author: SOMERVILLE, Presiding Judge.

text:
    Gary Lynn BAKER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29688.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.

      James B. Chancellor, North Kansas City, for appellant.
    Gary Lynn Baker, pro se.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

Gary Lynn Baker (movant) has appealed from an unsuccessful attempt to obtain post-conviction relief via Rule 27.26 from a five year sentence for “felonious stealing” (Section 560.156, RSMo 1969) imposed on a plea of guilty. Movant, who at all times had the benefit of counsel, was afforded an evidentiary hearing and denied relief after pertinent findings of fact and conclusions of law were duly rendered.

Movant exhorts this court to grant him relief on either of two grounds, one of which was raised on his behalf by counsel and the other of which was raised by mov-ant acting pro se. The one raised by mov-ant acting pro se is not reviewable on appeal and is subject to virtually summary disposition for the reason that it was never raised in the Rule 27.26 motion filed by movant in the circuit court and emerged for the first time on appeal. Schleicher v. State, 483 S.W.2d 393, 394 (Mo. banc 1972); Maggard v. State, 471 S.W.2d 161, 162 (Mo. 1971); and Shubert v. State, 518 S.W.2d 326, 328 (Mo.App.1975).

The ground asserted by counsel on mov-ant’s behalf is tinged with incomprehensibility by reason of being bifurcated and repeatedly inconsistent with the argument tendered in its support. An amalgamation of the point and supportive argument suggests that movant seeks to fasten error on the decision of the trial court for two reasons: (1) failure of the information to allege the manner in which the “felonious stealing” was perpetrated, “either without . consent or by deceit”, rendered the information upon which movant’s guilty plea rested fatally defective and deprived the sentencing court of jurisdiction to accept movant’s guilty plea; and (2) movant’s guilty plea was involuntary because he .was the victim of ineffective assistance of counsel at the guilty plea proceeding since he was never made aware that lack of “consent” was the manner of perpetrating the “felonious stealing” charge to which he pled guilty.

It is true that the information to which movant entered a plea of guilty did not allege whether the “felonious stealing” was perpetrated “either without . consent or by deceit”. However, such omission neither rendered the information fatally defective nor deprived the sentencing court of jurisdiction. Paxton v. State, 565 S.W.2d 750, 752 (Mo.App.1978); and State v. Newhart, 503 S.W.2d 62, 67 (Mo.App.1973).

The final prong of movant’s bifurcated point, ineffective assistance of counsel because of movant’s unawareness as to whether he was pleading guilty to “felonious stealing” predicated upon lack of “consent” or by “deceit”, is defeated by the record. The following excerpt is taken from the record, of the guilty plea proceeding at the point where the assistant prosecuting attorney of Clay County was asked by the sentencing court to reiterate the facts under-girding the charge leveled against movant:

“[Assistant Prosecuting Attorney] Your Honor, it’s alleged by the state that on or about the 9th day of January, 1976 the defendant feloniously stole a Model 165 Cub Lo-Boy Tractor from the Anderson International Harvester, Incorporated, located at Carrollton, Carroll County, Missouri, transported same to Clay County and stored it here in Clay County, with the value of the merchandise and goods taken was greater than fifty dollars!!
THE COURT: Did you hear the statement of fact as related by the assistant prosecuting attorney, Mr. Baker?
DEFENDANT: Yes, Your Honor.
THE COURT: Is that statement of fact correct?
DEFENDANT: Yes, it is.”

Additionally, at the Rule 27.26 evidentiary hearing counsel who represented movant at the guilty plea proceeding testified that “this case . . didn’t concern any stealing by deceit ... it was originally a burglary charge of some kind . . ” and his response to the following question put to him by the trial court at the Rule 27.26 evidentiary hearing is correspondingly pertinent and revealing:

“THE COURT: Are you saying then that the facts you went over with him would constitute a stealing without the consent of the owner if proved by the state?
MR. KISER: I think that’s what I told him, yes.”

This testimony went in without objection and stands uncontradicted.

For movant to presently contend that he was unaware that he was pleading guilty to “felonious stealing” perpetrated “without consent” is an attempt to have this court tortuously construe the record by the exaltation of hyper-technicality over hard reality. Movant’s admission in open court at the plea proceeding, coupled with the testimony of counsel who represented him at the time, anger against his present contention that he was unaware at the plea proceeding that he was pleading guilty to a charge of “felonious stealing” perpetrated by the absence of “consent”. His self-proclaimed naivete as to the charge to which he plead guilty has a false ring. Movant’s guilty plea, girded with the trappings of voluntariness and knowledgeability when initially made, cannot presently be relied upon as legal indicia of ineffective assistance of counsel. It is well established that a guilty plea voluntarily and knowingly made will not support a charge of ineffective assistance of counsel. Hulett v. State, 473 S.W.2d 410, 411 (Mo. 1971); Barylski v. State, 473 S.W.2d 399, 402 (Mo. 1971); Coleman v. State, 542 S.W.2d 53, 54 (Mo.App.1976); and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973).

The bottom line of appellate review for all judgments in Rule 27.26 proceedings is whether or not they are “clearly erroneous”. Rule 27.26(j); and Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). Having concluded that the judgment of the trial court in the instant case was not “clearly erroneous”, the same is affirmed.

Judgment affirmed.

All concur.

      . Section 560.156.2, RSMo 1969.

      . See Section 541.070, RSMo 1969.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Elizabeth CERADSKY, Beverly Lea Ceradsky, Ollie Christina Ceradsky and Garland Dewayne Ceradsky, Claimants-Dependents, Appellants, v. MID-AMERICA DAIRYMEN, INC. d/b/a Bethany Cheese Company, Alleged Employer and Home Indemnity Company, Insurer, Respondents.
    No. KCD 29901.
    Missouri Court of Appeals, Western District
    April 30, 1979.
    As Modified on Court’s Own Motion for Denial of Rehearing and/or Transfer to Supreme Court June 11, 1979.

      John H. Norton' and Wm. Harrison Norton, Norton & Pollard, Inc., North Kansas City, for appellants.
    Marvin L. Sharp, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The dependents of Ceradsky, a workman killed as he operated a truck owned by one Percell used to haul milk to Mid-America Dairymen for manufacture into cheese, appeal from a judgment to affirm denial of workmen’s compensation by the Industrial Commission. The final award of the Commission rested on the determination that Percell, otherwise regularly employed by Mid-America Dairymen as a field man, operated the milk route as an independent contractor, and therefore Ceradsky was not an employee of Mid-America Dairymen within the Workmen’s Compensation Law.

The claim was heard by the referee on deposition testimony. The facts from the evidence are not in dispute and frame but one issue: was the workman Ceradsky an employee of Mid-America Dairymen [then Bethany Cheese Company] at the time of his death within the coverage of the Workmen’s Compensation Law? The referee determined that Ceradsky was in fact an employee and awarded benefits to the claimants-dependents. The Industrial Commission found anew from the same evidence that Ceradsky was neither an employee in fact nor a statutory employee of Mid-America Dairymen and entered a final award to deny compensation. In other — and more essential — terms, the decision of the Industrial Commission determined that Percell, in his role as milk drayer, was not an employee of Mid-America Dairymen and so did not impart such a status to Ceradsky on principles of agency. [See, Gingell v. Walters Contracting Corporation, 303 S.W.2d 683 (Mo.App.1957)].

The appeal from the judgment of the circuit court to affirm the final award of the administrative body poses to this court the question of law: whether the determination by the Industrial Commission that Ceradsky was not an employee of Mid-America Dairymen rests on sufficient competent evidence. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 918[7-9] (1935). And where, as in the case at bench, no dispute concerns the facts which bear on the status of employee, or not, the conclusions on the evidence adopted by the administrative body do not bind a court of review. Corp v. Joplin Cement Company, 337 S.W.2d 252, 258[7] (Mo. banc 1960).

The evidence shows conclusively that Per-cell was employed by Mid-America Dairymen [then the Bethany Cheese Company] as a field man and office help five days a week on a fixed schedule and for a fixed salary from which taxes and benefits money were withheld. In that role he was an employee of the Cheese Company [and later of Dairymen] within the intendment of § 287.020, RSMo 1969, and of the coverage of the Workmen’s Compensation Law. The field-man entailed duty as a solicitor of farmer business and troubleshooter to them on quality control and other incidents of milk production. The field man also advised the farmers on equipment and sold them supplies, particularly filter disks to cleanse the production sold to the company. The employment as field man, however, was augmented by a separate oral undertaking between Percell and Bethany Cheese to pick up milk from farmers within numerous counties in northwest Missouri and southern Iowa for delivery to the factory for process into cheese. This dual capacity of service continued for about eleven years and even after Mid-America Dairymen bought out Bethany Cheese.

