author: SEILER, Judge. BARDGETT, Judge,

text:
    Karon M. WAITES, Appellant, v. Charles R. WAITES, Jr., Respondent.
    No. 60030.
    Supreme Court of Missouri, En Banc.
    May 24, 1978.
    Ronald E. Taylor, St. Joseph, for appellant.
    Jimmie D. James, Independence, for respondent.
   SEILER, Judge.

This appeal is from a judgment of the circuit court of Jackson County in a dissolution of marriage case in which the trial court awarded custody of two minor children to respondent, father, basing its judgment on its disagreement with the religious beliefs of the appellant, mother. The appellant alleges that the judgment of the trial court violates various rights under the First and Fourteenth Amendments to the United States Constitution and Art. I, §§ 5 and 7 of the Missouri Constitution. Insofar as the issues raised are alleged by appellant to involve the construction of these portions of the United States and Missouri Constitutions, we have exclusive appellate jurisdiction under Missouri Constitution, Art. V, §3.

I.

Charles R. Waites, Jr., and Karon M. Waites were married in Raytown, Missouri on October 16, 1971. Except for a brief period of separation in 1975, the parties lived together until February 7, 1976, at which time they again separated. Two daughters were born of this marriage, namely: Shelley R. Waites, born July 20, 1974, and Monica L. Waites, born June 9, 1976. Mrs. Waites filed a petition for dissolution of the marriage and custody of the children on July 12,1976. Respondent filed an answer and cross-petition for dissolution wherein he sought custody of the children. The dissolution hearing was held on November 30, 1976.

There being no dispute concerning the dissolution of marriage, the evidence offered at the dissolution hearing was directed primarily to the issue of custody of the two minor children.

The facts, taken largely from appellant’s statement (which respondent’s brief adopts as being adequate, accurate and not argumentative), are as follows:

Appellant testified that she was employed and that her mother had been caring for the children while the appellant was at work. Appellant testified further that she regularly played with her daughters, read to them, disciplined them, washed their clothes, cared for and loved them, and as their mother, wanted the little girls to remain with her. Appellant testified that at one time she had been a Baptist, but that she since changed her religious faith to that of Jehovah’s Witnesses, and that this change in her religious beliefs had caused many arguments between her and the respondent and had resulted in several incidents where she had been slapped and threatened verbally. There was further testimony that respondent had threatened to break the arm and nose of the appellant and on one occasion during pregnancy had threatened her with a gun and told the appellant that she should be destroyed, this last incident having been witnessed by the older daughter of the parties. Appellant acknowledged that on one occasion during an argument that she had slapped respondent.

There was further testimony that respondent had threatened other members of appellant’s religious faith with his rifle and that he had on several occasions and over appellant’s objections, offered and given alcoholic beverages to the older daughter. Nevertheless, appellant testified that if she retained custody of the little girls, she would encourage them to love and respect their father and would do nothing to poison their minds against him.

Upon cross-examination appellant acknowledged that respondent had been a good provider, a good father, and a responsible person. There was extensive cross-examination of appellant concerning her religious beliefs, including her beliefs on Armageddon, non-believers, false religions, world governments, and Satan’s role therein, flag salutes, pagan practices, celebration of holidays and birthdays, Earth’s restoration to paradise, blood transfusions, military organizations, police organizations, of which Mr. Waites is a member, bad associations, premarital intercourse, religious images, voting, door-to-door preaching, baptism, medical care and treatment, and disfellowship-ping. Appellant agreed that she would attempt to teach her daughters from the Bible, and raise them as Jehovah’s Witnesses.

The respondent testified that he agreed with the appellant that the primary cause of the marriage breakdown was the appellant’s change of religion. Respondent testified that appellant had been a good, clean wife who loved her children but she has not been as good a wife after her change in religion and even his sex life had been affected. Respondent testified further that he was a patriotic ex-marine and that he had many disagreements with the religious beliefs of the appellant, including her beliefs on the celebration of holidays, flag salutes, and the pledge of allegiance. Respondent also offered testimony concerning the incident where he had told the appellant that she needed to be destroyed or confined and how he had threatened her with his gun to test her reaction. Respondent testified additionally about disagreements between appellant and respondent concerning the children, and stated to the court that, in his opinion, if the daughters were raised by the appellant that he would not have a normal relationship with his daughters and that the daughters would not have a normal childhood. Consequently, if awarded custody respondent proposed to remove the children to Schell City, Missouri, where his parents could assist with the children and he would commute to Blue Springs to his employment.

Upon cross-examination, respondent acknowledged that he was a police officer in Blue Springs, Missouri, and that he was on probation as a result of having threatened appellant with his gun. He also acknowledged that he had formerly been a police officer in Grandview, but that he had been asked to leave that department because of being involved in an incident where beer was bought for minors. Respondent acknowledged that he had had four jobs during the last five years, and admitted having pushed appellant and having raised his voice to appellant in presence of their older daughter. Respondent also testified that if he had the children, that he would tell them that the appellant’s religion was a false and corrupt religion.

The appellant offered rebuttal evidence from her mother, Mrs. Wanda Wendel, who baby-sat for the children each workday. Mrs. Wendel’s testimony was to the effect that appellant fed the children, kept them clean, read to them, played with them, and did not ignore the children because of her religion. Mrs. Wendel expressed her love for the grandchildren and her continuing willingness to care for the children while appellant was employed. Mrs. Wendel is age 49. Respondent’s mother was also present in the courtroom but was not called to testify.

On February 7, 1977, the trial court entered its findings of fact and conclusions of law, the relevant portions of which we copy verbatim as follows:

Findings of Fact

5. [B]oth children have been in the care, custody and control of the petitioner since the time of the separation.

8. That petitioner is gainfully employed with a net take home pay of $537 per month.

9. That respondent is gainfully employed as a police officer with a net take home pay of $682 per month.

10. That prior to, at the time of and during the early years of the marriage, the parties were members of the Baptist denomination of the Christian religion.

11. That in July 1975 petitioner converted from the Baptist denomination of the Christian religion to the Jehovah’s Witness denomination of the Christian religion and was baptized into the Jehovah’s Witnesses in October 1975.

12. That the primary difficulty preventing a reconciliation or preservation of the parties’ marriage has been the petitioner’s belief in and practice of certain doctrines of the Jehovah’s Witnesses denomination of the Christian religion.

13. That petitioner acknowledged her total belief in the entirety of the Bible.

14. That the petitioner acknowledged and recognized as authoritative the doctrines and principles set forth in respondent’s exhibits Nos. 1, 2, 3 and 4. [No. 1— Listening to the Great Teacher; No. 2— The Truth That Leads to Eternal Life ; No. 3 — Paradise Restored to Mankind by Theocracy ; No. 4 — The Watchtower — 1973.]

15. That the primary beliefs and the doctrines professed by the petitioner which created problems between respondent and petitioner are as follows:

(a) Petitioner does not believe in blood transfusion, even if necessary to save the life of one of her daughters;
(b) Petitioner does not believe in saluting the flag;
(c) Petitioner does not believe in celebrating birthdays;
(d) Petitioner does not believe in celebrating the Nation’s birthday or any national holidays;
(e) Petitioner does not believe in celebrating relative’s birthdays;
(f) Petitioner does not believe in celebrating Christmas;
(g) Petitioner believes that all governments are under the control of Satan;
(h) Petitioner believes that all other forms of religion other than Jehovah’s Witnesses are false religions;
(i) Petitioner believes that all governments and all other false religions stand in the way of world peace;
(j) Petitioner believes that all military bodies are instruments of the devil;-
(k) Petitioner would not use life threatening physical force even to save the life of her child;
(/) Petitioner literally believes in the doctrine of Armageddon and believes that only members of the Jehovah’s Witnesses will be spared from the holocaust and believes this holocaust shall occur during her lifetime.

■ 16. Respondent is a former member of the United States Marine Corps and presently is employed as a police officer for the City of Blue Springs.

17. Respondent strongly feels contrary to those beliefs of petitioner set forth in Paragraph No. 15 above.

18. That the present beliefs of petitioner are contrary to the beliefs mutually enjoyed by both of the parties prior to her conversion to the Jehovah’s Witnesses denomination of the Christian religion.

19. That according to the principles professed by petitioner, respondent is an “unbeliever.”

20. That petitioner acknowledged as authoritative and true and professed and stipulated a belief in the doctrines set forth in respondent’s Exhibit No. 2, “The Truth That Leads to Eternal Life.” At page 131 of said Exhibit it is stated as follows:

“If you love truth and righteousness, then you will also hate and avoid what is false and displeasing to God.”

“(Pg. 132) Because there can be no proper fellowship between those practicing righteousness and those practicing lawlessness, God commands: ‘Therefore get out from among them, and separate yourselves.’ ”

21. That petitioner has acknowledged and would raise her two infant daughters of tender years in the doctrines and beliefs of the Jehovah’s Witnesses and command their attendance at all meetings and functions until they were approximately sixteen years of age.

22. That by the defined doctrines of the Jehovah’s Witnesses denomination of the Christian religion, the respondent would be considered an unbeliever, follower of a false religion and practicer of pagan rituals.

23. That upon the court’s inquiry, petitioner acknowledged that she does not believe in participating in governmental functions of voting and that this is a belief of her religion.

24. Respondent, in his agitation concerning petitioner’s practices as a Jehovah’s Witness has scuffled with petitioner and at one time pointed a gun at her.

