author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Richard Allen WARREN, Appellant.
    No. 39510.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Robert C. Babione, Public Defender, Mary Louise Moran, Sara T. Harmon, Harry Roth, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, James W. McCarty, Asst. Circuit Atty., for respondent.
   ALDEN A. STOCKARD, Special Judge.

Richard Allen Warren was found guilty by a jury of attempted burglary, second degree, and pursuant to the Second Offender Act, § 556.280 RSMo.1969, was sentenced by the court to imprisonment for a term of five years. He has appealed from the ensuing judgment. We affirm.

On October 23, 1976, two police officers observed three black males, one of whom was appellant, park an automobile and approach a building used as a slaughterhouse by the Grote Meat Company. The three persons climbed onto the roof of the building, walked to a ventilation fan with louvered shutters, and began prying on the louvers with a crowbar. The officers could hear the sound of cracking metal and wood. They shouted at the three men who ran to the rear wall where they were met by police officers and arrested.

Trial began on June 1, 1977. Appellant was present with retained counsel, and he remained present throughout the day. He was not in custody but was free on bond, and when court was recessed at the end of the day “everybody,” including appellant, was told to be back the next morning at 9:30 o’clock. However, when court opened the following morning appellant was not present. The court recessed the trial while appellant’s attorney and bondsman attempted to locate him. The court personally talked by telephone to appellant’s wife, but she stated she had no knowledge of his whereabouts. At 1:30 o’clock in the afternoon the court directed that the trial proceed in the absence of appellant, and the jury returned a verdict of guilty.

On the morning of the following day, June 3, appellant appeared in court with his bondsman and attorney. After being afforded time to confer with his attorney, appellant stated to the court that on the previous day he left his house and took a bus to the court and got inside the building but he then became “scared” and left. He admitted that he was told to be back at court at 9:30 o’clock on the morning of June 2, and that he had not been threatened by anyone. The court concluded that appellant’s absence was “completely” voluntary, and declined to set aside the verdict.

Appellant’s first point is that it was prejudicial error for the court to proceed with the trial in his absence. He contends that to do so “violated [his] rights to confrontation of the witnesses against him, effective assistance of counsel and a fair trial * He also asserts that continuing the trial in his absence “violated [his] statutory entitlement to be present at all stages of his trial,” citing § 546.030 RSMo.1969.

In State v. Drope, 462 S.W.2d 677 (Mo.1971), the Supreme Court of this State expressly ruled that by willfully and voluntarily absenting himself from his trial a defendant can waive his constitutional and statutory right to be present, and assuming that this court disagreed with that ruling, which it does not, it would still be bound to follow it. We shall, however, set forth here the applicable rules as announced by our Supreme Court, and demonstrate their application to the facts of this case.

The trial court found that appellant’s absence was voluntary on his part. We agree. The evidence does not reasonably permit any other conclusion, and appellant does not contend on this appeal that his absence was not willful and voluntary.

Art. I, § 18(a), Constit. of Mo. provides that “the accused shall have the right to appear and defend, in person and by counsel.” The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * This guarantee is obligatory upon the States. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Appellant asserts in his brief that it is basic to these rights that the accused in a criminal proceeding “be present in the courtroom at every stage of the trial,” and that his presence is “fundamental to the right to adequate assistance of counsel” and to the “right to a fair trial.” Appellant also cites and relies on § 546.030 RSMo.1969 which provides that “No person indicted for a felony can be tried unless he be personally present, during the trial; * * but “in all cases the verdict of the jury may be received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is willful or voluntary, * * The substance of this statutory provision is found in Rule 29.02 which provides that no person shall be tried upon an indictment or information for a felony unless he be personally present during the trial, and Rule 29.03 which provides that in all cases the verdict of the jury may be received by the court and entered upon the record in the absence of the defendant when such absence is willful or voluntary on the part of the defendant.

Appellant states in his brief that “Both federal and state case law have gradually whittled away” the above constitutional and statutory guarantees, but he argues that “the prejudice he suffered by reason of the trial court’s insistance upon trying him in his absence was so great as to require reversal.” Apparently he recognizes that applicable case law would authorize the trial to continue in his willful and voluntary absence, so he asserts that in the circumstances he was peculiarly prejudiced. He relies on the fact that evidence identifying him as one of those who attempted to burglarize the building was received in his absence, and that “he may well have intended to put on evidence or testify on his own behalf.” We note, however, that on the day following the return of the verdict and before he was sentenced and judgment was entered, he made no such contentions to the trial court, and he does not now indicate to this court what his evidence or testimony would have been. We find no prejudice to appellant other than the normal and expected result of the voluntary absence from trial by an accused. Therefore, the essential questions here, as was the situation in the Drope case, are whether by voluntarily absenting himself from a portion of his trial, an accused can waive his constitutional right to be present, and whether Rule 29.02 permits a waiver by an accused of his right to be present at every phase of his trial.

After considering Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), and Illinois v. Allen, supra, appellant admits in his brief that it is “apparent that a criminal defendant can waive his constitutional right to be present at trial,” but he asserts “that right cannot be waived when a statutory scheme exists expressly prohibiting such waiver,” and he asserts that § 546.030 (Rule 29.02) does prohibit such a waiver.

As previously stated, in State v. Drope, supra, this precise issue was considered and ruled adversely to appellant’s contention. It was there pointed out that although in State v. Crocket, 90 Mo. 37, 1 S.W. 753 (1886) it was held that the statute (now incorporated in Rule 29.02 and Rule 29.03) excluded all authority to take any action other than to receive a jury verdict in defendant’s absence, in State v. Brewer, 109 Mo. 648, 19 S.W. 96 (1892), it was stated that the Smith case “went to the extreme.” It was further pointed out that in the later case of State v. McCrary, 365 Mo. 799, 287 S.W.2d 785, 790 (1956), the Supreme Court of this State reviewed in detail the history of the statutory provisions as now contained in § 546.030 (and set forth in Rules 29.02 and 29.03) and said: “We think that the present wording of our statute, § 546.030, [and Rule 29.03] permitting the reception of a verdict during the voluntary or willful absence of the defendant is declaratory of a policy that such rights may be waived. We do not agree with the statement in State v. Smith, supra, that the expression of that exception necessarily excludes all other exceptions, and that in no other instance may the actual presence of defendant be waived. * * * We do not believe that the legislature meant to say that the defendant must, in all events, be present at every other stage of the trial.” The court then quoted further from the McCrary case as follows: “But to hold that a defendant, who is at liberty during the trial, must in all events be present at every material step, is to place in his hands the power completely to nullify the trial. If he should absent himself and remain away the court would simply have to suspend all proceedings, and eventually discharge the jury and declare a mistrial.” See also State v. Whites, 538 S.W.2d 70 (Mo.App.1976), and State v. Colbert, 344 S.W.2d 115, 118 (Mo.1961). In the latter case the defendant was absent at a phase of the trial other than the receipt of the verdict, and it was ruled that he “failed to exercise and therefore waived his right and privilege to be present.” It was expressly held in the Drope case that the defendant’s intentional act which prevented his presence at trial “constituted a waiver of [defendant to] his right to be present.” From the above it is clear that it is the rule in this State that the constitutional right to be present and confront witnesses can be waived by voluntary and willful acts of an accused, and that Rule 29.02 does not prohibit that waiver. Not only do we agree with that ruling, this court is bound to follow it.

We find and conclude that appellant voluntarily and willfully absented himself from a portion of his trial, that he thereby waived his right to be present, and that under the circumstances the trial court did not prejudicially err in proceeding with the trial in appellant’s absence.

, By his second point appellant contends that the State did not prove “that [he] had a prior conviction under the Second Offender Act,” because mere “similarity of names is insufficient to support a finding * * * that appellant Richard Allen Warren, is the Richard Warren referred to in the records” which were presented and received in evidence as proof of prior conviction.

