author: STONE, Judge.

text:
    Henry Franklin FREEMAN, Employee-Appellant, v. Jerry CALLOW, Employer-Respondent, United States Fidelity & Guaranty Company, Insurer-Respondent.
    No. 9481.
    Missouri Court of Appeals, Springfield District.
    June 26, 1975.
    Kenneth L. Dement, Sikeston, for employee-appellant.
    Blanton, Blanton, Rice & Sickal, Bernard C. Rice, Sikeston, for insurer-respondent.
   STONE, Judge.

In this proceeding under the Missouri Workman’s Compensation Act, claimant Henry Franklin Freeman seeks benefits on account of personal injuries sustained by him from acid intentionally thrown into his face and eyes by one Lloyd Adams about 3:30 P.M. on Saturday, June 28, 1969, while claimant was on duty at the service station in Sikeston, Missouri, operated by his employer, Jerry Callow d/b/a Uptown Shell Service. Prehearing admissions narrowed the contested issues to whether or not claimant’s injury resulted from an “accident arising out of and in the course of his employment.” (All emphasis herein is ours.) The referee in the first instance, and thereafter the Industrial Commission on review, denied benefits because claimant’s accident did not arise “out of . . his employment.” That was the only issue upon judicial review in the circuit court, where the final award of the Industrial Commission was affirmed, and likewise is the only issue upon this appeal.

It may be well at the outset to observe that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Industrial Commission reasonably could have made the findings and award under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Commission; but that a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo.1970); Smith v. Plaster, 518 S.W.2d 692, 696(1) (Mo.App.1975). Our statement of facts accords appropriate and required recognition to that basic principle of judicial review in this category of cases. Selvey v. Robertson, 468 S.W.2d 212, 214 (Mo.App.1971); Vandaveer v. Reinhart & Donovan Const Co., 370 S.W.2d 156, 158 (Mo.App.1963).

Claimant Freeman, 25 years of age at the time of accident, had been employed as “assistant manager” of Uptown Shell Service (hereinafter “the station”) since October 1968, or for some eight or nine months prior to the accident. He “washed cars [and] serviced them” and, when employer Callow was not there, claimant “was boss.” He also was “to brief customers . . . try to catch every car that come in . try to build up business, talk to people, meet them.”

Mrs. Edna Eaton, whom claimant identified as “a very close niece of mine,” came to the station as a customer “about once a week, something like that.” During the period immediately preceding the date of accident, Mrs. Eaton, whose husband then in Vietnam was a brother of Mrs. Lloyd (Shirley) Adams, was staying at the Adams home, and the two ladies rode to work together in Mrs. Eaton’s automobile. Claimant said that he first met Mrs. Adams some two or three weeks prior to the accident when, on the way to work, Mrs. Eaton stopped at the station for gasoline and he talked to the two ladies as he “vacuumed the car out.”

In response to an invitation by Mrs. Eaton to “stop over” for the purpose of looking at some pictures which she expected to receive from her husband in Vietnam, claimant went to the Adams home on the evening of Tuesday, June 24, 1969, but then was informed “they didn’t get [the pictures] that day.” He “was there for about fifteen or twenty minutes talking to them outside.” On that occasion he learned that Mr. Adams was employed elsewhere “in the evenings.”

Claimant returned to the Adams home the following evening, to wit, on Wednesday, June 25, 1969. The pictures had arrived and, while he sat in the front room looking at them and talking with his niece, he saw Mrs. Adams in the kitchen washing her hair. As he “got started to leave,” Mrs. Adams walked into the front room and sat down. In the ensuing conversation they “just talked . . . about different things” but certainly not “about [his] going out with her.” Neither trip to the Adams home was in response to an invitation by Mrs. Adams or in any wise pertained to the business of claimant’s employer.

Claimant also testified that on another evening, the date of which was not fixed in the record but obviously was prior to the aforementioned calls at the Adams home on June 24 and 25, he was “at my brother’s house” and “my niece [Mrs. Eaton] came over there and she [Mrs. Adams] was along.”

About 2 P.M. on Thursday, June 26, Mr. Adams confronted claimant at the station. At one point in the transcript we find this pointed, pauciloquent account by claimant as to what occurred at that time: “Well he [Mr. Adams] came up there and accused me of talking to his wife, accused me of kissing her . . ..I told him I haven’t, and if he would bring her up we would talk to her, get it straightened out.” Subsequently claimant offered this more detailed report: “He [Mr. Adams] asked me if I had been messing around with his wife. I told him no. He said, ‘Well, that wasn’t what I heard.’ He said, T heard you been messing around.’ I told him, ‘You go home and bring her up here and get this thing straightened out.’ Well I told him she came in here with my niece. They buy gas here and I talk to them, stuff like that. I know nothing about it. I go on with everybody that way. He said, ‘Don’t ever speak to her again.’ I said, ‘Okay, I won’t.’ So he got in his car and he left. I didn’t see him no more until the 28th.”

About 3:15 P.M. on Saturday, June 28, Mr. Adams parked his automobile in the alley behind the station and asked claimant to take the spare tire off the wheel in the trunk of his automobile and mount another tire on that wheel. Claimant immediately proceeded to do so, went to the Adams automobile, obtained the wheel on which the spare tire was mounted, and brought it into the station service quarters. As he was changing the tire on that wheel, Mr. Adams stood nearby with what appeared to be a “milkshake carton” in his hand and “every once in a while put it up to his mouth like he was drinking out of it.” When the tire change was completed, Mr. Adams paid the $1.00 charge without comment or complaint, and claimant rolled the wheel back to the parked automobile, crawled into the trunk and mounted it in the proper place, then alighted and threw the old tire into the trunk, thanked Mr. Adams, “told him to come back and see us,” turned around and started to walk away.

As claimant did so, Mr. Adams called to him, “I want to talk to you.” Although nothing had been said about Mrs. Adams that afternoon, claimant testified he knew what Mr. Adams wanted to discuss. Aside from that, it was a busy Saturday afternoon and he was needed to assist in washing an automobile, so he told Mr. Adams that, if he would move his automobile from the alley to an indicated location on the station premises, “I [claimant] would be right back over. He [Mr. Adams] said, ‘No, I want to talk to you now.’ I said, T will be right back.’ He said, ‘Turn around and look at me,’ so I did.” Whereupon, Mr. Adams immediately threw the liquid contents of the “milkshake carton” (identified in the record only as an “acid”) into his face and eyes, instantly burning and completely blinding him. With claimant thus rendered helpless, Mr. Adams began to kick and beat him, at the same time repeatedly declaring, “I will kill you.” Two men nearby came to claimant’s assistance and the assailant “jumped in his car and took off.” As a result of this assault, claimant sustained serious injury to his eyes and impairment of vision, the nature and extent of which are not here in issue.

