author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Earl MANNS, Defendant-Appellant.
    No. 36810.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 25, 1976.

      Lawrence Willbrand, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

John Earl Manns was convicted by the Circuit Court of the City of St. Louis in a jury-waived trial of the offense of burglary in the second degree, § 560.070 RSMo. 1969, and after overruling his Motion for New Trial and granting him allocution, the trial court sentenced him to 7 years in the custody of the Missouri Department of Corrections. § 560.095(2) RSMo. 1969. This appeal followed.

The appellant was charged in Information filed in the Circuit Court of the City of St. Louis with one prior conviction of a felony, to-wit: Felonious Assault, and in Count I of the Information with the burglary of a building belonging to Eli Apple, d/b/a Meyer Bros. Grocery, and in Count II of the Information with Malicious Assault with a Dangerous and Deadly Weapon, to-wit: a sawed-off shotgun, upon one Barry Await on the same day as the burglary aforesaid, i. e. March 16, 1974. Appellant waived his right to a jury trial and proceeded to trial before the court without a jury. After hearing evidence the trial court found appellant guilty of burglary in the second degree charged in Count I of the Information and not guilty of the assault alleged in Count II of the Information.

The evidence offered by the State was that the Meyer Brothers Grocery, owned by Eli Apple, was situated at 1903 Martin Luther King Drive in the City of St. Louis, Missouri. That at approximately 6:30 p. m. on the night of March 16, 1974, Mr. Apple secured the building in which the market was situate and left the premises with the burglar alarm activated. In the store at that time was the stock of his business, i. e. groceries, meat and liquor. Later that evening he received a telephone call from the ADT burglar alarm system informing him that the silent alarm in the market was sounding. Mr. Apple returned to his place of business and when he did the police were there. The police officers advised him that someone was inside the store and showed him a large hole that had been made in the exterior of the rear wall of the building. No tools were found near this hole in the wall. Two police officers, Officers Treece and Await of the St. Louis Metropolitan Police Department, had responded to the call for an alarm sounding at the market at approximately 10:00 p. m. and almost immediately after their arrival were joined by another police officer, Patrolman Flinn. While Officer Flinn remained at the front of the store the other two officers proceeded to the rear of the building where they found a hole approximately 3 feet in diameter in the rear wall of the building. The police officers shined their flashlights into the opening and observed the silhouette of a figure, facing them, and holding a sawed-off shotgun. They heard a shotgun discharge from inside the building and Officer Await fired two revolver shots in the building in response. In the meantime, other police officers had arrived on the scene and tear gas was discharged into the store building. Officers Treece and Await stood at the hole in the rear wall of the building and observed someone standing just inside. They grabbed this person and pulled him outside through the hole in the wall. This someone was the appellant. As appellant was pulled through the hole in the wall he fell down on the ground outside the building and injured his face. He bled. He was placed under arrest and placed in a police cruiser.

Appellant produced the records of City Hospital for March 16, 1974, and these reflected that he was brought into the hospital on that date in handcuffs and stated that he was hit in the nose with the fist of a policeman. The x-ray report stated: “fracture of the nasal bone with communition and displacement of the distal fragments. This primarily involves the right side. Adjacent facial bones are intact.” The appellant took the stand in his own defense and testified that he was in the vicinity of the market waiting for a bus and decided to go into the alley at the rear of the store to relieve himself and as he was coming out of the alley after having tended to this necessary function the police arrived on the scene by car and placed him under arrest. He denied any knowledge of the hole in the wall or of having been inside the market building. He also, in response to inquiries directed to him by his own counsel on direct examination, admitted that he had been convicted in 1954 of burglary of a tavern and in 1961 of burglary of a golf course in Florida. With respect to the alleged prior conviction of felonious assault alleged in the Information he testified that that conviction in Michigan was reversed and he was discharged. He sustained his injuries while in the police cruiser at the scene of the crime and one of the officers beat him in the face when he was trying to explain to them that he knew nothing about the hole in the wall and had just left his girl friend’s house and was on the way home.

The State introduced no evidence in support of that portion of the Information alleging the prior conviction for felonious assault, and no finding was made with respect to this allegation. Further, in considering imposition of sentence the trial court did not consider the allegation in the Information to this effect.

On appeal the appellant raises one Point, “The court erred in its finding that defendant entered the premises in question.” This statement of the Points Relied On fails to comply with the requisites set forth in Rule 84.04(d) that the Points Relied On shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder. Nowhere in appellant’s brief are there any citations of authority whatsoever.

We are required by Rule 28.02 to consider allegations of error respecting the sufficiency of the information, verdict, judgment and sentence although not raised in the trial court or preserved for review, and we would choose to consider appellant’s point as an effort to present to this court a challenge to the sufficiency of the evidence to support his conviction, for the reason that it would be plain error affecting substantial rights for a defendant to be convicted on evidence which would not support a conviction and manifest injustice or miscarriage of justice would thereby result. Rule 27.20(c). State v. White, 439 S.W.2d 752, 753[2] (Mo.1969).

Burglary in the Second Degree as proscribed by § 560.070 is the breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, in which there shall be at the time any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein. We conclude that there is sufficient evidence in this case to support the finding of the trial judge beyond a reasonable doubt.

We have examined those portions of the record as required by Rule 28.02 and find them to be in proper form and without error.

The judgment of the trial court is affirmed.

WEIER, P. J. and McMILLIAN, J., concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    James LINDQUIST, Employee-Respondent, v. CONTAINER CORPORATION OF AMERICA, and Travelers Insurance Company, Employers-Appellants.
    No. 36983.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 25, 1976.
    Edward M. Vokoun, Evans & Dixon, St. Louis, for employers-appellants.
    Larry W. Glenn, Mogab, Hughes & Green, St. Louis, for employee-respondent.
   STEWART, Judge.

This is an appeal by Container Corporation of America, the employer, and Travelers Insurance Company, the insurer, in a workmen’s compensation proceeding from a judgment of the Circuit Court of St. Louis County which affirmed the final award of the Labor and Industrial Relations Commission of Missouri (hereafter called Commission) in favor of James Lindquist, the employee. We affirm.

The word “employer” when used in this opinion will refer to both the employer and the insurer.

The principal question presented upon this appeal is whether there was sufficient and competent evidence to warrant a finding by the Commission that the employee suffered an accident by reason of an unusual or abnormal strain. Employer does not question the nature and extent of the injury.

In our review of this case we cannot substitute our judgment for that of the Commission. The evidence and all reasonable inferences to be drawn therefrom is to be reviewed in the light most favorable to the Commission’s award to determine if it is supported by competent and substantial evidence. Davies v. Carter Carburetor, 429 S.W.2d 738 (Mo.1968); Snowbarger v. M. F. A. Central Co-op, 349 S.W.2d 224 (Mo.1961). With these principles in mind we review the facts.

Employee was employed in the shipping and receiving department of employer. At the time he was injured, he was working in a boxcar loading boxes stacked on a skid or pallet which was sitting on a metal plate which bridged the gap between the loading dock and the boxcar. Each box was approximately eighteen inches long by twelve inches wide and eight or nine inches high and weighed about sixty pounds. The boxes were stacked five high, three rows deep. There were approximately forty boxes on the pallet. Because the pallet covered most of the bridge plate, in order to lift the outermost row, it was necessary for him to reach across the two inner rows. There were no handles on these boxes. They were lifted by placing one hand under the box and by placing the other hand on top of the box. The employee was moving the boxes one tier at a time. Up to the time he was injured he had moved alongside the skid with the boxes. At the time he was injured he had finished unloading most of the third tier and was unloading the back row. He was standing at the right hand comer of the skid, he was working rapidly and without thinking reached diagonally across the skid to the far left hand corner. He was “leaning over as far as [he] could bend over.” As he lifted the box he turned or twisted the wrong way and “something went in his back.” The employee variously described his position at the time as “awkward”; “I stretched too much.” He was using “strength and force and muscle.” In the course of the hearing the employee demonstrated to the referee the position that he was in at the time the injury occurred.

It is now settled that “where an employee’s injury is the result of an unusual or abnormal strain arising out of and in the course of his employment the injury is com-pensable. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or fall.” Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401, 405 (Mo. banc 1957); Merriman v. Gutman Truck Service, 392 S.W.2d 292, 297[10] (Mo.1965).

It was part of the employee’s regular duties to lift boxes like those with which he was working at the time he was injured. The usual method of unloading these boxes was for the employee to move along the skid so that he would be directly in front of the box to be unloaded. The Commission was warranted in finding that, on this occasion, he placed himself in an awkward position; that in reaching diagonally across the skid to reach the box he would have had to flex his trunk, keep his knees straight and extend his arms completely; that he lifted hurriedly; and that this constituted an accident by unexpected or unusual strain.