Appellant was described in the information as “Richard Allen Warren, also known as Richard Warren” the proof of the prior conviction of a felony consisted of a certified copy of a judgment showing that “Richard Warren was on December 7, 1972 sentenced to imprisonment for a term of five years by the Circuit Court of Jackson County for burglary, second degree. The State also introduced in evidence a certified copy of the commitment record of Richard Warren maintained by the Department of Corrections containing his physical description, and which stated that he had been received on January 12, 1973 to serve a sentence of five years for burglary, second degree, imposed by the Circuit Court of Jackson County.

This contention must be reviewed, if at all, pursuant to Rule 27.20(c) the plain error rule, because appellant made no objection at trial to proceed under the Second Offender Act, and there is no allegation of error concerning this issue in the motion for new trial. See State v. Lockhart, 501 S.W.2d 163 (Mo.1973). Because of the implied contention that appellant was denied the right to have the jury determine the punishment, we shall determine if there occurred plain error within the meaning of Rule 27.20(c).

In State v. Cook, 463 S.W.2d 863, 868 (Mo.1971), the proof of a prior conviction contained the name of the defendant as “Sam Cook” when his name was “Samuel J. Cook.” The court held: “[Ijdentity of names is prima facie evidence sufficient to establish the accused’s identification for the purpose of showing a prior conviction under the Second Offender Act. * * * ‘Sam Cook’ is not identical with ‘Samuel J. Cook’ but the difference between the two names is not significant. * * * we reannounce the principle that ‘[generally, a middle name has little, if any, legal significance.’ ” The court also commented that the trial court had every opportunity to compare the person before it with the detailed physical description of the person named in the record of commitment. That was the situation in this case, and we further note that neither at trial nor on this appeal does appellant contend that he was not the person named in the record received in evidence. The State met its burden of proof, and we find no error, much less plain error within the meaning of Rule 27.20(c).

Appellant next asserts as plain error under Rule 27.20(c) that the court committed prejudicial error in failing to enter a judgment of acquittal because, as he asserts, the evidence was insufficient because “no evidence was adduced that the building was secured prior to the alleged attempt burglary.”

Appellant relies primarily on the' statement in State v. Allen, 344 Mo. 335, 126 S.W.2d 236 (1939), that “[Q]ne of the essential elements of proof of a charge of burglary is that there must be a breaking into and an entry. If the doors and windows were left open, there could be no burglary.” In that case the defendant was charged under the third subdivision of what is now § 560.-040 RSMo.1969, which provides that the breaking and entry of a dwelling house of another in which there shall be at the time some human being with intent to commit some felony or larceny therein, shall constitute burglary in the first when accomplished “by unlocking an outer door by means of false keys, or [by] picking the lock thereof.” There was no proof that the doors had been secured or closed or even that the building had a door. By the quotation set out above the court was merely saying that there was no proof that entry was obtained “by unlocking an outer door" or by use of “false keys.” That is immaterial to the charge in this case.

Appellant was not charged with burglary, but with attempted burglary. Therefore the State was not required to show a completed offense, but only an overt act toward its commission with the required intent, failure of commission, and apparent possibility of commission. This was all clearly shown by the evidence. In this case appellant did not attempt to enter the building by breaking a door or window or by entering an open door or window. Instead, he and his companions attempted to enter the building by breaking open a louvered ventilation fan located on the roof. It has been stated that “the entry must be consequent upon the breaking,” and if an entry is made through an open door after a breaking was made at another place, there was no burglary. Regina v. Davis, 6 Cox C.C. 369 (1854). See also the discussion in Perkins On Criminal Law, Chapter 3, § 1, Burglary at p. 198 et seq. By analogy, if there exists an open door or window, but the burglar elects to break into and enter the building at another place, the offense of burglary is completed. Therefore, in the circumstances of this case it was immaterial that there was no evidence “that the building was secured,” as appellant contends.

Appellant’s final contention is that the trial court committed plain error when it questioned Mr. Grote “concerning what valuables, if any, were stored in the building,” and concerning the accessibility of the interior of the building through the opening that appellant and his companions were attempting to make. This occurred when appellant was present, but there was no objection and the issue is not mentioned in a motion for new trial. Appellant’s defense, according to his attorney’s opening statement, was not that an attempted burglary did not occur, but that he was not one of those who made the attempt.

The general rulé is that interrogation of a witness by the court is proper when the purpose is to clarify matters for the jury or to develop more fully testimony already given. State v. Clark, 522 S.W.2d 332 (Mo.App.1975). We find nothing in the questioning by the court which tended to impair or give the appearance of impairing the neutrality of the court. It neither disparaged the appellant nor expressed favor for the prosecution and was not improper. See State v. Pearson, 519 S.W.2d 354 (Mo.App.1975). It could not constitute plain error within the meaning of Rule 27.20(c)

The judgment is affirmed.

DOWD, P. J., and CRIST, J., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Charles PERRY, Appellant, v. STATE of Missouri, Respondent.
    No. 40772.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Gary L. Robbins, Public Defender, 32nd Judicial Circuit, Jackson, for appellant.
    John D. Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant entered a plea of guilty to the charge of selling a gun without a permit and was sentenced to a term of four years in prison. This court affirmed the trial court’s dismissal of movant’s first motion for post conviction relief in Perry v. State, 565 S.W.2d 464 (Mo.App.1978), finding specifically that movant’s guilty plea was completely voluntary. On June 2,1978, movant filed a second Rule 27.26 motion to vacate which alleged that he was deprived of effective assistance of counsel, because his trial attorney had: (1) failed to cross-examine a material state witness; (2) failed to produce a defense witness to rebut the state’s case; and (3) failed to inform the trial court that a state witness and an informant had “seduced” a material witness into becoming intoxicated so that the testimony of that witness would not be accepted by the trial court. The trial court issued its findings of fact and conclusions of law which denied the movant an evidentiary hearing based in part on Rule 27.26(d). From the denial, movant appeals. We affirm the decision of the trial court.

Rule 27.26(d) prohibits the entertainment of successive 27.26 motions when the ground presented is new but could have been raised in the previous request for post conviction relief. Careaga v. State, 552 S.W.2d 25 (Mo.App.1977). The burden is on movant to establish that the new ground raised in his second motion could not have been presented earlier. Culberson v. State, 571 S.W.2d 488 (Mo.App.1978). In this case, movant alleged his inexperience in legal matters and the inexperience of the person who assisted him in the preparation of the first motion as the excuse for failure to set forth his present contentions in the prior motion. Yet “lack of legal knowledge has consistently been rejected as a cognizable excuse for failure to raise matters in the first Rule 27.26 motion.” Patterson v. State, 571 S.W.2d 142, 143 (Mo.App.1978). Accord, Careaga v. State, supra. Where the defendant possessed the information upon which the second motion was based at the time when he filed the first, the second motion must be dismissed. Warren v. State, 572 S.W.2d 874 (Mo.App. E. Dist., 1978); Patterson v. State, supra; Agee v. State, 562 S.W.2d 762 (Mo.App.1978). Consequently, we have no need to discuss the merits of movant’s allegations. We note, however, that his allegations relate to trial strategy which do not form a basis for Rule 27.26 relief. Cage v. State, 573 S.W.2d 73 (Mo.App.1978); Cole v. State, 573 S.W.2d 397 (Mo.App.1978).

Judgment affirmed.

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

      . The mandate of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), requiring appointment of counsel for indigent pro se movants in Rule 27.26 motions to vacate sentence was not in effect at the time of movant’s application.


author: SNYDER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ray G. WINDMILLER, Defendant-Appellant.
    No. 39193.
    Missouri Court of Appeals, Eastern District, Division One.
    March 6, 1979.

      Paul E. Williams, Bowling Green, for defendant-appellant.
    James Millan, Pros. Atty., Bowling Green, John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Presiding Judge.

Appellant was found guilty of murder in the second degree by a jury in the Circuit Court of Pike County and sentenced to serve ten years in the custody of the Department of Corrections. He appeals.

