text:
    CITY OF KANSAS CITY, Respondent, v. Maurice L. TROUTNER, Appellant.
    No. KCD 28202.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    See also, 524 S.W.2d 63.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, Walter J. O’Toole, Jr., Asst. City Attys., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant was found by a police officer fast asleep behind the wheel of his camper-truck on a private parking lot adjacent to the city street with the engine still active and the transmission engaged in the park position. The head of the defendant was tucked upon his chest, right arm draped over the steering wheel, and his right hand clutched $200 in currency. The defendant awoke only after some physical effort by the officer to revive him to consciousness. Inquiry disclosed that defendant had come from a tavern close by where he had consumed some ten beers during the better part of the day. When he left the tavern, he sensed he was too tired to drive, so he fell asleep in the truck cab until he was aroused by the officer an hour later. A strong odor of alcohol pervaded his breath; his test for balance proved only fair; his eyes were bloodshot and glassy.

The defendant was arrested for being in physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Kansas City Ordinance § 34.116. He was fined $100 in the circuit court and takes this appeal.

The defendant does not challenge that the evidence shows he was intoxicated but only that, for various reasons of law, neither the charge nor conviction may stand.

The defendant was charged under Ordinance § 34.116:

It is unlawful for any person who is under the influence of intoxicating liquor to operate or be in actual physical control of any vehicle within this city.

The information [in the form of a Missouri Uniform Traffic Ticket] under which he was convicted reads:

[The defendant] . . . did unlawfully operate [the vehicle previously described] within the city limits and then and there commit[ted] the following offense: In physical control of a motor vehicle while under the influence of intoxicating liquor in violation of [ordinance] section 34.116 . . .

The defendant makes the point that the information is duplicitous and can be read to charge both the operation and being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The ambiguity of such a statement, he complains, makes defense uncertain and preparation unsure.

As a general principle no more than one offense may be charged in one count, but when the ordinance prohibits several offenses disjunctively or alternatively, but not inconsistently as to substance or penalty, those offenses may be joined conjunctively in one count of an information and that count will be sustained upon proof of any of the offenses. City of St. Louis v. St. Louis Theatre Co., 202 Mo. 690, 100 S.W. 627, 628[1] (1907). If we assume the contention of the defendant that the information accuses him of both the operation and physical control of the motor vehicle while intoxicated, such offenses do not charge inconsistent conduct, and because they derive from an ordinance which describes the offenses disjunctively, the information stands as a valid accusation as to both.

There is moreover, a less strict requirement for pleading a violation of a city ordinance, which is in the nature of a civil proceeding, than for a criminal case. Thus, an information which charges in the language of the ordinance and gives notice to the defendant of the offense is sufficiently definite to bar any subsequent prosecution based upon the same conduct. Kansas City v. Stricklin, 428 S.W.2d 721, 725[10-12] (Mo. banc 1968). The cases cited by defendant on his contention that the information lacks definiteness, Kansas City v. Franklin, 401 S.W.2d 949 (Mo.App.1966) and City of Poplar Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11 (1915), are not relevant. Franklin was overturned because the information did not charge the intoxicated driving was of a motor vehicle nor that defendant was the driver — both requirements of the ordinance. Poplar Bluff sustained an information which charged defendant with keeping a house of ill fame despite the failure of the information to recite the names of those who practiced there.

In practical terms, there can be no doubt that the defendant understood the charge against him and pleaded without uncertainty. At the outset of the trial, the court announced: “[T]he violation is in physical control of a motor vehicle while under the influence of intoxicating liquor”, to which his counsel promptly replied: “[T]he plea, your Honor, is not guilty.”

The second point on this appeal is assignment of error to the denial of the motion to dismiss on the ground that ordinance § 34.-116 violates numerous statutes and provisions of State and Federal Constitutions.

A municipal corporation is required by § 71.010 to conform its ordinances to the state law on the same subject. Another statute, § 82.300, grants municipal corporations of a population class, within which Kansas City falls, to enact ordinances to preserve order, promote the general interest and insure good government. § 304.120 authorizes a municipality to enact traffic regulations consistent with the provisions of that chapter. Finally, § 564.440 provides: “No person shall operate a motor vehicle while in an intoxicated condition.” Violation is punishable as a misdemeanor. Actual physical control of a motor vehicle by a person while intoxicated is not prohibited by the terms of this statute.

A municipal ordinance must be in harmony with the general law of the state upon the same subject, otherwise it is void. Kansas City v. LaRose, 524 S.W.2d 112, 116[6] (Mo. banc 1975). The defendant contends that Ordinance § 34.116 conflicts with statutory § 564.440 because the ordinance proscribes both the operation and actual physical control of a motor vehicle by an intoxicated person whereas § 564.440 prohibits only the operation of the vehicle by a person in such condition. The defendant argues that because the ordinance goes beyond the statute and prohibits conduct not prohibited by statute, a conflict results and renders the ordinance invalid.

A similar argument was made in Kansas City v. LaRose, supra, where the statute interdicted willful interference with a sheriff in the course of his duties, while the ordinance prohibited similar conduct but did not require that the interference be knowing and willful. The court found no conflict, l.c. 117[9]:

Where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot co-exist and be effective.

LaRose found that any violation of the statute would also be a violation of the ordinance, thus the enactments were entirely consistent. That an ordinance enlarges on the provisions of a statute by the exaction of additional requirements creates no conflict, unless the statute is preclusive, an intendment which does not appear from enabling § 564.440. State ex rel Hewlett et al v. Womach, 355 Mo. 486, 196 S.W.2d 809, 815[10, 11] (banc 1946).

The ordinance under which defendant Troutner was convicted treats physical control as a necessary incident of actual operation of a motor vehicle and merely extends the prohibition of the statute to that continuous activity.

The defendant contends also that ambiguity invalidates Ordinance § 34.116 in that the provision which renders it unlawful for an intoxicated person to operate or have physical control of any vehicle “within this city” does not define the sphere of application, whether to the public streets or private property, and if to private property, then the ordinance also violates constitutional principles. We restate these arguments only approximately because they are neither stated nor developed with the required clarity and amplitude.

The contention that the municipality does not have power to extend the sanction of § 34.116 to private property cannot be supported. The question, in different form, was considered in Bellerive Investment v. Kansas City, 321 Mo. 969, 13 S.W.2d 628 (Mo.1929). The court considered the power of Kansas City to enact an ordinance which limited the number of automobiles that could be kept in a building occupied for living or sleeping quarters, and affirmed such an exercise against the contention of constitutional infringement, 13 S.W.2d l.c. 634:

It has been definitely and clearly established and settled . . . that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses . to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants . does not contravene or infringe the several sections of the state and federal Constitutions .

The questions presented, then, are whether § 34.116 fairly refers to the police power of the municipality — that is, does it design to ensure the health, safety and welfare of the city populace — and is there a rational relationship between actual physical control of a motor vehicle on private property by an intoxicated person and the health, safety and welfare of the municipal populace? That answer must be found in the purpose of the legislation and the danger at which it is directed. R. A. Vorhof Construction Co. v. Black Jack Fire Protection District, 454 S.W.2d 588, 595[5-7] (Mo.App.1970).

A motor vehicle is regarded as a source of danger when operated carelessly or by one whose responsiveness is diminished by intoxication. Physical control is a necessary prelude to the operation of a motor vehicle upon the public streets. It is a rational surmise that one in the physical control of a motor vehicle paused temporarily on a private parking area which enters upon and immediately adjoins a public street intends to resume public travel. The exercise of police power which validates the ordinance which prohibits an intoxicated person from operation of a motor vehicle, therefore, validates the prohibition against a person in such condition from physical control of the instrumentality. In each case, the prohibition is directed against the danger to the municipal populace such conduct presents. At the very least, the reasonableness of the application of such an ordinance as § 34.116 is fairly debatable, in which event the judicial judgment cannot serve as a substitute for that of the legislative body charged with that primary determination. R. A. Vorhof Construction Co. v. Black Jack Fire Protection District, supra, l.c. 595[5-7].

The defendant cites two cases, neither of them in point. In State v. Julow, 129 Mo. 163, 31 S.W. 781 (Mo.1895) the court found unconstitutional a statute which made it unlawful for an employer to contract with an employee to require withdrawal by the employee from a trade union and prohibited him from joining such an association. Ju-low is not pertinent because the statute was not an exercise of the police power of the state, that is, there was no purpose to promote the public health, welfare or safety.