Employer contests the findings of fact upon the ground that the employee’s testimony at the hearing was so contradictory to prehearing statements made by employee as to be self-destructive. The primary basis for this contention is a thirty-three page statement in question and answer form obtained from employee by a representative of the Travelers Insurance Company. This statement was taken about three months after the injury at the office of Container Corporation in the presence of its personnel manager.

We have reviewed this statement and find as employee said of it, that “it is basically correct,” and that it is not so contradictory of employee’s testimony as to be self-destructive.

The employer directs us to a portion of the statement which he contends is contradictory to the testimony respecting employee’s position with respect to the box he was lifting.

“Q. Would this have been on the bottom layer or were you at the second layer?
A. I’d say the second layer.
Q. About the second layer. And were they stacked right next to you; were you standing right next to it?
A. I was standing in front of it.”

The questions and answers are not clear and unequivocal. “It” could refer to a box or the skid upon which “they” [the boxes] were stacked. The credibility of the testimony, the inferences to be drawn from it and the weight to be given it upon the whole record was for the referee and the Commission. Shepard v. Robinson, 451 S.W.2d 329, 335[5-6] (Mo.1970). We cannot say that this portion of the statement read in the light most favorable to the finding of the Commission was destructive of employee’s testimony.

Much the same can be said for another portion of a statement singled out by employer. Although employee had not previously been asked about how he bent over to pick up the box, the following occurred near the end of the statement:

“Q. Now, you said you were bent over at the waist or at the knees or how?
A. Well, you know, I was just bent over.
Q. At the knees and at the waist? A. Right.”

The affirmative answers to the leading questions put to employee cannot be said to be so contradictory to his testimony as to be self-destructive. The testimony at the hearing was re-enforced by a demonstration of the manner in which employee bent which undoubtedly led the referee to the conclusion that “the employee in bending over to reach the particular box described above would have had to flex his trunk, keep his knees straight and extend his arms completely, notwithstanding an alleged contrary statement in Employer and Insurer’s Exhibit 1, page 28.”

We have also reviewed the history as taken by the employer’s physicians who examined and treated employee which read as follows:

“Pt. was lifting a large plate & hurt his back. He states he did not slip or fall
“At that time, he was loading pieces of metal on a platform. He estimates the pieces to weigh 60 or 70 pounds. As he turned lifting one of these, he felt a pop in the mid-portion of the low back . ”

The physicians did not attempt to take a detailed factual statement. The doctors obtained sufficient information to permit intelligent examination and treatment. The facts contained in the history were accurate as far as they went. Davies v. Carter Carburetor, 429 S.W.2d 738 (Mo.1968). We find no contradiction.

Employer recognizes the problem confronting him in this proceeding when he argues that plaintiff’s statement “is contradictory, if not directly at least by implication, to his in-court testimony.”

We may not at this stage of the proceeding draw inferences which would be unfavorable to the prevailing parties. Any purported contradictions could affect employee’s credibility but that was a matter to be considered by the Commission which resolved that issue in favor of employee. Davies v. Carter Carburetor, supra, at 752 [18]-

Employer misreads Duncan v. A. P. Green Refractories Co., 522 S.W.2d 639 (Mo.App.1975). In that case this court did make a finding contrary to that of the Commission but not, as employer asserts, contrary to the finding of the referee. In that case employee made several direct unequivocal statements to persons and in written claims under health and accident policies that his injury was not connected with his employment.

Employer also urges that employee did not avail himself of the “opportunity to volunteer physical facts absolutely material to proof of a compensable unusual strain” during the time the question and answer statement was taken; and that this failure “is tantamount to an admission of the nonexistence of those facts.” It has been held that “failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact.” Wigham v. Ben Franklin Div. of City Products Corp., 459 S.W.2d 32, 39 (Mo.App.1970).

A careful review of the statement reveals that it was obvious that employer’s representative was fully aware of the factual elements necessary to defeat employee’s claim. Most of the questions asked of employee concerning the facts surrounding his injury were leading questions which employee was admonished to answer either “yes” or “no”. This occurred on three occasions early in the statement. At the conclusion of the statement employee was asked if he had any additional information that would help in the determination of the claim. It is evident that these questions did not direct employee to specifics of the cause of injury. Employee understood them as references to the nature and extent of his injury. When his statement was taken employee was not asked to demonstrate his position at the time he received his injury. Such a demonstration may have revealed, as it did to the referee, that the position assumed by employee would of necessity require an abnormal strain to lift the box. The atmosphere under which the statement was taken was not conducive to full and voluntary discussion on the part of employee.

We have reviewed the cases principally relied upon by employer. For the most part they are cases in which the appellate courts have deferred to the finding of the Commission that the employee had not sustained an abnormal strain.

We find that there was sufficient competent evidence to support the finding that employee sustained an accident within the meaning of the Act by unexpected or unusual strain.

The judgment of the circuit court affirming the award of the Commission is affirmed.

CLEMENS, P. J., and DOWD, J., concurs.

      . One of the Commissioners dissented.

      . “Q. Do you have any additional information that might help in the determination of this claim?
      A. Well, I don’t know about that Macon deal—
      Q. Who referred you to the Macon Medical Center?
      A. Well, I told Bill yesterday, I don’t know, the procedure here is to send you to Macon but I don’t know what they do for you. When I was back on that second shift my back was hurting so bad that everybody was stopping and asking me what was wrong with my knee

      “Q. Do you have any additional information that might help us in the determination of this claim?
      A. That’s the only thing I can think of; when I started back it seemed like it was getting worse and—
      Q. Progressively getting worse?
      A. Right; I mean I had the easiest job, you know in shipping, but it just kept getting it aggravated.”

      . Ginter v. Freund Baking Co., 388 S.W.2d 505 (Mo.App.1965); Herring v. Safeway Stores, Inc., 499 S.W.2d 538 (Mo.App.1973).


text:
    Hampton BANK, Plaintiff-Respondent, v. Christian H. PFEIL and Rose Pfeil, Defendants-Appellants.
    No. 36629.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 25, 1976.
    James P. Hayes, St. Louis, for defendants-appellants.
    Jack Muehlenkamp, Muehlenkamp, Heit-mann & Murray, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant appeals from an order of the Circuit Court of St. Louis County dismissing his appeal from the Magistrate Court for failure to pay costs for security.

Plaintiff, Hampton Bank, filed a petition in the Magistrate Court of the City of St. Louis, stating that it was the legal holder in due course of defendants’ Retail Installment Contract and Promissory Note, owing $1,087.93. Defendants answered that their account was fully paid and filed a counterclaim alleging that plaintiff unlawfully seized and converted a 1970 Ford Maverick which secured the note and contract sued upon. Plaintiff denied the allegations of the counterclaim.

Plaintiff’s motion for change of venue was granted and the cause was sent to the Magistrate Court of St. Louis County.

The jury returned a verdict in favor of the plaintiff on their claim plus costs, and in favor of the defendants on their counterclaim in the amount of $365.80. Defendants appealed to the Circuit Court on May 31, 1974. Thereafter, on October 2, 1974, plaintiff filed a motion to dismiss, as follows:

“Comes now the Plaintiff and for its Motion to Dismiss states to the Court the following, to-wit:
1. That on the 24th day of May 1974, judgment was rendered in the Magistrate Court in the above said cause and, thereafter, on the 30th day of May 1974, the Defendants filed their Notice of Appeal to the Circuit Court, County of St. Louis, State of Missouri.
2. That the costs necessary for setting the above matter to be heard by the Circuit Court has not been deposited by the Defendants all in accordance with the court rules.
WHEREFORE, Plaintiff prays this Honorable Court to enter its order ordering the Defendant to secure the necessary costs or in the alternative to dismiss the appeal heretofore filed and return the same to the Magistrate for reinstatement of the judgment therein obtained.”

The Circuit Court sustained the motion and this appeal followed.

The sole issue on this appeal is whether the trial court erred in sustaining the plaintiff’s motion to dismiss defendants’ appeal to the Circuit Court for failure to pay costs in the Circuit Court.

Plaintiff’s motion to dismiss defendants’ appeal from the Magistrate Court did not attack the merits of defendants’ defenses or counter-claim. No statute or rule of the Supreme Court requires a defendant to secure cost. Before we can affirm there must be some evidence of record to justify the action of the trial court. See Fine v. Waldman Mercantile Company, 412 S.W.2d 549 (Mo.App.1967).

