author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis BANKHEAD, Defendant-Appellant.
    No. 36725.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.
    Thomas J. Nold, James C. Jones, III, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for Burglary Second Degree. § 560.045 RSMo 1969. Pursuant to the Second Offender Act the court sentenced him to eight years imprisonment. § 556.280 RSMo 1969. We affirm.

On August 6, 1974, sometime between 8:45 a. m. and 4:45 p. m., a north St. Louis residence was burglarized. The thief gained entry by breaking a window glass and then stole money, clothing and various household appliances. The police lifted numerous fingerprints from the broken glass and later positively matched defendant’s fingerprints with those taken from the broken glass.

The defense presented evidence that the defendant had been at his mother’s home all day on August 6, 1974.

The defendant’s sole contention on appeal concerns alleged prejudicial comments made by the prosecutor during final argument. The record discloses that no objection of any kind was made by the defendant to the allegedly improper prose-cutorial remarks at the time they were made. Therefore, nothing has been preserved for appellate review. State v. Turley, 518 S.W.2d 207[3] (Mo.App.1974) cert. denied, 421 U.S. 966, 95 S.Ct 1956, 44 L.Ed.2d 454 (1975); State v. Smothers, 518 S.W.2d 187[3] (Mo.App.1974); State v. Carter, 478 S.W.2d 358[4] (Mo.1972); State v. Williams, 419 S.W.2d 49[6] (Mo.1967).

The defendant nevertheless asks this court to review his contention under the plain error doctrine of Rule 27.20(c), but we decline. Our careful review of the entire record and the appellate briefs has convinced us that the prosecutorial remarks did not result in manifest injustice or a miscarriage of justice.

The judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . Defendant objects to the following prosecuto-rial remarks during closing argument: “How had Dennis Bankhead’s fingerprints gotten on that window? ”, and later “His mother and his aunt said he was at home the entire day. How did Dennis Bankhead’s prints get on that window?” Also, “Now, you heard from the defendant’s mother and you heard from his kin . . But, the one thing that speaks out and is unchallenged is the fingerprints of Dennis Bankhead’s on Wayne Ross’ window, the broken window, both sides; both sides of the glass.”
      Defendant claims these remarks constitute a comment on the defendant’s failure to testify. We disagree. Even if defendant had objected to these comments, we do not believe they constituted a reference to the defendant’s failure to testify.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Robert Jerome McLARTY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36653.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.

      Gael T. Inf ande, Crouppen, Walther & Zwibelman, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Jay M. Shapiro, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

Movant appeals from the judgment of the trial court which denied his motion under Rules 27.25 and 27.26 seeking to set aside the judgment convicting him of burglary and to withdraw his plea of guilty.

On April 12,1973, movant entered a plea of guilty to the charge of burglary in the second degree. At movant’s request a pre-sentence report was granted. On May 25, 1973, after receipt of the presentence report the court sentenced movant to 5 years in the Missouri Department of Corrections.

Preliminary to our discussion we wish to direct the attention of the Bar to the limitations placed upon our appellate review of the judgment of the trial court with respect to motions filed in accordance with Rule 27.26. We are limited “. to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j). Counsel does not direct us to any findings or conclusions which the trial court made in ruling the motion nor are we told wherein and why it is contended that any of the findings or conclusions are clearly erroneous. See Turnbough v. State, 533 S.W.2d 609, St. Louis Court of Appeals, 1975; Dill v. State, 525 S.W.2d 437 (Mo.App.1975).

This fault is prevalent in most of the briefs which we receive on appeals from judgments with respect to motions filed under Rule 27.26. These cases are proliferating. We can properly serve the Bar and its clients only if counsel will substantially comply with the rules.

We do not try the motion de novo. We are confined to a determination of whether those findings and conclusions and portions of the judgments of the trial court specifically presented to us in appellant’s “Points Relied On” are clearly erroneous.

In the hope that the Bar will now understand the extent of our review and will comply with Rule 84.04(d) within the scope of our review under Rule 27.26 we shall undertake the determination of this appeal in the light of the issues as we perceive them.

The trial court found that the Circuit Attorney made no promise to movant that he would recommend probation; that mov-ant knew that the Circuit Attorney was making no recommendation as to probation; and that movant knew at the time of his plea of guilty that the court was not obligated to place movant on probation. We consider whether these findings are clearly erroneous.

The basis for the court’s findings are apparent from both the proceeding at the plea and upon the hearing in the present proceeding.

At the plea hearing the State recommended a sentence of 5 years. Movant informed the court that he was a narcotic addict and asked that the court order a presentence investigation. The court on three occasions asked movant if he understood that if the court ordered the investigation it was making no promise that mov-ant would be placed on probation and put into a drug rehabilitation program. The court also asked if any such promise had been made by anyone else and specifically if Mr. Wynne, his attorney, had made such a promise. After receiving negative answers to each inquiry the court deferred sentencing until it could obtain the presentence report.

A little over a month later, with the presentence investigation before him showing five prior convictions, the court sentenced movant.

At the hearing on this motion movant testified that his attorney, Mr. Wynne, told him that his plea of “guilty to probation” was looking good, that he would talk to the Circuit Attorney. His attorney told him everything was all right, “that we plead guilty to probation to Archway House.”

Mr. Wynne testified that he tried to get movant into a drug rehabilitation program and discussed the matter with him. He made no promises regarding the disposition that the court would make. He talked to the Circuit Attorney but the only recommendation which he would make was 5 years. Mr. Wynne advised his client of the recommendation of the Circuit Attorney.

The burden was upon movant to prove the allegations of his motion by a preponderance of the evidence. Crews v. State, 510 S.W.2d 425 (Mo.1974). The credibility of the witnesses was for the trial court. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). Considering the circumstances at the plea and the testimony at the hearing we are in no position to say that the findings of the trial court were clearly erroneous.

In the midst of the hearing on this motion movant was granted leave to amend his motion to include as an additional ground for relief the following:

“. . . 8(b) The Court failed to hold a hearing prior to finding that the petitioner had a prior record of criminal convictions and unlawfully required the defendant to admit such prior record and therefore, incriminating himself prior to sentencing, contrary to the intent of an adversary proceeding.”

At the plea the court inquired of mov-ant’s familiarity with the proceedings because he had been through the process before.

The court’s finding on this issue was: “The movant, under questioning of the Court, admitted the allegation as to the prior conviction of operating a motor vehicle without the owner’s consent. This was not elicited to prove the prior conviction but to establish that movant was familiar with court proceedings and in fact had undergone a previous jury trial.”
And the court concluded:
“2. The movant having voluntarily entered a plea of guilty, whether or not movant admitted a prior conviction was of no legal consequence as the only effect of pleading and proving a prior conviction is to bestow upon the Court rather than the jury the power to assess punishment. This the Court must do on a plea of guilty regardless of any prior conviction.” Movant’s point reads:
“Movant’s guilty plea must be vacated because the court erred when it made a finding regarding movant’s prior convictions without a hearing as mandated by R.S.Mo. Section 556.280, V.A.M.S. (1969).”

Movant does not address his point nor argument to the findings and conclusions of the court. This court has previously held that § 556.280(2) is applicable only to jury tried cases. State v. Lang, 491 S.W.2d 12, 17 (Mo.App.1973). The court may and should take into consideration the movant’s prior criminal history when imposing sentence. State v. Armstrong, 433 S.W.2d 270, 272[5] (Mo.1968). In this case movant requested and was granted a pre-sentence investigation and report which is required to contain among other things “any prior criminal record of the defendant”. Rule 27.07(b). We find no merit in any contention with respect to this incident.

In conclusion movant contends that his plea was not voluntary because he was “instructed by his counsel to answer any questions asked him by the Court in such a manner as to insure that his guilty plea would be accepted without regard to the truth of his answers.”

This was not a matter presented to the court in the motion and was not ruled upon by the court and is thus not before us for review. Maggard v. State, 471 S.W.2d 161, 162[1] (Mo.1971).

The findings, conclusions and judgment of the trial court were not clearly erroneous. The judgment is affirmed.

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


author: SMITH, Chief Judge.

text:
    Owen EATON, Plaintiff-Appellant, v. AID FOR VICTIMS OF CRIME, INC., Missouri Corporation, and Carol Vittert, Defendants-Respondents.
    No. 36803.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 13, 1976.
    Whitfield, Montgomery & Walton, Rita M. Montgomery, St. Louis, for plaintiff-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Richard B. Scherrer, St. Louis, for def endants-respondents.
   SMITH, Chief Judge.

Plaintiff appeals from a judgment entered in a court-tried case denying his petition for equitable relief and dismissing with prejudice his petition.

Plaintiff was employed by Aid for Victims of Crime, a not-for-profit corporation, as its Executive Director on March 1, 1974. His relationship with A.V.C. terminated on August 16, 1974. Defendant Vittert is the President of A.V.C. Plaintiff sought temporary and permanent injunctions preventing defendant from (1) advertising the position of director as being open; (2) hiring another individual as director; (3) spending funds allocated for his salary. He also sought reinstatement, lost wages, punitive damages and attorney’s fees and costs.

Two hearings were held by the trial court, one on the temporary injunction, the other on the permanent injunction. The court denied plaintiff relief in each instance. Plaintiff focuses his attack on appeal on questions of the availability of equitable relief, adequacy of legal remedies, and the denial of the temporary injunction. We need not reach these issues.

No written contract was entered into between the parties. Plaintiff says he was orally hired for a year at $13,000 annually. Defendants deny that any length of time was established and had evidence that the salary was established at a bi-weekly rate equivalent to $13,000 annually. Plaintiff further contended that he was told, after he commenced his employment, that he could only be terminated for malfeasance or misappropriation of funds. Defendants denied this.

“The law in this state has been well stated that an indefinite hiring at so much per day, or per month, or per year, is a hiring at will, and may be terminated by either party at any time, and no action can be sustained in such case for a wrongful discharge.” Brookfield v. Drury College, 139 Mo.App. 339, 123 S.W. 86, 94 (1909).