The compensability of injuries resulting from an assault upon a workman has been the subject of appellate judicial rumination and ruling in numerous reported opinions dealing with a wide range of factual situations. The law in this area was well stated and the assault cases were carefully categorized in the opinion of Cottey, Sp. J., in Liebman v. Colonial Baking Company, 391 S.W.2d 948, 951-952(5-7) (Mo.App.1965), from which our Supreme Court in Person v. Scullin Steel Co., 523 S.W.2d 801, 803 (Mo. banc 1975) recently quoted the following excerpt with approval, as we now do likewise:

“The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson’s Workmen’s Compensation Law, See. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly [Kelley] v. Sohio Chemical Co., Mo.App., 383 S.W.2d 146, 147.
“1st: Those which are invited by the dangerous nature of the employee’s duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are com-pensable in Missouri. Typical examples may be found in Hacker v. City of Potosi, Mo., 351 S.W.2d 760, where a policeman was shot while investigating a traffic violation, and in Macalik v. Planter’s Realty Co., Mo.App., 144 S.W.2d 158, where a foreman was murdered in retaliation for having fired the assailant’s son. [Citing eight additional Mo. cases.]
“2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compensable in Missouri. Typical examples may be found in Lardge v. Concrete Products Mfg. Co., Mo., 251 S.W.2d 49, where the employee was struck in retaliation for his charge that the assailant had stolen his wine, and in Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421, where the fatal quarrel was triggered by the participants’ community of interest in the victim’s wife. See also, Toole v. Bechtel Corp., Mo., 291 S.W..2d 874, and Staten v. Long-Turner Const. Co., Mo.App., 185 S.W.2d 375.
“3rd: Irrational, unexplained or accidental assaults of so-called ‘neutral’ origin, which, although they occur ‘in the course of’ the victim’s employment, cannot be attributed to it on any more rational basis than that the employment afforded a convenient occasion for the attack to take place. In some jurisdictions that circumstance is regarded as a sufficient reason for awarding compensation; but not in Missouri. Examples may be found in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, where the employee was assaulted at his assigned place of work by a stranger with no apparent motive; in Kelly [Kelley] v. Sohio Chemical Co., supra, where the employee was struck down from behind in her office by an unknown assailant for no discoverable reason; in May v. Ozark Central Telephone Co., supra [Mo.App., 272 S.W.2d 845], where, for the sake of the discussion, it was assumed that the employee had been accidentally shot by a hunter while working in a wooded area; in Long v. Schultz Shoe Co., supra [Mo. App., 257 S.W.2d 211], where the employee was struck by a stray bullet in the course of a shooting scrape between other employees on the premises; and in Scherr v. Siding & Roofing Sales Co., supra [Mo. App., 805 S.VA2d 62], where a salesman calling on a customer at the latter’s place of business was hit by an object thrown wildly by another visitor on the premises.
“In every Missouri case involving an assault of ‘neutral’ origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man’s employment than to another’s unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former.”

As we have noted, the sole issue here is whether or not claimant’s injury arose “out of” his employment. One of the frequently repeated definitive statements concerning “out of” the employment is that an injury so arises when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. See Heaton v. Ferrell, 325 S.W.2d 800, 803-804 (Mo.App.1959), and the numerous cases there collected in note 1. Several cases include the alternative statement that “an injury arises out of the employment if it is a natural and reasonable incident thereof, even though not foreseen or anticipated” [Gregory v. Lewis Sales Co., 348 S.W.2d 743, 745 (Mo.App.1961), and cases there cited]; but all of these cases and many others also embody the indispensable requirement that, to arise out of the employment, an injury must have been a rational consequence of some hazard connected therewith. Person v. Scullin Steel Co., supra, 523 S.W.2d at 805; Kelley v. Sohio Chemical Co., 392 S.W.2d 255, 257(4) (Mo.1965); Toole v. Bechtel Corp., 291 S.W.2d 874, 880(3) (Mo.1956); Lathrop v. Tobin-Hamilton Shoe Manufacturing Co., 402 S.W.2d 16, 21 (Mo.App.1966); Scherr v. Siding & Roofing Sales Co., 305 S.W.2d 62, 65(6) (Mo.App.1957). Of course, whether or not this requirement has been satisfied is to be determined upon the facts of each case and not by application of a formula. Foster v. Aines Farm Dairy Co., 263 S.W.2d 421, 423(4) (Mo.1954).

In denying compensation in the instant case, the Industrial Commission found “that [claimant’s] injuries were sustained by accident in the course of his employment but that said accident was not an outgrowth of frictions generated by the service station work; that [claimant’s] injuries did not arise out of his employment but were sustained in the course of a private quarrel and purely personal to the participants. Lardge v. Concrete Products Mfg. Co., 251 S.W.2d 49 [Mo.1952], and in Foster v. Aines Farm Dairy Co., 263 S.W.2d 421 [Mo.1953], where the fatal quarrel was triggered by the participants’ community of interests in the victim’s wife. We find that although there was no community of interest in Lloyd Adams’ wife, Adams thought the employee was interested in his (Adam’s) wife and unfortunately it triggered a tragic result.”

Thus, the findings of the Commission definitely placed Adams’ assault upon claimant in the second category delineated in Lieb-man, i. e., those committed in the course of private quarrels purely personal to the participants, and accordingly the Commission denied compensation for resulting injury as has been done consistently in this category of cases, not only in Missouri [Person v. Scullin Steel Co., supra; Foster v. Aines Farm Dairy Co., supra; Lardge v. Concrete Products Mfg. Co., supra ], but also in other jurisdictions.

The statutory injunction that the Workmen’s Compensation Law “shall be liberally construed with a view to the public welfare” [§ 287.800, RSMo 1959, V.A.M.S., as amended Laws 1965, p. 397], of which claimant’s counsel reminds us, neither impinges upon the function and right of the Industrial Commission, as trier of the facts, to draw from the evidence such inferences and findings as may be fairly and reasonably permissible [Johnson v. Simpson Oil Co., 394 S.W.2d 91, 98(14) (Mo.App.1965); Gregory v. Lewis Sales Co., supra, 348 S.W.2d at 747 — 748(6)] nor authorizes allowance of a claim lacking an essential element required by law. Finerson v. Century Electric Co., 227 S.W.2d 740, 745(6) (Mo.1950); Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165,167(1) (1949); Selvey v. Robertson, supra, 468 S.W.2d at 216(5); Hogue v. Wurdack, 298 S.W.2d 492, 500(20) (Mo.App.1957); Long v. Schultz Shoe Co., 257 S.W.2d 211, 214(6) (Mo.App.1953).

Without reraking and resifting the facts, we record our conclusion that, upon the record before us, the Industrial Commission reasonably could have found, as it did, that claimant’s accident and resulting injuries did not arise out of his employment, and that accordingly the judgment of the circuit court affirming the final award of the Commission denying compensation should be and is here affirmed.

BILLINGS, C. J., and HOGAN and TITUS, JJ., concur.

FLANIGAN, J., not participating.

      . § 287.120(1), RSMo 1959, V.A.M.S., as amended by Laws 1965, p. 400, which was the applicable statutory provision on June 28, 1969, the date of accident, read as follows: “1. If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.”

      . The applicable statutory provision on June 28, 1969, the date of claimant’s accident, as heretofore quoted in note 1, was amended Laws 1969, p. 390 [H.B. 367 effective October 13, 1969], by addition of the following sentence at the end of the otherwise unchanged text of § 287.120(1): “The term ‘accident’ as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.” In Person, the Supreme Court held that thereby assaults in the third category outlined in Liebman, i. e., those of neutral origin, became compensable but not those in the second category, i. e., those committed in the course of private quarrels that are purely personal to the participants.

