author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Terry TOLLIVER, Appellant.
    No. KCD 28983.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    Application to Transfer Denied April 10, 1978.

      Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted on two counts of felonious assault with malice aforethought upon the Erganians, husband and wife, and was sentenced to consecutive terms of twelve and twenty-five years imprisonment.

The victims testified they were shot in a robbery attempted against them as they closed their grocery store on the night of January 1,1976. The assailant was masked and so neither was able to make identification. They did testify, however, that the man who shot them was of the same stature and gait as the defendant. The principal witness for the prosecution was a youth, Thornton, fifteen years of age. He was the lookout for the crime and worked in concert with defendant Tolliver and one Lankford. The defendant Tolliver approached the Er-ganians with a pistol as they entered their automobile and shot them before they could comply with the demand for money.

The defense attempted to impeach Thornton by prior statements assertedly inconsistent with his trial testimony. Objections to this and other cross-examination were sustained and the defendant contends error.

The evidence for the defense was alibi given by a former paramour of the defendant and another acquaintance, each of whom testified the defendant was with them at the date and time of the crime. On cross-examination each witness admitted prevarication to the prosecutor as to their activity at the time of the event.

The defendant contends that the trial court improperly restricted cross-examination of salient prosecution witness Thornton and should be given a new trial because of those errors. This complaint subsumes four incidents.

The first has to do with an attempt by the defense to impeach witness Thornton, who testified at trial that on the morning of the crime Tolliver and Lankford had driven to the north end of town, by his earlier statement that they had driven to the south end of town. The court excluded this examination as a collateral inquiry.

A witness, of course, may be impeached by extrinsic proof of a prior inconsistent statement but not as to matters which are collateral. Examination is not collateral, but as to a relevant matter— by one explanation — if the contradiction is to “any part of the witness’s account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true.” State v. Alexander, 499 S.W.2d 439, 443[3] (Mo.1973); McCormick on Evidence § 47 (1954). Examination is not collateral — by a more formal explanation — when the contradiction is to a matter on which proof would be allowed independently. United States v. Blackwood, 456 F.2d 526, 531[9, 10] (2d Cir.1972). The general direction of their travel taken earlier on the day of the crime was of no significance, either as to the prosecution or the defense. It was not material to the transaction and a mistake by the witness to that event does not impair the truthfulness of his other testimony. The exclusion of evidence whose relevance is not apparent will not be adjudged error unless the party who seeks admission proffers the intended proof and the purpose it purports to serve. State v. Davis, 515 S.W.2d 773, 775[2] (Mo.App.1974). This the defendant failed to do.

The defendant then attempted to impeach witness Thornton by a supposed inconsistency between his trial testimony that he did not look into the Erganian store as prelude to robbery and a prior statement to police that the defendant Tolliver went to the door of the store and there were two persons — a man and a woman — inside. The defendant contends this question was ruled a collateral inquiry and improperly excluded by the court on that ground. The record shows only that the inquiry was discontinued on the initiative of defense counsel “to lay some more foundation,” but never resumed. The point is overruled.

The defendant next complains that he was unjustly kept from impeachment of witness Thornton as to a diagram of the scene identified by him earlier at the police station. The gist of the contradiction which the defendant sees is that, whereas at trial he testified that the automobile did not appear on the diagram, earlier Thornton had told the police that the vehicle appeared on the diagram in the proper place. This contention misrepresents the actual testimony and the conduct of the court. The trial testimony merely was that the diagram was not complete when shown to him by the police, not that the automobile did not appear in place on the drawing. The clear purpose of the objection to the question of defense counsel: “Now, just a few minutes ago you said the car wasn’t on there . . . ”, was to avoid confusion from misstatement of evidence. The exclusion by the trial court averted that distraction.

The defendant then contends that the court unduly limited cross-examination by refusal to allow him to question Thornton about contradictory statements made by the witness to the police as to whether he heard Mrs. Erganian say anything in the car at the time of the robbery attempt. Counsel had earlier elicited an admission from Thornton that he told the police he heard her say “Get out” to defendant Tol-liver when he invaded the Erganian car in contradiction of a later statement that “[he] really couldn’t hear what the people said in the car.” Thus, the question which counsel attempted to put to the witness, and excluded by the court, was merely repetitive of earlier testimony. The action of the trial court was clearly within a permissible discretion.

It is fundamental, of course, that the right of cross-examination is essential to a fair trial. Chambers v. Mississippi, 410 U.S. 284, 295[4, 5], 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The right of the cross-examiner — subject always to the control of the court to preclude repetition and harassment — extends not only to test the perceptions and memory of the witness but also to discredit and impeach him. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). The trial incidents the defendant describes disclose no infringement of these principles. They show only an untutored attempt at impeachment without clear understanding of what contradiction means or of the manner to exploit the benefits. The trial court was called on repeatedly to keep out confusion from repetition, contention and misstatement. In this perspective, we conclude that these complaints are groundless.

At the outset of trial the State brought a formal motion in limine to prohibit the defense from impeachment of prosecution witness Thornton by his juvenile record. The pleading recited the prior adjudications against the witness as a juvenile, that unless prohibited the defense would use those adjudications to impeach the credibility of witness Thornton, and moved the exclusion of those records as evidence against him under the provisions of § 211.271.3. The motion was taken and ruled without evidence or argument and sustained by the court. The defendant contends — the prohibition of the statute notwithstanding — that this exclusion impaired his Sixth Amendment right to confront and impeach the witness in direct violation of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 374 (1974).

Davis does not control our decision. In that case, the prosecutor moved to protect his witness against any reference to his juvenile record by the defendant on cross-examination. The witness was then on probation by order of the juvenile court. In opposition to the request for protective order the defendant made it clear that he did not intend to use the juvenile adjudication as a general impeachment of credibility, but rather to show that the testimony of the witness was induced by concern for his probation should he refuse to testify for the State. That is, the defendant intended to probe the juvenile record to show the bias and prejudice of the witness and not merely to call his general good character into question. The trial court granted the protective order on the basis of a court rule and statute [comparable in terms to § 211.271.3] which prohibited an adjudication, order or disposition in a juvenile case admission in other proceedings.

The United States Supreme Court reversed on the rationale [l. c. 315 et seq., 94 S.Ct. 1105] that the Sixth Amendment right of an accused in a criminal proceeding to confront the witnesses against him means more than merely to require the physical presence of the accuser, but includes opportunity to cross-examine his person. That is because cross-examination is the traditional means to test the truth and credibility of a witness. The court distinguished between two different uses of cross-examination as impeachment: one discredits the general credibility of the witness and the other attacks the particular motivation of the witness to testify.

The first impeachment is usually by means of evidence of a prior criminal conviction of the witness [l. c. 316, 94 S.Ct. 1110]:

By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in this testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. [Emphasis supplied]

The second form of impeachment discredits the witness by a particular attack on credibility by a cross-examination which probes the bias, prejudice or ulterior motive of the witness as they relate to the issues and persons in the case. This rests on the principle that the partiality of a witness is always relevant to discredit the witness and to affect the weight of his testimony. This method of impeachment which directs a particular attack on credibility [l. c. 316—317, 94 S.Ct. 1110]:

[by] the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination .

It was this right to explore the bias of the witness because of his vulnerable status as probationer that the defendant in Davis sought to exercise and the statute prevented. The United States Supreme Court concluded that a State statute to preserve the anonymity of a juvenile offender notwithstanding [l.c. 319, 94 S.Ct. 1112]:

the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness. [Emphasis supplied]

Thus, the crux of the opinion is that a State policy to protect the confidentiality of a juvenile offender record yields to the constitutional right to cross-examine for the bias of an adverse witness. But “[t]he Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” [Davis, concurrence of Mr. Justice Stewart, l. c. 321, 94 S.Ct. 1112].

The protective order before us merely prohibited use of the Thornton juvenile offense record as a general attack on his credibility. The court was neither requested, nor can the order be understood, to refuse the defense use of the prior adjudications to expose the bias and prejudice or other motive of witness Thornton which could relate to the issues. The defense made only a general objection to the motion for protective order. Now on this appeal, in an apparent move to bring himself within Davis, the defense contends that witness Thornton was a juvenile court probationer and was induced to his testimony for the State by concern that his status would be revoked should he refuse — a fact the jury should have been given to assess the weight to be given his testimony. There is no basis for the inference that the witness was a probationer when his testimony was given, either from the evidence or as an assumption from an offer of proof, but only the ipse dixit of the defendant himself. That bare assertion does not prove his argument. The point is denied. State v. Ball, 527 S.W.2d 414, 416[2] (Mo.App.1975).

The last point contends that the defense was prejudiced by prosecutor comment in rebuttal argument on the credibility of the defense alibi witnesses, a subject mentioned neither by the State nor the defendant during earlier argument, and to which the defense was denied opportunity to reply.

In his rebuttal the prosecutor commented: “Now, Mr. Tolliver and the defense attorney would have you believe that he was with two alibi witnesses — .” The defendant promptly objected on the ground that he had not mentioned alibi during his argument and so the prosecutor was precluded from that subject. The objection was overruled, but the prosecutor discontinued the contention altogether. The defendant contends that the momentary reference to alibi prejudiced the verdict against him.

The rule that counsel who has the affirmative must fairly state the essential points of his case in opening argument so that the defendant may answer them applies to criminal as well as civil cases. State v. Peterson, 423 S.W.2d 825, 827 et seq. (Mo.1968). The application of this principle in criminal cases has operated, virtually exclusively, to prevent a prosecutor who fails to exhort punishment in the opening argument from mention of that subject in closing argument. State v. Hale, 371 S.W.2d 249, 255[12—16] (Mo.1963); State v. Wadlow, 450 S.W.2d 200, 201[1] (Mo.1970); State v. Fair, 467 S.W.2d 938, 940[1] (Mo. banc 1971). Logic of principle and fairness, however, require that a prosecutor disclose not only his position on punishment but also all other points essential for conviction in time to allow the defendant opportunity to reply.