It is the relationship of Percell as milk drayman for Bethany Cheese and successor Mid-America Dairymen, and not his duty as field man, which determines the status of Ceradsky on the claim for compensation. If Percell in the capacity of milk hauler was an employee of the cheese company, on principles of agency Ceradsky was within the coverage of the Workmen’s Compensation Law; but if Percell was an independent jobber, Ceradsky does not stand to claim the benefits of an employee.

To operate the milk route Percell purchased a truck and hired a succession of drivers. Percell paid for the insurance and all maintenance on the vehicle. Ceradsky was hired at a regular salary to service the territory, outlined by the company as Route N in the agreement with Percell. Percell paid the wages, withheld the taxes, furnished Ceradsky the W-2 forms and paid contributions for unemployment compensation. Ceradsky received no payments from the company.

The cheese company paid the farmers per hundredweight for the milk and paid Per-cell a commensurate fee. The company checks were delivered to the farmers by Ceradsky and the other drivers.

Ceradsky ran the route six days a week from about midnight to eight in the morning. It was his procedure to leave empty milk cans [furnished by the company] with the farmer, pick up the full cans, unload them at the milk plant, and then to return home with the Percell truck to run the route anew the next morning. On occasions when the farmers left with the milk cans an order for supplies [generally, filter disks], Ceradsky remitted the purchase requests to the company and delivered the goods on the next round. There was intimation that in case of farmer discontent on the route, plant manager Hunt [and major shareholder of Bethany Cheese] felt free to reprimand Ceradsky, but the farmers dealt with Percell on milk matters and it is clear that Percell managed Ceradsky.

The truck owned by Percell and used by Ceradsky had an insulated bed for the transportation of the milk. That component bore the Bethany Cheese identification decal. The company had furnished Percell an insulated bed for the truck when the one in use was condemned by health inspectors. On the occasion when the Percell truck was disabled from damage, the company furnished a substitute, but Percell paid the cost of operation.

Ceradsky was killed one morning during the operation of the Percell milk truck along Route N. It is acknowledged that the death was out of and in the course of that duty. Only the question of status remains: whether Percell as milk hauler— and hence Ceradsky — was in the service of Dairymen within § 287.020.1 and so entitled to benefits of the Workmen’s Compensation Law.

The final award of the Industrial Commission to deny compensation to the dependents rests on the determination that Percell was an independent contractor. That adjudgment rests on the rationale, simply, that as to Percell in the occupation of milk drayman, the cheese company exercised no control nor enjoyed right of control. The evidence allows acceptance without cavil only to the ultimate conclusion of direct control. That absent an observable right of control there can be no employment status for workmen’s compensation, however, mistakes the law.

The definition of employment status, as the preeminent authority on Workmen’s Compensation Law observes, almost of necessity takes the form of a distinction between an employee from an independent contractor.

The reason is simple. If one wants to get something done without doing it oneself, there are really only two ways open: to hire an employee to do it, or to contract out the work to an independent entrepreneur. The employee-independent contractor distinction is not an artificial dichotomy invented by legal minds interested in fine distinctions for their own sake. It is a fundamental fact of business life which could not be abolished by the most grandiose legislation. Larson, The Law of Workmen’s Compensation. (1978) § 43.20.

Our courts, as virtually all others, have adapted the definition of servant worked out for vicarious tort liability purposes by Restatement of the Law of Agency Second [§ 220] to derive a definition of employee for workmen’s compensation or other statutory purposes. Cline v. Carthage Crushed Limestone Company, 504 S.W.2d 102, 105[1, 2] (Mo.1973); Lawrence v. William Gebhardt, Jr., & Son, 311 S.W.2d 97, 102[1] (Mo.App.1958); Pratt v. Reed & Brown Hauling Company, 361 S.W.2d 57, 62 (Mo.App.1962):

Section 220. Definition of Servant
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered;
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Where the evidence shows that a person to whom a service is rendered has a right to control the performance of the person who renders the service, the relationship of employer and employee is essentially established. Tokash v. General Baking Company, 349 Mo. 767, 163 S.W.2d 554, 555[3] (1942). That is the sense of subsection (1) of the Restatement § 220. Where the evidence lacks such a conclusiveness, however, whether the one who renders the service for the other acts as employee or independent contractor depends upon all the circumstances of the work relationship — so that control becomes only one indi-cium weighted with the several others to determine the true status. That is the sense of subsection (2) of the Restatement § 220. Larson, op. cit., supra, § 43.10; Lawrence v. William Gebhardt, Jr., & Son, supra, 1. c. 102[1],

The term servant in Restatement § 220, however, formulates a common law purpose not altogether compatible with the employee status under our Workmen’s Compensation Law. Kourik v. English, 340 Mo. 367, 100 S.W.2d 901, 905[3—7] (1937). The servant concept at common law delimits the vicarious tort liability of the master for harm done to the extent to which the employer has the right to control the servant activity. The compensation law, rather, concerns not injury by the employee to another but to himself — and not only from controlled activity but also from the activity of others beyond the control of the employer. Larson, op. cit., supra, § 43.42; Restatement of Agency Second, § 220, Comment on Subsection (l)g: Statutory interpretation. The scheme of workmen’s compensation, however, discards the common law system of fault as an inadequate redress for worker disability and accepts such injury as inherent to the industrial process and — as a matter of urgent public welfare — allocates the risk to the industry which gives it occasion. Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 912[2-6]. In such a scheme, the right to control the detail of the work activity has no such immediate relevancy as in a case of vicarious tort liability. It is within the compelling purpose of the Workmen’s Compensation Law — which has shed the defenses and disabilities of the common law to ameliorate the economic consequences of injury to the worker — that the employee status of the decedent Ceradsky must be determined. Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 618[1] (Mo. banc 1977).

The Workmen’s Compensation Law [§ 287.020] defines employee to mean

every person in the service of any employer . . . under any contract of hire, express or implied, oral or written, or under any appointment or election.

The employer-employee relationship by the statutory definition rests on service, construed by judicial definition to mean controllable service. Rutherford v. Tobin Quarries, supra [n.1], 82 S.W.2d 1. c. 923; Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 912[2-6], Where actual control or right of control of the work performance [and hence the presumptive employer-employee relationship] is not readily demonstrable from the evidence, our decisions have applied the secondary test for servant of subsection (2) of Restatement § 220 [whether the employment is a distinct occupation, the length of time of employment, whether the work is a part of the regular business of the employer, etc.] without doctrinaire rigidity and so as to give practical effect to the remedial purpose of the statute. As example, the factor (g) as to “the method of payment, whether by time or by the job,” when by the hour gives “very strong evidence of the employment status” [Pratt v. Reed & Brown Hauling Company, supra, 1. c. 64] yet when by the job [Horn v. Asphalt Products Corporation, 131 S.W.2d 871, 872[5] (Mo.App.1939)] or without payment altogether [Lawson v. Lawson, 415 S.W.2d 313, 319[6] (Mo.App.1967)], is nevertheless consistent with the status of compensable employment according to the nature of the service. As further example, that a worker is engaged for no definite period of time [factor (f)] and is therefore subject to dismissal at will is “more conclusive” of control — and hence employment — than any other single circumstance [Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 918] yet the unrestricted right of the employer to terminate the service “does not of itself make the relation one of agency” [Rutherford v. Tobin Quarries, supra, 82 S.W.2d 1. c. 922[8, 9]], according to the amalgam of circumstances. Even as to control of the details of the work activity [factor (a)] frequently posed as the dominant proof of the employment relationship [Fisher v. Hennessey, 329 S.W.2d 225, 228 (Mo.App.1959); Hackler v. Swisher Mower & Machine Company, 284 S.W.2d 55, 58[2-4] (Mo.App.1955)], that proof is satisfied when a right to control is implicit in the circumstances of the relationship. [Gingell v. Walters Contracting Corporation, 303 S.W.2d 683, 686[2] (Mo.App.1957); Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 918]. The factors of the subsection (2) Restatement § 220 test for servant which remain-whether or not the worker employed is engaged in a distinct occupation [factor (b)], the kind of occupation [factor (c)], the skill required [factor (d)], whether the employer or the worker supplies the instrumentalities [factor (e)], and the others — bear on the ultimate issue of employment according to whether they show an integrated relationship of service between the worker and the activity served.