Appellant contends that the trial court erred: (1) in denying him the right to call character and behavior witnesses; (2) in admitting into evidence certain photographs of the victim; and (3) in permitting an unqualified expert witness to testify.

It is unnecessary to recite the facts in detail. Appellant admitted that he killed his wife and based his defense on mental disease or defect excluding responsibility. § 552.030, RSMo 1969.

The judgment is reversed and the cause remanded for a new trial because of the error of the trial court in denying appellant the right to call character and behavior witnesses.

During the pretrial proceedings the state on May 18, 1976 filed a “Motion for Disclosure” under Rule 25.34 requesting the defendant to disclose, among other things, the names and last known addresses of persons he intended to call as witnesses.

Rule 25.34 was adopted October 9, 1973, effective July 1, 1974, and required the defendant to disclose to the state, among other things, “the names and last known addresses of persons, other than defendant, who defendant intends to call as witnesses . .” The heading of the rule at that time was “Disclosure by Defendant to State Upon Court Order Without Exercise of Discretion by Court.” This version of the rule was in effect at the time of the state’s motion.

Rule 25.34 was amended on May 6, 1976, effective January 1, 1977, by changing the heading to read “Disclosure by Defendant to State Without Court Order” and by prescribing the method to be used in making the requests provided for by the rule.

Appellant on October 8, 1976 answered the state’s motion for disclosure in part as follows:

2.. Counsel for Defendant states that the only witnesses, other than the technical witness above described and witnesses endorsed by the State, that Defendant intends to testify are family, friends, and co-workers, all in the local area, the exact name and number of which is yet unknown.

On March 10, 1977, five days before trial, appellant sent a letter to the deputy court clerk listing names and addresses of witnesses whom he intended to call and sent a copy of the letter to the state which was received on March 14,1977, one day prior to trial.

The question is whether, in view of its heading, the rule in effect at the time the request for disclosure was made required a court order to make it mandatory that appellant reveal the names and addresses of the witnesses he proposed to call. There was neither a court order to the appellant requiring a disclosure nor a request for a court order by the state.

The rules of construction are the same for supreme court rules and legislative enactments. Gooch v. Spradling, 523 S.W.2d 861, 866[A-6] (Mo.App.1975). The official title to a statute is a portion thereof and must be considered in construing the meaning and purpose of the statute. Bullington v. State, 459 S.W.2d 334, 341[3] (Mo.1970). The heading of a supreme court rule is not similar to a chapter or paragraph heading in a statute which is supplied by a clerk or the reviser of statutes, but instead is comparable to the official title of a statute. It is an integral part of the rule itself as it is adopted by the supreme court and promulgated in the Southwestern Reporter and the Annotated Statutes. Just as the title to a statute is adopted by the legislature so also the heading of a supreme court rule is adopted and promulgated by the supreme court and should be considered in ascertaining the purpose and intent of the rule.

No Missouri cases have been cited, and none found, which speak to this point, but it is only rational, giving weight to the rule of statutory interpretation, that rule headings, as adopted by the supreme court along with the body of the rule, be taken into consideration in interpreting the rule.

The change in the heading from “Disclosure Upon Court Order” to “Disclosure Without Court Order” meant something. At best, the rule as it read at the time of the state’s request for disclosure was ambiguous. Any ambiguity should be resolved in favor of an appellant whose right to a fair trial may depend upon the interpretation placed upon the rule. Counsel for appellant was entitled to rely upon the rule as it was written and effective in 1976 when the request for disclosure was filed.

Was the denial by the trial court of appellant’s request to call the witnesses in question prejudicial to appellant’s defense? Counsel for appellant repeatedly moved to permit the calling of the character witnesses “in support of the psychiatric evidence that will be introduced in this case.” In his offer of proof counsel stated the evidence would support the testimony of Dr. Thomas D. Manglesdorf, a psychiatrist, and that it would be directed to the character and behavior of appellant preceding the incident and would show a marked change in the attitude, demeanor and personality of appellant during the last few months before the offense for which he was charged. The testimony was intended to lend support to the formal plea of not guilty by reason of mental disease or defect excluding responsibility.

It is possible that witnesses familiar with the lives and behavior of the appellant and his victim might have influenced the jury to consider more favorably appellant’s defense. Therefore, the trial court’s ruling was prejudicial.

The state argues that the trial court properly invoked the sanctions allowed by Rule 25.45 in refusing to allow the witnesses to testify and maintains the refusal was not fundamentally unfair to appellant.

Rule 25.45 reads as follows:

Sanctions
If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. (Adopted Oct. 9, 1973, eff. July 1, 1974).

Here counsel was not guilty of a wilful violation, nor did appellant fail to comply with the rule, given the language of the rule heading which appellant was entitled to interpret as requiring a court order to disclose the names of the witnesses. Therefore, Rule 25.45 did not apply.

Even if Rule 25.45 were applicable, the state admits in its brief that the question to be considered would be whether the trial court’s exclusion of the witnesses was fundamentally unfair to appellant. Because it deprived appellant of a quantum of evidence in support of his sole defense, the exclusion of the behavior witnesses was fundamentally unfair to him.

The state further contends that because appellant filed a written answer to the state’s disclosure motion, appellant placed himself under the rule and was required to comply with the rule in its entirety. This argument is defeated by the fact that appellant was entitled to rely on the rule in its entirety which included the heading which requires disclosure on court order. The case cited by the state to support its argument, State v. Burton, 544 S.W.2d 60 (Mo.App.1976), is distinguishable on the facts.

The trial court erred in not permitting appellant to call the character and behavior witnesses and, for this reason, the cause must be reversed and remanded for a new trial.

Because they will be raised again upon retrial, the other two points relied upon by appellant will be discussed briefly.

Appellant complains that the trial court erred in permitting the introduction into evidence of certain photographs depicting the victim and the hatchet which was used in the killing. The admission of photographs lies within the discretion of the trial court and error can be found only if the discretion is abused. State v. Jones, 515 S.W.2d 504, 506 (Mo.1974). Here the photographs tended to corroborate oral testimony of the state’s witnesses [State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973)] and there was no abuse of discretion.

Appellant finally contends that the trial court erred in permitting Dr. Joe Leggett to testify as an expert. It is sufficient to say that Dr. Leggett had his M.D. degree and, although he was not certified by the American Psychiatric Association, he had had considerable experience as a psychiatric consultant and had been continuously engaged in psychiatric work for two and one-half years. He had performed approximately 250 psychiatric examinations up to the date of the trial and had examined appellant in December 1975, interviewed him on January 8, 1976 and observed him for a period of several days after the interview.

The question of expert qualifications also is a matter within the discretion of the trial court which may be disturbed on appeal only if the discretion is abused. State v. Stevens, 467 S.W.2d 10, 23 (Mo.1971). Here there was no abuse of discretion. The jury could consider Dr. Leggett’s qualifications in deciding how much weight to give to his testimony.

The judgment is reversed and the cause remanded.

WEIER, C. J., and SMITH, J., concur.


author: FLANIGAN, Chief Judge.

text:
    Roberta ABRAHAM, Plaintiff-Appellant-Respondent, v. Ernie JOHNSON and Wayhaven, Inc., a corporation, Defendants-Appellants-Respondents.
    Nos. 10301, 10302.
    Missouri Court of Appeals, Southern District.
    March 7, 1979.
    Motion for Rehearing or to Transfer Denied March 30, 1979.
    Application to Transfer Denied May 17, 1979.

      William H. McDonald, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for plaintiff-appellant-respondent.
    E. C. Curtis, Lincoln J. Knauer, Jr., Far-rington, Curtis, Knauer & Hart, Springfield, for defendants-appellants-respondents.
   FLANIGAN, Chief Judge.