A criminal conviction requires proof that the defendant was at the scene of the crime at the time it was committed. The burden rests upon the prosecution to prove this essential element of the offense beyond a reasonable doubt. MAI-CR 3.20; Wharton on Criminal Evidence § 23 (13th ed. 1972). Alibi is a bare negation of the charge that defendant was present at the time and place of the offense and by necessary implication denies that defendant was the person who committed the crime. State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 706[11] (1943); 22 C.J.S. Criminal Law § 40. Alibi, therefore, does not import proof but denial of an essential element of the prosecution case. It is in the nature of an affirmative converse upon which the defendant bears no primary burden of proof but only the burden to come forward with evidence to allow submission of the issue to the jury. The burden to prove beyond a reasonable doubt that the defendant committed the crime at the time and place alleged remains constant upon the prosecution. Missouri Bar Committee Comments on MAI-CR 3.20, Alibi; State v. Broomfield, 510 S.W.2d 843, 846[3, 4] (Mo.App.1974).

The conclusion follows that alibi was not a proof essential to conviction which the prosecutor was obliged to argue in his opening, if at all, to allow the defendant opportunity to reply. The prosecutor did argue at the outset that it was the defendant who, in concert with the two others, committed the crime. Counsel answered with an attempt to cast doubt on the identification made of the defendant by the two victims and by disparagement of the credibility of Thornton, also charged with the crime, but a witness for the prosecution. Counsel made no attempt to make use of the alibi testimony given for the defendant. A fair inference may be drawn that a defendant who fails to argue the effect of alibi testimony — when that is his only evidence and the position upon which he stakes acquittal — tacitly admits the weakness of his case. The basic principles of adversary trial allow one party to exploit the weakness of the other to lead the jury to a true result.

The prosecutor properly undertook to comment on the alibi testimony, even if for the first time in closing argument, and the denial of objection was properly ruled.

The judgment is affirmed.

All concur.

      . That statute provides, inter alia: “After a child has been taken into custody as provided in section 211.131 [of the Juvenile Code]. . all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.”


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lee WATSON, Appellant.
    No. KCD 28906.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.

      William G. Mays, II, Public Defender, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   TURNAGE, Judge.

Lee Watson was sentenced to 25 years imprisonment for armed robbery and 2 years for stealing by deceit, with the two year sentence to run concurrently with the greater sentence. Sentencing was by the court under the Second Offender Act.

On this appeal Watson raises three points, but only one has been preserved by mention in his motion for a new trial. That point relates to the propriety of the conviction of stealing by deceit because Watson contends the victim voluntarily delivered money to him. Affirmed.

Watson does not raise any question concerning the sufficiency of the evidence to support the conviction on both counts. Watson and the State agree the following are the facts pertaining to the point preserved for appeal.

An armed man accosted the attendant of a gas station in Columbia shortly after noon. Apparently while this man was binding the attendant and taking money from him, Watson was in the drive of the station. A customer drove into the station and Watson approached the car and asked if he could check the oil. The customer declined the offer but after obtaining gasoline from a self service pump, experienced difficulty in replacing the nozzle. Watson advised him to simply push the lever down. The customer then took out three one-dollar bills to pay for his purchase and Watson held out his hand. The customer handed the $3.00 to Watson. Watson advised the customer he had to start a truck at a bowling alley and walked rapidly away. As Watson left, the customer began to leave but discovered the station attendant emerging from the building. The attendant stated he had been robbed. At this time a car left the station lot at a high rate of speed and the girl with the customer recognized the driver as the man who accepted the $3.00 in payment for the gasoline.

As noted, Watson raises three points on appeal, but two of these were not mentioned in his motion for a new trial and are, therefore, not preserved for review. State v. Webb, 544 S.W.2d 53, 54[1, 2] (Mo.App.1977).

The point preserved for review challenges the classification of stealing by deceit in § 560.161, RSMo1969 as a felony when money is voluntarily handed over without any physical force or threats. Stealing by deceit is denounced by § 560.156. That section provides in part: “(2) It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.” Section 560.161 classifies stealing by deceit as a felony “if the property intentionally stolen: (1) is taken from a dwelling house or a person . . . .”

Watson argues the $3.00 was taken from the possession of the customer and not from his person. Watson reaches this conclusion because the taking was without any threat of bodily harm or invasion of the body of the customer but, on the contrary, the customer voluntarily handed his money to Watson. Watson cites cases in which stealing was upheld when there was physical violence involved in the taking of the property.

The answer to Watson’s argument lies wholly in the language of the statute. Section 560.156 prohibits stealing by deceit. Deceit, of course, does not require the use of force or violence. While it may be stated the customer voluntarily handed his money to Watson, of course, he did not do so voluntarily in the legal sense. He did so acting on the reasonable appearance given by Watson as being an employee of the station and one who was authorized to assist customers and receive payment for gasoline. Certainly the Legislature condemned the stealing of money by deceit in the same way as stealing by force or violence. Watson does not question the fact his acts amounted to deceit.

Watson next contends there was no taking of property from the person of the customer to bring his acts within the scope of the felony definition in § 560.161. Again, Watson urges the customer voluntarily handed his money over to Watson and, therefore, there was no taking from the person of Watson. The phrase “from the person” was defined many years ago in State v. Lamb, 242 Mo. 398, 146 S.W. 1169[2] (1912). There the court stated: “[a]t common law it was ruled that the charge of robbery from the person was satisfied by proof that the money was taken in the presence of the person.” There can be no doubt the $3.00 was in the presence of the victim when he handed it to Watson. Thus, there can be no question the money was taken from the person of the customer and within the meaning of that phrase this satisfied the requirement to constitute the crime a felony.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMol969 unless otherwise noted.


author: SOMERVILLE, Judge.

text:
    Delores BLY and Roland Bly, Appellants, v. SKAGGS DRUG CENTERS, INC., Respondent.
    No. KCD 28802.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.

      Elwyn L. Cady, Jr., Independence, for appellants.
    Danny L. Curtis, Niewald, Risjord & Wal-deck, Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Plaintiffs Delores Bly and Roland Bly, husband and wife, brought an action for damages in two counts against Skaggs Drug Centers, Inc. Count one was a claim by Delores Bly for damages for her alleged false imprisonment by Skaggs. Count two was a claim by Roland Bly for damages for loss of consortium as a result of the alleged false imprisonment of his wife. The case was tried to a jury. At the close of plaintiffs’ evidence the trial court sustained Skaggs’ motion for a directed verdict as to count two of plaintiffs’ petition. Count one of plaintiffs’ petition, however, was submitted to the jury and resulted in a verdict in favor of Skaggs and against Delores Bly. Following an unsuccessful joint motion for a new trial, both plaintiffs appealed.

The incidents giving rise to this action occurred on July 1, 1972. The jury could have reasonably found that around noon on that day Delores Bly (then Delores Stephenson — her marriage to Roland Bly did not occur until the evening of July 1, 1972) went to the Skaggs Drug Store in Raytown, Missouri, to get a prescription for “diet pills” filled. After the prescription was filled, she walked away from the pharmaceutical counter and furtively glanced around the store as she placed the “diet pills” in her purse. She then bypassed the cash register in the checkout area of the store and started to exit the building when she was restrained by David Rogers, assistant manager of the store, for failing to pay for the “diet pills”. David Rogers had Delores Bly under surveillance from the time she left the pharmaceutical counter up until the time she was restrained. He did so because the pharmacist who waited on Delores Bly told him over the store’s intercom system that the records of the pharmaceutical department indicated that two or three previous prescriptions filled for Delores Bly were never paid for.

On appeal Delores Bly contends the trial court erred (1) in taking judicial notice of Section 537.125, RSMo 1969, and, after doing so, in reading a portion of subsection 3 thereof to the jury, (2) in refusing Instruction No. 2-A (plaintiff’s verdict director) which Delores Bly prepared and requested, and in giving Instruction No. 2 (prepared by the trial court) in lieu thereof, and (3) in giving Instruction No. 3 (Skaggs’ verdict director). Roland Bly contends the trial court erred in directing a verdict in favor of Skaggs and against him concerning his claim for damages for loss of consortium.

In a very real sense, Delores Bly was responsible for the error she now associates with Section 537.125, supra. During the course of her direct examination, she was permitted to testify (over defendant’s hearsay objection) that a police officer who arrived at the store shortly after she was restrained stated that a person had to physically leave the premises of a merchant before they could be apprehended for “shoplifting”. Counsel for plaintiff responded to defendant’s objection by arguing that the police officer’s statement was admissible under the res gestae doctrine (?), and the trial court apparently admitted it on that theory. Immediately prior to the close of defendant’s evidence, apparently in an effort to allay any adverse effect the statement attributed to the police officer might have on the minds of the jurors, counsel for defendant asked the trial court to take judicial notice of Section 537.125, supra, and the trial court did so. Defense counsel then asked the trial court to read the first portion of subsection 3 to the jury, and the trial court complied. Counsel for plaintiff objected to the trial court taking judicial notice of Section 537.125, supra, on the ground that it was improper to do so, and on the further ground that there was no evidence to support the defense authorized therein. When these objections failed, and it had become apparent that the trial court was going to accede to defense counsel’s request to read a portion of the statute to the jury as evidence in the case, counsel for plaintiff then insisted that the trial court read all of the statute to the jury rather than merely the designated portion, and objected to the trial court’s refusal to do so.