Deferring, as we must to the trial court’s opportunity to assess credibility, we find only a hiring at will, subject to termination at any time.

The conditions which plaintiff says were stated as the only ground for discharge were not, even if true, a part of his original contract of employment and were without consideration and therefore of no validity. Macfarland v. Heim, 127 Mo. 327, 29 S.W. 1030, 1031 (1894); R—Way Furniture Co. v. Powers Interiors, Inc., 456 S.W.2d 632 (Mo.App.1970).

Following a meeting of the board of directors on August 15, 1974, plaintiff was told that he would be discharged. He instead advised that he would resign, prepared a letter of resignation, issued a cheek to himself for two weeks pay, marked the check “severance pay”, left the resignation in an envelope addressed to Mrs. Vittert on a desk in the corporation office. Four days later he attempted to withdraw the resignation. On those facts, the trial court could conclude that plaintiff was not in fact fired but instead voluntarily resigned, albeit under pressure.

Under the facts, plaintiff failed to establish he was wrongfully discharged in breach of an employment contract. All the relief he sought was conditioned upon establishing such wrongful discharge, and in the absence of such wrongful discharge he was entitled to no relief.

The judgment is affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


text:
    William L. HUTH, Plaintiff-Appellant, v. GENERAL ACCIDENT & LIFE ASSURANCE CORPORATION, LTD., Defendant-Respondent.
    No. 36076.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 13, 1976.

      Gerritzen & Gerritzen (Ray A. Gerritzen), St. Louis, for plaintiff-appellant.
    R. E. Keaney, St. Louis, for defendant-respondent.
   SMITH, Chief Judge.

Plaintiff appeals from a judgment in his favor for $4480.00 on a three count petition. Count I sought to recover $15,232.82 upon an inland floater policy issued by defendant, covering a scheduled list of guns. Count II sought recovery of $4,808.00 upon a similar separate policy also covering guns. The difference between the two policies is that the Count I policy covered “shooting guns”, while the Count II policy covered “collectors’ ” guns. Count III was for vexatious refusal to pay. The jury returned a verdict of $4,000.00 on Count I; $480.00 on Count II, and $1,948.00 on Count III. The trial court granted defendant’s motion to set aside verdict and judgment on Count III and entered judgment for defendant on that Count.

Plaintiff’s petition alleged that all of the scheduled guns had been stolen in a burglary. Defendant admitted the issuance of the policies, that plaintiff had made demand upon it and that it had refused to make payment. Defendant denied all other allegations of the petition and raised no affirmative defenses.

Plaintiff has asserted 20 grounds of error. At least six were not preserved for appellate review because not raised in plaintiff’s motion for new trial. Most of the other points range from trivial to frivolous. We have received no help from plaintiff’s brief in confronting the rather complicated issues upon which we conclude that the judgment must be reversed.

Plaintiff applied for the insurance involved here after reading an ad in a gun magazine. He supplied a complete listing of the guns to be insured, their description and an “amount of insurance” for each gun. The “shooting gun” list consisted of 47 guns and assorted subsidiary equipment, having a total “amount of insurance” of $15,232.82. Plaintiff said he obtained the “amount of insurance” for each gun by consulting a gun digest pursuant to instructions from defendant’s agent. The “collector” gun schedule consisted of 16 guns with various values and a total “amount of insurance” of $4,808.00. These schedules were attachments to the respective policies. The “shooting gun” policy had a premium of $152.32, indicated on the policy as “1%” of the insured amount. The “collector” policy had a premium amount of $15, stated on the policy as a rate of “.30”.

The original “collectors” policy was issued April 29, 1970 for a period of one year commencing April 22, 1970. The “Shooting” gun policy was issued August 25, 1970, for one year commencing August 12, 1970. The policies as issued each consisted of two forms. The basic form in each case was a standard inland floater policy. As an attachment to that form, was a specific Gun Floater Form.

The two basic policies were virtually identical and the special form attachments were in all pertinent provisions identical. Because we find that the attachments made substantial changes in the nature of the basic policies we set out the respective pertinent portions of the basic policy and the attachment:

Basic policy:
“In consideration of the stipulations herein named and of the premium above specified the Company does insure the above named Insured . . . to an amount not exceeding the amount(s) specified, on property described below or in endorsements) attached.
SCHEDULE
Item No. Description of Articles Amount of Insurance
SEE SCHEDULE ATTACHED”
Attachment:
“2. PROPERTY INSURED
This policy insures property of the Insured as described or scheduled herein.
Description Amount of Insurance
SEE SCHEDULE ATTACHED
“3. This Policy Insures Against
All risks of direct physical loss of or damage to the property covered except as provided elsewhere in this policy.”
Basic Policy:
“4. Valuation. The Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost to repair or replace the same with material of like kind and quality.”
Attachment:
“5. This Company shall be liable for the full repair or replacement cost of the property insured without deduction for depreciation but in no event to exceed the amount of insurance applying thereto.
“7. All clauses, conditions and warranties in the printed portions of this policy in conflict with the terms of this special form are waived.”

The last provision makes it apparent that in determining the meaning of the policies the attachments, if different from the basic policy, control.

On October 11, 1970, a burglary occurred at the home of plaintiff. Plaintiff testified that all 63 guns were stolen as well as the subsidiary equipment. Defendant offered no evidence to refute plaintiff’s evidence of the fact of the burglary or the theft of the guns. It did introduce evidence intended to cast doubt upon whether plaintiff owned the number of guns he had insured.

Following the submission of proofs of loss and a lengthy investigation by the insurance company, the company rejected “the proofs as unsatisfactory.” No further explanation was given. The guns and values listed on the proofs were identical to the schedules attached to the policy.

During the course of trial and over the continuing objection of plaintiff, testimony was introduced of the original purchase price of the guns or of their actual value. This evidence was admitted, ostensibly, only in defense of Count III, the vexatious refusal to pay count. We find the admission of such evidence erroneous and remand for new trial.

We note at the onset that defendant did not reject plaintiff’s claim on the basis of fraud or misrepresentation. Nor did defendant assert such grounds as affirmative defenses. See Rule 55.08. The question then becomes whether the evidence was relevant to any of the pleaded issues before the jury.

Defendant contends that this was not a “valued policy” under the Missouri statute (RSMo. 379.160, 1969) because the loss was not a “fire loss.” It therefore contends that such evidence was admissible (1) in justification of defendant’s refusal to pay, (2) as evidence to refute plaintiff’s proof of value and (3) to refute plaintiff’s evidence of ownership of all the guns. The law of Missouri is not clear on whether this policy was a “valued” one under the statute. Fire policies covering personal property are “valued” by the statute. See Duckworth v. United States Fidelity and Guaranty Co., 452 S.W.2d 280 (Mo.App.1970). The statute provides: “. . . that in all suits brought upon policies of insurance against loss or damage by fire the defendant shall not be permitted to deny that the property insured thereby was worth at the time of the issuing of the policy the full amount insured therein on said property covering both real and personal property; . . .” (Emphasis supplied).

While we have found no case in this state which squarely rules that this provision applies to a policy providing fire coverage where the loss is other than by fire, the statutory language would warrant that conclusion. The policy here was one which covered against loss by fire, as well as any other form of loss. It is certainly arguable that the words “against loss or damage by fire” modifies “policies of insurance” rather than “suits brought,” particularly when the later words “property insured thereby” are considered. And, there is a certain logical inconsistency in contending that the same property covered by the same policy has a fixed value if totally destroyed by fire and a different value if totally destroyed by wind or lost by burglary. See Fireman’s Fund Ins. Co. v. Vermes Credit Jewelry, Inc., 185 F.2d 142 (8 Cir. 1950); Newcomer v. Standard Fire Insurance Company, 165 F.Supp. 672 (E.D.Mo.1958).

But, we need not resolve this question of statutory interpretation for we find that the policies themselves are determinative of the amount plaintiff may recover. An insurance policy is a contract and, as with any contract, we must look to the intent of the parties as expressed in that contract. Valued policies are not created alone by statute. They can also be created by contract.

“In a valued policy the value of the subject matter is agreed upon beforehand. If there is anything in the policy which clearly indicates an intention on the part of the insurer to value the risk and loss, in whatever words expressed, the policy is valued.” American Ins. Co. v. Gentile Bros. Co., 109 F.2d 732 (5 Cir. 1940) l. c. 735, cert. den. 310 U.S. 633, 60 S.Ct. 1075, 84 L.Ed. 1403.

We find several indications of intention to value the risk here. First: the scheduling of the items covered with an “amount of insurance” listed for each. The sum of the parts is exactly equal to the total insurance provided on the face of the policy. The policies do not simply provide a grand total of indemnity against which a loss for actual value of any of the items covered could be sought, but a specified limited amount for each weapon. We are confident that neither party would contend that a loss of less than all the insured guns would allow a recovery up to the face amount of the policy upon a showing that the actual cash value exceeded the scheduled amount for the guns lost. See Ball v. Aetna Casualty & Surety Co., 58 F.R.D. 362 (E.D.Ky.1973). Second: the premium charged is based upon a percentage of the total insurance provided. This has been held to be indicative of a valued policy. See Ball v. Aetna Casualty & Surety Co., supra; American Ins. Co. v. Gentile Bros. Co., supra; Palatine Ins. Co. v. E. K. Hardison Seed Co., 42 Tenn.App. 388, 303 S.W.2d 742 (1957). Third: the use of the term “amount of insurance” listed in the schedule indicates a specific value. Terms such as “insured value” have been equated to language such as “valued at” and are not equivalent to the term “maximum value” found in open policies. See Gerhard v. Boston Ins. Co., 99 F.Supp. 247 (D.C.Pa.1951). Fourth: the insuring clause of the attachment (which supersedes the basic policy) deletes the reference in the basic policy “to an amount not exceeding the amount(s) specified.” The attachment reads: “This policy insures property of the Insured as described or scheduled below” thereby referring to the dollar amounts set forth in the schedule. Fifth: the obligation of the insurer under the attachment is to make it “liable for the full repair and replacement cost of the property insured without deduction for depreciation but in no event to exceed the amount of insurance applying thereto.” The provision of the attachment deletes any reference to actual cash value referred to in the basic policy and indicates to us that the company has agreed to pay the full amount of the insured value of the guns or the replacement cost whichever is less. Such an undertaking is not inconsistent with the nature of the property insured. Guns, whether collector’s or shooting, are frequently unique items, sometimes specially crafted or modified and difficult to duplicate. They do not lend themselves to valuation in the same sense that other species of property do. This is apparent from the use of a special gun form which varies considerably from the basic inland floater policy. If the guns are capable of repair or in this case replacement, the insurance company may invoke that option, otherwise it agrees to pay the insured the amount the insurance company has agreed is the value and for which it has charged a premium.