Plaintiff Roberta Abraham brought this action for injuries she sustained when her face and arm were struck by a television tray which had been thrown through the air by a mowing machine operated by defendant Ernie Johnson. The parties stipulated that Johnson, at the time of the occurrence, was acting in the course of his employment for defendant Wayhaven, Inc. Plaintiff received a jury verdict in the amount of $4,500 and judgment was entered thereon. Each side has appealed.

On their appeal defendants make two contentions. The first is that plaintiff failed to make a submissible case in that there was no showing of negligence on the part of defendant Johnson in the operation of the mower and that the trial court erred in denying, at the close of all the evidence, defendants’ motion for directed verdict. Defendants’ second contention is that plaintiff’s verdict-directing instruction was erroneous. On her appeal plaintiff contends that the trial court erred in giving a withdrawal instruction concerning her damages.

In considering defendants’ first contention this court must give plaintiff the benefit of all favorable evidence and every reasonable inference to be drawn therefrom. Defendants’ evidence is to be disregarded unless it aids the plaintiff’s case. Carter v. Boys’ Club of Greater Kansas City, 552 S.W.2d 327, 329[2] (Mo.App.1977). A cause may not be withdrawn from the jury unless the facts in evidence and the reasonable inferences derivable therefrom “are so strongly against the plaintiff as to leave no room for reasonable minds to differ.” Hastings v. Coppage, 411 S.W.2d 232, 235[2] (Mo.1967).

The land on which the events took place was owned by defendant Wayhaven. Twelve days before the accident plaintiff had moved into a house located on defendant’s premises pursuant to an arrangement whereby she would “fix it up” in return for one month’s free rent and commence paying rent thereafter.

The incident occurred around 1 p.m. on June 27, 1974. Present at the scene were plaintiff, defendant Johnson and Donald Allcorn. At the time she was struck by the television tray plaintiff was standing on the front porch of the house which faced east. She was talking with Allcorn who was standing about eight feet from her. Prior to the accident Allcorn had mowed a portion of the yard. The machine which All-corn used was a “little” power mower.

North of the house was a “weed patch” about 12 feet wide, from north to south, and 15 feet long, from east to west. The weeds were approximately four feet high, too high for Allcorn’s mower.

The mowing machine, or brush hog, operated by Johnson was “a rotary blade type, two blades, one on each side.” The brush hog was pulled by a tractor and its swath was approximately seven feet wide. The tractor was not “enclosed.” Johnson, as the operator, “sat up high above the tractor so that I can see over the front of the hood. I can see the area the mower will be going over.” Johnson had operated the brush hog, or at least one of its type, for five years. Earlier in the day Johnson had been mowing a field east of the house but interrupted his work there for the purpose of mowing the weed patch and also some vines which were next to the north side of the house.

Johnson testified that he knew that the brush hog “will pick up pop cans and throw them out the back end.” A space approximately two and one-half feet wide at the rear of the brush hog was unguarded. Long before the accident Johnson “had put chains over the front end” of the brush hog “because sometimes when I was mowing I would hit a rock and it would bounce up and hit the front tire and come right back on me.” Additionally, at Johnson’s request, his employer made a screen “to protect my back, to keep the mower from throwing things at the operator.” Johnson also testified that as he mowed, objects would hit the chains. Before mowing the weed patch Johnson had waved Allcorn and one of plaintiff’s children “clear out of the road because I didn’t want anybody close to the brush hog when I was brush hogging. I don’t like to be brush hogging when people are around.”

One of defendants’ witnesses testified that “the brush hog is dangerous” and that “it is dangerous to operate brush hogs in the immediate vicinity of people . Operating a brush hog you look ahead to try to avoid stumps and rocks.”

During the course of his mowing on the north side of the house Johnson made several “circles” with the tractor-mower unit. It is a clear inference that the unit was highly maneuverable. Asked by plaintiff’s counsel if he could see an object if he “might be going to hit it with the mower,” Johnson, referring to “something like that or a rock,” replied, “I can dodge.”

Having completed the mowing of the weed patch and the vines, Johnson drove the tractor mower unit eastwardly with the intention of resuming his work in the east field. He did not “disengage” the power to the brush hog, and the blades of the latter continued to move. When the brush hog reached a point north of the porch, and approximately 40 feet from where plaintiff was standing, its moving blade or blades struck the television tray, cutting it in two and hurling both pieces through the air toward the plaintiff. The two pieces, both of which struck the plaintiff, were introduced in evidence in the trial court and are exhibits here. Each piece is grossly contorted, giving mute but cogent evidence of the violence of the force which projected it. Before its severance the television tray appears to have been approximately 14 inches long and 18 inches wide.

Johnson said he did not see the television tray before “I hit it.” Allcorn, who had seen the tray before the accident, testified that it “was lying out in the open” and “was in plain sight.” The tray was not covered by the newly mowed weeds. All-corn said that the weed patch had “trash and stuff in it” and that the tray was lying at or near the edge of the weed patch Johnson had mowed.

On cross-examination by defendants’ counsel plaintiff testified to some familiarity with the characteristics of brush hogs. She said that if she had known the tray was there, she would have picked it up because she realized that if a brush hog ran over the tray it might “very well pick it up and throw it with force.”

In fine the evidence justified the triers of the facts in finding that Johnson was aware of the dangerous character of the brush hog and its proclivity to throw objects; that he failed to see the television tray in the path of the tractor although the tray was in plain sight; that he had the means to avoid hitting the tray and would have done so if he had seen it. Johnson admitted that he knew two or three people were on or near the porch as he proceeded eastwardly and “shortly before” he struck the tray.

The plaintiff did not know that the tray was in the yard. Defendants do not claim that she was guilty of contributory negligence as a matter of law. The trial court, at defendants’ request, did give an instruction on contributory negligence but the jury resolved that issue, if such it was, in favor of the plaintiff.

Neither side has cited any Missouri case which is factually similar. Cases from other jurisdictions support the view that where the operator of a power mower has knowledge, actual or constructive, that under certain circumstances objects capable of inflicting injury may be thrown by the mower, he may be found negligent in his manner of operation of the mower and liable for the resultant damages. Although all of the authorities recognize that basic principle, varying factual situations have produced holdings that the evidence was sufficient, Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913 (1957); Motter v. Snell, 250 Iowa 1247, 95 N.W.2d 735, 98 N.W.2d 746 (1959); Loonan Lumber Co. v. Wannamaker, 81 S.D. 51, 131 N.W.2d 78 (1964); Beaver v. Costin, 352 Mass. 624, 227 N.E.2d 344 (1967), or insufficient, Stayton v. Funkhouser, 148 Ind.App. 75, 263 N.E.2d 764 (1970); Embry v. Henderson, 511 S.W.2d 218 (Ky.App.1974), to support findings of actionable negligence on the part of the mowing machine operator. See Anno. 25 A.L.R.3d 1314, 1316.

In Glenn plaintiff was injured by a rock, three inches in diameter, which was thrown 60 feet by the mower. The defendant was mowing in a “very rocky area.” In Motter an evenly divided court affirmed the judgment for the plaintiff. The evidence did not identify the object which struck the plaintiff, but defendant’s yard had an unusual amount of brick chips in it. In Loo-nan the object thrown was a rock approximately the size of a silver dollar and the defendant was mowing in a ditch which he knew contained loose rock. In Beaver the mowing machine threw several rocks approximately six feet toward a highway and one of the rocks struck the plaintiff who was a passenger in an automobile.

In Stayton an unidentified object struck the plaintiff who was approximately 50 feet from the mowing machine. The lawn being mowed contained “the normal amount of stones and twigs.” The court stated that there was no duty on the part of the mower operator “to minutely inspect his yard” before mowing. The court pointed out that plaintiff’s evidence failed to show that the condition of the defendant’s lawn was “abnormal, i. e., was in an unusual condition due to other than natural causes.” The court also said, at 770: “However, we do not hold that an injured party may never recover from the owner or operator of a rotary mower that has propelled a foreign object and injured him.”