As to the first segment of the above evidentiary point, it was not improper for the trial court to take judicial notice of Section 537.125, supra. As stated in Bowen v. Missouri Pac. Ry. Co., 118 Mo. 541, 24 S.W. 436, 437 (1893), “[i]t is a well-settled rule that courts of justice are bound to take judicial notice of public statutes enacted by the legislature of the state where the courts are held.” See also: State ex rel. and to use of Gagnepain, 322 Mo. 376, 15 S.W.2d 815, 817 (banc 1929), and Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 599 (1932). Moreover, there was sufficient evidence from which the trial court could conclude that the defense authorized by Section 537.125, supra, was available to Skaggs. As to the final segment of this evidentiary point, it was “wholly improper” for the trial court to read even a portion of Section 537.125, supra, to the jury. Domijan v. Harp, 340 S.W.2d 728, 734 (Mo.1960). Perforce, reading all of the statute to the jury, as plaintiff’s counsel insisted, would have merely compounded the error. Notwithstanding the error committed by the trial court in reading a portion of Section 537.125, supra, to the jury, doing so did not constitute reversible error as the various objections lodged by plaintiff’s counsel were fatally remiss in not stating proper grounds for the exclusion of this otherwise inadmissible evidence. Such being the case, Delores Bly’s claim of error on appeal falls within the well settled rule that a trial court will not be convicted of reversible error for admitting inadmissible evidence, even though objected to during trial, if the trial objection is not specific or fails to contain the proper ground for its exclusion. Stafford v. Lyon, 413 S.W.2d 495, 498 (Mo.1967); Appelhans v. Goldman, 349 S.W.2d 204, 207 (Mo. 1961); Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539 (1950), and Gerald v. Caterers, Inc., 382 S.W.2d 740, 743 (Mo.App.1964). Plaintiff’s counsel missed the mark by failing to object on the ground that reading a portion of the statute to the jury constituted an untimely and inappropriate comment or instruction by the trial court on the law in the case under the guise of favorable evidence on behalf of Skaggs.

Next to be considered is Delores Bly’s contention that the trial court erred in refusing Instruction No. 2-A, the verdict directing instruction which she prepared and requested, and in giving Instruction No. 2 in lieu thereof.

MAI 23.04, captioned “Verdict Directing — False Imprisonment", reads as follows:

“23.04. Verdict Directing — False Imprisonment
Your verdict must be for the plaintiff if you believe:
Defendant intentionally restrained [instigated the restraint of] plaintiff against his will [unless you believe plaintiff is not entitled to recover by reason of Instruction No. (here insert number of affirmative defense instruction)].”

Instruction No. 2-A, tendered by Delores Bly and refused by the trial court, reads as follows:

“INSTRUCTION NO. 2-A
Your verdict must be for plaintiff if you believe:
David Rogers intentionally restrained and instigated the restraint of plaintiff against her will, unless you believe plaintiff is not entitled to recover by reason of Instruction No._
(MAI 23.04) (REFUSED).”

Instruction No. 2, given by the trial court in lieu of Instruction No. 2-A, and over Delores Bly’s objection, reads as follows:

“INSTRUCTION NO. 2
Your verdict must be for plaintiff if you believe:
David Rogers intentionally restrained plaintiff against her will, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 3. (MAI 23.04) (GITrEN)”

David Rogers’ status as Skaggs employee, and the fact that he was acting within the scope and course of his employment at the time, were never questioned.

Delores Bly asserts that Instruction No. 2 prejudicially withdrew from the jury her theory that David Rogers, Skaggs’ assistant manager, both intentionally restrained her and intentionally instigated her restraint at the time in question. It is appropriate at this juncture to take note that a party may be held liable for false imprisonment even though he does nothing more than “instigate” the unlawful restraint of another against his will, and “instigate” in this context has been held to mean “ ‘to stimulate or goad to an action, especially a bad action.’ ” Checkeye v. John Bettendorf Market, 257 S.W.2d 202, 203 (Mo.App.1953). As a party may be held liable for false imprisonment by either intentionally restraining or intentionally instigating the restraint of another against his will, MAI 23.04, supra, was wisely given a binary dimension by its drafters. The phrase “instigated the restraint of”, contained in brackets in MAI 23.04, points up this built-in flexibility. Although the “Notes on Use” and “Committee’s Comment” in conjunction with MAI 23.04 make no reference to the bracketed phrase in question, common sense leaves no doubt that alternative submissions are provided by MAI 23.04, the appropriate submission in a given case being dictated by the evidence. The evidence in the instant case discloses that David Rogers, Skaggs’ assistant manager, intentionally restrained Delores Bly, as opposed to instigating her restraint in the legal sense obviously connoted by the bracketed phrase in MAI 23.04. All of the evidence viewed in the light most favorable to Delores Bly fails to support the bifurcated, conjunctive submission set forth in Instruction No. 2-A which she tendered and had refused. As Instruction No. 2 given by the court properly conformed to both MAI 23.04 and the evidence in the case, Delores Bly’s attack thereon must fail.

Instruction No. 3, given at the request of Skaggs, reads as follows:

“Your verdict must be for defendant if you believe:
First, defendant was engaged in mercantile trade, and
Second, defendant had reasonable grounds or probable cause to believe that plaintiff wrongfully had taken or was taking merchandise or money, and Third, plaintiff’s restraint was made in a reasonable manner and for a reasonable length of time for the purpose of investigation.”

MAI 32.13, which Instruction No. 3 followed to the letter, is the approved pattern instruction for submitting the affirmative defense authorized by Section 537.125, supra, in false imprisonment cases, which was pleaded by Skaggs. In all candor, the reasons behind Delores Bly’s objection to Instruction No. 3 are difficult to ascertain. They appear to be twofold: (1) that Section 537.125, supra, the genesis for the affirmative defense submitted in said instruction, requires evidence of an actual taking of merchandise from a merchant’s premises in order to support the giving of said instruction; and (2) that Instruction No. 3 (in Delores Bly’s own words) is a “mish-mash” of “two conditional privileges granted by the statute”. Delores Bly’s contention that Section 537.125, supra, required evidence of an actual taking of merchandise from Skaggs’ premises in order to support the giving of Instruction No. 3 (MAI 32.13) has no foundation in the language of the statute and, in fact, is contrary to its clear and explicit language in two respects. Subsection 2 of Section 537.125, supra, speaks in terms of “reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment” and subsection 3 of Section 537.125, supra, speaks in terms of “willfully concealing unpurchased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment”. Both are antithetic to Delores Bly’s contention that merchandise must actually be removed from a merchant’s premises before the affirmative defense prescribed by Section 537.125, supra, exonerating a merchant from liability, can be asserted. Delores Bly’s complaint that Section 537.125, supra, grants “two conditional privileges”, and that Instruction No. 3 (MAI 32.13) is a “mish-mash” of them, fails to score. Section 537.125, supra, and MAI 32.13, which is virtually drawn verbatim therefrom, grant and speak of but one privilege embodied in the affirmative defense prescribed by the statute and submitted by the instruction — the privilege of “[a]ny merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, . . . [to] detain such person in a reasonable manner and for a reasonable length of time for the purpose of investigating whether there has been a wrongful taking of such merchandise or money.” MAI 32.13 faithfully follows Section 537.125, supra, and was and is a viable and extant instruction for submitting the statutorily established affirmative defense. Unquestionably, the statutory affirmative defense was supported by the evidence and Skaggs was entitled to have it submitted to the jury. Since MAI 32.13 was applicable, its use was mandatory for submitting Skaggs’ affirmative defense. Bueche v. Kansas City, 492 S.W.2d 835, 840 (Mo. banc 1973).

Finally, Roland Bly questions the action of the trial court in directing a verdict in favor of Skaggs on his claim for damages for loss of consortium. The trial court was eminently justified in doing so because there was not a scintilla of evidence that Roland Bly sustained any damage as a direct result of his wife’s alleged false imprisonment. As so aptly stated in Hopkins v. Mobile & O. R. Co., 33 S.W.2d 1009, 1010 (Mo.App.1931), “[i]n a case of this character, two independent rights of action .

[exist], one for injury to the wife, and the other for consequential injuries suffered by the husband on account of the loss of society, services, and expenses, which he had been forced to suffer on account of the injuries to his wife . . . [i]njury to the wife does not necessarily imply injury to the husband . . . [t]he injury to the wife is direct and the injury to the husband is indirect . . . [t]he husband cannot recover for an injury to the wife in and of itself, but may recover when it produces damages to him.” See also: Robben v. Peters, 421 S.W.2d 753, 757 (Mo.App.1968), and Alexander v. Kansas City Rys. Co., 231 S.W. 66, 67 (Mo.App.1921).

Judgment affirmed.

All concur.

      . All prescriptions filled by the pharmaceutical department were placed in a packaging device containing three “stubs”. A number was assigned to each prescription, and all three stubs contained the number assigned to that particular prescription. One “stub” was removed and retained by the pharmaceutical department after a prescription was filled, one was removed and retained at the checkout counter when the prescription was paid for, and the third remained with the customer. At the end of each day the “stubs” removed and collected at the checkout counter were cross-checked against those removed and retained at the pharmaceutical counter.