That is to say, on analysis, the right to control the detail of the work factor given predominance as proof of the employee status shows through as merely an euphemism for worker activity of such a nature as to be a regular and continuous part of the manufacture of the product or other service. Thus, that the work activity is of a kind necessary in the operation of the business so that if not done by the claimant would be done by a direct employee of the business, essentially establishes the Tenderer of the service an employee within the purposes of the compensation law. Maltz v. Jackoway-Katz Gap Company, supra, 1. c. 917[22]; Lawson v. Lawson, supra, 1. c. 319; Pratt v. Reed & Brown Hauling Company, supra, 1. c. 64; Tokash v. General Baking Company, supra, 163 S.W.2d 1. c. 556[7]; Horn v. Asphalt Products Corporation, supra, 1. c. 872[5]; Gingell v. Walters Contracting Corporation, supra, 1. c. 686[2]; Vaseleou v. St. Louis Realty & Securities Company, supra, 130 S.W.2d 1. c. 540[5]. In such case, the purpose of the Workmen’s Compensation Law does not expect a worker, otherwise without feasible means, to bear the burden of industrial injury but casts that risk upon the process of manufacture and, ultimately, on the cost of the product. Bethel v. Sunlight Janitor Service, supra, 1. c. 618[1].

The ad hoc, case by case, reasonings of our decisions as to whether the control test of the Restatement § 220 was met where the evidence was close to balance and the ultimate status of employee or independent contractor not clearly drawn, fall readily into the systematic treatment which Larson calls the relative nature of the work test. That analysis does not discard the traditional requirement of control: the presence of control conclusively proves the employment status. Where by the very nature of the work relationship or other circumstance, however, control is not conspicuous, the right to direct the detail of the work becomes only one indicium of control among others and the inquiry turns to the economic and functional relationship between the nature of the work and the operation of the business served. The inquiry, moreover, tends away from technical common law definitions to the public purpose of the scheme for workmen’s compensation.

The treatment by Larson rests on the theory of workmen’s compensation legislation that [§ 43.51]

the cost of all industrial accidents should be borne by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.

Where the element of control in the work relationship does not emerge clearly, the relative nature of the work test determines employee status [for purposes of workmen’s compensation] by [§ 43.52]

the character of the claimant’s work or business — how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

On the principles of subsection (2) of the Restatement § 220 and of the relative nature of the work test alike, the determination by the Industrial Commission that Percell as milk hauler was an independent contractor, first of Bethany Cheese and then of Dairymen, is without substantial support in the evidence. Rather, the undisputed proof constitutes Percell an employee and, hence, the Ceradsky dependents entitled to the benefits they claim.

The decision by the Industrial Commission rests, to all effect, on the traditional factors test of subsection (2) of the Restatement § 200 employed by our decisions. Skidmore v. Haggard, 341 Mo. 837, 110 5.W.2d 726, 729[3-5] (1937); Cline v. Carthage Crushed Limestone Company, supra, 1. c. 1Q5[1, 2]. The factual premise for the ultimate conclusion of independent contractor in the final award to deny compensation is the absence of proof that the cheese company had the right to control the detail of the work:

The Commission finds that as to the milk route Bethany Cheese Company did not exercise control over Percell except as to a final result. Percell owned his own equipment, hired his own employees, paid the expenses, and handled the required social security and related matters for his employees. As to the milk route, Percell was not paid a salary, but was paid according to the amount of milk delivered. There is no evidence that Bethany Cheese Company ever directed the specific means and method in operating the milk route. Particularly convincing on the determination that Percell was an independent contractor, is the fact in this case that he hired another to carry out the contract . This right of substitution obviously bears upon the ultimate question of control by Bethany Cheese Company of the means and method of the performance of the work. In that the actual performance was carried out by Cerad-sky, hired, paid, and directed by Percell, the cheese company had virtually no way to control the work except as to the final result. [Emphasis added.]

The conclusion that the cheese company enjoyed no right to control the detail of the milk route work and, hence, that Percell as drayman was not an employee, derives from two of the ten elements of the traditional proof of subsection (2) of the Restatement § 220: that Percell owned the work equipment [factor (e)] and that Percell was paid by commission and not by salary for work he could substitute another to perform [factor (g)]. The determination by the Commission does not assess the evidence in terms of the eight other factors of proof, among them: whether the work service is a distinct occupation or business [factor (b)]; whether the work is usually done under the direction of the employer or by a specialist without supervision [factor (c)]; the skill required in the particular occupation [factor (d)]; the length of time for which the service is rendered [factor (e)] and whether or not the work is part of the regular business of the enterprise served [factor (h)], among them.

The legal effect the Industrial Commission accords to the evidence on the factors of employment status considered is of doubtful validity. As to factor (e), while proof that an employer furnishes valuable equipment for the performance of the work almost invariably implies the employment status, evidence [as in this case] that the worker supplies the basic instrument of service does not tend to prove a contrary. The rationale is simply that an employer who furnishes expensive equipment, as a matter of sound business practice, will protect that investment by direction as to the manner of use. Larson, op. cit., supra, § 44.34. The workman who furnishes equipment, unlike the employer, sells not only personal service but the use of the equipment as well, and so such a circumstance does not necessarily bear to prove the status of independent contractor. Horn v. Asphalt Products Corporation, supra, 1. c. 872[l-5]. Moreover, where equipment is used by the worker in a continuous service integral to a business [a circumstance shown by undisputed evidence but given no mention by the Commission], the inference of employment by the enterprise arises. Pratt v. Reed & Brown Hauling Company, supra, 1. c. 63[6]. The evidence shows other undisputed circumstances which tend factor (e) to the employment status: the cans used for delivery of the milk were owned by the cheese company; the insulated bed for the transport of commodity was at times furnished by the company; the truck bed bore the decal “Milk For Bethany Cheese Company,” and a substitute truck was furnished by the company when the Percell vehicle was disabled through accident.

So also as to factor (g). In traditional terms, the right of substitution implies the independent contractor status. “Personal service is a marked characteristic of the relation of master and servant [but] the right of substitution ... is indicative of an independent contractual relation.” Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 871, 32 S.W.2d 758, 759[2, 3] (banc 1930). The application of this legal standard by the Industrial Commission to the evidence, however, is not sound. The cheese company was aware that Percell was already fully employed as its field man and so could expect only that any other service engaged from him would be performed by a supernumerary. In such circumstance, the substituted performance does not bear critically to define the work relation. As to the express finding that payment by commission rather than by wages tends to prove Percell was not an employee — such an inference does not follow. There can be no doubt that by any test of economic reality the payment by wages rather than by the job gives strong evidence of the employment status [Pratt v. Reed & Brown Hauling Company, supra, 1. c. 64], but payment by commission may be consistent with either [Larson, op. cit., supra, § 44.33]:

Payment on a time basis is a strong indication of the status of employment. Payment on a completed project basis is indicative of independent contractor status. Payment on a piece-work commission basis is consistent with either status.

Where the other factors of the work relationship show — as does the undisputed evidence — that the commission is paid for ongoing service of the same labor for an indefinite duration, payment by commission becomes, in functional terms, equivalent to wages. Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 916[16, 17].

Were we to assume nevertheless that the status of independent contractor was aptly drawn from the evidence on the two elements of that proof, the neglect of the Industrial Commission to consider the un-contradicted evidence that the milk drayage work was not a distinct occupation but merely an aid to a function performed by the cheese company [factor (b)], that the milk drayage occupation required no particular skill [factor (d)], that the service by Percell in that capacity was continuous and of long duration [factor (f)], among other factors, which tend to prove the employee status and which otherwise establish that relationship as a matter of law by the subsection (2) of the Restatement § 200 test— suffices to hold that the denial of compensation was not on substantial and competent evidence on the whole record.

The right to control the details of the work test of subjection (2) of the Restatement § 220, by the very nature, tends to be inconclusive. That is simply because, as our decisions show, the right to control is not often a demonstrable fact of the work relation. The relative nature of the work test shows a more certain way. It appraised the employment status in terms of the work function: whether the labor forms a regular and continuous part of the manufacture and whether, in relation to this process, the worker conducts an independent business feasible to channel the cost of industrial injury or, rather is economically dependent for that purpose upon the business served. Larson, op. cit., supra, § 43.51; Marcus v. Eastern Agricultural Association, Inc., supra, 157 A.2d 1. c. 13; Woody v. Waibel, supra, 554 P.2d 1. c. 495. In other words, the relative nature of the work test gives effect to the remedial public policy of our Workmen’s Compensation Law to place on industry, on the principle of allocation of risk, the loss suffered by a worker and dependents from injury or death. Hickey v. Board of Education of City of St. Louis, supra, 256 S.W.2d 1. c. 777[2-5]. This test also, on the undisputed evidence before the Industrial Commission, determines as a matter of law that Percell was an employee of the cheese company in the status of milk hauler.

Was the milk drayage service by Percell a regular and continuous part of the manufacture by Bethany Cheese Company and successor Mid-America Dairymen, Inc.?

