitimate child was the child of no one. It had no standing. Under the common law of Missouri the father was not responsible for its support. State ex rel Canfield v. Porter, 292 S.W. 85 (Mo.App.1927). This harsh rule has been all but abrogated. It has been held that the equal protection clause of the United States Constitution prohibits the states from discriminating against illegitimate in favor of legitimate children. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Glona v. American Guarantee and Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

The father is primarily liable for the support of his legitimate child and he is now liable for the support of his illegitimate child. S_ v. W_, 514 S.W.2d 848 (Mo.App.1974). Moneys spent by the mother or by a third person to provide for the child and for lying in expenses are recoverable under the theory of quasi-contract. Swanson v. Swanson, 464 S.W.2d 225 (Mo.1971). See also V_ v. S_, 579 S.W.2d 149 (Mo.App.1979). As a general rule actions arising out of contract do not abate upon the death of the defendant. Stein v. Bruce, 366 S.W.2d 732 (Mo.App.1963).

The action for lying in expense being contractual in nature would survive the death of the putative father. An essential element of an action to recover such expenses is the paternity of the deceased. The Declaratory Judgment Act, § 527.010 RSMo 1969 provides “The Circuit courts . shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. . ” An action for declaratory judgment is the proper vehicle for determining the legal status of a child as the adoptive child or as the natural child of adoptive or natural parents. S_ v. W_, supra [2] at p. 853[2],

An action may be brought to establish the status of a person as the adoptive child of an alleged adoptive parent after the death or disability of the alleged adoptive parent. See Keiser v. Wiedmer, 263 S.W.2d 63 (Mo.App.1953) and Mize v. Sims, 516 S.W.2d 561 (Mo.App.1974).

Whether an action for the sole purpose of establishing the status of an illegitimate child, or as an element of an action that survives the death of a defendant, abates upon the death of the putative father, is an issue of first impression in Missouri. In most states where the issue has been determined the action for paternity is created by statute and it has been held that the action abates in the absence of a statute to the contrary. 10 Am.Jur.2d Bastards § 97. In other states it is said that, being governed by the common law, the action abates because such actions abated at common law. The cases we have read holding the latter view cite no authority for the assertion that the action abated at common law. See McKenzie v. Lombard, 85 Me. 224, 27 A. 110 (1892) and KK v. Estate of MF, 145 N.J.Super. 250, 367 A.2d 466 (1976). If there was no such action at common law as our cases indicate, it follows that there was no action to abate at common law. This casts some doubt upon the assertions made in McKenzie and in KK The duty to support a legitimate or illegitimate child terminates upon the death of the person liable for support. Fower v. Fower Estate, 448 S.W.2d 585 (Mo.1970). The early cases in which the rule was announced sought a determination of paternity and for support. Myers v. Harrington, 70 Cal.App.680, 234 P. 412 (1925). McKenzie v. Lombard, supra. That part of the action seeking support for the minor child would abate. It does not follow that the action for a declaration of the status should abate.

The tendency toward the establishment of the paternity of an illegitimate child after the death of the putative father can be seen in such cases as In Re Gordon, 54 Misc.2d 967, 283 N.Y.S.2d 787 (1967) and Henry v. Rodd, 95 Misc.2d 996, 408 N.Y.S.2d 745 (1978). If an action to establish the status of a person as an adoptive child survives the death of the adoptive parent, to hold that an action to establish the status of an illegitimate child abates would seem to discriminate against the illegitimate child. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee and Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); R_ v. R_, 431 S.W.2d 152 (Mo.1968).

Our trial courts are capable of discerning the truth and determining issues presented to them. We can find no logical reason to hold that an action to establish the paternity of an illegitimate child abates upon the death of the putative father. “The law . should not look with favor upon suspending the question of parentage of a child in limbo . . . A.B.C. v. X.Y.Z., 50 Misc.2d 792, 271 N.Y.S.2d 781, 785 (1966).

We hold that the action to determine the status of N.R.J.D. did not abate upon the death of R.J.D. That part of the action seeking support for the child did abate.

The mother’s action for lying in expenses is in the nature of an accrued debt or quasi-contract. Such actions do not abate upon the death of the debtor. Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301 (1951).

The paternity of the child is a necessary element of the mother’s action. Defendant cites Charles v. James, 56 Misc.2d 1056, 290 N.Y.S.2d 993 (1968) for the proposition that in an action for lying in expenses determination of paternity must be made prior to the death of the defendant. That case is not appropriate because the child in that case had been adopted by others before the action was brought. As the court said at p. 995:

Once an order of adoption is entered by a court the question of a child’s paternity is no longer in doubt. By the very order of adoption the child’s paternity is established and the adoptive parents become the natural parents and a new certificate of birth is ordered reflecting that change.

What we have said above with respect to the right of the illegitimate child to have his status determined would provide the opportunity for proof of this element of the mother’s case.

Once the status of the child is determined in this cause it would be res judi-cata as to that issue so far as the proceedings in the probate court are concerned. Although the probate court is now a division of the circuit court only minor changes have been made to § 472.020. The title of the statute still refers to the “jurisdiction” of the probate division of the circuit court. It is thus apparent that dependent upon the determination of the present action the probate court could have jurisdiction to make a determination of heirship if N.R.J.D. is found to be the child of R.J.D. At that time the constitutional question of the validity of the statutes on descent and distribution would be ripe for determination.

The judgment of the trial court is reversed and the cause is remanded for further proceeding consistent with this opinion.

STEPHAN, P. J., and KELLY, J., concur.

      . The counterclaim was dismissed and is not a consideration on this appeal.

      . A similar statute has been held to be unconstitutional. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

      . See Vol. 1 Matthew Bacon’s A New Abridgment of the Law, p. 746, Bastardy (7th Ed. 1832).

      . “The probate division of the circuit court may hear and determine all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians of minors and persons of unsound mind, settling the accounts of executors, administrators and guardians, and the sale or leasing of lands by executors, administrators and guardians, including jurisdiction of the construction of wills as an incident to the administration of estates, of the determination of heirship, of the administration of testamentary and inter vivos trusts, of mental incompetency proceedings as provided by law and of such other probate business as may be prescribed by law.”


text:
    STATE of Missouri, Respondent, v. Gregory MONTGOMERY, Appellant.
    No. 40096.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.

      Prank R. Fabbri, III, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Michael P. Donegan, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant appeals his first degree robbery conviction. He assigns as error the admission of identification testimony and oral and written incriminating statements made by him. The defendant also attacks the court’s refusal to allow him to inquire into the availability of other persons to participate in lineup procedures while allowing the State to comment on the lineup. He also challenges the trial court’s refusal to allow his counsel to comment on police failure to process the robbery weapon for fingerprints. We affirm.