      . “537.125. Shoplifting: Detention of suspect by merchant — liability presumption
      1. As used in this section:
      (1) ‘Merchant’, means any corporation, partnership, association or person who is engaged in the business of selling goods, wares and merchandise in a mercantile establishment;
      (2) ‘Mercantile establishment’, means any mercantile place of business in, at or from which goods, wares and merchandise are sold, offered for sale or delivered from and sold at retail or wholesale;
      (3) ‘Merchandise’, means all goods, wares and merchandise offered for sale or displayed by a merchant;
      (4) ‘Wrongful taking’, includes stealing of merchandise or money and any other wrongful appropriation of merchandise or money.
      2. Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner and for a reasonable length of time for the purpose of investigating whether there has been a wrongful taking of such merchandise or money. Any such reasonable detention shall not constitute an unlawful arrest or detention, nor shall it render the merchant, his agent or employee, criminally or civilly liable to the person so detained.
      3. Any person willfully concealing unpur-chased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment, shall be presumed to have so concealed such merchandise with the intention of committing a wrongful taking of such merchandise within the meaning of subsection 1, and the finding of such unpur-chased merchandise concealed upon the person or among the belongings of such person shall be evidence of reasonable grounds and probable cause for the detention in a reasonable manner and for a reasonable length of time, of such person by a merchant, his agent or employee, in order that recovery of such merchandise may be effected, and any such reasonable detention shall not be deemed to be unlawful, nor render such merchant, his agent or employee criminally or civilly liable.” (Emphasis added to delineate the portion read to the jury.)

      . An interesting question surfaces in this case, although never raised or briefed by the parties. Did Roland Bly have a cause of action for damages for loss of consortium since his marriage to Delores Bly occurred subsequent to the incident giving rise to her claim for false imprisonment? This court’s limited research indicates that this question appears to be one of first impression in this state and that a split of authority exists in those jurisdictions which have confronted the question.


author: PRITCHARD, Presiding Judge.

text:
    Rex LAWRENCE, Appellant, v. MODERN MOBILE HOMES, INC., Respondent.
    No. KCD 28677.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    S. W. Longan, III, Daniel J. Flanigan, Kansas City, for appellant; Logan, Alder, Wilson & Epstein, Kansas City, of counsel.
    Carl A. Hummel, Harlan D. Burkhead, Kansas City, for respondent; Lathrop, Koontz, Righter, Clagett, Parker & Nor-quist, Kansas City, of counsel.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Appellant’s action against respondent was for a revocation of acceptance (“rescission”) of his purchase of a mobile home because of alleged defects therein. The trial court denied him the relief prayed for except for an allowance it found to have been expended by him in the amount of $56.00 for repairs to the home.

The dispositive issue is whether appellant’s continued use, under all the facts and circumstances, bars him from obtaining the requested relief.

The facts are these, as presented solely by appellant, respondent having presented no evidence: Before purchasing the mobile home on January 29, 1973, and signing a retail installment contract and a security agreement, appellant on three occasions looked at homes on respondent’s lots. Because the homes were parked closely together, he was unable to inspect the outside. It was dusk each time he looked at the homes, and the only light inside was a single bulb. Respondent’s salesman told appellant that “the Van Dyke Guerdon was the best trailer that Guerdon Industries made.” The home was delivered to appellant’s lot by respondent, on February 2, 1973, and he moved into it three days later. On February 29, 1973, he complained about dents on the outside of the home, and a dented sink, and an employee of respondent came to look at it, telling him that new parts would have to be ordered. Respondent did install a new front panel in late March, 1973, at which time appellant made complaints about other defects, and the employee assured him they would be repaired.

Appellant’s evidence showed many defects in the mobile home, but it is unnecessary to set them forth. The trial court observed, “I don’t think that there’s any contest that there’s some defects in this mobile home; and I don’t have any problem in determining that there were some things that were not done right.”

The complaints of appellant to respondent continued until September, 1973, during which time respondent told him that the parts had been ordered for 5 to 7 months, but had not come in. In April, 1973, appellant asked respondent to take back the home, but was told that it did not want it back and for him to contact Guerdon Industries. Appellant’s wife, Paula Diane Lawrence, asked Guerdon to pick up the home in June, 1973, and was told to contact the bank and see what could be done. Twice, in August, 1973, appellant tried to get respondent to take the home back, but it denied the requests. Appellant, in September, 1973, directed his attorney to tender the mobile home in its existing condition to respondent, and to demand a rescission of the sales contract. Within several days thereafter, respondent’s Mr. Frye called appellant and told him he had the parts, and that they would come out and fix everything that was wrong with the trailer. “And I told him over the phone that on the advice of my lawyer, that I would not have any more warranty work or anything done to the trailer.”

The trial court was not requested to, nor did it make, findings of fact and conclusions of law. At the outset of the trial, the court, however, remarked, “ * * * [B]ut I thought it was pretty definite about if you use something you waive any right to rescind”, and “[B]ut to rescind I think generally you have to turn it back in the shape you got it; because if you use it, then you’ve waived the recision part. You wouldn’t wave, perhaps, damages; but you can’t turn your bargain back.” The court expressly found against appellant on the issue of rescission. Appellant contends that the court erred in finding as a matter of law that he had waived the right to revoke his acceptance by continued use of the mobile home. Respondent contends that the use after notice of revocation of acceptance is a waiver of the buyer’s right to revoke as a matter of law. The issue presented is governed by the Uniform Commercial Code, as adopted in this state. § 400.2-608, RSMo 1969, provides:

“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”

The evidence submitted by appellant shows defects in the mobile home which amount to nonconformity substantially impairing its value to him after he accepted it. Not only was appellant reasonably entitled to assume that the nonconformity (defects) would be cured because of respondent’s repeated assurances that repairs would be made, it is also apparent that from February through September, 1973, on up to the time suit was filed in 1974, the curing repairs were not (and were never) seasonably made. Furthermore, under the evidence, as he originally inspected the home, any defects were difficult of discovery because of darkness and the closely parked homes, and he was assured that it was the best trailer made by Guerdon Industries.

Respondent had knowledge of the defects or nonconformity in the mobile home through appellant’s repeated oral requests up to September, 1973, when he directed his attorney to tender the mobile home in its existing condition and to demand a rescission. The attorney’s copy of a letter, although marked as Exhibit 92, was not received in evidence, but on January 16, 1974, appellant’s action was filed. Apparently, appellant made 34 monthly payments on the installment note after March 1,1973, to the Iowa State Savings Bank, Clinton, Iowa, and he remained in possession of the mobile home at all times. Trial began before the court, a jury having been waived, on January 19, 1976.

The Uniform Commercial Code was adopted in Missouri in 1963, Chapter 400, RSMo 1969. The cases relied upon by respondent, and apparently by the trial court, are pre-code decisions holding that continued use of goods by a buyer constitutes a waiver of his right to revoke acceptance (rescission). Such were the holdings of Aeolian Co. of Missouri v. Boyd, 65 S.W.2d 111, 114[6] (Mo.App.1933); and Brandtjen & Kluge v. Burd & Fletcher Co., 239 S.W.2d 651, 192 S.W.2d 651, 659 (1946). One case, in dicta, seemingly follows the foregoing two cases: Stephens Industries, Inc. v. American Express Co., 471 S.W.2d 501 (Mo.App.1971), which was decided after the adoption of UCC in this state. In Stephens, the seller sued to recover the contract price of a machine and the buyer counterclaimed for “rescission.” The court held that from the evidence, it could not be found that the machine did not conform to the buyer’s specifications or that it was in any way defective so as to justify the buyer in rejecting it. This holding would have been a sufficient basis for the opinion under § 400.-2-608(1) (not cited by the Stephens court), which requires a “nonconformity which substantially impairs its value” found to be lacking by the Stephens court. The opinion, loc. cit. 471 S.W.2d 506[10], goes on to say that even assuming the machine was defective, under the facts, the buyer had a reasonable time to determine whether or not the machine was defective and to reject it which the buyer did not do. This is a further basis for the decision, under § 400.-2-602(1), and that decision on either or both grounds obviously reaches the correct result. At page 505[7, 8] of the opinion, it is set forth by way of dicta, “If, after a proper rejection and rescission, the buyer then uses the goods as his own and in a manner inconsistent with the rights of the seller, such use nullifies the rescission and constitutes an acceptance of the goods as in fulfillment of the contract and the buyer is liable for the price. (Citing, among others, the Aeolian case, supra.)” Under the provisions of the UCC, and the cases construing it [although none have been cited or found in this state], discussed, infra, that rule is no longer hard and fast and is not to be applied as a matter of law to bar revocation of acceptance. § 400.2-608(3) provides that “A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.” § 400.2-602(2)(a) provides, “after rejection [revocation of acceptance] any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller”; and “(b) if the buyer has before rejection [revocation of acceptance] taken physical possession of goods in which he does not have a security interest under the provisions of this Article * ⅜ *, he is under a duty after rejection [revocation of acceptance] to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; * * [Brackets and italics added.]

§ 400.2-711(3) expressly grants to a buyer a security interest in this language: “On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (section 400.2-706).” Cases from other jurisdictions have construed this buyer’s security interest provision. In Jones v. Abriani, 350 N.E.2d 635 (Ind.App.1976), the buyers sued to “rescind” the purchase of a mobile home. The court held that Abriani had a security interest in the goods [under UCC] for the amount of the purchase price paid, and noted that the official comments to UCC, § 2-711(3), said that the price “paid” included the signing of a negotiable note [as is the case here]. Abriani had a right of possession under this section until their note was returned to them, although they had no right to use the goods, unless it could be found that the use helped to preserve the goods through continued care as was the case in the there cited case of Minsel v. El Rancho Mobile Home Center, Inc., 32 Mich.App. 10, 188 N.W.2d 9 (1971). A contention was made in Jorgensen v. Pressnal, 274 Or. 285, 545 P.2d 1382 (Or. banc 1976), that the buyer could not rescind because of his use of the goods after notice of rescission. The court held that the buyer was entitled to remain in possession to preserve the collateral of his security interest, noting also that one of the major defects in the mobile home was a leaky roof [the evidence here is that the mobile home roof leaked water down between its walls] and that the continued occupancy was the most feasible method of protecting it. The court in Jorgensen did permit a set-off of the reasonable rental value of the home against the damages owed the buyer by the seller. As to the existence of the security interest in buyer for the purchase price paid, see also Frontier Mobile Home Sales, Inc. v. Trigleth, 256 Ark. 101, 505 S.W.2d 516 (1974); and Irrigation Motor and Pump Co. v. Belcher, 29 Colo.App. 343, 483 P.2d 980 (1971).