In its appellate brief the plaintiff contends that St. Louis Circuit Court Rule 3(A)(6) requires the appellant to deposit security for costs on an appeal from the Magistrate Court to the Circuit Court and is controlling here. Initially, we recognize that Supreme Court Rule 50.01 authorizes the trial court to promulgate Rules of Court “governing the administration of judicial business if the rules are not inconsistent with the rules of this Court, the Constitution or statutory law in force.” Meadow-brook Country Club v. Davis, 421 S.W.2d 769 (Mo. banc 1967); Wade v. Wade, 395 S.W.2d 515, 517 (Mo.App.1965). Further, the “rules of court properly adopted are binding on the court and its officers as well as on the parties and their counsel, and ordinarily it is the duty of the court to enforce them . . .”21 C.J.S. Courts § 176. Finally, failure to deposit security for costs is a basis for dismissal, which may rest in the sound discretion of the court. See, 20 C.J.S. Costs § 173, at 406.

However, this court cannot take judicial notice of rules of circuit courts within the geographical boundaries of its jurisdiction, and if counsel relies on such rules, they must be preserved for appellate review by being introduced into evidence or made part of the record. Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596, 597 (Mo.App.1970); S.Ct. Rule 81.14(a). In the case before us, the Circuit Court Rule cited by plaintiff in his brief was not introduced into evidence, set out in the record, nor attached thereto as part of it.

In the alternative, plaintiff also asserts that Supreme Court Rule 77.03 is decisive of the present issue. That rule states that “On an appeal from a magistrate’s court, if the plaintiff be respondent, he shall not be required to [secure] costs.” See also § 514.030, R.S.Mo.1969. We disagree, however,' that the rule is decisive of the issue before us. We do not find that Rule 77.03 places an affirmative duty upon defendant to secure said costs, but merely relieves plaintiff, as respondent, of such duty.

Further, we find no other legal authority to justify the action of the trial court. Accordingly, the judgment is reversed and remanded to the Circuit Court for proceedings consistent with the opinion herein.

CLEMENS, P. J., and KELLY, J., concur.


text:
    In the Interest of B. B. and R. B., minors. J. B., Appellant, v. The JUVENILE OFFICER, and Mr. and Mrs. C. M., Respondents.
    No. 37209.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 25, 1976.
    Elizabeth R. Levine, Legal Aid Society, Clayton, for appellant.
    David B. Agnew, St. Louis, Alvin L. Mayer, Clayton, Pat Karman, Juvenile Div., Rachel Eidelman, Public Defender Bureau, St. Louis, for respondents.
   STEWART, Judge.

J.B., the father of R.B., a boy nine years of age, appeals from an order of the Juvenile Court which granted care, custody and control of R.B. to the Division of Children’s Services and directed that R.B. be placed in the home of his maternal grandparents. We affirm.

J.B. and Betty were married in 1958. This was the second marriage for each of them. Three children were born of the marriage, only R.B. is the subject of this proceeding. In early 1970 Betty was confined in State Hospital in the City of St. Louis. In March of that year the maternal grandparents filed a complaint alleging that the children were neglected. This case was closed with no action having been taken.

In February 1971 a hearing was had upon a referral which was made in December 1970. The court found the children of the marriage to have been neglected and it granted custody to Mr. and Mrs. Carl Maddox, the maternal grandparents. J.B. was given visitation rights and ordered to make payments for the support of the children. At that time, Betty, the mother, had been missing from State Hospital since July of 1970 and her whereabouts were unknown. J.B. at the time was having a drinking problem.

J.B. and Betty were divorced in 1972. J.B. subsequently married Mahala. He then filed a motion seeking custody of the children. Before the motion could be heard he and Mahala were divorced. The marriage had lasted 6 months. J.B. was not in a position to ask for their custody and the custody remained in the grandparents.

In late 1974, Betty returned and B.B. went to live with her. A temporary order was made giving temporary custody of R.B. and B.B. to Children’s Services. In turn, B.B. was permitted to remain in the physical custody of Betty and R.B. with the grandparents. Within three months of the order Betty left the State of Missouri and B.B. went to live with her father, J.B. who had married Lorraine.

A motion was then filed on behalf of J.B. seeking custody of B.B. and R.B. It is this motion which is the subject of this appeal.

At the time of the hearing J.B. was 46 years of age and had been a steady employee of the City of St. Louis for 16 years. He had been married to Lorraine for close to 5 months. They were living in her eight room house with Lorraine’s fourteen year old daughter who shared a room with B.B. Lorraine’s son, age seventeen, had his own room and there was a room available for R.B. The house was well kept. There was an adult in the house most of the time. The children were given hot lunches and Mrs. Lorraine B. expressed a desire to have B.B. and R.B. in the home. There was every indication that J.B. no longer had a drinking problem.

R.B., who was eight years of age at the time of the hearing, had lived with his grandparents since he was three years of age. Mr. Maddox, age 66, is retired. Mrs. Maddox is 58 years of age. The boy is well adjusted and is doing well in school. He attends Sunday School regularly and is a member of the Cub Scouts.

The visitation between J.B. and his son has not been satisfactory. There were times when three months would pass between visits. This failure cannot be placed wholly upon J.B. The visitation improved when arrangements were made to pick up the boy at the Division of Children’s Services. J.B.’s present wife, Lorraine, has seen R.B. on only three occasions. J.B. has made payments for support and has purchased gifts for the children.

R.B. was asked how he liked living with his grandparents and he replied “Fine.” He expressed uncertainty when asked his preference. He finally testified that given the choice he would rather live with his father.

At the conclusion of the hearing the court ordered that care, custody and control of R.B. be given to the Division of Children’s Services. The court further ordered that R.B. be placed in the home of his maternal grandparents. At the time the court made its order it made clear its desire to eventually re-unite the child with his father.

The general principles of law to be applied are not in dispute. The primary factor to be considered by the court in performing the onerous task of determining the right to custody of the minor child is the welfare and best interests of the child. In making this determination the natural parent has preference over all other persons because it is presumed, absent proof to the contrary, that the parents have the greater interest and will best promote the welfare of the child. § 211.011, R.S.Mo.1969. In Interest of J., 357 S.W.2d 197, 200 (Mo.App.1962). It has also been held that the courts will give consideration to the preferences of the child. J. v. E., 417 S.W.2d 199 (Mo.App.1967). Each case, however, must be evaluated and determined on its peculiar facts rather than in terms of academic rules, with the best interest of the child as the paramount goal. M_L_ v. M_R_, 407 S.W.2d 600, 603 (Mo.App.1956).

In our review of this case we are governed by Supreme Court Rule 73.01(3) and as was best said in H_B_ v. R_ B_, 449 S.W.2d 890 (Mo.App.1970) l.c. 891:

“On this review we bear in mind the solemn responsibility east upon a trial judge who must decide issues of child custody. At trial his judicial discernment is challenged; he becomes steeped in the atmosphere of the controversy; his ability to assess the character of the witnesses and to weigh their testimony exceeds ours.”

In this court-tried case we must affirm “unless there is no substantial evidence to support [the judgment], unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30 (Mo.1976).

In this case J.B.’s children including R.B. were adjudged neglected in 1971. The father later married Mahala and attempted to establish a home. He filed a motion to recover the children but at the time of the hearing on that motion J.B. and Mahala had been divorced. This marriage failed after only 6 months. At the time the present motion was heard there were definite signs of progress toward a stable home life on the part of J.B. However, he had been married to Lorraine for only 5 months. His wife had met his son on only three occasions. J.B. had had very little contact with R.B. While the boy expressed a preference to be with his father, he expressed no dissatisfaction with his situation in the home of his grandparents. His preference is only one consideration in proceedings of this nature. Graves v. Wooden, 291 S.W.2d 665 (Mo.App.1956).

J.B. argues that the “aim [of the court] should be to return the child to the natural parent.” It is evident from the comment of the court and its order that this is the precise aim of the court.

The problem facing the trial court was whether it was to the best interest of the child to be removed from a settled and stable atmosphere in which he is functioning well and place him in an environment which posed questions in the mind of the court and the Juvenile Officer.

The court properly considered the past experience in this case as criteria for the action which he took in this cause. There was a reasonable basis for the court to be concerned about the stability of J.B.’s home, and trauma of removing R.B. from a settled home environment. See In Interest of J_ , 357 S.W.2d 197 (Mo.App.1962). We are of the opinion that the court in the case entered an order conducive to the welfare and the best interest of R.B.