      . E. g., Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972) (male grocery store employee and female coemployee killed in • store by her jealous husband); Belden Hotel Co. v. Industrial Commission, 44 Ill.2d 253, 255 N.E.2d 439 (1970) (male hotel employee killed in hotel by jealous husband of hotel maid); Graham v. Graham, Okl., 390 P.2d . 892 (1964) (male cafe employee and female coemployee killed in cafe by her jealous husband); Wood v. Aetna Casualty & Surety Co., 116 Ga.App. 284, 157 S.E.2d 60 (1967) (male supermarket employee killed in store by jealous husband of former female supermarket coemployee); City of Prestonsburg v. Gray, Ky„ 341 S.W.2d 257 (1960) (fire chief in his quarters at fire station killed by disgruntled displaced fire chief); Liberty Mutual Ins. Co. v. Upton, Tex.Civ. App., 492 S.W.2d 623 (1973) (saleslady on duty in dry goods store killed by ex-husband).


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    Garland D. BOOTH and Delores Booth, Appellants, v. Phillip Terry RAUCH, Respondent.
    No. KCD 26912.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Gary C. Clifton, Robert E. Stewart, Kansas City, for appellants.
    James 0. Turner, Downs, Pierce & Turner, St. Joseph, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Plaintiffs obtained a verdict and judgment against defendant for $10,000 for injuries sustained by Garland Booth and $1,000 in favor of his wife for her loss of his services. The trial court sustained defendant’s motion for a new trial on the grounds it had erred in giving MAI 31.07. Plaintiffs appeal the order of the court setting aside the judgment entered on the verdict and granting the defendant a new trial.

Garland Booth was injured while driving an automobile transport tractor-trailer unit when the tractor portion was struck by an automobile operated by the defendant. Pri- or to trial, defendant’s counsel admitted negligence and the court stated to counsel that “the only issue to be for trial before the jury will be as to the extent of damages”.

Plaintiff introduced evidence concerning his injuries received in the accident by testifying himself and through the testimony of his wife and the depositions of two physicians. This evidence revealed that plaintiff was complaining of constant pain in his cervical spine which interfered with his sleeping and his truck driving ability, and complained that such pain occasionally radiated into his right arm and hand. He also claimed that a cyst at the base of his right thumb was caused in the accident. Both of the doctors who saw plaintiff stated in their opinion all of the complaints the plaintiff made had their origin in plaintiff’s accident with the defendant. With reference to the right thumb, plaintiff claimed to have been completely free of any complaints prior to the accident. He stated the right thumb became extremely painful and swollen immediately after the accident and it was at this point the doctors later diagnosed a cystic lesion on the bone. This lesion was surgically removed by Dr. Vilmer. Dr. Vil-mer stated he could not be certain the cyst existed prior to the accident, but said it was entirely possible for such cyst to have been present but not to have been causing plaintiff any difficulty until the thumb, at the point where the cyst would have been located, was struck. Dr. Vilmer then attributed the difficulty which plaintiff experienced with this cyst, consisting of pain and weakness in grip, to the accident, even if the cyst did exist prior to the accident.

Defendant’s evidence consisted solely of the physician who examined plaintiff at the request of defendant. He stated his “findings essentially were limited to the fact he reportedly had had his hand operated on”. This physician stated plaintiff had a diminished grip in his right hand because the plaintiff said it hurt. However, the physician could find no reason for the pain. He did acknowledge the presence of the surgical scar, but stated he could find no limitation of motion or any other difficulty with the right thumb or hand. On cross-examination, this physician acknowledged the existence of a radiology report which had been made to him in response to his request for certain x-ray studies of the plaintiff, which stated there was evidence of post traumatic arthritis in the plaintiff’s right hand. This was consistent with Dr. Vil-mer’s finding. Although the physician stated he gave the plaintiff a general physical examination, defendant’s counsel, in examining the physician, largely dwelled on the absence of any objective findings with reference to disability in the right hand and thumb. Defendant’s counsel made no attempt to elicit any information from the physician with reference to whether or not the plaintiff had actually suffered any injuries in the accident.

At the close of all the evidence, plaintiffs filed a motion for a directed verdict in which it was alleged the defendant was guilty of negligence as a matter of law; there was no issue of plaintiff’s contributory negligence or other affirmative defense; there was no evidence from which the jury could find the defendant was not negligent and the evidence was undisputed that plaintiffs were entitled to damages as result of the accident. The court sustained this motion and in its instructions gave MAI 31.07 which was modified only to the extent of inserting the plaintiff’s name therein. This instruction was given also with reference to plaintiff’s wife and was modified only to the extent of inserting her name in such instruction. These instructions were numbered 3 and 4 and read as follows:

“INSTRUCTION NO. 3
Under the law the defendant is liable to plaintiff, Garland Booth, for damages in this case. Therefore, you must find the issues in favor of plaintiff Garland Booth, and award the plaintiff, Garland Booth, such sum as you believe will fairly and justly compensate him for any damages you believe he sustained, and is reason-' ably certain to sustain in the future, as a direct result of the occurrence mentioned in the evidence.”

(Instruction No. 4 was identical except it contained the name of Delores Booth).

The trial court found it had committed error in giving Instructions 3 and 4 because of the decision of this court in Watts v. Handley, 427 S.W.2d 272 (Mo.App.1968).

On this appeal, plaintiff claims the court properly gave Instructions 3 and 4 because the defendant had admitted negligence and defendant’s medical testimony admitted causation and resulting injuries to the plaintiff and because defendant’s counsel had judicially admitted in his closing argument that the plaintiff was entitled to recover something. Defendant counters by relying on Watts, and by denying any judicial admission.

The general rule undoubtedly is “to the effect that a party asserting the affirmative of a determinative issue and proof of it is necessary to establish the fact is not entitled to a directed verdict where his proof rests on oral testimony although the opposing party offers no evidence on the issue, as the truth and weight of his evidence, the credibility of his witnesses, remains an issue for the jury. This general rule is not applicable to unusual situations . where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim or an affirmative defense”. Rogers v. Thompson, 364 . Mo. 605, 265 S.W.2d 282, 287[1] (banc 1954).

This court had occasion to extensively examine the above stated exception in Jackson v. Security Ben. Ass'n 235 Mo.App. 368, 139 S.W.2d 1014 (1939). In that case this court stated at 139 S.W.2d 1021: “ ‘What all parties to a litigation treat and assume as a fact during the entire progress of the trial before the court, the court, without error, may assume, for convenience in drafting its instructions to the jury, and further, that the issue upon that fact has been withdrawn from the controversy, and confined to the narrow compass embraced within the radius of the testimony offered. . It is but the common observation of all courts that counsel ordinarily, in no uncertain terms, indicate whether there is a real dispute as to the certain facts involved in the proceeding, and the dispute, if seriously and really made, will always manifest itself during the progress of the trial, in the examination and cross-examination of the witnesses and the instructions requested at the close of all the testimony.’ ”

Examining the record in this case with the foregoing rules in mind, it is manifest the defendant was not contending that plaintiff received absolutely no injuries in the accident in question but was contending the cyst, and the resulting complaints concerning it, did not result from this accident. This was brought out in the cross-examination which defendant made of plaintiffs witnesses, and in the direct examination made by defendant of his own medical expert. In short, it was clear defendant was not contending a total absence of any injuries on the part of plaintiff, but was concerned with trying to minimize those injuries by excluding the cyst and the subsequent surgery thereon as being included in the injuries which plaintiff did receive. It is likewise apparent the trial court took this view of this situation when it sustained the motion for a directed verdict which included the allegation that the evidence was undisputed that plaintiffs were entitled to damages.