The other citation, City of Carthage v. Block, 139 Mo.App. 386, 123 S.W. 483 (Mo.App.1909) involved an ordinance that prohibited the consumption of intoxicating liquor [l.c. 483] “in any stairway, areaway . or on any sidewalk in the city of Carthage”. The court struck down the ordinance because the prohibition extended to private areas not open to the public. City of Carthage, supra, does not bear on the issue here because the rationale of the decision was not simply that the ordinance regulated activity on private property but because the public morals would not be adversely affected by such activity on private property. The analogy this case offers suffers because, arguably, there is a rational relationship between physical control of a vehicle on private property by an intoxicated person and the public safety.

The more proper analogy is between § 34.116 and § 564.440 which enables that ordinance. The statute is not a road regulation but a prohibition against the operation of a motor vehicle by an intoxicated person. State v. Pike, 312 Mo. 27, 278 S.W. 725, 727[4] (1925). Thus, for conviction under the statute there is no requirement of proof that the motor vehicle was operated on a public way. State v. Barker, 490 S.W.2d 263, 270[5] (Mo.App.1973). The ordinance has a similar regulatory scope.

The final contention asserts that the ordinance term “being in actual physical control”, without more definition, is vague and ambiguous and therefore invalid as a standard of conduct. The argument on this point is neither developed nor supported by any authority. Our own courts appear not to have defined the term, but other jurisdictions have done so persuasively. State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958) applied a statute comparable to Ordinance § 34.116 to facts of striking similarity to those we confront. That defendant was found in his automobile partially parked upon a public street. The engine was running; he was slumped over the steering wheel unconscious and intoxicated. The Montana statute under which he was prosecuted rendered it unlawful for any person under the influence of intoxicating liquor “to drive or be in actual physical control of any vehicle within the state”. The defendant contended that the term “actual physical control” was so vague and uncertain in meaning as to be impossible of definition. The court rejected the contention and accorded the statute the common dictionary meaning, l.c. 618[2, 3]:

Using the term in “actual physical control” in its composite sense, it means “existing” or “present bodily restraint, directing influence, domination or regulation.” Thus, if a person has existing or present bodily restraint, directing influence, domination or regulation, of an automobile, while under the influence of intoxicating liquor he commits [an offense] within the [statute].

We adopt the conclusion of the Montana Supreme Court, as have other jurisdictions, that actual physical control of a vehicle results, even though the machine merely stands motionless, so long as a person keeps the vehicle in restraint or in a position to regulate its movements. See, also, Parker v. State, 424 P.2d 997 (Okl.1967); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1975); State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954).

The judgment is affirmed.

All concur.

      . The evidence does not show the appurtenant use of the parking area, but only that it was privately owned. We consider § 34.116 a reasonable regulation to protect, not only persons upon a public street, but also those upon private parking areas used by the public, such as commonly found appurtenant to supermarkets, shopping centers and other commercial enterprises.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Waymon L. BOYINGTON, Appellant.
    No. KCD 28236.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The jury returned a verdict finding defendant guilty of rape but not guilty of sodomy, and fixed punishment at 11 years which the trial court reduced to 6 years. Defendant presents three points on appeal: (1) that the trial court erred in accepting a verdict which is inherently contradictory; (2) that the trial court failed to give a mandatory instruction; and (3) that the admission of samples of defendant’s handwriting was error because the exhibits were hearsay and not within the business records exception. None of these exceptions can be sustained.

The State’s primary witness at trial was the alleged victim. She testified that when she returned home at approximately 10:30 p. m. after an evening of bowling, a man stopped her at gunpoint and forced her to get back into her car. She testified that they drove for approximately five minutes, whereupon he stopped the ear, ordered her into the back seat and removed her clothes. She then testified that her assailant forced her to engage in unnatural acts and sexual intercourse with him. After a forced second repetition of the sodomy and the rape, the two talked for a few minutes and returned to prosecutrix’s house where the man, whom she had discovered to be her neighbor, went inside with her. The two talked for approximately two hours, and then the prosecutrix went into the bedroom, locked the door, and telephoned the police. Defendant left during this time. During her direct examination, the prosecutrix identified a letter which defendant had written her from the Jackson County jail, imploring her not to press charges and offering her a car and $32,000 if she would refrain. The prosecution offered evidence of defendant’s authorship of this letter in the form of testimony of a handwriting expert who identified defendant’s signature by comparison with his signature on commissary slips signed by him in the County jail.

The defense asserted was consent. Defendant testified that he had become acquainted with the prosecutrix two or three months before the alleged rape. He testified that he had had sexual relations with her throughout that period of time and had always paid for the services rendered. On the evening in question, defendant testified that he spent approximately 4½ hours with the prosecutrix, during which time the two had sexual relations, and the prosecutrix asked remuneration in the amount of $25.00. Defendant said that he refused to pay her, whereupon she stated that she would call the police, which she did.

The defendant also called as a witness officer Michael E. Beard of the Kansas City, Missouri, Police Department, who had stopped defendant at approximately 10:00 o’clock on the evening in question, searched him, and found no weapons on his person. The only further defense evidence was the testimony of defendant’s bfother who testified that the prosecutrix had the reputation of being a prostitute. The State presented, in rebuttal, the testimony of a police officer who testified that the police files of known prostitutes included no mention of the pros-ecutrix.

I.

Defendant’s first argument on this appeal is that when the jury concluded their deliberations with a finding that he was guilty of rape, but not guilty of sodomy, they reached a verdict that was inherently inconsistent. The inconsistency claimed lies in the fact that the evidence of rape came from the testimony of the prosecutrix, and that the evidence of sodomy came from the same witness relating the same series of events. Defendant submits that the acquittal upon the charge of sodomy indicates the jury’s doubts touching prosecutrix’s credibility which therefore must also undermine her testimony with regard to the rape, resulting in a lack of substantial evidence to support the conviction.

The underlying premise of this argument, that the verdict on each count must be consistent with the other, does not accord with the case law. State v. Amerson, 518 S.W.2d 29, 33[5] (Mo.1975); State v. Larkins, 518 S.W.2d 131, 137[14] (Mo.App.1974). Moreover, there is no inconsistency here between the conviction for rape and the acquittal on sodomy.

Sodomy differs from rape in that the latter requires penetration of the victim’s sexual organ, whereas the former requires penetration of either mouth or anus. In either case, penetration must be proved. State v. Pettijohn, 541 S.W.2d 74 (Mo.App.1976). With respect to the rape, the prose-cutrix testified positively that penetration did occur. On the other hand, her testimony as to the alleged sodomy can be interpreted as failing to show penetration. Although she testified that defendant demanded an act which would require penetration, yet her testimony of what actually occurred was that she “put my mouth on his penis.” That description falls short of showing the requisite penetration. State v. Pettijohn, supra. Thus, the jury could reasonably refuse to find a commission of sodomy, without in the slightest way impugning its finding that defendant did commit rape.

II.

Defendant argues next that the trial court erred in failing to give a required instruction — MAI-CR 2.70 — because that instruction is mandatory, whether requested or not, whenever separate counts are submitted to the jury for the determination of guilt. The omitted instruction, MAI-CR 2.70 reads:

“The defendant is charged with a separate offense in each Count submitted to you. Each offense and the evidence and law applicable to it should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to another offense charged or for any other purpose.
“You may find the defendant guilty or not guilty on any or all of the Counts submitted against him (, or you may find him not guilty by reason of a mental disease or defect excluding responsibility).
“You should render a separate verdict as to each Count submitted against the defendant.”

Instruction 2.70 is listed among those instructions which are required whether requested or not. The Note on Use No. 1 to that Instruction states:

“One of the group of instructions numbered from MAI-CR 2.70 to 2.77 inclusive should be read to the jury in every case immediately before MAI-CR 2.80 where multiple counts or multiple defendants are involved. These instructions are designed to make it clear that each defendant, each count and each offense submitted against each defendant must be considered separately. In addition, separate verdicts must be returned as to each defendant and as to each count directed to him unless offenses are submitted in the alternative in separate counts.”