The order is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . A daughter, B.B., age 13, was placed with the father after the maternal grandparents asked to be relieved. No appeal was taken from that order. At the oral argument counsel advised that the mother, who had left the jurisdiction, had returned, and that in recent months the court has placed B.B. with the mother. An older son, L.B., is in a home where he is progressing toward reunion with the family.

      . “At this time R.B. will remain in the home of the grandparents until there is a further relationship developed between the natural father, and also until the father can show to the Court here that this relationship with his new wife is going to work and his stability as a father will be developed over the months and years ahead.”

      . Footnote 2 ibid.


author: WEIER, Presiding Judge.

text:
    Mrs. Ruby BROWN, Plaintiff-Appellant-Respondent, v. GAMBLE CONSTRUCTION CO., INC., Defendant-Appellant, Target Stores, Inc., and Larson & McLaren, Inc., et al., Defendants-Respondents.
    Nos. 36939 and 36940.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 25, 1976.

      Hugh E. Gibbons, George A. Adolf, Joseph H. Mueller, St. Louis, for defendant-appellant.
    Klamen, Summers & Compton, Robert F. Summers, St. Louis, for plaintiff-appellant-respondent.
   WEIER, Presiding Judge.

These consolidated appeals arise out of a civil action for money damages for wrongful death. At the close of plaintiff’s case, the trial court sustained the joint motion of defendants Target Stores, Inc., Larson & McLaren, Inc., A. J. Nelson and George Root for a directed verdict. The jury returned a verdict in favor of plaintiff, decedent’s widow, for $50,000.00 against Gamble Construction Company, Inc.

Defendant Gamble appeals from the judgment contending that its motion for directed verdict at the close of the evidence should have been sustained. Plaintiff also appeals alleging error in the trial court’s ruling sustaining the joint motion for a directed verdict. Plaintiff’s motion for a new trial, however, refers only to defendant Larson & McLaren, Inc., architects. The remaining defendants, Target Stores, Inc., A. J. Nelson and George Root are not mentioned. Accordingly, plaintiff has preserved nothing for appellate review as to these defendants. Rule 78.07; McMahon v. Charles Schulze, Inc., 483 S.W.2d 666, 667[2] (Mo.App.1972). Only the court’s ruling sustaining the motion for a directed verdict as to the architects will be considered on plaintiff’s appeal.

We review the action of the trial court upon the premise that a verdict should not be directed “unless all reasonable men, in the honest exercise of a fair, impartial judgment,would draw the same coiiclusion from the facts which condition the issue; * * * where there is uncertainty arising from a conflict in the testimony or because, the facts being undisputed, fair-minded men would honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury; * * *.” Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 89[1] (Mo.App.1972).

The facts that “condition the issue” in this case are as follows. Plaintiff’s decedent, a roofer of some thirty years’ experience, was applying glue to the roof of a Target store under construction in Ballwin, Missouri, when he fell through a hole in the roof and was fatally injured. Such holes, commonly found in uncompleted roofs, are left to permit installation of heating ducts and air-conditioning units after insulation of the roof is complete. They do not constitute defects in plans or specifications. Thus, there is no factual basis to determine the architect failed to use care in the preparation of plans and specifications for the construction of the building.

There is no contention or evidence that the plans were not complied with or were, per se, unsafe. What plaintiff does contend in essence is that the architects have a duty as “design professionals” to supervise the construction and insure that safety precautions are taken to protect workers. But architects are under no duty to supervise construction unless they expressly agree to do so. Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 476[3—5] (8th Cir.1968); Westerhold v. Carroll, 419 S.W.2d 73, 80-81 (Mo.1967); Miller v. DeWitt, 59 Ill.App.2d 38, 208 N.E.2d 249, 284-85[23] (1965), affirmed in relevant part, 37 Ill.2d 273, 226 N.E.2d 630 (1967). A determination in this case as to who was responsible for general supervision of the project and, specifically, for establishing safety measures to protect persons and property involved is not difficult. By contract, Gamble expressly assumed responsibility for safety precautions during the construction of the store. Article 10 of the contract, “Protection of Persons and Property”, states that “The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.” Article 2.2.4 provided: “The Architect will not be responsible for construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work, * In a letter of mutual agreement between Gamble and the subcontractor, Southside Roofing Company, Gamble promises to “plan, schedule and supervise all work with regard to your individual as well as total job requirements.” (Emphasis added.) Gamble’s responsibility for project supervision and safety precautions appears quite clear. The architect was relieved of any such duty.

The evidence squarely placed the duty to take safety precautions upon defendant Gamble, not upon the architect. There was no conflict in the testimony creating uncertainty. The decision of the trial court sustaining the motion for a directed verdict as to Larson & McLaren, Inc. is affirmed.

Defendant Gamble contends on appeal that it was the statutory employer of plaintiff’s decedent under § 287.040(4), RSMo 1969, and that plaintiff is therefore precluded from bringing a common law action against it.

The relevant facts are not in dispute. Plaintiff’s decedent was fatally injured on April 23, 1971 when he fell through a hole in the roof of a partially constructed Target store where he was employed as a roofer. It was stipulated that defendant Gamble was the general contractor and that South-side Roofing Company, decedent’s employer, was Gamble’s subcontractor. It was further stipulated that Southside Roofing Company was a Missouri corporation operating under this state’s Workmen’s Compensation Law, that the company had Workmen’s Compensation coverage while decedent was employed on this job, that decedent was covered under that plan, and that plaintiff as his widow had received benefits from Southside’s insuror. The testimony of Gamble’s president established that Gamble was operating under the provisions of the Missouri Workmen’s Compensation Act at the time of the accident. The installation of the roofing insulation and membrane was done under Gamble’s contract with the owner, Gamble subcontracting that portion of the work to Southside Roofing Company. Decedent was fatally injured while installing the roof’s insulation.

Suit was filed against Gamble and the other defendants on the theory of common law negligence. At the close of plaintiff’s case and again at the close of all the evidence Gamble moved for a directed verdict contending, inter alia, that its status as decedent’s statutory employer made it immune from a common law negligence suit when benefits had been paid by decedent’s immediate employer. The trial court denied defendant’s motions, ruling specifically that decedent was not a statutory employee of Gamble.

In response to appellant Gamble’s contention of immunity from suit through its status as statutory employer, respondent Brown merely asserts that, for various reasons, the point has not been preserved for appellate review. She contends that Gamble failed to offer the trial court any case law or specific statutory sections for consideration in ruling on its motions and failed to state specific grounds for its two motions for a directed verdict as required by Rule 72.01. Respondent cites Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, 366[2—4] (1947) which holds that a motion for a directed verdict is insufficient if movant does not make known his grounds therefor either in the motion or orally into the record of the court. See also Rule 72.01(a); Sargent v. Wekenman, 374 S.W.2d 635, 637[1, 2] (Mo.App.1964). The motion in Oganaso read as follows: “ ‘Now at the close of the whole case defendants ask the Court to direct a verdict in favor of defendants.’ ” Gamble’s motion at the close of plaintiff’s case was considerably more specific stating that “plaintiff is not entitled to recover herein against this defendant in that Defendant Gamble Construction Co. was the general contractor and the deceased, husband of the plaintiff, was an employee of a subcontractor, Southside Roofing Company, and that the plaintiff collected Missouri Workmen’s Compensation from the subcontractor and is a statutory employee of this defendant and is not entitled to recover; * * ⅜.” Counsel added orally that all concerned had been operating under the Act. He had previously referred the court to the case of Ellis v. J. A. Tobin Construction Company, 455 S.W.2d 510 (Mo.1970). In its ruling on defendant’s motion the trial court specifically stated that it had reviewed the Workmen’s Compensation Act and had found that decedent was not a statutory employee of Gamble. The ruling reveals that the court was fully aware of the nature of Gamble’s proposed defense. It cannot be said that defendant is seeking to present a ground on appeal that was not passed upon by the trial court. The cases of Oganaso v. Mellow, supra, and Sargent v. Wekenman, supra, cited by respondent, are therefore not on point.

It was stipulated that Gamble was the general contractor for the construction of the Target store. Southside Roofing was the subcontractor and employer of plaintiff’s decedent, Brown. Brown was fatally injured while working at the construction site. All parties were operating under the Missouri Workmen’s Compensation Act. Section 287.040(4) of the Act provides in relevant part that the “immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. * * * The liability of the immediate employer shall be primary, and that of the others secondary in their order, * * * No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.” This section protects each contractor and subcontractor on a project as to claims of all employees immediately or remotely under him. Ellis v. J. A. Tobin Construction Company, supra, 455 S.W.2d at 511.