The business of Bethany Cheese Company and successor Mid-America Dairymen, Inc. was to process milk into cheese. To that purpose, a continuous supply of milk was essential. This supply was from farmers over an extensive territory designated by the company as Route N. It was this area which Percell served for more than eleven years, first for Bethany Cheese and then for Dairymen, in his role as milk drayman. It was the role of Percell as field man [according- to Hunt, plant manager and principal shareholder of the company] to solicit farmers to ensure the supply of milk and then to advise them on quality control to maintain the product fit for manufacture into cheese. Thus, the farmers, in any realistic sense, were patrons of the company. It was the role of Percell, also, to accept orders for equipment, particularly for filters, needed in the production of the milk. The milk hauler, Ceradsky, frequently took the sales orders incidentally to the milk pick-ups and delivered checks to the farmers from the company for their produce, and so performed a usual duty of field man Percell, in that role an admitted employee of the company. The milk was picked up regularly every day; by Ceradsky on the week days and by Percell on Saturdays and Sundays. The company could not function without the assured supply of milk and on the occasion[s] when the Percell truck broke down, a company truck was made available “in order to get the milk in.” The transport of milk was by bulk as well as by can. The bulk hauls were by the Bethany Milk Transportation Company [owned by plant manager Hunt and his son] and the hauls by can were by Percell. These transport services, however, were only supplemental to the milk drayage services the company performed by trucks owned and operated for that purpose. At the time of the Ceradsky casualty, Bethany Cheese Company owned four or five trucks for the milk haul operation.

This evidence allows no sensible doubt that the work by Percell as milk hauler for the company over eleven years was a continuous service or that he performed a labor regularly done by the employees of the cheese company. In actual effect, had not Percell or other “independent” agency hauled the milk, the cheese manufacture could not fully function. The real work relationship between Percell and the company cannot be defined without consideration of this evidence neglected by the Commission nor can the right to control the detail of the work test by which decision was reached be applied aptly. The limitation of that standard as a determinant of the work status, when separated from the circumstances of actual economic function, becomes apparent by the rationale given by the Industrial Commission for denial of compensation:

The Commission finds that as to the milk route Bethany Cheese Company did not exercise control over Percell except as to a final result . . There is no evidence that Bethany Cheese Company ever directed the specific means and method in operating the milk route.

To the extent that there was no declared understanding or overt exercise of control between Percell and the company, the decision has literal validity. In terms of the work function, however, the right to control [the dominant factor, in traditional terms of the employment status (Tokash, Maltz, etc., supra)] need only be commensurate with the supervision appropriate to the kind of work to be done and the skill required to do it. Marcus v. Eastern Agricultural Association, Inc., supra, 157 A.2d 1. c. 13.

Thus, while the company may not have undertaken to detail the activity on the milk route or impose work hours, the route was defined by the company, and the daily two-hundred mile round by Ceradsky from midnight to eight in the morning, conformed with the necessities of the farmer-patrons and of the work schedule at the plant. It was also of concern to the company that the farmer-patrons be satisfied with the milk pick-up service as well as with prompt payment for their produce and with the completion of their sales orders — all functions directly related to the company business function and discharged by Cerad-sky. It may be that the farmers complained to Percell and not to the company for shoddy service on the route, but plant manager Hunt testified that he would reprimand a driver for such neglect. As a practical matter, since the arrangement between the company and Percell for the milk haulage was at will, terminable without legal consequence, the company would certainly discharge Percell should his performance injure the business.

Moreover, the milk haul routine was actually, and not only functionally, a regular activity of the company business. The company plant was the terminus for the milk haul route. It was there Ceradsky physically delivered the milk, took on empty company cans for the next round, remitted orders for equipment, filled prior orders, and picked up checks for delivery to the farmer-patrons.

In terms of the relative nature of the work test, the evidence decisively shows that the milk haul work of Percell was an indispensible integer in the process of cheese production by the company. In terms of the right to control, the evidence clearly shows that the company reserved all necessary to ensure that the milk haulage as a mechanism of production remained effective [Harper v. Home Imp. Co., 235 S.W.2d 558, 559[3] (Mo.1951); Maltz v. Jackoway-Katz Cap Company, supra, 82 S.W.2d 1. c. 918] and — coincidentally— proved those composite elements of subsection (2) of the Restatement § 220 definition of the employment status.

Was the milk dray age service by Percell an independent business feasible to channel the cost of industrial injury to its workers?

The evidence shows beyond question that Percell as milk hauler [and, thus, Ceradsky] was in no real sense a viable economic unit apart from the cheese company. Rather, the Percell milk haul activity was merely a totally dependent appendage of the cheese production process for which alone Percell used his equipment and performed his haul services. The economic reality is that the Percell drayage operation lacked resources to allocate the cost of injury to the two workers of that enterprise — Percell and Ceradsky. The cheese company, at the time of the casualty to Ceradsky, was in the process of divestment of the “independent” milk haul arrangements. It is fair to assume that these arrangements became necessary when the company business exceeded the capacity of its own equipment. That is only to say again that Percell as milk hauler performed a usual and regular labor of a regular company employee. To deny benefits to Ceradsky in these circumstances would be to contradict the purpose of the Workmen’s Compensation Law that the enactment be liberally construed [§ 287.800] so as to extend its benefits to the largest possible class. Dost v. Pevely Dairy Company, 273 S.W.2d 242, 244[2] (Mo.1954). To allow compensation to a plant employee [among the fifty] engaged in the same occupation but not to Ceradsky, would be to violate the public policy which prevents evasion of liability by an employer behind a facade of “independent contract” for injury to a worker in the usual course of the enterprise business. Gingell v. Walters Contracting Corporation, supra, 1. c. 686[2]. As a matter of fair statutory duty, the risk of injury or death to Ceradsky rightfully falls on the cheese company, an enterprise fully able to distribute the cost of such a loss.

The judgment is reversed and remanded with directions that the circuit court further remand the proceedings to the Industrial Commission with directions that an award for compensation be entered for the Ceradsky dependents.

All concur.

      . Independent contractor is not defined in the Workmen’s Compensation Act. The term has been given the judicial definition: “An ‘independent contractor’ is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer, except as to the result of his work.” Vaseleou v. St. Louis Realty & Securities Company, 344 Mo. 1121, 1122, 130 S.W.2d 538, 539[2—4] (1939). The decisions hold invariably that whether the work status is that of employee or independent contractor depends on the facts in the particular case. Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918, 921 [4] (1935).

      . The judicial introduction of the element of control into the employee status under the Workmen’s Compensation law rests on the construction that “the framers of the act had in mind the law of master and servant and the relationship, duties, rights, and limitations arising out of the same.” Maltz, supra, 82 S.W.2d 1. c. 911 [2—6].

      . The right of control which satisfies the conditions for employee status can be so attenuated as to be satisfied from an inference from the evidence of “apparent necessity” for the exercise at all. Thus in Maltz v. Jackoway-Katz Cap Company, supra, a hat salesman who worked on a commission basis in an assigned territory, used and paid for his own automobile expenses, who was given an order book and samples but was not required to report at any time nor was subject to the dictations of the employer as to the method of sale was an employee within the compensation law because he could be terminated at any time and so the right of control, albeit unexercised, remained in the employer. An almost equally attenuated right of control did not prevent the employee status, and compensation, in Schultz v. Moerschel Products Co., 142 S.W.2d 106 (Mo.App.1940). The sense of these cases, and our many others, is best stated in the dissent of Conford, J. [later adopted as the unanimous opinion of the Supreme Court of New Jersey in Marcus v. Eastern Agricultural Ass’n, 32 N.J. 460, 161 A.2d 247 (1960), reversing and adopting the dissenting opinion in 58 N.J.Super. 584, 157 A.2d 3, 10 (1959): “[T]he requirement of control is sufficiently met where its extent is commensurate with that degree of supervision which is necessary and appropriate, considering the type of work to be done and the capabilities of the particular person doing it.”

      . The principle of risk distribution underlies, also, and for analogous reason, the workmen’s compensation liability to a statutory employee under § 287.040 which deems as an employer

        “[a]ny person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on." [Emphasis added.]
      Liability for workmen’s compensation results under the statute despite that the injured worker, by common law definition, may be an independent contractor and not an employee. Schwandt v. Witte, 346 S.W.2d 50, 52[3] (Mo. 1961). That is because the public policy of the statutory employee provision is to prevent an enterprise, through the guise of agreements with independent contractors of doubtful fiscal responsibility, to evade workmen’s compensation [and even common law] liability for injury to a worker performed in the usual and ordinary business enterprise work. Ferguson Air-Hydraulics Company, 492 S.W.2d 130, 136[6] (Mo.App.1973); Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, 772 (1931).