Further, Rule 20.02(e) of the Missouri Rules of Criminal Procedure states: “Giving or failing to give an instruction or verdict form in violation of this rule or any applicable Notes On Use shall constitute error, its prejudicial effect to be judicially determined.” Clearly, it was error for the trial court to omit the required instruction; but it is the duty of this court to determine whether the error prejudiced the defendant, having in mind that “any such error must be deemed prejudicial unless the contrary clearly appears.” State v. Billingsley, 534 S.W.2d 484, 485[1] (Mo.App.1975).

In determining whether an instruction or omission of an instruction was prejudicial, all of the given instructions must be read and considered together. State v. Sallee, 436 S.W.2d 246, 252 (Mo.1969). The trial court gave the jury separate verdict directing instructions on sodomy and rape, and each of the two instructions carried a tail directing acquittal if the jury did not find each of the elements beyond a reasonable doubt. Separate converse instructions were given to each verdict director. Also, the jury was given four verdict forms: guilty of rape, not guilty of rape, guilty of sodomy, not guilty of sodomy. Still further, the jury was given two additional verdict forms in case a verdict of guilty on either count were returned with the jury unable to agree on the punishment. Such facts in the case of State v. Johnson, 537 S.W.2d 816, 819 (Mo.App.1976), led the court to a conclusion that there had been no prejudice to the defendant.

Even more tellingly, in this case the jury obviously understood that they could find defendant guilty of one of the offenses and innocent of the other offense, because the jury in fact convicted defendant of rape but acquitted him of sodomy. Therefore, the purpose of MAI-CR 2.70, that is separate consideration of each offense, was accomplished in the case at bar beyond possibility of doubt and there could be no prejudice to defendant.

III.

For his final point, defendant argues that jail commissary order slips, introduced to provide an example of defendant’s signature, were not properly admissible into evidence. Defendant contends that the information contained on the slips was hearsay and the issue to be proved by their introduction did not fall within the parameters of the business records exception. The gist of the argument is that without these handwriting samples, the State’s handwriting expert had no basis upon which to identify the signature to the letter received by the prosecutrix from the County Jail as being in defendant’s handwriting.

The foundation for the admission of the commissary slips into evidence was laid by the testimony of Carol Shanahan, criminal records clerk in the Department of Corrections jail unit. She testified that she maintains direct supervision, control, custody and care over commissary records. Money which is deposited in an inmate’s account may be withdrawn for commissary purposes upon the inmate’s signing a commissary slip. The accuracy of the commissary slips is insured by a procedure in which, if there is any question, jail personnel go back and compare the signature on the commissary slip with that on the general ledger sheet, which is signed by the inmate when he is originally booked in. This signature comparison is the method by which jail personnel insure that the person whose account is being depleted is the person who ordered the goods as specified in the commissary slip. Ms. Shanahan testified that this is the regular course of business for every inmate and that the commissary slips in question were double checked for accuracy and honesty through the system just described.

Defendant admits that the commissary slips themselves are business records within the purview of the Missouri Business Record Act, §§ 490.660 to 490.690 (all statutory references in this opinion are to RSMo 1969). The thrust of his argument, however, is that the portion of each commissary slip bearing the signature should not have been admitted because there was no proof that the person who verified the authenticity of the signature was qualified to give such an opinion. In other words, the argument is that the commissary slips were not competent proof of what they were introduced to prove: a genuine example of defendant’s signature. He also argues that because Ms. Shanahan was not the person who verified the signatures on the commissary slips, and there was no evidence as to precisely who had done so, the introduction of these exhibits was based on hearsay. These objections are properly considered together because although they allege different legal consequences, they are premised upon the same claimed defect: that the source and the recorder of the information which was entered on the records was unknown and possibly unqualified.

In order to qualify for admission in evidence under the Uniform Business Records as Evidence Law, which has been adopted in Missouri, “[a] record of an act, condition or event” must not only be “made in the regular course of business” but it also must be shown, to the satisfaction of the court, that “the sources of information, method and time of preparation were such as to justify its admission.” § 490.680. Thus, for an item contained in a report to be admissible, “it must be based on the entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant.” Mucci v. LeMonte, 157 Conn. 566, 254 A.2d 879, 881 (1969). The commissary slips were verified and entered into the jail records by the jail personnel who also compared the signature to the genuine signature of the inmate on the general ledger sheet. Thus the commissary slips qualify so far as this requirement is concerned.

As pointed out by defendant, another criterion developed by the courts to determine the admissibility of a business record relates to the qualifications of the person who made the record. If the content of the record could not have been testified to by the reporter had he been offered as a witness present in court, then that content will not be admitted into evidence as a part of a business record. See Mucci v. LeMonte, supra; Loper v. Andrews, 404 S.W.2d 300 (Tex.1966); West v. Fidelity-Baltimore National Bank, 219 Md. 258, 147 A.2d 859, 863 (1959). This requirement poses no barrier to admission of the records in question, however, because the member of the jail staff who accepted each commissary slip could have testified to the genuineness of defendant’s signature thereon. No particular expertise is required in order to form an opinion of handwriting. As stated in III Wigmore on Evidence § 708 at 40 (Chadbourn Rev.1970): “In theory any person able to read and write is sufficiently qualified, as to expert capacity, to form an opinion of handwriting . . ..” To the same effect: McCormick on Evidence § 221, at 547 (2d Ed. 1972). See also McCormick, § 224, which states that where a public office is the depository of official or private papers, proof that the document has come from that custody is usually accepted as sufficient authentication “if it appears that the official custodian has a public duty to verify the genuineness of the papers offered for record or deposit and to accept only the genuine.” In this case the jail personnel in charge of making sure that the signatures on the commissary slips were genuine, relied not on memory but on comparison with an example of the inmate’s signature.

Defendant cites authority which establishes one further criterion for admissibility. The writing sought to be admitted as a business record must relate to a condition, act or event which is an integral part of the business activity. A writing which does not pertain to a matter “in which the business was a direct participant, but to some incident, circumstance, or activity outside that business,” is not properly admissible as a part of the business record. Standard Oil Co. of Calif. v. Moore, 251 F.2d 188, 213 (9th Cir. 1958), cert. den. 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; Bisno v. United States, 299 F.2d 711, 718 (9th Cir. 1962). It was important for the business purpose for which the commissary slips were kept that the signatures thereon be genuine. The failure to catch a forged signature would mean that the wrong account would be debited. Special comparison procedures were devised to insure the validity of signatures on the commissary slips.

The Business Records as Evidence Statute vests considerable discretion in the trial court to pass upon the admissibility of documents. Thomas v. Fred Weber Contractor, Inc., 498 S.W.2d 811, 813 (Mo.App.1973); State v. Jones, 518 S.W.2d 322, 325 (Mo.App.1975); State v. Triplett, 520 S.W.2d 166, 168 (Mo.App.1975). We cannot say that this discretion has been abused with regard to admission of the commissary slips into evidence in the case at bar. Under Section 490.640, a disputed writing may be compared with any writing proved genuine to the satisfaction of the judge. The fact that a collateral issue is raised concerning the genuineness of the signature offered for comparison does not bar its admission. The statute requires only that the judge be satisfied that the comparison signature is genuine, but the conclusion of the judge does not bind the jury whose duty it is to determine for themselves the weight to be accorded to the evidence. State v. Pace, 269 Mo. 681, 192 S.W. 428, 430-31 (1917). There was no bar to defendant offering counter evidence to show the commissary slips were not genuine, if the signatures were in fact forged. The treatment of the handwriting samples fully comported with Missouri law as did the admission of the sample as a part of a business record.

Affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. John FRANCIS, Appellant.
    No. KCD 28322, KCD 28324.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Application to Transfer Denied March 14, 1977.

      J. Arnot Hill, Hill & Gamm, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (hereafter defendant) was charged in separate indictments with Murder First Degree and with Robbery First Degree, arising from the death by gunshot of Russell Mestdagh, a member of the Kansas City, Missouri police department, during the course of an armed robbery of Traxler’s Pharmacy, 59th and Holmes, Kansas City, Missouri, on January 2, 1975.

The separate indictments were consolidated for trial by agreement of the defense and the state. A jury found the defendant guilty of Murder First Degree and assessed his penalty at life imprisonment. In a separate verdict, the jury found the defendant guilty of Robbery First Degree, but were unable to agree upon the punishment. After an unavailing motion for a new trial, the defendant was sentenced to life imprisonment on the murder charge, and a term of forty (40) years on the robbery charge, such sentences to run consecutively.