Respondent advances the theory incorrectly that the question whether an employee is barred from bringing a negligence action by his status as a statutory employee is a jury question, and that here the issue should have been submitted to the jury. Respondent’s difficulty arises from a misinterpretation of Walton v. United States Steel Corporation, 362 S.W.2d 617 (Mo.1962). To establish the status of statutory employee the evidence must show, among other things, that the injury occurred while the employee was engaged in work in the usual course of the employer’s business. Raef v. Stock-Hartis, Inc., 416 S.W.2d 201, 207[13] (Mo.App.1967). In Walton the evidence established that the only Work plaintiff did on defendant’s premises was to drive a truck to a loading point, supervise the loading, and drive away, and that almost all of plaintiff’s work was away from defendant’s premises. Thus, it was not clear that all reasonable minds would conclude that plaintiff’s work was an operation of the usual business which defendant carried on upon its premises, and a question of fact arose which it was proper for the jury to resolve. Walton v. United States Steel Corporation, supra at 622[4], While each case must be determined upon its particular facts, Viselli v. Missouri Theatre Bldg. Corp., 234 S.W.2d 563, 565[1] (Mo.1950), when the facts are undisputed and no doubt exists, the court may declare the issue as a matter of law. McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, 157[9] (1943). It is not the rule that the question whether one is a statutory employer or employee is always to be resolved by the jury. If the evidence shows, as a matter of law, that plaintiff was a statutory employee of the defendant, the trial court should direct a verdict for defendant, for then plaintiff’s exclusive remedy is under the Workmen’s Compensation Act. When the Act is applicable it supersedes any right plaintiff might otherwise have had to maintain a common law action. Sippel v. Custom Craft Tile, Inc., supra, 480 S.W.2d 87, 89[1] (Mo.App.1972).

Given the facts of this case, no other conclusion is possible but that the deceased workman was the statutory employee of defendant Gamble. The trial court should therefore have sustained Gamble’s motion for a directed verdict. The trial court correctly concluded that the issue whether defendant Gamble was a statutory employer could be decided as a matter of law, but incorrectly concluded that it was not. For that reason defendant Gamble’s motion to vacate judgment and to enter judgment in accordance with its motion for a directed verdict should have been granted.

The court’s judgment sustaining the motion of Larson & McLaren, Inc. for directed verdict at the close of plaintiff’s case is affirmed. The judgment in favor of plaintiff and against Gamble Construction Company, Inc. is reversed.

McMILLIAN and RENDLEN, JJ., concur.


author: SIMEONE, Presiding Justice.

text:
    Steven Gale NELSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36960.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 25, 1976.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 15, 1976.
    Application to Transfer Denied July 12, 1976.

      William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, William P. Arnet, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Sam C. Bertolet, Asst. Pros. Atty., Clayton, for respondent.
   SIMEONE, Presiding Justice.

This is an appeal by movant-appellant, Steven Gale Nelson, from an order entered by the Circuit Court of St. Louis County on February 14, 1975, denying movant’s motion to vacate filed December 23, 1974.

Appellant was tried and convicted in 1972 of the offense of murder in the first degree and sentenced to life imprisonment in the Department of Corrections. The conviction was appealed to the Supreme Court and affirmed in October, 1974. State v. Nelson, 514 S.W.2d 581 (Mo.1974). The facts surrounding the offense are detailed therein.

Following his conviction, movant, on December 23, 1974, filed a motion to vacate sentence under Rule 27.26 alleging that the conviction should be vacated because (1) the trial court was without jurisdiction to render judgment and sentence “for the reason that the State failed to prove venue contrary to Article I, Section 18(a) of the Missouri Constitution . . .; (2) he was deprived of due process of law “in violation of the 14th Amendment to the Constitution of the United States for the reason that the State suppressed evidence of an oral statement made by Movant 1 .” and then “. . . impeached him by the said statement” ; and (3) mov-ant was denied the effective assistance of counsel for the reason that trial counsel failed to object to the state’s failure to prove venue or to object to the state’s impeachment of him.

The motion to vacate states that the trial transcript “page[s] 176 through 487, will reveal that there was no evidence or any testimony to show in what city or county did the offense occurred at, nor did the evidence inferred such [sic].” Movant contends that since there was “no evidence whatsoever in showing venue” the trial court was without jurisdiction to render judgment and sentence.

Movant also argues that the “transcript will reveal” that counsel filed a motion for the production of favorable evidence and “pursuant to that motion, the State stated that there was no statement, oral or otherwise made by Movant.” Hence, he contends that the state, “in effect, suppressed favorable evidence because on cross-examination by the State, it brought out the fact that Movant did make a statement on April 18, 1972,” which violates due process.

Lastly, he contends in his motion that his trial counsel was ineffective because he “failed to protect Movant’s rights as stated above . . ..” McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974).

Following his motion and his forma pau-peris affidavit, the public defender was appointed to represent him on the motion. The matter was 'heard by the trial court without the presence of the appellant, and on February 14, 1975, the trial court overruled the motion. The court found that venue was shown because state’s exhibit No. 1 — a diagram of the apartment where the offense occurred — was admitted into evidence by stipulation of both counsel and such exhibit “bears the legend in large black print, St. Louis County, Missouri.” The court also found (1) that the transcript does not support the allegation that favorable evidence was suppressed by the state and (2) that his claim that counsel was ineffective was without merit.

On this appeal, appellant again contends in his pro se brief that the court erred in denying the motion because (1) the state failed to establish and prove venue at the trial and (2) the state suppressed “favorable evidence of a [sic] oral statement which had not been disclosed pursuant to a pre-trial motion for production of favorable evidence of any written or oral statements . . , thereby depriving the appellant of a fair trial and due process of law . .

In the brief filed by appellant’s counsel, counsel contends that the trial court was “clearly erroneous” in ruling that trial counsel was not ineffective, because counsel “failed to object to the prosecution’s introduction into evidence of a statement made by movant which had not been disclosed pursuant to a previous court order.”

Prior to trial, which occurred in October, 1972, trial counsel filed a motion “for production of favorable evidence” and a motion “for discovery and inspection.” The motion for the production of favorable evidence requested the state to furnish the defendant with various items including “all statements, books, papers, records, documents, lists and objects in the possession of the State that are favorable to this defendant or exculpatory of his actions.” The motion for discovery requested the state to produce “and to permit this defendant to inspect and copy or photograph all written or recorded statements or confessions made by the defendant, or copies thereof . . . At trial a motion to suppress was heard and overruled.

Following the overruling of the motion to suppress, defense counsel stated:

“Judge, the motion for discovery and inspection, I think we’re entitled and I am sure [the prosecutor] will agree, to any statements that Mr. Nelson may have given to the police or any admissions that he may have given to the police

After further colloquy regarding other matters, the prosecutor then stated:

“Your Honor, as far as the statements go, just for the record let me say that I have no knowledge of any written or recorded statements by the defendant or statements prepared and been signed by the defendant. To my knowledge, there is nothing that would — could be construed as a confession, oral or otherwise. And the only statements that may be involved at all might be statements that were made in the presence of the other people involved in this. I would concede [defense counsel] has a right to a written or recorded statement signed by the defendant, but there are none.”

During the trial, Mr. Nelson took the stand and detailed some of the events. On cross-examination the prosecutor, after asking a general question, said: “. .Do you recall on previous occasions making the statement that you don’t remember what happened in there?” After an objection to the “general nature” of the question and the court indicating that it “can be more specific,” the prosecutor then asked:

“All right. Let me direct your attention to April 18, 1972. Do you recall at that time making a statement that you didn’t remember what had happened, you didn’t know if you killed a man or not?”

Movant replied, “Yes, sir.” No further reference was made to the statement, and there was no indication to whom the statement was made or what the statement involved. Undoubtedly, the statement referred to was an “oral” statement.

It is upon these facts that movant contends the court erred in overruling his motion to vacate because the state suppressed “favorable” evidence of an oral statement, and because counsel was ineffective in not interposing an objection to the reference to the April 18, 1972 “statement.”

On this motion to vacate, we are guided by certain well-established principles. (1) A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); (2) in such a proceeding, the burden is upon the movant to establish his right to the relief sought; (3) upon a review of the trial court’s order, we are limited to a determination of whether the judgment is “clearly erroneous.” Rule 27.26(j); (4) a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed; (5) while an accused is entitled to the effective assistance of counsel, mov-ant has a heavy burden to carry to show that counsel was ineffective; counsel is vested with broad latitude and is not to be adjudged incompetent by reason of what, in retrospect, appears to be error of judgment; and (6) defense counsel has broad latitude in the conduct of a defense and cannot be adjudged incompetent and the defendant deemed to be denied effective assistance of counsel by reason of trial strategy which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693-694 (Mo.App.1973).