      . A progression of jurisdictions have adopted the relative nature of the work test either by announced theory or by effect. See, e. g., Marcus v. Eastern Agricultural Association, Inc., supra, (N.J.1960); Biktjorn v. Worley Homes, Inc., 12 A.D.2d 540, 206 N.Y.S.2d 744 (1960); Seals v. Zoilo, 205 Tenn. 463, 327 S.W.2d 41 (1959); Samson v. Borden Co., 92 So.2d 152 (La.App.1957); Woody v. Waibel, 276 Or. 189, 554 P.2d 492 (1976). See also, the cases cited in Larson, op. cit., supra, §§ 43.53-43.54 and the discussion citations by Dean Stem in Comment, 10 U.C.L.A.L.Rev. 161, 173 et seq. (1962). Our decisions, Maltz v. Jackoway-Katz Cap Company, Pratt v. Reed & Brown Hauling Company, Horn v. Asphalt Products Company, and the others cited, supra, as we have noted, give effect to the relative nature of the work principle without attribution by terminology or theory to accord employee status within a theory of industrial risk distribution where the right of control is attenuated, and, sometimes, only supposed.

      . That statutory purpose is declared as a matter of public welfare by Hickey v. Board of Education of the City of St. Louis, 363 Mo. 1039, 256 S.W.2d 775, 777[2-5] (1953); Bethel v. Sunlight Janitor Service, supra, and numerous other Missouri decisions.

      . Such, we have noted, is the theory of decision of Pratt v. Reed & Brown Hauling Company, Horn v. Asphalt Products Company and the several others cited on that discussion.

      . Once again, considerations of a continuous work service of a function normally discharged by employees of the business, the skill necessary to the work performance and, implicitly, the economic feasibility to require the worker to assume the burden of the injury loss all, to some measure, bear on the decisions which find the employee status, and hence coverage, in Maltz, Horn, Pratt, Gingell, and those other decisions we have mentioned recurrently, supra.

      . The evidence shows without dispute that at the time of the Ceradsky mishap Bethany Cheese was in conversion from can transport to bulk transport of milk with a concomitant change of equipment from bed trucks to tank trucks. At the same time, Bethany Cheese dispensed with the services of independent haulers and a number of its own haul trucks and — we assume properly — for the same reason: the conventional bed trucks were no longer suitable to the new method of bulk milk collection. At the time of the Ceradsky event [according to plant manager Hunt] Bethany Cheese still owned four or five trucks, presumably of the bed order, and [according to Percell] the independent haulers were all but discontinued: “There was only one to two left, maybe not any by then.” The evidence is incomplete, however, as to how Bethany Cheese supplanted the discontinued owned and contracted bed trucks as the operation converted to bulk haul. The evidence is clear that Bethany Milk Transportation Company, a tank bulk-hauler, remained an independent contract hauler. Bethany Milk Transportation Company was owned jointly by the Hunts, father and son. The senior Hunt was also the owner of Bethany Cheese as well as the plant manager. The junior Hunt was not only the owner of Bethany Milk Transportation with his father, but was also a plant manager of Bethany Cheese with his father. To the extent such a relationship, in economic reality, is described by the term, Bethany Milk Transportation was an “independent contractor” of Bethany Cheese. It is undisputed, however, that whatever the numerical alignment of owned haul equipment and contracted haul equipment at the time of the Ceradsky death, during the time of his service Bethany Cheese owned and operated transport vehicles to do the same work done by Cerad-sky.

      . The administrative decision that Percell as milk hauler was an independent contractor, not an employee, cites Carman v. Central Western Dairies, 58 S.W.2d 781 (Mo.App.1933) for support. That case determined that a route driver who transported milk from a dairy to a dry milk plant was not an employee of the plant. The product transported, however, is the only coincidence between the cases. The arrangement in Carman, unlike the continuous and regular service by Percell, was by the trip separately as to price and work, on a route chosen by the driver on each occasion, and at those irregular times when such a service was needed. The driver in no sense discharged the same labor as a usual employee of the company as did Percell.


author: KENNEDY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary J. HIRES, Defendant-Appellant.
    No. KCD 29958.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.

      Bruce W. Simon, Kansas City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

A jury found the defendant Gary Hires guilty of one count of rape and each of two counts of sodomy. Under the Second Offender Act, § 556.280, RSMo.1969, defendant was sentenced to ten years’ imprisonment on each count, to be served concurrently. From the ensuing judgment and sentence he has appealed to this court. Finding no prejudicial error, we affirm.

On November 27,1976, Janet was waiting for a bus at a bus stop at 43rd and Main in Kansas City, Missouri. It was between 4:30 and 5:00 o’clock p. m. and she had finished her day’s work at St. Luke’s Hospital. It was quite cold. The defendant, a stranger to her, stopped his van and offered her a ride. Her destination was a cocktail lounge at 85th and Wornall. Defendant said he was going farther south than that, and she foolishly accepted a ride with him.

Upon arriving at the cocktail lounge, defendant, with Janet’s permission went in with her and joined her and some other of her friends and acquaintances for drinks. Janet’s boy friend, whom she had planned to meet, did not show up as expected. By about 7:00 o’clock the other friends had left the lounge. Defendant offered to take her home, and she accepted. Instead of going to her home, however, defendant — missing the right exit and becoming lost, perhaps as a pretext- — drove around in areas unfamiliar to her. Before taking her home, he stopped the van, forcibly raped her and committed the other acts of which he was convicted.

Defendant then drove Janet to her home. As he slowed down near her house she jumped out of the van and ran into the house. The time was now after 9:00 o’clock.

Other facts will emerge as the opinion proceeds.

We will consider in order the appellant’s points of error:

In which the court sustained an objection to a cross-examination question to the complaining witness “how long (she) had been away from home?” Defense counsel on cross-examination asked Janet how long she had been away from home. Upon objection by the state, the defense attorney explained to the court that his purpose in asking the question was “to test credibility”. The court thereupon sustained the objection, a ruling claimed to have been prejudicial error. (As to her background, defendant had elicited without objection that she had lived with Shannon, her boy friend, three or four months; that she had worked at St. Luke’s Hospital about eight months; and that before St. Luke’s she had worked at a retail pharmacy.)

It is often said that the extent of cross-examination is discretionary with the trial court. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972). In the case of cross-examination of a prosecuting witness, as was Janet, doubts should be resolved on the side of liberality in allowing cross-examination. State v. Hunter, 544 S.W.2d 58 (Mo.App.1976). Even so, fishing expeditions by counsel in collateral matters must have an end, and it must be left up to the trial court when a particular line of inquiry may or may not be pursued further. Here, the trial court asked counsel “where he was going” with this line of questioning. Had counsel suggested some specific destination to which the inquiry would lead, which would have been relevant to some issue in the case, or which would have had some impeachment value, then the court would doubtless have permitted the question. State v. Bobbitt, 242 Mo. 273, 146 S.W. 799, 804-805 (1912). But counsel said only that the question was put to the witness as a test of credibility. The trial court could make no connection between any possible answer to counsel’s question and the credibility of the witness. Neither can we.

Appellant says in his brief here that this testimony would have countered the, testimony of witness Shannon that Janet was a “trusting” type of person. (This had been allowed to be shown as an explanation for her imprudent acceptance of defendant’s proffered ride.) But defendant did not suggest that purpose to the trial court, and he cannot be heard in this court to justify it on that ground. State v. Callahan, 526 S.W.2d 59, 61 (Mo.App.1975). If there is any connection between the time the witness left home (presumably her parents’ home is meant, although that is not entirely clear), and the question of her disposition to be trusting, that connection is exceedingly remote and tenuous. The extent of exploration of such peripheral subis-sues must be left to the trial court’s discretion. State v. Messley, 366 S.W.2d 390, 393 (Mo.1963). In this instance, we have no criticism of the ruling of which the appellant complains.

In which the court denied a requested mistrial when witness Shannon said, as he explained his plan for private revenge for the rape, “Criminals get to go free . ” Witness Thomas Shannon was Janet’s “boy friend” with whom she had been living for a time variously estimated from one to four months. After Janet had come home and had reported the incident to him, they had driven around and had located the van at 8005 Brooklyn. Shannon had then taken Janet home and had returned to that address on a reconnaissance visit. When asked what he did then, his answer was: “I went back to my house. I got a — went down and asked a couple friends if they would help me, talked to them about it a little bit, about what had happened that night. A couple — all three of the people had been at the bar with her that evening, or the lounge or what have you, and I said, ‘What did this guy look like’ and so forth, trying to — just to try to piece something together. I’m not sure exactly what all I asked. I was just trying to piece something together. And I said, ‘Well, you know, I would like’ — -at the time all I wanted to do was just, you know, get back over there and take care of him, because there was nothing else that gets in the way, that’s all you think about, because, you know, you hear stories and, you know, on TV and things, you know, everybody just gets, you know, criminals get to go free or what have you

Defendant’s objection at this point was sustained and the jury was instructed by the court to disregard “the last comment” of the witness. A requested mistrial was denied, however, and the defendant claims that this ruling was erroneous.