25. However, respondent loves his children, is industrious, and is capable of properly caring for the children.

26. That respondent’s parents are capable and sincerely willing to assist him in the caring of the children.

Conclusions of Law

3. The primary factors set forth in Revised Statutes of Missouri 452.375 in determining the custody of children is the best interest of the child and include, among other things, the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests and the child’s adjustment to his home, school and community.

4. That the children of this marriage are of tender and impressionable years and it can be reasonably expected that, if 'raised under the indoctrinations which petitioner-wife professes they will be, it would not be in their best interest for the following reasons:

(a) That the children’s health is severely threatened by reason of petitioner’s refusal to agree to blood transfusions when needed;
(b) The children’s affection for their father and, therefore, his rights of visitation and companionship and respect would necessarily be alienated because of the father’s alleged pagan activities and belief in an allegedly false religion;
(c) The childrens association with other members of their family, i. e., grandparents, etc., would be significally affected for the reasons set forth in Subpara-graph (b) above;
(d) The children’s adjustment to their home, school and community would be adversely affected in that they would not be allowed to participate and develop normally in the school and community relationship;
(e) That the children’s growth and development as productive citizens within our society would be hampered.

5. Petitioner has love for the children and attempts to properly provide for them. However, her beliefs as a Jehovah’s Witness comes first, and by her actions and beliefs she is jeopardizing the health, welfare and best interests of the children.

6. That respondent-husband is a fit and proper person for the care and custody of the two minor children.

7. That the best interest and welfare of the minor children of the parties would be best served by placing said children in the care, custody and control of respondent-husband.

8. That petitioner wife should not, at this time, be required to pay respondent-husband any sum of money towards the support of said minor children.

9.That petitioner-wife should be granted the right to visit with said minor children at all reasonable and proper times.

At a subsequent hearing on respondent’s motion for transfer of custody to him pending appeal, which the trial court granted, appellant testified she spent a good deal of time with the girls teaching them such things as baking, housework and cleanliness and took them on picnics and to the zoo. Respondent testified the older girl had always been in appellant’s custody and that the little girl was a good daughter, healthy, well-mannered, learning normal subjects such as reading and counting, was clean and well dressed and received regular medical care. He also testified that neither child is in need of any medical treatment which they have not received. Appellant explained that if the children were transferred to respondent and put with his parents at Schell City she would not be able to visit them there very often. She expressed concern over respondent’s mother’s ability to care for the children adequately because of a physical disability and also about the violent temper and drinking habits of the respondent’s father and his display and handling of firearms of which he has a collection of twenty or more. Respondent testified his father drank, but not as much as appellant’s father. Respondent’s father considers appellant a traitor.

The trial court stated that its conclusions that the children should be with the father pending appeal were “based primarily upon the evidence heard at the original trial” and the findings and conclusions there made.

II.

We deal in child custody cases with some of the most difficult and sensitive problems which face the judiciary. A marriage, which itself “is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred,” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965), has ended and children, faultless in the parental dispute, are the objects of a sad residual conflict. Though we clothe the interests of parents in the raising and the education of

their children with the right of personal privacy, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978); Carey v. Population Services International, 431 U.S. 678, 684, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), child custody suits defy the concept of a united parental objective and compel us to spare the sword of Solomon, 1 Kings 3:23-27, and determine as clearly as we can, what “the best interests of the child” require. Sec. 452.375, RSMo Supp.1975; see Brosky and Alford, Sharpening Solomon’s Sword: Current Considerations in Child Custody Cases, 81 Dick.L.Rev. 683, 685 (1977).

Our statute concerning custody, § 452.375 RSMo Supp.1975 contemplates the consideration of many factors in resolving a child custody dispute, stating that

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) The wishes of the child’s parents as to his custody;
(2) The wishes of the child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school and community; and
(5) The mental and physical health of all individuals involved.”

We are squarely faced in the instant case with the question of what role, if any, can the factor of religion play in the judicial resolution of a child custody dispute consistent with the framework of our federal and state constitutions.

III.

Article I, § 7 of the Missouri Constitution provides that “no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” This provision, together with the other relevant state constitutional prohibitions is more “restrictive” than the First Amendment to the United States Constitution in prohibiting expenditures of public funds and other public or governmental actions “tending to erode an absolute separation of church and state.” Americans United v. Rogers, 538 S.W.2d 711, 720 (Mo. banc 1976); id. at 724 (Seiler, J., dissenting); Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. banc 1974), cert. denied, 419 U.S. 1111, 95 S.Ct. 785, 42 L.Ed.2d 807 (1975), quoting Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 612-14 (banc 1942).

It would be inconsistent to deny that however removed our courts must be from the choice of religion in custody disputes, the final determination of a custodial parent as to the religious orientation of the children is “subject always to the paramount general consideration of the children’s welfare.” Hirsch v. Hirsch, 366 S.W.2d 484, 490 (Mo.App.1963). It is also unnecessary for courts to be against the establishment of religion per se, as this antagonism is not contemplated by our state constitution. Cf. Dansker v. Dansker, 279 S.W.2d 205, 210 (Mo.App.1955) (the virtues of religious training as a factor in custody disputes); Johnson v. Fish, 197 S.W.2d 990, 993 (Mo.App.1946) (praising custodian mother as a religious woman who would send the children to church); Krueg er v. Krueger, 107 S.W.2d 967, 972 (Mo.App. 1937) (the advantages of Sunday school).

Yet, however much in favor of religion we may be, in a custody dispute between parents of different and conflictual religious persuasions, “we can not, under the system of law which we are appointed to administer, look ■ at that [and choose one religion over the other]. The state of which we are citizens and officers, does not regard herself as having any competency in spiritual matters . . . The law does not profess to know what is a right belief.” In re Laura Doyle, 16 Mo.App. 159, 166 (1884). Indeed, though courts may praise religious training in the defense of a challenged custodial parent as was done in Dansker, Johnson and Krueger, “we cannot say that failure to send a child to Sunday School is a ground for changing custody. According to our view, the child should have religious training. To say, however, that the parent of a child' must give such child religious training is to enter a field of controversy from which the courts should stand aloof.” Rone v. Rone, 20 S.W.2d 545, 548 (Mo.App. 1929).

In Mothershead v. Mothershead, 236 Mo. App. 737, 161 S.W.2d 669 (1942), the court considered the implication of a custodian mother’s earlier interest in Rosicrucianism, a religious sect which believes in reincarnation and communication with departed spirits, and concluded that such interest, subsequently disavowed, should not disqualify her as her child’s custodian parent “in view of the evidence of her present normal health and wholesome mental attitude.” 161 S.W.2d at 676. Apart from the difficulty in the application of such normative qualifiers as “normal health” and “wholesome mental attitude”, we do not believe that the court in Mothershead went far enough in preventing the intended or indirect choice of a religion by a court in a child custody dispute where the parents are of differing and conflictual religious persuasions.

Cases from other jurisdictions concerning whether a parent’s identity as a Jehovah’s Witness would ipso facto disqualify them as custodians of their children use language and echo sentiments with which we are in agreement. In Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385 (1945) the California District Court of Appeals said that “[d]iffer as we may, and, we might say, as most of us do, as to the wisdom and soundness of the reasoning of plaintiff and her fellow Witnesses, it is not for courts to say that her religious convictions and those of her associates are necessarily such as to jeopardize the interests of their children.” 161 P.2d. at 390. In Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957), where the mother was a Jehovah’s Witness, the Supreme Court of Kansas said that “the question of religion cannot be regarded as entering into this case.” 309 P.2d at 712, quoting Denton v. James, 107 Kan. 729, 193 P. 307, 311 (1920). In Salvaggio v. Barnett, 248 S.W.2d 244 (Tex.Civ.App.), cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952), another Jehovah’s Witness case, the court said that “[i]n choosing between parents who are contending for the custody of the child, a magistrate has only such powers as the law has conferred upon him to determine whose custody would best promote the interest and welfare of the child. Under the American principle of separation of Church and State, the secular power is so shackled and restrained by our fundamental law that it is beyond the power of a court, in awarding the custody of the child, to prefer, as tending to promote the interest of the child or surround it with a more normal atmosphere, the religious views or teachings of either parent.” Id. at 247; see Reynolds v. Rayborn, 116 S.W.2d 836, 839 (Tex.Civ.App. 1938). In Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1943), the Supreme Court of Washington said that “[w]e do not doubt the right of the state to suppress religious practices dangerous to morals, and presumably those also which are inimical to public safety, health and good order, but so far as appears from the testimony in this case, the teachings of Jehovah’s Witnesses cannot, in our opinion, be classed in any one of these categories.” 133 P.2d at 529.

We reiterate our determination that the Missouri Constitution contemplates a strict and pervasive severance between religion and the state. Any suggestion that a state judicial officer were favoring or tending to favor one religious persuasion over another in a child custody dispute would be intolerable to our organic law. Judges should not even give the appearance of such preference or favor.

