author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Russell Otis KING, Defendant-Appellant.
    No. KCD 28397.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Michael E. Dailey, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a judgment and conviction of second degree murder and a jury-imposed sentence of one hundred years.

Although the sufficiency of the evidence is not raised, the nature of the points relied upon require a rather complete statement of the evidence. The defendant and one Teresa Fisher, a one-time girlfriend of the defendant, had been going together during 1974, but their relationship had ceased in December of 1974. During the time that the defendant and Teresa Fisher were going together, Teresa had also been visited by the victim Forbush. This had caused difficulties between Forbush and the defendant and, in June of 1974, the defendant King had been shot in the shoulder by the victim Forbush. On the 21st of January, 1974, the victim had driven Teresa Fisher to her grandmother’s residence. Teresa Fisher got out of the car and prepared to go inside the house. While she was on the porch, she saw the defendant approach the victim’s car on foot carrying a gun. She then went inside the residence but ran out after she heard a gunshot. She observed the defendant pointing the gun at the victim who was in the car. She ran inside the house to call the police. When she went in the house the second time, she heard more shots, returned to the front of the house and looked out, observing the defendant with his hand inside of the window of the car trying to open the door. The victim was then not in sight, but not outside the vehicle. The police arriving in response to a dispatch observed a man fleeing the scene, subsequently identified as the defendant, and apprehended him after a chase. Upon being advised of his rights, the defendant admitted having shot the victim four times before dragging him from the vehicle and stomping on his head. When making his statement to the police, the defendant said, “I hope I killed the motherfucker.” Another policeman who arrived at the scene observed the victim outside the car and next to the curb and identified a photograph of the victim’s body in its position when he arrived.

The Coroner stated the victim had received four gunshot wounds, one in the front of the body and three in the back, that his jaw had been fractured and several teeth had been knocked out. She identified several photographs which showed the location of the bullet wounds and the condition of the face of the victim. Another detective who questioned the defendant testified that the defendant admitted shooting the victim and also stated that he hoped For-bush would die. When informed that the victim had died, the officer testified that he made the following response:

“He said, ‘Good,’ and he grabbed my hand and said, ‘I want to shake hands, I’ll be able to sleep now, I swore I wouldn’t sleep until I killed the motherfucker. I want to see him in a box. I just want to be out in time to go to his funeral.’ ”

The defendant also admitted to this officer that he had dragged the victim from the car and kicked him, further admitting that he had not seen the victim have a gun when the shots were fired by the defendant.

After the State rested, the defendant took the stand and testified. After asserting the wounding inflicted by the victim in June of 1974, he testified to a constant fear of the victim and claimed that the victim had threatened to kill him on the same day the shooting occurred. This supposedly occurred at the home of Teresa Fisher. He claimed that he went to Teresa Fisher’s grandmother’s residence in response to a call from Teresa, taking his gun with him out of fear of the victim. He testified that he saw Forbush pull up in his own car and make a movement which he took to be an act of reaching for a gun, so he shot the victim once, that the victim then got out of the car and charged him, at which time he shot the victim several more times. According to the defendant, the victim then “fell” on the defendant who pushed him off and ran away. The defendant denied the statements which the officers had testified he made and denied dragging the victim from the car or kicking the victim. There was evidence before the jury that both the victim and the defendant had a reputation for being violent and for carrying guns.

The defendant asserts three points of error. The first point of error contends that the photographs depicting the position of the body in the street, the facial wounds, and the bullet wounds, were improperly admitted and submitted for jury viewing because of the inflammatory and prejudicial nature of the photographs. Defendant’s second point asserts that the court’s rulings with respect to the photographs forced the defendant to testify and incriminate himself and, third, that the jury was not a fair and accurate cross section of society because the jury selection system automatically excluded women from jury service. On the first issue raised, the jury viewing of the photographs, there is no error. The photographs in question were gory and gruesome, but that fact alone will not preclude a jury view of the photographs. “It has generally been held that even though a photograph may be inflammatory it is admissible if it tends to prove any material element of the State’s case; this includes the issues of identity, condition and location of the body, nature or location of wounds, and the cause of death; and, generally, if the photograph corroborates the oral testimony of the state or refutes defense testimony it is admissible.” State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973); State v. Stewart, 529 S.W.2d 182, 184 (Mo.App.1975). Furthermore, a photograph is not inadmissible simply because witnesses have testified to the matters shown by the photograph. State v. Brown, 524 S.W.2d 188 (Mo.App.1975). The photographs in this case depict the location of the bullet wounds inflicted upon the victim’s body and the condition of the facial area of the body, as well as the position of the body at the scene. They are thus not repetitive and do not unduly emphasize the gory details of the body or the scene by such repetition, but each bears upon an issue to be decided by the jury. The defendant claimed to have shot the victim only once while the victim was seated in the car and the three additional times when the victim charged at him. The photograph of the wounds refutes this contention because of the fact that the one wound was in the front and three wounds showed an entry in the back of the victim. The photograph also corroborates the testimony of Teresa Fisher that the shots were all fired while the victim was still in the car.

The photograph of the mouth area of the victim corroborates the Coroner’s testimony with respect to the injuries and the admission of the defendant to the police about the stomping on the face of the victim. It also refutes the claim by the defendant that the victim fell on top of him. The exhibit showing the location of the body is clearly admissible to corroborate the State’s theory of the case and to refute the defendant’s claim when it is considered in connection with other photographs which showed that the seat of the car was bloodstained indicating that the victim was removed from the car after he was shot. The photographs were properly admitted by the trial judge and viewed by the jury.

Defendant’s second point was not raised in the motion for new trial, nor at the trial, and this court is asked specifically to review the question as plain error. The substance of the defendant’s claim of error is that because of the procedure at the time the photographs were offered in evidence, thé trial court compelled the defendant to testify, thereby offending his privilege against self-incrimination. Defendant characterizes the proceedings as one in which the trial court bargained with the defendant to testify to keep the jury from viewing the photographs. Aside from the citation of cases involving wellknown principles of constitutional law concerning the right of defendant not to testify and the voluntariness of confessions, defendant does not cite any authority factually in point, nor does the defendant in his brief assert the factual basis for his conclusionary claim that he was coerced by the court into testifying. Only because the defendant’s point and argument suggest a serious claim of error, even though not supported by any transcript reference or factual argument in the brief, some relatively lengthy explanation of the procedures followed by the trial court should be recited. It is first to be noted that the defendant’s statement of fact characterizes the action of the trial court as being coercive in requiring the defendant to testify, but that is not factually correct on the basis of this record.

The photographs proved certain essentials of the State’s case, as well as substantiating and corroborating the testimony offered in the case-in-chief. As previously noted, the photographs were admissible and could have been viewed by the jury upon identification. However, at that time, the defendant objected to the jury viewing the pictures and argued that they were inflammatory. The defendant indicated that self-defense would be an issue in the case. The court, when the issue of the admission of the photographs was argued, conceded the gory nature of the photographs. The court was aware that the defendant in a previous trial had admitted firing only one shot and denied kicking the victim in the head and face. Defendant’s counsel then attempted to admit the physical facts of the victim’s injury, but not the nature of the acts of the defendant. The State rejected the offer of a limited admission and insisted it was entitled to prove its case. Defense offered to stipulate, but this was refused by the State. The court then ruled that the photographs were admitted in evidence but were not to be shown to the jury unless the issues as to the nature and extent of the victim’s wound remained viable at the conclusion of the case. This ruling was more favorable to the defendant than was necessary. At that stage of the case, the photographs were admissible as indicated above in connection with the ruling of defendant’s first point.

The following colloquy concluded the conference out of the hearing of the jury:

“THE COURT: And I’ll withhold giving them to the jury at this time on the recommendation of Mr. Teasdale.
MR. EDWARDS: But they are being accepted into evidence?
THE COURT: Oh, yes.
MR. TEASDALE: Is there anything left for the defendant to do with regard to that stipulation? Shall we enter into it now?
THE COURT: No, I think you will have to await the pleasure of your client when he takes some position one way or the other about testifying.
MR. TEASDALE: He’s going to testify. I’ll tell the Court right now he’ll testify.
THE COURT: We’ll take care of that when the time comes.” (Emphasis supplied).

Defense counsel then, in colloquy with the court after the State rested, attempted to obtain from the court some commitment as to what the defendant would have to admit while testifying in order to keep the photographs from the jury. The defense counsel again indicated the defendant would testify and wanted a recess to talk to the defendant. The court steadfastly refused to so indicate and chastised counsel for attempting to obtain an indication from the court as to the questions to be put to the defendant.