While defendant’s final argument did not come until after the court had sustained the motion for directed verdict, it nevertheless bears out the trial court’s view of defendant’s position. In his closing argument, counsel for defendant began with the usual word of appreciation to the jury for their attention. Counsel then read the first sentence of Instruction No. 3 which told the jury under the law the defendant was liable to the plaintiff for damages in this case. Defendant’s counsel then stated: “Under these instructions we don’t take any issue with this”. Counsel thereupon read the balance of Instruction No. 3. Counsel then launched an argument on the theme the plaintiff had known Dr. Vilmer prior to the accident and raised the question as to why plaintiff had waited almost two years after the accident to consult Dr. Vilmer with reference to his thumb. Counsel then stated he did not deny plaintiff had a cyst on his thumb but stated the defendant was not liable for this cystic lesion. Counsel then argued there was evidence from which the jury could infer the cystic lesion was not the result of the accident because it took plaintiff almost two years in which to consult Dr. Vilmer about the cyst. He argued that plaintiff knew Dr. Vilmer and rated him as “one of the best” and certainly if the cyst had resulted from the accident, plaintiff would have consulted Dr. Vilmer much sooner.

After this line of reasoning, counsel then stated: “I don’t say this man isn’t entitled to recover something. He has indicated something, I think he stated the hospital bill was something like a thousand dollars and the doctor bill for Vilmer was something like $400 and the other doctors, I think balanced out the difference, but we think you are right in the area where this case is worth if we give him every benefit of the doubt”.

Counsel then took up plaintiff’s claim for loss of wages and argued the evidence was not sufficiently clear for the jury to make a finding on the amount. With that, counsel concluded his closing argument.

It is worthy of note that counsel in his closing argument did not argue plaintiff did not sustain any injury in the accident. Rather, his sole argument is directed at the cystic lesion and the indefinite evidence which plaintiff produced concerning his loss of wages. Of greater import, however, are the plain admissions which counsel made. First, counsel had no argument with the Instruction which told the jury the defendant was liable to the plaintiff for damages. Next, was his statement he did not say the man was not entitled to recover something. Next was his statement the hospital bill together with the doctor bills would be in the area “where this case is worth”.

It is true counsel added the statement “if we give him every benefit of the doubt” after his statement indicating the value of the case was in the area of the total of the hospital and doctor bills. Defendant now argues such addendum to his statement indicated he was arguing this was the value if the jury believed all of the plaintiff’s evidence and none of the defendant’s evidence. However, it is clear from defendant’s entire argument the meaning defendant intended was simply to resolve the doubt concerning the cyst in plaintiff’s favor, but only to the extent of including Dr. Vilmer’s bill. That was the only part of plaintiff’s claim which counsel had questioned up to the time this statement was made, and Dr. Vilmer was the only doctor who operated on plaintiff for this condition. Thus, by including Dr. Vilmer’s bill, along with the hospital and other doctor bills, it is clear counsel was only referring to the doubt he had raised concerning the cyst, and by including Dr. Vilmer’s bill, he was indeed giving plaintiff the benefit of all the doubt which existed according to the defendant. Since counsel, either prior or subsequent to the statement concerning doubt, had never mentioned the total absence of any injury to the plaintiff, there is no basis to conclude defendant was actually arguing an absence of damage by this single isolated phrase.

In view of the position which defendant assumed during the examination and cross-examination of the witnesses, and especially in view of the admissions which were made in the closing argument, it cannot be disputed the defendant’s position throughout the entire trial was that plaintiff suffered some injuries, but the only dispute actually existed with reference to the causation of the cystic lesion.

This is the distinguishing feature between this case and Watts. In Watts the court stated the entire trial was fought out on the issue of whether or not plaintiff had suffered any injuries in the accident. The court there found the defendant denied the plaintiff had suffered any injury, and further held a statement made by defendant’s counsel in his opening statement did not constitute a judicial admission. Since the defendant’s position in this case is completely different from the defendant’s position in Watts, it follows the Watts case is not controlling in this case.

Here the position assumed by the defendant falls squarely within the exception to the general rule announced in Rogers and Jackson. The court simply assumed as true that plaintiff sustained some damage, even as defendant had by his conduct during trial, confirmed by his explicit statements in final argument. The measure or amount of such damage was properly left to the jury. For that reason, the court correctly directed a verdict in favor of the plaintiff concerning the issue of damages. It necessarily follows the giving of Instructions No. 3 and 4 was correct. The judgment of the trial court is, therefore, reversed and this cause is remanded with directions to reinstate the verdict and judgment in favor of both plaintiffs as of the date of that verdict.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Tomas G. ERVIN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27187.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Ronald M. Sokol, Public Defender, St. Joseph, for appellant; Daniel A. Radke, Certified Law Interne, on brief.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFPORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial,' after evidentiary hearing, of motion under Rule 27.26, V.A. M.R., to vacate and set aside judgment of conviction and sentence to life imprisonment for murder, second degree.

On January 31, 1969, in the Circuit Court of Buchanan County before the Honorable William H. Kimberlin, Judge, Tomas G. Er-vin, born January 29, 1951, pleaded guilty to murder, second degree, reduced from a charge of murder, first degree, of Robert Berry by stabbing in the course of a robbery of Robert Berry on October 6, 1967.

As grounds for relief, movant asserted that he was denied due process and equal protection of law in that:

(a) His conviction and sentence were obtained by a guilty plea induced by threats, inducements, coercion and promises by police officers and prosecution officials during his pretrial confinement;

(b) He was taken into custody by St. Joseph policemen and subjected to illegal detention, hostile and protracted interrogation by detectives at the police station without benefit of advice of his constitutional rights, or family, friend, or counsel, which resulted in statements, purported to be a confession;

(c) He was sixteen years of age at the time of his arrest and was treated by police officers, juvenile authorities, and the prosecuting attorney in a manner which violated his constitutional rights and rights as a juvenile which, because of his youth and inexperience, he was unable to legally, knowingly, and voluntarily waive;

(d) Evidence instrumental in coercing his guilty plea resulted from illegal search and seizure by St. Joseph policemen without warrant, valid waiver, or as an incident to arrest;

(e) He was denied compulsory process for two witnesses at preliminary hearing;

(f) He was “otherwise induced” to plead guilty to the reduced charge rather than to stand trial on the charge of murder, first degree;

(g) Although accorded psychiatric examination, no hearing or inquiry was held to judicially determine that defendant was, in fact, legally competent to stand trial;

(h) The juvenile court received and considered a social history report on defendant at a hearing October 19,1967, subsequent to which the court dismissed the petition of the juvenile officer to permit prosecution under the general law, without first making said document timely available to defendant and his attorneys.

Although in conflict, particularly with respect to whether defendant was properly advised of his rights, whether he was accorded his rights as a juvenile, whether he was threatened, and whether he suffered mistreatment in pretrial confinement, the evidence warrants the following statement:

On October 10, 1967, Police Detectives Tony Marsola and Bill Piner, at the direction of Chief of Detectives Vern Starmer, together with Deputy Juvenile Officer Larry Whittington, went to St. Joseph Central High School at about 11:35 a. m., to bring Tomas G. Ervin, a juvenile, to the St. Joseph police station. The murder of Robert Berry had occurred on October 6, 1967, and, in the interim, the juvenile had stated to several friends that he had committed the murder. One friend in particular, Randy Kerns, was given the details of the crime before his friend’s part in it was suspected; and, at his father’s insistence, Randy gave this information to the police. The juvenile was awaiting the party in the office of the vice-principal, Donald Trout. He was advised that the juvenile officer, Leroy Maxwell, wanted to see him; and, according to Detective Marsola, “Whittington as juvenile officer read him his rights and then we just escorted him to the police station.”