On a summer mid-afternoon, 75 year old Mrs. Isabelle Boggs was waiting for a bus in north St. Louis. A man identified as the defendant approached her, stuck a screwdriver against her back and demanded her valuables on pain of death. Mrs. Boggs surrendered her purse to the defendant. The entire episode was witnessed from a nearby automobile by Mr. and Mrs. Will Robinson and their 14 year old daughter, Jodi, who had noticed the defendant approach Mrs. Boggs and had suspected some nefarious activity. After the assault on Mrs. Boggs, the defendant jogged by the Robinsons’ auto, faced them and cursed them if they offered aid to the victim. The Robinsons followed the defendant and observed him enter an old model automobile. They took written note of the license plate, reported the incident to the the police and returned to be with Mrs. Boggs to await aid. When the police arrived, Mrs. Boggs and the three Robinsons gave the same vivid description of the defendant: “a negro male, 22, five feet two, 150 pounds, black hair, medium complexion, medium built, beige cap, no shirt, short blue jeans”. It was also noticed that the defendant’s hair was plaited in corn rows. Shortly thereafter, about six blocks from the robbery, the police officer who had interviewed Mrs. Boggs and the Robinsons, spotted the defendant in an auto bearing the description and license plate number given to him. The defendant was in the auto and matched the exact description given to police. A search of the auto brought forth the screwdriver fitting the description of the robbery weapon and a plastic bus pass holder of the kind which had been in Mrs. Boggs’ purse.

Defendant was taken to a police station and placed in a lineup attired as he had been during the robbery, i. e., sans shirt. Defendant’s two companions in the lineup, although black males, were taller than he and both wore shirts; neither had his hair braided. The height differential was emphasized because of defendant’s deliberate slouch. One of the lineup participants was the police officer who had initially interviewed the witnesses. Mrs. Boggs and the three Robinsons positively identified defendant as the assailant, and when he was confronted with the identification, the screwdriver and bus pass holder, he gave oral and signed statements admitting the robbery.

Defendant first contends that the lineup was unnecessarily suggestive; that the resulting identification and confessions should have been excluded.

Although an out of court identification may be unnecessarily suggestive, it is inadmissible only if there is substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). “Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1970), teaches that reliability, rather than suggestiveness, ‘is the linchpin in determining the admissibility of the identification testimony . . . State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978). Whether an identification is reliable depends on the totality of the circumstances:

[T]he factors to be considered in evaluating the likelihood of the misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382; State v. Carter, supra.

Under the circumstances of this case we need not make any determination as to whether the lineup procedures were so unnecessarily suggestive as to render the identifications of defendant inadmissible. The keystone to admissibility is that the victim and the witnesses were able to identify defendant in and out of court under manifestly reliable circumstances. The witnesses and the victim had an excellent opportunity to view the assailant and study his features; the crime occurred in broad daylight; the assailant’s face was about five inches from the victim’s for several minutes; the Robinsons watched the defendant for several minutes as he approached and confronted the victim and then departed; and, finally, the defendant looked directly at the Robinsons from a distance of several feet and spoke to them. The Robinsons had a high degree of attention; when they realized a crime was going to occur they pulled their car to the side of the road and watched the defendant confront the victim. The Robinsons’ description was detailed and accurate to all points except one, whether the assailant wore a beige cap. The Robin-sons and victim were certain in their identification of defendant at the out of court identification proceedings and in court. Finally, the time lapse between the robbery and the lineup was only about two hours.

The legal cornucopia is overflowing with law which supports the admissibility of the in court identification of defendant and under circumstances similar to those here. State v. Gormon, 584 S.W.2d 420 (Mo.App.1979); State v. McGraw, 571 S.W.2d 802 (Mo.App.1978); State v. Radford, 559 S.W.2d 751 (Mo.App.1977); State v. Proctor, 535 S.W.2d 141 (Mo.App.1976); State v. Arnold, 528 S.W.2d 164 (Mo.App.1975). See: State v. Burns, 581 S.W.2d 590 (Mo.App.1979).

The finding that the identification was reliable disposes of the defendant’s second point of alleged error that his oral and written statements after the identification should have been suppressed as fruit of an illegal identification procedure. There was no error in their admission.

Defendant contends that the trial court erred in allowing the prosecutor to comment on the unavailability of other black males for the lineup after his counsel had been precluded from making comment on the issue. Defendant relies primarily on the rule that it is improper to comment on testimony that has been excluded. State v. Connell, 523 S.W.2d 132 (Mo.App.1975). During the course of the trial the prosecutor had presented testimony that the black officer who initially arrested the defendant and had also appeared in the lineup was “the only other black person in the station that wasn’t wearing a uniform”. The defendant was prevented from cross-examining as to whether there may have been black persons available for use in the lineup in the police station holdover. In closing argument the prosecutor again made reference to the fact that there was only one non-uniformed black officer in the station, which was the evidence before the court. The defendant’s objection, “That’s not in the evidence . . . ” was overruled. The ruling was proper because the prosecutor’s comment was based on facts in evidence— that only one non-uniformed black officer was in the station — not on the evidence that was excluded concerning the availability of other lineup participants among prisoners.

Defendant’s final point relates to the trial court’s ruling that his counsel was not permitted to question the officer who had seized the screwdriver regarding whether he had ordered fingerprints taken. He argues that the court’s ruling prohibited him from making any relevant inquiry as to the fingerprints. The arresting officer on cross-examination was asked whether he had directed the evidence technician unit to test the screwdriver for prints. An objection to the question was sustained, and the defendant’s offer of proof was that he would try to show that no effort had been made to have any prints taken.

The relevance of this line of inquiry as to the police officer is not apparent. The defendant’s theory was that careless police procedures combined with the undue suggestiveness as to identity resulted in the misidentification of defendant as Mrs. Boggs’ assailant. But the defendant has failed to demonstrate the relevancy of his attempted interrogation of the arresting officer. The mere fact that the particular witness did not request fingerprints would not show the inadequacy of police investigation without some indication that the request could have been honored, or, for that fact, that such request would have been within the realm of his authority in the investigation. The officer’s failure to make the request is not dispositive of the issue whether an attempt to secure fingerprints was actually made. The trial court did not abuse its discretion in finding the interrogation without relevance. State v. Lee, 556 S.W.2d 25 (Mo. banc 1977). Further, the ruling did not prevent defendant, as he contends, from delving into the fingerprint issue. There is no indication that the court intended such ruling to apply to other qualified witnesses.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: CRIST, Judge.

text:
    George Clarence WALKER, Appellant, v. Gerald H. GOLDBERG, Director of Revenue of Missouri, Respondent.
    No. 40909.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.

      Richey & Price, Michael A. Price, Cape Girardeau, for appellant.
    John Ashcroft, Atty. Gen., Arnold R. Day, Asst. Atty. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   CRIST, Judge.

The Director of Revenue revoked appellant’s driver’s license for one year for refusal to submit to breathalyzer test pursuant to § 564.444, RSMo. 1969. The circuit court affirmed the revocation of the license. Appellant’s brief argues: (1) the evidence establishes appellant did not refuse to take the breathalyzer test; (2) if appellant did refuse to submit to the test, such refusal was not directed to his arresting officer and is, therefore, not prohibited conduct under § 564.444, supra; and (3) the Director of Revenue acted without authority upon an invalid affidavit. We affirm.

Appellant was arrested for suspicion of driving while intoxicated by Officer Gra-yum. Appellant cooperated with police while in the field and agreed to go to the police station to take a breathalyzer test. When appellant and Officer Grayum reached the station, they were joined by Officer Wilson, the qualified breathalyzer operator. Thereafter, although appellant maintained his willingness to take the breathalyzer test, he would not arise from the chair in which he was seated, walk across the room to the breathalyzer machine, and physically perform the test. The police testified that, rather than take the test, for a period of 30-45 minutes, appellant would only equivocate and dispute entries on the Alcohol Influence Report Form. The focus of the argument concerned the recordation of the time the test was being administered. After Officer Wilson repeatedly requested appellant to take the test without result, Officer Wilson informed appellant his actions were considered a refusal. Appellant reiterated his protestations concerning the time to be recorded. Appellant, on the other hand, testified he was in the process of completing and reviewing the Alcohol Influence Report Form while Officer Wilson requested him to physically take the test, that the transaction took only 15 minutes, and that Officer Wilson merely instructed Officer Grayum to record the incident as a refusal rather than warning appellant his actions would be considered a refusal.