In the case before us it is apparent the court focused primarily on appellant’s religious beliefs per se, rather than on what the best interests of these children required as to custody. We hold that no judicial officer may determine child custody based on approval or disapproval of the beliefs, doctrine, or tenets of the religion of either parent or their interpretation thereof. We recognize it would be impossible and unrealistic to expect courts to ignore the existence of religion or to be blind to its place in our mores. But there is a vast difference between concentrating on the religious choice of a parent as compared to concentrating on what is best for the child. Inquiry into religious beliefs per se is impermissible; inquiry into matters of child development as impinged upon by religious convictions is permissible, as, for example, where a parent might properly be asked whether he or she would refuse to permit the child to attend a school class where evolution is taught; or where religion is being used as a subterfuge, as, for example, an alleged religious tenet which advocates shoplifting as a means of helping the needy. Inquiry into the exposure of the child to the practice of shoplifting would be justified and proper. The difference here is not superficial but fundamental: the state shall prefer no faith but must favor the best interests of those children whose parental custody it determines.

IV.

Having now determined that the basis of the trial court’s disposition of the instant case was in error, we must decide whether this cause is to be remanded for further proceedings not inconsistent herewith or whether the evidence in the record clearly compels the resolution of the dispute in favor of one or the other parent. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Baker v. Baker, 475 S.W.2d 130 (Mo.App. 1971); § 512.160.3, RSMo 1969; rule 84.14.

The uncontroverted testimony in this case was to the effect that this appellant was a loving mother to these young girls, who kept herself regularly employed in an effort adequately to support them. The testimony showed that she regularly spent her time with the children. She read to them, taught them, kept them with her while she did household chores, took the girls on outings to the zoo and on picnics, kept them clean, fed, and disciplined, as well as provided Bible training consistent with her religious faith.

The trial court’s Conclusion of Law Number 4(a) states that the children’s health is severely threatened by appellant’s refusal to agree to blood transfusions when needed. First, there is no indication that either child is in need of any medical attention or in need of a blood transfusion. Secondly, appellant further testified that she believes there are alternatives for blood transfusions the use of which for her daughters she would not find objectionable. Finally, the juvenile court has the jurisdiction to order a blood transfusion even over the objection of a parent. Morrison v. State, 252 S.W.2d 97 (Mo.App.1952).

Conclusion of Law Number 4(b) states that the affection of the children for their father and his rights to visitation and companionship would be alienated because of his alleged pagan activities and his belief in an allegedly false religion. This conclusion is against the weight of the evidence. Appellant testified that she would teach the girls to love and respect their father and that he could take the girls with him to do as he deemed appropriate concerning the celebration of his birthday and other similar activities. Respondent, however, testified that he would teach the girls that appellant was a member of a false and corrupt religion. Further, respondent’s rights of visitation would be no worse and in fact would be better protected than are those of appellant now. By its decree the trial court permitted the respondent to remove the girls from Jackson County (home of appellant) to Schell City, some one hundred miles away, knowing that appellant had no reliable transportation. Similarly, Conclusion, of Law Number 4(c) expresses concern for the girls’ association with other members of the family, i. e., grandparents, were they to live with their mother. But the paternal grandparents’ gain in Schell City is the maternal grandparents’ loss from Jackson County. It is difficult to see how these questions as to grandparents resolve themselves in anything but an equal balance.

Conclusion of Law Number 4(d) and (e) and 7 are mere normative generalizations not supported by any evidence in the record.

Respondent has been drifting from job to job, having been employed in at least four different jobs during the last five years. He was asked to leave his job with the Grandview police department after being involved with the sale of beer to minors and was placed on probation at the Blue Springs police department as a result of having threatened appellant’s life with his police revolver which threat was made in the presence of the older daughter. Uncontrovert-ed evidence showed that respondent had offered and given alcoholic beverages to the older daughter (now not yet 4 years old). Respondent kept his own religious literature in the family home and like appellant, engaged in door-to-door preaching for his own religious persuasion.

We have carefully considered the whole record before us and readily conclude that the trial court’s reason for awarding the custody of the children to the father was the religious persuasion of the mother. Now reviewing the record to the exclusion of the religious tenets of the mother, we do not find evidence that would support a finding that the best interests of these children would be served by their custody being awarded to their father.

We therefore reverse the decree of the trial court respecting the custody of these children and direct that the care, custody and control be placed with the mother forthwith.

The trial court is directed to enter its order accordingly. The trial court is also directed promptly to conduct a further hearing, upon notice to the parties and with opportunity to present further evidence if desired, to determine the amount to be paid appellant by respondent for the support of said children and further to provide for visitation rights and privileges of respondent at reasonable times and places and for allowances of reasonable attorney’s fees.

FINCH and DONNELLY, JJ., and HOUSER, Special Judge, concur.

BARDGETT, J., concurs in result in concurring opinion filed.

MORGAN, C. J., and RENDLEN, J., concur in result and concur in concurring opinion of BARDGETT, J.

BARDGETT, Judge,

concurring in result.

I concur in the result reached by the principal opinion because all facts (including those pertaining to religion) being considered causes me to be of the firm conviction that the trial court was wrong. The findings and conclusions of the trial court convince me that the trial court concluded that the members of the Jehovah’s Witnesses religion, as a class and because of the tenets of that faith, are unfit to have custody of children, and on that basis denied custody of the children to the mother and awarded it to the father.

However, I disagree with the statement in the majority opinion which appears to foreclose any inquiry into religious beliefs. If religious training or beliefs and practices are not material to the particular point in issue, then, of course, there should be no inquiry into the matter. However, it is impossible to predict what will or will not be relevant when the subject is a domestic dispute and custody of the couple’s children, and the best interest of the children is the criteria for decision. The family relationship is a very close one. Some matters are vitally important to one family and totally unimportant to another. The principal opinion quotes with approval from Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1943), in part, stating, “ . . . but so far as appears from the testimony in this case, the teachings of Jehovah’s Witnesses cannot, in our opinion, be classed in any one of these categories.” (Emphasis mine.)

The Washington court could not have made that statement or reached that conclusion (with which I agree) without there having been evidence as to the teachings and tenets of the Jehovah’s Witnesses religion. That case, therefore, does not stand for the proposition that inquiry as to religious beliefs is foreclosed by the separation of church and state constitutional provisions, but rather for the proposition that the inquiry, when relevant to an issue can and should be made.

The principal opinion says that inquiry into religious beliefs is permissible if the question is whether a parent’s religious beliefs are such that he would refuse to send the child to a school class where evolution is taught. I agree that the inquiry may be relevant in a given case, but why the exception with respect to evolution. This is probably only an example but evidences a value judgment as to a particular religious belief and it points up the fact that we should not foreclose inquiry because to do so is to impose ignorance of material facts on the court. What if a parent — maybe both parents — believe the World was created as set forth in Genesis and that belief is a tenet of the faith they espouse? If they answer the inquiry on evolution as set forth in the principal opinion in the affirmative, does that mean they are unfit and the state should divest them of custody of their children? I don’t think so. The point is that the principal opinion seems to recognize that inquiry, per se, into some religious beliefs is authorized but not others. However, I do not think that judges and lawyers can know which is foreclosed and which is not. The admission of evidence should be governed by the usual evidentiary rules, not arbitrary barriers.

Two recent cases which apply the rule of impartiality between or with respect to religion in child custody matters are Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (banc 1971), and Robertson v. Robertson, 19 Wash.App. 425, 575 P.2d 1092 (1978). It is seen that these cases allowed evidence to be received respecting religious beliefs in order to resolve the issue as to what would serve the best interests of the children; that is, whether attendance at different churches (one with the mother and another with the father) and conflicting religious tenets would cause harm to the children. In both cases the courts held the children’s general welfare would not be harmed. Again, however, the court received the evidence in order to decide the issues. I believe it is not sound to expect the right result under the constitution and laws to be reached by forbidding a trial court to hear evidence on matters that are obviously of importance to the litigants and to the welfare of the children. To mandate such a procedure encourages those who wish to conceal relevant and material matters to do so under the guise of “religious beliefs”. Nor is it conducive to correct decisions to mandate a barrier against evidence for fear the trial court will act in violation of the constitution if he hears the evidence.

The trial court must, and in my opinion constitutionally can receive evidence upon all those matters touching upon the rearing of children, including religious beliefs or practices, in order for the trial court to perform its function of acting in the best interests of the child.

This court has now said, and the trial courts now know they cannot favor or disfavor one religion over another, as-such, nor can a judge’s personal evaluation of the propriety of certain religious beliefs form the basis for awarding custody of children. That, in my opinion, is sufficient to decide this case. I would not arbitrarily cut off inquiry into what may be an important area in a future child custody case and thereby require the judge to act in ignorance of relevant facts.

      . In addition to the foregoing, appellant was also questioned as to what she believed would happen to people not in God’s favor, whether she believed in symbolism, and whether she would be willing to renounce her religion if necessary to retain custody of her children.

      . Appellant argues that the trial court decree was in contravention of her rights under the “free exercise” clause of the First Amendment and under Art. I, § 5 of the Missouri Constitution protecting the citizens’ “natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; . . . ” See Comment, Child Custody: Best Interests of Children v. Constitutional Rights of Parents, 81 Dick.L.Rev. 733, 737-39 (1977). We do not believe that the rights of parents to worship as they please are at issue in a child custody dispute; what is rather jeopardized by the expression of a judge’s religious preference is the right of each citizen that the state not make determinations of any kind which respects, prefers or favors one religious persuasion over another, flowing from the “establishment” clause of the First Amendment and Art. I, § 7 of the Missouri Constitution.