At the police station, movant was questioned by Mr. Maxwell, the juvenile officer. The interview took place in Chief Starmer’s office with several other officers, including the prosecuting attorney, present. Prior to the interview, Mr. Maxwell advised the juvenile of his constitutional rights with respect to interrogation, including the right to counsel and to have a lawyer appointed for him if he could not afford one. He also was advised that he could have his mother and an attorney present, but he did not wish to have either present. He admitted that he committed the murder and gave a statement which was taken in shorthand and transcribed by the prosecuting attorney’s secretary. Defendant testified that he was threatened during the interview by Chief Starmer; officers present denied the use of any threat or coercion.

At about 1:00 p. m. on the day of the arrest and questioning, Detectives Marsola and Piner went to the business school attended by defendant’s mother, informed her that her son was at the police station, and transported her there. She was also informed that her son was suspected in the murder of Robert Berry and, after she talked to her son, she called an attorney, Mr. J. W. Roberts. On his advice, she caused the questioning to cease and consented to a search of her home. Detectives Marsola and Piner, in the presence of defendant and his mother, searched the house on two occasions and obtained certain physical evidence including a knife, some money, and clothing worn by defendant at the time of the murder.

In the evening of October 10, the juvenile was taken to the juvenile cell in the Buchanan County jail where he was detained under order of Judge Connett of the Juvenile Court pending proceedings instituted in his interest in the Juvenile Court on petition of the juvenile officer. During the pendency of the proceedings in the Juvenile Court he had the services of Mr. Robert Randolph, an attorney appointed in his behalf by the Juvenile Court. Mr. Randolph refused permission for any further interviews of defendant other than those connected with the social history conducted by the juvenile officer.

The first hearing accorded defendant in Juvenile Court was recessed for purposes of psychiatric examinations. Ultimately, on November 30, 1967, a hearing was accorded in Juvenile Court at which defendant was present with his counsel who had access to the social history report and the report of psychiatric examination. After the hearing, the Juvenile Court found that defendant was not a proper subject to be dealt with under the Juvenile Code, and dismissed the petition of the juvenile officer to permit prosecution of the defendant as an adult. He was then released from the juvenile cell and confined in the general adult prison population area.

Attorneys Don Pierce, Frank K. Nichols, and Phillip H. Schwarz were appointed and represented defendant pending and during preliminary hearing, arraignment, preparation for trial, pleading, and sentencing.

While awaiting trial, defendant claims to have been threatened, abused, harassed, and intimidated by the sheriff and his deputies, all of which was disputed by the officers involved. Physical conditions at the jail were bad and the facilities were inadequate.

At the preliminary hearing, defendant’s attorneys sought a continuance to secure the presence of two witnesses. The continuance was denied and the hearing proceeded over their objection. There is no record to show any refusal of process for securing such witnesses.

Defendant conferred with counsel and his parents prior to pleading guilty to the reduced charge of murder, second degree. Mr. Nichols made notes of counsel’s conferences with their client, and his testimony from such notes shows that defendant was made aware of all facts, conditions, and circumstances surrounding his guilty plea including, among others, the probability of conviction if he took his case to a jury, the possibility of the death penalty, the range of. punishment, and the prospects of probation and parole.

Mr. Nichols spent many hours over the period of a year with defendant. Defendant told him he committed the murder, how it was committed, and for what reason. In preparing for a motion to suppress evidence, he interviewed the juvenile and police officers and the associates of defendant whom he told of his crime. He recalled one boy in particular, Randy Kerns, because defendant had told him of the crime prior to anything that transpired at the police station.

Mr. Nichols also prepared a memorandum ' which he presented to defendant in the presence of cocounsel and defendant’s parents:

“The following is an outline of the law and facts that apply to your case and which we want you to consider very carefully before deciding whether or not to enter a plea of guilty to second degree murder with the recommendation of life imprisonment by the prosecutor. You have been charged with first degree murder under the felony murder rule. We have moved to suppress the use of your confession, the physical evidence, the knife, the check, clothes, money clip, etc., the statement of Randy Kerns, and the other four boys. This motion has been overruled which means that the Judge * ⅝ will let them be used at your trial, notwithstanding our objection. Thus, at your trial the prosecution can introduce your confessions made in front of many * * * police officers and juvenile officers, your confessions made to five of your high school friends, the fact that you took the police to your home and gave them objects known to have previously been in possession of the cab driver. The jury will then have several alternatives as to their verdict. One, first degree murder. If convicted of this they must assess a penalty of either death or life imprisonment. We do not feel that the jury will assess the death penalty or if they did that it would ever be carried out, but it is a possibility that must be considered. Second, is second degree murder. If the judge instructs the jury that they may find you guilty of second degree murder, then the jury may assess a penalty of anything between ten years and life imprisonment. However, from the evidence in the case, such an instruction would not be mandatory and we feel that there is only a limited chance that the judge would even allow the jury to find you guilty of second degree murder. Third, manslaughter. We do not feel that there is any chance at all that the judge would allow the jury to find you guilty of manslaughter. In part, because it only carries a maximum sentence of ten years, and primarily because the evidence would not be such as to reasonably allow such a conviction. Fourth, acquittal. With the evidence available to the prosecution at this time the chances of acquittal are almost zero. Therefore, with all the evidence now being admissible, we feel that at trial the jury would either give you life imprisonment or a long stated period of years. Because of the unwritten policy of the parole board in Missouri it now appears that they will consider parole on a life sentence after serving ten years, but considered on a stated term of years only after one third of the years are served. We can, therefore, see that you would have to wait twenty five years to be considered for parole on a seventy five year term but only ten years on a life sentence. This fact alone is the strongest reason for pleading guilty and accepting a sentence of life imprisonment. If you plead guilty to second degree murder with the recommendation of life imprisonment, you will avoid the possibility of a death sentence or the possibility of receiving a long stated number of years. However, you will give up your chances of acquittal however remote it may be and you will give up the possibility the jury would give you a light sentence of ten years or more. We feel that your confession obtained by the juvenile officer at the police station with the police and prosecutor present but before you saw your mother and lawyer was unconstitutionally obtained and would eventually be held by a higher court to be inadmissible. We further feel that since the juvenile officer was instructed by your lawyer to stop questioning but instead continued and had you go to your home and present the police with physical evidence that this also violated your constitutional rights and is inadmissible. We feel the same about the use of the four boys to whom you confessed because their names were given to the police by you before you were actually protected. However, Randy Kerns came to the attention of the police because his father told them he thought Randy had information about the killing. Therefore, we feel his testimony will always be admissible and sufficient to convict since you confessed and gave him details of the crime before it was public knowledge. In summary we feel there’s been a flagrant violation of your rights and that if the prosecution used your confession or the physical evidence, that there is a very good chance the trial court would later be reversed, that you would be given a new trial. At that new trial the confession and/or the physical evidence would not be admitted. However, even if all these things were [not] admitted, Randy Kerns would remain and we feel that while the prosecution’s case would be substantially weakened that you would still be convicted. This, we feel at a trial and appeal would be of benefit to society in general and that the police and juvenile officers would probably be made aware of the fact that juvenile offenders are entitled to better treatment than you received. However, we do not feel that this would do anything for you personally because of Randy Kerns. You’ve been offered a chance to plead guilty to second degree murder and receive a recommendation of life imprisonment. We want you to consider the matter very carefully, consult with your mother, and make a decision. We recommend that you accept it because of the reasons we have outlined. Unfortunately, we nor anyone else can give you any absolute assurance this is the best course of action. Should you decide you want a trial we will accept your decision and defend you to the limit of our abilities.”