This being the nature of the contract of insurance, purchase price or market value was of no relevance for any purpose in the case. Under these policies the results of the insurance company investigations of market value or purchase price could furnish no basis for its refusal to pay nor serve to reduce the damages on Counts I or II. The record contains no evidence that the company offered to replace the guns or made any tender of replacement cost. Its denial of liability was not based upon such a ground, nor was its defense so oriented. Nor was market value or purchase price relevant to plaintiffs ownership of the property. Such evidence was so remote as to that fact, and so prejudicial on the amount of loss, that testimony in this regard should not have been permitted. The admission of the evidence was error and prejudicial and allowed the defendant to contest a valuation to which it had agreed and by which it was bound. Bergerson v. General Ins. Co. of America of Seattle, Wash., 232 Mo.App. 549, 105 S.W.2d 1015 (1937); Gamel v. The Continental Insurance Company, 463 S.W.2d 590 (Mo.App.1971).

The Court’s action as to Count III was based upon the fact that the verdicts on Count I and II were substantially less than plaintiff claimed was due. Whether those verdicts would have been for less than that amount in the absence of the erroneously admitted evidence we cannot speculate.

Judgment reversed on all three counts and cause is remanded for new trial on all counts.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    MARYLAND CAFETERIA, INC., a corporation, Plaintiff-Appellant, v. MIDWEST FIRE PROTECTION, INC., a corporation, Defendant-Respondent.
    No. 36348.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 13, 1976.
    Murphy & Schlapprizzi, Cornelius T. Lane, Jr., St. Louis, for plaintiff-appellant.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for defendant-respondent.
   ALDEN A. STOCKARD, Special Judge.

In plaintiff’s suit for damages for breach of warranty, or in the alternative for negligence, the trial court directed a verdict for defendant and plaintiff has appealed. We affirm.

Plaintiff operated a restaurant and cafeteria at 205 North Ninth Street, in the City of St. Louis, located in the basement of the Baltimore Hotel. In order to obtain fire insurance plaintiff needed automatic fire protection which complied with the requirements of the Missouri Inspection Bureau, an organization not otherwise described or defined in the record. In October 1968, plaintiff entered into a written contract with defendant for the installation of automatic fire protection equipment described as “3 — KHD30DC Dry Chemical Systems to protect 3 hoods and 2 ducts.” The contract provided that “The installation will meet current requirements of the Underwriter’s Laboratories, National Fire Protection Association, State Inspection Bureau, and local Fire Department.”

The physical layout of the kitchen is somewhat indefinite in the record and is difficult to describe. In its brief, respondent refers to “the drawings attached to the installation contract.” The contract has been filed with this court as Exhibit No. 1, but there are no drawings attached to it. During the testimony of Mr. Frederick Bag-german, plaintiff’s expert witness, he drew a sketch on a blackboard, and he then testified while referring to what he had drawn. The sketch is not before this court, and a portion of the testimony of this witness is practically meaningless to one reviewing the record on appeal.

Located in the southwest corner of the kitchen area was a large bake oven, approximately 8 feet by 8 feet, extending to or almost to the ceiling. To the north of that oven was a refrigerator, then a sink, steam tables, a deep fat fryer, a grill, a range top, steam kettles, and another oven known as the confection oven. Over the “cooking area,” which apparently extended from the deep fat fryer to the confection oven, there was a metal hood five or six feet deep and approximately twenty-five feet long. North of this hood was a washing facility for pans, a food preparation area, and an exhaust fan. Above the hood and near the ceiling was a rectangular metal duct, its dimensions not being shown. The hood did not extend southward to the bake oven; the southern end being closed.

A round duct extended from the top of the bake oven to the rectangular duct, apparently entering from the side. About twenty feet east of the bake oven was a breakfast kitchen area over which there was a hood. A round duct extended from that hood northwesterly to the duct from the bake oven, those two joining before entering the rectangular duct over the large hood.

Defendant installed in the rectangular duct and north of the hood what was called a fusible link. There were five openings in the rectangular duct into the large hood, and the fusible link was located twenty-six (or twenty-eight) feet north of the most southerly opening. Four nozzles were installed in the openings of the rectangular duct through which a powder substance was ejected if and when the temperature in the duct reached the melting point of the fusible link and activated the mechanism.

We cannot determine from the record precisely where the four nozzles were located, but there was no nozzle in the rectangular duct south of the third opening from the south end of that duct. Also, although the contract called for protection to three hoods, we can find reference in the record to only two; the large hood over the “cooking area” and the one over the “breakfast kitchen area.” Neither can we determine the “2 ducts” to which the contract referred. In addition to the rectangular duct there were two round ones; the one from the bake oven to the rectangular duct, and the one from the kitchen hood to the other round duct just before it entered the rectangular duct. Also, while the contract refers to “3 ⅜ * * chemical systems,” we find nothing to indicate of what a “system” consists. The record does not affirmatively disclose whether there were or were not nozzles for the discharge of chemicals located in the hood over the breakfast kitchen area, the top of the bake oven, or in the round ducts. It might be inferred that the only nozzles that were installed were those in the rectangular duct, but there is no evidence as to the area that would be sprayed by the chemicals in the event the fusible link was activated.

Early in the morning of January 12, 1971, an employee turned on the large oven, and immediately thereafter a fire occurred in the top or upper portion of the oven, apparently resulting from an accumulation of grease. There is nothing in the record to indicate whether the exhaust fan was turned on or off, but at some stage of the fire the fusible link in the rectangular duct apparently was activated because there was a residue of white substance on the equipment. Substantial damage resulted from the fire.

At the close of the evidence the trial court directed a verdict for defendant. Plaintiff contends on this appeal that the trial court erred in doing so because the evidence authorized a finding that the “defendant expressly contracted and warranted that it was installing a fire protection system that would do the job for which it was purchased, to wit: ‘protect’ the ducts in plaintiff’s kitchen.” It argues that there was a breach of the warranty because “there was a duct running a distance of about 12 feet from the bake oven north to the [large] hood * * * that had absolutely no protection.” Plaintiff then argues that if the contract did not create an express warranty, the law “implies a warranty that a chemical fire protection system installed to protect the ducts in plaintiff’s kitchen would be reasonably suited to do the job.” We note that the asserted implied warranty is the same as the claimed express warranty. For this reason we need not consider separately whether there was an implied warranty because “an express warranty excludes an implied warranty of fitness * * * if the express warranty relates to the same or similar subject matter as one which would have been implied.” Mitchell v. Rudasill, 332 S.W.2d 91, 95 (Mo.App.1960).

The contract was dated October 3, 1968, and the fire occurred on January 12, 1971. Although the Uniform Commercial Code, §§ 400.1-400.10 RSMo 1969, was enacted in 1963, and it contains specific provisions concerning the creation and effect of express warranties, § 400.2-313, and implied warranties, § 400.2-314, no mention of that Code is made by either party in its brief.

It is provided in the Uniform Commercial Code that an express warranty may be created by (a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain; (b) any description of the goods which is made a part of the bargain; and (c) any sample or model which is made part of the basis of the bargain. In this case the defendant entered into a contract to install on the plaintiff’s premises “3-KHD30DC Dry Chemical Systems to protect 3 hoods and 2 ducts,” and as “part of the basis of the bargain,” it made an “affirmation of fact or promise” that the equipment, when installed, would meet all current requirements of the three named groups or associations and the local fire department. This created an express warranty that “the goods [the dry chemical fire protection systems] [would] conform to the affirmation or promise.” If they did, then defendant complied with his contract and thereby afforded the “protection” to the “3 hoods and 2 ducts” that it contractually agreed to provide. But, there is no evidence whatever in the record as to what the “current requirements” were, and more important, there is no evidence whatever that the equipment as installed failed in any respect to meet those requirements. There was a total lack of proof that defendant breached this express warranty.

Plaintiff argues that the express warranty was that the system (or systems) was to “ ‘protect’ the ducts in plaintiff’s kitchen.” First, the reference in the contract was to “2 ducts,” not to the “ducts in plaintiff’s kitchen,” and our review of the evidence indicates that there were at least three ducts. If the round duct leading from the bake oven and the rectangular duct are to be considered as one duct, there is no evidence that this was the intention of the parties, or that they should be so considered by reason of the custom and usage in the trade.

Next, we cannot determine from the evidence what was intended to be meant by “protect.” We are certain that it did not mean that the “system would prevent” fires in the hoods and ducts as plaintiff alleged in its petition. From all that can be gathered from the evidence, and to us this seems to be the most reasonable meaning, the term was intended to mean that the system was to provide the protection that would result from an installation that met the requirements of the named groups and associations and the local fire department. If the term was intended to have a different meaning it would be by reason of the usage of that term in the specialized field of providing fire protection equipment, but there is no evidence as td that. We find no basis for a cause of action based on warranty.

Plaintiff’s final contention is that defendant was “guilty of negligence in installing a dry chemical fire protection system which would only protect a portion of the main duct in plaintiff’s kitchen, when defendant had a duty to protect all the ducts under the provisions of the written agreement between the parties.”