In Embry the plaintiff was struck by a screw driver, of unstated size, which was thrown approximately eight feet by the mowing machine. There was no evidence that the screw driver was visible prior to its being thrown by the mower. The court said the facts were “substantially identical” to those in the Stayton case.

Neither in Stayton nor in Embry was the court confronted with a situation where the mowing machine encountered an object as large and plainly visible as the television tray. It could have been observed, so the jury could have found, by an operator exercising ordinary care. Discovery of its presence did not require a “minute inspection.” The size of the tray, its visibility, the maneuverability of the mower unit, the availability of space to maneuver, together with the other circumstances previously set forth, demonstrate that the issue of defendant Johnson’s negligence in the manner of operation of the mower was clearly one for the jury. It must be kept in mind that the tray was not in motion. Defendants’ reliance upon automobile cases involving the opportunity of one driver of a moving vehicle to avoid colliding with another moving vehicle is ill reposed. Defendants’ first contention has no merit.

Defendants’ second contention makes a two pronged attack upon instruction number 2, plaintiff’s verdict-director. The first prong is that there was no evidence to support the giving of the instruction. Defendants’ argument is an echo of its first contention. The first prong has no merit.

Defendants’ second prong of its second contention is directed to the form of instruction number 2. Defendants do not attack the phraseology of the findings which the instruction did require. Defendants’ complaint is that the instruction was erroneous in failing to require certain additional findings.

It is arguable that the omitted matters need not have been included for the reason that they were “detailed evidentiary facts” as distinguished from “ultimate issues.” The mandate of MAI, page L, is that an instruction must submit the latter and not the former. However, the omitted matters need not be particularized nor discussed at length for the reason that defendants’ own evidence showed their existence.

“It is not error for an instruction, before or after MAI, to assume ‘an uncontroverted fact’ established by the testimony of the adversary.” Gathright v. Pendegraft, 433 S.W.2d 299, 314[26] (Mo.1968). Whether or not instruction number 2 was technically imperfect, this court, confining its review to the errors alleged, finds no prejudicial error in it. Both prongs of defendants’ second contention are unsound. Defendants' appeal has no merit.

On her appeal plaintiff makes the single contention that the trial court erred in giving, at the request of defendants, instruction number 9, which reads:

“Instruction No. 9

The evidence of plaintiff’s loss of wages after she was physically able to return to work is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.”

Plaintiff argues that the giving of instruction number 9 was erroneous “for the reason that wages or income lost by plaintiff, after she became physically able to work, due to her inability to find employment was a foreseeable consequence and was the direct and proximate result of defendants’ negligence.”

Authority exists to the effect that the right to recover for a temporary impairment of earning capacity ceases when a complete cure is effected. Augustus v. Goodrum, 6 S.W.2d 703, 704[3] (Ky.App.1928). “There can be no recovery for mere inability to find work after the injury, as distinguished from an inability occasioned by plaintiff's incapacitation from labor because of the injury.” 25 C.J.S. Damages § 40, p. 727.

Defendants argue that they should not be penalized because of plaintiff’s inability to find a job due to economic conditions or other factors beyond their control. The soundness of that argument, however, need not be adjudicated for the reason the evidence which the jury, by instruction number 9, was instructed to disregard was so flimsy and insubstantial that it would not have aided plaintiff if the jury had been permitted to consider it.

The record shows that plaintiff was physically able to resume her employment on October 1, 1974, but did not in fact obtain employment until June 1,1975. The record, however, does not contain substantial evidence to the effect that employment was unavailable between those dates. She did testify that she applied for a job “at 12 or 15 places.” She did not state what information or reaction was elicited by those applications. She did not give the date or dates when the applications were made nor did she state when any of them was made with respect to the date she achieved her physical recovery. She did not testify that jobs were in fact unavailable at those places or elsewhere.

Apparently recognizing the weakness of her testimony, plaintiff in her brief says that she “offered to prove that she was unable to find employment until June 1, 1975.” This court has examined the alleged “offer of proof.” Plaintiff, on direct examination, was asked if she had made application “at any concerns or places for jobs.” She answered in the affirmative. Plaintiff’s counsel then asked plaintiff, “how many places?” Defendants’ counsel interposed an objection. A colloquy ensued between the court and both attorneys. During that colloquy the court inquired of plaintiff’s counsel, “what is your theory here?” and counsel responded, “I want to show that she was unable to get any employment.” The court overruled defendants’ objection and plaintiff proceeded to give the testimony previously outlined. Plaintiff does not claim error on the part of the trial court in rejecting any specific offer of proof. Her complaint is limited to the giving of instruction number 9.

It is unnecessary to consider whether instruction number 9 was a correct statement of the law for the reason that the evidence which it withdrew from the jury’s consideration was so lacking in substance that no prejudicial error arose. Plaintiff’s appeal has no merit.

The judgment is affirmed.

HOGAN, TITUS, BILLINGS and MAUS, JJ., concur.


author: TITUS, Judge.

text:
    Raymond H. HAILEY, II, Plaintiff-Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellant.
    No. 10112.
    Missouri Court of Appeals, Southern District, En Banc.
    March 9, 1979.
    Appellant’s Motion for Rehearing or for Transfer Denied March 29, 1979.

      John R. Martin, A. L. Shortridge, Joplin, for plaintiff-respondent.
    Laurence H. Flanigan, Carthage, Sam D. Parker, Joseph E. Stevens, Jr., R. B. Miller, III, Kansas City, for defendant-appellant.
   TITUS, Judge.

Plaintiff was injured August 31, 1971, on the premises of his employer, Fleming Foods Company (Fleming), at Joplin, Missouri, when a 785 pound (approximately) load-divider door fell upon him as he started to unload the “B” end of defendant’s railroad boxcar. A Jasper County jury awarded plaintiff damages and, following denial of its post-trial motions, defendant appealed. Neither the nature and extent of plaintiff’s injuries nor the amount of the verdict ($36,250) is an issue on appeal.

The interior of defendant’s boxcar could be divided into three compartments by use of two inside movable load-divider doors when they were placed upright and perpendicular to the sides of the car. At the center top of each door was attached an inverted “U” shaped bracket which fit inside a two-holed clevis device affixed to an overhead slide rail running across the width of the ceiling. The bracket and clevis were held together by a 9-inch bolt causing the divider door to be suspended upright across the width and height of the boxcar's interi- or. The bolt first went horizontally through one of the clevis holes, thence through the bracket and then through the second hole in the clevis before a castle nut was twisted onto the threaded end of the bolt. To prevent the castle nut from loosening via movements of the car in transit and otherwise, a cotter key or pin was inserted and thereafter supposedly spread through a hole near the threaded end of the bolt after the nut was in place. As further assurance of the divider door’s stability after it was once in place, retractable pins were extended from the top and bottom of each corner of the divider by lowering a handle in the center front of the door. When the compartment behind the divider at each end of the car was to be unloaded and the divider door was to be moved to accommodate the process, the door handle was raised thus causing the corner pins to retract from their holes in the floor and ceiling of the boxcar leaving the connected bracket and clevis at the center top of the door as its sole support.

On July 27, 1971, the subject boxcar was received at defendant’s yards in Kansas City, Kansas, for repairs. Between that date and August 3,1971, unspecified repairs were made to either one or both of the two load-divider doors in the boxcar. An inspection and approval card signed by defendant’s employee Madrigal and dated “8-3-71”, was attached to a placard board on the side of the boxcar. Inter alia, it read: “OK Ld. Divider.” However, Madrigal subsequently testified he had not, in fact, made an inspection of the interior of the car but had simply relied on what the regular inspector had told him.