The defendant raises three assignments of error on this appeal. First, he asserts that the trial court erred in failing to provide the defendant with a panel of 47 prospective jurors, as required by Section 546.-180 RSMo 1969. Second, he charges that the trial court erred in overruling his motion for acquittal at the close of the evidence on the charge of murder in the first degree because the evidence did not establish that defendant shot and killed Officer Mestdagh. Third, he asserts that the court erred in failing to dismiss the entire jury panel upon motion by defendant following an incident during voir dire examination of the panel where the trial court, in an attempt to answer a prospective juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.

Section 546.180 RSMo 1969, provides that in all cities having a population of over one hundred thousand inhabitants, a defendant indicted for a criminal offense shall be entitled to peremptory challenges of jurors, as follows:

“2. (l)(a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty and no more;

The statute further provides:

“(2) In all such trials, the state shall be entitled to the following number of peremptory challenges:
(a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of fifteen, and no more; * * ”

This statute, of course, was applicable to the jury selection proceedings in the trial of the defendant. However, the record shows that the original panel of prospective jurors called in the trial of defendant numbered 45, and six of these were excused for cause during voir dire examination, leaving a ve-nire panel for the exercise of peremptory challenges of 39. No additional persons were called (nor were such requested) to bring the panel to the number of 47, so that the defendant and the state could exercise the full statutory peremptory challenges afforded by Section 546.180.

From the remaining panel of 39, a jury of twelve and one alternate was selected to try the defendant. The record does not reveal how the peremptory challenges were allocated between the defendant and the state, but it is obvious that the defendant could not have been afforded his statutory peremptory challenge to 20 of the prospective jurors and therein rests his complaint in Point I of this appeal.

However, the defendant’s trial counsel (not his counsel on this appeal) made no objection to the size of the original venire panel of 45; made no request initially or after it was reduced by excuses for cause to 39, that it be augmented by calling additional persons as prospective jurors; made no objection to any reduction of the number of peremptory challenges afforded him; made no objection as to the final jury because of the selection process employed; did not at any time move to quash the venire panel; and, did not raise this point in his motion for a new trial. His point as to the method employed in the selection of the trial jury is raised for the first time on this appeal, and thus comes too late.

Since the first year of the present century, the rule governing the situation here presented has been clearly stated and often iterated. In State v. Bell, 166 Mo. 106, 65 S.W. 736, 737 (1901), it was said:

“ * * * The matter of failing to provide a complete general panel before calling on a party defendant to make his challenges is a matter of exception, pure and simple; and if such party fail to except at the proper time, and to properly preserve such his (sic) exception, any redress for him is out of reach of judicial interposition * * * ”

In State v. Nichols, 165 S.W.2d 674, 675[7] (Mo.1942), it was held that a defendant’s right to a statutory venire was a right which could be waived and that a failure to object to an inadequate venire until after a jury was sworn constituted such a waiver.

The problem presented is one of error and exception “pure and simple” and not of jurisdiction.

See also: State v. Donnell, 387 S.W.2d 508, 514[10,11] (Mo.1965); State v. Cox, 392 S.W.2d 265-266[1] (Mo.1965); State v. Thomas, 433 S.W.2d 537, 540[5] (Mo.1968); State v. Turnbough, 498 S.W.2d 567, 570[1] (Mo.1973); and, State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975).

The cases relied upon by defendant [State v. Kinne, 372 S.W.2d 62 (Mo.1963), and State v. Williams, 515 S.W.2d 544 (Mo.1974)] are distinguishable in that in each the defendant lodged proper and timely objections to the lack of a statutory venire and, upon request, the courts refused to bring the venire up to the statutory number.

Defendant’s first point on appeal is ruled against him.

At the close of the state’s evidence, the defendant filed a Motion for Directed Verdict of Acquittal, which generally attacked the state’s case as supported by insufficient evidence on both the charge of first degree felony-murder and the charge of robbery first degree. The trial court overruled this motion. The defendant then testified in his own behalf and rested.

The defendant’s second point on this appeal, as above noted, is that the court erred in overruling his motion “for a judgment of acquittal at the close of all the evidence” (emphasis supplied) on the charge of murder in the first degree. The record of the trial before this court fails to reveal that such a motion was filed by the defendant or adversely ruled by the trial court. However, since the omission from the record may have been the result of a preparation mistake, and in view of the severity of the sentences and the fact that the state has joined issue in its brief on the assignment of error, it will be briefly considered.

Since this second point goes to the sufficiency of the evidence to support the murder charge, this court must review the evidence in its light most favorable to the state to support the conviction and all evidence and inferences to be drawn therefrom to the contrary must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975); State v. Jones, 524 S.W.2d 186, 187[1] (Mo.App.1975).

When so viewed, the evidence produced by the state presents facts from which the jury could reasonably find that the defendant and one Eugene Minor, and a third person, Kenneth Johnson, acting in concert and with a common purpose, robbed the proprietor of Traxler’s Pharmacy by putting Traxler and some store customers in fear by .means of at least one firearm on January 2, 1975, at about 3:00-3:30 p. m. The jury could further reasonably find from the evidence that the defendant and Minor had visited the location of the Traxler Pharmacy at 59th and Holmes, Kansas City, Jackson County, Missouri, on the forenoon of that day and had returned there just before the robbery in a blue van motor vehicle, apparently with Kenneth Johnson, which was parked beside the Traxler Pharmacy and in which van latent fingerprints of the defendant were later discovered; that Minor and the defendant entered the store and at gunpoint forced Traxler and a customer to lie on the floor; and, the two black men thereupon looted the cash register and collected other drugs and sundries which were placed in a pillowcase. During the course of these activities, a young boy and a lady customer entered the store, and were also forced to lie on the floor.

During the course of the robbery, the victim testified that the defendant shouted a warning that the police had arrived, and he and his companion ran to the storeroom at the back of the pharmacy.

Thomas M. Gaugh, a member of the Kansas City, Missouri police department, and his partner, Russell Mestdagh, were patrolling in an unmarked police car and received an alert that a robbery was in progress at Traxler’s. Upon arrival at the store, they entered the front door but immediately Gaugh went to the outside back of the premises to prevent an escape from the back door, and Mestdagh proceeded to the back storeroom. Gaugh at the outside rear door (which he found locked from the inside) said he heard loud noises and commotion from the back of the building followed by three shots. Traxler and his customers within the store also heard this, and thereupon, the two black men emerged from the back room and left the store by the front entrance.

The defendant left the store first and was immediately apprehended by another arriving police officer and placed in a “frisk” position against the building. Minor then emerged from the store with a gun in hand and fled. The officer, holding the defendant in custody, thereupon started to pursue Minor on foot and overtook him and placed him in restraint. In the meantime, the defendant ran east on 59th Street to Rockhill Road, where he attempted to commandeer the vehicle of a passing motorist. During these attempts, however, he was placed under a citizen’s arrest by one Cummins, also a passerby, who was employed by the Automobile Recovery Bureau. Cummins handcuffed the defendant and returned him to the scene of the robbery.

Residents of the neighborhood testified that during this period of excitement, the blue van previously parked beside Traxler’s Pharmacy was driven away, presumably by the third member of the trio.

Officer Mestdagh was found in the rear storeroom of Traxler’s Pharmacy with multiple gunshot wounds, from which he died that same afternoon. There was state’s evidence that some of his wounds, and perhaps the fatal one, resulted from shots from his own service revolver, although this evidence is somewhat obscure.

While in custody of the police later that day and the following morning, the defendant gave many divergent oral accounts of his connection with this matter. Emerging therefrom, however, is the fact that he admitted his presence in the area of Traxler’s Pharmacy at the time of the robbery, and his participation to various degrees in its perpetration. He denied, however, that he was armed and that he shot Officer Mes-tdagh. On the witness stand at trial, he denied any connection with the robbery, but stated that he had stopped at Traxler’s to call his girl friend and became an innocent bystander in the events above summarized.

On this appeal, the thrust of his second point centers exclusively on the argument that he cannot be convicted of first degree felony-murder for the reason that the state’s evidence “did not establish that defendant shot and killed the victim of the alleged murder.”