We believe the evidence does support the finding that appellant refused to submit to the breathalyzer test. A refusal may be accomplished by inaction or by a qualified or conditional consent or refusal and is not limited to verbal refusals. Spradling v. Deimeke, 528 S.W.2d 759, 766 [13] (Mo.1975). If evidence upon the issue whether the defendant refused to submit to the chemical test is conflicting, the appellate court shall defer to the trial court’s finding there has been a refusal. Stenzel v. State, Dept. of Revenue, 536 S.W.2d 163, 168-69 [8] (Mo.App.1976).

We also believe appellant’s refusal to submit to the breathalyzer test was not innocuous because directed to Officer Wilson, the testing officer, rather than Officer Grayum, the arresting officer. The fact that appellant refused to take the test upon the repeated requests of Officer Wilson rather than Officer Grayum is of no importance. The questions were posed in the presence of the arresting officer. Grayum was a participant, albeit a silent one. Section 564.444-2(3), supra, requires only that “the person refused to submit to the test.” Cf., Jones v. Schaffner, 509 S.W.2d 72, 76-77 [4] (Mo.1974) (the arresting officer need not be the officer who warns that refusal to take the test can result in the revocation of one’s license). The requirements of § 564.-444, supra, were met.

Appellant contends the Director of Revenue was without authority to revoke his license because the affidavit upon which the action was based was inaccurate and not sworn in the presence of a notary. This contention is without merit. The affidavit as submitted to the Director was in due form. It was admitted into evidence without objection.

Appellant contends the affidavit was inaccurate because the testimony of Officer Grayum, the arresting officer, establishes he did not, as stated in the affidavit, personally request appellant to walk to the machine and take the breathalyzer test and receive a verbal refusal from appellant. We do not find appellant’s argument persuasive. Officer Grayum was, at all times pertinent, in the immediate presence of the officer qualified to administer the breathalyzer test. Such officer did personally request appellant to walk to the machine to take the test and did personally receive appellant’s refusal by inaction. In such a situation, the actions, knowledge, and responses of the officer qualified to give the breathalyzer test should be imputed to the arresting officer. The affidavit was not inaccurate.

Appellant also challenges the arresting officer’s affidavit because it was not sworn in the presence of a notary. The only evidence in the record in this regard is as follows:

“MR. PRICE: Q. You’ve already testified that that is your signature. A. [by Officer Grayum] Yes, sir.
Q. Do you understand that this is an affidavit which is sworn to before a notary public?
A. Yes, sir.
Q. And was Louise M. Cole present at the time that you signed that affidavit?
A. No, sir.”

Contrary to appellant’s contention, Officer Grayum’s testimony does show his affidavit was “sworn to before a notary public” as required by statute. The mere fact that the notary was not present when the officer signed the affidavit does not preclude the fact of swearing at a later time. Stenzel v. State, Dept. of Revenue, 536 S.W.2d 163, 169 [10-11] (Mo.App.1976). Officer Gra-yum’s affidavit was signed and sworn to and therefore sufficient. Stenzel v. State, Dept. of Revenue, supra.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: STEPHAN, Presiding Judge.

text:
    Shirley Sue CASTERLINE, Plaintiff-Appellant, v. Dr. Lawrence G. STUERMAN, Charlotte Wetzel Wood, Dorothy Windmiller Payne, Vickie Elaine Bruch, D. Rule Campbell, Carol Petrie Campbell, Carol Calvin, Helen Fisher, Dr. Eugene Bricker, William Naxera, Sr., Adele Kooreman, Shirley Butters, George Nienhueser, Defendants-Respondents.
    No. 39897.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 28, 1979.

      Henry Gerhardt, St. Charles, for plaintiff-appellant.
    James G. Rittenbaum, Louisiana, Carr L. Woods, Bowling Green, Edward A. Glenn, Louisiana, Paul E. Williams, Bowling Green, Gerre S. Langton, St. Louis, for defendants-respondents.
   STEPHAN, Presiding Judge.

Plaintiff appeals from the trial court’s order granting defendants’ motions for summary judgment. We review the record in the light most favorable to the party against whom the trial court entered summary judgment, Peer v. MFA Milling Co., 578 S.W.2d 291, 292[1] (Mo.App.1979), and reverse and remand.

The first amended petition alleged that plaintiff had been employed as the Director of Nurses of the Pike County Memorial Hospital since May 1974, and had been appointed as the Assistant Administrator of Smith-Barr Manor Nursing Home, which was to be opened and operated by the Pike County Memorial Hospital; that her contract of employment with the hospital administration was oral; and that she was dismissed from her employment on or about January 23, 1976, as a result of the concerted activities of the thirteen defendants. Other pertinent allegations are set out in the margin. The petition concluded with a prayer for $50,000 actual and $150,000 punitive damages.

After filing a variety of motions to make more definite and certain, to strike, and to dismiss, all defendants eventually filed motions for summary judgment supported by an affidavit of Pike County Clerk James R. Baker to the effect that the Pike County Memorial Hospital is wholly owned and operated by Pike County. The affidavit was not controverted by plaintiff; and, as indicated, the motions for summary judgment were granted. The trial court gave no reasons for its actions other than finding “no genuine issue as to any material fact.” However, we discern from the transcript and the briefs that defendants’ principal position below as well as in this court is that, because plaintiff’s contract of employment with the hospital was not in writing, she may not maintain this action. Their primary authority for this argument is § 432.070, RSMo 1969, which reads:

“No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

From the foregoing, defendants argue that counties may contract only in writing; plaintiff did not have a written contract; therefore, plaintiff did not have a contract the breach of which they could induce. We are not persuaded by this reasoning for the petition also alleges that defendants wrongfully interfered with plaintiff’s “relationship and expectations” with her employer.

Assuming that the Pike County Hospital, as an instrumentality of the county, is subject to the strictures of § 432.070, supra, cf. Fulton National Bank v. Callaway Memorial Hospital, 465 S.W.2d 549, 551 (Mo.1971), we hold that the defendants, sued in their private, individual capacities can take no benefit from it. The purpose of the statute is to protect the county. Miller v. City of St. Joseph, 485 S.W.2d 688, 692[3] (Mo.App.1972); State ex rel. Walton v. Miller, 297 S.W.2d 611, 614 (Mo.App.1956). It was not designed to insulate individuals from liability for their tortious acts.

It is undisputed that, as between plaintiff and the hospital, there existed an employment relationship of indefinite duration which had existed for a fairly substantial period of time prior to her dismissal. Whether this relationship is or is not termed a “contract” cannot logically affect plaintiff’s right to protect it or seek redress for unjustified interference with it. In an often cited case involving interference with business and contractual relationships, our Supreme Court said:

“The right óf recovery for inducing a breach of a contract is but one instance of the protection which the law affords against unjustified interference in business relations. An existing contract may be a basis for greater protection, but some protection is appropriate against unjustified interference with reasonable expectancies of commercial relations even where an existing contract is lacking. The unjustifiable character of the alleged wrongdoer’s conduct and the harm caused thereby may be equally clear in both instances, but the differentiation between them relates to the scope of the privileges, or the kind and amount of interference that is justifiable in view of the differences in the facts.”

Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976, 980 (1953). See also Harber v. Ohio National Life Insurance Co., 390 F.Supp. 678, 683 (E.D.Mo.1974), aff’d 512 F.2d 170 (8th Cir. 1975), in which the court recognized the existence of a cause of action for interference with “a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy”; and the factually similar case of Owen v. Williams, 322 Mass. 356, 77 N.E.2d 318 (1948). In Owen, a nurse successfully prosecuted an action for damages against a physician who maliciously “procured” her dismissal by hospital authorities from a case on which she was working as a special nurse and prevented her further employment. At page 322, the court said:

“And in order to maintain the action it was not necessary that the plaintiff prove that she had a binding contract with the hospital. It is well settled that an existing or even a probable future business relationship from which there is a reasonable expectancy of financial benefit is enough.”

In view of the foregoing, we hold that the lack of a formal, written contract between plaintiff and the hospital did not warrant the granting of the motions for summary judgment.

Reversed and remanded.

SATZ and STEWART, JJ., concur.

      . “5. That the Defendants knew of the contractual rights and relationship and expectancy of the Plaintiff, Shirley Sue Casterline with her employer, the Pike County Memorial Hospital.
      6. That the Defendants wrongfully, maliciously, viciously, unlawfully and with the intent to harass, annoy, persecute and injure the Plaintiff, Shirley Sue Casterline, persuaded and procured the Board of Trustees of the Pike County Memorial Hospital to dismiss and terminate the Plaintiff from her position of employment, and pursuit of her livelihood with said Hospital.
      7. That the Defendants by their conduct and language sought to create a prejudice or feeling against the Plaintiff, and said Defendants in a concerted action, assembled information in such a way, made vague general accusations, misstatements of existing facts, used false, malicious and fraudulent representations to procure the discharge and termination of Plaintiff, some of which were to the general tenor and effect that Plaintiff was responsible for alleged hospital employee job insecurity, lack of communication, long hours of work, shortage of nursing personnel and decline in quality of patient care, that the activities of Plaintiff allegedly led to less cooperation among hospital employees and said Defendants in concert unlawfully threatened a hospital employee’s walkout unless the Plaintiff, Shirley Sue Casterline, was removed or terminated from her position of employment with the Pike County Memorial Hospital.
      8.That the Defendants’ conduct and representations were without justification or excuse and that said Defendants’ actions, language and threats were unlawful and expressly interfered with the contractual rights, relationship and expectations of Plaintiff, Shirley Sue Casterline, with her employer The Pike County Memorial Hospital. ******
      10. That the Plaintiff, Shirley Sue Caster-line, was dismissed and terminated from her employment with the Pike County Memorial Hospital on or about January 23, 1976.
      11. That the said conduct and language and threats of the Defendants has deprived the Plaintiff, Shirley Sue Casterline, of her means of livelihood, exposed her to public contempt and ridicule, deprived her of her professional status in hospital administration, deprived her of income and earnings, and will continue to deprive her of said income and earnings in the future, and that the actions and representations and threats of the Defendants and resulting termination have humiliated the Plaintiff, injured her reputation, and has caused her to endure great mental suffering and to incur other resulting expenses and costs by reason of her termination of employment, including the relocation of her home and residence.”


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Sandra Foote STANFORD, Appellant, v. Richard MORGAN, M.D., Defendant.
    No. KCD 30077.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Charles C. Shafer, Jr., Herman M. Shaffer, George S. Murray, III, Kansas City, for appellant.
    Larry L. McMullen, D. Brook Bartlett, Kansas City, for defendant.
    Before HIGGINS, Special Judge Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by plaintiff from judgment on verdict for defendant in medical malpractice action premised on failure of informed consent. The questions are: whether the court should have defined “negligent”; whether plaintiff was entitled to show defendant’s malpractice insurance coverage; whether plaintiff was entitled to testimony of an undisclosed psychologist; whether a defense expert witness should have been barred under the witness exclusion rule; whether the trial court abused its discretion in conduct of chambers proceedings with respect to recesses and hours of court; whether the verdict was against the weight of the evidence; whether the court abused its discretion in connection with defendant’s use of an article on informed consent in cross-examination of a witness, and comment on plaintiff’s failure to call her psychologist as a witness. Affirmed.

Plaintiff’s action was cast in three counts: (1) Medical Malpractice, (2) Wrong Diagnosis, and (3) Failure of Informed Consent. Upon conclusion of her evidence, she dismissed Counts 1 and 2. Upon conclusion of all evidence she submitted her case by Instruction No. 3 in form MAI 21.01, which directed a verdict for her if the jury believed that defendant “failed to disclose all material risks of the operation”, and “was thereby negligent”, and “as a direct result * * * sustained damage”. This was conversed by Instruction No. 4 in form MAI 33.02(2), which directed a verdict for defendant if the jury did not believe “that defendant was negligent”. The court also gave Instruction No. 5 in form MAI 11.06, which defined “negligence” as “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession”.

Sandy Foote, at about age 7, sustained surgical removal of her spleen with resultant oblique scar and stitch marks from between her breasts down to the left of her navel.

On March 4, 1974, at age 25, she consulted Richard Morgan, M.D., about removal of her stitch marks. She also had hereditary “dimpling” on both thighs caused by excess fatty deposits which was also discussed. Miss Foote inquired about corrective exercise. Dr. Morgan indicated the ineffectiveness of exercises, and described an operation known as “thigh lift”, available as elective surgery in the treatment of fatty thigh problems.

Miss Foote and Dr. Morgan discussed these matters on a second office appointment March 16, 1974, and it was agreed that Dr. Morgan would operate both conditions March 21, 1974.

The surgery was performed as scheduled, and Miss Foote was released from the hospital March 28, 1974.

Miss Foote felt she had a bad result with red, painful, itchy scars, wider than before in repair of the stitchwork, and limitations on her work and quality of life. Her evidence on result was to that effect; the doctor’s evidence was that the result was within acceptable standards.

The issue of warnings for purposes of informed consent was equally contested. Miss Foote maintained she had not been warned of the risks of pain, scarring and limitations; Dr. Morgan insisted he gave warnings sufficient to enable his patient to make an informed consent to the surgery performed. Both sides introduced expert testimony on standards of informed consent.

Appellant charges the court erred (1)“in giving Instruction Nos. 3, 4 and 5 without defining both of the terms ‘negligent’ and ‘negligence’. New instruction (MAI 11.06) requires both definitions now, but MAI 21.01 does not”. She argues that the instructions were thus confusing “and accordingly became prejudicial”.

This case was tried in November, 1977 and Instructions 3, 4 and 5 were in the form mandated for use, prior to January 1, 1978. The revision of 11.06 which required reference to and definitions of both “negligent” and “negligence” was ordered by the Supreme Court May 23, 1977, effective January 1, 1978. Nothing in the order required use of revised MAI 11.06 prior to January 1, 1978; nor was there anything in the order prohibiting use of revised MAI 11.06 prior to the effective date. To the contrary, their use prior to that date was not presumptive error. MAI, 1978 Pocket Part, XVI. Plaintiff could have asked for the definition available through revised MAI 11.06 in which case both “negligent” and “negligence” would have been given the single and same definition as that in Instruction No. 5.