Defendant delivered the boxcar on August 5, 1971, to the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Milwaukee). At that time the car was empty, the interior load-divider doors were in place, and the outside doors were closed but unsealed. Milwaukee ostensibly delivered the boxcar to the Green Giant Company in Glencoe, Minnesota, where it was loaded and the outer doors sealed. The car was taken by Milwaukee to Kansas City, Missouri, where it was turned over to the Kansas City Southern Railroad Company (Southern) on August 25, 1971. Southern took the car to a siding at Fleming’s in Joplin on August 27, 1971, where it remained with seals intact until the accident occurred.

Before plaintiff and fellow-employee Moore started unloading the car at Fleming’s warehouse around 1 a. m. August 31, 1971, Moore broke the seals on the side doors. Without incident, plaintiff and Moore unloaded the center section of the boxcar, moved the load-divider door at the “A” end of the car and unloaded that area. As Moore was leaving the boxcar with freight, plaintiff raised the lever on the face of the load-divider door at the “B” end of the car. This retracted the pins at the corners of the door. However, the bracket and clevis at the top center of the door were not engaged and the door dropped to the floor falling towards the “A” end of the car against and onto plaintiff who was knocked to the floor. Moore and other Fleming employees partially raised the top end of the divider to permit plaintiff’s extraction. The door was then lowered to its original fallen position.

Southern’s agent at Joplin was notified of the event and arrived at the scene about 8 a. m. The “B” end of the car (the part behind the fallen divider) had been unloaded prior to the agent’s arrival. The agent found the bolt which should have connected the bracket and clevis between the top of the fallen divider and the floor of the boxcar. The threaded end of the bolt had been “skinned.” He found the castle nut on the boxcar floor near the “A” divider. No cotter pin or any part of one was found. Subsequent searches of the boxcar that day and the day following by the agent, car inspector, claim agent and commercial photographer failed to produce a cotter pin. However, the agent acknowledged on cross-examination that he and the others in their searchings for a cotter pin, did not look under the fallen door, into each hole in the tracks along the interior sides of the boxcar floor, into the partially open-top boxes which constituted the freight in the car, on the warehouse decking or on the ground outside the open side door of the car. It was the agent’s opinion, nevertheless, that if a cotter pin had been inserted in the bolt and had worked loose or broken, it would have fallen into the track on the top of the upright divider door and would have been thrown forward in the empty end of the car as the castle nut had done when the divider fell. The agent also observed that on each side of the outside of the boxcar were painted instructions to “close and lock [outside] door before moving car.” Southern’s agent testified that “for the benefit of crews” handling such a car, “you don’t want to move that car until you close the door,” whether the car is loaded or empty. Following post-accident inspections of the car, the agent “bad ordered” it and had the car billed back to defendant for repairs to the divider door. At that time the bolt, castle nut and the fallen divider door were inside the boxcar. Whether defendant subsequently did or did not find a cotter pin, broken or otherwise, inside the boxcar after its return, was not revealed.

In substance, defendant’s first and third points relied on are that the trial court erred in overruling defendant’s motion for directed verdict and its post-trial motion for judgment n. o. v. because evidence was lacking to show the railroad car was in a defective condition either when defendant surrendered possession or at the time it was delivered to the consignor. Also, defendant says there was an absence of proof that Southern and Milwaukee exercised due care to inspect the car and deliver it without defect. Defendant asserts this hiatus demonstrates that Southern and Milwaukee were interveningly negligent or, if not, that their inspection revealed no defect. In our review of the trial court’s rulings on these motions, we must envision the evidence in the light most favorable to the plaintiff and give him the benefit of all reasonable inferences arising from such evidence. Crain v. Webster Elec. Cooperative, 568 S.W.2d 781, 787[6] (Mo.App.1978).

When viewed as above dictated, the evidence demonstrated that when defendant’s empty boxcar left its possession August 5, 1971, it ostensibly had been subjected to repairs, among which were unspecified repairs to a load-divider door as attested by the attached inspection and approval card reading, “OK Ld. Divider.” At that time the outside doors, though not sealed, were closed and each interior divider door was positioned upright and locked into place “at right angles with the sides of the car.” Albeit the record does not show whether Milwaukee or Green Giant did or did not inspect the interior load-divider doors while the car was en route to or being loaded at Glencoe, Minnesota, it was reasonable for the jury to assume, contrary to defendant’s suggestions as to possibilities otherwise, that nothing untoward proceeding thereto or then occurred or was reasonably evident with respect to the divider doors because the car was loaded and the divider doors were repositioned and secured in the usual fashion without reported incident. After the car was loaded and the outside doors were closed and sealed, the defect complained of as to subsequent carriers of the car, was hidden and latent. To require such carriers to break the seals and enter the loaded car and conduct detailed examination of the positioned load-divider door to ascertain whether or not the nuts were off the bolts supporting the dividers, would require of them not a reasonable, but an unreasonable and minute examination which they were not required to make and which defendant should have known would not be made. Copeland v. Chicago, B. & Q. R. Co., 293 F. 12, 16[2] (8th Cir. 1923); Butler v. Central of Georgia Ry. Co., 87 Ga.App. 492, 74 S.E.2d 395, 397[2] (1953); 65 Am.Jur.2d, Railroads, § 414, pp. 582-583.

Upon appeal, defendant urges the possibility of a myriad of putative situations couched in conjecturals which envision various hypothetical events that conceivably might have befouled the load-divider door (or the freight car itself) and caused its falling for reasons other than that defendant negligently failed to insert or properly insert a cotter key through the bolt supporting the load divider at the “B” end of the car. It begets interest to again note that shortly after the accident, the car was “bad ordered” back to defendant who presumably had unlimited time and talent to inspect the fallen load-divider door, its attachments and other parts of the freight car. If, from its inspections, defendant unearthed any facts or circumstances corroborative of any suppositions which could negative the evidence and inferences that a cotter key had been improperly inserted or lacking from the supportive bolt, such evidence was conspicuous only by reason of its total absence. In fact, the evidence was wholly barren as to what, if anything, defendant’s investigation and inspection of the boxcar disclosed. The neglect or failure of a litigant having knowledge of facts vitally affecting issues on trial to summon witnesses within its power who have knowledge of such facts and circumstances, raises a strong presumption and warrants an inference, that the testimony of such witnesses would have been damaging and unfavorable. Ehrle v. Bank Bldg. & Equip. Corp. of America, 530 S.W.2d 482, 493[14] (Mo.App.1975); State ex rel. St. Louis County Transit Company v. Walsh, 327 S.W.2d 713, 717[5] (Mo.App.1959).

In determining liability in this case, the question is whether the jury could reasonably find that defendant, in the exercise of ordinary care, by initially putting into commerce a boxcar with a load-divider door whose supportive mechanism was improperly secured, either because of a missing or improperly inserted cotter key, could reasonably foresee a risk of injury to one thereafter using the door in performing loading or unloading duties. The test here is whether, because of the absence or improper insertion of such a cotter key, it could be foreseen that the car, in the ordinary course of events, would be transported and used in such fashion that its movements would eventually cause the castle nut to work loose from the bolt and permit the bolt to work free of the center holding device and thus permit the door to fall when the retractable corner pins were disengaged from their supportive positions. We conclude that the issues were for resolution by the jury and that plaintiff made a submissible case. Cf. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 580[4] (Mo. banc 1978).

Defendant’s second point relied on: “The trial court erred in giving Instruction No. 2, plaintiff’s verdict directing instruction, because it fails to require a finding that the car in question was in a defective condition when the defendant surrendered control of it.”

Without recasting in toto defendant’s complaints against Instruction Number 2 as contained in its post-trial motions (no remonstrance theretofore was voiced otherwise), it suffices to say that defendant made no objections to the instruction because it did not “require a finding that the car in question was in a defective condition when defendant surrendered control of it.” Until defendant’s brief on appeal was filed, no such objection to the instruction was made apropos of the charge. It is aphoristic that alleged errors relating to an instruction which differ from or are not included in specific objections made to and determined by the trial court, are not reviewable on appeal. Rules 78.07 and 84.-13(a); Belter v. Crouch Bros., Inc., 554 S.W.2d 562, 563[2, 3] (Mo.App.1977); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11[8] (Mo.App.1974); Levey v. Roosevelt Federal S. & L. Ass’n of St. Louis, 504 S.W.2d 241, 249[13] (Mo.App.1973); Thomas v. Fitch, 435 S.W.2d 703, 708[7] (Mo.App.1968).