Defense counsel was obviously attempting to have his cake and eat it, too, by offering the defendant as a witness and by limiting the testimony of defendant to such agreement with the State’s case as would keep the damaging photographs away from the jury.

The defendant did testify, and he attempted to explain the body being out of the car by stating the victim was charging at him, a claim refuted by the wounds in the back. He denied kicking the victim, a claim refuted by the photographs which showed severe damage to the victim’s mouth. When the State sought to permit the jury to view the photographs, the defense objected, and the court properly noted that they were now relevant and probative to show the aggression of the defendant and refuted his claim of self-defense and his version of the killing.

As indicated by the above recital of the occurrences at the time the photographs were offered, the trial court did not require anything of the defendant but had simply reserved its ruling. The defendant assumes in his argument that if the defendant had not testified the court would have admitted the photographs for jury viewing — that is not borne out by the record, no statement to that effect appearing at any point in the colloquy between counsel and the court. What the court might or might not have done with respect to a jury view of the photographs if the defendant had remained silent is purely speculative. Based upon the trial court’s reluctance to permit them to go to the jury at the time they were offered, it seems fair to infer that the court would not have permitted the jury to view the photographs if the State’s oral testimony was not contradicted. The last remark of the court set forth above indicates that the court was leaving it to the defendant and counsel to make the choice as to whether the defendant would testify. The defendant chose to testify, as his counsel had already indicated he would, and the defendant elected to attempt to refute the oral testimony offered by the State. In those circumstances, the trial court was eminently justified in permitting the jury to view the photographs. The point is without merit.

The final point raised by the defendant is totally without merit. No objection or challenge to the array of jurors was made before the jury was sworn, the first mention of this claim being in the motion for a new trial. Such failure to make proper objection to the array of jurors does not preserve the point for review. State v. Robinson, 484 S.W.2d 186 (Mo.1972); and also the claim made by the defendant has been ruled adversely to him in State v. Duren, 556 S.W.2d 11 (Mo.banc 1977).

Judgment and conviction affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    Ralph CULLORS, Respondent, v. MISSOURI DIVISION OF EMPLOYMENT SECURITY and Labor and Industrial Commission of Missouri, Appellants.
    No. KCD 28808.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Sharon A. Willis, Kansas City, for Division of Employment Sec.
    Charles B. Fain, Jefferson City, for Labor and Industrial Relations Commission of Missouri.
    K. Colleen Nunnelly, The Legal Aid & Defender Society of Greater Kansas City, Inc., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

The Missouri Division of Employment Security and the Labor and Industrial Relations Commission of Missouri (appellants) appeal from a judgment of the Circuit Court of Jackson County, Missouri, reversing an order of appellant Labor and Industrial Relations Commission of Missouri affirming a decision of the Appeals Tribunal of the Missouri Division of Employment Security under the Missouri Employment Security Law. The Commission found that the decision of the Appeals Tribunal, denying Ralph Cullors (respondent) benefits because he had left his work voluntarily without good cause attributable to his work or to his employer, Lawrence Gutierrez, d/b/a Professional Placement Service (PPS), was supported by competent and substantial evidence and made in accordance with the law.

On March 11, 1974, respondent was employed by PPS as part of a “contract labor force” to work in the “bin section” of the General Services Administration (GSA) warehouse in Kansas City, Missouri. PPS employees working at the GSA warehouse wore a badge to distinguish them from regular GSA employees. Respondent’s shift at the GSA warehouse started at 7:00 A.M. Mark Paul, the PPS foreman or supervisor at the GSA warehouse, did not report to work until 8:00 A.M. Respondent “signed in” at the GSA warehouse each morning when he arrived at work and picked up a badge. When his shift ended he turned in his badge to Mark Paul. Russell Smith, an employee of GSA, was supervisor of the “bin section”. Respondent left work during the morning of November 20, 1974. The circumstances of his doing so are awash with conflicting evidence. Respondent testified that he had been informed there might be some layoffs, and as things were slow the particular morning in question, he asked Russell Smith for “the rest of the day” off in order to check with his union about permanent work. Russell Smith testified that his recollection was that respondent merely told him he wanted to go someplace and he told respondent he would have to see or check with Mark Paul. Respondent then went to see Mark Paul. Mark Paul testified as follows: “And Mr. Cullors walked up to me, and he — he handed me his badge, and he told me that he was going out to look for another job, and he turned and walked out the door.” Respondent testified that he asked Mark Paul, as he had Russell Smith, for the rest of the day off in order to check with his union about permanent employment. Mark Paul denied that respondent said anything of that nature. Mark Paul reported to the central office of PPS that respondent had quit or terminated his employment.

So far as here pertinent, respondent was disqualified from recovering benefits if he “left his work voluntarily without good cause attributable to his work or to his employer . . . ”. See. 288.050.1(1), RSMo 1969. All the parties agree that a very narrow issue is involved — did respondent voluntarily quit his work, i. e., voluntarily quit his job? If he did, no contention is made by respondent that he did so “for good cause attributable to his work or to his employer.” Respondent does contend, however, that he did not voluntarily quit his job, rather, he merely took a temporary leave of absence for the remainder of the day.

The scope of judicial review possessed by the Circuit Court of Jackson County in this matter was statutorily prescribed by Sec. 288.210, RSMo 1969: “In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law. . . . ” As judicially construed in Laswell v. Industrial Com’n of Missouri, etc., 534 S.W.2d 613, 615 (Mo.App.1976), a reviewing court “must determine whether the findings of the Commission are supported by competent and substantial evidence and authorized by law [t]he court may not substitute its judgment on the evidence for that of the Commission, but it is required to decide whether the Commission could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and the court is authorized to set aside the decision if it is contrary to the overwhelming weight of the evidence.” Add to this the timely admonition that deference is given to the trier of the facts’ assessment of the credibility of the witnesses. Cross v. Industrial Commission, 359 S.W.2d 494, 500 (Mo.App.1962). In conjunction therewith, it is noted that the trier of the facts in the instant case believed that Mark Paul’s testimony “accurately reflects the truth”.

As to the relevant inquiry in this case, did respondent voluntarily quit his job as opposed to merely taking a leave of absence for the remainder of the day, this court is constrained to hold that the Commission’s finding with respect thereto was supported by competent and substantial evidence and authorized by law, and constituted a finding and result which the Commission could reasonably have made upon consideration of all the evidence before it. The Circuit Court of Jackson County impermis-sibly substituted its judgment on the evidence for that of the Commission. In doing so it transcended its limited scope of review as laid down in Sec. 288.210, supra. Restraint on the part of this court to redress the error committed by the circuit court would serve only to compound the initial error.

Judgment reversed and cause remanded to the Circuit Court of Jackson County, Missouri, with instructions to reinstate the order heretofore entered' by the Labor and Industrial Relations Commission of Missouri.

Reversed and remanded with instructions.

All concur.

      . Amended, RSMo Supp. 1975.


author: TURNAGE, Judge.

text:
    Debra BROWN et al., Plaintiffs-Appellants, v. Stanley D. CROW, Defendant-Respondent.
    No. KCD 29023.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Milton B. Edmonson, Greenwood, for plaintiffs-appellants.
    Clifford R. Kirby, Jr., Raytown, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Debra Brown, et al., filed suit against Stanley Crow. Crow filed (1) a motion to dismiss for failure to state a claim for relief; (2) motion for more definite statement; and (3) motion to dismiss because claims had been improperly joined. Filed concurrently with the motions were suggestions in support, together with an affidavit and an exhibit of an order of an Idaho court.

Neither Brown nor her co-parties filed any response to the motions. Neither did they request oral argument. The court entered judgment sustaining the motion to dismiss.

On this appeal Brown contends only the court erred in entering judgment without affording Brown notice and opportunity to present a defense. Affirmed.

Brown’s suit was filed March 2,1976. On May 3, 1976, after the court extended the time to plead, the above mentioned motions, together with suggestions in support, were filed. In addition to the suggestions Crow filed an affidavit by himself together with a copy of a complaint filed in Elmore County, Idaho.

Brown and her co-parties failed to file any response to the motions. They also failed to make any request for an oral hearing on the motions.

On June 9, 1976, the court entered an order sustaining the motion to dismiss.