Appellant charges the court erred (2) in refusal of plaintiff’s request and offer of proof to the jury, through questions to defendant of defendant’s malpractice insurance coverage. She argues that “the real defendant is the insurance company who was paid for taking the defendant’s risks and then hides behind the fictitious shield to lines of inquiry not enjoyed by other parties”; and that by precluding such testimony a jury is allowed to speculate whether a damage award might bankrupt defendant. Plaintiff was thus unconstitutionally denied a fair trial of all issues and evidence.

Appellant’s desire to examine defendant does not appear relevant to any issue in this case, and rejection of the offer of proof was proper. “Only in rare cases and where relevancy is clearly shown should the fact of the existence of insurance coverage be admissible”. Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481, 493 (Mo.App.1972). See also Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787 (banc 1977).

Appellant charges the court erred (3) “in refusing to permit plaintiff an opportunity to produce her psychologist or testify fully in regard thereto; by holding psychologist to be a member of the healing arts where it was not true; by refusing plaintiff’s requests to amend interrogatories, to continue the case, to delay for one-half day, and abused plaintiff further by misapplying Civil rule 56.01(e) (on duty to supplement answers to interrogatories) and by refusing dismissal of the petition without prejudice and finally permitting only limited inquiry of plaintiff as to her visits with psychologist; such rulings * * * evidencing an abuse of discretion which was erroneous since it denied jury of all pertinent evidence and was prejudicial to plaintiff’s right to fair and impartial trial.”

The record shows that plaintiff never requested permission to call the psychologist as a witness, counsel stated he did not intend to call the psychologist, and the motion for new trial contains no allegation that the court erred in preventing her from calling her psychologist. The record also shows that plaintiff was permitted to testify about her psychologist to the extent requested by counsel. Plaintiff’s first reference to consultation with a psychologist occurred during her re-direct examination on the second day of trial. Prior to such incident, she had failed to furnish his name in response to an interrogatory requesting names of all doctors who had treated her for injuries claimed, when responding to an interrogatory requesting information on any illness, sickness or disease before and after her operations by Dr. Morgan, when responding to an interrogatory requesting name of any psychiatrist or psychologist who had been consulted for mental, emotional or nervous conditions or complaints within the past ten years, and when, during cross-examination on the first day of trial, she denied seeing a psychiatrist “or anything” or having received treatment for emotional problems since her treatment by Dr. Morgan.

When plaintiff revealed she had consulted with a psychologist with regard to emotional problems, defendant objected to testimony about the psychologist for failure to disclose during discovery. When the objection was sustained, plaintiff offered to prove that she had sought psychological help for emotional distress after answering interrogatories; that she so told counsel the night before; the reasons she sought psychological help, and that she still had emotional problems. She wanted also to establish that she visited the psychologist twelve times regarding emotional problems in connection with sexual relations with her husband. Plaintiff also sought a half day recess to look into the situation regarding the psychologist, and later requested leave to dismiss without prejudice in order to get evidence of emotional problems before a jury. In response to all such requests, the court spoke to the record:

“THE COURT: Well, so there will be no misunderstanding then, by reason of the statements of counsel which have been in the course of this record, the Court does overrule the plaintiff’s motion for leave to dismiss the petition without prejudice.
The plaintiff will be permitted to testify on direct examination as to the identity of the psychologist who was consulted by the plaintiff.
The plaintiff will, in connection therewith, be entitled to describe her emotional problems which evidence, of course, is already in the record to some extent. And the plaintiff will be permitted to identify the time period during which consultations were had with the psychologist. And that will be the extent of the inquiry permitted.
Plaintiff will not be permitted to testify as to expenses incurred by her visits to the psychologist.
Of course, the plaintiff will not be permitted to testify as to what the psychologist told her—
MR. SHAFER: Oh, shucks.
THE COURT: —or anything beyond the limited areas that we have just mentioned.
Now, of course, should the defendant open up any of the subject matter on cross-examination, then that will alter the subject matter of it”.

Appellant’s difficulty under this point is demonstrated by her acknowledgement that such rulings are matters within the discretion of the trial court; and that such exercise of the court’s discretion will not be disturbed on appeal unless it is manifest that it was abused. Fowler v. S-H-S Motor Sales Corp., 560 S.W.2d 350, 356 (Mo.App.1977). This record does not so show.

Appellant charges the court erred (4) in an abuse of discretion with respect to enforcement of the rule of exclusion of witnesses by permitting Dr. Masters to testify after he had been in the courtroom for two minutes, and refusing to permit plaintiff’s husband, Barry Stanford, to testify after he had been in the courtroom for two days.

Appellant acknowledges that exclusion of witnesses during trial is a matter within the discretion of the trial court. Dr. Masters was called by the defense as an expert on the plastic surgery performed by plaintiff. The record shows that Dr. Masters was present inadvertently for two minutes during the admission on behalf of defendant of hospital records. There is no demonstration of prejudice to plaintiff’s case by such presence. No abuse of discretion appears from the receipt of his testimony. State v. Lord, 286 S.W.2d 737, 741 (Mo.1956). In contrast, Mr. Stanford had sat through two days of trial, when he was offered for the limited purposes of discussing sexual problems he and his wife had experienced during their marriage, a subject covered by Mrs. Stanford in her testimony. Exclusion of his testimony in such circumstances was consistent with enforcement of the rule, and thus did not constitute an abuse of discretion.

Appellant charges the court erred (5)“in losing his judicial cool in his comments and rulings as to plaintiff’s breast feeding of her new baby which * * * upset plaintiff and her counsel and instilled in both the impression that the trial court was prejudicial * * * and the incident caused the court to abuse its discretion * * while preventing plaintiff from a fair and impartial trial * *

The referenced incident took place in chambers. It occurred in discussion of frequency and places of breast feedings of plaintiff’s child and hours of trial. There is no showing that the jury was made aware of the matter, nor is there any demonstration of prejudice. Accordingly, there is no basis for the charges of prejudice and abuse of discretion. Holt v. Queen City Loan and Investment, Inc., 377 S.W.2d 393, 401 (Mo.1964); Harriman v. Harriman, 281 S.W.2d 566, 571 (Mo.App.1955).

Appellant charges the court erred (6) in failing to grant a new trial “because the verdict was clearly against the weight of credible evidence on the issue of informed consent * * *

An appellate court is not authorized to weigh the evidence. Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 916 (banc 1951). Accordingly, this charge was for the trial court alone. Stevens v. Wetteran Foods, Inc., 501 S.W.2d 494, 496 (Mo.App.1973).

Appellant charges the court erred (7) in permitting defendant to use an article, “Observations on the Myth of Informed Consent”, in examination of plaintiff’s expert on the issue of informed consent.

The article was written by Dr. Lynch of the Department of Plastic Surgery at Vanderbilt University. Although its authoritativeness was founded, it was never introduced. After its foundation was laid, Dr. Bass was asked if he agreed with its conclusions on patients’ retention of physicians’ warnings. This use falls within the rule that it is proper to cross-examine a medical expert by framing a proposition in the language of the author of a medical text and asking the witness if he agrees with the proposition. Gridley v. Johnson, 476 S.W.2d 475, 481 (Mo.1972).

Appellant charges the court erred (8) in permitting defendant to comment in argument on the absence of plaintiff’s psychologist.

Plaintiff did not preserve this allegation of error for review by inclusion in her motion for new trial.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Lenwood COLE, Appellant.
    No. 30004.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Rehearing Denied Oct. 1, 1979.