If defendant had the asserted duty by reason of the contract provisions, and it did not comply with that duty, its failure to do so created a cause of action for breach of contract, not for negligence. The parties contracted that a system (or systems) would be installed that met the requirements of the three named groups or associations and of the local fire department. If those requirements were met, and there is no evidence in the record that they were not, then defendant could not be guilty of negligence in not doing more than the contract obligated it to do. We find no basis for a cause of action based on negligence.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. James T. LONGSTREET, Appellant.
    No. 36875.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 13, 1976.

      McQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for appellant.
    James G. Gregory, Pros. Atty., of Montgomery County, Montgomery City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal by James T. Longstreet from a judgment of conviction and assessment of a $1.00 fine on each of two counts following jury-waiver trial of an information charging failure to file timely sales tax returns and pay tax under § 144.080, RSMo 1969.

The information, filed by the Prosecuting Attorney of Montgomery County, alleged that James Thomas Longstreet is manager and the officer of Ranch Roy-L Inc., a Missouri corporation, responsible for the filing of Missouri State Sales Tax Returns. Count I charged that he wilfully and unlawfully failed to file a quarterly Missouri Sales Tax Return for the calendar quarter commencing July 1, 1973, and ending September 30, 1973, on or before the 30th day of October, 1973, by which day such return was required by law to be filed. In Count II he was charged with wilfully, etc. failing to timely file such a return for the next ensuing quarter. Defendant pleaded not guilty to both counts. A jury was waived with the assent of the court, and the cause was submitted on stipulations by counsel for State and defendant.

These are the stipulated facts: Ranch Roy-L Inc. is a Missouri corporation engaged in the business of making sales and services for which a Missouri sales tax is required to be collected and transmitted to the state department of revenue. Its principal place of business in Missouri is located at High Hill in Montgomery County. The president of the corporation, who owns more than 50% of the outstanding stock, is Roy W. Longstreet. Defendant James T. Longstreet is a son of Roy. William Longstreet is another son of Roy. The balance of the stock not owned by Roy is held in equal shares by William and James. William is treasurer and James is secretary of the corporation. At all times in question James was managing agent and managing officer of the corporation, with the title of “Executive Vice-President,” and as such he was the person who was responsible for the filing of the corporation’s sales tax returns. At no time did James contend that any other person was responsible for filing returns due by the corporation. His counsel conceded that “[t]he sales tax[es] due from the Corporation were the responsibility of the Defendant ⅜ *

It was further stipulated that during the time in question James, himself, was not engaged in any business that would require him as an individual to file any sales tax returns or remit any money to the department of revenue.

James knew the returns were due and knew the dates by which they were required by law to be filed. During the quarter mentioned in Count I the corporation made taxable sales on which a total of $2,121.96 sales tax came due. During the quarter mentioned in Count II sales taxes of $989.26 accrued. Following the sending of a notice of delinquency investigators for the department of revenue made an investigation under Chapter 144, and on May 9, 1974 all taxes, delinquencies and penalties were paid by the corporation, and sales tax forms, addressed and mailed to Ranch Roy-L, properly filled out and signed by James T. Longstreet as Executive Vice President, were filed with the department, thus bringing the corporation into compliance with the sales tax law.

Appellant makes the following single point: “The verdict is contrary to the evidence and law in that * * * appellant, as an individual, was not subject to the requirements of the Sales Tax Act * * * since he * * * was not exercising the privilege of selling property or rendering service at retail, and he did not on his own account and for his own use receive any payment or consideration upon the sale of property or rendering of service subject to the tax imposed by Chapter 144, supra. Section 144.080 * * * does not expressly, nor by inference, impose criminal sanctions upon agents, servants, or employees of corporations subject to the Sales Tax Act, limiting punishment for violation thereof in this case to the corporation for which appellant acted or failed to act; and the offense charged being one of failure to perform a required act, which is an offense solely because of legislative enactment, appellant is not answerable therefor as a matter of law separate and apart from statutorily imposed liability.”

Both parties agree that this Court has jurisdiction, but in accordance with our duty we examine sua sponte the question whether we have the power to entertain this appeal. The immediate question is whether this appeal is a case “involving * * * the construction of the revenue laws of this state * * and is therefore within the exclusive jurisdiction of the Supreme Court, under Constitution of Missouri, Art. V, § 3.

The pertinent sections of Chapter 144, Sales and Use Tax, are as follows:

Section 144.080 1. “Every person receiving any payment or consideration upon the sale of property or rendering of service, subject to the tax imposed by the provisions of sections 144.010 to 144.510, is exercising the taxable privilege of selling the property or rendering the service at retail and is subject to the tax levied in section 144.020. He shall be responsible not only for the collection of the amount of the tax imposed on the sale or service to the extent possible under the provisions of section 144.285, but shall, on or before the thirtieth day of the month following each calendar quarterly period of three months, make a return to the director of revenue showing his gross receipts and the amount of tax levied in section 144.020 for the preceding quarter, and shall remit to the director of revenue, with the return, the taxes levied in section 144.020.”

⅝ ⅜ ⅞ ⅛ ⅜ £

5. “ * * * Any person violating any of the provisions of this section shall be guilty of a misdemeanor.”

Section 144.010 1. “The following words, terms and phrases when used in sections 144.010 to 144.510 have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

* * * * * *

“(6) ‘Person’ includes any individual, firm, copartnership, joint adventure, association, corporation, municipal or private, and whether organized for profit or not, state, county, political subdivision, state department, commission, board, bureau or agency, except the state highway department, estate, trust, business trust, receiver or trustee appointed by the state or federal court, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular number.”

Section 144.510. “Any person, officer, agent or employee of any firm, corporation, association, joint adventure, estate, trust, receiver or syndicate violating any of the provisions of sections 144.010 to 144.510 shall be deemed guilty of a misdemeanor, and, where punishment is not otherwise provided for herein, shall be punished for such.”

The determinative question is whether the managing officer of a corporation subject to the sales tax law, by virtue of the foregoing provisions, or by implication or statutory construction, is a “person” within the meaning of the law; whether the duty to collect the tax, make the return and remit the tax falls upon James T. Longstreet individually and personally by virtue of his capacity as manager and officer responsible for collecting the tax, filing returns and remitting the tax, so as to make him criminally responsible for failure to comply with the statutory requirements, or whether the corporation alone is liable and the individual is to be exculpated.

The solution of this question requires a review and construction of the foregoing sections of the revenue laws of this state. It is so briefed by the parties. Under the pleadings, evidence and briefs, it is not possible to decide this case on the merits without construing the Sales Tax Act. See State ex rel. Rudder v. Haphe, 326 Mo. 460, 31 S.W.2d 788 (1930), where the immediate question was whether the duty to pay personal property taxes rested upon an administrator as an individual or in his capacity as executor. In that case the Supreme Court, retaining jurisdiction, quoted and construed the pertinent taxing statutes and concluded that taxes may be assessed against the person having charge and control of the property; that when so assessed they constitute a personal debt, and whether the care, charge and management of the property devolves upon one as trustee, administrator, executor, curator or agent is of no consequence; that “he is made liable for the taxes on the property simply because he has charge and control of it, and not because of the capacity in which he holds it.” 31 S.W.2d l. c. 790.

That case, however, was a civil suit, whereas this is an appeal from a misdemeanor conviction. This is a criminal case. The appellate jurisdiction of the Supreme Court in criminal cases is governed by the grade of the offense, State v. Zinn, 141 Mo. 329, 42 S.W. 938 (1897); State v. Lauridsen, 312 S.W.2d 140 (Mo.1958), “and not by indirect and incidental determinations as to compliance with revenue laws which may be the subject of the crime.” State v. Lauridsen, supra, 312 S.W.2d l. c. 142. In order to fit the constitutional classification of cases involving the construction of the revenue laws the revenue law in question “ ‘must be directly and primarily concerned, not merely indirect or as an incident.’ State ex rel. Atty. Gen. v. Adkins, 221 Mo. 112, 119 S.W. 1091, l. c. 1093 (1909); White v. Boyne, 324 Mo. 176, 23 S.W.2d 107 (1929); State v. Lauridsen, 312 S.W.2d 140 (Mo.1958); Young v. Brassfield, 223 S.W.2d 491 (Mo.1949); White v. State Social Security Commission, 345 Mo. 1046, 137 S.W.2d 569, 571 (1940).” Robb v. Estate of Brown, 518 S.W.2d 729, 731-732 (Mo.App.1974). The meritorious question here is whether the defendant is guilty or innocent of the crime charged. The ultimate result in this case — a determination that the defendant is guilty or innocent of failure to file timely sales tax returns and pay the tax — “does not directly affect the right of the state to collect revenue, prohibit it from collecting any revenue, or to do any act or enforce any obligation in connection therewith, or to directly adjudge or enforce the payment of any revenue.” Idem. The only effect the outcome of this appeal would have on the revenue laws of this state would be indirect and incidental. That is not enough to divest this court of jurisdiction and bring this appeal within the exclusive jurisdiction of the Supreme Court.

On the merits we are of the opinion that James T. Longstreet, acting in a representative capacity as the managing agent of the corporation, charged with the official duty of filing the corporation’s sales tax returns and paying sales taxes due by the corporation, is a “person” within the meaning of § 144.080 1., and as such is criminally liable, after collecting the taxes, for failure to file the required returns on time and remit the taxes; and that he is not to be excused from criminal liability on the ground that he was acting in a representative capacity only and not in the conduct of his own. personal, individual business. No provision of the Sales Tax Act indicates any intention to exonerate corporate officers who violate the Act. The opposite intention is evident. The plain and obvious intent of the General Assembly in enacting these sections was to impose the statutory obligation to file timely returns and remit sales taxes not only upon corporations exercising the taxable privilege but also upon officers, agents and employees of such corporations where the latter receive any payment or consideration due the corporation upon the sale of property or rendering of sevice by the corporation. To insulate such officers, agents, etc. from criminal liability would effectively defeat the purposes of the Act. The corporate officer, agent and employee in charge of corporate sales tax receipts is made liable to collect, make return of and remit the sales tax because he receives the payment or consideration involved in the transaction. The administrator was held liable for the taxes in State ex rel. Rudder v. Haphe, supra, because he had charge of and control of the property and not because of the capacity in which he held it. Likewise, in the case before us the officer, etc. of the corporation in charge of corporate sales tax receipts is liable under the plain terms of the statute simply because he received the payments or consideration for the corporate transactions in question, regardless of the fact that he acted in a representative capacity. That the General Assembly intended to fix the responsibility upon the corporate personnel who are charged with the responsibility of attending to corporate sales tax matters, as well as upon the corporation itself, is made abundantly clear from a reading of § 144.510, which specifically names officers, agents and employees of corporations among the classes of entities liable criminally for a violation of any of the provisions of the Sales Tax Act.