Mistrial, a radical measure, is within the trial court’s discretion to declare or refuse. Here the court considered that the slight prejudicial effect of the witness’ statement, if indeed error, could be obviated by an admonition to the jury to disregard the statement, and that the radical measure of mistrial was not indicated. Finding no abuse of discretion, we defer to the trial court’s disposition of the matter. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); State v. Miles, 364 S.W.2d 532, 536 (Mo. 1963); State v. Hunt, 570 S.W.2d 777, 782 (Mo.App.1978).

In which the court sustained an objection to defendant’s question to Detective Whitaker about the complaining witness’s omission of an incident from her account of the evening’s events. During the course of defendant’s and Janet’s driving around (after leaving the cocktail lounge, Pandora’s Box, and before the rape), they had stopped at a Seven-Eleven store where Janet had used the rest room. In a written statement given by Janet to Detective Whitaker in reporting the rape, this stop was omitted. Janet had not admitted unequivocally on cross-examination she had omitted the incident. She said, when confronted with the omission: “ . . .1 mentioned it to Jay-lynn at the beginning, and I thought I had mentioned it to Gibson. I had been up 48 hours practically by the time this was all completed. I really don’t remember . I don’t remember [if I mentioned it to Detective Whitaker]. Detective Whitaker was stating it — was making the statement from the report I gave to Gibson. I wasn’t really even speaking to Whitaker at the time the statement was typed.”

On cross-examination of Whitaker, defense counsel asked if Janet had mentioned the stop at the convenience store when he was interviewing her. An objection was sustained, on the ground that Janet had admitted the omission, and that defendant was therefore foreclosed from showing it by rebuttal evidence. This ruling by the court is said to have been prejudicially erroneous.

As we have seen, Janet had not unequivocally admitted that she had omitted the convenience store stop from her account. In such a case, the defendant would have had the right to introduce evidence of the prior inconsistent statement if it had related to a matter of some consequence. It is not error to reject proof of a prior inconsistent statement if it relates to an immaterial or collateral matter. State v. Alexander, 499 S.W.2d 439, 443 (Mo. 1973); State v. Bali, 529 S.W.2d 901, 907 (Mo.App.1975).

The stop at the convenience store during the course of the ride was not a contested matter, and sheds light on no contested matter. Defendant introduced evidence by an employee of the store that defendant and Janet were on friendly terms at that point, presumably for circumstantial support of a defense of Janet’s consent. But Janet’s own testimony was that she and defendant were on friendly terms up to the time the van was stopped later in the evening and the attack occurred. At the time of the convenience store stop she was a willing passenger in defendant’s van. If she failed to tell the officers about this rest room stop as she reported the evening’s events, it is a matter of small importance. Its omission subtracted nothing significant from the account; its inclusion would have added nothing significant. (It would have been otherwise if, for instance, she had claimed to have been defendant’s captive.) The court did not err in sustaining the objection.

In which the sufficiency of the evidence is chailenged for want of corroboration of the prosecuting witness’s testimony. One point of error remains: Defendant claims the evidence is insufficient to support the verdict of conviction. He points to the ease of State v. Bursley, 548 S.W.2d 586, 588 (Mo.App.1976), which applies the rule that “in rape and sodomy prosecutions . corroborating evidence must be adduced when the complaining witness’s testimony is contradictory or unconvincing”. The rule is not applicable here, for Janet’s testimony was internally consistent, not self-contradictory, and not implausible. The rule in such cases is that no corroboration is required— although actually we find some corroboration in Janet’s appearance and demeanor on her arrival home and later, the condition of her clothing, and the presence of bruises on her lips, breast and abdomen. State v. McElroy, 518 S.W.2d 459, 462 (Mo.App.1975); State v. Neal, 484 S.W.2d 270, 272 (Mo.1972); see also State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 623 (1946). In such a case, we make no further inquiry into the weight of the evidence, which is for the jury and, upon motion for new trial, for the trial court. We ask only whether there was substantial evidence to support the verdict of guilty. State v. Ruth, 567 S.W.2d 716 (Mo.App.1978). The evidence noted in this opinion is sufficient for that purpose.

The judgment is affirmed.

All concur.

      . It has been suggested that, on collateral matters, an offer of proof is required even on cross-examination in order to preserve for review any error in sustaining the objection to a question. State v. Callahan, 526 S.W.2d 59, 61 (Mo.App.1975). Cf. State v. Bobbitt, supra.


author: HIGGINS, Special Judge, Presiding.

text:
    STATE of Missouri, Respondent, v. Donald Ray DAVIDSON, Appellant.
    No. 30016.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.

      Gerald M. Handley, Kansas City, for appellant on appeal only.
    John D. Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   HIGGINS, Special Judge, Presiding.

Appeal from judgment on convictions by a jury of two counts of robbery, first degree, and one count of armed criminal action. Appellant complains of the judge’s failure to disqualify himself, and charges the court erred in failure to quash the indictment, receipt of testimony from unen-dorsed witnesses, and refusal of specific questions on voir dire. Affirmed.

Appellant does not question the sufficiency of evidence to support his convictions; and he states evidence which would permit a jury to find: that on May 16, 1977, he and five other persons, some of whom were armed, forcibly entered the home of Jessie M. and Clare L. Combs in Kansas City, Missouri; and that both Mr. and Mrs. Combs were assaulted, their home was ransacked, and several items of personal property including Mrs. Combs’s diamond engagement ring and Mr. Combs’s wallet were taken.

Appellant contends (II) the court should have quashed the indictment in that defendant “presented a prima facie case of a system of selection of grand jurors, in Jackson County, which amounted to an illegal exclusion of minorities, which thereby denied * * * his right to a grand jury drawn from a reasonably representative cross-section of society as guaranteed him by the 6th and 14th Amendments to the United States Constitution.” He asserts that Jackson County’s selection procedure “amounts to a ‘key man’ system, * * * not reasonably representative of a fair cross-section of the community,” in that lower income persons, Negroes, Mexican-Americans, women, and persons residing in the inner city area “are systematically excluded from grand jury service.”

The burden on an inquiry of this kind is initially on the defendant, and it does not shift to the state until the defendant makes out a prima facie case of illegal selection of jurors. State v. Mooring, 445 S.W.2d 303 (Mo.1969). See also Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); State v. Carter, 572 S.W.2d 430 (Mo.banc 1978).

The grand jury in question was drawn pursuant to Sections 497.260 and 497.270, RSMo 1969. Their validity is not in question. See State v. Toney, 537 S.W.2d 586, 595 (Mo.App.1976); State v. Johnson, 539 S.W.2d 493, 511 (Mo.App.1976). Section 497.260 directs the circuit judges to select the names of six hundred persons suited for grand jury service and deposit them in a grand jury wheel to be drawn as needed by the jury commissioner. Section 497.270 provides that the names thus drawn shall not be less than the number needed, and that the judge of a criminal division shall select twelve grand jurors to serve from the number so drawn.

Defendant presented two witnesses on his Motion to Quash Grand Jury Indictment.

Kevin Locke, an attorney with the Public Defender’s Office, testified that he made a survey of the names of the six hundred persons placed in the wheel from which the 1977 grand jury which indicted defendant was drawn. By use of a 1970 census tract map of Jackson County and a road map of Kansas City he platted by tract number locations of the six hundred prospective grand jurors in the county; he could not say “what percent of the people lived where in the county.” From his “raw data” compilations and his seven years’ residence in Kansas City, he indicated the tracts in which he believed the black population resided; the number of prospective grand jurors from this area was 275. He gave his judgment on the approximate area of residence of the Hispanic-American population in the city. He made no other compilations or computations, particularly with respect to race, nationality, or economic status, and was unable to tell “what the arrangement was according to sex.” There was no projection to 1977 of 1970 census data.

John Fitzgerald, Jury Commissioner for Jackson County, testified that he made a survey of the sex and nationality of the persons included in the 1977 grand jury wheel and the information was transformed to a computer print-out “determining their address, city, division that submitted their name and their sex and race, or if it’s unknown, it’s also determined that it’s unknown.” He identified a compilation of the 36 names to be called from the original 600 for service on the grand jury. He also referred to computer compilations to show that the grand jury wheel in 1977 was 60% white male, 21% white female, 10% black male, 4% black female, and 5% unknown; and that the 36 persons called for grand jury service in 1977 were 67% white male, 11% white female, 11% black male, and 11% unknown. There were no such projections on the 12 persons who constituted the grand jury which indicted defendant, and there were no figures showing the population of Jackson County by race, nationality, sex, or economic status.

