source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph D. TRICE, Defendant-Appellant.
    No. 39243.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 14, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Application to Transfer Denied Feb. 13, 1979.

      James F. Booth, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael H. Finkelstein, Marjorie Who-ley Haines, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean R. Hoag, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of possession of heroin and the resultant 15 year sentence imposed by the court pursuant to the second offender act. We affirm.

As a result of a tip from an informant, St. Louis police officers placed the apartment of defendant under surveillance. Known drug users were observed under circumstances warranting an inference that they were transacting business with some person or persons in the apartment. Based upon the information of the informant and the activities observed during the surveillance, police obtained a search warrant for the apartment. The warrant was executed at 6:00 a. m. on Sunday, November 21,1976, by forcing the front door. No one had opened the door upon a proper request by the police. Several members of defendant’s family were in the apartment, including defendant. Defendant was lying in bed when the police entered. He was alone in the bedroom. Next to bed on a table were defendant’s wallet containing identification and some altered currency, and a bottle containing three pink capsules later determined to contain heroin. Defendant took a polygraph examination which indicated that his answers denying possession and knowledge of the heroin were deceptive.

Defendant’s contention that the court erred in failing to sustain his motion for acquittal at the close of the State’s case, is not preserved for review inasmuch as defendant offered evidence after the motion. State v. Hill, 438 S.W.2d 244 (Mo.1969) [5]; State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973) [1]. We, however, review the sufficiency of the evidence at the end of the case to determine whether it is sufficient to support the verdict. State v. Rivers, 554 S.W.2d 548 (Mo.App.1977) [1, 2, 3],

The State’s evidence was sufficient to support conviction. The presence of the heroin on a table in close proximity to where defendant was lying and next to defendant’s wallet was sufficient to establish that defendant was in actual possession and had control of the drug. The results of the polygraph examination (admitted into evidence pursuant to stipulation); evidence of drug dealing from the apartment; evidence that defendant’s brother was an addict warranting as inference that other residents including defendant had familiarity with the drug; and the permissible inference that a person knows the nature of drugs in his actual possession was sufficient to establish defendant’s knowledge. See State v. Burns, 457 S.W.2d 721 (Mo.1970). The cases relied upon by defendant involve situations in which the facts indicated such minimal possession or contact by defendant that no reasonable inference of knowledge could be drawn. See State v. Rivers, supra; State v. Polk, 529 S.W.2d 490 (Mo.App.1975); State v. Berry, 488 S.W.2d 667 (Mo.App.1972). We find those cases distinguishable.

Defendant also premises error upon the testimony of the police officers that at the time of the search of the apartment they seized several firearms and some modified money. This contention is made upon the basis that this was evidence of other crimes. All objections by defendant to this testimony were sustained and the jury was directed to disregard the testimony. Defendant now complains that the court denied his one request for a mistrial and contends that the court failed to declare a mistrial even when not requested. The granting of a mistrial is a drastic action largely within the discretion of the trial court. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo.1972) [11]; State v. Tate, 543 S.W.2d 514 (Mo.App.1976) [5]. We find no abuse of that discretion here. Possession of firearms, per se, is not a crime as defendant asserts. Nor has defendant cited us to authority that mere possession of modified currency is a crime. The statements by the police officers were largely volunteered, objections were sustained, the jury was admonished, and the matter was not emphasized nor argued. We find no error.

Defendant also premises error on the evidence adduced at trial concerning the issuance of the search warrant, the surveillance of the apartment and inference of sales of narcotics occurring during that surveillance, and the fact that the search warrant listed stolen property as well as heroin as the material to be searched for. There was no evidence adduced that any stolen property was found. No objections to the testimony were made at trial. Defendant seeks therefore to invoke the plain error rule. Rule 27.20(c). We reject the contention.

The thrust of the defense was that the heroin in question belonged to defendant’s addicted brother who was not at home at the time of the search. In support of this theory the brother was placed on the stand and questioned and refused to testify on the grounds of self-incrimination. Questioning was done by defendant to establish (and an argument was made) that the adverse polygraph results were the product of defendant’s efforts to protect his brother. An essential element of this defense was that the police had expended considerable effort and time in obtaining a search warrant and in surveillance and that they expected to find a very large supply of narcotics in the apartment. It was then argued that having expended the time and effort, and when the search produced only “three lousy capsules of heroin,” the police fabricated defendant’s presence in the bedroom and the location of the capsules found in order to prosecute the only male adult present in the apartment. Defendant produced as witnesses family members whose testimony would support a charge of police fabrication. The defense also cross-examined the police officers on the surveillance and the search warrant. It is apparent that the evidence now complained of was an integral part of and an essential link in the defense. We presume that the failure of defendant to object was in order that the jury could consider this evidence in assessing the defense presented. We find neither error nor prejudice in the admission of the evidence.

In view of the foregoing discussion we need not and do not reach the question of whether evidence of the surveillance and apparent sales of narcotics occurring during the surveillance would have been admissible over objection. The ultimate determination of that question is one of relevancy. See State v. Reed, 447 S.W.2d 533 (Mo.1969). In determining such relevancy judges must be aware that in modern day society certain types of crimes such as drug trafficking, vehicle tampering, and “fencing” tend to be continuing activities and that apprehension and prosecution of offenders may require a continuing observation of a series of criminal acts. An unduly rigid application of the “other crimes” rule in these circumstances may preclude jury consideration of probative evidence which by any reasonable standard is relevant in establishing a material fact concerning defendant’s guilt.

Defendant’s last point is that the court erred in permitting testimony concerning his failure to explain to whom the heroin capsules belonged after he was arrested. His sole contention regarding this testimony is that it violated defendant’s right to remain silent and was plain prejudicial error under State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970) [5, 6]; and State v. Benfield, 522 S.W.2d 830 (Mo.App.1975) [10]. We disagree. The theory of those cases is that where defendant has exercised his right to remain silent introduction of evidence of his failure to make an exculpatory statement serves to penalize defendant for exercising that right. The rationale of such decisions has no application where defendant does not exercise his right to remain silent, but rather elects to make statements. United States v. Ivey, 546 F.2d 139 (5 Cir. 1977) [11]; State v. Harris, 547 S.W.2d 473 (Mo. banc 1977) [2], That is the case here. Defendant, after being warned of his constitutional rights, elected to make statements including admitting his ownership of the wallet and that certain other pills found in the apartment belonged to his mother. He made no statement about the ownership of the heroin capsules and a police officer testified to the absence of such statement, as well as the statements he did make. Since defendant had not exercised his right to remain silent, the Court did not err in allowing the officer’s testimony.

Judgment affirmed.

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


author: SNYDER, Judge.

text:
    Billy Ray WISEMAN, Sr., et al., Plaintiffs-Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
    No. 39135.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 14, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.

      R. A. Wegmann, Ray Dickhaner, Dennis Tesreau, Richeson, Roberts, Wegmann, Gas-away, Stewart & Schneider, P. C., Hillsboro, for defendant-appellant.
    John W. Hammon, Anderson, Brooking & Hammon, Hillsboro, Robert J. Robinson, Dennis Gassen, Pannell, Dodson & Robinson, Festus, for plaintiffs-respondents.
   SNYDER, Judge.

Plaintiffs-respondents, the surviving spouse and three minor children of Lulu Belle Wiseman, sued defendant-appellant, Missouri Pacific Railroad Company, to recover damages for Mrs. Wiseman’s alleged wrongful death. She was struck and killed by a train as she walked across appellant’s tracks at a crossing in DeSoto, Missouri. The case was submitted to the jury under the humanitarian negligence doctrine on the failure of appellant to slacken the speed of its locomotive. The jury returned a verdict for the respondents and awarded $185,-000.00 in damages. The trial court entered judgment accordingly. Missouri Pacific Railroad Company appeals.

Appellant raises five grounds for reversal, contending that the trial court erred: (1) in denying appellant’s motion for directed verdict because the respondents failed to make a submissible case under the humanitarian doctrine on failure to slacken speed; (2) in failing to define the terms “negligence,” “negligent” and “negligently” as used in the instructions to the jury; (3) in permitting argument and instructing on “aggravating circumstances” in connection with the calculation of respondents’ damages; (4) in permitting respondents to “impeach” their own non-party witness, head brakeman David Storey; and (5) in admitting evidence on the position or direction of the locomotive and the head brakeman’s training. These points are ruled against appellant and the judgment is affirmed.

THE FACTS

Mrs. Wiseman, 38 years old, a pedestrian, was struck and killed at 5:38 p. m. on March 31, 1975 by a Missouri Pacific freight train at the intersection of the Missouri Pacific tracks and Miller Street in DeSoto, Missouri. Mrs. Wiseman was walking west on Miller Street, at a right angle to appellant’s north-south railroad tracks. Walking along the southernmost edge of the pavement of Miller Street, she had crossed five of the seven railroad tracks when she stepped onto the sixth track and into the path of appellant’s north-bound train. She was struck by the front of the locomotive and knocked to the ground. Her body was found north of the crossing, lying between the rails.

Mrs. Wiseman’s sight and hearing were unimpaired. She was not depressed at the time of the accident. She was not under any medication and her use of alcohol was temperate. She was walking to the DeSoto high school to attend evening classes to obtain a high school equivalency certificate. Mrs. Wiseman, a DeSoto resident for nearly two years, was familiar with the Miller Street tracks, having crossed them many times by car and on foot. At the time of the accident, it was still daylight and visibility was good. The weather conditions were clear and dry.