      . Though these two girls are not quite age four and two, the applicability in this case of Missouri’s presumption of tender years was not mentioned by the trial court, and while the parties refer to it in their briefs, it is not advanced as being decisive. That presumption of early vintage, is based upon the proposition that “it is well known by all men, [that] no other love is quite so tender, no other solicitude quite so deep, no other devotion quite so enduring as that of a mother. Generally, the love, solicitude and devotion of a mother cannot be replaced by another and is worth more to a child of tender years than all other things combined and it should not be deprived of the necessary and wholesome influences which spring from these characteristics of a mother if it can reasonably be avoided . . . There is but a twilight zone between mother’s love and the atmosphere of heaven, and all things being equal, no child should be deprived of that maternal influence unless it be shown that there are special and extraordinary reasons for so doing.” Horst v. McLain, 466 S.W.2d 187, 189 (Mo.App.1971) quoting Ellis v. Johnson, 218 Mo.App. 272, 260 S.W. 1010, 1012 (1924) and Tuter v. Tuter, 120 S.W.2d 203, 205 (Mo.App. 1938). The three districts of the court of appeals are not in complete agreement as to the standard to be applied in overcoming the presumption, compare, e. g., Horst v. McLain, 466 S.W.2d 187, 190 (Mo.App.1971) with Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App. 1975) and Garbee v. Tyree, 400 S.W.2d 193, 199 (Mo. App.1966); see Annot., 70 A.L.R.3d 262, 285-86 (1976); 42 Mo.L.Rev. 136, 142-43 n. 39 (1977). The presumption has been stricken from other jurisdictions for reasons of public policy, e. g., In re Marriage of Winter (Winter v. Winter), 223 N.W.2d 165 (Iowa 1974), statutory preemption, e. g., Knight v. Knight, 196 Neb. 63, 241 N.W.2d 360 (1976), and unconstitutionality, e. g., Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (Fam.Ct.1973); see Roth, The Tender Years Presumption in Child Custody Cases, 15 J.Fam.L. 423 (1977). Though the continued usefulness of the presumption is not before us, we note the advanced literature which explores the varied and complex needs of children of tender years, e. g., S. Fraiberg, Every Child’s Birthright: In Defense of Mothering (1978); J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child (1973); M. Green, Fathering (1976); J. Levine, Who Will Raise the Children (1976), and underscore the fact that our disposition of this case is justly and fairly accomplished without the benefit of any presumption.


source: Caselaw Access Project

author: MARSHALL CRAIG, Special Judge.

license: Public Domain

text:
    APEX OIL COMPANY, a corporation, Plaintiff-Appellant, v. Lester BELDNER d/b/a Marvel Fuel Oil Company, Defendant-Respondent.
    No. 37913.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 7, 1978.
    Motions for Rehearing and/or Transfer Denied June 8, 1978.

      Richard H. Ulrich, Ken Heinz, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for plaintiff-appellant.
    Edward Lander, Clayton, for defendant-respondent.
   MARSHALL CRAIG, Special Judge.

The appellant, the plaintiff in the trial court, brought its suit for the collection of a fuel oil bill. The jury trial resulted in a verdict for defendant. The appellant bases his appeal only as to those issues relating to Count I of its second amended petition. The pertinent portions of that Count are as follows:

“3. That on or about the 6th day of February, 1971 and the 8th day of February, 1971, plaintiff, at the special instance and request of defendant, sold and delivered to defendant certain fuel oil of the value and for the price of $3,366.46, to be paid by defendant on demand, the type of oil, as well as the dates when the oil was sold, and the prices charged therefor respectively, appear from the following bill of items hereto annexed and marked as Exhibit A and made a part hereof.
4. That the prices charged for said oil are, and were at the time when said goods were sold and delivered, reasonable and proper and the defendant agreed and promised to pay the same, but though often thereto requested to do so, he has failed and refused, and still fails and refuses to pay the same and every part thereof.”

The appellant raises two grounds for appeal: (1) The court erred in giving defendant’s Instruction No. 5. The grounds stated for this objection were that the instruction violated Rule 70.01 in that, as a converse instruction, it conversed a non-essential element of plaintiff’s case and was not in substantially the same language as plaintiff’s verdict director and that the giving of this instruction was material and prejudicial to plaintiff in that the jury was thereby erroneously instructed that defendant had to receive all of the four loads of oil before it could recover. (2) The trial court erred in overruling plaintiff’s motion to set aside verdict and judgment and to enter judgment in favor of plaintiff in that under the evidence, verdict and judgment should have been directed for plaintiff because from the evidence no reasonable man could believe that defendant received no oil.

We find no error and affirm the judgment of the trial court.

The plaintiff in Count I contends that it “sold and delivered” four tanker loads of fuel oil to defendant on February 6th and 8th, 1971. The value of the oil as alleged in the petition was $3,366.46, and also as set out in Invoice # 140151 which was sent to the defendant on February 11, 1971. The defendant denies that the oil described in the Invoice # 140151 was ever delivered and the invoice was never paid.

A careful search of the record reveals that Apex never produced any direct evidence that any of the four loads of oil, which were described in Invoice # 140151, were actually delivered to Marvel. Apex’s entire case rested upon circumstantial evidence. For each of the four loads of oil, Apex produced a bill of lading from the oil refinery. The bills of lading indicated that Ee-Jay Transport Company (Ee-Jay) took receipt of the oil from the refinery. Also, Apex produced the dispatch sheets from Ee-Jay for the dates involved. These dispatch sheets only indicate that the dispatcher at Ee-Jay had ordered the driver to commence loading and that for some of the four loads involved, the driver informed the dispatcher that their truck was empty. The drivers of the trucks did not testify and Ee-Jay did not physically verify the actual delivery of any of the loads.

Testimony concerning the volume of past business between the parties showed that from 1966 to 1971 Apex sold at least Fifty-thousand dollars ($50,000.00) worth of fuel oil to Marvel every winter season. Mrs. Beldner, defendant’s wife, handled the billings and disbursements for Marvel during February of 1971. Mrs. Beldner died on June 28th of 1971 and defendant’s daughter-in-law, Pam Beldner, took over the books of Marvel. The books were in a state of disarray. Pam Beldner then requested copies of all of the outstanding delivery tickets from Apex. By the time this suit was filed on August 10th of 1972, Marvel had paid Apex for all monies alleged to be due and owing, except for the amount due on Invoice No. 140151, $3,366.46.

Pertinent to our discussion of the monies allegedly due on Invoice # 140151, is the fact that Marvel did pay Apex for over 24,000 gallons of oil that was received on February 6th and 8th, 1971. Interrogatories, propounded by Apex to defendant Mr. Beldner, which were read into the record at trial, revealed the total storage capacity of the Marvel storage tanks located at 6258 Etzel Ave., as of February 6th, 1971, to be 90,000 gallons. Storage tanks for No. 1 fuel oil had a capacity of 15,000 gallons and No. 2 fuel oil capacity was listed at 75,000 gallons. The interrogatories also revealed that during the month of February, 1971, Marvel was supplied by three other oil companies beside Apex; they were Ashland,. Marine and Clark Oil Companies.

Plaintiff’s first contention related to the court giving the jury defendant’s Instruction No. 5. In order to discuss Instruction No. 5, the relevant instructions as to Count I need to be considered also.

“Instruction No. 3
Your verdict must be for Plaintiff under Count I of its petition if you believe:
First, at defendant’s request plaintiff furnished to defendant certain fuel oil between February 6, 1971 and February 8, 1971, and
Second, plaintiff charged a total of $3,366.46 for such oil, and
Third, plaintiff’s charges were reasonable, ánd
Fourth, said fuel oil was not paid for by defendant. MAI 26.03 modified. Offered by Plaintiff.
“Instruction No. 4
If you find the issues in favor of plaintiff, under Count I of plaintiff’s petition, you must award plaintiff the reasonable value of the goods furnished with interest from March 1, 1971. MAI 4.04 modified. Offered by Plaintiff.
“Instruction No. 5
Your verdict must be for defendant on Count I of plaintiff’s petition unless you believe that the defendant received the oil described in Invoice No. 140151 on February 6 and February 8, 1971. MAI 33.02 modified. Offered by Defendant.” (emphasis added)

Plaintiff contends that Rule 70.01(f) has been violated in that defendant, Marvel, has not conversed an essential element of plaintiff’s case. As Rule 70.01(f) states, the defendant may converse any essential fact or element essential to plaintiff’s case. Instruction No. 3, offered by plaintiff, states that you will find for the plaintiff if plaintiff furnished to defendant certain fuel oil. The key word is' furnish. Furnish is defined as: “To supply or provide . to deliver, whether gratuitously or otherwise. . . .” Blacks Law Dictionary 804 (4th ed. 1968). In order to furnish a product to another, a necessary element of the act of furnishing is making the product available to the intended purchaser. In the case at bar, furnishing would include the delivery of the oil to defendant’s place of business. Defendant’s converse used the phrase, “received the oil described in Invoice No. 140151 . . . ” Received is defined as: “[T]o take or come into possession of, to take in, [to] hold .” Webster’s Seventh New Collegiate Dictionary 714 (1965). Defendant denied from the very outset of this litigation that the oil actually came into his possession. Received as used in the instructions of this case, does converse an element essential to plaintiff’s recovery; actual delivery by Apex of the quantities of oil in question.