Brown contends Rule 44.01(d) requires a notice of hearing to accompany the motion filed. Rule 44 does not require the filing of a notice for an oral hearing to accompany the filing of a motion. Rule 44 is concerned with time and its computation.

Brown overlooks Rule 55.30(b) which permits the court to make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and in opposition.

Crow relies on Rule 8.04-2 of the Circuit Court of Jackson County and Brown does not dispute the existence of this rule. Under that rule the motions filed here were required to be filed with suggestions and Brown had ten days following the service and filing of the motions and suggestions to file counter suggestions together with counter affidavits. The rule provides any party may request oral argument and leaves to the discretion of the court whether or not to grant such request.

The rule of the circuit court providing for the filing of motions together with suggestions and affidavits and the submission of such motions on the written suggestions and other proofs is in full compliance with Rule 55.30(b). Crow fully complied with this rule but Brown neglected for over a month between the time the motions and suggestions were filed and the court entered its judgment to file any suggestions or other defense or request for oral argument.

Brown further contends under Rule 55.27(a) the motion to dismiss was required to be treated as a motion for summary judgment because matters outside the pleadings were presented to the court. Brown argues that somehow a motion for summary judgment cannot be ruled upon by the court without an oral hearing. Brown is correct in her assertions the motions to dismiss were to be treated as motions for summary judgment. However, a motion for summary judgment is within the provisions of Rule 55.30(b) as are other motions. In Sherman v. AAA Credit Service Corporation, 514 S.W.2d 642, 643[1, 2] (Mo.App.1974) the court held an oral hearing on a motion for summary judgment was not required when the court acted under Rule 55.30. The court noted the party in that case had ample opportunity to file a counter affidavit and on the failure to file anything, the court was correct in assuming there was no more evidence to be submitted before the motion was ruled.

In this case Brown had ample opportunity to file counter suggestions and counter affidavits as well as to request an oral hearing on the motion. On her failure to do so the court was authorized to rule on the motions. When it sustained the motion to dismiss, the court in effect entered summary judgment in favor of Crow. No question is presented as to the merits of that action.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    James Reed TOLEN, Appellant, v. MISSOURI DEPARTMENT OF REVENUE, Respondent.
    No. KCD 29099.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Lyle E. Spillman, Trenton, for appellant; Holcomb, Spillman & Roberts, Trenton, of counsel.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., WASSER-STROM, J., and MASON, Special Judge.
   SHANGLER, Presiding Judge.

This appeal comes from the judgment of the circuit court that the revocation of the Tolen driver’s license by the Director of Revenue for refusal to submit to the chemical breath test for intoxication was justified under § 564.444, RSMo 1969.

The statute confines the circuit court inquiry to three determinations: whether or not (1) the person was arrested; (2) the officer who made the arrest had reasonable grounds to believe that the person who drove a motor vehicle while in an intoxicated condition; and (3) the person refused to submit to the test. Tolen concedes that he was lawfully arrested and that he refused to submit to the test. He disputes only that the officer had reasonable grounds to believe he drove while intoxicated.

The officers found Tolen, in the early morning, slumped over the wheel of a van asleep. The keys were in the ignition and neither officer could recall whether the engine was turning, but the headlights were off. The van was parked near an intersection at a radical angle across a prohibited area so that a vehicle in a proper lane of travel would be required to cross over the center line to avoid the van. The officers, with difficulty, aroused Tolen and requested his driver’s license. He fumbled for five or ten minutes but was unable to comply so they arrested him for failure to produce a valid license. Tolen had told the officers that he had “just driven in” from a nearby nightclub where alcoholic beverages were served. The officers noticed that Tolen was unsteady on his feet, was redolent of alcohol, and that his speech was slurred. These observations prompted them to request that Tolen take the chemical breath test. They warned him of the consequences of failure to submit to the test, and he agreed to it. He was then arrested for driving while intoxicated. Upon arrival at the police station, Tolen produced a valid California license and refused to submit to the breath test. The revocation ensued.

Tolen contends that his statement that he had just driven the van in from the nightclub and did not know he had parked in such a manner was a confession not admissible absent independent proof of the corpus delicti, and that there was not sufficient evidence otherwise to sustain the revocation. This argument rests on a faulty premise: that an administrative proceeding for revocation of driver’s license is subject to the rules of evidence in criminal cases.

While in a criminal case the extrajudicial statements of an accused are not admissible to show guilt in the absence of independent direct or circumstantial proof of the corpus delicti [Kansas City v. Verstraete, 481 S.W.2d 615, 616[1-3] (Mo.App.1972)], the purpose of § 564.444, which authorizes license revocation, is to protect the public, not to punish the licensee. State v. Byerly, 522 S.W.2d 18, 21[5] (Mo.App.1975). For even though a driver may be acquitted of the criminal charge of operation of a vehicle while intoxicated, his license nevertheless may be revoked for failure to submit to the test. The operation of a motor vehicle while intoxicated may give rise to two proceedings, one criminal or quasi-criminal [breach of statute or ordinance], and the other civil [revocation of license] — each proceeding independent of the other. Byerly, supra, l. c. 20[2, 3]. There was no impediment to the reception of the extrajudicial statement to prove that the officers had reasonable grounds to believe Tolen operated his motor vehicle while intoxicated.

The evidence that Tolen parked his vehicle in the roadway — and so became a hazard to lawful traffic — that he parked in a prohibited zone, that he fumbled so long for his license, that his speech was slurred, that he gave off an odor of alcohol, that he was unsteady on his feet, that he was found asleep in the van over the wheel, that the ignition keys were in place, and his admission he had just driven in from a tavern, all support a reasonable inference that Tolen had driven his motor vehicle to that site while in an intoxicated condition.

Tolen relies on State v. Dodson, 496 S.W.2d. 272 (Mo.App.1973), to nullify the inference of intoxication from the statement to the officers that he had just driven from a tavern. Dodson was a criminal conviction for operation of a motor vehicle while intoxicated. The defendant had driven off the road in a one-car accident. He went home from the scene and an hour later the officers came to his home to interrogate him about the event. The officer found Dodson asleep, roused him, detected a strong odor of alcohol about him, saw him unsteady on his feet, eyes bloodshot, and observed that his speech was incoherent. The officer arrested Dodson for operation of his motor vehicle while intoxicated. The court reversed the conviction because evidence that the driver was intoxicated when found by the police was not substantial proof as to his condition an hour earlier.

That rationale does not govern these facts. The admission made by Tolen to the police that he had just driven in from the tavern means, reasonably, that he had exactly at the moment spoken of [Oxford Universal Dictionary, Third Edition], or at least, but a very short time ago [Webster’s Third New International Dictionary Unabridged], operated his vehicle.

The arrest was on reasonable grounds.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Garry Lee ELDRIDGE, Defendant-Appellant.
    No. KCD 29133.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      James F. Crews, Kibbe, Crews & Gaw, Tipton, defendant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a conviction for manslaughter and a jury-imposed sentence of ten years.

Defendant claims in three separate points insufficiency of the evidence and in two other contentions that the court erred in instructing on capital murder and that the manslaughter instruction MAI-Cr 6.08 is erroneous as not requiring a finding of intent.

In a review of the denial of a motion for judgment of acquittal on the issue of sufficiency, the evidence must be viewed in the light most favorable to the State and the State is entitled to all reasonable inferences from the evidence. Also, the State’s evidence must be accepted as true, and all evidence and inferences to the contrary must be disregarded. State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Gideon, 453 S.W.2d 938 (Mo.1970); State v. Oldham, 546 S.W.2d 766 (Mo.App.1977).

On that basis, the record supports the following facts. There is no dispute that the defendant shot and killed Terry Marriott after an altercation in a tavern. Over a dozen eyewitnesses testified and, understandably, there are variances in the details of the testimony. The deceased, with some friends, was in a tavern near the scene of the shooting. The defendant and some of his friends were in the tavern where the shooting occurred. Among those with the deceased was a man named Vansell. With the defendant, among others, was his brother, Wayne Eldridge. The defendant, his brother, and several friends had beaten Vansell in an altercation in a park approximately three months before the fatal shooting. The deceased was involved in the earlier altercation and had struck the defendant. In that earlier altercation, the brother of the defendant had attempted to fire a shotgun at the deceased, but the gun misfired. The inference is that the deceased was the leader of one gang and the defendant of another and that a continuing quarrel existed between the two groups. When the deceased and his group entered the tavern where the shooting occurred, the man named Vansell approached the defendant’s brother and asked the brother if he remembered him. Wayne Eldridge then jumped back and the deceased struck the defendant with a pool cue. Defendant then went to his coat, took out a pistol, and started to back out of the tavern, brandishing the gun. The deceased either stopped or was attempting to stop his advance on the defendant. According to some testimony, the deceased was then empty-handed. After the defendant retreated to a point near a bowling machine, he raised his weapon and shot the deceased once in the head. The estimates of the distance between the two ranged from the low of six feet claimed by the defendant to a maximum of fifteen or twenty feet stated by other witnesses. After the first shot, Vansell threw a beer bottle at the defendant, and the defendant fired another shot in his direction. The defendant then fled, and his brother hid the pistol in the woods. The defendant and some of his companions testified. Their testimony varied from the statements of other witnesses, but the essential facts are not really controverted.