The physical layout of the Miller Street crossing is unusual. East and West Main Streets in DeSoto are two different streets. Both run north and south, East Main parallel and adjacent to the Missouri Pacific tracks on the east, and West Main parallel and adjacent to the Missouri Pacific tracks on the west. Miller Street runs east and west. A person traversing Miller Street at this point, going from east to west as Mrs. Wiseman did, would first cross East Main Street, then the tracks, then West Main Street.

The crossing is guarded by railroad “cross-buck” signs and electric flashing red signals at all four corners. Witnesses to the collision testified these signals were operating at the time of the accident but it is not clear whether Mrs. Wiseman entered the crossing before or after the signals began to flash their warning.

There was evidence that these signals often flashed when no train was present (perhaps because six of the seven tracks are siding or switching tracks used by the appellant in connection' with its depot and work yards in DeSoto). Witnesses for respondents testified they had waited up to 15 minutes with the signal lights flashing and no train in sight. There was also evidence that DeSoto residents are in the habit of crossing against the signals, even when a train is visible. Witnesses to this accident had in the past seen “close-call,” near collisions at this intersection.

Appellant’s freight train consisted of a locomotive, six empty hopper cars and a caboose. The diesel locomotive was being operated “backwards,” that is, with the cab to the rear and the long end of the unit in front. The train’s engineer, Fred Rohlfing, was seated at the controls on the west side of the cab. The head brakeman, David Storey, was seated on the east side of the cab.

When the locomotive is operated with the cab in front, the engineer and brakeman view the track through a cab-width front window. Each man has a full view of the track ahead and can see to both his right and his left. But when the locomotive is operated with the cab to the rear, as it was here, each man’s vision directly in front of the engine and to his partner’s side is blocked by the long end of the engine. Thus, while engineer Rohlfing could see to the north and west but not to the east, head brakeman Storey could see to the north and east but not to the west. The engineer could not, therefore, see Mrs. Wiseman as she approached the train track from the east.

As the train approached DeSoto from Pea Ridge going north, it left the main track and continued on to DeSoto on a siding track. From the time the train entered the siding track until the occurrence of the accident, engineer Rohlfing was operating the train through the use of the throttle and automatic brake valve. During this entire period, the train’s brakes were in “service application.” In this mode, the brake shoes are directly in contact with the wheels, applying a slight amount of pressure. In the event of an emergency application of the brakes, having the brakes in “service application” saves a period of two or more seconds because the brake shoes are already in contact with the wheels. When the train was 200 feet from Miller Street, it was traveling approximately eight to ten miles per hour.

Head brakeman Storey, called as a witness by respondents, testified he first saw Mrs. Wiseman when she was 40 feet from the collision point. The train at this time was approximately 106 feet from the point of impact. Storey then looked away and did not see her again until she was 12½ feet from the point of collision. He realized her peril and shouted, “Oh, my God, she’s not going to stop,” but did not attempt to activate the emergency brake valve directly behind his seat in the cab. Approximately two to three seconds passed before engineer Rohlfing made an emergency application of the automatic brake valve and “big holed” the train, bringing it to a stop (by various estimates) 124 to 300 feet past the point of the collision. “Big holing,” in railroad parlance, means placing the automatic brake valve in an emergency stop position.

Testimony of eyewitnesses and the train crew established that the train’s whistle, bell and two front headlights were functioning at the time of the accident.

THE HUMANITARIAN SUBMISSION

Appellant asserts the trial court should have granted its motion for a directed verdict at the close of respondents’ evidence because the respondents failed to make a submissible ease under the humanitarian doctrine.

In determining whether a submissible case was made, the evidence is considered in the light most favorable to the plaintiffs, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiffs the benefit of all favorable inferences that reasonably may be drawn from such evidence. [Cites omitted].

Epple v. Western Auto Supply Company, 548 S.W.2d 535, 538 (Mo. banc 1977).

‘[T]he granting of a motion for directed verdict is a drastic action by a trial court, and that it should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ.’ (Italics added.) Justice v. East St. Louis City Lines, Inc., Mo. Sup., 375 S.W.2d 150, 155.

Moore v. Eden, 405 S.W.2d 910, 914 (Mo.1966). ■ A review of the record indicates the respondents did make a submissible case.

Under a humanitarian submission, the plaintiff must establish the following five elements: 1) the plaintiff was in a position of immediate danger; 2) the defendant was aware or should have been aware of the plaintiff’s position of peril; 3) after receiving such notice, the defendant had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; 4) the defendant failed to exercise the requisite care to avert such impending injury; and 5) by reason thereof, the plaintiff was injured. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482 (banc 1924).

Epple, supra, 540.

As the court then notes:

The first step in establishing liability under the humanitarian doctrine is demonstrating that the plaintiff came into a position of immediate danger. This position is commonly defined by the Missouri courts as that position of danger to the plaintiff, whether or not the plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to the plaintiff is reasonably certain and not a mere possibility. The peril must actually be imminent and may not be merely remote, uncertain or contingent. [Cites omitted].

Epple, supra, 540.

Position of Immediate Danger and Notice to Appellant

The question of when and where the plaintiff (or plaintiff’s decedent) came into a position of immediate danger is for the jury, provided that there is substantial evidence from which the jury can make that determination. Epple, supra, 540 and cases cited.

In light of the facts and circumstances of this case, could the jury have determined at what point Mrs. Wiseman entered into a position of immediate danger without resorting to speculation and conjecture?

Head brakeman David Storey testified that when he saw Mrs. Wiseman I2V2 feet from the train track he exclaimed, “Oh, my God, she’s not going to stop.” There could be no clearer proof that Mrs. Wiseman had entered a position of immediate danger when she was at least I2V2 feet from the point of collision. However, there was also substantial evidence to support a finding that decedent was in a position of immediate danger when she was as far as 40 feet from the point of collision and that her obliviousness, and hence her position of peril, should have been apparent to brakeman Storey.

‘[T]he zone of imminent peril began and the duty of the engineer arose when it was or should have been reasonably apparent to him that the truck driver was oblivious of the approaching train and was intent on continuing across its path, * * * and it was his duty to act on reasonable appearances and at a time when action would be effective. * * * It is enough that the circumstances are such as to indicate a reasonable chance that this is the case. Even such a chance that the plaintiff will not discover his peril is enough to require the defendant to make a reasonable effort to avoid injuring him.’

Grothe v. St. Louis-San Francisco Railway Co., 460 S.W.2d 711, 716 (Mo. 1970), quoting Wabash Railroad Company v. Dannen Mills, Inc., 365 Mo. 827, 832, 288 S.W.2d 926, 929 (Mo. banc 1956).

Appellant argues that Mrs. Wiseman could have stopped in a step or two and that the zone of danger should be limited to a step or two from the overhang of the engine. In the absence of obliviousness on the part of the person approaching the path of a moving vehicle, such a narrow zone of peril may be appropriate. See, Turbett v. Thompson, 363 Mo. 577, 252 S.W.2d 319 (Mo. 1952); Keele v. Atchison T. & S. F. Ry. Co., 258 Mo. 112, 167 S.W. 433 (Mo. 1914); and Farris v. Thompson, 168 S.W.2d 439 (Mo. App. 1943).

But, when the plaintiff is oblivious, it has been said that the zone of immediate danger of being injured is widened to that point where it was or should have been reasonably apparent to the defendant in the exercise of the required degree of care that the plaintiff was oblivious of the approach of defendant’s moving vehicle and was intent on continuing across its path. [Cites omitted].

Todd v. Presley, 413 S.W.2d 173, 177 (Mo. 1967). Accord, State ex rel. Thompson v. Shain, 349 Mo. 27,159 S.W.2d 582 (Mo. banc 1941); Lang v. St. Louis-San Francisco Railway Company, 364 Mo. 1147, 273 S.W.2d 270 (Mo. 1954).

The cases cited by appellant to support its contention that a submissible case on this point was not made are distinguishable on the facts. In Turbett, supra, plaintiff was not oblivious to the approach of the train. In Keele, supra, obliviousness was not in issue or sufficiently manifested. In Palmer v. St. Louis & S. F. R. Co., 142 Mo.App. 440, 127 S.W. 97 (Mo. App. 1910) and Kenefick v. Terminal R. Ass’n of St. Louis, 207 S.W.2d 294 (Mo. 1948) there was no evidence of obliviousness.

Appellant argues unsuccessfully that decedent’s zone of peril was not enlarged by her obliviousness in the face of hard evidence that Mrs. Wiseman completely disregarded the approaching train as she crossed the tracks.

Witness Joyce McCarty testified she first saw Mrs. Wiseman when she was over 40 feet from the collision. Mrs. McCarty continued to watch Mrs. Wiseman until the engine struck her. According to Mrs. McCarty, Mrs. Wiseman seemed to be walking with her head down. Her speed never varied until the instant of the accident. Stanley McCarty testified that when he saw Mrs. Wiseman some 40 feet from the collision he said to himself, “look out lady, there is a train coming.” Mr. McCarty characterized Mrs. Wiseman as walking “like she had something on her mind or just had someplace to go or something.” Witness Shirley Drennen stated Mrs. Wiseman walked all the way across the tracks “at a steady rate with her head down.” Witness Mary Coleman watched Mrs. Wiseman walk at a steady, normal pace toward the path of the train; Mrs. Wiseman “[rjeally not even noticing it.” Coleman said to herself while watching, “Oh, my God, either hurry up or something.”