Our conclusion is fortified by the case of United States v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962), in which the Supreme Court of the United States held that the Sherman Act provision that “Every person who shall make any contract or engage in any combination or conspiracy * ⅜ ⅜ shall be deemed guilty of a misdemeanor” 15 U.S.C. § 1, applies to corporate officers acting in a representative capacity; that “[n]o intent to exculpate a corporate officer who violates the law is to be imputed to Congress without clear compulsion,” and that the Act should be construed “in its common-sense meaning to apply to all officers who have a responsible share in the proscribed transaction.” 370 U.S. l. c. 409, 82 S.Ct. l. c. 1358. See also People v. Trapp, 20 N.Y.2d 613, 286 N.Y.S.2d 11, 233 N.E.2d 110 (1967); People v. Milton C. Johnson Co., 71 Misc.2d 870, 337 N.Y.S.2d 477 (1972); People v. Gibbs & Cox, Inc., 74 Misc.2d 242, 342 N.Y.S.2d 170 (1973); Spivak v. United States, 370 F.2d 612, 615[3] (1967), cert. den. 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625, and Ruby v. Mayer, 194 F.Supp. 594, 597 (D.N.J.1961).

Judgments on both counts affirmed.

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


author: RRNDLEN, Judge.

text:
    Robert Lee WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36257.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 13, 1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   RRNDLEN, Judge.

Movant appeals denial of his Rule 27.26, Y.A.M.R., motion, seeking to set aside the first degree murder conviction and sentence of life imprisonment, affirmed on direct appeal in State v. Williams, 473 S.W.2d 388 (Mo.1971).

Appellant asserts as error: (1) ineffective assistance of counsel occasioned by his attorney’s failure to interview possible alibi witness and failure to communicate sufficiently often with appellant; (2) the conviction was procured by knowingly perjured testimony.

Our review in Rule 27.26 proceedings is limited to determining whether “the findings, conclusions and judgment of the trial court are clearly erroneous,” Supreme Court Rule 27.26, V.A.M.R., Crosswhite v. State, 426 S.W.2d 67, 70[1] (Mo.1968); Johnson v. State, 516 S.W.2d 500, 501[3] (Mo.App.1974), and “we recognize that the trial court had the right to reject testimony on behalf of the movant, even though there was no contrary evidence offered at the hearing.” Shoemake v. State, 462 S.W.2d 772, 775[3] (Mo.banc 1971).

In post-conviction proceedings the standard for judging the adequacy of legal service rendered is “to determine in each case whether appellant was deprived of a fair trial by conduct of counsel,” Johnson v. State, 516 S.W.2d 500, 501[2] (Mo.App.1974); Thomas v. State, 512 S.W.2d 116, 121-2[1] (Mo.banc 1974), and “[tjhere is no hard and fast rule applicable in every case.” Smith v. State, 518 S.W.2d 155, 157[2] (Mo.App.1974); Foster v. State, 502 S.W.2d 436, 438 (Mo.App.1973).

Appellant condemns trial counsel’s investigation as insufficient to permit proper presentation of available defenses, citing McQueen v. State, 475 S.W.2d 111 (Mo.banc (1971). At the outset we note defense counsel was not called at the evidentiary hearing and we are thus without direct testimony as to the extent of his investigation or preparation. Significantly appellant concedes “that the trial, per se, was conducted in an effective manner” but maintains there was no investigation, a situation he claims (1) bespeaks ineffective assistance of counsel as a matter of law, and (2) shifts the burden of going forward with the evidence to the state. Neither proposition is supported by applicable law.

In McQueen cited by appellant defense counsel’s failure to interview witnesses endorsed by the state was held not to have “prevented the defendant in this case from having a fair trial,” supra at 112. The court found there was no proof that counsel’s preparation was inadequate simply because he failed to interview the witnesses named and the court further waived aside appellant’s argument that counsel’s investigation of state’s witnesses prior to trial might have permitted a stronger defense and his failure to so do constituted ineffective assistance, as “totally speculative.” This is not to say that failure to investigate is a circumstance of little consequence but rather, standing alone does not establish ineffective assistance of counsel as a matter of law.

As to appellant’s novel argument that the burden of going forward with the evidence shifted to the state, we find no authority and none is cited which supports his position. However concerning the “burden of proof,” it has been stated: “[t]he burden of proof to establish the oft-levelled claimed of ineffective assistance of counsel in postconviction proceedings is on the mov-ant and such onus is not met unless it is clearly demonstrated that the acts or omissions of counsel went beyond errors of judgment or trial strategy and were of such character as to result in a substantial deprivation of the right to a fair trial.” Crow v. State, 514 S.W.2d 13, 14[2] (Mo.App.1974). Further appellant’s argument appears contrary to the intent of Rule 27.26(f) providing the prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence. Appellant’s contention fails for the additional reason the record factually belies his charge of inadequate investigation or a lack of preparation. The theory of defense was alibi, that appellant was elsewhere and the murder committed by one Larry Tucker. Defense counsel called five witnesses: the defendant, his mother and cousin, who alone could substantiate his alibi, the officer who arrested Larry Tucker for questioning in connection with the murder, and Queen Esther Brown and Deborah Jackson, who both testified hearing Larry Tucker admit the killing.

The transcript in the criminal cause discloses a well-prepared, carefully-organized and vigorously-presented defense. The only other witnesses now named by appellant as available but not called were Queen Esther Brown’s mother and two brothers “Sonny” and “Junebug,” whose testimony would at best have been cumulative on the issue of alibi and Larry Tucker’s admissions. The value of their contribution to the defense appears highly speculative. Appellant also asserts the possibility that other unnamed witnesses could have supported his case but does not indicate the nature of their testimony and offers no proof they were not interviewed other than ambiguous assertions to that effect. Significantly appellant concedes there could have been reasons for not calling such witnesses. See Jackson v. State, 510 S.W.2d 707, 708[2] (Mo.App.1974). An attorney has “the right to exercise his professional judgment regarding leads suggested by the defendant,” McNamara v. State, 502 S.W.2d 306, 308[1] (Mo.1973). “A movant who contends inadequate investigation by counsel has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice.” Fritz v. State, 524 S.W.2d 197, 199[2] (Mo.App.1975); Monteer v. State, 506 S.W.2d 25, 28[8] (Mo.App.1974). Which witnesses to call and how best to defend, are matters of strategy and tactics. Counsel’s actions will not lightly be judged ineffective because of trial error in such matters. See Cook v. State, 511 S.W.2d 877, 882[8-10] (Mo.App.1974).

Finally, appellant complains counsel conferred with him only twice, insisting this prevented calling other witnesses. However, those appellant now suggests as alibi witnesses, Queen Esther Brown and Deborah Jackson, were in fact called and testified. As noted above, others whom counsel may or may not have interviewed involved only cumulative testimony and nothing reflects appellant’s prior dissatisfaction with counsel’s service. By its findings the court made clear appellant’s unsupported testimony was less than credible and in such cases “the trial court is not required to believe movant’s testimony.” State v. Hurtt, 509 S.W.2d 14, 16[5] (Mo.1974). This record amply warrants the trial court’s finding “that petitioner was ably, conscientiously and competently represented . . . ” and that “petitioner has failed to prove he was denied effective assistance of counsel.” Appellant’s point is without merit.

Appellant’s next point, that the conviction was procured by knowing use of perjured testimony, stems from testimony of state’s witness Jerome Nelson and inconsistent extrajudicial statements attributed to him in a police report.

At trial Nelson testified appellant shot the victim three times in an attempt to rob him of his dice game winnings then ran through a gangway east of the house where the dice game occurred, apparently to a car that drove away from the scene. On cross-examination inquiry was made of items appearing in the police report, conflicting with his direct testimony. Nelson denied having made such contradictory statements and since the report had been excluded, the defense then sought to impeach the witness by testimony of officers who took the statement. Confusion abounds in the testimony of the officers involved but this appears more a question of credibility than intentional use of perjured testimony.

“To obtain a new trial because of perjured testimony, a defendant should show that the testimony at the criminal trial was deliberately false and known to be false; that the prosecution used the testimony knowing it to be false; and the conviction was obtained on account of the perjured testimony.” Duncan v. State, 520 S.W.2d 123, 124[1] (Mo.App.1975); Tyler v. State, 501 S.W.2d 189, 191[2] (Mo.App.1973); State v. Harris, 428 S.W.2d 497, 502[11] (Mo.1968). Appellant fails to meet these tests. Only Jerome Nelson’s testimony had any part in securing appellant’s conviction. Lt. Brown’s testimony merely related to the taking of Jerome Nelson’s statement and the preparation of the police report. Appellant points to the conflicting portions of the report as proof that the testimony at trial was perjured. This argument ignores the unreliability of such reports. “[A] police report contains statements written down by the reporting officer of what other officers have informed him a certain person said in regard to certain facts. It is a condensation, not a verbatim transcript. It contains much hearsay and interpretation by the various officers whose contributions make up the report. It is seldom supported by sworn statements. Such a report cannot even be used to impeach a witness . . ” Duncan v. State, 520 S.W.2d 123, 125[2] (Mo.App.1975); see also appellant’s criminal appeal, State v. Williams, 473 S.W.2d 388, 390[3, 4] (Mo.1971). It certainly does not establish that testimony in conflict with the report is false. Thus appellant has failed to establish that the trial testimony was false, Tyler v. State, 501 S.W.2d 189, 191[3, 4] (Mo.App.1973), and failed to show the prosecutor knew false testimony would be given at trial. In addition, three witnesses corroborated Jerome Nelson’s trial testimony of the crime which lends credence to the state’s position that the prosecution had reason to believe Nelson was truthful when testifying. We rule the point against appellant and the judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . The police report was offered to impeach Nelson but excluded as too unreliable. This trial court ruling was affirmed in the criminal appeal. See State v. Williams, 473 S.W.2d 388, 390[2-4] (Mo.1971).