      Allen I. Harris, St. Louis, for appellant. John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Hope E. Thurrott, Spec. Asst. Atty. Gen., Kansas City, for respondent.

      Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment on convictions by a jury of murder, second degree, and assault with intent to kill with malice aforethought. In question: the sufficiency of evidence to establish the requisite mental state; admission of evidence of the victims’ family status, and a photograph of the crime scene; instruction on voluntary intoxication; failure to give tendered instructions on diminished responsibility, and failure to declare mistrial on the State’s argument. Affirmed.

This case arose from the shooting of two police officers in defendant’s home at 7434 Canton Avenue, University City, Missouri, Sunday, February 22, 1976. He was indicted on charges of capital murder, § 559.005, Laws of Missouri 1975, and felonious assault with malice aforethought, § 559.180 RSMo. He pleaded not guilty and not guilty by reason of mental disease or defect excluding responsibility.

One week prior to the shooting, defendant was treated for pneumonia at St. Louis County Hospital. He was given a shot of ampicillin and prescriptions for oral ampicil-lin and codeine to be taken for the ensuing week. He missed some work during the week as a result of his illness, but had returned to work on Saturday before the shooting. He worked the night shift, returned home Sunday morning and went to bed.

He arose about noon Sunday. At 2:00 p. m., he took a codeine tablet, left home and drove to a nearby bowling alley. Enroute, he drank one-half pint of bourbon whiskey. He went later to a lounge where he drank two beers and a mixed drink.

He returned home between 7:00 and 7:30 p. m., and took one tablet each of ampicillin and codeine. He went to his room and called his oldest son, age eight. He told his son he was to be the man of the house, then called his other two sons and told them they were to mind their older brother. Following this conversation with his sons, defendant asked his wife if she wanted her freedom. During this conversation, the second son brought a vase of flowers to defendant which he flung across the room, breaking the vase. Without coat or shoes, defendant went to the front door, told his wife life did not matter any more, that she would be better off without him, and that insurance would take care of her and the children. He left in his car; and, at this time, about 8:00 p.m., defendant’s wife made the first of several calls to the University City Police Department. She informed the dispatcher her husband was “acting crazy” and had just left the house. She asked for help. A few minutes later, she called the police again and informed them defendant was home. Defendant had returned home and gone to bed. Two or three minutes later, Officer Didden arrived; Officer Graham arrived shortly thereafter. Defendant’s wife admitted them to the living room area of the house.

Defendant heard the voices of the two officers and the squelch of their radios. He came from his bedroom to the living room and asked the officers what they were doing there. One of the officers told him they had been called by his wife for a family disturbance. Defendant said there was no disturbance and told the officers to leave. The officers insisted they would stay until the disturbance was settled. Defendant told the officers to leave several more times and took their names and badge numbers with threats to call their captain to have them removed. Defendant left the room, returned with a shotgun, and said, “I told both of you I want you out of here and I’m no.t telling you anymore.” He then fired three blasts. Two of them hit and killed Officer Graham; the third wounded Officer Didden in the jaw and neck. Defendant’s wife took the gun from defendant, after which he called the University City Police and reported, “I just killed them. I told them to get out of my house, they wouldn’t get out of my house. I just killed two of them here. Didden and Graham.”

One or two minutes later defendant was arrested, handcuffed and placed in a police car. He was crying, and stated a couple of times, “I shot them”. Upon arrival at the police station, defendant was given a breathalyzer test and a reading of .20 was recorded. A videotape confession was also recorded.

That defendant shot the officers was conceded. Three doctors addressed the issue of defendant’s mental state at the time of the shooting. Dr. Nathan Mark Simon, believed the combination of illness, alcohol and drugs produced a “toxic psychosis” in which defendant was not responsible for what he was doing, where he could not distinguish between right and wrong, and where his actions were impulsive.

Dr. Paul A. Dewald could come to no conclusions on defendant’s state of mind. His hypothesis was that defendant’s generally weakened psychological and physical condition, codeine and alcohol ingestion, and other things “may very well have caused a toxic state, a delirium * * * in which an individual is subject to, at times, uncontrollable or unanticipated behavior pattern.”

Dr. Joseph S. Shuman believed that defendant, at the time of the shooting, was a normal man who, perhaps because of alcohol he had consumed but probably not because of the codeine, had used poor judgment.

Lay witnesses on the issue of defendant’s mental state at the time of the shootings stated he did not appear drunk and described him as reasonably alert and sober.

Appellant contends the evidence was insufficient to sustain conviction in that the psychiatric testimony on the issue of mental state and intent was such that the court should have directed verdicts for defendant on the charges against him. He argues first, that such testimony warranted directed verdicts on his defense of not guilty because of mental disease or defect, excluding responsibility under Chapter 552 RSMo; and second, that he was entitled to have reduced charges of manslaughter and assault without malice submitted to the jury on his theory of diminished responsibility negating specific elements and hence reducing the charge.

With respect to the defense of mental disease or defect, § 552.030.7 RSMo provides:

“All persons are presumed to be free of mental disease or defect * * * The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. * * * Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take the issue to the jury.”

Defendant had the benefit of testimony from Dr. Simon and Dr. Dewald which, under the statute, entitled him to present the issue of mental disease or defect to the jury. Also present in this case was the testimony of Dr. Shuman that defendant was free of mental disease or defect excluding responsibility. Thus, he was not entitled to a directed verdict because the presumption of freedom from mental disease or defect does not disappear, and it alone is sufficient to take the issue to the jury. State v. Greenhaw, supra. The issue was properly submitted by Instruction 5 in form MAI-CR 3.70.

Appellant makes the same argument presented in State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974), where the concept of “diminished responsibility” was discussed, and § 552.030.3(1) RSMo was read in conjunction with Model Penal Code (ALI) § 4.02(1). It was determined that if defendant introduced the evidence envisioned by § 552.030.3(1), the jury must be instructed on offenses which are committed in a mental state less than that required for conviction on charged offenses. Defendant Cole received both considerations. Defendant was permitted to adduce evidence on mental disease or defect, and the jury was instructed on the lesser offenses of manslaughter, Instruction 8 (MAI-CR 2.30/6.08), and assault without malice aforethought, Instruction 10 (MAI-CR 2.30/6.24), all as required by State v. Anderson, supra.

The State elicited testimony from Officer Didden that he was a married man with two children, and that Officer Graham had been a married man with children. Appellant contends the court erred in overruling his objections to such questions on the ground of irrelevance. He asserts that the family status of the officers had no relevancy, and the questions to that effect were asked “to influence the jury.”

Evidence of the family status of the crime victims was not relevant to the issues, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780 (1942); however, prejudice must flow from such error for reversal to ensue, State v. Smith, 534 S.W.2d 604 (Mo.App.1976). As previously demonstrated, the only issue of consequence was the mental state of defendant. It is not likely that the evidence in question affected the jury in resolution of that issue, and appellant makes no demonstration of prejudice beyond his assertion of its existence. To the contrary, defendant, himself, utilized the victims’ family status in closing arguments.

Appellant charges the court erred in admission in evidence of Exhibit 21 in that it was “a photograph showing a lot of blood, did not add any relevant evidence * * * was at most cumulative and was highly prejudicial.”