It is true that there was no direct evidence that the defendant actually fired one or more of the shots that resulted in the death of Officer Mestdagh while he, the defendant, and Minor, were in the back storeroom at Traxler’s Pharmacy, but such proof was not necessary to support the conviction once the fact of defendant’s participation in the robbery was established.

Following earlier authorities, this principle is stated in Dickson v. State, 449 S.W.2d 576, 581[5] (Mo.1970):

«* * * ‘The defendant’s connection with the crime was through his association with the other men in the attempt to rob the bank, in which attempt the murder was committed. It was murder in the first degree if he was there with the others engaged in that enterprise’ even though there was no proof of a conspiracy or that he fired a shot. * * * ” (Emphasis supplied)

See also: State v. Paxton, 453 S.W.2d 923, 925[2] (Mo.1970); State v. Ford, 495 S.W.2d 408, 416[10] (Mo. banc 1973); Hayes v. State, 501 S.W.2d 508, 512[12, 13] (Mo.App.1973); State v. Williams, 522 S.W.2d 327, 329[2] (Mo.App.1975); State v. Johnson, 524 S.W.2d 97, 99-100[4] (Mo. banc 1975).

There is no merit to defendant’s second point.

The defendant’s third and final point hinges on an incident which occurred during voir dire examination of the prospective jurors. The record reflects the following:

“MR. DAKOPOLOS: (Prosecutor) * * * Under the crime of Murder in the First Degree our State Legislature has provided that that crime shall be punished by life in prison. That’s the only sentence that can be given by a jury on the crime of Murder in the First Degree, should the defendant be found guilty.
I would ask if any members of the jury panel have any reservations or argument or quarrel with this punishment as has been provided by the State Legislature?
JOSEPH L. STROBL: (Venireman-raising hand.)
MR. DAKOPOLOS: Yes, Mr. Strobl?
JOSEPH L. STROBL: What is considered life imprisonment? Fifteen years?
MR. DAKOPOLOS: Well, unfortunately I’m not permitted to interpret that and I don’t think the court is either.
THE COURT: Well, not specifically. The law in Missouri however is, I think I probably can tell you this much, anyone being confined in the custody of the Missouri Department of Corrections may be paroled from custody whenever the Department of Corrections concludes that it • should be done. It’s up to them. Nobody else has any control over it.
MR. RODARTE: (Defense counsel) I have a comment to make to the Court whenever you are finished, Judge.

(COUNSEL APPROACHED THE BENCH AND THE FOLLOWING PROCEEDINGS WERE HAD:)

MR. RODARTE: Your Honor, at this time I’m going to move that you dismiss the entire panel for the reason that the inquiry that was made by Mr. Strobl was not responsive to the question submitted by the prosecuting attorney and that his question has influenced and prejudiced the entire panel in that by his commenting — or his question raised an issue that perhaps a life sentence would only carry a term of fifteen years.
THE COURT: Well, the fact of the matter is that’s the truth.
MR. RODARTE: Well, Judge, I know that, but I don’t think that this would influence — I think that this would influence this panel and the members that are selected from that in determining what sentence that they should give, not only on the Count of Murder but also on the other count.
THE COURT: Overruled.

(THE PROCEEDINGS RETURNED TO OPEN COURT.)

MR. DAKOPOLOS: Mr. Strobl, with the information you received, would that have any bearing on your ability to sit as a juror in this case?
MR. STROBL: What goes through my mind, counsel, at the present time is a man is convicted of armed robbery and he can get a bigger sentence and have to serve a bigger sentence than one for murder.
MR. DAKOPOLOS: Well, that may be true and I’ll get into that in just a minute, but my question is right now, does the fact that Murder in the First Degree in Missouri carries a mandatory sentence of life imprisonment cause you any problem in sitting as a juror in this particular case?
JOSEPH L. STROBL: Yes, sir, it would for this one reason that while the judge can sentence a man to life imprisonment you say the pardon board can let him out in two years, and that’s what you told me. Now, if I read you wrong let me know.
THE COURT: That’s possible. It doesn’t happen but it’s possible.
JOSEPH L. STROBL: It’s possible. There is always the possibility?
THE COURT: Oh, yes. Anything is possible, I suppose.
MR. DAKOPOLOS: Now, knowing that, and keeping in mind that I‘m going to talk about robbery in just a minute, Robbery in the First Degree, knowing what has been discussed about Murder in the First Degree, does that pose any problem to you sitting as a juror in this particular case?
JOSEPH L. STROBL: No.”

No further discussion of this subject appears during voir dire, no further objection to the panel or request for its discharge was made, and no request of the court to excuse Joseph L. Strobl for cause was made. He was not, however, selected as one of the twelve jurors to try the case, although it does not appear which party exercised a peremptory challenge resulting in his elimination from the jury.

The defendant’s Motion for a New Trial included the following:

“3. That the Court erred in overruling defendant’s motion for a mistrial and discharging the jury panel when a member of said panel gave unresponsive answers to inquires (sic) made by the prosecuting attorney and made statements that prejudiced the other members of the jury panel regarding the length of punishment for murder and robbery.”

The defendant’s brief couches this assignment of error in the following terms:

“HI
The court erred in failing to dismiss the entire jury panel upon motion of the defendant after the court, in an attempt to answer a juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone being confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.”

It is true, as the state contends, that the review of an alleged assignment of error in this court is limited to the objections made at trial and preserved at that level in a motion for a new trial. State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. Lang, 515 S.W.2d 507, 511[8] (Mo.1974); State v. Davis, 482 S.W.2d 486, 489[6] (Mo.1972); State v. Johnson, 483 S.W.2d 65, 67, 68[5] (Mo.1972), and cases cited therein.

While the grounds for the objection and request for discharge of the venire panel, the reason stated in defendant’s motion for a new trial and point three of his brief are couched in somewhat varying terminology, it is clear that the essence of his complaint throughout is that the above-quoted colloquy during the voir dire examination of venireman Strobl somehow prejudiced the defendant’s right to a fair and impartial trial before the jury ultimately selected.

This court is not unmindful of those authorities that have held it to be improper for a prosecutor to argue to a jury the possibility of a prisoner parole in order to enhance a penalty, State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296[6] (1938); 23A C.J.S. Criminal Law § 1107, page 208; or for a trial judge to instruct a jury during its deliberations that a sentence imposed by its verdict may be shortened by means of parole, State v. Cornett, 381 S.W.2d 878, 881[2] (Mo. banc 1964), and cases cited therein. The parties do not cite, nor has independent research disclosed, any decision applying this rule to incidents such as the voir dire examination of venireman Strobl. Generally, it is the rule that a trial judge is vested with broad discretion in controlling voir dire, and his conduct and rulings will not be disturbed unless a clear, manifest and prejudicial abuse of that discretion appears. State v. Yowell, 513 S.W.2d 397, 403[4] (Mo. banc 1974); Barnes v. Marshall, 467 S.W.2d 70, 76[3] (Mo.1971). Further, a real probability of injury and prejudice to the complaining party must appear. State v. Scott, 515 S.W.2d 524, 527[1] (Mo.1974); State v. Clark, 509 S.W.2d 740, 742[1-3] (Mo.App.1974).

While it is not recommended that trial courts indulge in colloquies such as revealed in this record, during the voir dire of Mr. Strobl, the defendant has failed to carry his burden to establish that he was in any way injured or prejudiced thereby. The trial court here said nothing that would indicate any personal belief that the defendant was guilty; the state presented a strong, convincing case to support its charge of first degree murder against the defendant; and, the jury having found him guilty of that offense, had no choice under the applicable statute but to assess his punishment at imprisonment for life. That the voir dire incident did not prejudice the jury against the defendant in its consideration of the first degree robbery charge as to the assessment of punishment is apparent from the fact that it was unable to agree as to the punishment on such charge and left the assessment thereof to the trial judge.

The three authorities relied upon by defendant in support of this point are inappo-site to the case here under review. In State v. Castino, 264 S.W.2d 372, 375[3] (Mo.1954), the court held it was reversible error for a trial court to advise a panel during voir dire that a person originally jointly charged with the defendant had pleaded guilty to the offense. In State v. Martin, 506 S.W.2d 473, 474[4] (Mo.App.1974), the trial court told the venire prior to voir dire that the defendant was charged under the Habitual Criminal Act. In State v. Fenton, 499 S.W.2d 813, 816[8] (Mo.App.1973), the prosecutor during opening statement advised the jury that defendant’s accomplice had pleaded guilty to the charge. The defendant’s third point is ruled against him.