Defendant made his own decision to plead guilty. He did not complain to counsel of any specific item of mistreatment; he did not suggest he was pleading guilty simply to get out of the jail; he was not prompted how to answer questions that might be propounded by Judge Kimberlin; he did not suggest that he was pleading guilty as a result of any threats or promises. . He did consider the matter of pleading guilty to murder, second degree, as opposed to a trial or plea of guilty of murder, first degree.

There was no mention of the psychiatric examinations at the time defendant pleaded guilty nor is there any record presented concerning their content.

Upon conclusion of the evidentiary hearing, the special judge, the Honorable John M. Yeaman, made a number of findings of fact and conclusions of law. Their substance was that defendant was guilty of the murder of Robert Berry, that he pleaded guilty voluntarily to a charge of murder, second degree, resulting from that murder, and that by his guilty plea, he waived defects, if any, in the proceedings preliminary to his guilty plea.

Appellant contends: (I) that the court erred in determining his guilty plea to have been voluntarily made. He asserts (A) that his guilty plea was coerced by physical and psychological effects of incarceration; (B) that it was motivated by fear of consequences of admission, if so, of unlawfully and unconstitutionally obtained statements and physical evidence; and (C) that it was entered involuntarily in order to avoid the possibility of capital punishment.

The insurmountable difficulty with this contention and its accompanying assertions is that such allegations, if true, were at most defects which were waived by his subsequent guilty plea. Kunkel v. State, 501 S.W.2d 52 (Mo.1973); Beach v. State, 488 S.W.2d 652 (Mo.1972); McClure v. State, 470 S.W.2d 548 (Mo.1971). See also Durant v. State, 523 S.W.2d 837 (Mo.App.C.D.1975).

Specifically, appellant’s assertion that his guilty plea was induced by the conditions of his jail servitude while awaiting trial does not support relief in this proceeding because dissatisfaction with penal conditions and a hope that by a guilty plea a different kind of incarceration might be achieved are not for consideration on a motion to vacate sentence on the ground of involuntariness of the guilty plea. Collins v. State, 450 S.W.2d 186, 190[5] (Mo.1970); Coleman v. State, 473 S.W.2d 692, 693-694 (Mo.1971); Beach v. State, supra, 488 S.W.2d 1. c. 655[6],

Similarly, claims of illegal search and seizure cannot be raised in proceedings under Rule 27.26, V.A.M.R., Beach v. State, supra, 488 S.W.2d 1. c. 655[5]; and if a defendant’s plea of guilty is otherwise voluntarily and understandably made, as will be determined later, existence of and the possibility of the use in evidence of an allegedly inadmissible confession are not sufficient reasons to vacate the judgment and sentence which followed the guilty plea. Maxwell v. State, 459 S.W.2d 388, 392[2] (Mo.1970); Beach v. State, supra, 488 S.W.2d l. c. 655[4],

Finally, it is settled that a guilty plea is not invalid simply because it was entered to avoid the possibility of the death penalty. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Skaggs v. State, 476 S.W.2d 524, 528[6] (Mo.1972). And there is nothing in this record to suggest undisclosed improper plea bargaining which called for the reversal of Shelton v. United States, 246 F.2d 571 (5th Cir. 1957), in Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).

On the merits, the evidence on the question of defendant’s pretrial confinement treatment is in conflict. He asserts he was psychologically and physically abused; witnesses for the State denied all such allegations. If appellant’s version is accepted, the issue is not whether conduct of the officers was justified. The disposi-tive issue is whether under all the circumstances it may not be said that defendant’s treatment while in jail had no effect on his guilty plea. Brodkowicz v. State, 474 S.W.2d 822, 827 (Mo.1971).

Also under Point I, appellant asserts (D) and (E) that under the totality of circumstances surrounding his guilty plea, it was an involuntary and unintelligent act as a matter of law entered without understanding of the nature of the charge and the consequences of the plea.

Appellant first states his position to be “that Judge Kimberlin’s cursory inquiry of Ervin at the plea hearing was totally inadequate. Not only did the Judge fail to adequately address the defendant personally in order to determine that he was making a voluntary and intelligent plea, but he also failed to apprise defendant that in entering the plea of guilty, he was waiving his constitutional rights to trial by jury, privilege ■ against self-incrimination, and opportunity to confront and examine witnesses as well as waiving the issues raised by the Motion to Suppress.”

This contention is beset by three difficulties. First, no such ground for relief was presented to the trial court as required by Rule 27.26, supra. Second, appellant did not favor Judge Teaman with any transcript of the plea proceedings at the hearing on his motion under Rule 27.26, nor has he furnished any such transcript to this court. Third, on its merits, the absence of a demonstration of compliance with Rule 25.04 does not require that the plea be set aside if, as in this case, the evidence at the hearing under Rule 27.26 shows that defendant’s plea was voluntary. State v. Mountjoy, 420 S.W.2d 316 (Mo.1967).

Appellant’s position on the totality of circumstances refers to the age of defendant and the effects of alleged irregularities in the proceedings beginning with his arrest and ending with his plea of guilty.

The evidence shows that Tomas G. Ervin was a nearly 17-year-old juvenile when first taken into custody and that he was an 18-year-old adult when he pleaded guilty to a reduced charge of murder, second degree. His testimony demonstrates his ability to understand and to articulate. He was represented during the time in question by five attorneys,- and he communicated regularly with his parents. The testimony of Mr. Frank K. Nichols, alone, is sufficient to show that defendant was advised of all his rights and the consequences of a guilty plea and that he pleaded guilty voluntarily. Such testimony, together with defendant’s testimony and admissions is conclusive that defendant’s plea of guilty was voluntary and entered with assistance of competent counsel. For a remarkably similar case, see Kunkel v. State, supra, where a 16-year-old defendant claimed that the existence of ille-gaily seized evidence and a confession obtained in violation of Ms rights as a juvenile under the Juvenile Code, particularly Section 211.081, RSMo 1969, Y.A.M.S., caused his plea to be involuntary. The court held that such circumstances did not require vacation of the judgment and sentence resulting from his guilty plea because the evidence showed it was voluntarily and understandingly entered. See also Beach v. State, supra, where a 16-month delay between arrest and trial, an illegally obtained confession, alleged illegal search and seizure of evidence, failure to accord hearing on pro se motions, alleged lack of medical care, and improper sanitation and exercise facilities were present. The court held that despite defendant’s claim that all such combined to degrade his mental attitude so as to preclude an intelligent and voluntary guilty plea, a finding on other evidence that defendant knowingly and voluntarily pleaded guilty was not erroneous in a proceeding under Rule 27.26.