It is within the discretion of the trial court to determine whether potentially prejudicial or inflammatory evidence should be admitted, and relevance is the principal criterion. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976), cert. den. 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779. Relevant evidence is not inadmissible because it is prejudicial. Nor is it a valid objection that a witness has described matters depicted in the photographs if it is otherwise relevant. State v. Jackson, 499 S.W.2d 467 (Mo.1973). Photographs of a crime scene are admissible if they depict the condition and circumstances surrounding the crime and aid the jury on a material issue. State v. Rogers, 523 S.W.2d 344 (Mo.App.1975).

Exhibit 21 depicts the front door area of the Cole home, shows some blood, a nightstick, broken glass, a cigarette and a pen. It offers corroboration of evidence to show absence of provocation. See State v. Aubuchon, 394 S.W.2d 327 (Mo.1965); and compare State v. Floyd, 360 S.W.2d 630 (Mo.1962), where admission of photograph of body in decomposed state as to preclude identification could serve no purpose except to inflame the jury.

The court gave Instruction 13 (not in MAI-CR) as follows:

“The court instructs the jury that if you find and believe from the evidence that the defendant was intoxicated by drugs or alcohol at the time, such intoxication is in law no excuse for or defense to such offense as you find to have been committed. Voluntary intoxication is never a defense to a criminal charge. The fact of such intoxication, if you find it to be a fact, is only to be considered by the jury in connection with all other facts, in determining the guilt or innocence of the defendant, and the degree of guilt, if you find he is guilty.”

Appellant, although conceding “that such instructions have been approved in the past”, contends the court erred “for the reason that said instruction is a comment on the evidence and further misstated the evidence in this case.”

An instruction that voluntary intoxication is not a defense is properly given where, as in this case, there is evidence that the accused had been drinking and was intoxicated at the time of commission of his crime. See State v. Street, 498 S.W.2d 523 (Mo.1973), and note approval of the form and language of Instruction 13. The instruction is a correct statement of the law as it existed at the time of this case, with respect to the effect of voluntary intoxication on defendant’s culpability for his acts. It did not require the jury to find defendant to have been voluntarily intoxicated; it only directed what the jury must consider if voluntary intoxication was found.

Defendant offered and the court refused to give instructions as follows:

Instruction No. A.
“The court instructs the jury that if you find that at the time of the offense charged against the defendant he had a mental disease or defect sufficient to deprive him of the ability to act unlawfully, wilfully, knowingly, deliberately and with premeditation, then you may not find him guilty of first degree murder.”
Instruction No. B.
“If you find and believe that at the time of the offense charged against the defendant, he had a mental disease or defect sufficient to deprive him of the ability to act wilfully, feloniously, pre-mediatedly or with malice, then you may not find him guilty of either first or second degree murder.”

Appellant argues that with recognition in Missouri of diminished responsibility, State v. Anderson, supra, he was entitled to his offered instructions in submission of his “special negative defense” based on diminished responsibility.

State v. Anderson, supra, determined that if a jury considers and rejects acquittal of the accused on the defense of mental disease or defect excluding responsibility, it may yet consider acquitting him of a greater crime and yet convict him for a lesser included offense which requires a lesser mental state. Under that thesis, Richard Paul Anderson’s conviction of murder second degree was reversed, and his cause remanded for new trial, where, in the event there was evidence of diminished responsibility, the court would be required to instruct on lesser included offenses. The error in State v. Anderson, supra, is absent from this case. Defendant’s evidence on diminished responsibility was received; the jury was fully instructed by Instructions 3 and 10 (MAI-CR 2.30/6.08 and MAI-CR 22.30/6.24) with respect to its option to convict of the lesser included offenses. Defendant’s theory that his proposed Instructions A and B were necessary to inform the jury of the nature of his diminished responsibility defense is erroneous. The evidence introduced at trial and the instructions on lesser included offenses, as required by Anderson, served the function.

The State argued in rebuttal:

“First of all, this talk about Fulton, I mean, that whole argument just doesn’t make any sense. There’s nothing wrong with this man as he sits here today. You know that, the psychiatrists told you that. If he was sent to Fulton, how long do you think he’d — .”

Defendant objected and moved for mistrial on grounds the argument “disparages the mental defense”. He contends, with citation of State v. Johnson, 267 S.W.2d 642 (Mo.1954); State v. Nickens, 403 S.W.2d 582 (Mo.1966); and State v. Camlen, 515 S.W.2d 574 (Mo.1974), that the quoted argument disparaged the defense of mental disease or defect, and that it was a call for imprisonment in the penitentiary even if the jury believed defendant was suffering from mental disease or defect at the time of the shooting.

Appellant’s citations proscribe arguments that a defendant should be convicted irrespective of evidence tending to show a defense of insanity because acquittal on that ground would result in his presence on the streets committing new crimes. The argument in this case does not fall within the proscription of the cited cases. Its interrupted state does not convey the notion that defendant should be imprisoned regardless of the quality of his defense of insanity. Indeed, it may not be said with any certainty what counsel had in mind when interrupted.

In another instance the State argued:

“Think for a minute what a verdict of Manslaughter would mean in a case like that to people. They would say, ‘Look at this. There isn’t anything worse than that. This man is getting off with Manslaughter.’ It isn’t easy to deter that kind of crime.”

Defendant objected “to what a verdict of manslaughter could mean to people”. He contends the State was not arguing for law and order, but was asking the jury to disregard whatever the evidence showed on degree of crime, and to convict to make an example of defendant.

This argument falls within familiar rules that the State may argue: The necessity for law enforcement, and ask for severe penalty as a deterrent to others, State v. Raspberry, 452 S.W.2d 169 (Mo.1970); the prevalence of crime in the community, personal safety of its inhabitants and the jury’s duty to uphold the law, State v. McKinney, 475 S.W.2d 51 (Mo.1971); that the jury verdict should serve as a warning, State v. Burnett, 429 S.W.2d 239 (Mo.1968); that failure to convict would open the floodgate for similar conduct in the future, State v. Rodriguez, 484 S.W.2d 203 (Mo.1972); that correction of the defendant is part of the jury’s duty in prevention of crime. State v. Wright, 515 S.W.2d 421 (Mo.1974). See also State v. Jackson, 477 S.W.2d 47 (Mo.1972), where the State’s comment that people say courts are “too easy on these guys” was within the scope of permissible argument covering prevalence of crime and the necessity for strict law enforcement.

Judgment affirmed.

All concur.

      . Venue was changed on defendant’s application on ground he could not have a fair trial in St. Louis County.

      . The statute has been construed literally. See, e.g. State v. Williams, 521 S.W.2d 169 (Mo.App.1975); State v. Greenhaw, 553 S.W.2d 318 (Mo.App.1977); State v. Vansandts, 540 S.W.2d 192 (Mo.App.1976); State v. Holmes, 439 S.W.2d 518 (Mo.1969).

      . “Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible:
      (1) To prove that the defendant did or did not have the state of mind which is an element of the offense * * *.”

      . No opinion is expressed as to the accuracy of the instruction after the January 1, 1979 effective date of § 562.076. Note the suggested instruction MAI-CR 3.30.1.

      . Cf. MAI-CR 3.74, effective January 1, 1979, suggested for submission under State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974).


author: CLARK, Judge.

text:
    Alice BENNETT, Appellant, v. NORTH BRIGHTON TOWNHOUSES, INC., a corporation, and F. C. Housing Company, Inc., a corporation, Respondents.
    No. KCD 30011.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Rehearing Denied Oct. 1, 1979.