Defendant argues the first and third points together and in reality they are identical. Both assert as error the claim that the trial court failed to direct a verdict of acquittal at the close of the evidence. As best the argument can be understood, the defendant first claims the jury reached its verdict on the basis of prejudice injected into the case by the testimony concerning the prior affray involving the deceased and the defendant. This specific issue was not raised in the motion for a new trial, nor was it properly briefed on appeal. The ruling need not rest on a procedural ground because of the manner in which the evidence was presented at trial. The defendant complains about the admission of the testimony of a witness named Thornton who gave the details of the defendant’s brother aiming the shotgun at the deceased. Prior to the testimony of this witness, the defense had inquired of several witnesses concerning the prior affray in the park. This prior cross-examination was patently intended to show the disposition of the deceased to be aggressive and a fighter. When the State attempted to elicit from Thornton the details of the prior affray, the defendant objected. The trial court asserted that defendant had “opened up” the issue by his prior cross-examination and that the State was entitled to show the details of what had transpired. In this ruling, the trial court was correct. State v. Dancy, 541 S.W.2d 35 (Mo.App.1976).

The defendant also argues as to sufficiency a recitation of the evidence which is favorable to the defendant. It is the province of the jury to determine the credibility of the witnesses and the weight of their testimony. State v. Tschirner, 504 S.W.2d 302 (Mo.App.1973). The sharply contested issue in this case was the continued .aggression of the deceased. It was for the jury to determine under the self-defense instruction that ultimate fact. This evidence would have supported either finding, and the jury made the finding against the defendant.

Defendant also urges in his combined argument on the issue of sufficiency that self-defense was shown as a matter of law and that consequently the evidence cannot support the manslaughter conviction. Cited in support are State v. Adkins, 537 S.W.2d 246 (Mo.App.1976) and State v. Jackson, 522 S.W.2d 317 (Mo.App.1975). Jackson holds that on conflicting evidence it is a jury issue as to self-defense and only rarely is self-defense as a matter of law available to a defendant. Only when the evidence is clear and undisputed should a court direct an acquittal on the issue of self-defense; Jackson, supra. Adkins is inappropriately cited for there the court held even the submission of self-defense was not required. As noted, the facts here certainly could support the, submission of self-defense, and it was submitted to the jury. On the disputed evidence of continued aggression by the deceased and the necessity for the use of fatal force, the jury found against the defendant.

Defendant complains of error in the submission of capital murder. It has been consistently held in Missouri that the court need not consider this contention and that the defendant is in no position to complain of the giving of an instruction on a certain degree of murder where he was not convicted of that offense. State v. Adams, 497 S.W.2d 147 (Mo.1973); State v. McQueen, 399 S.W.2d 3 (Mo.1966), cert. denied, 384 U.S. 977, 86 S.Ct. 1873, 16 L.Ed.2d 687 (1966); State v. Moore, 499 S.W.2d 826 (Mo.App.1973).

Finally, defendant asserts MAI — Gr 6.08 given verbatim is error since it requires no finding of intent. Manslaughter is defined by § 559.070 RSMo 1969 as any killing not declared to be murder or excusable or justifiable homicide. State v. Brewster, 525 S.W.2d 427, 431 (Mo.App.1975), holds that a manslaughter instruction need not specifically require a finding of intentional killing or culpable negligence since under the statute manslaughter has become a “residual offense” and “encompasses every killing which is neither first nor second degree murder nor excusable or justifiable homicide.” An instruction on manslaughter was there held sufficient if it excluded first and second degree murder and, where necessary under the evidence, justifiable and excusable homicide, and followed the language of the statute.

Furthermore, it is not open to this court to declare erroneous the use of a form which has been approved for standard use by the Supreme Court. State v. Burton, 544 S.W.2d 60 (Mo.App.1976); State v. Brewster, supra; State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974).

Conviction affirmed.

All concur.


text:
    Charles L. COCHRAN, Jr. and Eunice Bernice Cochran, Respondents, v. Alfred Martin HOPKINS and Lois M. K. Hopkins, Appellants.
    No. KCD 29170.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Robert M. Liston, Wesner, Wesner & Tur-ley, Sedalia, for appellants.
    Michael L. McDorman, Woolsey & Yar-ger, Versailles, for respondents.
    Before WELBORN, Special Judge Presiding, PRITCHARD, J., and HIQGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge Presiding.

Appeal from judgment in favor of plaintiffs on action to reform deed.

Charles L. Cochran, Jr., and Eunice Bernice Cochran brought suit against Alfred Martin Hopkins and Lois M, K. Hopkins. The ease was tried on plaintiffs’ second amended petition which was in three counts. Count I sought reformation of a deed on grounds of mutual mistake. Count II sought damages for fraud based upon the same transaction as in Count I. Count III sought reformation of the deed on the grounds of fraud. Defendants counterclaimed for trespass by plaintiffs on the land in controversy.

When the case came to trial, defendants’ counsel stated that they desired a jury trial on Count II and trial proceeded on Counts I and III. During the course of the trial, defendants announced that they wished a jury trial on their counterclaim.

At the end of the trial, the court found for plaintiffs on Count III of their petition and dismissed Count I. Judgment was entered accordingly. The judgment contained no recitation that it should be considered final for purpose of appeal.

Under § 512.020, RSMo 1969, an appeal lies only from a final judgment. To be final for purpose of appeal, a judgment must dispose of all parties and issues. Jones v. Washburn, 560 S.W.2d 604, 606[2] (Mo.App.1978).

Rule 81.06 defines when a judgment is final in cases involving separate trial of a claim or counterclaim. It provides:

“When a separate trial of any claim, counterclaim or third-party claim is ordered in any case and a jury trial thereof is had, the separate judgment entered upon the verdict therein shall be deemed a final judgment for the purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri. When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrénces or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.-020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. In any case (jury or nonjury) when a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties; provided, however, any such stay shall not affect the right of appeal.”

In this case, Count II of plaintiffs’ petition which was reserved for trial by jury was a claim for fraud arising out of the same transaction as formed the basis for Counts I and III of plaintiffs’ petition. Therefore, this case is controlled by the second sentence of above-quoted Rule 81.06. The trial court not having designated the judgment final for purpose of appeal, there is no final appealable judgment and the appeal must be dismissed.

Appeal dismissed.

All concur.


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    Marlene D. CADE, Appellant, v. The BENDIX CORPORATION and the Fidelity and Casualty Company of New York, Respondents.
    No. KCD 29216.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Patrick E. White, Law Offices of Terence L. Connaughton, Kansas City, for appellant.
    Steven J. Borel, Stubbs & Mann, P.C., Kansas City, for respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Did a referee of the Division of Workmen’s Compensation have authority to dismiss appellant’s claim for workmen’s compensation for want of prosecution? Surprisingly, this appears to be a question of first impression in this state. The following compendium of the facts puts the question in sharper focus.