      . It is uncertain how or who prepared the police report of Nelson’s purported statement. Some of the confusion and conflicting testimony includes: In the criminal trial Cpl. Schmidt denied interviewing Nelson and stated that Lt. (then Sgt.) Brown did it. Lt. Brown testified that he interviewed Nelson and denied that Nelson had mentioned three armed men even after reading the police report on the stand. Lt. Brown denied preparing that part of the police report involving the three gunmen. Cpl. Schmidt was deceased at the time of the evi-dentiary hearing but Sgt. Dwyer testified there was no indication how many officers assisted in preparing the report. Lt. Brown testified that he sat in on Nelson’s interview and the report was substantially the same as he remembers that given by Nelson but Cpl. Schmidt, not he, conducted the interview.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. Antoine EDWARDS, Appellant.
    No. 37099.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.

      Allen I. Harris, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Jefferson City, Charles L. Howard, Asst. Attys. Gen., Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for respondent.
   RENDLEN, Judge.

Antoine Edwards, convicted by a jury of attempted robbery, § 556.150 RSMo 1969, V.A.M.S., and sentenced to four years imprisonment, appeals that conviction. Appellant assigns as error: (1) sufficiency of the evidence to sustain the verdict; (2) admission into evidence of a gun found near the scene; (3) propriety of giving a flight instruction; and (4) coercing the jury by a “hammer” instruction and thereafter setting a specific time limit for the jury’s deliberations. We affirm.

At about 9:80 a. m. on May 10, 1974, Joseph Vogel, proprietor of a shoe repair store on Sutter Avenue in University City, was working with his cousin in the rear of the store. Hearing the door open he stepped to the front, assuming a customer had entered. This assumption was quickly dispelled by Ronald Curry who threatened Vogel with a gun and demanded his money. Mr. Vogel moved to the back of the store to comply when apparently the robber leapt on the glass case separating them and the glass gave way beneath him. Curry then ran from the store pursued by Vogel who seized a club at the back of the store and chased him to the street. Curry, who ran north on the east side of Sutter for a short distance then ran west across Sutter into an alley and was soon apprehended by police officers. Mr. Vogel testified the gun offered in evidence was that used in the robbery attempt.

That morning, Officer Gary Wade of the University City Police, driving north in a marked police car on Sutter Avenue, observed a 1967 Chevrolet parked just north of Vogel’s Shoe Store on the east side of Sutter facing north, with its engine running and appellant sitting on the driver’s side looking toward the front door of Vogel’s Store. There were no other cars on the street at that time. Wade drove his police car beside appellant’s, who looked over, saw the police car, sounded his horn several times and started north. Immediately Wade drove rapidly northward and made a u-turn with the police car blocking appellant’s vehicle “headlight to headlight.” Appellant attempted to drive around the police car but Wade pulled his revolver and ordered appellant out. Appellant complained the driver’s door was stuck and asked permission to get out on the other side. As he did so, appellant fled but was promptly caught by the officer. When appellant was attempting to drive away, Officer Wade saw Curry run from the front door of Vo-gel’s Store ten, perhaps fifteen seconds after the horn sounded.

Appellant first contends the evidence was insufficient to justify the guilty verdict though not denying there was in fact a robbery attempt. At issue is the evidence of appellant’s complicity in that robbery. When examining the record to determine the sufficiency of the evidence, we “view the facts in evidence and the inferences reasonably to be drawn from them in the light most favorable to the State, to determine whether there was substantial evidence to support the verdict.” State v. Williams, 521 S.W.2d 29[1] (Mo.App.1975); State v. Jackson, 519 S.W.2d 551, 556[1] (Mo.App.1975). Though the evidence on this point was circumstantial, we are not unaware “a submissible case may be made on circumstantial evidence. But to warrant a conviction based on such evidence the facts and circumstances must (a) be consistent with each other, (b) be consistent with the hypothesis of guilt, (c) be inconsistent with innocence, and (d) point clearly to guilt as to exclude every reasonable hypothesis of innocence.” State v. Gamache, 519 S.W.2d 34, 40[8] (Mo.App.1975); State v. Grey, 525 S.W.2d 367, 369[1] (Mo.App.1975); State v. Whaley, 512 S.W.2d 431, 433[1] (Mo.App.1974). “In a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, [sic] and they need not demonstrate impossibility of innocence.” State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974), cert. den. 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975). “The scope of our review extends only to a determination of whether there is sufficient substantial evidence to support the verdict. It is not our function or prerogative to weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is, a function of the jury.” State v. Achter, 514 S.W.2d 825, 826[2] (Mo.App.1974); State v. Sherrill, 496 S.W.2d 321, 323[2] (Mo.App.1973). “The law is clear that mere presence of an accused at the scene of an offense is evidence to be considered in determining guilt, but to sustain a conviction and to make a submis-sible case, something more than presence must be shown ... To sustain a conviction, in addition to presence, it is necessary that some form of affirmative participation be shown. There must be some evidence to show that the accused participated, (citing cases) And any evidence showing affirmative participation is sufficient to support a conviction. Proof of conduct before, during or after the offense are circumstances from which participation may be inferred.” State v. Burks, 521 S.W.2d 11, 15[2-6] (Mo.App.1975); see also State v. Jackson, supra at 557[5-7]; State v. Turnbough, 497 S.W.2d 856, 859[8-10] (Mo.App.1973). Finally, though “isolated facts viewed individually may not support more than a suspicion of guilt, ... a conviction may rest upon accumulated, interdependent facts, no one of which alone may create more than a suspicion of guilt.” State v. Jackson, supra at 557[9].

We have in this case a number of individual circumstances which viewed separately would not support the verdict; collectively, however, they present a submissi-ble case that appellant intentionally aided and abetted Ronald Curry in perpetration of an attempted robbery. First, appellant was parked with his motor running, the only car on the street at the time, very near the store where the robbery was taking place; second, appellant’s attention was focused upon the door of Vogel’s Store; third, immediately after appellant saw the police car he sounded his horn loudly several times and attempted to drive away; fourth, a few seconds after the sounding of the horn Curry ran out of the store running first northward toward appellant’s car, then apparently seeing the police car in the process of stopping appellant’s car, ran west across the street thence down an alley; and last, the jury could consider appellant’s two attempts at flight as evidence of guilt. In sum, we believe these facts sufficient for the jury to infer appellant was acting in concert with Curry and the first contention of error is denied.

Appellant’s second point as briefed, concerning the gun’s admission in evidence, fails to comply with the requirement of Rule 84.04(d), V.A.M.R., by not showing wherein and why the court erred; see State v. Foster, 513 S.W.2d 657, 659[1] (Mo.App.1974), nor was this point included in the motion for new trial and therefore is not preserved for review. Examining for plain error we find none since Mr. Vogel testified the gun was that used to rob him; it was thus properly admitted as material evidence.

The next contention urges error in giving the flight instruction. MAI-CR 5.40 promulgated by the Missouri Supreme Court January 13, 1975, effective March 1, 1975, mandating that flight instructions no longer be given, is prospective in operation and the trial here was October 30-31, 1974, prior to the ban. Further, when justified under the evidence in cases tried prior to the rule’s effective date, giving such instruction was not error. State v. Coleman, 524 S.W.2d 27, 31[7, 8] (Mo.App.1975); State v. Connell, 523 S.W.2d 132, 136-7[5-7] (Mo.App.1975).

The final contentions stem from related occurrences and will be treated together. Appellant complains the trial judge coerced the jury’s verdict by (a) giving a “hammer instruction,” and (b) by setting a specific time for the jury to return. The record discloses the jury retired to deliberate about 3:05 p. m. At 7:30 p. m. the court recalled them and inquired of the jury’s division without indication whether the division favored conviction or acquittal. The foreman stated the jury was split “approximately 50/50.” The court then gave additional instruction MAI-CR, 1.10 numbered instruction 11 directing the jury to continue deliberations.

There is nothing in this interchange indicating an attempt to coerce the verdict, and it goes without saying instruction MAI-CR 1.10 is approved as to form.

The jury was returned to the courtroom at 9:20 p. m. and the following occurred:

“THE COURT: Mr. Petty, I will address my question to you and if there are certain remarks that any other of the jurors want to communicate with the court at this time in line with various things that I want to discuss with you, you’re welcome to do it.
I am aware of the fact that you'" have been deliberating for some time. In the instruction I gave you at about 7:30 I think it pretty well indicated what the criteria is with regard to the jury’s extended deliberations.
Let me ask you this, Mr. Petty. Do you feel with some reasonable period of further deliberation the jury might be able to reach a verdict?
MR. PETTY: It is pretty hard to say, you’re honor, but we have made some progress toward a decision which is different than the one we had before. It’s more unanimous one way or another.
THE COURT: Would your feeling be that some further period of deliberations, say a half hour — its now 9:25 by the clock — say until 10 o’clock, would you feel that some resolution might be reached by that period of time?
MR. PETTY: I feel that by that period of time we would have, I believe have, established a resolution one way or another with reference to that fixed point.
THE COURT: Let’s say in 40 minutes, do you think you can agree, or agree that you are disagreed, that you were unable to reach a verdict? (emphasis added)
MR. PETTY: Yes, your honor.
THE COURT: Very well. Then I’ll let you resume your deliberations and will see where we’ve gotten to by 10 o’clock. Thank you very much.”