From the testimony of eyewitnesses to the accident who observed Mrs. Wiseman as she crossed the tracks, the jury could have found that Mrs. Wiseman was oblivious and in a position of peril when she was as far as 40 feet from the point of collision.

Having determined that Mrs. Wiseman entered a position of immediate danger 40 feet from the point of collision, the second element of a humanitarian cause of action must be examined: that the defendant knew or should have been aware of the plaintiff’s position of peril. “ ‘Whether and when one becomes chargeable with notice that another is in a position of imminent peril depends upon the reasonable appearances of the situation confronting him.’ Lane v. Wilson, 390 S.W.2d 943, 947 (Mo. App. 1965).” Epple, supra, 541.

That appellant’s head brakeman was on notice that Mrs. Wiseman was in a position of imminent peril is positively established by his statement, “Oh, my God, she’s not going to stop,” made when Mrs. Wiseman was 12½ feet from the collision. Moreover, the jury could have believed that had head brakeman Storey kept a lookout for Mrs. Wiseman before he saw her 12½ feet from the collision it would have been reasonably apparent to him that Mrs. Wiseman was in peril. In fact, relying on the testimony of Mr. and Mrs. McCarty and Shirley Drennen, the jury could have found that Mrs. Wise-man’s peril should have been reasonably apparent to Storey the first time he looked at her, when she was 40 feet away. There was substantial evidence to support a finding of obliviousness, and hence immediate danger, at the 40 foot distance. Brakeman Storey, at that time, should have been aware of decedent’s position of immediate danger.

Appellant's Present Ability to Avert Injury and Failure to Exercise Requisite Care

Next, it must be decided whether respondents produced sufficient evidence to show that once appellant was placed on notice that Mrs. Wiseman was in a position of immediate danger, appellant’s employees had the present ability, with the means at hand, to avert the impending injury without injury to themselves or others and that appellant failed to exercise the requisite care to avert the accident. Epple, supra, 540-542.

Could appellant have avoided the accident by slackening the speed of the train once Mrs. Wiseman entered into a position of immediate danger? Considering the evidence in the light most favorable to respondents and giving them the benefit of all favorable inferences from that evidence, respondents made a submissible case on failure to slacken speed.

The locomotive is ten feet wide. According to witness Mary Coleman, Mrs. Wise-man was in the center of the track when struck. This is consistent with the position of Mrs. Wiseman’s body after the collision. Therefore, Mrs. Wiseman needed to walk another five feet, half the width of the locomotive, to escape. The trial court took judicial notice that the average person walks from two to three miles per hour, or from 2.9 to 4.4 feet per second. Mrs. Wise-man needed an additional 1.1 seconds to pass safely in front of the locomotive.

Neither side produced expert testimony or test results on how far it would take a diesel locomotive pulling six empty hopper cars and a caboose to stop under these track conditions although respondents’ brief contained a theoretical calculation of a stopping distance which was attacked as not credible by appellant and which need not be considered here. There was, however, substantial evidence to support a stopping distance of from 124 to 134 feet. There was testimony that the train stopped approximately 124 to 134 feet past the point of impact and that the brakes were applied while the engine was on the crossing. Mary Coleman said she heard the brakes applied at the point of impact and not before. Stanley McCarty testified he did not hear the squealing of the brakes until after decedent was hit. Shirley Drennen first heard the “screeching” when “the train had hit the crossing where the cars cross.” Trainman Welch said the front of the diesel was 90 to 100 feet north of the north line of Miller Street when the train stopped. Trainman Adams estimated the distance at 100 feet.

Assuming the brakes were applied at the point of impact, the stopping distance was 124 to 134 feet. [3 feet (one-half the width of the sidewalk) plus 31 feet (the width of Miller Street) plus 90 to 100 feet (estimates of trainmen Welch and Adams)]. If the brakes were applied while the engine was actually on the crossing, the stopping distance was shorter. As the court stated in Lang, supra, at 275, “[T]here is no more cogent, probative evidence of what could and should have been done than what as a matter of indisputable fact was done.”

Did appellant exercise the requisite care to avert the impending injury?

[T]he duty of the one in charge of an instrumentality about to inflict injury upon another [is] to stop the same or slacken its speed within the shortest time and space possible consistent with the means at hand and the safety of those aboard, after he becomes chargeable with actual or constructive notice of the perilous situation of the person about to be injured. Larkin v. Wells, supra [278 S.W. 1087 (Mo. App. 1925)].

Hinds v. Chicago, B & Q R. Co., 85 S.W.2d 165, 171 (Mo. App. 1935).

There was ample evidence that decedent was in a position of immediate danger before brakeman Storey saw her 12½ feet from the point of impact and made his exclamation. Not one, but several witnesses testified she was oblivious as far as 40 feet from the point of impact. The determination of when a plaintiff has entered a position of immediate danger depends upon the evidence in each case and is a question for the jury provided there is sufficient evidence from which the jury can make a determinátion. Yarrington v. Lininger, 327 S.W.2d 104, 109 (Mo. 1959); Epple, supra, 540.

Considering the testimony of the four witnesses that Mrs. Wiseman, as she walked across the tracks, appeared to have something on her mind and to be oblivious of the approaching train, the jury could have found that the head brakeman should have been aware of Mrs. Wiseman’s obliviousness and position of immediate danger when she was 40 feet from the point of collision.

In 9.1 seconds Mrs. Wiseman, walking at a rate of three miles per hour, would have walked the 40 feet. Therefore, the engineer and brakeman had 9.1 seconds from the time Mrs. Wiseman was 40 feet from disaster in which to apply the emergency brake and slow the train before it would strike Mrs. Wiseman. The train was traveling at eight to ten miles per hour. At eight miles per hour the engine was approximately 106 feet from the point of impact when Mrs. Wiseman was 40 feet away (11.7 feet per second times 9.1 seconds). In 10.2 seconds, Mrs. Wiseman, at the rate of three miles per hour, would have walked the extra five feet required for her to reach safety. An additional 1.1 seconds would have allowed her to escape.

In slowing the train as it approached the DeSoto depot (which is approximately 2,000 feet north of the Miller Street crossing), the engineer made what is known as a “service application” of the brakes thus forcing the brake shoes into direct contact with the wheels. Under these circumstances, stopping would have begun instantaneously with the application of the emergency brake. If the brake shoes had not been in contact with the wheels, there would have been, according to engineer Rohlfing, a time lag of “two seconds or better” between the time the emergency brake application was made and the time the brake shoes actually came in contact with the wheels.

Therefore, if brakeman Storey had “big holed” the train when he first saw Mrs. Wiseman (and should have been aware of her immediate danger) he would have had ample time to reduce the speed of the train sufficiently to allow Mrs. Wiseman to cross the tracks ahead of the engine. Allowing for a reaction time of .75 seconds, maximum braking action would have begun 8.35 seconds before the front of the engine reached the point of impact. From this evidence, the jury could reasonably draw the inference that the speed of the train could and should have been slackened enough to allow Mrs. Wiseman to walk the last five feet over the siding track in safety.

It is doubtful that juries engage in such esoteric calculations as to speeds and distances in reaching verdicts on humanitarian cases. But the evidence was there, and in determining submissibility that evidence must be considered if it supports the jury’s verdict.

A case very similar on the facts is Lang, supra. There the pedestrian was found to be oblivious and in a position of immediate danger 42 feet from the impact with the train. No attempt was made to slacken the speed of the train. The evidence produced as to stopping distances was rejected as lacking a convincing foundation. The court, however, stated at page 275 that “the length of time and the distances in which the plaintiff was in peril are inferable and demonstrable from the circumstances” without the stopping distance testimony. The opinion then analyzes the distance in which the train actually stopped and indicates they could use the evidence of the plaintiff’s position of peril and the actual stopping distance to find that the speed of the train could have been slackened enough to allow plaintiff to walk to safety. The judgment for the plaintiff was affirmed. Further support for this result is found in other “almost escaping” cases.

The essence of an “almost escaping” case, such as the case at bar, is the fact that ' plaintiff (or decedent) needed only a second to emerge from the position of immediate danger, and if the defendant had taken the slightest action to avoid the collision, then no injury would have occurred. Epple, supra, 542. “In establishing an ‘almost escaping’ case the plaintiff must produce evidence, direct or circumstantial, that in the time and space available, the defendant’s speed or movement could have been sufficiently altered to enable the plaintiff’s escape. [Cites omitted].” Epple, supra, 542.

In Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70 (Mo. 1940), a truck moving across a railroad crossing would have been out of danger from being struck by a train (which at its sustained speed was ten or eleven seconds away) in a little more than one second. The court said, at page 74: “If all this is true, no further testimony was necessary to raise a warrantable inference that the enginemen could have checked its speed sufficiently to have avoided the collision.”

In Burns v. Maxwell, 418 S.W.2d 138 (Mo. 1967), the defendant was driving at 30 miles per hour. He had approximately three seconds (or about 132 feet) to slacken his speed after it should have been reasonably apparent to him that the plaintiff would drive into his path. After subtracting .75 seconds for reaction time, the court found he still had 100 feet in which to reduce his speed and delay reaching the point of collision by the .50 seconds plaintiff needed to pass uninjured. Through this analysis, the court avoided the need for evidence of the precise distance in which the defendant would have had to stop. By showing first, that only a very short time or distance was needed to escape, and, second, that defendant had some time in which to slacken his speed, the court can let ‘ “ ‘the facts speak for themselves without the aid of expert evidence, as where the evidence shows that the plaintiff’s vehicle had but barely failed to get in the clear before the occurrence of the collision, so that only the least additional time would have enabled the plaintiff to make his escape.’ (Citing cases).” ’ Burns, supra, 141 citing Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 924 (Mo. 1959). See, Woods v. Kurn, 183 S.W.2d 852, 856 (Mo. App. 1944).