Initially in addition to defendant Santa Fe, Southern and Milwaukee were also named as defendants in the suit. However, at the close of plaintiff’s case he dismissed his claim against Southern and Milwaukee with prejudice. For its fourth and final point defendant declares: “The voluntary dismissal of . Milwaukee . with prejudice compels the directing of a verdict for defendant Santa Fe because such a dismissal amounts to a finding against plaintiff that he was contributorily negligent as a matter of law or in the alternative constitutes a judicial admission by plaintiff that he, was contributorily negligent.”

This point comes to us without citation of authority. The Missouri Supreme Court recently rejected “an interpretation of Rule 84.04(d) which states categorically that appellate courts will not give further consideration to points which are not followed by citation of authority.” Thummel v. King, 570 S.W.2d 679, 687[12, 13] (Mo. banc 1978). But rather than undertake an analysis of Thummel to ascertain whether defendant’s fourth point, without citation of authority, requires consideration upon assumed merits, we fail to fathom in what respect defendant asseverates the dismissal amounts to a finding that plaintiff was contributorily negligent as a matter of law or that his dismissal as to Milwaukee was a judicial admission that he was contributorily negligent. Defendant’s point relied on should be self-sufficiently written so that it is unnecessary for us to resort to other portions of the brief to come by “wherein and why” plaintiff was allegedly contributorily negligent or so admitted such averred fact. Without inspecting all parts of defendant’s brief, a chore we are not obligated to perform (as yet), “wherein and why” its point warrants investigation is a matter of supposition which is not mandatory for us to explore. Rule 84.04(d); Haase v. Richmond, 570 S.W.2d 341, 343-344[1-4] (Mo.App.1978); Simpson v. Island View Sales Corp., 540 S.W.2d 624, 625-626[1—3] (Mo.App.1976). However, all the foregoing be what it may, Rule 67.03 means that “dismissal with prejudice serves as a mechanism for the termination of litigation rather than adjudication of the issues therein involved.” Denny v. Mathieu, 452 S.W.2d 114, 118[3] (Mo. banc 1970). Plaintiff’s dismissal as to Milwaukee with prejudice did not operate as an adjudication on the merits to prevent him from proceeding with the case against defendant because it was not equivalent to a jury verdict in favor of Milwaukee.

Judgment affirmed.

All concur except FLANIGAN, C. J., not participating.

      . Admittedly, plaintiff’s instruction was Missouri Approved Jury Instruction (MAI), 2d Ed., numbered 31.01 verbatim. Subsequent to trial herein, MAI 31.01 was withdrawn, revised and renumbered 25.06. MAI, 2d Ed., 1978 Pocket Part, p. 236.

      . Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      . Effective in September 1, 1973, and prior to trial of this cause, the second sentence of Rule 67.03 was revised to conform to the ruling in Denny v. Mathieu, 452 S.W.2d 114, 119[4] (Mo. banc 1970). The revised sentence reads: “A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.” Committee Note — 1974 to Rule 67.03.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Charles LEWIS, Appellant.
    No. 39357.
    Missouri Court of Appeals, Eastern District.
    March 13, 1979.

      Staples & Willis, Charles H. Staples, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of two counts of second degree murder and the resultant consecutive sentences of fifty years imprisonment on each count imposed by the court pursuant to the second offender act. We affirm.

Defendant and one or two other men were seen in the apartment of Arthur Isbell and Marie Simms stabbing Ms. Simms and ransacking the apartment. Isbell was lying on the floor. The witness to this occurrence was a ten-year-old boy. Both Isbell and Ms. Simms were dead upon arrival at the hospital from fracture wounds of the head. Defendant gave a series of statements to the police, each different. The earlier statements admitted the presence of defendant with Isbell and Simms before, but not at, the time of their killing. The final statement admitted presence at the time of the killing but disavowed participation. This final statement indicated that defendant and another man were drinking with the victims, that the other man put his arm around Ms. Simms, that Isbell then drew a razor, a struggle ensued in which Isbell was stabbed, that the other man then began beating Ms. Simms who gave him money to stop. Defendant stated that he did not participate in the stabbing or beating but instead fled the apartment. The eyewitness identified defendant as the man he saw stabbing Ms. Simms. At trial defendant testified' that he had been drinking earlier in the day with the victims but was not in the apartment when the killings occurred.

Defendant raises four points on appeal. One premises error upon the court’s action in declaring a recess during the cross-examination of the ten-year-old boy. No objection was made during the trial nor in the motion for new trial so the matter must be reviewed under the plain error doctrine, if at all. While much of defendant’s brief on this point alleges pros-ecutional deviousness in using the recess to rehabilitate the witness, the record is devoid of anything to support such accusations. When court resumed, counsel for defendant announced he had no further questions of the witness, not even questions about whether the witness had discussed his testimony with the prosecutor during the recess. Declaration of a recess is a matter within the sound discretion of the trial court. State v. Green, 534 S.W.2d 600 (Mo.App.1976) [4]. We find no abuse of that discretion, no error in the court’s action, and no indication of prejudice to defendant. There is no basis for invoking the plain error doctrine.

Defendant also premises error upon the failure of the trial court to give MAI-Cr. 2.10 (aiding and abetting) immediately after the two verdict-directing instructions covering second degree murder. This objection was not raised in the motion for new trial and is not preserved for appeal. The same is true of defendant’s next point that the court erred in failing to instruct the jury, as per MAI-Cr. 6.06, that if the act of homicide was done in “agitation” suddenly provoked by the victim such act would not warrant conviction for second degree murder. The court did instruct on exoneration if the act was committed in fear, the only one of the parenthetical mental states included in paragraph third of MAI-Cr. 6.06 which was even remotely supported by the evidence. We find no basis for invoking the plain error doctrine as to either of the alleged instructional errors.

Defendant’s remaining point, and the only one preserved for appellate review, is his claim of error by the trial court in failing to suppress statements of defendant made prior to the time Miranda warnings were given him. Defendant was questioned outside a liquor store by two policemen. The police testified that the questioning occurred because defendant was known to be a friend of the victims and might be able to furnish some information concerning the crime. He was not at the time a suspect. One police officer testified the questioning occurred on the sidewalk outside the liquor store. The other officer initially testified he “believed” the questioning occurred in a police car but thereafter testified that it initially occurred on the sidewalk. Defendant was not in any way restrained at the time of the questioning and was arrested only after he had given several inconsistent statements concerning his contacts with the victims on the day of the murders. Immediately after arrest he was given his Miranda rights.

Defendant premises his contention of error upon the argument that at the time of the questioning he had become the “focus” of the investigation. Not only does the argument lack factual support but it is irrelevant. In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) the Supreme Court made clear that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) applied to custodial interrogations i. e. those occurring after the suspect “ ‘has been taken into custody or otherwise deprived of his freedom in any significant way.’ ” Whether the investigation has “focused” on the defendant is of no real importance. See, State v. Love, 546 S.W.2d 441 (Mo.App.1976) [1]. The record here supports the trial court’s finding that the questioning of defendant occurred in non-custodial circumstances. See, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The court did not err in refusing to suppress defendant’s pre-arrest statements.

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.