Appellant contends (II) that the court failed to make findings and conclusions on his claim of denial of rights by juvenile authorities and the juvenile court. His argument refers to the matters in point (c) of his motion to vacate and concludes, “Assuming the certification of appellant from the Juvenile Court was improper, the Trial Court would have been without jurisdiction to accept the plea or enter judgment thereon.”

This contention is answered in the court’s Conclusions of Law: “In further answer to Movant’s arguments, even if Movant was denied due process and/or equal protection of the laws because his guilty plea was not voluntarily entered, or if his confessions were obtained in violation of his rights as a juvenile, or if some of the State’s evidence was eventually found inadmissible due to an improper search and seizure, he nevertheless cannot prevail since the record establishes that his plea of guilty was in fact voluntary and entered with the assistance of competent counsel. The Movant’s voluntary plea of guilty waived such procedural defects, if any, in the proceedings preliminary to the plea. The decision of McClure v. State [Mo.], 470 S.W.2d 548 (1971) is in concurrence with the above reasoning. Also in accord see Kunkel v. State [Mo.], 501 S.W.2d 52 (1973).”

Appellant contends (III) that the court failed to make findings and conclusions on his claim of denial of compulsory process for defense witnesses at preliminary hearing.

This as a ground for relief was asserted in point (e) of his motion; however, the record fails to show any evidence to have been proffered in support of the assertion. Consequently, there was nothing to require a finding or conclusion by the trial court on the matter and there is nothing for review in this court. Smith v. State, 513 S.W.2d 407, 410[1] (Mo. banc 1974).

Appellant contends (IV) that the court erred in finding that defendant waived a hearing on his claim of incompetence to stand trial before Judge Kimberlin in that “there was no evidentiary basis therefor.”

Appellant would support this contention with references to “Exhibit A — Transcript of proceedings before The Honorable William H. Kimberlin * * * ” which he asserts is a transcript of his guilty plea proceedings.

Once again, it is noted that no such transcript was furnished to Judge Yeaman or to this court for a review of the matter, and it is appellant’s responsibility to cause a transcript to be prepared and filed covering all issues he wishes ruled and reviewed. Jackson v. State, 514 S.W.2d 532, 533-53411-8] (Mo.1974).

The record in this case shows no question of the findings of the alleged psychiatric examinations by either the defendant or the State. Nor does it indicate any circumstances which would render any such psychiatric examinations suspect. Accordingly, under Section 552.020(6), RSMo 1969, Judge Kimberlin was not obliged to inquire into defendant’s competence sua sponte, Miller v. State, 498 S.W.2d 79 (Mo.App.1973); Newbold v. State, 492 S.W.2d 809 (Mo.1973); and it may not be said that Judge Yeaman’s finding that defendant waived any such question by his guilty plea is erroneous.

Judgment affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    George W. BOLLIN, Appellant, v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Respondent.
    No. KCB 27547.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Dean P. Arnold, B. W. Jacob, Kansas City, for appellant; Bagby, Benjamin & Arnold, Kansas City, of counsel.
    Hollis H. Hanover, Kansas City, for respondent; Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Appellant sought construction of an insurance contract issued by the respondent, under the exclusion provisions thereof upon which the respondent had denied him coverage for an automobile accident. Appellant asks for a declaratory judgment that coverage was afforded thereunder and for reasonable attorney’s fees for defense of a suit arising out of the accident. The court below denied relief on the basis of two exclusion clauses in the policy, and this appeal followed.

The parties entered into a stipulation of facts, upon which the case was submitted, which was as follows:

“STIPULATION OF FACTS
******
1. Defendant is a corporation duly organized and existing according to the law and operates an insurance business.
2. At all times contemplated by the above action, there was in force and ef-feet, defendant’s policy of automobile insurance issued to the plaintiff, a copy of the relevant portion of which is attached hereto and marked Exhibit A.
3. That Jett Motor Company of Kansas City, Missouri and Hubacher Cadillac of Sacramento, California are business entities engaged in the automobile business.
4. That prior to April 10, 1971, Jett Motors of Kansas City, Missouri had possession of a 1970 Cadillac which, in the course of the operation of its automobile business, it had sold to Hubacher Cadillac of Sacramento, California.
5. That in order to complete the transaction between Jett and Hubacher, it was necessary for Jett to procure the transporting and delivery of the aforementioned Cadillac automobile to Hu-bacher.
6. That the transportation of the Cadillac automobile between Jett and Hu-bacher was a part of the automobile business of Jett and Hubacher.
7. That in furtherance of plaintiff’s personal interests to visit a relative and prior to April 10, 1971, plaintiff entered into an agreement with Jett whereby plaintiff agreed to transport the above mentioned Cadillac to Hubacher Cadillac. Plaintiff received nothing as compensation therefor, other than his transportation to California. This was the only time plaintiff entered into such arrangement.
8. That on or about April 10, 1971, and while plaintiff was engaged in transporting the aforementioned Cadillac from Jett Motors in Kansas City, Missouri to Hubacher Cadillac in Sacramento, California, he was involved in a one-car accident wherein the Cadillac in his charge left the road and sustained damage.
9. There is no evidence that plaintiff was guilty of any gross or wanton negligence, but only that the automobile left the road.
10. That at the time of the above described automobile accident, Hubacher Cadillac was insured by Universal Underwriters Insurance Company, and that company paid Hubacher for the damage to the Cadillac.
11. That thereafter there was filed before Magistrate J. J. Brady in Independence, Missouri, a lawsuit entitled Universal Underwriters Insurance Company, plaintiff, v. George W. Bollin, Jr., defendant, No. 43505, which is still pending on appeal to the Circuit Court.
12. That after the filing of said lawsuit plaintiff made the demand of defendant that defendant assume the defense of said lawsuit, which defendant refused to do.”
The insuring portion of the contract reads:
“Coverage 1 — Bodily Injury Liability: Coverage 2 — Property Damage Liability. To pay on behalf of the assured all sums which the assured shall become legally obligated to pay as damages because of:
⅝ * * * * *
2. injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the exchange shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the exchange may make such investigation and settlement of any claim or suit as it deems expedient.”

The court below found that coverage was not afforded to the insured under policy Exclusions (f)(1) and (g)(2), but since the Exclusion (f)(1) is decisive of this case, it is the only one which need be considered. It provides:

“Exclusions. This policy does not apply
* ⅛ ⅝ ⅜ sfc ⅜
(f) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in
(1) the automobile business of the assured or of any other person or organization;
* ⅜ *» (Emphasis supplied)

In the stipulation of facts above set forth, paragraph 6, the parties specifically agree that the transportation of the Cadillac in which the insured was engaged at the time of the loss “was a part of the automobile business of Jett and Hubaeher.” The unambiguous and clear exclusion of (f)(1) above set forth under the stipulated facts becomes operative and withdraws coverage under the policy.

But the insured asserts that he personally was not engaged in the automobile business during his journey to California; that such journey involved strictly a “one-time use” of the automobile by him for a personal (to visit relatives) and not a business reason; that such use of the non-owned automobile was clearly contemplated by his insurance policy; and that it afforded him protection and coverage for any liability imposed upon him as a result of such use and specifically the liability to the Universal Underwriters Insurance Company, Hubacher’s insurer, sought to be imposed in the pending lawsuit.