The judgment is affirmed.

All concur.

      . The customer positively and unequivocally identified the defendant as one of the two robbers, both at a police lineup and in the trial, and Traxler did likewise as to Eugene Minor. The customer had opportunity and conditions during the robbery to make such identification, and stated that the defendant was carrying a handgun while she observed him in the store.

      . The young boy also positively identified the defendant as one of the robbers.


author: SHANGLER, Presiding Judge.

text:
    FRANK HORTON & COMPANY, INC., a corporation, Appellant, v. George DIGGS, Respondent.
    No. KCD 28349.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Boyer & Ratzlaff, John R. Miller, Edison Kaderly, Lamar, for appellant.
    Blanchard, Van Fleet, Martin, Robertson & Dermott, Karl W. Blanchard, Ronald E. Mitchell, Joplin, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff corporation seeks damages for injuries to its vice-president, Estel Gideon, then in the operation of a company truck and injured by collision with the defendant. Count I of the petition alleged that the corporation was engaged in the installation of underground communications cables by contract and that in the conduct of such affairs, vice-president Gideon was in charge of work crew operations. It was further alleged that the injuries kept Gideon from this work so that he could not recruit and field an additional crew necessary to complete installations already under contract. The pleading concluded with the allegations that no other employee was qualified to perform these services which went undone with a resultant loss of profits to the corporation of $150,000.

The defendant moved the dismissal of this pleading for failure to state a claim for relief on the grounds that (1) a claim by a master for the loss of services of the servant does not exist, and (2) that the provisions of The Workmen’s Compensation Law [Chapter 287] preclude such an action.

The trial court dismissed Count I and retained jurisdiction over Count II of the petition, which remained.

The recitations of Count I are the old pleading, per quod servitium amisit, which allowed a master to recover for the loss of the services of a servant injured by ill use or other trespass. This common law writ is mentioned in an early Missouri case [Dunn v. Cass Avenue and Fairgrounds Railway Company, 21 Mo.App. 188, aff’d 98 Mo. 652, 11 S.W. 1009 (1886)] but our courts have not considered, hitherto, whether our jurisprudence allows such a remedy. Those sparse decisions which deal with the question, with good reason, consider the doctrine anomalous to contemporary life and, in the absence of a domestic relation, refuse to extend recovery to a master for the loss of services of his employee from a negligent injury by a third person.

The doctrine which allows a master an action for the loss of services of the servant — to the extent that it survives at all— reflects a time when service was a status. Prosser on Torts, § 129 (4th ed. 1971); 57 C.J.S. Master and Servant § 622. The lineage of this remedy commences in the early Roman law of persons which gave to the paterfamilias sway over the household, children, servants and slaves alike, who were so far identified with the domestic head that an injury to any of them gave rise to an action to the paterfamilias, who alone was entitled to recovery. This idea was taken bodily into the English common law by Bracton so that a master had both a direct action for injury to a servant or another under his power, as well as an indirect action for the consequential loss of his services. Sayre, Inducing Breach of Contract, 36 Harvard L.Rev. 663 (1923). Thus, the common law treated a servant as hardly more than a chattel of the master. Inland Revenue Commissioners v. Hambrook, 3 Week L.R. 643, 3 All Eng 338 (2 QB 641 1956); 57 A.L.R.2d 790.

The realities of our day are different. A servant no longer regards himself as his master’s man, but as an independent person who bargains effectively for his employment conditions. Seavey, Liability to Master for Negligent Harm to Servant, Wash.U.L.Q., p. 309 (1956). Thus, the relation of master and servant no longer rests on status but on contract.

A systematic history of the development of this distinctive cause of action appears in Inland Revenue Commissioners v. Hambrook, supra. In that case the Crown sought to recover for the loss of services of a civil servant which resulted from negligent injury inflicted by the defendant. The court traced out the progression of the per quod servitium amisit remedy in the early common law which treated a servant as the property of the master to the eighteenth century when the action per quod became confined to menial servants, those who lived in the household of the master as part of the family. The court concluded that an action which treats a servant as a chattel was anomalous and should not be extended, but confined to domestic relations where a member of the household is injured.

This is the tenor of those cases which have considered the question seriously. Thus, Nemo Foundations, Inc. v. New River Company, 155 W.Va. 149, 181 S.E.2d 687 (1971) denied an employer an action for damages against a tortfeasor for negligent injury to his employee. That court adopted the rationale of Inland Revenue Commissioners that such an action by a master is anomalous and should be confined to menial servants who live as part of the family, and not extended to other employers who keep no household. See, also, Snow v. West, 250 Or. 114, 440 P.2d 864[1] (banc 1968); Steele v. J. and S. Metals, Inc., 32 Conn.Sup. 17, 335 A.2d 629 (1974); Ferguson et al. v. Rensselaer County Air Park, Inc. et al., 75 Misc.2d 818, 348 N.Y.S.2d 943; Chelsea Moving & Trucking Company v. Ross Towboat Company, 280 Mass. 282, 182 N.E. 477 (1932); Burgess v. Carpenter, 2 S.C. 7 (1870).

The several cases plaintiff cites do not bear on the contention made on appeal that the common law of this state includes the per quod servitium amisit remedy. The only Missouri case which mentions that action, Dunn v. Cass Avenue and Fairgrounds Railway Company, 21 Mo.App. 188 (1886), was a claim by a father for negligent injury to his son. The plaintiff failed to prove a submissible case and the cause was reversed. The court then considered the questions which might arise on retrial and advised Q.c. 204] that “[t]he right to recover for the loss of services is predicated on the relation of master and servant, and not on the relation of parent and child”. The court went on to point out that the general rule of English law in all such actions per quod required the declaration to allege, and the evidence to prove, a loss of service by the master [parent] — conditions not met in the first litigation. The cause of action considered by that opinion, of course, was by a father for negligent injury to his minor child and the allegation of the loss of services of a servant was made only to comply with the fictive formalities of the writ, not recognition of the cause of action for an employer, as the plaintiff here contends.

The technical requirement of pleading was allowed some vagary [Scamell v. St. Louis Transit Co., 103 Mo.App. 504, 77 S.W. 1021, 1023[4] (1903)] and was discarded altogether in Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960 (1949) which recognized that [l.c. 962]:

. the true ground of recovery by a parent in such cases arises from the reciprocal duty of the child to render to its parents such services or earnings as the latter may reasonably expect of it . [and not] on a false and fictitious relationship of master and servant.

Two other cases cited by the plaintiff on the contention that a master has a cause of action for negligent injury to his servant have even less relevance. Johnson v. Harris, 187 Okl. 239, 102 P.2d 940 decided that a statute which gives a husband, parent, guardian or master a cause of action for the seduction of a wife, daughter, orphan sister or daughter did not deny to the female the cause of action in her own right. The right of a master to sue for negligent injury to a servant which the case expresses was not on a principle of the common law, but was enabled by statute, a consideration not present here. Earley v. Pacific Electric Railway Company, 176 Cal. 79, 167 P. 513 (1917) also was based on statute, not the common law, so those comments are extraneous to the claim plaintiff makes here, and so also Darmour Productions Corp. v. Herbert M. Baruch Corp., 135 Cal.App. 351, 27 P.2d 664 (1933). Jones v. Waterman SS Corp., 155 F.2d 992 (3rd Cir. 1946) and Houston Belt & Terminal Railway Company v. Burmester, 309 S.W.2d 271 (Tex.Civ.App.1957) were claims under maritime law for maintenance, cure and wages paid by the employer to a seaman as the result of negligent injury by third persons. Jones allowed recovery on the theory of indemnity and not on the right of an employer to the loss of services, and observed that the distinctive relation of ship owner to seaman was more akin to that of father to child than of master to servant. Houston Belt denied indemnity in the absence of such a right given by contract or statute; the court did not reach whether under the law of the state an employer could recover for loss of services of his employee.