      Daniel M. Czamanske, Duncan E. Kinche-loe, III, Parkville, for appellant.
    James H. Horn, William A. Lynch, Kansas City, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   CLARK, Judge.

Alice Bennett brought an action for damages against defendants (hereafter respondents) by reason of injuries she sustained in a fall while visiting as a guest at apartment premises owned and managed by respondents and rented to plaintiff’s hosts. The cause was tried to a jury which returned a verdict of $50,000.00 for plaintiff and judgment was duly entered. On respondent’s after-trial motion, however, the court set aside the verdict and judgment. Plaintiff appeals from that order.

At once apparent is the absence from this record of any final judgment or appealable order establishing appellate jurisdiction. Plaintiff assumes in her brief that judgment was entered by the trial court for respondents, but no such entry appears. Respondents, although not expressly accepting this fallacious premise, brief and argue the case as an appeal from an order setting aside the jury verdict.

The right to appeal is entirely statutory and, as applicable to this case, is limited to any order granting a new trial, any final judgment or any special order after final judgment. Section 512.020, RSMo 1978. As the prior judgment was erased by the subsequent order, there is no final judgment in this case and no special order after final judgment as action on respondents’ post-trial motion precluded maturity of the judgment on the jury verdict into finality. For these reasons and for the further reason that the trial court has not by an order setting aside a verdict exhausted its jurisdiction, such order is not appealable. Harper v. Harper, 379 S.W.2d 889 (Mo.App.1964).

Neither party has regarded the absence of any judgment or appealable order concluding the trial court’s jurisdiction as any obstacle worthy of note. Even though the point has not been addressed on briefs or argument, the court must do so sua sponte for the requirement of finality is jurisdictional. Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978); Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184 (Mo.App.1978).

Respondents’ motion sought an order setting aside the jury verdict and for alternative relief, either for judgment notwithstanding the verdict or for a new trial. In response to that motion, the court recorded its order as follows:

“Defendants’ Motion to Set Aside the Verdict is sustained on the ground that plaintiff was guilty of contributory negligence as a matter of law. Clerk to notify parties.”

No indicated disposition is made of the motion for judgment N.O.V. and of the new trial motion. Unlike Sears v. Norman, 543 S.W.2d 300 (Mo.App.1976), and cases there cited where the judge recorded in abbreviated form in his minute book the rendition of a judgment followed subsequently by entry of a formal judgment by the clerk on the judgment rolls, no disposition whatever appears, rendering the record incapable of restoration by the ministerial act of a clerk. Quite obviously, it is the judge who must first decide and thereafter record in some fashion his rulings on the motions. Sears v. Norman, supra, may not be extended to transfer the decisional function to a clerk on the pretext of record-keeping duties.

Under Rule 72.01(b), the filing of alternative motions for judgment notwithstanding the verdict and for new trial is permitted and the court is authorized either to allow the judgment on the jury verdict to stand or to reopen the judgment and direct entry of judgment in accordance with the motion. Rule 72.01(c) then provides as follows:

“(1) If the motion for judgment notwithstanding the verdict provided for in subdivision (b) of this Rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial.” (Emphasis added.)

The content of this rule is substantially derived from former Rule 72.02 which similarly required the trial court to rule con-junctively on motions for judgment N.O.V. and the alternative motion for new trial. Rule 72.02 was designed to meet the problem encountered in State v. Davis, 302 S.W.2d 892 (Mo.1957), in which the court disapproved of the practice of treating after-trial motions piecemeal and recommended that the court and counsel see to it that alternative motions are considered and ruled. Following the adoption of Rule 72.-02, the court in Medical West Building Corp. v. E. L. Zoernig & Co., 414 S.W.2d 287 (Mo.1967), indicated that litigants have an obligation to see that the trial court acts in accordance with Rule 72.02 and that failure to do so incurs the risk of being held to have waived the new trial motion. While no case subsequently reported has imposed this sanction, the clear import of Medical West Building Corp. is that the new trial motion filed alternatively to the motion for judgment notwithstanding the verdict is waived if not ruled concurrently with the motion for judgment.

The necessity for conjunctive rulings on after-trial motions for judgment or for a new trial is the plain command of Rule 72.01, initially to conclude the trial court’s jurisdiction and, secondly, to provide for contingent disposition of the new trial order in a single appeal if the judgment is reversed. Even were there some basis to infer from reference by the trial court to plaintiff’s contributory negligence “as a matter of law,” that its intent was to enter judgment for respondents as appellant assumes, there yet remains the unruled new trial motion as a subject for additional speculation and conjecture for which the record is barren of any guide. Assumption on the authority of Medical West Building Corp. that respondents have waived the new trial motion is palpably unsound where the alternative motion for judgment is also unruled. Equally unacceptable is the choice between conditionally sustaining or overruling the new trial motion on an assumed course of action by the trial court which, to compound the problem, must be accompanied by a statement of grounds. Under this state of the record, long standing authority condemns the appeal as premature for want of a final judgment or appealable order and directs that the appeal be dismissed. McCoy v. Simpson, et al., 344 Mo. 215, 125 S.W.2d 833 (Mo.1939).

In addition to the necessity for dismissal of this appeal on the procedural grounds of Rule 72.01, a further practical obstacle precludes entertainment of assumptions as to the trial court’s intended rulings on the two motions.

Disputed issues of fact in this case were (a) respondents’ negligence in failing to clear ice and snow from the stair, (b) plaintiff’s contributory negligence in failing to exercise care for her own safety when the danger was perceived, and (c) the proximate cause of plaintiff’s injury. Under conflicting evidence as to these fact questions, the nature of the order entered by the trial court determines the standard for appellate review.

Entry of judgment notwithstanding the verdict is equivalent to directing a verdict at the close of the evidence. On review, only evidence and inferences favorable to the party against whom the verdict was directed will be considered, evidence and inferences to the contrary being disregarded. Millar v. Berg, 316 S.W.2d 499, 503 (Mo.1958); Dobbins v. Hupp, 562 S.W.2d 736 (Mo.App.1978). A new trial if ordered may be for any good cause shown but must specify the grounds on which it is granted. Rule 78.03. If ordered because the verdict was against the weight of the evidence, review must sustain the trial court’s order if there is substantial evidence to support a verdict for the party benefited, absent an abuse of the court’s discretion. State v. Klipsch, 414 S.W.2d 783 (Mo.1967); Kreutz v. Wolff, 560 S.W.2d 271, 279 (Mo.App.1977).

The phrase “contributory negligence as a matter of law” does not connote some inflexible standard which may be externally applied to conclude a case in favor of a defendant, but simply means that under the facts of a particular case, this affirmative defense has been successfully demonstrated by the evidence or by the weight of conflicting evidence. Vanasse v. Plautz, 538 S.W.2d 928 (Mo.App.1976).

Were we here to indulge in that speculation necessary to conclude by inference the rulings the trial court intended to make on the alternative motions, such speculation would not be limited to the rulings alone but would also require that a basis for each be ascribed and, in this process, the standard for appellate review would thereby be assigned. Usurpation of the trial court’s decisional function, even in the interest of judicial economy, cannot be essayed, and we are required to hold, albeit reluctantly, that the absence of jurisdiction precludes consideration of appellant’s appeal on the merits. Unless and until the trial court rules on the pending motions, its jurisdiction has not been exhausted and the appeal is premature.

For the reasons stated, the appeal is dismissed.

All concur.