There was substantial evidence to support the jury’s finding that appellant’s train crew did not act as quickly as possible to avert the tragedy. In this connection, the supreme court’s statement in Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20, 24 (Mo. banc 1927), is appropriate: “It must be remembered that men in charge of railway trains are trained to quick observation and quick action. They do not have to stop and think of the thing to be done. Action follows the impression, automatic and instantaneous; otherwise, they could not hold their jobs.” The train could have been slowed sufficiently after Mrs. Wiseman was observed to allow her time to walk the final five feet to safety. Instead, precious time was squandered in commentary and inaction. Defendant failed in its duty to exercise the requisite care to avoid the injury.

Appellant raises no issue as to the fifth element of a humanitarian submission, the injury to decedent as a result of appellant’s failure to exercise the requisite care. Therefore, having established the constituent elements of a humanitarian submission, respondents were entitled to have the issue submitted to the jury.

The trial court did not err in refusing to grant appellant’s motion for a directed verdict; it cannot be said that all of the evidence and reasonable inferences to be drawn therefrom were so strongly against respondents that there was no room for reasonable minds to differ. Moore, supra.

IMPEACHMENT

Appellant argues strenuously that Storey’s testimony on the two to three second time lag was inadmissible because it emerged as a result of respondents’ “impeaching” Storey, who was called as their witness.

Storey had testified on deposition that there was a two to three second lag between his exclamation that Mrs. Wiseman was not going to stop and the application of the brakes by the engineer. At trial he denied the deposition testimony as to the time lag and counsel for respondents used Storey’s deposition to elicit from him that he had meant to say “approximately 2 to 3 seconds” on deposition. Appellant claims the use of the deposition was impeachment. Respondents argue that counsel was merely refreshing the witness’ memory.

‘[T]o warrant the impeachment of one’s own witness, there must always exist the element of actual, and not mere feigned, surprise at the testimony which the witness gives, and even then only in the event that the testimony is of such an affirmative character as to be favorable to the adverse party, and therefore prejudicial to the party who has been misled or entrapped into calling the witness.’

Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851, 859 (Mo. 1943), quoting Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 147, 148, 112 S.W.2d 865, 872 (Mo. App. 1938).

The court in Crabtree continued, at page 859:

[11,12] Under this rule one may not impeach the witness he has called when he well knows in advance that the witness’ evidence is going to be unfavorable and adverse, as, for example, when the witness’ deposition has been previously taken and his evidence was then adverse to the party calling him. When, however, a party is unexpectedly surprised by unfavorable, adverse evidence given by his own witness, he may interrogate such witness as to previous inconsistent statements made by him and introduce testimony of other witnesses showing the previous inconsistent and contradictory statements. [Cites omitted].

The testimony on the two to three second lapse after Mrs. Wiseman was 12½ feet from being struck by the train was not crucial to respondents’ making a submissi-ble case on failure to slacken speed. Even without this evidence, respondents showed appellant failed to exercise the requisite care to avert the impending injury. As noted above, the jury could have found that decedent was oblivious 40 feet from the point of impact and that Storey should have been aware of her obliviousness, thus allowing additional time for slowing the train.

Storey’s testimony in his deposition, however, established that two to three seconds had elapsed. To say that a change in his testimony at trial was not an unexpected surprise or was not of such an affirmative character as to be favorable to appellant is to ignore the facts of the case and respondents’ theory of their cause of action. Appellant argues respondents should have formally announced to the court that they were surprised and, that in the absence of such an announcement, impeachment was improper. While that may have been the wiser course, appellant cites no case or rule of procedure requiring such an announcement. In the context of the examination of this witness, it was clear what respondents were trying to do and why they were doing so. The surprise was actual and obvious and impeachment was proper.

Further, the use of Storey’s deposition for the purpose of impeachment was proper. Rule 57.07(aXl) states: “Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.”

Our Rule 57.07(a)(1) is identical to Rule 32(a)(1) of the Federal Rules of Civil Procedure. In commentary on this rule, it is stated in Moore’s Federal Practice, Vol. 4A, Paragraph 32.03:

Rule 32(a)(1) permits a party to use any deposition, whether of a party or other person, for the purpose of ‘contradicting or impeaching the testimony of the deponent as a witness,’ irrespective of whether the witness is the party’s own witness or the witness of some other party. This slight relaxation of the rule against impeaching one’s own witness is in accord with the best modern authorities on that subject. [Emphasis added].

See Cunningham v. Gans, 507 F.2d 496 (2nd Cir. 1974).

Wright and Miller, Federal Practice and Procedure, Vol. 8, § 2144, add that “[t]he rule permits a party to use a deposition to impeach his own witness to the extent that the rules of evidence allow such impeachment.” Considering the facts here and the cited authorities, the use of Storey’s deposition for the purpose of impeachment was proper.

DEFINITION OF NEGLIGENCE

Appellant next contends the trial court erred in failing to define the terms “negligence,” “negligent” and “negligently” as used in respondents’ verdict-directing instruction, MAI 17.15 (modified).

The case was tried before the effective date of the recent revisions and additions to MAI Civil, which now mandate an instruction defining negligence. This revision solves a recurring problem, but is not applicable here. This same issue was raised in Epple, supra, at page 544. The court there refused to express an opinion as to whether the trial court’s failure to define negligence constituted prejudicial error, but they did cite Carter v. Consolidated Cabs, Inc., 490 S.W.2d 39 (Mo. 1973). The trial court in Carter failed to define negligence after giving MAI 17.14 (modified). The supreme court rejected the appellant’s contention that the failure was reversible error, stating, at page 43:

If defendants felt the submitted negligence needed further definition, they were free to offer the appropriate MAI definition but declined or failed so to do. In such circumstances the omission of an instruction defining negligence certainly was not a misdirection and does not constitute reversible error. Robinett v. Kansas City P & L Co., supra, [484 S.W.2d 506 (Mo. App. 1972)] l.c. 510[3, 4].

Appellant here was free to offer MAI 11.02 and failed to do so. The trial court’s failure to define the negligence terms is not reversible error.

The cases cited by appellant, Brewer v. Swift & Company, 451 S.W.2d 131 (Mo. banc 1970) and Helfrick v. Taylor, 440 S.W.2d 940 (Mo. 1969), contain language indicating the desirability of an instruction defining negligence. There is dictum in Heifrick stating the submission of such an instruction is mandatory. However, Carter, supra, is a more recent authority and supports the holding that the omission of an instruction defining negligence is not error in this case.

AGGRAVATING CIRCUMSTANCES

Consistent with the amended pleadings, respondent’s counsel, in his opening and closing arguments, told the jury they could consider “aggravating circumstances” surrounding the death of Mrs. Wiseman in computing respondents’ damages should appellant be found liable. Appellant made timely objections on both occasions. In its instruction on measure of damages, the trial court informed the jury that “[i]n assessing the damages you may also take into consideration aggravating circumstances attendant upon the fatal injury.”

Appellant contends that in allowing this argument over its objection, and in giving this instruction, the trial court committed reversible error because there was no evidence to support jury consideration of aggravating circumstances. This argument must be rejected.

Section 537.090, RSMo Cum. Supp. 1975, of the Wrongful Death Act states, “The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts.” Damage Instructions MAI 5.05 (death of wife) and 5.09 (death of parent) authorize the consideration of “any aggravating circumstances attendant upon the fatal injury” when the evidence supports the submission.

At the outset, it should be noted that a humanitarian negligence submission and an instruction on aggravating circumstances are not mutually exclusive. See, Grothe, supra; Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517 (Mo. 1947); Adams v. Thompson, 178 S.W.2d 779 (Mo. App. 1944) and cases cited therein.

On the nature and availability of damages for aggravated circumstances, it has been said:

Now to whatever extent the damages are increased by reason of aggravating circumstances attending the death of the deceased, such increase is punitive in its nature; and therefore to constitute evidence of a character to warrant the submission of the issue of aggravating circumstances there must be a showing of willful misconduct, wantonness, recklessness, or a want of care indicative of indifference to consequences. . . . [I]f [the evidence] shows that the negligence of the defendant or his agent was attended and accompanied by such circumstances as to evince a reckless disregard of the rights of others, then the jury have the right under the statute to take such aggravating circumstances into consideration in determining the amount to be allowed the plaintiff or plaintiffs, and an instruction so informing them is consequently proper. [Cites omitted].

Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123, 127 (1936).

What evidence “of willful misconduct, wantonness, recklessness, or want of care indicative of indifference to consequences” is present in the case at bar?

Directly behind, and to the right of the head brakeman’s chair is an emergency brake valve. This brake valve has the same braking effect as the engineer’s emergency brake valve. Both can be “big holed” to put the train in an emergency stop. Head brakeman Storey testified he knew where the brake valve was, could reach it from his chair without rising, and had been instructed to use it in a “dire emergency,” including when the train was “about to hit something.” Yet, Storey also testified that in the seven years and four months prior to the accident, he had received no instruction on how to use the emergency brake, had never used it, and had never been on a train where it had been used to “big hole” a train. At the time of the trial he still did not know which way to push or pull the lever to activate the emergency brake.