Tested within these well-recognized principles, and after examining the transcript on appeal and the transcript of the 27.26 motion, we are convinced that the trial court was not “clearly erroneous” in overruling the movant’s 27.26 motion.

First, as to venue, appellant contends that the state did not produce “any testimony” as to where the alleged crime was committed notwithstanding many witnesses testified for the state. He contends there was no testimony produced that the offense occurred in St. Louis County.

There is no question that venue must be proved because the accused is guaranteed the right to a public trial by an impartial jury of the state and district wherein the crime shall have been committed. State v. Garrett, 416 S.W.2d 116, 118-119 (Mo.1967); Dean v. United States, 246 F.2d 335, 338 (8th Cir.1957); Mo. Const., Art. I, § 18(a); § 541.033, RSMo 1969. But venue is not an integral part of a criminal offense and need not be proved beyond a reasonable doubt or by direct evidence, but may be inferred from all the evidence in the case. State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974), citing many authorities; State v. Rocha, 526 S.W.2d 834, 837 (Mo.App.1975).

“. . . In a criminal case venue may be established if the jury reasonably could find from the facts and circumstances introduced into evidence that the crime with which a defendant has been charged occurred within the trial court’s jurisdiction. . . .” State v. Rocha, supra, 526 S.W.2d at 837; State v. Bradford, 462 S.W.2d 664, 671 (Mo.1971); State v. Valentine, supra, 506 S.W.2d at 410.

There were ample facts and circumstances to show here that the offense occurred in St. Louis County. As stated by the trial court, counsel stipulated to the introduction of state’s exhibit # 1 — a diagram of the apartment in University City which bears the legend “St. Louis County, Missouri.” Further, investigating officers identified themselves as police officers of University City. Evidence obtained by police officers at the crime scene was examined at St. Louis County police laboratory, and other witnesses for the state indicated that the offense occurred in University City on Cates Avenue. See State v. Valentine, supra, 506 S.W.2d at 410, and State v. Bradford, supra, where evidence concerning established streets aided to establish venue.

Defendant relies on State v. Poelker, supra, 378 S.W.2d 491. That case is clearly distinguishable. In Poelker, the Supreme Court specifically found that the facts in the record were not sufficient to support an inference that the offense charged was committed in St. Louis County. In that case there was no evidence, circumstantial or otherwise, to show where the income tax had been either prepared or mailed.

We conclude that the trial court was not clearly erroneous in overruling movant’s motion contending no venue was established.

As to appellant’s second contention, that the state suppressed “favorable” evidence of an “oral statement” which had not been disclosed pursuant to his pre-trial motion for production of favorable evidence, we are convinced, under the circumstances, that this contention is without merit.

It is now well settled that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. State of Maryland, supra, 83 S.Ct. at 1196-1197; Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, 713 (1972). A criminal conviction obtained through the knowing use of perjured or false evidence violates the defendant’s right to due process. Imbler v. Craven, supra, 298 F.Supp. at 802-803, and cases cited therein; State v. Collett, 526 S.W.2d 920, 931 (Mo.App.1975); State v. Thompson, 396 S.W.2d 697, 701 (Mo. banc 1965).

Under the decisions, the test of whether the suppression of favorable evidence violates due process is whether the undisclosed evidence had a reasonable likelihood of affecting the judgment of the jury and whether the evidence is material. State v. Collett, supra, 526 S.W.2d at 931. In Moore v. Illinois, supra, 92 S.Ct. at 2568, the Supreme Court stated: “Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”

Appellant’s position that the state withheld “favorable evidence of the oral statement allegedly made by Appellant up until the same was used to impeach Appellant’s testimony” does not satisfy the legal tests, and we hold that this contention is without merit. We are convinced that the oral statement referred to by the prosecutor did not have a reasonable likelihood of affecting the judgment of the jury. We cannot say that the character of the statement was favorable to the defense or that appellant was surprised by the state. There is no showing to whom the statement was made. The prosecutor admitted that he had no knowledge of any statements which could be construed as a confession and conceded that defense counsel has a right to any written or recorded statements signed by defendant, but there are none. There is no indication that the statement was “favorable” to the defense. There is no showing how the “statement” prejudiced movant. Appellant makes a broadside attack that since the prosecutor on cross-examination asked the question, “Do you recall at that time [April 18, 1972] making a statement that you didn’t remember what had happened, you didn’t know if you had killed a man or not?”, he concludes that any such “statement” is favorable to the defense, that it is material, that it would have a reasonable likelihood of affecting the jury, and that the “oral” statement must be transcribed and given to him. This is insufficient. The burden of showing that the “statement” was favorable to the movant and that the state suppressed the statement rests upon movant. Appellant has failed to sustain his burden. Rule 27.26(f). Hence, we hold that the trial court did not err in overruling the motion on the ground that the state suppressed favorable evidence.

Appellant’s reliance on State v. Johnson, 524 S.W.2d 97 (Mo. banc 1975), is inapposite. In Johnson, the prosecution used a suppressed written statement made to the police for impeachment purposes which had not been disclosed to the defendant after request. The Supreme Court reversed, holding that the trial court should have required a showing by the state of the necessity for the use of the statement in rebuttal which would overcome the fundamental unfairness of using a suppressed statement which went directly to the guilt or innocence of the defendant. That decision does not control the facts here.

Lastly, appellant contends that he was denied effective assistance of counsel because trial counsel failed to protect the rights of the movant as to venue and failed to object to the question of the prosecutor as to whether movant made a “statement” that he didn’t “remember what had happened . . . on April 18, 1972.

There is today no question that an accused is entitled to effective assistance of counsel. While this principle is well settled, numerous standards have been articulated to determine when counsel is deemed to be ineffective. See Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973); Brown v. State, supra, 495 S.W.2d at 694. While numerous tests have been laid down, the ultimate test is whether the efforts and representation of the attorney have reached a level of adequacy so that the defendant has had a fair trial. Hall v. State, supra, 496 S.W.2d at 303. See the standards in McQueen v. Swenson, supra, 498 F.2d at 207 — relating to investigation by counsel. In order to show ineffectiveness, a 27.26 movant has a heavy burden to carry. It is recognized that counsel is vested with broad latitude and he is not to be adjudged incompetent and the movant denied effective assistance by reason of what, in retrospect, appears to be errors of judgment. Defense counsel has broad latitude in the conduct of a defense and cannot be adjudged incompetent by reason of trial strategy which did not produce an acquittal or some other desired result. Lahmann v. State, supra, 509 S.W.2d at 794, and cases cited therein. The movant must show that the conduct of counsel so prejudiced him as to have deprived him of a fair trial. Fritz v. State, 524 S.W.2d 197, 199 (Mo.App.1975).

The mere failure to make objections does not constitute ineffective assistance of counsel. State v. Harris, 425 S.W.2d 148, 153 (Mo.1968); Brown v. State, 512 S.W.2d 404, 407 (Mo.App.1974).

To find ineffective assistance of counsel, the action of trial counsel in failing to object must have gone beyond an error or mistake in the trial strategy or judgment and must have been of such character as to result in a substantial deprivation of the movant’s right to a fair trial. McConnell v. State, 530 S.W.2d 43, 44 (Mo.App.1975).

We cannot conclude that counsel’s failure to object resulted in a substantial deprivation of movant’s right to a fair trial. Trial counsel’s failure to object to the prosecutor’s question cannot be construed, under any legally articulated test, as ineffective assistance of counsel. Brown v. State, supra, 512 S.W.2d at 407. We cannot con-elude that the trial court was clearly erroneous in this regard.

We have read the record, we have read the appellant’s pro se brief and appellate counsel’s brief and the authorities relied upon in both briefs, and we conclude that the trial court did not err in overruling the motion to vacate and hence affirm the judgment.

The judgment is affirmed.

KELLY, J., concurs in result.

GUNN, J., concurs.

      . He relies upon Dean v. United States, 246 F.2d 335 (8th Cir.1957); United States v. Mancino, 179 F.Supp. 897 (S.D.N.Y.1960); Hill v. United States, 284 F.2d 754 (9th Cir.1960); State v. Poeiker, 378 S.W.2d 491 (Mo. banc 1964); Jackson v. State, 246 So.2d 553 (Miss.1971); State v. Glasscock, 76 N.M. 367, 415 P.2d 56 (1966); Cauley v. United States, 355 F.2d 175 (5th Cir.1966).