Plaintiff’s second contention is that the converse instruction is not in substantially the same language as plaintiff’s verdict director. The discussion set out above details the difference in language between the two instructions. The test as to whether or not the variance in language is significant is whether the same legal theory is contained in both of the instructions. Bartleman v. Humphrey, 441 S.W.2d 335, 348 (Mo.1969). In determining the sufficiency of the instructions in this case, the court should not, as it is well stated in Bartleman, 441 S.W.2d at 348: “[B]e hyper-technical in requiring grammatical perfection, the use of certain words or phrases, or any particular arrangement or form of language, but * * * should be concerned with the meaning of the instruction * * to a jury of ordinarily intelligent laymen * * * ?>

The instructions in question, No. 3 and No. 5, submitted the issues in terms within the understanding of the jurors. 27-etjens v. General Motors Corp., 418 S.W.2d 75, 86[9] (Mo.1967). Plaintiff alleged he “furnished certain fuel oil” and defendant defended on the ground that he never received the oil. The essential element of delivery is properly conversed.

The other phrase of which plaintiff complains is the use by defendant, in his converse, of the words “the oil described in Invoice No. 140151,” to identify the “certain fuel oil” which plaintiff contends he furnished. The only quantities of fuel oil in dispute in this case are the four loads of oil described and billed on Invoice No. 140151. Defendant’s converse instruction merely further defined plaintiff’s instruction “certain fuel oil,” by substituting the phrase “the oil described in Invoice No. 140151.” No confusion or misdirection of the jury could have resulted because the oil described by Invoice No. 140151 and certain fuel oil are the same loads of oil and they are the only quantities of oil in dispute.

Plaintiff cites this court to Anderson v. Cahil, 528 S.W.2d 742, 747 (Mo. banc 1975) and Austin v. Western Auto Supply Co., 421 S.W.2d 203, 205 (Mo.1967) for the proposition that a true converse must use substantially the same language as the verdict director; and that failure to do so, leads to confusing instructions and is grounds for reversal. This statement of the law is correct, but it is not supportive of plaintiff’s position. In Anderson, 528 S.W.2d 742, the Missouri Supreme Court had before it an action for injuries sustained by a 4 year 10 month old child when he fell into an unguarded 10 foot deep excavation in a residential area of Independence, Missouri. The court reversed the case for a new trial because of errors in the instructions. The court stated that it was difficult to determine from the instruction, “which elements of plaintiff’s case the converse instruction is directed.” The court went on to state that, combining the fact that the converse instruction was not in “substantially the same language,” with the misleading and confusing nature of the instruction, that the defendant failed to demonstrate to the court’s satisfaction that this error did not have a prejudicial effect on the plaintiff. Consequently, the case was reversed.

In Austin, 421 S.W.2d 203, the action was one for breach of the implied warranty of fitness of the product for the use intended. Plaintiff purchased an automobile bumper jack for a 1957 Buick. The jack malfunctioned, injuring plaintiff. Plaintiff, in his verdict director, submitted “. . the jack was not fit for such use.” Defendant undertook to converse the element of unfitness for the use intended and causation. In so doing, defendant used the phrase, “as a direct result of the condition of the jack.” The court ruled that the “condition” of the jack was not an issue. The jack could have been in excellent condition, the issue being whether it was fit for use on plaintiff’s car. The court further ruled that this was a misdirection of the jury, “which permitted the jury to determine the case on the basis of a false issue, [and as such] constituted reversible and prejudicial error.” Austin, 421 S.W.2d at 205.

In the case at bar, as opposed to Anderson, there is no difficulty in determining that the first element of plaintiff’s verdict director is being conversed, and the language, although different, is synonymous and as such could not have misled the jury. The Austin case was ruled on the basis of the converse instruction injecting a false issue into the ease. The instruction in question in this case did not inject any such false issue as is evidenced by the discussion set out above.

Plaintiff’s third contention in regard to the instructions is that Instruction No. 5 erroneously instructed the jury that defendant had to receive all'of the four loads of oil before plaintiff could recover. This contention, which has its origins in the variance in language between the verdict director and the converse must be considered in light of the instructions taken as a whole. Ernst v. Emerick, 525 S.W.2d 573 (Mo.App.1975). Defendant’s converse instruction, Instruction No. 5, clearly requires that before the jury can find for the defendant, Marvel, the jury must believe that defendant did not receive any of the oil listed in the invoice. Otherwise stated, if any of the oil billed in Invoice No. 140151 was delivered, the jury would have to bring in a verdict for plaintiff. The damages would then be assessed in accordance with the damage instruction, Instruction No. 4. We should also note that juries are “. . . composed of ordinarily intelligent persons who should be credited with having common sense and an average understanding of our language.” Demko v. H & H Investment Company, 527 S.W.2d 382 (Mo.App.1975). This court would be engaging in conjecture and supposition if we were to assume that the jury read Instruction No. 5 as an all or nothing proposition, and that they then totally ignored Instruction No. 4, which provided for “the reasonable value of goods furnished.” We find that the instructions, when read together, are clear and unambiguous and we do not find any prejudicial errors which materially affect the merits of the case. See Demko v. H & H Investment Company, 527 S.W.2d 382, 386 (Mo.App.1975); Collier v. Roth, 515 S.W.2d 829 (Mo.App.1974); and Rule 84.13(b).

Plaintiff’s second point relied on and final contention is that the trial court erred in overruling plaintiff’s motion to set aside verdict and judgment and to enter judgment in favor of plaintiff in that under the evidence, verdict and judgment should have been directed for plaintiff because from the evidence no reasonable man could believe that defendant received no oil. Plaintiff’s contention is without merit. The question of whether Apex delivered the oil to Marvel was one of fact that was properly determined by a jury. Under all the evidence in this case, including the testimony of defendant, it was not established as a matter of law that defendant was liable. See Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282 (Mo. banc 1954). The testimony in this case is not such, as to leave no room for reasonable minds to differ, as to the conclusion to be drawn from the evidence. As such is the case, no verdict should have been directed for plaintiff. Vincent v. Raffety, 344 S.W.2d 293 (Mo.App.1961). See generally Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 58 (Mo.1973).

Finding no error the judgment is affirmed.

WEIER, P. J., CLEMENS and STEWART, JJ., and RONALD M. BELT, Special Judge, concur.

      . Rule 70.01(f)

        “Instruction Directing Verdict — Converse Instruction.

      Instructions may be given, authorizing a verdict for a defendant, upon finding the converse of any essential fact or element essential to a verdict for plaintiff. The request of a converse instruction shall not be deemed to waive any objection to the instruction conversed.


author: McMILLIAN, Judge. CLEMENS, Presiding Judge,

text:
    GENERAL AMERICAN LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. Sharon Benedict WIEST and Carolyn S. Benedict and Jacob Lee Benedict, Administrator of the Estate of Eugene T. Benedict, Deceased, Defendants-Respondents.
    No. 39140.
    Missouri Court of Appeals, St. Louis District, Division 1.
    April 4, 1978.
    Motions for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Kortenhof & Ely, Robert L. Nussbaumer, St. Louis, for plaintiff-appellant.
    Morley & Boeckman, Daniel V. Boeck-man, O’Fallon, for defendants-respondents.
   McMILLIAN, Judge.

Appellant General American Life Insurance Company appeals from an order entered in the circuit court of St. Charles County sustaining the motion of respondent Sharon Benedict Wiest for summary judgment of dismissal of appellant’s petition for interpleader. For reversal appellant argues that- the trial court erred in granting the motion for summary judgment because appellant’s petition alleged sufficient facts to entitle it to interpleader. For the reasons discussed below, we reverse and remand with directions to the trial court to sustain the interpleader.

The substantive controversy in this case concerns the proceeds of a life insurance policy. Eugene Thomas Benedict was insured by appellant for $14,500 of group life insurance through a group life insurance policy issued to his employer. Benedict died on March 28,1976. Benedict originally named as beneficiary his second wife, Sharon Benedict, now Sharon Benedict Wiest. Appellant subsequently received a change of beneficiary form dated March 26, 1976, designating as beneficiary the former wife of the insured, respondent Carolyn S. Benedict. The form was signed by respondent Benedict only and not by the insured.

Appellant filed its petition for interpleader on September 8, 1976, and alleged that claims on the proceeds of the insurance policy had been, made by Sharon Benedict Wiest, Carolyn S. Benedict and Jacob Lee Benedict as administrator of the estate of Eugene Thomas Benedict. The petition further alleged that due to the two beneficiary designation forms, appellant was unable to determine which claimant was entitled to the proceeds and the claimants should be required to interplead and settle or litigate the matter between themselves. Appellant also stated that it had no interest in the proceeds and was indifferent to the respective claimants.

All the claimants filed answers and counterclaims. On October 22, 1976, the trial court granted respondent Wiest’s motion to dismiss the other claimants’ counterclaims, but granted leave to respondent Carolyn S. Benedict to file an amended counterclaim. Respondent Benedict subsequently did file an amended counterclaim. Respondent Wi-est then filed a motion to dismiss respondent Benedict’s amended counterclaim. The trial court denied the motion to dismiss but did grant respondent Wiest’s motion to make the amended counterclaim more definite and certain. Respondent Carolyn S. Benedict withdrew any claim to the insurance proceeds on February 18, 1976. On March 4, 1977, the trial court sustained respondent Wiest’s motion for summary judgment of dismissal of appellant’s petition for interpleader and ordered the fund deposited with the clerk returned to appellant.