The recent decisions on the subject [except for those few still bound by statute] reject the common law view which treats a servant as a chattel of the master and consider, instead, that the relation between them rests on contract. Accordingly, the tort action per quod servitium amisit for the loss of services by a master for negligent injury to the servant has given way to the tort action which allows a party to a contract to recover for the malicious interference by another with performance by the promisor. This later development of the law, as well as the common law per quod for loss of services, derive from the same concept of status. Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663 (1923); Prosser on Torts, § 129 (4th ed. 1971). The policy difference between them is the assumption, on the one hand, of a condition of economic servitude, and an employment freely contracted, on the other. The juridical difference between them is that the common law action per quod is a tort for negligent injury, while interference with contract properly pleads an intentional tort. Clark-Lami, Inc. v. Cord, 440 S.W.2d 737, 741[8] (Mo.1969); Restatement of Torts, § 766.

We conclude that the common law remedy per quod servitium amisit has not been given effect in the courts of this state and to do so now would contradict an enlightened public policy. To the extent that the petition attempts a recovery for the corporate employer-plaintiff on that theory, the allegations fail to state a justiciable controversy. If, nevertheless, we construe the petition as a statement for the interference by defendant with the contract of employment between Gideon and his employer, the element of malice or intention to do wrong is absent and the petition fails again. Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976, 980[4] (1953); Restatement of Torts, § 766.

The law does not protect a contractual interest from mere negligent interference because to do so would unduly burden freedom of action and impose too severe a penalty for inadvertence. Phoenix Professional Hockey Club, Inc. v. Hirmer, 108 Ariz. 482, 502 P.2d 164, 165[1-3] (banc 1972); Steele v. J. and S. Metals, Inc., 32 Conn.Sup. 17, 335 A.2d 629, 630[2] (1974). So, also on this principle, an employer may recover loss of services from the wrongdoer for the intentional harm done the employee, but not if the injury is done through mere negligence. 1 Harper & James, Tort, § 6.10; Seavey, Liability to Master for Negligent Harm to Servant, Wash.U.L.Q., p. 309 (1956). That is because the law considers that a tortfeasor cannot be held to foresee that the negligent injury he inflicts upon the employee also damages the employer by the impairment of the services owed under the contract of employment. Nemo Foundations, Inc. v. New River Company, 155 W.Va. 149, 181 S.E.2d 687, 689[1] (1971); Chelsea Moving & Trucking Co., Inc. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477, 478[1] (1932); 1 Harper & James, Tort, § 610.

The petition was properly dismissed by the trial court for failure to state a claim for relief. The second ground asserted in the trial court for dismissal — that the cause of action was nevertheless preempted by The Workmen’s Compensation Law [Chapter 287] — becomes cumulative. To that we say only that the common law cause of action per quod gave the employer an independent cause of action for damages in consequence of the injury to the employee. Loss of services, not bodily injury to the employee, was the gist of the action. Voss v. Howard, 1 Cranch C.C. 251, Fed.Cas.No.17,013 (D.C.1805). The right to recover for this wrong was not derivative but independent of any right the employee may have had. Voss v. Howard, 1 Cranch C.C. 251, Fed.Cas.No.17,013 (D.C.1805); Wolff v. Du Puis, 233 Or. 317, 378 P.2d 707 (banc 1963). The right of an employer under The Workmen’s Compensation Law rests on subrogation, a different theory altogether. See: Seavey, Law of Agency, Chapter 9, § 120.

The judgment is affirmed.

All concur.

      . “Whereby he lost the service [of his servant].”

      . The petition before us does not allege injury to a member of the household so we need not consider the validity of the numerous decisions [including among others, Snow v. West; Inland Revenue Commissioners v. Hambrook; Ferguson v. Rensselaer County Air Park, all supra ] which retain the common law per quod cause of action for loss of services where the employer stands in loco parentis to the employee — as in the case of a domestic or other menial. That right of action, as any other under that common law remedy, rests on the principle which considers the servant property of the master, and is as unseemly to a free society as any other application of that premise. Blackstone Commentaries, Vol. 1, p. 425; Inland Revenue Commissioners v. Hambrook, supra, cited in 57 A.L.R.2d 794.


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. Kieran Lee PFEIFER, Defendant-Respondent.
    No. KCD 28412.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      John H. Fraze, Pros. Atty., Nodaway County, Maryville, for plaintiff-appellant.
    John E. Downs, Downs & Pierce, St. Joseph, for defendant-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

The State has appealed the dismissal by the trial court of an information as insufficient. The appeal is under Rule 28.04. The information was originally filed in the Magistrate Court of Nodaway County, Missouri and was ultimately disposed of on a motion to quash after change of venue and a variety of continuances in the Circuit Court of Holt County.

The information alleged, first, a misdemeanor offense of driving while intoxicated on the 7th day of November, 1970, in the Magistrate Court of Polk County, a conviction and sentence upon said offense of a fine of $100 with subsequent payment of the fine. After that preamble, the information charges the instant offense on the 20th day of September, 1974, at the County of Nodaway and charges that an automobile was operated by the defendant while he was in an intoxicated condition contrary to Section 564.440 RSMo 1969.

It is thus apparent that the prosecutor was attempting to charge a violation under 564.440, subparagraph (2), a misdemeanor offense requiring the imposition of a term of not less than 15 days and not more than one year in the county jail. The motion to quash filed in response to this information is as follows:

“MOTION TO QUASH
Comes now the defendant, Rieran Lee Pfeiffer, and moves that the information filed against him be quashed, dismissed and held for naught in that the alleged facts set down in paragraph 1 thereof recite that the defendant was duly convicted of driving while intoxicated, a mis-demeanour. The alleged conviction is void, being violative of Rule 29.02 of the Supreme Court of the State of Missouri, and is violative of the Constitution of the State of Missouri and the United States, in that pursuant to the exhibits attached hereto and made a part hereof, the defendant, Rieran Lee Pfeiffer was not personally present when the alleged plea of guilty was made. Nor did the court and prosecuting attorney consent to such trial in the absence of defendant.”

In support of the motion to quash, the defendant testified that he had been arrested and taken before a judge in Polk County in 1970. Upon his appearing before the judge, he had posted bond, that he had a lawyer, but that he never went to court nor appeared in Polk County again. Further, that he never authorized his lawyer to plead guilty for him. The records of the Polk County court were in evidence, and they disclose the following judgment entry:

“Now comes the attorney for the defendant into open court and enters a plea of guilty to the above charge, which charge is set forth by a uniform traffic ticket endorsed by Ralph W. Gilchrist, prosecuting attorney. The Court assesses a fine of $100.00 with Court costs of $14.00 Defendant having posted bond previously, bond was disbursed for the amount of fine and costs and remainder refunded to defendant.”

The specific attack leveled at the information under the motion, evidence and the argument of counsel was that the prior conviction in Polk County was invalid as being in violation of Rule 29.02. The instant information therefore being void in attempting to allege the offense of intoxicated driving under Subsection (2) of Section 564.440.

The specific issue here presented has not been ruled upon by the courts of Missouri. This court must initially decide what constitutes the offense comprehended within Section 564.440. Clearly, the statute prescribes but a single offense, that enunciated in the initial sentence of the statute, “No person shall operate a motor vehicle while in an intoxicated condition.” The balance of the statute relates to the characterization of the offense as a misdemeanor or a felony and prescribes the punishment to be assessed, dependent upon whether it is the first, second or third offense. The statute has obvious similarities to the Second Offender Act, Section 556.280 RSMo 1969. The case law of this State, in construing Section 564.440, has noted that a prior conviction, in order to increase the range of punishment for a second conviction for the offense must be pleaded in the same manner as a prior conviction under the Second Offender Act. State v. Barker, 490 S.W.2d 263 (Mo.App.1973).

Thus, the analogy between Section 564.440 and the Second Offender Act has been recognized judicially. It follows that cases interpreting the Second Offender Act will be persuasive on the issue at hand. The case law interpreting the Second Offender Act has held that that statute does not create a separate and distinct offense, nor permit conviction upon the charge of being a habitual criminal. Proof of the prior conviction is not a substantive part of an offense subsequently committed, and any conviction must be for the offense charged in the information. The Second Offender Act merely provides for enhanced punishment. State v. Gillette, 277 S.W.2d 680 (Mo.App.1955); State v. Foster, 251 S.W.2d 675 (Mo.1952); State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002 (1948). Accord, State v. Rose, 428 S.W.2d 737 (Mo.1968), which held that the filing of a subsequent information charging a prior felony did not change the substance of the primary charge.