In addition, appellant knew that when the locomotive was operated “backwards” the engineer could not see traffic and pedestrians approaching a crossing from his right. Appellant knew in such a situation that action by the head brakeman might be the quickest or only way to avert an accident. Yet appellant failed to provide Sto-rey training on the use of the emergency brake valve and proceeded to operate the train across a very dangerous crossing with a head brakeman who did not know which way to move the lever for an emergency stop.

In Grothe, supra, a wrongful death action submitted on humanitarian negligence, evidence that the defendant permitted a busy crossing to be guarded by only a bell which could not be heard except under optimum conditions, and that the community had made written requests for crossing improvements, was found admissible and held sufficient to justify an aggravating circumstances instruction. It would appear, therefore, that antecedent negligence may be considered on the issue of damages.

Even more important, brakeman Storey saw Mrs. Wiseman 40 feet from the collision point in a position of immediate danger, which he should have recognized. Instead of continuing to observe her, however, as the circumstances required, Storey looked away until she was only 12½ feet from being struck, too late for effective action to avoid the accident. His conduct in looking away after he saw her in a position of recognizable immediate danger evinced a reckless disregard for Mrs. Wiseman’s safety and was an aggravating circumstance which could be taken into consideration by the jury in determining damages. Williams, supra.

Trains are extremely dangerous instru-mentalities, particularly at grade crossings in heavily populated areas. Both engineer Rohlfing and brakeman Storey knew the Miller Street crossing was a dangerous one and that cars and people crossed against the signals. Rohlfing said, “you’ve got to expect anything to happen” at the crossing. Storey testified cars make “last minute dashes” across all the time. Under these circumstances, and considering the engineer’s inability to see anything on the brakeman’s side, evidence of appellant’s past omissions in training Storey, which omissions adversely affected appellant’s present ability to protect Mrs. Wiseman’s safety, along with Storey’s inattention to and disregard for Mrs. Wiseman’s immediate danger when he first saw her, were evidence of “a want of care indicative of indifference to consequences” and justified the submission of the “aggravating circumstances” portion of the measure of damages instruction.

Appellant’s final assignment of error in support of a new trial — that the trial court erred in admitting evidence on the positioning of the locomotive and on Storey’s training — has been sufficiently discussed to show the evidence was relevant to the issue of aggravating circumstances in the computation of damages. No error was committed by its admission.

The judgment is affirmed

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . For additional cases relating to aggravating circumstances see: Hertz v. McDowell, 358 Mo. 383, 214 S.W.2d 546 (Mo. banc 1948); Mudd v. Quinn, 462 S.W.2d 757 (Mo. 1971); Tripp v. Choate, 415 S.W.2d 808 (Mo. 1967); May v. Bradford, 369 S.W.2d 225 (Mo. 1963); Cox v. Terminal R. Ass’n, 331 Mo. 910, 55 S.W.2d 685 (Mo. 1932); Reel v. Consolidated Inv. Co., 236 S.W. 43 (Mo. 1921); Dougherty v. Smith, 480 S.W.2d 519 (Mo. App. 1972).


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Phillip JAMISON, Appellant.
    No. 39544.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.
    Shaw, Howlett & Schwartz, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Judge.

A jury found defendant guilty of first-degree robbery (Sections 560.120 and 560.135, RSMo.1969) and punishment was assessed at five years’ imprisonment. The only issue on appeal is defendant’s identification. He contends his conviction was based on a court room identification tainted by imper-missibly suggestive photographic identification.

The state’s evidence: On October 23,1976 Mr. and Mrs. Emil Geiger were in Kinloch about 4:00 P.M. to collect a debt. Mr. Geiger returned to his van and his wife and while preparing to leave a young man approached the van and opened the driver’s side door. He displayed an automatic pistol, announced a holdup and took Mr. Geiger’s money, but returned the wallet upon request. He told the Geigers to back up their van; as they did so he walked off, but turned around, again flourished the weapon and fled.

The police were called immediately. Mr. Geiger described the robber as a young negro wearing a red jacket, about twenty years old, of medium height and athletic build, clean cut in appearance and spoke softly. Within an hour the police showed Mr. Geiger ten photographs. He picked out three of them and upon closer examination chose a picture of defendant as the robber. Mrs. Geiger independently picked out the same photograph. Defendant was later arrested and a lineup conducted. Each of the Geigers picked defendant from a group of four photographs and at trial both identified defendant as the robber.

Defendant and his sister testified. The sister testified defendant had borrowed her car on the day of the robbery and had it about 4:00 P.M.; that defendant was not wearing a red jacket that day, but one of his friends, Robert Turner, owned such a jacket and looked like defendant. Defendant testified he was miles away at the time of the robbery; that he was then wearing a blue sweater but an acquaintance of his was wearing a red jacket of the type described by the victims. The acquaintance did not testify. The jury obviously disbelieved the defense evidence.

Convictions based on photographic identification will not be overturned unless “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 196 L.Ed.2d 1247[3] (1968).

We consider defendant’s argument with this in mind. He first contends the procedure used in the photographic identification was impermissibly suggestive, resulting in a tainted court-room identification. He argues these photographs were obviously mug shots and demonstrate him to be of questionable character. The photographs were unlabeled, so we deny defendant’s point.

State v. Parker, 458 S.W.2d 241[2] (Mo. 1970) instructs us to look to the totality of the circumstances and gives some explicit guidelines. It directs us to look for “(1) The presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive court room identification.” The record demonstrates these criteria were met.

The victims had a face-to-face, prolonged view of and conversation with the defendant so that there was an independent basis for their identification. Second, the ten photographs shown the victims, from which they selected defendant’s picture, were used by police to help locate and arrest him and the two lineup photo’s were used by police to confirm the victims’ selection of defendant. In all this, there was no sign of suggestiveness. Third, both victims’ court-room identification was positive. Defendant’s challenge to the photographic exhibits is therefore denied.

The state’s evidence was .clearly sufficient to warrant the guilty verdict and we find no reversible error.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Ronald G. COY, Appellant.
    No. KCD 30026.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 27, 1978.
    Application to Transfer Denied Feb. 13, 1979.
    James W. Whan, Maryville, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of carrying a concealed weapon. The weapon, a .44 Magnum Hawes pistol, was seized in a warrantless search of defendant’s automobile, and the question is whether the court erred in its admission into evidence. Affirmed.

At approximately 1:30 a.m., January 9, 1977, Public Safety Officer Michael Wilson and Police Officer Robert Seipel were patrolling eastwardly on East 7th Street in Maryville, Missouri, when they heard what they believed, as a result of their police training and experience, to be a gunshot to the north. The area was one which had a high incidence of shots fired into bulk gasoline storage tanks.

The officers proceeded to the first intersection and turned north on Dewey Street. They had traveled north about a half block when they were met by a southbound Oldsmobile driven by Ronald Coy, a man previously subjected to “all kinds of stops” by Officer Seipel and known to Officer Wilson to have been convicted of a crime involving use of firearms. On this occasion Officer Wilson noticed that “he [Coy] just kept looking back at us.” The officers proceeded for another half block to the top of a hill where they could see over a six or seven-block area. They saw no one else in the area, and turned around to follow the Coy Oldsmobile which had continued south on Dewey, west on 7th, and north on Main Street. At 7th and Main, the officers showed their red lights. The Oldsmobile proceeded for four blocks before coming to a stop in the parking lot of the J and R Store.

The officers stopped their car immediately to the rear of the Oldsmobile at which time defendant alighted from the driver’s side, shut the door and started toward the police car. Officer Wilson approached and told him to place his hands on the roof of the Oldsmobile. Officer Seipel stood by the right front fender of the police car to watch a passenger in the Oldsmobile. Officer Wilson made a search of defendant’s person for his protection and in the course of the personal search observed a pistol holster lying on the back seat of the Oldsmobile. Officer Wilson then opened the driver’s door to the Oldsmobile at which time he observed that defendant dropped his hands from the top of the car and came toward him. Officer Wilson replaced defendant’s hands on top of the car. While keeping watch on defendant, he crouched down, put his hand under the driver’s seat, and felt an object which, upon looking under the seat, was found to be a .44 Magnum Hawes pistol, a six-cartridge pistol then containing five cartridges. Officer Wilson took the pistol, passed it to Officer Seipel, and placed defendant under arrest.

Appellant charges the court erred in overruling defendant’s motion to suppress and in admitting into evidence the .44 Magnum Hawes pistol. In support, he asserts that the search and seizure of the pistol was unconstitutional and unlawful in that it “did not fall within the well-defined exceptions allowed by law in cases of warrantless searches and seizures.”

Subject to certain exceptions, searches and seizures conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See also Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970).

Under these authorities, warrantless searches have been held reasonable in a number of situations. The exception thus delineated which validates the search in this case is that “the search of an automobile, even though not incident to an arrest, may be constitutionally permissible if there is probable cause for the search. * * * [Such] probable cause means more than mere suspicion, but exists where the facts and circumstances within the knowledge of the seizing officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed or that the contents of the automobile offend against the law.” State v. Hornbeck, 492 S.W.2d 802, 805 (Mo.1973). See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931).