The foregoing fails to show a prima facie case of deliberate, systematic, or otherwise illegal selection of grand jurors or exclusion of potential grand jurors. Compare Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), where the jury was selected from county tax digests which by law were kept on a segregated basis; Alexander v. Louisiana, supra, where 7,374 questionnaires went to prospective jurors seeking information as to race, after which the commissioners “culled out” about 5,000 questionnaires, resulting in a drop in percentage of available blacks in the wheel from 13.6% to 6.75% and to 5% in the venire, or 0% on the grand jury itself; Castaneda v. Partida, supra, and prima facie case of illegal exclusion, where the “key man” selection system in Texas resulted in selection for grand jury service over an 11-year period of but 39% Mexican-American persons in a county where the Mexican-American population was 79.1%, and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), where a prima facie case was shown in that the judge had discretion to exclude from the jury commission anyone deemed not “discreet,” the commission had the further power to eliminate anyone it found not “upright” and “intelligent,” and 96% of potential jurors eliminated were Negroes in a county 60% Negro, resulting in a grand jury of 17 white and 6 black persons. Note that a particular grand jury need not be a mirror of the community from which it is drawn, nor need it reflect perfect proportions of each identifiable group in the community. United States v. Zirpolo, 450 F.2d 424, 429 (3rd Cir. 1971); Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See also Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Appellant contends (I) the court should have sustained defendant’s motion to recuse all circuit judges of Jackson County where the defendant had filed such motion in conjunction with his motion to quash the grand jury indictment, in that “the grand jury was improperly selected and the trial court judge had participated in the selection of the grand jury, and was an interested party and potential witness” with respect to the motion to quash.

This contention does not present the ground for disqualification of judge upon affidavit of inability to have a fair and impartial trial by reason of the interest or prejudice of the judge as envisioned by Rule 30.12, or the disqualification on account of bias or prejudice concerning a party, personal knowledge of disputed facts, or interest in outcome of proceeding as envisioned by Rule 2, Canon 3C(l)(a)(d)(ii) (iii). It is tied to the grand jury question ruled adversely above, and fails accordingly.

Appellant’s contention (III) with respect to unendorsed witnesses is that he filed a Motion for Discovery pursuant to Rule 25.32, and learned for the first time during opening statements that Detective Schwieterman would give evidence of fingerprint identification which had not been revealed to defense counsel.

This contention fails because there is no motion pursuant to Rule 25.32 in the transcript, State v. Lawhorn, 574 S.W.2d 455, 458 (Mo.App.1978); and the record shows that the court offered the defense time to examine Detective Schwieterman in advance of his testimony and the offer was declined, State v. Maxie, 513 S.W.2d 338 (Mo.1974).

Appellant does not argue violation of Rule 24.17 which provides for endorsement of witnesses. In such event, the court’s action was within the discretion accorded the court with respect to late endorsement of witnesses. State v. Cobb, 444 S.W.2d 408, 415 (Mo. banc 1969); State v. Panter, 536 S.W.2d 481, 484 (Mo.App.1976). There is no showing of prejudice by reason of the late endorsement. State v. Goodpaster, 438 S.W.2d 256, 257 (Mo.1969).

Appellant contends (IV) the court abused its discretion in refusal of defendant’s request to ask each venireman (1) whether he had ever been accused of something he had not done; (2) whether he would be willing to remain as long as it takes to bring in a verdict one way or the other; (3) whether he had ever been mistaken for another or mistaken another for someone else; (4) whether he is an active churchgoer; and (5) whether he would accord fellow jurors the right to their own opinions. Appellant argues that he was prejudiced because he had to exercise peremptory challenges in lieu of opportunity to question for purpose of uncovering prejudices and disinterest of the panel.

Appellant acknowledges that control of voir dire examination rests in the discretion accorded the trial court subject to interference on appeal only where the record shows manifest abuse of discretion and probability of injury to the complaining party. State v. Scott, 515 S.W.2d 524, 527 (Mo.1974); State v. Clark, 509 S.W.2d 740, 742 (Mo.App.1974). The record shows that the court offered leave to defendant to put his questions to the panel generally, and that defendant refused the offer. Such situation does not suggest an abuse of discretion. Compare the contrary result in State v. Brown, 547 S.W.2d 797 (Mo. banc 1977), where the refused question involves defendant’s right of self-defense.

Judgment affirmed.

All concur.

      . From State v. Myron Blydenburgh, 1 CR 77 0732, W.D. 30,195.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Aaron B. JONES, Appellant.
    No. 30055.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Aaron Jones was convicted by a jury on one count of second degree murder, § 559.-020, RSMo 1969, and one count of robbery in the first degree, § 560.120, RSMo 1969, and sentenced by the court under the Second Offender Act to life imprisonment on the murder charge and twenty-five years on the robbery charge, the sentences to run consecutively.

On this appeal Jones contends the court erred in admitting evidence that a pistol unrelated to the crimes for which he was on trial was found on him when he was arrested. Reversed and remanded.

Jones does not question the sufficiency of the evidence. The jury could reasonably have found from the evidence that on October 25, 1976, Jones with two other men went to the Eastwood Animal Clinic for the purpose of committing a robbery. When they arrived there, they were admitted by the night attendant. The Jones party announced a robbery and after taking $30 from the attendant, Jones killed him to avoid identification. After the attendant’s body was discovered, several witnesses recalled seeing an automobile parked in front of the clinic at about the time the murder would have been committed. A police broadcast was made concerning the description of this automobile. The next day a Prairie Village, Kansas, patrolman saw an automobile matching the description broadcast and observed two men standing on the porch of the house where the automobile was parked. After radioing for help, the officer got out of his car with a shotgun and ordered the two men on the porch to come down into the yard. After about a half-minute both men complied with his order and the officer then required them to lie on the ground. The officer identified the two men as Aaron Jones and Marvin Williams.

When a second officer arrived, both men were searched and a gun was found on each. The first officer stated he saw the second officer recover a pistol from the front waistband of Jones’ trousers. Jones’ counsel objected to evidence concerning the finding of a pistol on Jones and moved for a mistrial. Relying on State v. Davis, 535 S.W.2d 259 (Mo.App.1976) the court overruled the objection, but on request of Jones’ counsel, the court did orally instruct the jury that the evidence of a weapon being found on Jones’ person was received solely and exclusively for the purpose of showing that Jones may have contemplated resistance to arrest and was not to be considered as evidence of a separate crime.

The second officer stated when he arrived the first officer had both men .in a prone position on the ground, and he searched Jones. He testified to finding a pistol stuck in the waistband at the front of Jones’ trousers. There was no evidence that either Jones or Williams made an attempt to resist or evade arrest.

On the testimony of the second officer the same objection and motion for a mistrial was made as when the first officer testified to finding the pistol on Jones. The court overruled the objection and motion for mistrial and gave the same oral instruction to the jury concerning the fact the pistol was not to be considered as evidence of a separate crime, but was to be considered solely for the purpose of whether or not Jones may have contemplated resistance to arrest since he had a weapon in his possession.

The second officer further testified the pistol was loaded with a clip and both the pistol and clip were marked and introduced in evidence.

The officers who participated in the arrest of Jones and Williams did not state how either man was dressed at the time, so it is not clear from the evidence as to whether or not the pistol found on Jones was concealed, but from the objection made and the instruction the court gave the jury concerning concealed weapons, it is apparent the pistol was concealed and was not visible to the officer until he conducted his search of Jones.

The State concedes the pistol found on Jones was not connected with the crime, nor was there any evidence to show the pistol Jones was carrying was similar to the weapon used in the crime.

The only case found in this State on similar facts is State v. Krebs, 341 Mo. 58, 106 S.W.2d 428 (1937). Krebs was arrested about two months after an armed robbery and the court permitted the arresting officer to testify that when Krebs was arrested a revolver and rifle were found on or near him. The court pointed out there was no evidence to show a rifle had been used in the robbery, nor was there any evidence that the revolver found on Krebs at the time of the arrest resembled in any way the one used during the robbery. The court stated the weapon found on Krebs during his arrest would have been admissible if it was shown to be the one used during the crime or similar to it. In support of that statement, the court cited State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935) and State v. Hart, 309 Mo. 77, 274 S.W. 385 (1925). After citing the general rule that evidence of other crimes, independent of that involved in the trial, is inadmissible, the court recognized the exception to the general rule that evidence of another crime is admissible if it tends directly to prove the guilt of the crime charged. The court stated evidence which is relevant is not rendered inadmissible because it tends to prove other crimes committed by the defendant. The court held the evidence that Krebs had in his possession weapons which were not connected with the crime for which he was on trial was of no probative value in connecting him with the robbery and reversed the conviction because of the admission of the gun found on Krebs.