Another case allowing a reasonable value for set-off for buyer’s wrongful use (so held) of a mobile home after notification of revocation of acceptance, is Stroh v. American Recreation and Mobile Home Corp., 35 Colo.App. 196, 530 P.2d 989 (1975), the court noting that the UCC did not provide specifically for a set-off for wrongful use, but that since UCC, § 1-103, provides that pre-code law should supplement the UCC, unless inconsistent therewith, the buyer was liable for the fair and reasonable value of that use. See also Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227 (Tenn.App.1972); and Pedrini v. Mid-City Trailer Depot, Inc., 1 Wash.App. 56, 459 P.2d 76 (1969), likewise allowing a set-off.

In this case, respondent contends that appellant did not effectively notify it of his revocation of acceptance, and that he refused to let respondent make repairs. The record shows that appellant notified respondent of defects within a short time after delivery and several times thereafter, yet it did not seasonably make repairs. The refusal to allow respondent to make the repairs came after appellant was advised by his attorney not to do so, after which, significantly, the repair parts became available. This situation is similar to that in the Jorgensen case, supra, where the seller assured the buyers that the repairs would be made, but none were, and they turned the case over to their attorney who advised them not to permit repairs. The court rejected the seller’s contention that the buyers could not rescind because they had refused to permit repairs, saying that the seller did not act seasonably, and that a seller does not have an unlimited time to make repairs. See discussion of seller’s assurances as justifying delay in revoking acceptance, 65 A.L.R.3d 354, 361; and 8 U.C.C.L.J. 14, 20 (1975).

Here, also, it is apparent that respondent never attempted to move or take possession of the mobile home after notice of revocation of acceptance by appellant. In Garfinkel v. Lehman Floor Covering Co., 60 Misc.2d 72, 302 N.Y.S.2d 167 (Dist.Ct.1969), the court gave judgment for the buyer of carpet upon his suit to revoke its purchase, and where he continued to use it, as attached to the floor, after he gave notice to revoke. The trial court said, 60 Misc.2d 72, at loc. cit. 302 N.Y.S.2d 169, “[Seller] delivered the goods and it is fair that he should remove them or let them remain at his peril.” In the Minsel case, supra, the buyer used the home for six weeks after he gave notice of his intent to revoke, but the seller never attempted to remove it, and did not show how the buyer’s delay in moving out prejudiced seller, who contended waiver of the right to revoke. 32 Mich.App. 10, at loc. cit. 188 N.W.2d 12, the court said, “ * * * [A] rule of reason should prevail”, and that to apply seller’s contention “ * * * would be contrary to the ‘rule of reasonableness’ evident throughout the UCC”, 32 Mich.App. 10, at loc. cit. 188 N.W.2d 11. It was further held in Minsel that the burden of proof was upon seller to show how buyer’s continued use damaged it. See also Fablock Mills, Inc. v. Cocker Machine & Foundry Co., 125 N.J.Super. 251, 310 A.2d 491 (1973), cert. denied, 64 N.J. 317, 315 A.2d 405 (1973), for a like holding on the burden of proof, and a further iteration of “the overriding requirement of reasonableness which permeates the code” in avoidance of an absolute rule against continued use. See Anno. “Buyer’s Use of Goods as Acceptance”, 67 A.L.R.3d 363; 27 Rutgers L.Rev. 763 (1974); and 24 Drake L.Rev. 52 (1974).

For the foregoing reasons, it must be concluded that the trial court erred in giving judgment against appellant upon the basis of his continued use of the mobile home after notice of revocation of acceptance. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Appellant has briefed a point that the trial court erred in excluding his testimony as to his income, apparently as those facts might bear upon his continued use of the mobile home. It is unnecessary to rule the point at this time because, should the matter come up in retrial, the parties have adequately briefed the matter and may be guided accordingly. As to respondent’s point that appellant was not entitled to revoke acceptance because he could not restore the parties to their respective positions because the lienholder on the mobile home (Iowa State Savings Bank, Clinton, Iowa) was not made a party, the only evidence of that bank’s interest came from appellant, who testified that he made payments to it. Nothing was shown as to its relation to respondent, or by what means it became possessed of the installment note and security interest. Should the parties deem it advisable to add the bank as a party needed for just adjudication (Rule 52.04), that matter may be addressed anew to the trial court.

Upon new trial, respondent should be allowed to plead a set-off for the reasonable value of appellant’s continued use, to be applied should appellant then prevail.

The judgment is reversed and the case is remanded for new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. Tracy Eugene SAMUEL, Appellant.
    No. KCD 29352.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    Application to Transfer Denied April 10, 1978.

      C. B. Fitzgerald, Warrensburg, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Tracy Samuel appeals his conviction of robbery first degree and sentence of confinement.

The sole contention on this appeal is the failure of the evidence to support a conviction of robbery. Reversed and remanded.

In June, 1976, George McFarland and his wife, Ruth McFarland, owned and operated a grocery store, filling station and bait shop just off Highway 7 about two and one-half miles west of Warsaw. The building in which the business was located was separate from but near the house where the McFarlands lived. A buzzer had been installed in the business building so that it would sound in the residence when the front door of the business was opened. At the time in question, about 7:30 p. m. but still light, Mrs. McFarland heard the buzzer and went to the business building. When she entered at the back she noted the cash drawer was pulled open and the front door was standing open. She immediately ran to the front of the store and out the front door and saw a man, later identified as Samuel, running toward a car. Mrs. McFarland stated she turned her ankle which slowed her speed but she managed to reach the rear of the car as Samuel was trying to enter. At the same time Samuel had dropped some money on the ground and was trying to scoop this up as he entered the car.

When Mrs. McFarland reached the rear of the car, Samuel pulled a gun and turned around and said, “Lady, don’t make me shoot you.” Mrs. McFarland noted the license number on the car and turned around. Samuel hurriedly departed in the car.

Samuel contends the evidence fails to show that he obtained any property in the manner proscribed by § 560.120, RSMo 1969, which contains the elements of robbery first degree. That section requires the property to be taken by violence to the person or by putting the person in fear of some immediate injury.

Samuel contends the evidence here showed at most the offense of stealing because the property was taken without violence or placing Mrs. McFarland in fear. Samuel relies on State v. Holmes, 317 Mo. 9, 295 S.W. 71 (banc 1927) and State v. Vandament, 299 S.W.2d 532 (Mo.1957). In Holmes the defendant went to a home to look at some diamonds which had been advertised for sale. The owner gave the diamonds to the defendant to examine and while he held the diamonds, requested the owner to obtain a glass of water for him. He then followed the owner and drew a revolver, forced her into the basement and made his escape.

The court held the evidence did not show a taking by violence to the person or by placing the person in fear. The court held the owner had fully parted with possession of the diamonds before the gun was displayed. The court held this conclusively proved that the manucaption or taking had actually occurred before the owner was put in fear. The court stated at 295 S.W. 73:

Under the language of our own section 3307, [RSMo 1919] no other conclusion is possible than that the taking of the physical possession of the property must be by violence or by putting in fear. Such violence or putting in fear must precede or be contemporaneous with the taking. Such element being absent in the case at bar, appellant was guilty of no greater crime than that of grand larceny.

The court in State v. Parker, 262 Mo. 169, 170 S.W. 1121 (1914) had reached the same conclusion. There the court in considering force or violence which occurred after the actual taking stated at 262 Mo. 169, 170 S.W. 1123[3]:

We are not aided at all, then, by this latter phase of force and violence, since force to prevent arrest, or to prevent recovery of the stolen property after the asportation of the property is complete and after detachment from the person of the owner of the property is consummated, are not necessary elements of robbery in the first degree. Kelley’s Crim. Law, 629; Thomas v. State, 91 Ala. 34, 9 So. 81; Routt v. State, 61 Ark. 594, 34 S.W. 262; People v. Stevens, 141 Cal. 488, 75 P. 62; Dawson v. Commonwealth, 25 Ky.Law Rep. 5, 74 S.W. 701. In other words, the violence used in the robbery must precede, or be contemporaneous with, the taking of the property. 34 Cyc. 1799. The presence of force or violence of the latter sort will not serve to make that act of larceny robbery, which without such belated act of force would have been but ordinary larceny. Thomas v. State, supra; Kelley's Crim. Law, supra; 34 Cyc., and cases cited, supra.

The court applied the same reasoning in State v. Vandament, supra. There the court stated 299 S.W.2d at page 534[2]:

It is well settled that where the state’s evidence shows that the accused had obtained physical possession of the property by stealth and that force and violence or putting in fear was used only as a means of escape, or where the evidence fails to show that possession of the property was obtained by force or violence or putting in fear, the crime is not robbery. The applicable law is reviewed at length in the case of State v. Holmes, en Banc, 317 Mo. 9, 295 S.W. 71, 58 A.L.R. 652.