On August 16, 1971, appellant filed a claim for workmen’s compensation against her employer, The Bendix Corporation. The latter and its insurer, The Fidelity and Casualty Company of New York, are respondents herein. Appellant’s claim listed December 12, 1969, as the date of accident. Appellant’s claim was set for a prehearing conference on December 14, 1971, at which time it was set for hearing on March 20, 1972. The March 20, 1972, hearing did not take place as scheduled and the claim was continued and reset on eight subsequent occasions, to-wit, June 19, 1972, January 4, 1973, June 10, 1973, January 4, 1974, May 21,1974, October 28,1974, April 7,1975, and October 9, 1975. When the hearing scheduled for April 7, 1975, fell through, the referee, apparently exasperated by the indifference displayed toward prosecution of the claim to a final disposition, entered the following order: “Re Set Certified Notice to employee — either try or settle.” Pursuant thereto the claim was reset for hearing on October 9,1975, at which time appellant, by her own admission, was “not ready to go forward with her case”. Thereupon, the referee entered an order on October 9,1975, dismissing appellant’s claim “for want of prosecution”. Appellant timely and progressively filed a Motion to Set Aside Order of Dismissal before the Division of Workmen’s Compensation which was overruled, an Application for Review before the Labor and Industrial Relations Commission of Missouri which affirmed the referee’s order of dismissal for want of prosecution, and an appeal to the Circuit Court of Jackson County, Missouri, which entered judgment affirming and sustaining the order of the Labor and Industrial Relations Commission of Missouri. A timely appeal by appellant from the judgment entered by the Circuit Court of Jackson County brings the matter before this court.

Appellant sets up and knocks down Rule II — 9 promulgated by the Division of Workmen’s Compensation pursuant to the first sentence contained in Sec. 287.650.1, RSMo 1969, which rule reads as follows: “DISMISSAL FOR WANT OF PROSECUTION. If claimant fails to enter his appearance either in person or by counsel at the first setting for hearing of his claim, and the same is continued, claimant shall be notified of the second setting by Certified, United States Mail. If he fails to appear at the second setting, his claim may be dismissed for want of prosecution.” Appellant argues that dismissal of her claim for want of prosecution, occurring as it did at the eighth setting following the first setting, literally falls outside the purview of authority prescribed by Rule II — 9, supra. In view of the undisputed chronology of events, authority for the referee to dismiss appellant’s claim cannot be said to lie within the narrow confines of Rule II — 9, supra. Notwithstanding the self-contained limitation of Rule II — 9, supra, the legislature saw fit to statutorily empower referees with authority to dismiss claims for want of prosecution at times and under circumstances comparable to those in question without promulgation of a rule embodying such authority. The last sentence of Sec. 287.650.1, supra, specifically provides as follows: “The division shall have power to strike pleadings and enter awards against any party or parties who fails or refuses to comply with its lawful orders.” Sec. 287.610.2, RSMo 1969 (now amended by Sec. 286.610.2, RSMo Supp.1977), applicable at the time in question, provided, in part, that “[w]ith respect to original hearings the referees shall have such jurisdiction and powers as are vested in the division of workmen’s compensation under other sections of this chapter . . ”. The order entered by the referee on April 7, 1975, “Re Set Certified Notice to employee — either try or settle ”, was a lawful order whose net effect was that when the claim was reset for hearing (October 9, 1975), appellant was to come prepared to either try or settle her claim without seeking any further continuance or occasioning any further delay. Notwithstanding said order, appellant appeared on October 9, 1975, unprepared “to go forward with her claim”, i. e., unprepared to try or settle it. Absent being proffered a satisfactory explanation for appellant’s state of unpreparedness, the referee entered an order dismissing appellant’s claim for want of prosecution. Appellant’s unmitigated failure to comply with the lawful order of the referee entered April 7,1975, was grounds for striking appellant’s claim per Sec. 287.650.1, supra, which in effect is what the referee did when he dismissed it for want of prosecution. See First Presbyterian Church of Monett v. Feist, 397 S.W.2d 728, 731 (Mo.App.1965), as constituting authority for equating dismissal of appellant’s claim with striking her claim or pleading.

The Division of Workmen’s Compensation has no more immunity from the devastating effect of a highly accelerated caseload than the courts of this state — both are racked with a common problem. The last sentence of Sec. 287.650.1, supra, “[t]he division shall have power to strike pleadings and enter awards against any party or parties who fails or refuses to comply with its lawful orders”, is cast in language which clearly and unequivocally empowers the referee to invoke the sanction of dismissal in order to minimize the congestion of claims in these days of crowded dockets, to utilize decisional manpower to the maximum extent, and to prevent undue delay in the orderly disposition of other pending claims. Failure on the part of the legislature to have empowered referees with the power to dismiss claims for want of prosecution would have seriously hampered the ability of referees to carry out their legislatively mandated function of hearing and determining claims “upon original hearing”. Sec. 287.610.2, supra. Tangentially, and of cardinal importance, failure of the legislature to have empowered referees with statutory authority to dismiss claims for want of prosecution would have rendered them helpless, regardless of the harmful reverberations to prepared and compliant claimants, to thwart intentional, indifferent, or selfish delaying tactics on the part of a few claimants impeding the timely and orderly dispatch of the great bulk of compensation claims. Such an incongruous result was wisely avoided by the legislature by inclusion of the last sentence in Sec. 287.650.1, supra.

The power of referees to dismiss workmen’s compensation claims for want of prosecution is not a raw, unbridled power. Like comparable discretionary powers possessed by both judicial and quasi-judicial bodies, it is subject to judicial review to ferret out and remedy arbitrary or capricious dismissals which smack of abuses of discretion. In the instant case, the appellant has not suggested, or so much as even hinted, that dismissal of her claim for want of prosecution was arbitrary or capricious, thereby constituting an abuse of discretion. The facts would not bear her out if she did. Appellant limits her claim for relief to the sole ground that the referee was without power or authority to enter such an order. The very core of appellant’s singular ground is totally and thoroughly vitiated by Sec. 287.650.1, supra.

Judgment affirmed.

All concur.

      . Now administrative law judge — see Sec. 287.610, RSMo Supp.1977.

      . Sec. 287.650.1, RSMo 1969, provides as follows: “The division of workmen’s compensation1 shall have such powers as may be necessary to carry out all the provisions of this chapter, and it may make such rules and regulations as may be necessary for any such purpose, subject to the approval of the industrial commission of Missouri. The division shall have power to strike pleadings and enter awards against any party or parties who fails or refuses to comply with its lawful orders.”


text:
    Carol Sue FURNEY, Respondent, v. John Wesley STEELE, Appellant.
    No. 29235.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Michael J. Mann, Kansas City, for appellant.
    Carl E. Laurent, Independence, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Carol Sue Furney filed a motion to modify the divorce decree by which she was divorced from John Steele to increase child support payments. The court modified the decree by increasing the payments from $17.50 per week for each child to $135 per month for each child or a total of $270 per month. John appeals.

John contends the court erred in failing to consider the duty of Carol as the mother to support the children, and the undue burden the increase placed on John. Affirmed.

Carol testified the divorce decree was entered nine years previous to the hearing on the motion to modify. The son born of the marriage is now 15 and the daughter 11. Carol testified the expenses for rearing the two children had increased to the point it now cost over $300 per month to support the two children. In addition, the son has a chronic asthma condition which results in periodic medical bills.

Carol was not employed at the time of the divorce and has not been employed since.

It was stipulated between the attorneys that John had take-home pay of $450 per month at the time of the divorce. He testified his take-home pay is now $898 per month. John testified he had remarried and his monthly expenses totaled $842.14 including the amount he was paying in child support to Carol.

Carol has remarried and her name is on certain bank and savings and loan accounts with her husband. There was no evidence that she contributed to either account. In his first point John contends the court erred in failing to consider the obligation of Carol to support the children. His contention is primarily based upon the refusal of the court to require Carol to testify as to the balance in the joint accounts. The court stated he would allow testimony concerning any money that belonged to Carol but disallowed questions concerning the joint accounts.

In the absence of any evidence to show Carol contributed to the accounts in question, the only inference to be drawn was the money was contributed by her present husband, Mr. Furney. Furney owes no obligation of support to the children and the question of his assets was immaterial.

The factors to be considered by the court in setting child support in § 452.340, RSMo 1975 Supp. relate to the financial resources of the custodial parent. The evidence refused did not relate to Carol’s financial resources but to that of her present husband. No error in the respect charged is shown.

John next contends the increase causes an undue burden on him financially because he has remarried and has a family to support. John testified his present take-home pay is $898 per month. His monthly expenses total $842.14 including the original child support. He states his present wife was at times employed to help with family expenses, but was pregnant at the time of the hearing.

The amount of child support “is subject to review only to determine whether there has been an abuse of discretion or an erroneous application of the law.” Morris v. Morris, 549 S.W.2d 363, 365[3-5] (Mo.App.1977). Moreover the primary duty to support the children is still on the father. Section 452.340; Allison v. Allison, 540 S.W.2d 635, 636[4] (Mo.App.1976).