Officers Wilson and Seipel had probable cause for their search of defendant’s automobile under the facts and circumstances in this case. They approached defendant’s automobile with knowledge that a gun had been fired. They had been experiencing incidents of shots fired into storage tanks. Defendant and his companion were the only persons present in the area at the time, and defendant was known to the officers, particularly with respect to a crime involving a firearm. Defendant continued to look at the officers from the beginning of confrontation; he did not stop promptly. A pistol holster was in plain view in defendant’s automobile, and defendant moved toward Officer Wilson when he moved to open the door of defendant’s automobile. See State v. Hornbeck, supra; State v. Hohensee, 473 S.W.2d 379 (Mo.1971); State v. Whitnah, 493 S.W.2d 32 (Mo.App.1973); State v. Mick, 506 S.W.2d 35 (Mo.App.1974); State v. Cromwell, 509 S.W.2d 144 (Mo.App.1974); State v. Holman, 556 S.W.2d 499 (Mo.App. 1977); State v. Daly, 560 S.W.2d 253 (Mo.App.1977).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    Carol FLIEDER, Respondent, v. Harvey FLIEDER, Appellant.
    No. KCD 29729.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 27, 1978.
    Lillie Knight, Kansas City, for appellant.
    Steven G. Emerson, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

A judgment debtor’s continuing resistance to the registration of a foreign judgment under the Uniform Enforcement of Foreign Judgments Law, Sec. 511.760, RSMo 1969, and Rule 74.79 prompted this appeal.

Plaintiff’s (judgment creditor) verified petition for registration, an attached copy of a Kansas judgment authenticated in the manner authorized by the laws of the United States, defendant’s (judgment debtor) “Motion to Set Aside Foreign Judgment”, and evidence adduced at a hearing held thereon, reveal certain highly pertinent matters.

On March 15, 1976, personal service of process was obtained upon the judgment debtor, then a citizen and resident of Kansas, in a divorce action instituted by the judgment creditor in the District Court of Johnson County, Kansas. At some unknown, later date the judgment debtor moved from the state of Kansas to the state of Missouri. On August 5, 1976, counsel (a member of the Kansas Bar) representing the judgment debtor in the Kansas divorce action was permitted to withdraw from the case and there is no indication in the record that a new attorney ever appeared on behalf of the judgment debtor therein. On August 13, 1976, the Judge of the District Court of Johnson County, Kansas, entered an order setting the case for “final hearing” on August 18,1976, and requiring that “notice of final hearing should be sent directly to defendant”. A “Certificate of Mailing” attached to said order was undated and unsigned. Although the judgment debtor did not appear in person or by counsel at the August 18, 1976, “final hearing”, a judgment was entered in favor of the judgment creditor and against the judgment debtor for divorce, custody of a minor child, alimony, child support, attorney fees and a division of property. According to a “Certificate of Mailing” filed in the District Court of Johnson County, Kansas, a copy of said judgment entered on the 18th day of August, 1976, was mailed on the same day by counsel for the judgment creditor to the judgment debtor at the latter’s address in Kansas City, Missouri.

On August 24, 1976, the judgment creditor filed what was captioned a “Notice of Trial of Cause” in said case in the District Court of Johnson County, Kansas, which recited that a judgment has been granted on a “default basis against the judgment debtor on August 18, 1976”, that the judgment creditor was willing to “set aside” the “default judgment” entered on August 18, 1976, and again proceed to trial in the matter on September 3, 1976, in the event the judgment debtor “appears in person” on that date, and in the event the judgment debtor did not appear on “September 3, 1976, at 9:00 o’clock A.M. in Division 6 of the District Court of Johnson County, Kansas” the judgment creditor would “move the Court for a default judgment which incorporates all of the specific judgments of the Court’s decision on August 18, 1976.”

A “default judgment” as requested by the judgment creditor, supra, was rendered by the Judge of the District Court of Johnson County Kansas, on September 3, 1976. According to a “Certificate of Mailing” filed in the District Court of Johnson County, Kansas, a copy of said judgment entered on the 3rd day of September, 1976, was mailed on the same day by counsel for the judgment creditor to the judgment debtor at the latter’s address in Kansas City, Missouri, and to the attorney representing the judgment debtor in the instant action at her address in Kansas City, Missouri. Recitals to the following effect are found in various recital portions of the September 3, 1976, judgment: (1) the judgment creditor appeared in person and by counsel on September 3,1976; (2) the judgment debtor did not appear; and (3) albeit somewhat imprecisely stated, requisite notice of the hearing to be held on September 3,1976, was given the judgment debtor.

In response to the judgment creditor’s verified petition for registration, the September 3,1976, Kansas judgment was registered in the Circuit Court of Jackson County, Missouri, on October 29, 1976. The judgment debtor attacked registration of the foreign judgment on the grounds that (1) the setting aside of the August 18,1976, judgment terminated the original cause of action and the judgment entered on September 3, 1976, constituted the rendition of a judgment in a new and different cause of action in which no personal service of process was obtained upon the judgment debtor, and (2) alternatively, the judgment debtor was never given proper notice of the September 3,1976, hearing which culminated in the judgment ultimately registered in Missouri. Although the points relied on by the judgment debtor on appeal, literally speaking, are six in number, they are in fact multiple expressions of the same two grounds which the judgment debtor raised and relied on at the trial level.

By reason of the positive command of Art. IV, § 1, of the United States Constitution, full faith and credit must be given the judgment of a sister state in an action brought thereon in this state unless, with respect thereto, there was (1) a lack of jurisdiction over the subject matter, (2) failure to give due notice, or (3) fraud in the procurement or concoction of the judgment. In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759 (banc 1956); Mekelburg v. Whitman, 545 S.W.2d 89, 90 (Mo.App.1976); Corning Truck & Radiator Serv. v. Inc., 542 S.W.2d 520, 524 (Mo.App.1976); and O’Neill v. Winchester, 505 S.W.2d 135, 136 (Mo.App.1974). Not only have the legally recognized grounds for refusing to give full faith and credit to the judgment of a sister state been tightly circumscribed, but compliance with the full faith and credit clause has also been strengthened by establishment of the principle that a presumption of validity attaches to the judgment of a sister state which an attacking party has the burden of overcoming. Scott v. Scott, 441 S.W.2d 330, 333 (Mo.1969); and Corning Truck & Radiator Serv. v. J.W.M., Inc., supra, at 524.

The first ground pursued by the judgment debtor is totally without merit. The timeliness of vacating the August 18, 1976, judgment has not been questioned. Vacation of the August 18, 1976, judgment did not terminate or destroy the original divorce action as so vigorously urged by the judgment debtor. To the contrary, it remained pending and its status was as if no judgment had ever been rendered and the issues again stood ready for trial or other appropriate disposition. Dimit v. Bradshaw, 186 Kan. 220, 350 P.2d 131, 133 (1960); Voth v. Thompson, 178 Kan. 539, 289 P.2d 733, 736 (1955); Shotzman v. Ward, 172 Kan. 272, 239 P.2d 935, 940 (1952); and Standard Life Ass’n v. Merrill, 147 Kan. 121, 75 P.2d 825, 827 (1938). This matter is aptly summarized in Standard Life Ass’n v. Merrill, supra, 75 P.2d at 827: “ ‘Where a judgment is vacated or set aside by a valid order or judgment, it is entirely destroyed and the rights of the parties are left as if no such judgment had ever been entered. No further steps can be legally taken to enforce the vacated judgment. But the action is left still pending and undetermined, and further proceeding maybe had and taken therein. The case stands again for trial or for such other disposition as may be appropriate to the situation.’ ” (Emphasis added.) Consequently, new or additional personal service of process upon the judgment debtor was unnecessary to give the District Court of Johnson County, Kansas, jurisdiction over the judgment debtor’s person on September 3, 1976, to render the judgment in question.

The second ground pursued by the judgment debtor, that he was never given prior notice of the September 3, 1976, hearing, is also totally without merit. Simply put, the judgment debtor in this particular respect, as well as in all other respects, failed to present sufficient evidence to rebut the presumption of validity favoring the September 3, 1976, judgment. Scott v. Scott, supra; and Corning Truck & Radiator Serv. v. J. W.M., Inc., supra.

Judgment affirmed.

All concur.

      . Under Missouri law, what has been repeatedly referred to as a “default judgment” in the Kansas divorce action would appear to be a misnomer. See Donnell v. Vigus Quarries, Inc., 457 S.W.2d 249, 252 (Mo.App.1970), and J. G. Jackson Associates v. Mosley, 308 S.W.2d 774, 777 (Mo.App.1958), drawing a distinction between a default judgment and judgment entered against a non-defaulting defendant who simply fails to appear at a scheduled trial.


text:
    STATE of Missouri, Respondent, v. Joe Russell ENGLISH, Appellant.
    No. KCD 29889.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Application to Transfer Denied Feb. 13, 1979.

      McQuie & Deiter, Montgomery City, for appellant.
    C. E. Hamilton, Jr., Pros. Atty., Fulton, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of driving a motor vehicle while intoxicated. Appellant questions admission of opinions and breath test results on the issue of intoxication, and propriety of the State’s argument. Affirmed.

On December 22, 1976, shortly after 6:00 p. m., Kent Baumgartner, with Larry Williams as a passenger, left Auxvasse, driving his 1976 Chevrolet east on Callaway County Route B, a black-top road. At a point three or four miles out of town, they saw an automobile with lights burning, traveling west, coming over a hill toward them. As the two vehicles neared, the westbound automobile, a 1971 Chevrolet driven by Joe Russell English, crossed the center line into a side-swiping collision with the 1976 Chevrolet at the east end of a bridge. Mr. English continued west and backed into a field entrance on the north side of the road. Mr. Baumgartner turned around, went after the westbound vehicle, and stopped at the field entrance where it was parked. Both drivers got out of their cars. Mr. English stood holding the door and seemed unstable on his feet. After a few minutes, and after Mr. Baumgartner’s suggestions that the highway patrol be called, Mr. English got back in his car. He insisted several times that the patrol should not be called.