The court again quoted from Parker in State v. Adams, 406 S.W.2d 608, 610[2, 3] (Mo.1966). Parker, Holmes and Vandament were also cited with approval for the same rule in State v. Hawkins, 418 S.W.2d 921, 925 (Mo. banc 1967). Other cases which have announced the same rule include State v. Spivey, 204 S.W. 259, 261[3-6] (Mo.1918); State v. Hamilton, 513 S.W.2d 771, 772 (Mo.App.1974); and State v. Farmer, 536 S.W.2d 748, 750[1] (Mo.App.1976).

The evidence in this case clearly reveals Samuel had obtained possession of the property without any force, violence or placing Mrs. McFarland in any fear. The only force or intimidation occurred after Samuel had obtained possession of the money and was attempting to retain possession and make his escape. Under the rule which is firmly ingrained in this State, as shown by cases cited and discussed above, the force, violence or intimidation must precede or be contemporaneous with the taking of the property. Since the evidence did not show the precedent or contemporaneous acts necessary to constitute robbery, the evidence was sufficient only to support a finding of stealing.

The State does not dispute the rule discussed herein but contends the St. Louis District in State v. Wilborn, 525 S.W.2d 87 (Mo.App.1975) expanded the definition of taking to include all events subsequent to the discovery of the taking. A quotation from the State’s brief will reveal the erroneous view which the State takes of this case. The brief states, “The Court in Wi7-born, however, held that, when the gas station proprietor entered the room after the taking, and, after scuffling with the men, was threatened with force, that this was all one single transaction.” [emphasis supplied] However, the court in Wilborn, at page 90, stated, “at the time Mr. Caby discovered the man in the back room of his service station, the latter was then engaged in ‘ransacking [the] cabinets and money drawers and places where [Mr. Caby kept] the day’s receipts.’ ” Thus, the court in Wilborn did not expand the definition of taking or take any different view from the rule discussed herein. In fact, the court specifically recognized the rule as having been announced in Adams, Hawkins and Parker.

The court considered that case on the fact the taking was still in progress when the attendant discovered such activity. The court adhered to the same rule as discussed herein. The confusion in Wilborn results from the facts of the New Jersey case discussed. While the facts in the New Jersey case might lead to a different result under the rule followed in this State, the court in Wilborn did not change the rule followed in this State since Parker.

The State urges the rule apparently adopted in California, that the taking includes the escape, be adopted in this State. This court is without either the power or the inclination to change the rule which is so well founded and which is based on the specific wording of the statute defining robbery in the first degree.

The information in this case did, however, include all of the elements of a proper charge of stealing. The judgment is reversed and the cause is remanded for a new trial. State v. Holmes, supra, at 317 Mo. 9, 295 S.W. 73.

All concur.


author: DIXON, Judge.

text:
    June Carl DOBBINS et al., Contestants-Appellants, v. Alfred R. HUPP, as Executor of the Estate of Cora Fowler, Deceased, Alfred R. Hupp, as Trustee-Legatee, Leonard S. Van Dyke and John P. Huston, Trustee-Legatees, Carlton Knight, as Trustee-Legatee, et al., and John D. Ashcroft, Attorney General, Intervenor-Proponent.
    Nos. KCD 28609 and KCD 28621.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    Application to Transfer Denied April 10, 1978.

      Ike Skelton, Jr., Robert L. Langdon, Lexington, James S. Millett, Kingston, Bradley, Skelton & Schelp, Lexington, for contestants-appellants.
    William Aull, III, D. W. Sherman, Jr., Aull & Sherman, Lexington, for respondents.
    John D. Ashcroft, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for inter-venor-proponent, attorney general.
    Before PRITCHARD, P. J., SWOPFORD, C. J., and DIXON, J.
   DIXON, Judge.

This is a suit to contest a joint and mutual will upon the ground of undue influence. The contestants prevailed in the jury trial. The trial court set aside the jury verdict and entered judgment for the proponents. The contestants have appealed. The contestants are the nieces and nephews of the brother and sister who made the will. The proponents are the executor, the trustees under a charitable trust, and the Attorney General of Missouri who intervened because of the nature of the public charitable trust created by the joint and mutual will. A second count of the petition to declare the trust invalid on a variety of grounds was expressly stated to be contingent upon the result of the jury trial to determine the validity of the will and remains pending in the trial court. The stated ground for the trial court’s action in setting aside the jury verdict was the failure of the contestants to prove undue influence.

A prefatory statement is necessary before a recitation of the facts in this case. A will contest is an action at law and when the sufficiency of the evidence is challenged, the most favorable evidence rule applies. Therefore, defendants’ evidence will be disregarded unless it aids plaintiffs. Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974); Metter v. Janssen, 498 S.W.2d 581 (Mo.App.1973); Hemonas v. Orphan, 191 S.W.2d 352 (Mo.App.1945). It is also the rule that when the trial court has set aside a verdict on the issue of insufficient evidence, only the evidence and inferences favorable to the plaintiff are considered, the evidence offered by defendant to be disregarded unless it aids the plaintiff’s ease.

This lawsuit concerns the Joint and Mutual Will of Lee Dobbins and Cora Fowler executed on June 1, 1965. Under the terms of the Joint and Mutual Will, the survivor took “all of the property, real, personal and mixed and wherever situate absolutely and in fee simple” and, upon the death of the survivor a charitable trust was created in which the residue of the estate was bequeathed to named trustees “for the benefit of deserving white male Caucasian high school graduates of the Methodist faith” who desired and qualified for study in the ministry. The trust was to be known as the “Dobbins Memorial Fund.” A codicil to this will dated September 9, 1969, revoked the privilege to purchase certain real estate given to Howard and Oleta Venable under the terms of the will. It was stipulated by the parties that the Venables had not exercised their privilege to purchase the real estate, and accordingly, the real estate became part of the residuary estate of Cora Fowler. Lee Dobbins died on January 24, 1972, and, about two months later, on March 31, 1972, Cora Fowler died.

The plaintiffs-contestants are the nieces, nephews, grandnieces, and grandnephew of Cora Fowler. Cora was married for a short time but had no children. The defendants-proponents are the executor of the estate of Cora Fowler, Alfred R. Hupp; the trustees of the trust created under the contested will, Alfred R. Hupp, Leonard S. Van Dyke, John P. Huston, and Wesley J. Arington; guardian ad litem, William Aull, III; and the Attorney General of the State of Missouri who intervened as a party.

The will of Cora Fowler was identified by the Clerk of the Probate Court of Saline County, Missouri, as having been admitted to probate. The two attesting witnesses testified that they witnessed Lee and Cora sign the will, that Lee and Cora were both over 18 years of age, and that both were of sound mind and disposing memory. Lee and Cora executed the will in each other’s presence.

Cora and Lee, sister and brother, had lived together since moving back from Kansas City to Slater, Missouri, in 1941. In 1944, they moved to the farm where Cora died. They continued living together at the farm until Lee suffered a stroke in February, 1968. After his stroke and for the nearly four years preceding his death, Lee was either in the hospital or in a rest home, except for one interval in 1968.

Cora and Lee were in business together. They were partners owning land and farming. An Authorization of Partnership to open deposit account and to procure loans was signed by both Lee and Cora. This authorization was explained as being “a partnership deal whereby either one of them could come in the bank and transact business for the two of them.” Although the authorization was signed on October 19, 1950, it continued in full force and effect through 1964 and 1965. In addition to the Authorization of Partnership, Cora signed a loan guarantee dated 1968 whereby she guaranteed the loans of Lee. Also, Cora signed a loan guarantee for the Farmers Savings Bank making her responsible for any indebtedness Lee created.

Plaintiffs introduced a series of notes beginning in 1960 and continuing through and including 1965. These notes were signed by Lee Dobbins and Cora Fowler by Lee Dobbins or by Lee Dobbins and Cora Fowler individually. At least one note was signed by Lee only.

A number of witnesses testified about the relationship between Cora and Lee. During the years 1960-1965, Lee’s treatment of Cora was described as being very demanding and rude. He always told Cora what to do, and she would do it. The testimony relates many specific instances showing the relationship of Cora and Lee. In October of 1965, Cora wanted to buy some cattle, but Lee didn’t. Lee said that he was the boss and the cattle were not purchased. Cora was against buying the Shepard farm, but said she had to go along. When Lee bought the Shepard farm, Cora was upset and cried. Cora wanted to get new sidewalks because she might fall, but Lee said they were good enough for him. A new sidewalk was put in after Lee went to the rest home. Cora did not have a TV set at home because Lee would not let her have one, and when she and Lee were visiting their niece, Lee moved a chair in front of the TV so Cora couldn’t watch it.

Cora couldn’t drive, so when Cora and Lee did the farm work, she would do the walking, and he would do the riding. In 1965, while Lee was driving the pickup truck, Cora was getting up on the running board when Lee drove off. Cora fell backwards and hurt her back. It was necessary to take her to the hospital.

Prior to the execution of the contested will, Cora was described physically as being a small, frail woman. On March 15, 1965, Cora’s physician diagnosed her as having an arteriosclerotic condition, a mild case of diabetes, and a little hypertension. At the time of the execution of the will in June of 1965, Cora was in her 70’s.

Cora and Lee first contacted their attorneys about making a will in 1961. There were four drafts of proposed wills made during the next four years. These drafts show the various changes made during this period. In the first draft, the designated name of the trust was the “Cora Fowler— Lee Dobbins Memorial Trust,” and, in all subsequent drafts, it was changed to the “Dobbins Memorial Fund.” In the first draft, June Dobbins, Cora’s nephew, was a named beneficiary, and in all four drafts Mattie Motzel, Cora’s niece, was a named beneficiary. Neither June, nor Mattie was named beneficiary in the executed will. Blacks were included in the trust provision of the first draft, but were excluded in the executed will. The trust provision of the first draft provided for boys and girls to be eligible, but only “males” were eligible under the final trust provision.