In Re Marriage of Engelhardt, 552 S.W.2d 356 (Mo.App.1977) is strikingly similar to this case on the facts. In that case this court found no abuse of discretion when the increase pushed the father’s estimated expenses beyond his income. As stated in Engelhardt, the amount to be paid in child support is fixed after a balancing between the needs of the children and the ability of the father to pay. 552 S.W.2d 358[2]. Here John does not question the sufficiency of the evidence to support an increase in the amount of child support, nor that the amount awarded exceeds the needs of the children. John’s “estimates” were subject to being discounted by the court. Morris, supra.

After a careful review of the evidence, this court has concluded no abuse of discretion is shown. In Re Marriage of Engelhardt, supra.

The judgment is affirmed.

All concur.


text:
    Heinz GOLD, Plaintiff-Appellant, v. SHARP, KIDDE, WEBB and Aetna Casualty & Surety Company, Defendants-Respondents.
    No. KCD 29247.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Harold J. Maddox, Kansas City, for plaintiff-appellant.
    Janies F. Stigall, Kansas City, for defend-arits-'respondents.
    Before SOMERVILLE, P. J., and PRITCHARD and DIXON, JJ.
   DIXON, Judge.

Employee-appellant seeks review of a decision of the Circuit Court of Jackson County affirming an award of the Missouri Industrial Commission which denied employee’s claim for workmen’s compensation benefits. The issue to be determined is whether the employee sustained an injury by accident within the meaning of § 287.120 RSMo 1969. The Commission found no such accident, and the Circuit Court found there was sufficient competent evidence to justify the Commission’s award. Affirmed.

The evidence discloses that the employee was employed by Sharp, Kidde, and Webb as a cement finisher, that the employer was fully insured by Aetna and operating under the provisions of the Missouri Workmen’s Compensation Law. The work of the employee involved setting forms and labor work, using a shovel and pick, and driving stakes. Although not always the labor of the employee, occasionally the cement finishers would remove stakes which were ordinarily removed by labor employees. On this particular job, they had been doing so for three months prior to the date of the accident. The employee was accustomed to working with both wooden stakes and steel stakes. The employee claimed that during the latter part of September, 1972, he was removing steel stakes and that every time he pulled a steel stake from the ground he felt a strain in his back. Specifically, on September 29, 1972, the employee was removing steel stakes. That evening, he went dancing with his wife, and while they were dancing, his back began to hurt. The next day on a shopping excursion he again suffered back pain, but on October 1, he went bowling. October 2, he was disabled with pain in his back, and the medical evidence is that he suffered from a protruded intervertebral disc. The employee acknowledged that he had been suffering from back trouble off and on for twenty years and that his back motion had been limited some time prior to the accident. He had been treated for back pain, fitted for a back brace, received physical therapy and had been placed in traction for these prior complaints. In a 1966 ladder accident, he had landed on his shoulder and back. As to the instant claim, the employee admitted he did not know when he injured his back, and he had not noticed any pain when he was removing the steel stakes. There was no evidence of any slip, fall, unusual occurrence, or abnormal strain involved in the testimony before the referee.

The employee sets forth in one point containing five subpoints a claim of error that the award was not based on competent and substantial evidence and was contrary to the overwhelming weight of the evidence. The subpoints relate to a variety of complaints about the referee’s findings of the early back complaints, employee doing the same kind of work, that the work was the regular employment of the employee, and that there was no difference in pulling wooden or steel stakes from the ground. As to this last claim of erroneous finding, the record contains no such finding. The principal point is a general cumulative claim that the finding of no compensable accident because of overexertion or abnormal strain was error.

Taken altogether, the only point to be decided is the general point that the award was not based on competent and substantial evidence and was contrary to the overwhelming weight of the evidence. Under § 287.120 RSMo 1969, the statutory language pertinent to the payment of compensation to a claimant for injury or death must be by reason of an “accident arising out of and in the course of his employment, . ” Section 287.020(2) RSMo Supp.1974, defines accident as “an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” The fact of injury alone does not constitute an event or accident within the meaning of the statute. Herring v. Safeway Stores, Inc., 499 S.W.2d 538 (Mo.App.1973). If an employee suffers an injury resulting from a mere strain while he is engaged in doing his normal or customary duties without variance from his normal routine, it is not a compensable accident within the meaning of the statute unless it was preceded or accompanied by some unusual occurrence such as a slip, fall, or abnormal strain. Mason v. F. W. Strecker Transfer Company, 409 S.W.2d 267 (Mo.App.1966). However, “[ijnjuries produced by strains which are normal for the job to be performed in a customary fashion are not compensable although the amount of straining may be great or would be considered abnormal in other classes of employment or if performed in an abnormal manner under unusual circumstances. Cf. Hin-derliter v. Wilson Brothers, Mo.App., 412 S.W.2d 558; Hall v. Mid-Continent Manufacturing Company, Mo.App., 366 S.W.2d 57.” McClain v. Yellow Cab Company, 439 S.W.2d 200, 203 (Mo.App.1969). “[T]he expenditure of merely more physical energy while the workman is performing his ordinary duty in a normal manner without proof of overexertion or excessive strain does not constitute an abnormal or unusual strain . . . .” Id. at 205. Furthermore, the mere performance of a hard or laborious task accomplished in a manner intended and unattended by any untoward occurrence does not constitute an accident under the Workmen’s Compensation Law. Bauer v. Independent Stave Company, 417 S.W.2d 693 (Mo.App.1967); Meldrum v. Southard Feed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75 (1934). An employee with a latent pre-existing condition whose disability or death is caused or hastened by the normal exertion required by the nature of his work does not sustain a compensable injury. State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40 (1941); DeLille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834 (1933).

The review of the record of a compensation claim is upon the whole record in the light most favorable to the decision, deferring to the Industrial Commission when it resolves issues concerning the credibility and weight to be given to conflicting evidence and to affirm when the decision is supported by competent and substantial evidence. Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo.1970); Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810 (Mo.App.1974); Oder v. St. Joe Minerals Corp., 484 S.W.2d 487 (Mo.App.1972). When, as here, the issue to be resolved depends entirely upon the testimony of claimant or employee as to whether an accident occurred, the issue of whether an accident occurred becomes a question of law. McClain v. Yellow Cab Company, supra.

Considering the claimant’s evidence in light of that rule, it shows no accident. Paraphrased, the evidence shows a history of back difficulty of over twenty years with X-rays taken on the occasion of the claimant’s fall from a ladder indicating a narrowing of the space between the fourth and fifth lumbar vertebrae, the location of his ultimate surgical intervention. Claimant said he was required to drive and remove the steel stakes in setting up and removing forms for about three months prior to the date of September 29, 1972. He asserted that he experienced a straining of the back each time he removed a steel stake, but never felt any sharp, sudden onset of pain. Significantly, he did not know when he hurt his back. His testimony, taken as a whole, shows no more than the performance of his normal duties in a routine manner. Specifically, the employee admitted he was engaged in pulling stakes for three months and at no time was there any difference in the strain involved. There was no evidence that he was doing something beyond and different from his normal routine, nor that he was exposed to any unusual strain, nor that he slipped, tripped, fell, twisted, or turned. There was no evidence of any unusual occurrence. There is simply no evidence upon which a finding of a compensa-ble accident could be found, and there is substantial and competent evidence upon which the Commission could have found that no accident occurred.

The judgment of the Circuit Court affirming the denial of compensation by the Industrial Commission is affirmed.

All concur.


text:
    Maurice J. MERRIGAN, Appellant, v. James SPRADLING, Director of Revenue, Respondent.
    No. KCD 29275.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Larry L. Zahnd, Glenn A. Dietrich, Zahnd & Dietrich, Maryville, for appellant.
    John D. Ashcroft, Atty. Gen., S. Joel Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Maurice J. Merrigan appealed a thirty-day suspension of his operator’s license by the Director of the Department of Revenue for the accumulation of eight points within eighteen months. Section 302.304(2), RSMo 1975 Supp. The circuit court affirmed and Merrigan appeals from that judgment.

Merrigan raises questions concerning the admission of evidence; the sufficiency of the evidence; the constitutionality of § 302.304, RSMo 1975 Supp., and the validity of traffic convictions without counsel. Affirmed.