In its brief the State relies primarily upon State v. Starks, 459 S.W.2d 249 (Mo.1970), in which a police officer observed Starks lying on the ground under a motor vehicle and told him to come out. When Starks emerged, the officer could see a pellet gun stuck in his belt at the back and saw a pistol laying on a glove on top of an adjacent car. Starks was convicted of tampering with a motor vehicle and the court affirmed the conviction over a contention of error in admitting the pellet gun and pistol. After first noting that the guns were not concealed, the court stated the guns were admissible as tending to show the circumstances attending the arrest, and in support of this statement cited State v. McGee, supra. The court also said the guns showed the possibility that Starks was contemplating resisting arrest and that he was armed when arrested. The court cited in support of this statement State v. Hart, supra. The court also held the weapons were admissible as showing criminal intent.

The State also relies, as did the trial court, upon State v. Davis, supra. Davis, convicted of robbery in the first degree, complained of the admission in evidence of a pistol seen in his possession before a chase resulting in his arrest. The court stated there was a high speed chase by police during which Davis threw the pistol out of the car. The court first considered the evidence of flight and held it admissible as showing consciousness of guilt. The court then stated at 535 S.W.2d 260[l-3]:

In addition, the State may introduce evidence that a defendant had a gun in his possession when arrested, even if the gun is unconnected with the crime and tends to prove another crime such as possession of a concealed weapon. Arms tend to show that the defendant may have contemplated resistance and resistance to arrest is relevant to show consciousness of guilt.

In support of that statement the court cited State v. Kilgore, 447 S.W.2d 544 (Mo.1969) and State v. Ball, 339 S.W.2d 783 (Mo. banc 1960). Ball did not involve evidence of a weapon found on the person of the defendant at arrest, but rather involved only the rule relating to unexplained flight and resisting arrest. Kilgore involved a chase in which Kilgore’s car was pursued by the police and several shots were fired from Kilgore’s car. Kilgore objected to evidence of the firing of shots during the chase. The court held, as in Krebs, supra, that generally proof of the commission of other crimes is not admissible unless such evidence reasonably tends to prove a material fact in issue. The firing of shots was held admissible as showing unexplained flight and resisting arrest.

Although not cited in Davis, one of the earliest cases to apply the doctrine of contemplation of resisting arrest is State v. Hart, supra. In Hart the defendant was found hiding in a bed under the covers with a gun in his hand. The court held this evidence was admissible for the purpose of showing that he contemplated resisting arrest and that he was armed when arrested. However, as noted, Hart was one of the cases cited in Krebs when the court held it was error to admit evidence to show the defendant had a gun on him at the time he was arrested. This court is of the view the statement in Hart that a gun found on the person of an accused may be introduced in evidence for the purpose of showing that he contemplated resisting arrest and that he was armed when arrested should be limited to the facts existing in Hart. To apply this statement broadly to any situation in which a defendant is found to have a gun on his person which is neither the same or similar to the gun used in the crime and no attempt to resist or evade arrest is shown, is too broad an extension of the rule stated in Hart. The facts in Krebs are the same as in this case, except the time between the occurrence of the crime and the arrest is longer in Krebs than here. However, this does not seem to be a distinction which would call for a different result in this case than in Krebs.

The inherent prejudicial nature of demonstrative evidence of weapons not connected with the crime has been frequently recognized. State v. Williams, 543 S.W.2d 563, 565 (Mo.App.1976) fully discusses this danger and the cases which have recognized it.

The general rule stated in Krebs concerning the circumstances surrounding the arrest was reaffirmed in State v. Myrick, 473 S.W.2d 402, 404[1, 2] (Mo.1971) in which the court quoted from 22A C.J.S. Criminal Law § 628, p. 476, as follows:

“ ‘The prosecution is not permitted to introduce evidence of the circumstances of the arrest of the person accused where such circumstances have no probative value in establishing his guilt.’ ”

The exception to this rule is stated in State v. Campbell, 533 S.W.2d 671, 675[1] (Mo.App.1976) where the court stated:

“Circumstances surrounding the arrest of a defendant are generally admissible where they tend to establish an attempt by the defendant to resist, evade, escape or avoid arrest. The conduct of the accused at the time of his arrest, which shows such attempts, has long been held to be admissible as having probative value on the issue of defendant’s guilt and to constitute proper evidence for a jury’s consideration.”

In State v. Holbert, 416 S.W.2d 129 (Mo. 1967) the court held it was error to introduce in evidence two guns found in Hol-bert’s possession when he was arrested on a charge of carrying a third gun as a concealed weapon. The court discussed the rule relating to evidence of other crimes as stated in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954) and the exceptions thereto. In discussing the exceptions the court quoted from Reese at 416 S.W.2d 132[2-6]:

“The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: ‘The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny.’ ”

A gun found in the possession of an accused which is shown to be the same or similar to the one used in the crime falls squarely within the exception. Evidence of unexplained flight or attempts to resist or evade arrest are also well recognized exceptions to the prohibition against proving other crimes, although not set out in Reese. State v. Campbell, supra. But the rule allowing the showing of the circumstances of the arrest has been limited to those having probative valúe to establish guilt. State v. Myrick, supra. Davis attempts to combine the circumstances of arrest and unexplained flight or attempt to avoid arrest doctrines to allow evidence to show an accused was armed when arrested because he may have contemplated resisting arrest. In Hart the evidence would clearly point to an attempt to evade arrest, and in Starks it could be said the defendant contemplated resisting arrest when caught in possession of arms during the commission of a crime.

However, this court is unwilling to subscribe to an exception to the well established rule against showing other crimes on the basis the defendant “may have contemplated resisting arrest” in the complete absence of an attempt to resist or evade arrest. When evidence of a separate crime of carrying a concealed weapon is permitted it should fall under one of the recognized exceptions or be subjected to rigid scrutiny because of the dangerous tendency and misleading probative force this evidence carries.

When the evidence in this case is viewed in the required light, it must be concluded that evidence of the separate crime of carrying a concealed weapon was shown and none of the exceptions mentioned in Reese are present. Neither is the circumstances of arrest doctrine applicable because the weapon found is not relevant to the crime charged. Nor is the resisting arrest or unexplained flight rule available because neither occurred actually or in the context of Hart. This leaves only unbridled speculation that Jones may have contemplated resisting arrest and no case has gone that far on actual facts presented.

Thus, this court concludes the rule permitting the circumstances surrounding arrest to be shown applies only if such circumstances are relevant to the crime on trial or if it shows an attempt to resist, evade, escape or avoid arrest. The fact that an accused may have had a weapon on his person at the time of his arrest is not admissible unless he makes some attempt to avoid or escape arrest or unless the weapon is connected to the crime as being shown to be the one used in the crime or one similar thereto. This court concludes the language in Davis is too broad, as shown by the cases discussed herein. Of greater significance, however, is the fact the statement in Davis is dictum because it goes well beyond the facts present in that case and the statement is unnecessary to the decision. In State v. Miles Laboratories, 282 S.W.2d 564, 573[11, 12] (Mo. banc 1955), the court stated, “Any reported opinion should be read in the light of the facts of that particular case, and it would be unfair as well as improper ‘to give permanent and controlling effect to casual statements outside the scope of the real inquiry.’ ” Thus, this court is not required to follow the dicta in Davis nor the holding in Starks when those cases were decided on different facts from those present here. This court is required to follow the last controlling decision of the Supreme Court of Missouri. State v. Hegwood, 558 S.W.2d 378, 381[4-6] (Mo.App.1977). The last controlling decision by the Supreme Court on the facts of this case is Krebs and on such facts the gun found on Jones was improperly referred to and admitted in evidence. The State relies for affirmance solely on Starks and Davis, but because of their different factual situations they cannot be followed here. The State does not contend the oral instruction given by the court cured the error, and since the gun was inadmissible under the discussion herein it is apparent the instruction could not close the wound already opened.

The other allegation of error made by Jones need not arise on retrial and thus does not require discussion.

The judgment is reversed and the cause is remanded for a new trial.

All concur.

      . On similar facts the court in State v. Hall, 583 P.2d 587, 590 (Or.App.1978) said the presence of a gun on the defendant at the time of arrest and unrelated to the crime would introduce the improper inference that defendant is the criminal type who carried concealed weapons and might engage in various other criminal activities. See also State v. Harrison, 253 Or. 489, 455 P.2d 613, 614[1, 2] (1969).