The jury resumed its deliberations and at about 10 o’clock indicated a decision had been reached. “[A]n inquiry by the trial judge to the jury after it has been in deliberation for a reasonable period of time as to how the members stand numerically, without indicating what party or result they favor, for the purpose of ascertaining whether there is a reasonable probability of an agreement is not coercive per se, but that the issue of coerciveness must be determined from the record of what was said and done at the time (citing cases).” State v. Talbert, 454 S.W.2d 1, 4-5[7] (Mo.1970). From a review of the transcript we find nothing to indicate that the court attempted to coerce a verdict. The court’s question whether they could agree or agree to disagree by a fixed time clearly left open the option of deciding they might be unable to agree. “The fact that a verdict was reached does not tend to establish coercion.” State v. Smith, 431 S.W.2d 74, 86[32] (Mo.1968). Rather it seems the court’s actions assured the jury they would not be compelled to deliberate beyond a reasonable hour, and thus offering a dissenting juror who wished to hold out an opportunity to do so. See State v. Crawley, 478 S.W.2d 344, 346[4] (Mo.1972). Appellant’s Points IV and V are denied.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . Vogel’s Store is located on the east side of Sutter, a north-south street, and the alley Curry ran to lies north of Vogel’s store.

      . A trial court may in its discretion give a hammer instruction. State v. Rojano, 519 S.W.2d 42, 44[9, 10] (Mo.App.1975); State v. Cook, 512 S.W.2d 907, 910[6] (Mo.App.1974); State v. Foster, 501 S.W.2d 33, 38[7, 8] (Mo.1973).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin Lewis LEE, Defendant-Appellant.
    No. 36213.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.
    John M. Walsh, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Chief Counsel, Crim. Div., Robert L. Presson, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. S. Roche, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was convicted of first degree robbery and sentenced to 20 years imprisonment. On appeal, defendant does not challenge the sufficiency of the evidence.

Defendant’s first attack on the trial proceedings is that a police officer testified that defendant had been given his constitutional rights warnings at the time of his arrest, which defendant claims was an improper comment on his right to remain silent. The following testimony forms the basis for the defendant’s argument:

“Q. [prosecuting attorney]: Whom did you arrest?
A. [arresting officer]: The defendant seated there, Floyd Lee Hemphill, James Grimm, and I believe Joseph Black.
Q. After they were arrested, what was the next thing you did?
A. Ordered them against the wall, had them in a position they could not hurt me, advised them of their rights —” (emphasis added)

Defendant’s counsel objected to the last statement on the ground that the mention of advising defendant of his constitutional rights was sufficient to inform the jury that defendant exercised his right to remain silent, and, as such, was an improper comment on defendant’s failure to make a statement. Defendant’s objection was overruled and motion for mistrial denied. The issue, then, on this appeal is whether the arresting officer’s testimony that he advised defendant of his constitutional rights was an impermissible comment on defendant’s right to remain silent. This precise issue was answered in State v. Langeneckert, 532 S.W.2d 477 (Mo.App.1975), and State v. Cheatum, 520 S.W.2d 695 (Mo.App.1975). In Cheatum, the alleged error occurred when the arresting officer testified at trial that on the way to the police station he “read him [defendant] his rights, the Miranda Decision.” The defendant’s counsel in Cheatum made essentially the same objection as made in this case. The court in rejecting the argument held, id. 697:

“A statement of the Miranda rights, without further embellishment, recognizes the right of one under judicial charge to remain silent in the face of accusation . . . . In this case, (the police officer) did not elaborate the Miranda rights; there is no evidence what the appellant understood by them nor, more importantly, any comment that he failed to make response. It would be pure speculation to conclude, as does appellant, that the jury properly understood the warning of rights to require a response from appellant. It is not logical to say that the right of an accused to remain silent is violated by informing a jury that he has been accorded that right.”

State v. Langeneckert, supra, where the arresting police officer acknowledged that he had advised the defendant “of his rights,” is to the same effect as Cheatum. The testimony in this case clearly falls within the holdings of Langeneckert and Cheatum and is even less susceptible to interpretation as a comment on the accused’s right to remain silent. The police officer did not specify that he advised the defendant of his “Miranda rights” as in Cheatum, but, rather, used the term “constitutional rights” without any further specification. We find no interdicted commentary on defendant’s right to silence.

Defendant’s second point on appeal is that the trial court erred in refusing to allow defendant’s counsel to rehabilitate the defendant on the issue of his prior convictions. At trial, defendant elected to testify in his own behalf, and on cross-examination admitted two prior felonies. On redirect examination, defendant’s counsel inquired if defendant had pleaded guilty to the convictions. The prosecutor’s objection to the inquiry was sustained, and defendant contends that since the State was permitted to impeach his credibility by showing prior convictions, he should have been permitted to establish his honesty by admitting guilt to past crimes. This argument is non-meritorious.

By virtue of § 491.050 and § 546.-260 RSMo. 1969, limited inquiry into the defendant’s conviction record is permissible to impeach his credibility when the defendant elects to take the stand. State v. Massa, 512 S.W.2d 912 (Mo.App.1974); State v. Lee, 492 S.W.2d 28 (Mo.App.1973). The extent of permissible explanation by defendant of the extenuating circumstances of his prior convictions and the facts pertaining to those convictions is a matter which best rests in the discretion of the trial court. It is, of course, desirable to forebear any retrial of the former case or the evidence of circumstances surrounding a former conviction. See State v. Jones, 249 Mo. 80, 155 S.W. 33 (1913). We find no abuse of the trial court’s discretion in refusing to allow defendant to testify that he had admitted his guilt by way of explanation of his prior felonies. If the defendant were allowed to explain the circumstances of his pleas of guilty to past convictions, it would follow that the State would be allowed to rebut the explanation, and the entire matter would again be retried, although the prior conviction is legally conclusive on the issue of defendant’s guilt. The fact that the defendant pleaded guilty to a criminal charge would serve no rehabilitative purpose. The following statement in United States v. Bray, 445 F.2d 178, 181 (5th Cir. 1971), is particularly felicitous to this case:

“The probative fact is not whether he denied or admitted committing the offense for which he was convicted, but whether he committed the offense at all. That (the defendant) pled guilty to the prior offenses, of course, does not change the fact that he was found guilty of committing those offenses. Moreover, a guilty plea is often as much a result of an accused’s realistic assessment of his chances to be acquitted should he go to trial as it is a result of any altruistic motive to ‘come clean.’ ”

The judgment is affirmed.

SIMEONE, P. J., and RENDLEN, J., concur.


text:
    STATE of Missouri ex rel. Michael E. CAMPBELL, d/b/a M. E. C. & Associates, Relator, v. Honorable John L. ANDERSON, Judge of the Circuit Court of Jefferson County, State of Missouri, Division No. 3, Respondent.
    No. 37465.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.

      Husch, Eppenberger, Donohue, Elson & Cornfeld, Frank Hamsher, St. Louis, for relator.
    William H. Pickett, David T. Greis, Kansas City, for respondent.
   GUNN, Judge.

Relator Campbell d/b/a M.E.C. & Associates has sought a writ of mandamus commanding the respondent circuit judge to vacate his order setting aside a default judgment which Campbell, as plaintiff, had obtained against Wildwood Lake, Inc., as defendant. We initially issued our alternative writ of mandamus and do hereby make such writ peremptory.

This litigation had its beginning with Campbell filing suit against Wildwood in the Jefferson County circuit court to collect on a contract for advertising services performed by Campbell. Proper service of process was obtained on Wildwood, and from the scanty record on appeal we are able to ascertain that Wildwood failed to respond to a court order directing it to answer interrogatories propounded by Campbell. After notice to Wildwood that a default judgment would be taken against it, on April 21, 1975, default judgment was entered. On May 14, 1975, Wildwood’s attorney filed a motion to set aside the default judgment alleging only the legal conclusion that Wildwood had a good and meritorious defense to the suit. The motion to set aside was thus defective on its face, a fact which Wildwood concedes. No order was issued on the motion to set aside the default judgment, and after 30 days from the April 21, 1975 date of judgment entry, Campbell executed on the judgment. On July 25, 1975, Wildwood, through another attorney, filed an amended motion to set aside the default judgment, and the motion was argued before the respondent trial judge. On September 23, 1975, the respondent trial judge set aside the default judgment. Campbell thereupon sought a writ of mandamus before this court urging that the respondent was without jurisdiction to act on the motion to set aside the default judgment as more than 30 days had elapsed from the date of the default judgment.

Counsel for Wildwood, representing respondent, argues that the due process provisions of the Missouri and United States Constitutions support the trial court’s actions. The basis of respondent’s argument in this regard is that due process requires a hearing on a motion to set aside a default judgment if the motion is filed with the trial court sometime within the 30 day control of judgment period of Rule 75.01; that Wildwood’s amended motion to set aside the judgment, which was filed on September 23, 1975, related back to the defective May 14, 1975 motion to set aside judgment. We find Wildwood’s argument completely untenable.

Initially, respondent, through Wild-wood’s attorney, contends that this court has no jurisdiction in this case because of the constitutional issue raised and that the exclusive jurisdiction is thus reposed in the Supreme Court. Respondent is mistaken in its belief that our mandamus jurisdiction is limited only to those matters in which we would have appellate jurisdiction. Under Mo.Const. Art. V, § 4, we have concurrent jurisdiction with the Supreme Court in issuing remedial writs.

We turn to the issue raised by Campbell as to whether respondent had jurisdiction to set aside the default judgment against Wildwood. He did not. Rule 75.01, which is applicable here, provides in part:

“The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time. Not later than 30 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.”