The Director notified Merrigan his operator’s license would be suspended for a period of thirty days beginning September 6, 1976, because Merrigan had accumulated eight points within eighteen months because of speeding convictions. A copy of his driving record was sent to Merrigan which showed a speeding conviction in Buchanan County in March, 1976, with the assessment of three points; a speeding conviction in Chariton County in May, 1976, with an assessment of three points; and a speeding conviction in the City of Maryville in July, 1976, with an assessment of two points. Thereafter a corrected copy of his driving record was sent to Merrigan which showed, in addition to the above convictions, a speeding conviction in DeKalb County in August, 1976, with an assessment of three points.

Merrigan first attacks the judgment for error in admitting an exhibit, which purported to be a recital by the Clerk of the Magistrate Court of Chariton County concerning Merrigan’s plea of guilty to speeding in that court. It is not necessary to determine the validity of this claim since this conviction is contained in Exhibit D which was the record concerning Merrigan maintained by the Department of Revenue pursuant to § 301.430, RSMo 1969. This evidence was merely cumulative to Exhibit D. Furthermore, in a court-tried case the appellate court will consider only such evidence as it deems admissible. Ruckman & Hansen v. State Highway Commission, 546 S.W.2d 500, 502 (Mo.App.1976).

Merrigan’s next complaint concerns the admission of Exhibit D. As noted, this exhibit was the record maintained by the Department of Revenue concerning Merri-gan. The exhibit was certified by the custodian of records of the driver’s license bureau of the Department of Revenue. Section 302.312, RSMo 1975 Supp. provides that copies of all papers and documents lawfully deposited or filed in the office of the Department of Revenue properly certified by the appropriate custodian or the Director shall be admissible in evidence in all courts. This exhibit contained copies of uniform traffic tickets as well as the driving record which set out the violation description, date of conviction, location of the court and the points assessed. The uniform traffic tickets were sent to the Department pursuant to § 301.430. Merrigan argues Exhibit D should not have been admitted unless the report of the conviction maintained by the Director was properly certified under § 490.130, RSMo 1969. He argues that since § 302.312 provides the copies of papers and documents properly certified by the Director shall be admissible in the same manner and with like effect as the original, this means the copy would not be admissible unless the original would be. Merrigan overlooks the requirement of § 301.430 which required the clerks of all courts of record as well as the clerks of municipal courts to forward information concerning convictions of traffic offenses to the Department of Revenue. This information is not required in that section to be certified under the provisions of § 490.130. Section 490.130 Allows the reception in evidence of the records in judicial proceedings of any court of the United States, or of this state, attested by the clerk thereof, with a seal annexed. This section has no application to the case at bar because the records here are those required by § 301.430 to be kept by the Department of Revenue based upon the reports received from the clerks of all courts of record in this state. The copy of this record compiled by the Department of Revenue with reference to each licensed driver is made admissible by § 302.312. The reference in § 302.312 to “copy” simply means the director may send copies of the records he receives from the various courts to the proper officials to be presented as evidence so that he is relieved from the obligation of sending the original documents which he maintains. Exhibit D is admissible and will be considered by this court.

Merrigan next urges the evidence was insufficient to demonstrate that he had eight points assessed against him within eighteen months. This argument is largely premised on the argument previously discussed concerning the admissibility of Exhibit D and the magistrate record from Chariton County. In addition, Merrigan argues the record is insufficient to show the exemption contained in § 304.009, RSMo 1975 Supp. does not apply. That section provides that violation of the 55 mph speed limit on state highways shall not accumulate points under § 302.302, RSMo 1975 Supp. unless the violation exceeds the speed limit established by other laws. The maximum speed permitted on state highways is 70 mph as provided in § 304.010, RSMo 1975 Supp. Exhibit D showed Merrigan pleaded guilty to the following speeds: 76 mph in a 55 mph zone in the Magistrate Court of Buchanan County; 80 mph in a 55 mph zone in the Magistrate Court of Chariton County; and 46 mph in a 35 mph zone in the City of Maryville. None of these convictions would be covered by the exemption in § 304.009. Under § 302.302(2) the convictions in the Magistrate Courts of Buchanan County and Chariton County were properly assessed at three points and the conviction in the City of Maryville was properly assessed at two points. Exhibit D showed the proper assessment of eight points within a little over four months. Under § 302.-304(2), RSMo 1975 Supp. the Director was obligated to suspend Merrigan’s operator’s license for a period of thirty days since this was his first suspension.

Merrigan makes some argument that the Director was obligated to produce certified copies of the convictions before the circuit court would be authorized to sustain the suspension. As noted above, § 301.430 requires notice to the Director of convictions and requires the Director to keep a record in the name of each driver of all convictions. Under § 302.304 the Director is obligated to suspend or revoke a license when the accumulation of points reaches the totals there enumerated. There is no requirement that the Director produce certified copies of convictions or any more evidence on an appeal from a suspension than the evidence upon which the Director acted when he ordered the suspension. Once evidence has been adduced which shows the Director properly ordered a suspension, the Director has met his burden of proof to support the suspension. The driver, of course, is free to raise any legal defense to show the suspension is improper.

Here Merrigan made no defense to the suspension except as herein discussed. In that posture the court had before it sufficient evidence to sustain the action of the Director.

Merrigan next contends § 302.304 is unconstitutional because it does not provide for notice and hearing prior to suspension and because of this he was denied due process of law. The United States Supreme Court has answered this question directly in Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). The court there held a driver is not entitled to a hearing before the state issues an order suspending his driver’s license. The Missouri statutory scheme for the suspension of driver’s license is very similar to the Illinois statutes involved in Dixon. Dixon fully answers Mer-rigan’s argument on this score.

Merrigan finally contends his convictions should be deemed void because the record does not affirmatively show that at the time of such convictions he was represented by counsel or made a voluntary, knowing and intelligent waiver of the right to counsel.

The record does not contain a showing that Merrigan was represented by counsel or waived the right to counsel, but in each instance reflects a plea of guilty. However, in State v. Henderson, 549 S.W.2d 566 (Mo.App.1977) the court held the holding in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) does not void a conviction in which a defendant is not shown to have been represented by counsel or to have waived such right, but only prevents the imprisonment of a defendant in that situation. The record in this case shows in each instance Merrigan was fined and not imprisoned. Under Henderson, the failure of the record to show the presence or the waiver of counsel does not void the convictions.

The judgment is affirmed.

All concur.


text:
    Billy Joe MASSEY, Plaintiff-Appellant, v. Darrell Ray HAMILTON and Lawrence E. Hawkins Contractors, Inc., Defendants-Respondents.
    No. KCD 29313.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      James C. Butcher, Butcher & Cline, Columbia, for plaintiff-appellant.
    Roland P. Walker, Oliver & Walker, Columbia, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and WASSERSTROM, JJ.
   DIXON, Judge.

Plaintiff appeals from an order granting summary judgment in favor of the defendant, Lawrence E. Hawkins Contractors, Inc. Plaintiff’s suit for personal injury was against Darrell Ray Hamilton, the driver of a pickup truck involved in a collision with a motorcycle plaintiff was riding. Plaintiff alleged Darrell Ray Hamilton was the agent, servant, and employee of Lawrence E. Hawkins Contractors, Inc., and the trial court, based upon extensive deposition testimony, granted a summary judgment in favor of Lawrence E. Hawkins Contractors, Inc.

The plaintiff’s petition, shorn of the allegations against Lawrence E. Hawkins Contractors, still alleges a cause of action for personal injuries against the individual defendant. That cause of action is still pending in the trial court. It is apparent that the trial court’s order did not dispose of all the issues and all of the parties. Such a judgment is not ripe for appeal. Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976). No attempt was made to have the trial judge denominate the summary judgment as a final appealable order pursuant to Rule 81.06.

This court must order a dismissal of the appeal sua sponte if the judgment is not final. Baumstark v. Jordan, supra. The judgment as to one defendant does not constitute a final appealable order. New Age Federal Savings and Loan Ass’n v. Miller, 461 S.W.2d 876 (Mo.1970); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487 (banc 1947).

Appeal dismissed.

All concur.


text:
    Kenneth A. STINE, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Respondent.
    No. KCD 29358.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Philip C. Ehli, Roy W. Brown, Kansas City, for appellant.
    Sam D. Parker, Harlan D. Burkhead, Kansas City, for respondent.
    Before SOMERVILLE, P. J„ and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

On November 10, 1973, in the Circuit Court of Jackson County, Missouri, Kenneth A. Stine (appellant) began an action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., against his employer, Kansas City Terminal Railway Company (respondent). In his petition he alleged that he was injured on January 1, 1971, in Jackson County, Missouri, while in the course of his employment with respondent. With reference to said action, the Circuit Court of Jackson County, Missouri, on January 9, 1976, permitted appellant to take a voluntary nonsuit without prejudice.