Appellant argues that the trial court erred in sustaining the motion for summary judgment because it appears from the aver-ments in the petition for interpleader that there are persons who have claims against appellant and that these claims are of such nature that appellant may be exposed to double liability. Respondent Wiest argues that the claims of the other respondents to the insurance proceeds could under no circumstances be interpreted as valid and therefore the trial court did not err in dismissing the petition.

Rule 52.07, V.A.M.R. (and § 507.060, RSMo 1969) has expanded the scope of in-terpleader beyond that formerly recognized in equity, see, e. g., Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (Mo banc 1955); Kearney Commercial Bank v. Deiter, 407 S.W.2d 575 (Mo.App.1966). There are only two vital facts which must appear from the averments of the petition of the party seeking interpleader: that persons have claims against the party and that those claims are of such nature that the party may be exposed to double liability, see, e. g., Security-Mutual Bank & Trust Co. v. Buder, 341 S.W.2d 782 (Mo.1961); State ex rel. Creswell v. Scott, 491 S.W.2d 343 (Mo.App.1973). Double liability in this context means exposure to double or multiple recovery for a single liability, e. g., Smith v. Preis, 396 S.W.2d 636, 639-40 (Mo.1965); Shaw v. Greathouse, 296 S.W.2d 151, 153 (Mo.App.1956). If the party seeking inter-pleader has satisfied these requirements, then the party has a right to interpleader. State ex rel. Creswell v. Scott, supra.

Whether a petition for interpleader has alleged a dispute of fact which is real and substantial, and thus warrants inter-pleader, or frivolous or invalid and colorable so that interpleader should be denied, is a matter within the discretion of the trial court. E. g., Barr v. Snyder, 358 Mo. 1189, 219 S.W.2d 305, 308 (1949). The trial court lacks the power to dismiss the petition for interpleader if the dispute is real and substantial. State ex rel. Creswell v. Scott, supra. We do not agree with respondent Wiest’s argument that the trial court did not err in dismissing the petition for inter-pleader because respondent Carolyn S. Benedict’s claim was on its face invalid, cf., Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 757 (Mo.App.1944) (no basis for interpleader where it appears one claim; is valid and other claims are clearly without merit so that the party seeking interpleader may be discharged from liability by paying the claimant having the valid claim). Because appellant’s petition for interpleader alleged that rival claims have been made on the insurance proceeds and that these claims were such that appellant may be exposed to double liability, the trial court erred in sustaining the motion for summary judgment. We reverse and remand with directions to the trial court to sustain the petition for interpleader.

Furthermore, we do not believe the trial court should consider the merits of the rival claims beyond the point necessary to determine whether the dispute alleged is real and substantial or merely frivolous and colorable. In this case the two claims were supported by beneficiary designation forms. This information plus the fact that the two claimants were or had been related to the insured and thus within the realm of probable beneficiaries are sufficient to create a reasonable doubt as to which claimant is entitled to the insurance proceeds. Competing claims had been filed, creating the possibility of exposing appellant to double liability. Rule 52.07, V.A.M.R., does not require that the party seeking interpleader must be exposed to double liability; it is sufficient if it may be. State ex rel. Creswell v. Scott, supra, citing St. Louis Southwestern Ry. v. Meyer, 364 Mo. 1057, 272 S.W.2d 249, 256-58 (1954). Similarly, we do not believe the fact that respondent Carolyn S. Benedict withdrew her claim should adversely affect appellant’s right to inter-pleader, cf., Sovereign Camp Woodmen of the World v. Wood, 100 Mo.App. 655, 75 S.W. 377 (1903) (showing in answer to a bill of interpleader that one of contesting claimants to fund is not entitled to fund held not to affect complainant’s right to relief by having interpleader filed).

We also note that interpleader would seem to be particularly appropriate in cases like the present one which involve a single fund subject to the claims of several adverse parties, e. g., Postal Life & Cas. Ins. Co. v. Tillman, 287 S.W.2d 121, 127 (Mo. App.1956); Mut. Life Ins. Co. v. Burger, 50 S.W.2d 765, 768 (Mo.App.1932); Supreme Council of Legion of Honor v. Palmer, 107 Mo.App. 105, 80 S.W. 699, 702 (1904). The purpose of interpleader is to protect the party seeking interpleader against double or multiple recovery with respect to a single liability, e. g., Buerger v. Costello, 240 Mo. App. 1194, 226 S.W.2d 610 (1949), especially where the party is a disinterested stakeholder, and seeks the protection of inter-pleader against the threat of multiple actions to recover what it is willing to pay, e. g., United Rys. Co. of St. Louis v. O’Connor, 153 Mo.App. 128, 132 S.W. 262 (1910). For example, plaintiff-insurer in the Tillman case was permitted to interplead under circumstances similar to those presented in this case. The insurer in Tillman had alleged that it was unable to determine which claimant was entitled to the insurance proceeds due to an alleged change of beneficiary. The court in Tillman held that whether or not there was a valid change of beneficiary was a question of evidence, 287 S.W.2d at 127, thus recognizing that an interpleader action involves two successive litigations, one between the party seeking interpleader and the rival claimants on the question of the propriety of interpleader and the other, after granting interpleader, between the rival claimants themselves on their conflicting claims, e. g., Moore v. John J. Dowling Realty Co., 166 S.W.2d 238, 242 (Mo.App.1942); Meredith v. Meredith, 235 Mo.App. 1010, 148 S.W.2d 611, 618 (1941). In the present case the trial court should have granted appellant’s petition for inter-pleader and then proceeded to the settlement or litigation of the merits between respondents, that is whether there was an effective change of beneficiary, e. g., Persons v. Prudential Ins. Co. of America, 233 S.W.2d 729, 731 (Mo.1950).

The summary judgment of dismissal is the only issue on appeal. The trial court specifically made its denial of appellant’s motion to set aside a final and appeal-able order, Rule 81.06, V.A.M.R. For this reason respondent Wiest’s counterclaim against appellant for vexatious refusal to pay is still pending before the trial court. In view of our decision on appellant’s right to interpleader, however, we also believe that respondent Wiest’s counterclaim is without merit. “. . . It is well settled that where there is an open question of fact or law determinative of the insurer’s liability, the insurer, acting in good faith, may insist on a judicial determination of such questions without being penalized therefor. . ” Cox v. Washington Nat. Ins. Co., 520 S.W.2d 76, 81 (Mo.App.1974). We believe that, under this rule, the fact that respondent Wiest’s counterclaim is based on the filing of the petition for interpleader and not an unrelated reason for delay and that interpleader should have been granted' would constitute an absolute defense. The existence of an open question of fact, that is, which beneficiary is entitled to the proceeds, is in our opinion both a basis for interpleader and a defense to the counterclaim for vexatious refusal to pay.

Accordingly, judgment is reversed and remanded with directions.

SMITH, J., concurs.

CLEMENS, P. J., dissents in separate opinion.

CLEMENS, Presiding Judge,

dissenting.

I dissent and would affirm the trial court’s denial of interpleader. That remedy should not be granted merely because the insurer asks for it. The purpose of life insurance is to provide the beneficiary with money at the time of insured’s death. In-terpleader defeats that purpose. It penalizes the beneficiary — not only by delaying payment but also by depleting the fund in allowing court costs and attorney fees. The majority opinion would do just that.

Interpleader is justified only when the stakeholder has a goodfaith doubt about which claimant it should pay, and by paying either the stakeholder would be exposed to the risk of double liability. As we held in State ex rel. Creswell v. Scott, 491 S.W.2d 343 (Mo.App.1973), whether interpleader should be granted depends on existence of: “A dispute of fact upon which the right to interplea turns is real and substantial or only feigned and colorable” and should be granted only when “persons have claims against plaintiffs, and that those claims are of such nature that plaintiffs may be exposed to ‘double liability.’ Obviously, ‘double liability’ means ‘exposed to double recovery for a single liability.’ ” The stakeholder’s grounds for interpleader must appear from the facts alleged in its petition. Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755 [4](Mo.App.1944).

The petition here pleads in essence: Jacob Benedict, deceased-insured in plaintiff’s policy, had designated his wife, Sharon Benedict, as beneficiary; on March 26, 1976 plaintiff-insurer received a change of beneficiary form, signed not by the insured as called for the plaintiff’s printed form, but by his ex-wife Carolyn, naming herself as beneficiary; two days later Jacob Benedict died; both Sharon and Carolyn claimed the policy proceeds; and plaintiff “is unable to determine which claimant is entitled to the proceeds of the policy.”

In my view the petition failed to plead facts showing plaintiff was entitled to in-terpleader. This, because the petition showed neither a real and substantial dispute as to whom the proceeds were payable, nor that plaintiff would be exposed to double liability by paying the named beneficiary, the insured’s widow.

In Lafayette-Southside Bank & Trust Co. v. Siefert, 223 Mo.App. 431, 18 S.W.2d 572 (1929), a judgment granting interpleader to the bank was reversed. The bank had issued certificates of deposit to Katherina Rose and Emma Dipple, payable to either or the survivor. Katherina Rose died; both Emma Dipple and Katherina’s executor claimed the proceeds. The trial court granted the interpleader and Emma Dipple appealed. In holding the petition did not warrant interpleader, and reversing, the court held “ ‘a mere assertion of claim by another, without alleging anything whatever on which to base it, is not enough to sustain an interpleader. There must be reasonable ground of uncertainty as to which claimant is entitled to the fund, and a bona fide controversy between rival claimants. Where the petitioner may be discharged from all liability by paying the money to one of the claimants, an inter-pleader will not be sustained.’ ” So it is here.