Lee had a falling out with Leo Motzel, Mattie’s husband, on April 22, 1965, over putting in a fence. While this episode ended the relationship between Leo and Lee, Leo and Cora had no ill feeling between them. Leo and Mattie got along with Cora.

Evidence concerning Lee’s attitude toward blacks was presented. Lee referred to blacks as “damned nigger.” At June Dobbins’ house, Lee refused to eat dinner with a black man, saying that “he wasn’t eating dinner with no nigger all he was going to pay was $5.00 a day.” Cora, on the other hand, did not speak illy or badly about blacks.

After Lee was placed in the nursing home, Cora told June Dobbins and Warren Kiso, an insurance agent, on two separate occasions that she had the power of attorney and she was going to change her will.

After Lee died, Cora said that she had done everything Lee had ever asked her to do, but now that the business was all hers, she was going to do as she pleased with it. Cora told Walter Fizer, her nephew, that he was in her will and that if June Dobbins didn’t keep his boy away from her, she would completely cut him out of her will. Helen Fizer overheard Cora’s conversation with Ethel Hupp, a neighbor, with whom Cora was speaking on the telephone. During the telephone conversation, Cora said that she wouldn’t leave June a cent if he didn’t keep his son from bothering her.

Marion Fizer, Cora’s nephew, testified that Cora told him the church had been “dingdonging” her for another donation, but having made a sizeable donation to the Methodist Church, Cora felt they had done their part. Cora and Lee had given the church about $12,000, and Cora didn’t think she needed to “leave them anymore.” There was evidence that when the executor was reading the will to the relatives he related a statement by Lee Dobbins to the effect that “no damned nigger would get a cent of his money.”

The parties are in agreement with respect to the governing rule in will contest cases concerning a presumption of undue influence. Three elements are required before the presumption arises: (1) confidential or fiduciary relationship; (2) the existence of a substantial benefit to the fiduciary; and (3) activity by the fiduciary which resulted in procuring the execution of the will. Salisbury v. Gardner, supra, 515 S.W.2d at 884; Simmons v. Inman, 471 S.W.2d 203 (Mo.1971); Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13 (1948). The parties have briefed and argued the case on the theory that, if the evidence is not sufficient to create a presumption, the trial court’s action should be affirmed; but if the presumption arises, then the trial court is in error.

Definitions of the three elements of the presumption have been given by various courts. A confidential relationship is said to arise when one relies upon and trusts another in regard to handling property and business affairs. Davis v. Pitti, 472 S.W.2d 382 (Mo.1971). Benefaction has been defined as, “ ‘some pecuniary benefit to be derived, directly or indirectly, under the will’ by the fiduciary by whose activity the testator is influenced to make the will.” Baker v. Spears, supra, 210 S.W.2d at 19, citing Barkley v. Barkley Cemetery Ass’n., 153 Mo. 300, 54 S.W. 482, 486 (1899). Undue influence consists of such overpersuasion or coercion that the will of one person is substituted for the free will of the other. Steller v. Steller, 401 S.W.2d 473 (Mo.1966). Circumstantial evidence, from which it may be inferred that the fiduciary was in some way active in procuring the execution of the instrument, is permitted to show the exercise of undue influence. Godsy v. Godsy, 504 S.W.2d 209 (Mo.App.1973).

On the basis of this settled law, the respondents attack the evidentiary support of all three elements. The executor and trustee proponents concede that a fiduciary relationship exists and argue only the other two elements. The Attorney General, however, does not concede that a fiduciary relationship exists in this case.

Turning first to the issue of the existence of the fiduciary relationship, the evidence here is sufficient to show that Cora Fowler relied upon and trusted her brother Lee Dobbins, in regard to the handling of property and business affairs. They operated as a farm partnership in which Lee Dobbins was unquestionably the manager, and the documentary evidence indicates that Lee Dobbins almost habitually signed notes evidencing the partnership indebtedness on behalf of Cora Fowler. Cora Fowler executed open-ended loan guarantees which existed over a period of many years. The proof must be taken to be sufficient to establish a confidential relationship. Wilhoit v. Fite, 341 S.W.2d 806 (Mo.1960).

Upon the third element, relating to the activity of the fiduciary in procuring the execution of the will, both the Attorney General and the executor and trustee respondents argue that the evidence is insufficient to support that element. Undue influence is not proclaimed from the housetop and direct proof is difficult, if not impossible, to obtain. The rule arises that the fact may be proven by circumstantial evidence. Pasternak v. Mashak, 392 S.W.2d 631 (Mo.App.1965). Simmons v. Inman, supra, recites several factors which have been considered in various cases as providing factual proof of circumstances from which an inference of active procurement in the execution of the will by the exercise of undue influence arises. Among these factors are evidence of power to influence the maker of the will, the opportunity to do so, an unnatural disposition of property, and a change from a former will. The presence of the fiduciary at the execution of the will and the exertion of his influence at the exact moment of execution need not be shown. Salisbury v. Gardner, supra; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400 (1935).

The arguments of both the Attorney General and the executor and trustees are entirely factual on this issue. The Attorney General submits the issue by adopting the argument of the executor and trustees. An examination of the factual arguments made shows that they rely upon evidence produced by the proponents. Proponents offered the testimony of the attorney-draftsman of the will, and they urge it as uncontradicted evidence showing that Cora Fowler was not subject to undue influence. The difficulty with this argument is that Ogden v. Toth, 542 S.W.2d 17 (Mo.App.1976), makes it clear that in the procedural posture of this case the defendants’ evidence is to be disregarded unless it aids the plaintiffs’ case. The remainder of the argument addressed to this branch of the case by the proponents of the will is an analysis of the inferences that may be drawn from the evidence. The proponents point out that the influence favorable to the verdict is not the only possible inference and that other inferences favorable to the proponents are as reasonable and logical. Again, the simple answer is that in considering the question of whether a submissi-ble case has been made, after verdict, the favorable inference to support the verdict will be indulged. Salisbury v. Gardner, supra, 515 S.W.2d at 883. The same rule applies where the verdict has been set aside and the issue is whether the trial court’s action is proper. Ogden v. Toth, supra.

The final issue to be determined, and the pivotal one on this appeal, is whether the fiduciary in this case obtained a benefit from the execution of the will. The Attorney General argues eases involving gifts to churches in which a religious leader had influenced the gift as being determinative, relying upon the general language of those cases that where the influence flows from a person who does not benefit directly from the influence, it does not raise a presumption of undue influence. Those cases are factually distinguishable from the issues here at hand as will be developed in the subsequent analysis of this issue. The executor and trustee proponents argue that even though Lee Dobbins, if he had survived Cora, would have received the property absolutely and in fee simple that this was nothing more than he would have received if there had been no will since all of the property was held jointly with the right of survivorship.

It is axiomatic that the question of whether a benefit flows to the fiduciary is to be measured by the circumstances existent at the time of the execution of the will. In considering whether a benefit to the fiduciary existed in this case, the situation of the parties and their property at the time is an important consideration. In that regard, the relationship between the joint and mutual will and the jointly held property as well as the contractual provisions in this will need be considered.

In Owens v. Savage, 518 S.W.2d 192 (Mo.App.1974), the court pointed out that Missouri subscribes to the orthodox view that wills are revocable although there has been an agreement not to revoke, but that the agreement not to revoke gives rise to a contract evidenced by the will which is enforceable in equity. The Owens opinion refers to the “miscegenation of the law of contracts and the law of wills” which occurs when some courts call such wills irrevocable and which results from the faulty analysis of the principles involved. Owens v. Savage, supra, at 200. Absent the contractual language existent in this will, the joint and mutual will would have been revocable by Cora Fowler.

Considering now the state of the parties’ property at the time that the will was executed, the evidence discloses that all of the property of Cora Fowler and Lee Dobbins was held as joint tenants with the right of survivorship. Despite the contingent right to obtain a fee simple absolute upon the death of the other joint tenant, rights existed in both of the joint tenants to dissolve the jointure. Partition would lie under Section 528.030 RSMo 1969. Jennings v. Jennings, 225 Mo.App. 1010, 33 S.W.2d 165 (1930). So also, a conveyance by one of the joint tenants prior to the death of either will defeat the right of survivorship and will create a tenancy in common between the remaining joint tenant and the grantee in the deed. McClendon v. Johnson, 337 S.W.2d 77 (Mo.1960). The specific question of whether property held in joint tenancy which is the subject of a contractual will containing a promise not to revoke can be conveyed after the execution of the will has been answered in Missouri with respect to estates by entirety. Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395 (1947). There, land was owned by a husband and wife. The marriage partners executed a joint and mutual will giving the survivor full enjoyment of the property so long as he or she lived and, on the death of the survivor, the property was to be divided equally between the husband’s and wife’s brothers and sisters. The will contained contractual provisions concerning nonrevo-cation. After the death of the husband, the wife conveyed to her brothers and nephews, excluding the brothers and sisters of the husband. The court affirmed a judgment setting aside the deeds in question.

In the instant case, Lee Dobbins thus acquired a substantial benefit upon the execution of the contractual will. Prior to the execution of that will, Cora Fowler could have conveyed her interest in the substantial property which they owned jointly. The effect of that conveyance would be to destroy the right of survivor-ship in Lee Dobbins. She could have also partitioned the property and removed the expectancy of Lee Dobbins to obtain it on survival. The whole thrust of the evidence relating to undue influence in this case goes to the establishment of the trust. The evidence tends to show that Lee Dobbins influenced the creation of a trust which was not the true will and intent of Cora Fowler. Cora Fowler gave up her right to control of her half interest in the property and Lee Dobbins acquired by the joint and contractual will the power to dispose of the entire estate with no uncertainty as to his survival or the continuation of the title in joint tenancy.