On November 24, 1976, appellant, with certain insignificant amendments and variations, refiled his original FELA action against respondent in the Circuit Court of Jackson County, Missouri. Respondent moved for its dismissal with prejudice on the ground that it was “barred by the Statute of Limitations therein prescribed, 45 U.S.C. § 56, which provides that: ‘No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued’.” Respondent’s motion was sustained by the trial court on January 17, 1977, and an appropriate order of dismissal was simultaneously entered.

It is patent on the face of the record that the instant suit (filed November 24, 1976) was filed more than three years after appellant’s cause of action accrued (January 1, 1971). It is equally patent on the face of the record that the instant suit (filed November 24,1976) was filed some ten months and fifteen days after appellant was permitted to take a voluntary nonsuit without prejudice (January 9, 1976) with reference to his original suit filed November 10,1973.

In view of the above chronology of key events it comes as no surprise that appellant makes a concerted effort on appeal to have the instant suit reinstated on the theory that the right to do so within one year after the original suit was voluntarily nonsuited is preserved by Sec. 516.-230, RSMo 1969, the so-called Missouri “savings” statute. Sec. 516.230, supra, so far as here pertinent, reads as follows: “If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a’judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after nonsuit suffered or such judgment arrested or reversed; . ” The very language of Sec. 516.230, supra, particularly the opening clause, “[i]f any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370 ...” renders it inapplicable to appellant’s FELA action. Appellant’s action is a creature of federal statute (45 U.S.C. § 51 et seq.) and carries its own statute of limitations (45 U.S.C. § 56). The clear, unequivocal language in which the opening clause of Sec. 516.230, supra, is cast excludes appellant’s FELA action as a beneficiary of its “savings” power. The statute in question would have to be perverted to arrive at a different conclusion. Any qualms about the meaning and effect just given Sec. 516.230, supra, are quickly and thoroughly allayed by a companion statutory provision. Sec. 516.300, RSMo 1969, provides as follows: “The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.” As appellant’s FELA action carries its own built-in statute of limitations, appellant, in a sense, is specifically precluded from claiming the “savings” benefit of Sec. 516.230, supra, as the latter section clearly falls within the ambit of “sections 516.010 to 516.370” as delineated in Section 516.300, supra. The above interpretation and application given Section 516.300, supra, is reflected in numerous decisions in this state. Random decisions holding that Missouri’s “savings” statute, Section 516.230, supra, and its earlier counterparts, does not extend to actions predicated on acts or statutes having their own specifically prescribed statute of limitations are: Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1 (1910), an action to set aside a tax sale barred by a limitations provision con tained in a municipal charter; State ex rel. Mackey v. Thompson, 81 Mo.App. 549 (1899), an action against a notary public; Wedemeier v. St. Louis Malleable Casting Co., 52 S.W.2d 569 (Mo.App.1932), a workmen’s compensation claim; and Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40 (1909), a wrongful death action brought before the 1909 amendment adding a year's saving proviso to the wrongful death limitations provision. The Supreme Court, addressing itself to the applicability of the “savings” statute in Toomes v. Continental Oil Company, 402 S.W.2d 321, 324 (Mo.1966), had this to say: “§ 516.230, the general nonsuit saving section, applies to actions which ‘shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370 * * *.’ The limited application of this provision is attested to by our decisions, prior to the enactment of the nonsuit saving provision for wrongful death actions . . . that it was not applicable to such actions brought under the Missouri act. ... In other words, § 516.280 is not a general procedural statute. Its application is limited to causes of action, limitations for which are prescribed by § 516.010 to § 516.370.” (Emphasis added.)

Appellant attempts to lean on Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), in support of his contention that his last refiled FELA suit fell within the “savings” ambiance of Section 516.230, supra. In Burnett, a timely filed FELA action in a state court was dismissed for improper venue and then refiled in a federal district court after the statute of limitations had run. The truth of the matter is that Burnett, 380 U.S. at 432-33, 85 S.Ct. at 1057, soundly rejects appellant’s contention: “This does not mean that we can accept petitioner’s argument that the federal limitation provision incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States . . . This court has long recognized that the FELA ‘has a uniform operation, and neither is nor can be deflected therefrom by local statutes’ . . . This Court has also specifically held that ‘[t]he period of time within which an action may be commenced is a material element in [a] uniformity of operation’ which Congress would not wish ‘to be destroyed by the varying provisions of the State statutes of limitation.’ Engel v. Davenport, 271 U.S. 33, 39, 46 S.Ct. 410, 413, 70 L.Ed. 813. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity.”

Appellant, with considerable ease and imperturbability, interchangeably argues a theory of relief underscored by the claimed applicability of the Missouri “savings” statute (Section 516.230, supra) and a theory of relief underscored by the claimed tolling of the three year statute of limitations (45 U.S.C. § 56) during the pendency of the original FELA action filed by him on November 10, 1973, and subsequently voluntarily nonsuited on January 9, 1976. With respect to the latter of these two theoretically clashing arguments, appellant turns for support to the Supreme Court’s ultimate holding in Burnett v. New York Central Railroad Company, supra, 380 U.S. at 434-35, 85 S.Ct. at 1058: “These considerations thus lead us to conclude that when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff’s case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. We believe that the interests of uniformity embodied in the Act are best served by holding that this rule, tolling the statute, applies in all States regardless of whether or not a State has a ‘saving’ statute. We further hold, under familiar principles which have been applied to statutes of limitations, that the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal.” The facts in the instant case are readily distinguishable from those in Burnett. The instant case involves a voluntary nonsuit, while Burnett involved an involuntary nonsuit by reason of improper venue. This alone would appear to remove the instant case from the working realm of the ultimate holding in Burnett. Going a step further, however, and assuming, for purposes of academicism, that appellant’s initial FELA action filed on November 10, 1973, was thereafter involuntarily nonsuited on January 9, 1976, and running of the FELA three year limitations period (45 U.S.C. § 56) was tolled during its pendency, the FELA action refiled by appellant on November 24, 1976, was nevertheless barred by the three year limitations period prescribed in 45 U.S.C. § 56, supra. Even under the assumptions indulged, when the ultimate holding in Burnett, Rule 81.04, and Rule 81.05(a) are conjunctively viewed, it becomes clear that the tolling of the three year limitations period (45 U.S.C. § 56) terminated February 18, 1976. Regressing momentarily, when appellant’s original FELA action was filed on November 10,1973, two years, ten months and ten days of the three year limitations period had already run from the date the cause of action accrued (January 1, 1971). By April 9,1976, some seven months before appellant refiled his FELA action (November 24, 1976), the three year period of limitations prescribed by 45 U.S.C. § 56, supra, had run its course even if one assumes that its running was tolled between November 10,1973 and January 9, 1976.

The trial court properly dismissed with prejudice the FELA action filed by appellant in the Circuit Court of Jackson County, on November 24,1976, on the ground that it was barred by the three year statute of limitations contained in 45 U.S.C. § 56.

Judgment affirmed.

All concur.


text:
    CITY OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. Jerry Lee FREEMAN, Defendant-Appellant.
    No. KCD 29370.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      L. R. Magee, Hines & Magee, Kansas City, for defendant-appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, John B. Williams, Asst. City Prosecutor, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a sentence of thirty days in the Municipal Corrections Institution of Kansas City, Missouri. Defendant was charged in Municipal Court with stealing a bottle of wine, found guilty, and sentenced to sixty days. Upon de novo appeal in the circuit court, the court, sitting without a jury, found the defendant guilty and sentenced him to thirty days.

The sole issue raised by the defendant is the sufficiency of the evidence to support the conviction, specifically, that the defendant claims the evidence does not show the theft. There is substantial evidence in the record that the defendant took the bottle of wine from the shelf and was apprehended with it in his possession. The case is controlled on the point raised as to a lack of corpus delicti by State v. Zammar, 286 S.W.2d 54 (Mo.App.1956), which, although reversing on other grounds, clearly holds that evidence such as was presented here is sufficient to establish the corpus delicti and support a conviction. The judgment of the trih'l’cbiirt is supported by substantial evidence, and no error of law appears. An extended opinion would have no preceden-tial value. Rule 84.16.

Judgment of conviction affirmed.

All concur.