The other case is Meredith v. Meredith, 235 Mo.App. 1010, 148 S.W.2d 611 (1941). There, plaintiff-wife pleaded defendant-husband had breached a post-nuptial contract, that her husband had agreed to surrender certain personal property to her, among which were securities defendant owned but were being held by him in his safety deposit box at the Mercantile Bank. The wife alleged an equitable lien on the securities and sought to compel the bank to surrender them into a trust fund to await adjudication of her claims. The bank responded with a bill of interpleader seeking to be “relieved from the danger of being held liable ... to different parties.” The trial court granted interpleader but we reversed. In holding this was not a proper case for interpleader we held: “We do not believe that any one could entertain any reasonable doubt as to the rights of the parties to the securities in question. There is nothing in the amended petition or in the cross-bill to throw a shadow of a doubt upon defendant Charles A. Meredith’s right of ownership and right to possession of these securities as against any claim of plaintiff as disclosed by her petition.” The court reasoned: “The rule is well settled that an action of interpleader can only be sustained where it appears that a reasonable doubt exists as to which of the claimants to the fund is in the right. It is not sufficient to show that rival claims are made. It must also appear that the elements of a bona fide controversy exist between the rival claimants over the right to the fund or property in question; nor is it sufficient that the stakeholder merely establish that suits have been brought against him, or that suits have been threatened by different claimants to a fund or property held by him in order to entitle him to the protection of a court of equity, but he must set forth facts disclosing the existence of a reasonable doubt as to whom he can safely deliver the fund or property in dispute, and, of course, where there are two claimants, and it clearly appears from the allegations of the bill that the claim of one of them is without merit, the bill does not state a cause of action.”

I would apply the reasoning of these cases to the one before us. By its petition the plaintiff acknowledged a clear unchanged obligation to pay the policy proceeds to the insured’s widow, Sharon, his named beneficiary. Her claim was based on a clear, express contractual right. The insurer sought to avoid its obligation by asserting that insured’s former wife, a stranger to the contract, had claimed the proceeds by virtue of having herself signed a change of beneficiary form. The trial court held in effect that this ineffective document did not create a real and substantial doubt as to whom plaintiff should pay, nor in paying the named beneficiary would plaintiff-insurer be exposed to double liability. The effect of granting interpleader would have been to deprive the widow of her just funds until the coils of the law unwound, and would have further penalized her for the insurers’ attorney fees and court costs. The petition for interpleader did not state facts which entitled the plaintiff to interpleader.

I would affirm and hold the trial court did not erroneously apply the law in denying interpleader.

      . The dissenting opinion states that because respondent Benedict’s claim was so insubstantial, the insurer did not have a “good faith doubt” about which claimant it should pay and was therefore not exposed to double liability. For this reason, the dissenting opinion argues, the interpleader should not be granted. Although we agree that interpleader should not be granted merely because the petitioning party asks for it, we disagree with the dissenting opinion’s application of the good faith requirement. We believe this requirement means only that the claims alleged must meet a “minimum threshold level of substantiality” and does not refer to the actual merits of such claims. 7 C. Wright & A. Miller, Federal Practice and Procedure, § 1704, p. 371 (1972). The fact that one of the claims is tenuous should not justify denying interpleader, so long as the claim “is not so utterly baseless that the stakeholder’s assertion of multiple claims is not made in good faith.” 2 W. Barron & A. Holtzoff, Federal Practice and Procedure, § 551, p. 230 (Wright ed. 1961). Thus, the right to interpleader depends upon whether the stakeholder has a good faith fear of adverse claims, regardless of the merits of those claims or whether the stakeholder himself believes them to be meritorious. 3A J. Moore & J. Lucas, Moore’s Federal Practice, § 22.02[1], p. 3006 (3rd ed. 1977). Any speculation as to the merits of the alleged claims beyond the point necessary to determine whether the stakeholder “legitimately” fears multiple vexation with respect to a single liability and is therefore entitled to interpleader is premature. Wright at 369. In other words, we believe that the propriety of interpleader should not turn on the particular merits of the claims themselves but on whether the stakeholder faces multiple vexation and litigation because of such claims, however, groundless they ultimately may be. Cf., Union Central Life Ins. Co. v. Hamilton Steel Products, Inc., 448 F.2d 501, 504 (7th Cir.1971), citing Bierman v. Marcus, 246 F.2d 200, 202 (3rd Cir.1957), cert. den. sub nom., Milmar Estates Inc. v. Marcus, 356 U.S. 933, 78 S.Ct. 774, 2 L.Ed.2d 762 (1958) (federal statutory interpleader); Stuyvesant Ins. Co. v. Dean Construction Co., 254 F.Supp. 102; 108 (SDNY 1966) (federal statutory interpleader); Equitable Life Ins. Co. of Iowa v. Gilman, 114 F.Supp. 387, 389 (WD Mo.1953) (federal statutory interpleader); see also Hazard & Moskowitz, An Historical and Critical Analysis of Interpleader, 52 Cal.L.Rev. 706, 752-53 (1964).
      In addition, we distinguish the cases discussed in the dissenting opinion for the reason that they pre-date the modern interpleader rule in Missouri. See § 507.060 RSMo 1969 (1943 Mo. Laws 353, § 18); Rule 52.07, V.A.M.R.; Chafee, Modernizing Interpleader, 30 Yale L.J. 814 (1921) (Professor Chafee was instrumental in modernizing interpleader).
      Furthermore, although it is well-settled that in a case where interpleader lies, the stakeholder is entitled to reasonable attorneys’ fees and costs, e. g., Northwestern National Insurance Co. v. Mildenberger, 359 S.W.2d 380, 387 (Mo. App. 1962), we do not believe the trial court should automatically award attorney’s fees and costs in all cases. For example, in Aetna Life Insurance Co. v. Harley, 365 F.Supp. 1210, 1215 (ND Ga.1973), the court was convinced that had the petitioning party conducted the slightest investigation of the claims upon the insurance proceeds, it could only have concluded that one of the claims was without merit and, under those specific circumstances, could find no justification in taxing the fund for attorney’s fees and costs. See also Coppage v. Insurance Co. of North America, 263 F.Supp. 98, 101 (D Md.1967); Paul Revere Life Ins. Co. v. Riddle, 222 F.Supp. 867 (ED Tenn.1963). Therefore, even though the petitioning party is entitled to interpleader, the trial court may find after a hearing that there is no justification for awarding attorney’s fees and costs and thereby avoid diminishing the fund.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Oscar BROOKS, Appellant.
    No. 38148.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    April 18, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      C. Clifford Schwartz, Jr., Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson Elliff, Asst. Attys. Gen., Jefferson City, William Seibel, Jr., Pros. Atty., St. Charles County, St. Charles, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Oscar Brooks, charged by information with rape, was found guilty by a jury of attempted rape. Such facts as are necessary to rule on the contentions presented will be stated in the course of this opinion. We affirm.

Appellant’s first point is that the trial court committed prejudicial error (1) “in overruling [his] motion for a Protective Order and Sanction” and (2) “in allowing the [State] to cross-examine the. defendant’s witnesses, Lenore Logan and Prentiss Holden from the depositional statements taken of said witnesses on February 13, 1976.”

The circumstances from which this point arises are most inadequately set forth in the transcript. From the allegations in the motion for the protective order and from statements of counsel the following apparently occurred. On February 13, 1976 the State took the deposition of various witnesses, including Lenore Logan and Pren-tiss Holden, two alibi witnesses of appellant. On February 19,1976, appellant filed a motion for “a Protective Order and Sanction,” in which he alleged that (1) pursuant to notice to take the deposition of said persons, appellant’s counsel appeared at the St. Charles County Court House but “no depositions were taken in this cause,” but that the prosecutor “by intimidation and remarks direct comments” to Lenore Logan did attempt to intimidate her in her testimony and put her in fear should she be called as a witness in this case; and (2) the prosecutor “did further not allow [appellant’s] attorney to ask the witness Prentiss Holden any questions,” and that the reporter complied with those directions. Appellant prayed for an order that “the depositional statements of the said Lenore Logan and Prentiss Holden be stricken and * * [that the Court] enter a protective order and sanction against [the prosecutor] for any similar or like conduct.”

The above motion was taken up by the court on March 1,1976, and although timely notice was given to appellant neither he nor his counsel was present. The motion was denied after a hearing at which the reporter who had taken the depositions testified under oath and denied the occurrence of the allegations in appellant’s motion.

When the case came on for trial (before a judge different from the one who ruled on the motion), counsel for appellant stated that he “would like to make a record.” He then related orally to the court the substance of the allegations in the motion, except that he expanded his charge to include a denial of the right to ask questions of Lenore Logan. He attempted to justify his absence at the hearing on the motion for a protective order because He was in court in St. Louis County and that he had made an oral request for a continuance to an assistant prosecuting attorney other than the one handling the case. The court apparently had before it the depositions because it commented that it “appears * * * that defense counsel indicated he had no questions of the witnesses.”

Both witnesses were called by appellant at the trial, and each testified to an alibi. On cross-examination of Lenore Logan no reference was made to her deposition, and there was no attempt to impeach her by use of the deposition. Prentiss Holden testified on direct examination that on June 13,1976 appellant was at a house in Kirkwood at the time of the alleged offense. On cross-examination the State was permitted to show that he testified on deposition that he knew the day but he could not “say for sure the date.”