Assuming, as the evidence and the jury verdict require, that his influence procured the particular disposition made, the effect of the execution was to confer upon him the benefit of devising all of the property and not one-half. As Owens teaches, what is here involved is the contractual portion of the will. That contract conferred upon Lee Dobbins a pecuniary benefit, survival became unimportant, and Cora’s right to assert any real ownership interest by way of disposition was erased. That benefit is sufficient to raise the third element in this case. Once the elements of the presumption of undue influence exist in the case, the issue is submissible. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772 (Banc 1932).

The issue being submissible, the trial court erred in setting aside the verdict of the jury on the grounds of insufficiency. This cause is reversed and remanded to the trial court with directions to reinstate the verdict of the jury finding that the will of Cora Fowler was procured by undue influence and denying the same admission to probate.

All concur.

      . The proponents perfected an appeal from the trial court’s order overruling their motion for a new trial. The appeal was formally abandoned in the brief filed.


author: GUNN, Presiding Judge.

text:
    Donald C. PLACKE, Plaintiff-Appellant, v. Jess C. HAGGERTY and Florence E. Haggerty, and Jess C. Haggerty, Jr., Defendants-Respondents.
    No. 38662.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 31, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.

      J. William Newbold, John G. Young, Jr., Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Clayton, for plaintiff-appellant.
    Richard L. Hughes, Mogab & Hughes, St. Louis, for defendants-respondents.
   GUNN, Presiding Judge.

The classic dispute between neighbors over construction on property lines erupted into litigation which has reached this court on appeal. A fence built on a retaining wall bred the litigation, thereby assailing the veracity of the poet’s observation that, “Good fences make good neighbors.”

James Haggerty, Jr., defendant in this action, inherited a dwelling house in Saint Louis Hills Estates No. 4 subdivision and undertook several remodeling projects before moving with his family into the residence. Haggerty made plans to convert the existing garage to a bedroom and erect a detached garage in the back yard. He put in a large cement patio and driveway leading to the proposed garage. These changes caused some modification of the grade in the back yard and to compensate for this, Haggerty erected a cement retaining wall running from front to back along his property line. The elevation of the wall over ground level varied with the contours of the land from seven or eight inches to about 32 inches. The wall was topped with a chain link fence. Haggerty constructed the patio and driveway so as to drain into the city storm sewers, but for surface water drainage in the back yard, he replaced an existing subsurface pipe with another of somewhat larger diameter. Whereas the old pipe discharged at or below ground level, the new pipe discharged through the retaining wall about one inch above ground level.

Haggerty’s neighbor, plaintiff Donald Placke, objected to these changes. Although the chain link fence had been standing between the properties before, he claimed that the fence atop the wall made him feel as if he were in a prison camp. He claimed that discharge from the newly installed subsurface drain pipe turned his back yard in that area into a “sea of mud.” He also objected to the erection of the detached garage as in violation of the trust indenture restrictive covenants governing use of the Saint Louis Hills properties. The restrictive covenants also forbade the erection of any “fence or wall” on the lot. Placke sued to enjoin the construction and maintenance of the various improvements objected to, and to secure damages for the water draining onto his yard.

The trial court found that the restrictive covenant was valid and enforceable as to the garage, and permanently enjoined Hag-gerty from erecting a garage not connected in some fashion with the main structure. No appeal is raised against that decision. But the court found that the covenant against fences and walls had been waived by common acquiescence and was therefore unenforceable. This was based on a finding that fences were erected upon approximately fifty percent of the lots in the subdivision. The court also found that cleaning and enlarging the preexisting drain pipe could not increase the volume of water draining into Placke’s yard and that Hag-gerty was not liable for any damages, because the drainage pattern had existed for at least twenty years.

Placke has appealed the decisions relating the retaining wall and water drainage. He claims that the decision on damages was not supported by the evidence, and that the trial court erred in deciding that the retaining wall was not a wall prohibited by the indenture, and that the condition against walls had been waived.

The standard of review in this court tried case is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). That case declared that:

[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree or judgment is wrong.

Murphy v. Carron, 536 S.W.2d at 32. The Murphy standard was applied in review of an injunctive proceeding in Carpenter-Union Hills Cemetery Ass’n v. Camp Zoe, Inc., 547 S.W.2d 196 (Mo.App.1977).

Although Placke testified that his yard had not previously been damaged by drainage from the Haggerty property, and that such damage had not ensued until after installation of the new pipe, Haggerty also put on evidence from an expert witness that although the new pipe was somewhat larger in diameter, it did not increase the volume of flow which had existed before. The expert testified that drainage from the patio and driveway onto plaintiff’s property was prevented by a concrete lip and that water poured onto those surfaces did not exit from the newly installed pipe, but disappeared, presumably into the city storm sewer system. Given the cautionary words in Murphy, warning against casual use of the power of reversal against lower court findings “against the weight of the evidence,” we cannot say that the evidence is such as would create “a firm belief that the decree or judgment is wrong.” The decree regarding the flow water is therefore affirmed in favor of Haggerty.

However, in its refusal to enjoin the maintenance of the retaining wall, the decree of the lower court cannot be so easily accepted. The degree of widespread non-conformance required to establish acquiescence to breach of restrictive covenants and consequent waiver of their enforceability was discussed in Eichelsbach v. Harding, 309 S.W.2d 681 (Mo.App.1958). That case involved erection of fences in another part of the Saint Louis Hills subdivision. There were 29 existing fences on 160 building lots when action was brought against the defendant’s fence in that case, but the court held that that did not constitute a waiver. In Gibbs v. Cass, 431 S.W.2d 662, 670 (Mo.App.1968), the court said that enforcement of valid restrictive covenants may be denied only when non-compliance is “so general as to indicate an intention or purpose . to abandon” the condition. The burden is on the defendant, the Gibbs court said, to prove (1) a radical change in conditions as they were originally set forth in the covenant, (2) that enforcement would cause undue hardship to the defendant, and (3) that enforcement would provide no benefit to the plaintiff. Otherwise the condition must be enforced even though the plaintiff has not proved any actual damage from its breach.

In this case Placke has established the validity of the indenture. The prohibition against fences and walls was absolute, not conditioned upon approval by the trustees or others. Unless Haggerty has met the burden of proving waiver of the condition, the lower court has erroneously declared and applied the law, and maintenance of the retaining wall must be enjoined.

The parties concede that the widespread long time use of fences in the subdivision constitutes a waiver of the condition against fences, but the evidence showed only one other retaining wall existing in the subdivision. Therefore, there could be no finding of waiver as to the condition against walls. The lower court could be correct only if a wall is the same as a fence or if waiver of the condition as to fences constituted a waiver as to walls as well. Neither of these propositions is so.

In Feely v. Birenbaum, 554 S.W.2d 432, 435 (Mo.App.1977), we said that in construing restrictive covenants against free use of land, words must be given their “ordinary and usual meaning in the connection in which they are used.” Following the rule of Feely v. Birenbaum, supra, it cannot be said that the ordinary meaning of the word “wall” is identical with the word “fence.” The very use of both words precludes such an assumption, since use of both would be redundant if such were the case. Here, there is a clear trust indenture proscription against the construction of Haggerty’s wall, and no other meaning can be attached to the trust indenture other than the wall Haggerty built is absolutely interdicted. Haggerty’s suggestion that the wall could be considered a fence is logically fenestrat-ed. The wall is a wall and nothing else; all parties were consistent in referring to it as a wall, and the pictures of it as exhibits show the structure to be a wall. The obvious purpose of the restriction was to prevent construction of walls, and that purpose should not be defeated by applying some strained construction to the trust indenture. Buoncristiani v. Randall, 526 S.W.2d 68 (Mo.App.1975).

While the restriction against rear yard fences may have been waived, that is not the case regarding walls. Nor did the waiver of the condition against fences extend to include walls. In Lake Development Enterprises, Inc. v. Kojetinsky, 410 S.W.2d 361 (Mo.App.1966), the court ruled that abandonment or waiver of some conditions does not lead to a presumption that others are waived. The conditions such as to constitute waiver must exist separately as to each condition. The fact that the two conditions were expressed in a single sentence is legally immaterial.

As the condition against walls was not waived, and as a wall is not the same as a fence, the restrictive covenant against walls was valid and enforceable. Hence, the order denying enforcement must be reversed and the case remanded to the trial court with directions to proceed in accordance with this opinion.

KELLY and McMILLIAN, JJ., concur.

      . Mending Wail by Robert Frost.

      . Paragraph 5 of the trust indenture provides:
      “No fence or wall (except ornamental fences as may be approved in writing by the Trustees) shall be erected anywhere on any of said Lots.”
      Paragraph 11 of the trust indenture provides:
      “It is the intention of this Indenture that each of the Covenants and Restrictions in this Indenture contained shall attach to and run with each of the lots embraced within said subdivision and to and with all titles, interests, encumbrances and estates in the same, and shall be binding upon every owner or occupant of such lot as fully as if expressly contained and obligatory covenants or conditions in each contract or conveyance of or concerning any lot or part thereof.”
      In addition, Paragraph 15 makes provision for an individual lot owner to bring suit to enforce the trust indenture and such fact was stipulated to by the parties.

      . There are 216 lots platted in Saint Louis Hills Estates No. 4 subdivision.