Both drivers drove to English’s office in Auxvasse. Mr. English was in front and weaved and swerved. They arrived at Mr. English’s office at about 6:30 p. m. Mr. Baumgartner tried to call the police but the line was busy. Mr. Williams went to a filling station to find someone to call the police but failed. They ultimately succeeded in getting a passing motorist to call the police. During this time, Don Huddleston, a friend of Mr. English, came to the office and saw him take a drink of liquor. When Mr. Baumgartner returned to the office, he noted the smell of alcohol as he had upon first arrival. He saw no change in Mr. English’s actions from first sight at the field entrance until the trooper’s arrival. He did not see Mr. English drink during that time. Mr. Baumgartner, age 19, had observed intoxicated people several times and, in his opinion, defendant was intoxicated. Mr. Williams, age 14, had observed people on a few occasions of intoxication and he, too, was of the opinion defendant was intoxicated. Mr. Williams saw English drink whiskey about five to ten minutes before the trooper arrived.

Trooper Dale Swartz arrived at Mr. English’s office at 6:57 p. m. and remained there until 7:06 or 7:07. He observed that defendant’s face was flushed, his eyes watery, his speech confused, that he was unsteady and staggering, and smelled of intoxicants. Defendant told Trooper Swartz he began drinking at 5:00 p. m. Trooper Swartz was of the opinion English was intoxicated at 7:00 p. m. He saw defendant drink from a fifth of whiskey which was one-half to two-thirds full.

Trooper Bill Baker, holder of a Type 3 permit for the breathalyzer machine, saw defendant at 7:15 p. m. and noticed a stagger in his walk, an odor of intoxicants, a flushed face, and messy, disarranged clothing. In his opinion, defendant was intoxicated at 7:20 p. m. Trooper Baker administered the breathalyzer test to defendant following procedures set forth in the operational check' list in evidence. The result was .19 per cent (.19 of one per cent by weight of alcohol in the subject’s blood).

Afton Ware, a chemist with the highway patrol, had examined a breathalyzer as an instrument for analysis of alcoholic content of blood. He stated it is generally accepted by authorities on intoxication that at .10 of 1% of alcohol and above, a person is considered intoxicated. He was of the opinion the breathalyzer is a reliable test for determination of the amount of alcohol in a person’s blood.

Appellant charges the court erred (I) in admission of the opinions of Baum-gartner and Williams on the ground “no foundation was laid” to permit their conclusions in evidence.

Lay witnesses may give an opinion on the intoxication of another if preceded by evidence of conduct and appearance observed by them to support the opinion. State v. Fisher, 504 S.W.2d 281, 283 (Mo.App.1973); State v. Bruns, 522 S.W.2d 54, 55 (Mo.App.1975); State v. Edmonds, 468 S.W.2d 685, 688 (Mo.App.1971). The basis for admission of such an opinion should be such as to render the witness able to arrive at an intelligent opinion with respect to the subject matter. 32 C.J.S. Evidence § 546(4), p. 117. The admission or exclusion of such opinion is within the court’s discretion, and such discretionary rulings are reviewable to determine abuse. State v. Edmonds, supra.

The evidence which preceded the opinions of witnesses Baumgartner and Williams follows.

Defendant, in the course of operating his automobile, drove across the center line of the road and sideswiped the Baumgartner automobile. He did not stop, but continued on and backed his car off the road into a field entrance. When the young men arrived at the field entrance, defendant got out and held on to his car during the ensuing conversation. He was unstable and unsteady on his feet. Defendant resisted suggestions that the police be called and insisted several times they not be called. While proceeding on to town, defendant weaved and swerved. Defendant smelled of alcohol upon arrival at his office. Both young men had experience gained by observation of intoxicated persons on previous occasions.

The foregoing provided the requisite support for the opinions of witnesses Baum-gartner and Williams, State v. Fisher, supra, and a basis for intelligent opinions from such witnesses, 32 C.J.S., supra. See also State v. Powell, 306 S.W.2d 531, 532 (Mo.1957), State v. Paul, 437 S.W.2d 98 (Mo.App.1969), and State v. Mayabb, 316 S.W.2d 609, 612 (Mo.1958), where similar circumstances provided acceptable foundations for admission of lay opinions on intoxication. Cf. State v. Bruns, supra, where the circumstances were deemed insufficient to lend probative value to an opinion of intoxication.

Accordingly, it may not be said that the court abused its discretion in admission of the opinions of witnesses Baumgartner and Williams. State v. Edmonds, supra.

Appellant charges the court erred (II) in permitting Trooper Baker to testify to the results of the breathalyzer test he gave defendant. He argues (A) the operational check list, Exhibit 5 in evidence, was inadmissible hearsay; and (B) without it, there was no evidence that approved methods were used to make the test results admissible.

Section 564.441 RSMo provides:

«1 * * * The test shall be administered by or at the direction of a law enforcement officer * * *.
“2. Chemical analysis of the person’s breath, to be considered valid * * * shall be performed according to methods approved by the state division of health by a person possessing a valid permit issued by the state division of health for this purpose * * *

There was evidence to show that the state division of health approved the breathalyzer as a test for intoxication; that the instrument used to test defendant was found in working order upon inspections conducted December 2,1976, and January 2, 1977, with no complaints of malfunction in the interim; that Trooper Baker held a qualifying permit for administration of breathalyzer tests; that he followed procedures set forth in an operational checklist which was admitted as Exhibit 5 in the following context:

“Q. O.K. Now, did you run the breathalyzer test on Mr. English? A. Yes, I did. Q. O.K. And what procedure did you use to run that breathalyzer test? A. The procedure that’s stated there on the .
“MR. McQUIE (for Appellant): I’m . I’m going to object to that. I ... I think that’d be hearsay. I ... I understood it to be what did he physically do and I think that’s what he ought to answer. I’m going to object to him saying that he followed some procedure that’s set down somewhere else. That’s hearsay. THE COURT: No, overruled.
“Q. Let me show you what has been marked as State’s Exhibit 5 and ask you if you can identify that. A. Yes, sir, I can. Q. And what is it? A.' This is my operational checklist that we follow when administering the breathalyzer. Q. O.K. Is that any particular checklist that you follow? A. This is the one that I filled out for, uh, Mr. Joe English. A. O.K. And are those the procedures on there that you followed on that night in warming up and operating the breathalyzer machine? A. Yes, sir, it is.”

Exhibit 5 contained, in addition to a check off of each procedure, the form certification by Trooper Baker that “There was no deviation from procedures outlined by the manufacturer and those approved by the Division of Health.”

The foregoing demonstrates that Exhibit 5 was but a recapitulation of the procedures Trooper Baker testified he followed, together with his certification that they did not deviate from procedures required by the manufacturer and the division of health, all subject to cross-examination. As such, it was not inadmissible hearsay; and it constituted, along with the other matters mentioned, evidence that approved procedures were used in testing defendant. See State v. Milligan, 516 S.W.2d 795, 796 (Mo.App.1974), where similar circumstances were sufficient to show that the method of testing defendant’s breath was approved. Compare contrary results in State v. Sinclair, 474 S.W.2d 865 (Mo.App.1971), where there was no effort to show type of machine or manner of administration of the test, and State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973), where the evidence showed the machine was inaccurate and malfunctioning.

Appellant charges the court erred (III) in receiving opinions of Troopers Swartz and Baker on defendant’s intoxication when they saw him at 7:00 p. m. and 7:20 p. m., and the breathalyzer result of 7:29 p. m., “because same were based on observations and testing * * * at least thirty minutes after he operated a motor vehicle and after he had * * * consumed a quantity of intoxicants following his operation of a motor vehicle, and his intoxication at such [remote] time * * * was not substantial evidence of driving while intoxicated.”

In cases where the only evidence of a defendant’s intoxication is remote from the time when he was shown in operation of a motor vehicle, verdicts of driving while intoxicated cannot stand. See, for example, State v. Dodson, 496 S.W.2d 272 (Mo.App.1973), where the only evidence was that defendant was found by a highway patrolman in an intoxicated condition in his home some six to eight hours after occurrence of an automobile accident in which defendant was involved as a driver; and State v. Kennedy, 530 S.W.2d 479 (Mo.App.1975), where there was no evidence indicating when defendant drove his car to the position where it was found subsequently by the police officer and defendant was found in an intoxicated condition outside the car.

Defendant is not entitled to application of those holdings because there was evidence to show his intoxication while driving his car. Witnesses Baumgartner and Williams so testified, and the testimony of Troopers Swartz and Baker and the breathalyzer result were admissible in that context. The jury would weigh also the effect of defendant’s subsequent imbibing, if so. See State v. Chester, 445 S.W.2d 393 (Mo.App.1969), and State v. Milligan, supra.

Appellant charges the court erred (IV) “in permitting the prosecuting attorney to argue * * * there is a presumption appellant was intoxicated, it having been shown his blood alcohol content was over 10 hundredths of one percent, because the construction and effect to be given results of chemical analysis of the blood are matters of law, set out in the statutes authorizing reception of such evidence, as to which the court should properly have been requested to instruct the jury, and this was not done.”