      . He relies upon Imbler v. Craven, 298 F.Supp. 795 (C.D.Cal.1969); Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Kern v. State, 507 S.W.2d 8 (Mo. banc 1974).

      . Appellant contends the state surprised him by impeaching his testimony upon cross-examination by bringing up the oral statement. There was no indication by the one question relating to the statement as to whom the statement was made or what its contents were except that it dealt with whether he knew he killed a man or not.

      . At the time of trial, former Rule 25.195 was in effect, which permitted defendant to inspect a copy of any relevant written or recorded statements or confessions made by the defendant.


author: HARBISON, Justice.

text:
    Mose McGHEE, Petitioner, v. Howard MOORE et al., Respondents.
    Supreme Court of Tennessee.
    April 12, 1976.
    I. H. Murphy, Memphis, for petitioner.
    J. P. Matthews, Somerville, Hulon O. Warlick, Memphis, for respondents; Gianot-ti, Warlick, & Bartusch, Memphis, of counsel.
   OPINION

HARBISON, Justice.

Petitioner sought review of a final judgment of the Chancery Court of Fayette County, Tennessee by petition for certiorari and supersedeas to the Court of Appeals, Western Section.

In an opinion filed on September 23, 1975 that court denied the petition. The single assignment of error upon which the petition was based in that court, as in this, was to the effect that the trial court had abused its discretion in refusing to grant a stay or continuance of a hearing on a post-trial motion and of all other proceedings in the action.

The case had been tried on its merits, and final judgment entered against the petitioner. A timely motion for post-trial relief had been filed, and this was set for hearing on March 22, 1975. Counsel for petitioner, however, on March 19, 1975, filed a motion to stay “all proceedings in this cause” until the adjournment of the then current session of the General Assembly, upon the ground that he was a member thereof and that its date of adjournment was then unknown. The motion stated that:

“If the present proceedings are allowed to continue the Petitioner who is the solicitor of record for the Defendant and Cross-Plaintiff would be required to be absent from legislative meetings and further be unable to perform his legislative responsibilities.”

Despite the filing of this motion, however, it affirmatively appears from the briefs filed that counsel for the petitioner did appear on March 22, 1975, and did present and argue his motion, which was overruled.

Only the technical record accompanied the petition for certiorari to the Court of Appeals and to this Court. There are no affidavits or evidentiary matter of any kind accompanying the petition, so that certain factual statements made by counsel for the petitioner in his brief cannot be considered. These are to the effect that he was never furnished a copy of the decree of the trial court, entered pursuant to the aforesaid hearing, and had no notice of any proceedings taken in the case thereafter. The record shows, however, that a decree was entered pursuant to the March 22 hearing, appointing a receiver to rent or lease the land which was the subject of the suit, for the crop year 1975, said rent to be held pending further orders of the court. The decree further states:

“3. That Defendant and Cross-Plaintiff’s Motion for a stay of proceedings is sustained for a period of ten (10) days from the date hereof for the purpose of taking a discretionary appeal from the ruling of this Court upon said Motions.”

Counsel does not deny that he was aware of this action of the trial judge, but nevertheless did not perfect the appeal which was allowed, or take any further action in the cause, insofar as the record discloses.

The original suit had been for specific performance, and this relief had been granted by the trial court in its final decree. When no appeal of any sort was perfected from the order overruling the motion for a new trial, a writ of possession in favor of the original complainants was issued on April 28,1975. Although not in the record, we are advised that on April 25, 1975, the Clerk and Master, as Special Commissioner, executed a deed to the complainants, pursuant to the final decree of the trial court.

Not until May 7, 1975 was any action taken by counsel for the petitioner. At that time he filed a petition for certiorari and supersedeas in the Court of Appeals, alleging as error the action of the trial court in not staying all further proceedings in accordance with his motion of March 19, 1975.

The Court of Appeals found the petition to be without merit, but in the course of its opinion held that T.C.A. § 20-1106 was unconstitutional, representing an impermissible encroachment upon judicial power by the General Assembly.

In our view of the record, the constitutional issue need never have been reached. Despite his application for a postponement of all further proceedings, counsel for the petitioner did appear and argue his post-trial motion, without success. His motion for further suspension of the proceedings was granted to the limited extent quoted above, and he was allowed a period of time to seek a “discretionary” appeal before the Master’s deed was executed and the writ of possession issued. Not having availed himself of this special permission from the court, counsel still had available the regular methods of seeking appellate review as provided by law, including the suspension of the final judgment by the filing of a proper appeal bond and, if necessary, special protective orders from the appellate courts pursuant to Rule 62 of the Tennessee Rules of Civil Procedure.

Having availed himself of none of these, counsel is simply not in a position now to assign error on the action of the trial court in not granting his motion.

In the state of the record, as previously indicated, we do not think that it was necessary for the Court of Appeals to reach or pass upon any issue as to the validity of T.C.A. § 20-1106, and we accordingly reverse and vacate so much of its opinion as deals with that subject.

We would point out, however, that whether that statute be valid or invalid, trial courts have customarily in this state liberally granted continuances to litigants, witnesses or counsel who are members of the General Assembly and who are required to appear before the courts in judicial proceedings. This is approved practice, and such continuances should ordinarily be granted, absent exigent or extraordinary circumstances.

In the present case, however, the application came after trial and final judgment. There was actually nothing more to “stay” in the trial court, after the post-trial motion was ruled upon. It was then incumbent upon petitioner to take the necessary steps to seek appellate review, if he desired to do so. Other than granting the maximum time allowed by statute for filing an appeal bond and bill of exceptions, there was nothing the trial judge could do to “stay” the matter, and no application was made to him to do these things insofar as the record shows. A “discretionary appeal” after final judgment would hardly have lain, even had there been a proper certification of an issue as required by T.C.A. § 27-305.

The judgment of the Court of Appeals is modified in accordance with this opinion, and, as modified, affirmed. The petition for certiorari is denied. Costs of the petition in this Court will be taxed to the petitioner, and all other costs will be taxed as ordered by the Court of Appeals.

FONES, C. J., and COOPER, BROCK and HENRY, JJ., concur.

      . “20-1106. Member of general assembly as attorney, party, or witness in case. — Any court, constituted under the laws of Tennessee, any administrative board or commission or other agency authorized to conduct hearings shall grant a continuance or postponement of the proceedings, at any stage of the action, if it is shown that an attorney, party, or material witness is a member of the general assembly, and if the proceeding should continue the attorney, party or material witness would be required to be absent during all or part of the legislative session or to be absent from a meeting of a legislative committee of which he is a member.”


author: FONES, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Richard Lee SNEED, Respondent.
    Supreme Court of Tennessee.
    May 10, 1976.

      R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Robert A. Grunow, Asst. Attys. Gen., Nashville, for petitioner.
    Walker Gwinn, Asst. Public Defender, Memphis, for respondent.
   OPINION

FONES, Chief Justice.

We granted certiorari in this cause to consider the State’s contention that the Court of Criminal Appeals erred in holding that there was insufficient evidence to support the jury’s verdict that defendant was guilty of robbery by the use of a deadly weapon. We reverse the Court of Criminal Appeals and reinstate the conviction.

At defendant’s trial the robbery victim testified that on December 9, 1973, at approximately 7:00 p. m. he and his daughter returned home from the Westwood Shopping Center. As he was locking the car, two men ran up to him. One held a knife at his stomach, and the other held a pistol at his back. His wallet containing identification, a payroll check, and cash in excess of two hundred seventy ($270) dollars were taken. He could not identify his assailants, or describe the clothing they were wearing.

In defendant’s car at the time he was arrested, police recovered from the glove compartment a payroll check, an insurance company identification card, and a voter registration card, all issued to the victim. Under the right front passenger’s seat, occupied by Michael Flake, also charged with the robbery, police found a pistol which was identified in court by the victim as being similar to the pistol used by one of the robbers.

Defendant testified at trial and generally corroborated a statement he made to the police the day after the robbery, and read at the trial. In the statement he said that on the day of the robbery he drove to the Westwood Shopping Center accompanied by Michael Flake and Michael Harris. Harris went inside a grocery store to make a purchase but returned in about five (5) minutes without having made a purchase and instructed defendant to follow a car occupied by a man and a woman. He said he did not consider this a peculiar request as he thought they were going to help the man and woman with their groceries. When he reached the driveway into which the other car had turned, he was going to park in front of the house but was instructed to park farther down the street. Flake and Harris then got out of the car and were gone about five (5) minutes. Defendant said that he did not know what they were doing as he was not able to observe them from where he was parked. When Flake and Harris returned to the automobile, Harris had a pistol in his hand and Flake had a knife. According to defendant, this was the first time he had any knowledge of a robbery. Defendant drove the automobile away from the scene of the robbery and let Harris out at his hotel, and he and Flake met with defendant’s two (2) brothers, and were later arrested. Defendant testified that he received no money from the robbery, and at the time of his arrest he had only fifty-eight (58) cents on his person.