The provisions of subsections 1, 2 and 3 of Section 564.440 also constitute an enhancement of the punishment for the basic offense of driving a motor vehicle while intoxicated. Thus, it follows that the same rule must apply with respect to the validity of any such prior conviction offered for the purpose of enhancing the punishment as in the instance of a prior conviction under the Second Offender Act. It is clear that if the offense offered in support of the conviction under the Second Offender Act is invalid, the enhancement of punishment cannot occur. The prior conviction or convictions offered to impose the progressively enhanced penalties of Section 564.440(2) and (3) must be valid to support the enhanced punishment.

Turning now to the question of the validity of the prior offense, on the face of this record, this conviction is void and cannot provide the basis for enhanced punishment in this case. Rule 29.02 requires, “No person shall be tried upon an indictment or information for a felony unless he be personally present during the trial; nor shall any person be tried for or be allowed to enter a plea of guilty of a misdemeanor unless he be personally present or the court and prosecuting attorney consent to such trial or plea in the absence of the defendant." (Emphasis added).

Although the rule seems to permit the proceedings to carry forth in the absence of a defendant if it is agreeable to both the court and the prosecuting attorney, such is not the interpretation given it by the Missouri Supreme Court. In State v. Norton, 347 S.W.2d 849 (Mo. banc 1961), the defendant had failed to appear for a court date on a traffic offense, his attorney did appear and successfully argued a motion to dismiss the information, and the question on appeal was the propriety of the forfeiture of defendant’s appearance bond. The court upheld the forfeiture and the scire facias proceeding to enforce the forfeiture. In doing so, the court said at page 852, “The provision of Sup.Ct.R. 29.02 (see § 546.030) that no person shall be tried for a misdemeanor ‘unless he be personally present or the court and prosecuting attorney consent to such trial ... in the absence of the defendant’ is subject to such consent being in response to a request by the accused.” The court further noted in Norton that the record before them disclosed no request by defendant that the case be tried in his absence.

In State v. Cook, 432 S.W.2d 345 (Mo. banc 1968), the defendant was charged with the misdemeanor of speeding. On the date set for trial, the State appeared, the defendant did not appear, but his attorney did and announced not ready for trial since his client was not present. The case proceeded to trial, and the defendant was found guilty by a jury and fined $500. On appeal, it was contended the trial court erred in proceeding with the trial in defendant’s absence. The Missouri Supreme Court agreed, citing Rules 29.02 and 29.04 for the proposition that:

“The statute and rules provide that no person can be tried in cases involving felonies or misdemeanors unless he be personally present, subject to certain recognized exceptions. For example, in cases involving felonies or misdemeanors, ‘when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence to the contrary, that he was present during the whole trial.’ [Citing cases]. Further, if the accused requests, and the Court and prosecuting attorney consent, a trial may be had in a misdemeanor case with the accused absent. State v. Norton, Mo.Sup., 347 S.W.2d 849 (1961); City of St. Louis v. Walker, Mo.App., 309 S.W.2d 671 (1958); S.Ct. Rule 37.485, V.A.M.R.” l.c. 340-347.

The court went on to hold that the exceptions did not apply in the case under discussion since “[t]he transcript on appeal does not affirmatively show that appellant was present at the commencement of the trial or at any other stage of the trial [and] [n]o request of appellant for a trial in his absence appears of record.” The court held the conviction infirm, and reversed and remanded the case.

On the authority of the Norton and Cook cases, before a defendant may be tried for or plead guilty to a misdemeanor in absentia, it must affirmatively appear in the record that he requested the cause proceed in his absence. It is this request to which the consent of the court and the prosecuting attorney referred to in Rule 29.02 must be responsive.

The certified record of the Polk County conviction reciting that the defendant’s attorney entered the guilty plea does not affirmatively show that defendant requested or consented to the plea being entered in his absence. During the taking of evidence on the motion to quash, the defendant categorically denied ever making such a request or giving such consent. It is to be noted that this was the testimony elicited on both direct and cross examination. The evidence in this ease makes it apparent that the issue of an implied request based on the attorney’s presence as counsel for the defendant is not reached or decided. In light of the Cook case holding, the former conviction is void for purposes of invoking Subsection (2) of § 564.440 RSMo 1969.

In this regard, compare favorably the case of State v. Alberts, 519 S.W.2d 562 (Mo.App.1975). In Alberts, defendant had been convicted of stealing and had been sentenced under the Second Offender Act. On appeal, it was contended that it was error to sentence under the Second Offender Act because his prior conviction was void for the reason he had not been represented by counsel. In support of this claim, he pointed to the certified copy of his 1956 conviction which had been introduced to prove a former felony conviction and so satisfy the requirements of the Second Offender Act. The certified copy failed to show that defendant had been represented by counsel on the felony charge. The St. Louis District held that this clearly indicated that the defendant did not have the benefit of counsel at the 1956 proceeding and made such conviction void for the purpose of establishing a prior conviction under the Second Offender Act.

However, the holding that the prior conviction in Polk County cannot afford a basis for enhanced punishment under Section 564.440 does not conclude the inquiry. The question still remains as to whether the court’s order in dismissing the information was the appropriate response in the circumstances of this case to the defendant’s motion. Again turning to the analogy between Section 564.440 and the Second Offender Act, the case law in construing the Second Offender Act is helpful in concluding the issue of the basic validity of this information.

The offense under Section 564.440 is driving while intoxicated, all of the balance of the statute being referable to the question of the punishment and the degree of the offense committed. In State v. Held, 347 Mo. 508, 148 S.W.2d 508 (1941), the court held that an information insufficiently charging the prior conviction failed to invoke the Second Offender Act, but nonetheless charged the underlying offense of robbery in the first degree and affirmed a conviction. Similarly, in State v. Hagedorn, 305 S.W.2d 700 (Mo.1957), the court, under a 27.26 proceeding, affirmed a conviction despite allegation of a prior conviction which could not be proven. Thus, the failure under the Second Offender Act to prove the underlying prior conviction does not, in and of itself, render the entire information void, but simply prevents the enhancement of punishment provisions of the Second Offender Act to apply. Viewing this information then in the light of the authority decided under the Second Offender Act and in light of the obvious parallel between the Second Offender Act and the enhancement of punishment provisions of Section 564.440, a failure to properly allege or prove the underlying offense necessary for enhancement of punishment under 564.440 does not invalidate the entire information, but simply makes the provisions concerning enhancement of the sentence inoperative. This conclusion is strengthened by the application of Rule 24.11 which sets forth matters which are insufficient to cause an information to be held invalid. That Rule provides:

“No indictment or information shall be deemed invalid, . . . twelfth, for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged or for want of the averment of any matter not necessary to be proved; or, thirteenth, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits: . . (Emphasis added.)

That part of the information charging the primary offense here is paragraph 2, and it specifically charges that “. on or about the 20th day of September, 1974, . . the defendant did wilfully, and unlawfully ... operate a certain motor vehicle, while he, the said defendant, . . . was then and there in an intoxicated condition, . .” The prohibitions of the statute, § 564.440 RSMo 1969, are equally succinct. The offense is set forth in one sentence, “No person shall operate a motor vehicle while in an intoxicated condition.” It is obvious the information substantially follows the wording of the statute and so is sufficient to charge the primary offense. State v. Richardson, 343 S.W.2d 51 (Mo.1961); State v. Davis, 371 S.W.2d 270 (Mo.1963); State v. Hurley, 251 S.W.2d 617 (Mo.1952). Since the information was sufficient to charge the primary offense, it should not have been held invalid. That portion of the information attempting to invoke Subsection (2) of § 564.440 RSMo 1969, being ineffectual for that purpose, should have been held to be mere surplusage and stricken as such.

It, therefore, follows that the judgment of the trial court dismissing the information was in error and the cause is reversed to the circuit court with directions to strike that portion of the information charging the Polk County conviction and reinstate the information charging the basic offense of driving while intoxicated with the penalty as provided in Subsection (1) of Section 564.440. In view of the disposition of this case, the other points raised by the State need not be considered.

Reversed and remanded with directions.

All concur.