      . Interposed between.the murder second degree instruction and aiding and abetting instruction was a manslaughter instruction.


author: REINHARD, Presiding Judge.

text:
    Merdise Lee PITTMAN, Appellant, v. STATE of Missouri, Respondent.
    No. 40288.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.
    Richard A. Fredman, St. Louis, for appellant.
    Paul Robert Otto, Weldon W. Perry, Jr., Asst. Attys. Gen., Jefferson City, Maureen A. Dickmann, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals the circuit court’s denial of his Rule 27.26 motion without an eviden-tiary hearing. Movant was originally convicted by a jury for two counts of armed robbery and sentenced to fifteen years on each count, the sentences to run consecutively. Movant’s conviction was affirmed on appeal but this court remanded for re-sentencing. See State v. Pittman, 549 S.W.2d 591 (Mo.App.1977). The circuit court, acting in compliance with the mandate of this court, resentenced movant to fifteen years on each count, the sentences to run concurrently.

In this proceeding on the Rule 27.26 motion, the circuit court summarily denied movant his prayer for relief. Movant appeals alleging that, contrary to the finding of the circuit court, his motion stated sufficient facts entitling him to an evidentiary hearing. We affirm.

Movant claims that he is entitled to relief because of ineffective assistance of counsel. Counsel’s inadequacies are alleged to be:

“1.) made no request for discovery from the state;
2.) had, on the day trial began, made no request for an information from the state;
3.) did not seek, prior to its being offered in evidence, to examine any physical or other evidence in the possession or control of the state; .
6.) filed no written motion to suppress evidence seized during search and seizure in the [sic] which there was no probable cause to arrest movant on January 10, 1974; . . .”

Movant underwent two trials. The first resulted in a hung jury.

From the transcript and the brief we find that a gun was offered in evidence at the second trial which had not been offered at the first trial. This evidence is the center of movant’s motion.

In order to justify an evidentiary hearing, a motion must allege facts,' not conclusions, that if true, would entitle him to relief. Tollison v. State, 556 S.W.2d 455[1] (Mo.App.1977). Movant admits on appeal that his motion is largely conclusory, but claims that it is supported by sufficient factual allegations.

Movant’s allegations do not state specific facts as to what discovery would have revealed had counsel called for it. Nowhere in his motion does movant state how such investigatory request for discovery or motion to suppress would have inured to his benefit. As stated in White v. State, 558 S.W.2d 372 (Mo.App.1977):

An allegation of failure to investigate is insufficient in the absence of factual allegations of what possible defenses might have been discovered through further investigation or how such investigation might have been of benefit to defendant. 558 S.W.2d 372 at 374.

Thus, movant’s allegations were insufficient to entitle him to an evidentiary hearing.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Cedric SAYLES, Appellant.
    No. 40312.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.

      Charles H. Staples, Sp. Public Defender, Staples & Willis, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of first degree murder, first degree burglary, assault with intent to kill and first degree robbery. His appeal to the Missouri Supreme Court was transferred by mandate to this court for opinion.

The single point raised in defendant’s appeal is that the seizure of the murder weapon from defendant’s parents’ house was the result of an unconstitutional search. We affirm.

The evidence of defendant’s guilt is overwhelming. The victims of his ferine attack were an elderly woman and her daughter in their St. Louis home. Both women were shot by a .22 caliber pistol — the daughter’s wound being mortal. A bullet, pierced the mother’s body, but her wound was not fatal. However, she succumbed to a heart attack prior to the trial. The defendant was observed in the yard of the victims’ home before a series of gunshots were heard. He was seen carrying a pistol and was positively identified on the victims’ property shortly before and after the shootings. He was also observed driving the victims’ auto from their garage and was subsequently captured by police in a foot chase after he had fled from the stolen auto.

The day after the crime spree a police officer participating in the investigation went to defendant’s parents’ home. Defendant’s mother was present and the police officer told her that he would like permission to search the house for the gun used in the homicide. According to the police officer at the motion to suppress evidence, he asked the mother: “I’d like to search Cedric’s [defendant’s] room and any place that he might stay in the house.” (emphasis added) After making a telephone call to her husband (defendant’s father), the mother gave the police officer permission to make the search that he had requested. Defendant’s brother who was home on leave from the Army was directed by the mother to take the police officer to the defendant’s bedroom on the third floor of the house which was shared by the defendant, his 21 year old brother and 21 year old cousin. A brief search of the bedroom revealed nothing. The police officer then asked the defendant’s brother: “if there was anywhere else in the house that Cedric might spend a lot of time, and Carl [the brother] advised me that they had like a recreation room in the basement, and Cedric sometimes slept down there.” The defendant’s brother took the police officer to the basement where the search for the weapon continued. The brother “walked to a window in the back of the basement that had a curtain over it, and moved the curtain aside, apparently to look out the window. When he [the brother] raised the curtain he said, ‘Officer, is this what you are looking for?’ and indicated the revolver laying on the window sill.” The gun was taken by the police officer and was ballistically determined to be the weapon used to shoot the victims.

The defendant moved to suppress the gun as evidence in the trial, claiming that its seizure was unconstitutionally infirm as a result of an unlawful, warrantless search. In support of the motion to suppress, the defendant has acknowledged that the mother gave the police officer consent to search the defendant’s bedroom on the third floor of the house. However, the mother in contradiction to the police officer’s testimony steadfastly denied any consent to search the basement. The defendant concedes that there may be rightful consentive search when consent is given by one with proper standing. And defendant does not contest the fact that the mother could and properly did give consent to the search of the bedroom, which defendant shared with his brother and cousin. His argument is that the state must prove consent by clear and convincing evidence — not by a mere preponderance of the evidence. Here, the evidence is undisputed that the basement where the pistol was found was used by nearly everyone in the house as a sleeping quarters in the hot summer and as a recreational area. The defendant and his entire family made use of the basement. The conflict arises as to whether the consent by the mother of a search in the house extended to the basement area where the gun was found. The police officer said that he was given such consent when he asked to search the defendant’s bedroom “and any place that he might stay in the house.” It is clear from the evidence that the defendant did stay with others in the basement on a frequent basis. The mother testified that the police officer only asked to search the bedroom and not any other place; that her consent to the search was limited to the bedroom. The trial judge in ruling in the motion to suppress chose to believe the police officer. We find that the trial court in believing the testimony of the police officer was not in error in overruling defendant’s motion to suppress the introduction of the pistol, for if the trial court were to believe the police officer, the consent to search did extend to the basement.

In reaching our decision we are guided by the unchallenged fact that the house belonged to defendant’s parents, and they had not relinquished their control over the basement to defendant’s exclusive use. The basement was available to all members of the household, and the defendant did not have a reasonable right of privacy to the basement where the gun was found. The only conflict that exists is whether the police officer was given consent to search the basement, and the evidence was sufficient to support such a finding by the trial court. Clearly defendant’s mother could give the requisite consent under the circumstances here to search the entire house. State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972); State v. Abbott, 571 S.W.2d 809 (Mo.App.1978); State v. Williams, 536 S.W.2d 947 (Mo.App.1976).

The defendant argues that proof of consent should be clear and convincing evidence established by “written evidence of the fact of and scope of consent.” But that is not the law. As defendant acknowledges in his brief, “[t]he State has the burden to prove by a preponderance of the evidence there was consent to search the place where the evidence was seized,” and, indeed, that is the rule in Missouri — proof of consent by a preponderance of the evidence. State v. Peterson, 525 S.W.2d 599 (Mo.App.1975).

The trial court chose to believe the police officer’s testimony regarding the consent to permit his search of the basement. It is the trial court’s function — not ours — to resolve conflicts in testimony and determine the credibility of witnesses. State v. Alewine, 474 S.W.2d 848 (Mo.1975); State v. Oldham, 546 S.W.2d 766 (Mo.App.1977). The evidence was sufficient to support the trial court’s finding that the search of the basement was properly made with valid consent.

The defendant also argues that his brother could not give consent to search the basement as he was home on leave from the Army and was only temporarily at the defendant’s parents’ home. But our decision rests on the mother’s consent to the search, and we need not deal with whether the brother could also give consent.

Judgment affirmed.

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

      . The mother and father denied any such phone call.

      . Defendant relies on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), for his written consent. But Katz — a wire tap case not decided on the consent issue — is not on point.