The jury evidently disbelieved the facts as related by defendant and found him guilty of robbery by the use of a deadly weapon and sentenced him to the minimum term provided by law of ten (10) years.

The Court of Criminal Appeals, Judge Dwyer dissenting, reversed the conviction holding that there was insufficient evidence to support the jury’s verdict. That Court, even though finding the defendant’s story “incredible,” felt that he had offered a “reasonable explanation for his presence” at the scene of the robbery, and found that there was “no reasonable evidence consistent with defendant’s guilt . . ..” A concurring opinion by one member of the Court of Criminal Appeals indicated that the jury had arbitrarily disregarded the explanation given by the defendant.

It is well established that this Court will not reverse a criminal conviction on the facts unless the evidence preponderates against the verdict and in favor of the innocence of the accused. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962). On appeal the burden rests upon the defendant to show that the evidence preponderates against the verdict and in favor of his innocence. Chadwick v. State, 189 Tenn. 256, 225 S.W.2d 52 (1949). After a careful review of the record, we find that the defendant has not met this burden, and that the evidence preponderates in favor of the verdict. Moreover, there is nothing to indicate that the jury arbitrarily disregarded the defendant’s version of his involvement, or lack thereof, in the robbery. It is more likely that the jury did consider his testimony, but rejected it, as they certainly had the prerogative to do, as unbelievable and inconsistent with the State’s theory.

Under certain circumstances, a legal presumption of guilt is negated by credible proof to the contrary. However, the presumption may prevail when the defendant fails to testify in rebuttal, or when the jury determines that his testimony is unbelievable. Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958). Here, defendant’s credibility was at issue because of the conflict in evidence. The jury resolved the conflict against defendant, and we will not disturb that finding in the absence of a clear preponderance of the evidence in favor of defendant’s innocence. State v. Grace, 493 S.W.2d 474 (Tenn.1973).

Counsel for defendant Sneed filed in this Court on 28 August 1975, “Reply to Petition for Certiorari, Statements, Assignments of Error Under Rule 13, and Brief and Argument on Behalf of Respondent, Richard Lee Sneed.” Rule 13 of this Court is applicable to civil cases only. In criminal cases a defendant cannot invoke the jurisdiction of this Court for consideration of assignments of error in the Court of Criminal Appeals by any procedure other than that prescribed in T.C.A. § 16 — 452. Notwithstanding the foregoing we have elected to treat the filing in this Court on behalf of defendant Sneed as a reply brief and a petition for the writ of certiorari, timely filed. Upon consideration of the assignments of error, same are respectfully overruled and the petition for the writ is denied.

The judgment-of the Court of Criminal Appeals is reversed and the jury verdict and judgment thereon is affirmed.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.


author: BROCK, Justice.

text:
    GREGORY COMPANY et al., Appellants, v. Steve DURDIN, Appellee.
    Supreme Court of Tennessee.
    May 17, 1976.

      W. H. Lassiter, Maddox, Lassiter & Jones, Huntingdon, for appellants.
    William A. Derington, Jr., Camden, for appellee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case. The only question presented by this appeal is whether the record contains any material evidence to support the decree of the Chancellor determining the appellee’s permanent partial disability to be 60% of the body as a whole. We have concluded that the record does, in fact, contain such supporting evidence.

Petitioner is a twenty-one year old construction worker with a high school education. On October 24, 1973, he was operating a large earth moving machine when it “. . . caught a real big chuck hole in the road and threw (him) into the canopy overhead and hurt (his) back.” He was taken to a hospital where he was a patient for two days. Later, he was treated by Dr. John C. Brothers, an orthopedic surgeon, who hospitalized him for about ten days. He testified that he was never physically able to return to his job as operator of heavy earth moving equipment and has been able to do only “very little, if any, work since the accident.” Instead, he is attending a vocational school to learn to be a welder.

Dr. Brothers, who examined petitioner first on October 27, 1973, and last on November 26, 1974, testified that petitioner sustained a compression fracture of the first lumbar vertebra, which has caused a permanent medical impairment of the body as a whole of from 5 to 10 percent.

Dr. Robert J. Barnett, an orthopedic surgeon, testified that petitioner suffers from “a severe compression fracture of the first lumbar vertebra,” that this injury has caused limitation of motion and “will give him some weakness of his back, particularly with heavy lifting.” He is also of opinion that heavy work will have to be limited by petitioner “for the rest of his life,” and that objects weighing over fifty pounds should not be lifted. He estimated the petitioner’s disability from the injury to be 15% to the body as a whole “on an anatomical basis.”

As already stated, we think that the above testimony of the petitioner and his physicians supports the finding of the Chancellor fixing permanent partial disability at 60% of the body as a whole. In determining the extent of disability, the trial judge is not bound to accept the testimony of any witness, but may determine from all the evidence the extent of disability, if any. Consolidation Coal Co. v. Pride, 224 Tenn. 188, 452 S.W.2d 349, 352 (1970); A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1970); Industrial Coated Products of America, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566 (1970). The testimony of the injured employee with respect to the extent of his disability may be accepted over the testimony of medical experts. Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470 (1963); Hamlin & Allman Iron Works v. Jones, 200 Tenn. 242, 292 S.W.2d 27 (1956). And, the measure of “disability” under the workmen’s compensation law is not provided by the narrow concept of “medical disability” or “anatomical impairment”; it includes additional pertinent factors, such as skill, education, training, duration and job opportunity for the disabled. Federated Mutual Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).

The decree of the Chancellor is affirmed. Costs incurred by this appeal are taxed against appellants.

FONES, C. J., and COOPER, HENRY and HARBISON, JJ., concur.


text:
    Petition of Richard James STAYTON.
    Supreme Court of Tennessee.
    May 17, 1976.
    G. Rhea Buey, Martin & Cochran, Nashville, for petitioner.

      Everett H. Falk, Asst. Atty. Gen., Nashville, for Board of Law Examiners.
    R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

This cause is before us on petition of Richard James Stayton for permission to take the Tennessee Bar Examination. More particularly, he asks that the undergraduate qualifications for “special students” set out in Rule 37, Section 5.08, of the Rules of the Supreme Court relating to bar admissions be waived by this Court.

The petitioner was admitted to Vanderbilt Law School as a “special student.” He did not possess an undergraduate degree, nor did his undergraduate work meet the special student minimum requirements of Supreme Court Rule 37, Section 5.08. For that reason, the Board of Law Examiners advised petitioner that he was not eligible to take the Tennessee Bar Examination, although he has duly received his law degree from Vanderbilt.

On the 29th day of July, 1975, this Court ordered that the writ of certiorari issue to the Board of Law Examiners to certify to this Court the entire record and proceedings in the matter of petitioner’s application, and that a writ of supersedeas issue setting aside the order of the Board of Law Examiners denying the petitioner the right to take the examination to be administered by said Board on July 30 and 31, 1975. This Court further ordered that the results of said examination be withheld from the petitioner pending further orders of the Court.

In Thompson v. Board of Law Examiners (May 5, 1975, unreported), this Court granted a waiver of Rule 37, Section 5.08, on the merits of the case there presented, but cautioned all law schools and persons seeking admission to law schools as “special students” that it was unlikely that the Rule would be waived in future cases, regardless of the merits shown.

We now are of the opinion that our policy in this regard must be more positively stated, to-wit: (1) any person who is enrolled as a “special student” in a Tennessee law school upon the date of the release of this opinion will be permitted to make application to this Court for a waiver of the requirements of Rule 37, Section 5.08; (2) all such applications will be considered by this Court and determined as the merits may dictate; and (3) no applications for waiver of Rule 37, Section 5.08, will be considered with respect to any person entering law school after the date of release of this opinion.

Upon considering the merits of petitioner’s plea of waiver, we are persuaded that he is an exceptionally qualified person and we, therefore, waive the “special student” provisions of Rule 37, Section 5.08, and declare him eligible to take the Tennessee Bar Examination.

The petitioner will pay the costs of this appeal.

FONES, C. J., and COOPER, HENRY and HARBISON, JJ., concur.