If appellant desired to reopen the issue of the ruling on the motion, as distinguished from “making a record,” the proper way to do so was not by the use of oral unsworn statements to the court. Nothing was presented to the trial court to compel, or even justify, a change in the ruling previously made, and the use of the deposition of Prentiss Holden for impeachment was proper. Appellant has demonstrated nothing which was prejudicial to him, and his first point is overruled as being without merit.

Appellant assigns as error the refusal of the court to give an Instruction in the form of MAI-CR 3.52 which pertains to “Impeachment or Rehabilitation by Prior Statement of Witnesses Other Than Defendant.”

In argument appellant asserts that Gladys Davis “admitted making some prior inconsistent statements to the police,” but he does not set forth, even in argument, what those statements were. He does give a page reference to the transcript, but we do not there find an admission of prior inconsistent statements. On the cited page we find that Gladys Davis answered “yes” to the question, “Are you telling me, ma’am, and telling these ladies and gentlemen of the jury that you told the police officers that someone had raped you and penetrated your vaginal area?” She then stated, “I’m not sure that I said tried to rape or raped.” Appellant does not cite the testimony he contends was inconsistent with this. Also, in Notes on Use to MAI-CR 3.52 it is stated: “2. This instruction should not be given if, during the examination of a witness or otherwise, prior * * inconsistent statements come into the case without limiting them at that time to the purposes of impeaching or corroborating the credibility of the witness.” This did not occur in this case. The point is without merit.

Appellant’s third point is that the court erred in refusing to instruct the jury that “because of the State’s failure to call all of their witnesses in this case, you may presume that the evidence that they would give you would be unfavorable to them.” There is no such instruction in MAI-CR, and such an instruction, if given, would have constituted a comment by the court on the evidence and therefore was properly refused. State v. Parker, 543 S.W.2d 236 (Mo.App.1976).

Appellant also asserts (Point IV) that the court erred in refusing to permit him to argue that because of the failure of the State to call all their witnesses the jury could presume that the testimony would have been unfavorable. As a general rule, when a witness is more available to one party, including the State, than to another and might reasonably be expected to give testimony in that party’s favor, an unfavorable inference, not a presumption, may be drawn from the failure to produce the witness, State v. Johnson, 536 S.W.2d 851 (Mo. App.1976), but such an inference is not permissible where the testimony of the uncalled witness would be cumulative or where it would be inadmissible if offered. State v. Wallach, 389 S.W.2d 7 (Mo.1965); State v. Johnson, supra. Appellant made it clear to the trial court that he referred to the failure of the State to call three police officers who were endorsed, and that he was relying on a police report which was before the court to indicate the testimony they would give. After a full discussion the trial court commented that “any testimony that would be given by the police officers would be either subject to hearsay objection and not admissible or would be merely cumulative of other testimony that is in the case. Therefore neither the giving of the instruction nor comment upon the failure to call those witnesses would be proper or permitted in the case.” The police report is not before us, and appellant makes no effort to demonstrate why the ruling of the trial court pertaining to the testimony of the police officers as disclosed by the police report was not correct. We find no prejudicial error.

The fifth point is that the trial court erred in “giving to the jury its Instruction Numbered 6 for the reason that it misstated the issues and evidence in this case.” This instruction followed the form of MAI-CR 3.42 entitled “Circumstantial Evidence.” This instruction may properly be given even if there is direct evidence of guilt. Note 2, MAI-CR 3.42. Appellant argues that there was no circumstantial evidence; only direct evidence. In this he is in error. The testimony of witnesses as to the physical condition of the complaining witness after the alleged assault was circumstantial in nature as to the commission of the assault. State v. Cox, 352 S.W.2d 665, 670 (Mo.1962). In addition, appellant demonstrates no prejudice from this instruction, which was favorable to him, and assuming that there was only direct testimony of appellant’s guilt, it was not reversible error to give the instruction in these circumstances. State v. Rollins, 449 S.W.2d 585 (Mo.1970).

Appellant’s next point (No. VI) is that it was prejudicially erroneous for the court to give Instruction No. 7, a verdict-directing instruction on rape, when the evidence was insufficient to authorize a finding of that offense. The immediate answer is that appellant was not found guilty of the offense of rape. It has long been the rule that the submission of a more serious offense, even though it is not sustained by the evidence, is not prejudicial when the verdict is for a lesser offense that is sustained by the evidence. State v. Ebrite, 185 S.W.2d 663 (Mo.App.1945). By analogy see State v. Osborne, 246 S.W. 878 (Mo.1922); State v. Woolford, 545 S.W.2d 367 (Mo.App.1976); State v. Gillette, 277 S.W.2d 680 (Mo.App.1955). The point is without merit.

Point No. VII is that it was error to give Instruction No. 8, the verdict directing instruction on attempted rape of which appellant was found guilty, because “there is no evidence of same” and because the instruction “is against the law under the circumstances and evidence in the case.”

We need not set forth the testimony to demonstrate that the evidence clearly authorized a finding of an attempt to rape. Appellant’s argument is that “if there is sufficient evidence upon which to base an instruction on rape itself, the Court cannot also submit an attempted rape since it is mutually exclusive to the charge of rape and is not a lesser included offense * * .” In making this argument appellant relies on § 556.160 RSMo 1969, which provides that “No person shall be convicted of an * * attempt to commit a crime * * * when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.” In State v. Pigques, 310 S.W.2d 942 (1958), the Missouri Supreme Court commented that “It would appear to be the customary practice of prosecuting officials, in cases where there may be doubt as to whether a defendant has committed the offense or merely an attempt, to charge the offense, and then upon a trial, the issue of defendant’s guilt as to either the offense charged or an attempt [and perhaps in some instances both] may be submitted to the

jury in accordance with the facts disclosed by the evidence.” The court cited State v. Scott, 172 Mo. 536, 72 S.W. 897, 900 (1903), wherein it was stated: “If, therefore, under an indictment for rape or other felony, the evidence fails to show a perpetration of the offense charged, but does establish an assault necessarily included in the charge, the defendant may still be convicted [of the assault] under the charge for the major offense; and we may add that if the evidence is conflicting, and there is testimony to sustain the completed offense, and evidence tending to show that it was only an assault, it is the duty of the court by appropriate instructions to inform the jury that, if the evidence satisfies them beyond a reasonable doubt that the offense of rape or other felony was in fact perpetuated, then they must find him guilty of the offense charged, and are not authorized to find him guilty of an assault merely, but if, on the other hand, the jury are satisfied * * * that the offense was not perpetrated, but that an assault to commit the same was committed, then they should find him guilty of an assault.” In this case the charge was rape but the evidence, whether that offense was committed was not conclusive. The jury was instructed as to rape, but it was also instructed that “If you do not find the defendant guilty of rape, you must consider whether he is guilty of attempted rape.” The jury was then instructed as to that offense, and by reason of 556.220 RSMo 1969, a conviction may be had of attempted rape under a charge of rape. State v. Frank, 103 Mo. 120, 15 S.W. 330 (1891); State v. Whitaker, 275 S.W.2d 322 (Mo.1955). The prohibition of § 556.160 was not violated in this case. The jury found appellant not guilty of rape. Therefore, he was not convicted of an “attempt to commit” rape when it “appealed] that the * * * offense attempted was perpetrated.”

Pursuant to Rule 25.34(A)(5) the State requested disclosure by the appellant as to whether he intended to rely on the defense of alibi. Although there was an indication by his then counsel that he did not intend to do so, four months later when the case was set for trial appellant’s new counsel announced that he did intend to rely on an alibi. This resulted in a continuance. During cross-examination of appellant the following question was asked: “What I want to know, Oscar, is why the Prosecuting Attorney, myself, who was handling this case from its inception from June 14, 1975, why it was January 20,1976, before I ever heard anything about this alibi of yours? Would you explain that, why — .” Appellant objected and requested a mistrial.

In State v. Roth, 549 S.W.2d 652, 655 (Mo.App.1977), it was held that “prosecution impeachment of the post-arrest silence of an accused not only violates the self-incrimination clauses of the Fifth Amendment to the Federal Constitution and Article 1, § 19 of the Missouri Constitution,” but further that since Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it “results in a denial of constitutional due process.” See also, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We need not in the circumstances of this ease expressly rule on the possible infringements of constitutional rights by asking the question. We consider the question to have been objectionable in any event. But, the question was not answered, and after a discussion between counsel the trial court sustained the objection and instructed the jury to disregard the question.

The trial court observed the incident and was in a better position than this court to evaluate the prejudicial effect, if any, and the possibility of its removal by some action short of a new trial, State v. Roberts, 535 S.W.2d 119 (Mo.App.1976), which is a most drastic remedy and should be resorted to only when the incident is so grievous that the prejudicial effects can be removed no other way. State v. Smith, 431 S.W.2d 74, 84 (Mo.1968). We cannot say as a matter of law that the remedial action taken by the trial court was not sufficient in the circumstances, or that the trial court abused its discretion in not declaring a mistrial.

Appellant’s final point is that “the finding and judgment of the Court is against the weight of credible evidence.” The weight of the evidence is not a matter for review by an appellate court. State v. Parker, supra. It should determine only whether there was substantial evidence to support the verdict, State v. Morgan, 453 S.W.2d 932 (Mo.1970), and there clearly was in this case.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.