The argument in question is given these transcript references, viz.: “Mr. Ware told you that the presumption of intoxication is .10 of 1 per cent and so what we’re talking about is a breathalyzer reading that was not just .10, but almost double * * almost double .10 (214). So what we’re talking about is a breathalyzer reading which is .19 when it was given, was almost double what the presumption of intoxication is, not just barely over, but double of what the presumption of intoxication was (215). Then there’s the breathalyzer test that is double the presumption (232).” Defendant’s objections asserted the argument was a matter of law and “improper evidence.” They contained no request for relief, and were simply overruled.

Control of arguments of counsel is a matter within the discretion of the trial court, and the exercise of that discretion in connection with argument is not ground for reversal absent abuse. State v. Hooker, 536 S.W.2d 487 (Mo.App.1976). Thus the question is whether, in their context, the rulings in question constituted an abuse of discretion.

Section 564.442.1(3) provides:

“If there was ten-hundredths of one percent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.”

MAI-Cr. 3.40, which must be given if requested and if there is evidence of ten-hundredths or more of one per cent by weight of alcohol in the blood of the defendant, directs the jury that it “may infer that the defendant was intoxicated * *

Witness Ware was asked: “Would you describe to the jury what is generally accepted among people of scientific training as the percentage of alcohol in the bloodstream that would indicate that an individual is intoxicated?”

Mr. Ware responded: “* * * it’s generally accepted by authorities in the field of intoxication at .10 alcohol [of 1%] and above, that a person is considered intoxicated.”

The foregoing demonstrates the argument had evidentiary support. “Presumption” is not the language of the statute or MAI-Cr., but the prosecuting attorney was not reading or referring to either. He was arguing to lay jurors and, in such, is entitled to draw inferences deducible from the evidence. State v. Ball, Mo.App., 529 S.W.2d 901. Among the meanings ascribed to “presume” are: “inference, deduction, conclusion”; and to “presumption”: “inference, deduction, conclusion.” Roget’s Thesaurus of the English Language in Dictionary Form, Mawson, Revised Edition 1936.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    In re the MARRIAGE OF R. R. and R. R.
    No. KCD 29869.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Kranitz & Kranitz, St. Joseph, for appellant.
    Don Pierce, P. C., Robert D. Colley, St. Joseph, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

The sole question presented on this appeal is the custody of two girls, ages 4 and 2, following the dissolution of the marriage of their parents, Ross and Rose. The trial court awarded custody to Rose and Ross appeals. Reversed and remanded.

At the time Ross and Rose were married, Rose had two daughters born out of wedlock. She and the two girls moved in with Ross and his mother. The house was large enough to accommodate Rose and her family and also the two girls later born of the marriage of Ross and Rose.

At the time of their marriage, Ross was in a remission stage of multiple sclerosis, but a few years later the disease became active and Ross was confined to a wheelchair. By the time of trial in this cause, Ross testified his condition had improved to the point where he could be out of his wheelchair on occasion and was able to go up and down stairs with the aid of handrails.

The marital difficulties between Ross and Rose culminated when Rose left with her four children. Ross thereafter filed his petition for dissolution in which he claimed Rose had disposed of all of the marital property, thus obviating the need for the court to divide such property, and alleged the birth of the two girls and prayed for their custody. Rose responded by admitting the marriage was irretrievably broken and praying for the custody of the two girls.

Ross tendered evidence designed to show that Rose had virtually wiped out his and his mother’s life savings by forging their endorsements to cash in $2,100 in Series E bonds; by withdrawing between $2,000 and $2,500 from a savings account of Ross’s mother; by converting $700 from a social security settlement received by Ross’s mother; and by writing checks but filling in the check stubs with a lesser amount, thus resulting in overdrafts on Ross’s account. Indeed, he was eventually arrested for writing insufficient funds checks, but the charges were dismissed when it was determined that Ross’s signatures on the checks were forgeries.

Ross’s mother testified that she drove Rose around town to pay various bills, and even though Rose represented the bills had been paid, including those for property taxes and Ross’s medical insurance premiums, it later developed they had not. Ross and his mother both testified Rose had taken social security checks to deposit in the bank but instead had secretly obtained cash. There was also evidence that Rose had sold family heirlooms, jewelry and a button collection belonging to Ross’s mother. Ross and his mother testified they were required to borrow between $5,000 and $6,000 after Rose left to pay the unpaid bills they thought had been paid by Rose. In addition, Ross introduced.testimony from a private investigator designed to show Rose was spending several nights each week with a married man after she left Ross.

In her testimony, Rose denied the financial defalcations alleged by Ross and his mother, and stated that whatever was done by way of signing the name of Ross or his mother on checks or bonds was with their consent. Rose said she took the jewelry, antiques and button collection with the consent of Ross’s mother and sold them at her direction. With reference to the difference between amounts shown on check stubs and amounts for which checks were actually written, Rose said the tabs from the grocery store where such checks were generally written were in the grocery sacks and available for inspection.

Rose testified that since leaving Ross she had been living with her grandmother and working as a waitress from 5:30 A.M. to 2:30 P.M. and that her 65 year old grandmother was caring for the children during her absence. After admitting her intimate relationship with a married man, Rose justified it by stating she never left her home until after the two girls born of her marriage to Ross were in bed asleep. She said she visited this man at least three nights a week, but denied taking the two younger girls to his house while he was present. However, Rose did admit taking them there during the day to do some laundry while he was absent.

In contradiction to Rose’s admissions, Rose’s grandmother testified that Rose lived with her but never stayed out all night. She said she was in good health and was willing to assist Rose in looking after the two small girls. Rose also offered the testimony of her oldest girl, age 9, and this girl’s cousin, age 11, that on occasion, when they had been in the house alone with Ross, he had pointed to various parts of their bodies and asked them to name such parts. Both girls testified that Ross had never requested them to undress or had ever touched them.

At the conclusion of the evidence the trial judge expressed on the record his view of the evidence, first noting he was inclined to believe Rose was immoral, both as to money and personal relationships. As for the testimony of the two girls concerning Ross’s interest in their bodies, he felt the testimony was exaggerated but believed there was a kernel of truth. The judge also stated Ross would have difficulty in training and disciplining the girls due to his handicap because he was not able to catch them very easily and the children would take advantage of this situation. The court concluded by stating:

“So I got it on both sides. The Court feels that the probabilities are if they live with their mother, that they may grow up to be immoral and dishonest. If they live with their father, they may grow up to be emotionally damaged because of his handicap. So the Court has decided to place custody in the mother, figuring that’s the least likely the damage to be.”

Under Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976) the judgment of the trial court is to be sustained unless it is against the weight of the evidence, such a finding to be made “with caution and with a firm belief that the decree or judgment is wrong.”

The only conflict in the evidence related to Rose’s financial manipulation and the trial court resolved it by finding Rose had engaged in the conduct charged by Ross and his mother. Such conduct was not only personally reprehensible, but also possibly constituted violations of criminal law. Moreover, in her personal conduct Rose not only admitted her liaison with a married man, but failed to exhibit any concern over such conduct and gave no indication of discontinuing the relationship. To be sure, the bearing of two other children out of wedlock indicates such immoral conduct was instinctive with Rose. Her frank admission of nocturnal activities stands in stark contrast to her grandmother’s denial.

This court accepts the resolution of the factual disputes made by the trial court because of the deference accorded that court as to the credibility of witnesses. D.I.M. v. P.D.M., 548 S.W.2d 237, 239[2, 3] (Mo.App.1977). However, this court cannot agree with the trial court’s decision as to the custody of the two small children.

On this appeal, the only ground urged by Rose for her to be awarded custody is the well-worn statement that children of tender years, particularly girls, are presumptively better off with their mother. However, such presumption is not conclusive. In Re Marriage of Carmack, 550 S.W.2d 815, 818[6] (Mo.App.1977). The true test is the best interest of the child or children. Section 452.375, RSMo 1976 Supp.

In determining the best interests of the children, the morals and character of the parent to whom custody is to be awarded are proper objects of inquiry. Downing v. Downing, 537 S.W.2d 840, 843[3] (Mo.App.1976). Here the trial court has found Rose to be immoral both as to her honesty and personal conduct, and as to such personal conduct she made no denial and showed no remorse. In her view, engaging in such conduct after her two small children were asleep, although entailing habitual all-night absences, would have no effect on them.

The trial court opined that if the girls were placed with Rose they might grow up to be immoral and dishonest. Based on the evidence this is more than a reasonable apprehension. On the other hand, the trial court felt that placing the children with Ross would cause them some emotional damage. Unlike the possibilities suggested in relation to awarding custody to Rose, the possibility of emotional damage from living with Ross and his illness finds no support in the evidence. There was no evidence whatever concerning potential emotional damage to children resulting from living with a parent confined permanently or partially to a wheelchair. The evidence was that Ross was able to leave his wheelchair and could go up and down the steps, although admittedly not as fast as an able-bodied person. Furthermore, Ross’s mother, who lived with him, stated she was in excellent health and was perfectly willing to assist in rearing these children. Both Ross and his mother will be home full time. The trial court largely discounted the testimony concerning Ross’s interest in the older girls. A review of this evidence leads this court also to largely, if not totally, disregard the same.

This court has a firm belief the judgment granting custody to Rose is wrong and against the weight of the evidence and that the best interest of these girls would be served by placing them in the custody of their father. Murphy v. Carron, supra.

The judgment is reversed and the cause remanded with directions to the court to enter a decree vesting custody of the two children born of the marriage between Ross and Rose in Ross with provisions for reasonable visitation by Rose.

All concur.