Recently, in Halmich v. McCullough, 534 S.W.2d 842 (Mo.App.1976), the precise situation confronting us was ruled on. In Halmich, Chief Judge Smith, speaking for the court, said:

“A trial court has 30 days after the entry of a final judgment to vacate, reopen, correct, amend or modify its judgment under Rule 75.01. After that time it loses jurisdiction to do so.”

The authority of the respondent trial court to set aside the default judgment thus ended on May 21, 1975. The court did not act until September 23, 1975. Even if the defective motion to set aside the default judgment, which was filed on May 14, were treated as a motion for new trial, the result would be the same. The motion for new trial was not filed within 15 days after the judgment and was not timely. “Only a timely after-trial motion extends the trial court’s jurisdiction beyond the thirty day limit. Rule 81.05.” Halmich v. McCullough, supra. Thus, even if, as contended by Wildwood, its second motion to set aside the default judgment filed on July 25, 1975 were to relate back to the date of the filing of the defective motion on May 14, 1975— which it does not — it would be futile. A motion not made within the time allotted for a motion for new trial is considered a mere suggestion to the trial court to exercise its discretion to set aside the judgment within the 30 day period specified in Rule 75.01. Such a motion made more than 15 days after judgment will not extend the trial court’s jurisdiction beyond the 30 day period. Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961); Helmich v. McCullough, supra. The trial court’s action in sustaining the motion to set aside Wildwood’s default judgment on September 23, 1975 was clearly in excess of its jurisdiction.

Respondent’s argument, as asserted by Wildwood, that due process requires a hearing on the motion to set aside the default judgment although the motion is filed more than 15 days after the entry of the judgment is not meritorious. Wildwood was given constitutionally adequate notice of opportunity to defend Campbell’s claims before the default judgment was entered. There was compliance with the procedural requirements for obtaining the default judgment as required by court rules, and Wildwood does not challenge that fact. Since there was sufficient compliance with the procedural requirements of the rules relating to the default judgment against Wildwood, the rights to due process of law were not violated. Zurheide-Hermann, Inc. v. London Square Development Corp., 504 S.W.2d 161, 166 (Mo.1973). Wildwood relies on cases holding that when a trial court intends to vacate a judgment on its own initiative, the parties must be given reasonable notice and opportunity to be heard. Clark v. Quality Dairy Co., 400 S.W.2d 78 (Mo.1966); Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (banc 1950); State ex rel. Murphy v. Aronson, 330 S.W.2d 140 (Mo.App.1959). But even these cases recognize the 30 day limit on the court’s ability to act. Clark v. Quality Dairy Co., supra, 400 S.W.2d at p. 84; Albert J. Hoppe, Inc. v. St. Louis Public Service Co., supra, 235 S.W.2d at 349; State ex rel. Murphy v. Aronson, supra, 330 S.W.2d at p. 143.

Inasmuch as we have concluded that the respondent was without jurisdiction to act upon the amended motion to set aside the default judgment, we need not discuss the merits of Wildwood’s contention that it had a meritorious defense and a reasonable excuse for the default. For in the absence of jurisdiction, any proceedings would be void and, therefore, unavailing. Lafayette Fed. Sav. & L. Ass’n of Gr. St. Louis v. Koontz, 516 S.W.2d 502 (Mo.App.1974).

Our alternative writ of mandamus is made peremptory, and respondent is directed to vacate and set aside his order sustaining the amended motion to set aside the default judgment.

SIMEONE, P. J., and KELLY, J., concur.

      . Wildwood does not attack the validity of the default judgment as taken against it on April 21, 1975.

      . All citations are to Civil Rules, V.A.M.S.

      . Rule 75.01 is based in part upon § 510.370 RSMo.1969:
      “Not later than thirty days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.”


author: KELLY, Judge.

text:
    BROWNING FERRIS INDUSTRIES OF ST. LOUIS, MISSOURI, INC. (formerly C & E Hauling Co., Inc.), Appellant, v. BADEN TIRE CENTER, INC., Respondent.
    No. 36816.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.

      Roger M. Hibbits, Florissant, for appellant.
    Austin C. Knetzger, St. Louis, for respondent.
   KELLY, Judge.

This is an appeal from a court tried case wherein the appellant sought to recover of the respondent $4,300.00 damages occasioned when appellant’s 1967 Mack refuse trash collection truck was damaged when a tire loaned to appellant by respondent blew out causing appellant’s truck to run off of the traveled portion of Highway 70 in St. Louis County and into a ditch. Respondent offered no evidence. The trial court rendered judgment for the respondent and after appellant’s motion to amend or to set aside judgment or, in the alternative, to grant a new trial, was denied, a timely notice of appeal was filed.

On appeal, appellant contends that the trial court erred in rendering its judgment in favor of the respondent because the judgment was contrary to the evidence. We affirm.

An appellate court in reviewing a case tried without a jury reviews the ease upon both the law and the evidence as in suits of an equitable nature and gives due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(a) and (b).

Appellant’s evidence, presented through the testimony of Scott Evert, the appellant’s general manager, and Raymond B. Fischer, an employee of the appellant who was operating appellant’s truck at the time of the occurrence in evidence, was that on January 22,1969, appellant, was engaged in the trash disposal business. Respondent was in the business of buying, selling and repairing automobile and truck tires. For some time prior to January 22,1969, respondent had repaired and recapped tires for appellant’s trucks, and prior to that date appellant had delivered some of its truck tires to respondent for repairs. When this was done is not shown in the record. During the afternoon of January 22, 1969, Mr. Fischer was operating appellant’s 1967 Mack refuse trash collection truck in the vicinity of St. Charles Rock Road and Taus-sig Avenue in St. Louis County when one of its front tires became flat. Mr. Evert was notified of this circumstance and went to respondent’s place of business to pick up one of the tires it had there for repair. When Mr. Evert arrived there he was advised by Mr. Crader, respondent’s manager, that the tires appellant had brought there for repairs were not yet repaired but offered to loan Mr. Evert a tire for the truck. Mr. Crader made no representations as to the quality of the tire he was offering to loan to Mr. Evert and when the tire was given to Mr. Evert he could see that it was not a new tire, but was a used tire. The loaned tire was mounted on a wheel and although he could observe the exterior of the tire he could not see the condition of its interior. There was no discussion between Mr. Evert and Mr. Crader about any financial arrangements for the loan of the tire. Mr. Evert took the tire, loaded it into his vehicle and conveyed it to the scene of the flat tire where he and Mr. Fischer installed it on the truck. When this was accomplished Mr. Evert left. Mr. Fischer then resumed driving the truck and after he had traveled a distance of approximately two miles and was proceeding over and along Highway 70 at a speed of approximately 40 m. p. h. the loaned tire blew out and caused the truck to leave the traveled portion of the highway and run into a ditch on the side of the highway, causing damage to the truck. Mr. Evert was summoned to the scene and upon arriving there he inspected the loan tire and observed that it had a hole in the sidewall area which he described as a “blow-out.”

Although neither party requested findings of fact or conclusions of law, the trial court stated in the record that the tire was loaned; that there was no guarantee or warranty; that it was a bailment, without any agreement for a charge; and thereupon held that there was no showing of exclusive management or control or superior knowledge in the respondent so as to support a res ipsa theory of recovery.

In this court appellant takes the position that although its First Amended Petition pleaded res ipsa loquitur and general negligence, the evidence proved a case of strict liability and this court should reverse the trial court and enter a judgment for the appellant.

It is apparent from the record that the trial court conceived appellant’s First Amended Petition to allege a res ipsa theory and at the time he made the finding that the evidence did not support a res ipsa case the appellant’s counsel made no mention that its theory of the case was any other than res ipsa. It is in this court for the first time that this contention is made. It comes too late. Kenner v. Aubuchon, 280 S.W.2d 820, 826[1] (Mo.1955).

Nevertheless, as the Supreme Court of this state said in Katz v. Slade, 460 S.W.2d 608, 611 (1970), the doctrine of strict liability has not been applied to the situation involving mutual benefit bailments by the courts of this state. Appellant has admitted that the relationship between the parties constituted a bailment and we agree. Its own evidence established that no consideration for the loan of the tire had been discussed or even mentioned and nothing was said by respondent’s manager concerning the quality of the used tire being loaned. Nor is there any evidence in the record that as a part of its tire business respondent made a practice of loaning tires to its customers nor to appellant. This was at best a strictly incidental and collateral convenience to the appellant by the loan of a used tire to it under the circumstances.

However, even were this a case of strict liability, appellant, as the plaintiff in the trial court, had the burden of proving that the tire had a defect which caused the blow-out. This, appellant utterly failed to do. In the absence of proof of defect in the loaned tire, appellant argues that the fact that the loaned tire blew out within minutes after it was installed on the truck and had been driven only a distance of approximately two miles is proof that the tire was defective, i. e. only a defective tire would blow out. We cannot accept this thesis because there are many causes for a tire to blow out, only one of which may be a defect in the tire. Appellant produced no evidence whatsoever as to how long the loaned tire was in respondent’s possession; whether there was a patent defect which respondent either had knowledge of or in the exercise of ordinary care could have been discovered by respondent’s inspection of said tire; or whether there was a latent defect known to respondent and not known to appellant or which respondent could have discovered by inspection. Vogelgesang v. Waelder, 238 S.W.2d 849, 855[5] (Mo.App.1951). We do not even know from this record whether the tire was one for a truck of the type it was loaned; whether it would sustain the weight of a truck of this kind with or without a defect. Whether appellant’s truck was empty or weighted with trash is not disclosed. In this void, we cannot find error in the trial court’s judgment and hold, rather, that the trial court reached the correct result.

If, as appellant suggests, its theory was res ipsa, and if we should find authority to extend res ipsa to this type of situation, the trial court here heard the evidence and declined to infer negligence from the evidence before it. Res ipsa merely permits the trier of the fact to find negligence and liability from a given set of facts; it does not compel the finder of the facts to do so. We likewise conclude that under the facts in this record we find no compelling reason to infer actionable negligence on the part of respondent and affirm the judgment of the trial court.

SIMEONE, P. J., and GUNN, J., concur.