In support of this position, he places principal reliance upon the case of Helmich v. Northwestern Mutual Insurance Go., 376 F.2d 420 (CCA 7-1967), a case involving very similar facts but a policy exclusion provision vastly different and clearly distinguishable from the one involved here as above quoted. In Helmich, the exclusion clause provided in pertinent part, as follows:

“This policy does not apply * * *
(h) to a non-owned automobile while used
(1) in the automobile business by the insured * * *”

“Automobile business” was defined in the Helmich policy as “the business or occupation of selling, repairing, servicing, storing or parking of automobiles.” (376 F.2d, l.c. 422). The court in Helmich properly held that a student driving an automobile back to his school for an automobile dealer, solely for his own transportation and with no financial interest in the trip, was not within the above exclusion and definition. Hel-mich is not authoritative nor applicable to the case at bar.

The decisive question here is, not whether the appellant was himself engaged in the automobile business at the time of the accident, but rather whether he was engaged in the automobile business of “any other person or organization”, a question which must be answered in the affirmative by reason of the stipulated fact that he was engaged in the automobile business of Jett Motor Company and Hubaeher Cadillac.

The case of Western Casualty & Surety Company v. Verhulst, 471 S.W.2d 187 (Mo.1971) is dispositive of this case. In Western, the insured, Wuthrich, agreed with a Moberly, Missouri used car dealer, Wood, to drive a used car purchased by Wood in St. Louis to Kansas City for auction. Due to a mishap and at Wood’s direction, Wuthrich was obliged to drive the car from Columbia, Missouri back to Moberly rather than to Kansas City. En route an accident occurred which resulted in litigation. Wood’s insurance company paid its policy limits, but Wuthrich’s insurer denied him coverage under a policy exclusion, which provided, in pertinent part:

“(d) this insuring agreement does not apply to any automobile * * * (3) while maintained or used by any person while such person is employed or otherwise engaged in (i) the automobile business of the insured or of any other person or organization.” (Emphasis supplied)

The court in Western affirmed the judgment of the lower court in. a declaratory judgment action that the above exclusionary clause was applicable and that Wuth-rich’s liability was not covered under the policy, and said (471 S.W.2d, at l.c. 190):

“ * * * Mr. Wuthrich (the insured) may not have been engaged in the ‘automobile business’ in the sense or degree that Wood (the dealer) was but his trip that day and on several other occasions was certainly a necessary and integral part of Wood’s overall used-car business within the exclusionary clause of this pol-jCy * * * ”

The trial court properly held under the stipulated facts, the terms of the policy and the controlling law, that coverage was not afforded the appellant by reason of exclusion (f)(1), and it is therefore unnecessary to consider the other exclusionary clause (g)(2), brought to issue.

The judgment is affirmed.

All concur.


text:
    KANSAS CITY, Missouri, Respondent, v. Perry L. RAMSEY, Appellant.
    No. KCD 27499.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Allan J. Fanning, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis V. Beneeke, City Prosecutor, Michael L. Gat-rost, Asst. City Prosecutor, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The appellant was charged by the City of Kansas City with driving a motor vehicle while under the influence of intoxicating liquor. Upon an appeal from a conviction in the municipal court, he was found guilty of this charge by the court below, sitting without a jury, and was sentenced to 30 days at the Municipal Farm with probation to the Department of Community Services for a period of two years, on condition that he not drive during such probationary period. He appeals to this court.

' The appellant raises four points upon which he relies and requests a reversal of this conviction. The first three of these relate basically to an attack upon the jurisdiction of the circuit court. Appellant claims that the court erred in permitting the City to reopen its case to establish that the ordinance violation occurred within the municipal corporate limits of Kansas City, Missouri after the City had rested and the appellant had moved for a judgment of acquittal on the ground of failure to establish “territorial jurisdiction”. He asserts that this exposed him to double jeopardy. As an ancillary point, he asserts that under all the evidence the City failed to offer sufficient unconflicting proof to support the court’s finding beyond a reasonable doubt that the violation did, in fact, occur within the corporate limits of the city.

Appellant’s fourth point is that there was insufficient evidence upon which to find him guilty beyond a reasonable doubt of driving while under the influence of intoxicating liquor.

At 11:35 p. m. on October 15,1973 Officer Fracassa was driving southbound across the Missouri River on Chouteau Bridge at about the center of the bridge. Chouteau Bridge crosses the river in a general north-south direction, carries one lane of traffic in each direction, and it was conceded at the trial that the northern city limit of Kansas City, Missouri is at approximately the center of the bridge. In other words, approximately the south half of the bridge lies within and the north half without the city corporate limits.

Fracassa testified that when he was at about the center of the bridge, he observed the appellant’s automobile northbound approximately 50 to 75 yards south of him. The appellant’s vehicle was observed to swerve into the west bridge railing, back across the bridge roadway and into the east bridge railing, where it came to rest. He testified that he approached the appellant’s car and found appellant trying, unsuccessfully, to back his car away from the railing where it was stuck. He placed defendant in his automobile. Within a short time, appellant was placed under arrest at the scene by Officer W. K. Owings of the Kansas City, Missouri Police Department and charged with driving under the influence.

Officer Owings testified as to the location of appellant’s automobile against the east rail when he arrived at the scene; to scratch marks observed on the west and the east railings south of that point; and to damage to both sides of the vehicle. After the City was permitted to reopen its case, he testified that the north boundary line of Kansas City is the center of the Missouri River; that north of this boundary line would be the city of North Kansas City, and south of the line is Kansas City, Missouri. He was then interrogated as follows:

“Q Where was this vehicle?
A On the south boundary of the bridge.
Q Kansas City, Missouri?
A Yes.”

From Officers Fracassa and Owings it was elicited that they noticed the odor of alcohol about the appellant; his speech was incoherent, confused and rambling; his gait unsteady, wobbly and staggering; his eyes glassy, staring, and the pupils dilated; and both expressed the opinion that he was under the influence of intoxicating liquor.

The appellant testified that he was suffering from a heart condition; had suffered a stroke about three years previous to this occurrence, which had affected his gait and his speech; was a diabetic; and was under medication. He stated he had consumed two beers at a place called the “East Sider” about two miles from the scene of the accident.

The jurisdictional points raised by the appellant are ruled against him. There was ample testimony from Officer Fracassa from which the court could find that the ordinance violation did in fact occur south of the north city limits, and therefore within, Kansas City, Missouri, a fact clearly and unequivocally established by Officer Ow-ings when the City’s case was reopened. It was not error to permit the City to reopen its case.

It is well settled that the trial court has broad discretion as to the order of proof and the reopening of a case. State v. Robinson, 325 S.W.2d 465, 470[6, 7] (Mo.1959). The record at bar fails to show any abuse of that discretion. The parties agreed at trial that the pertinent municipal boundary line is located at about the center of the bridge. Detective Fracassa’s testimony clearly indicates that appellant’s vehicle came to rest on the south, Kansas City side, of the boundary. The subsequent reopening of the State’s ease did nothing more than to clarify a fact which was already sufficiently established. See State v. Haun, 324 S.W.2d 679, 682[6, 7] (Mo.1959).

The argument in this regard was that reopening the prosecution’s case violated the double jeopardy limitations of Art. 1, § 19, Constitution of Missouri, V.A.M.S., and of the common law. Our constitutional prohibition provides in relevant part: “. nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury . . ” (Emphasis supplied). Appellant had not been acquitted when the City’s case was reopened and thus this section is obviously inapplicable. Kansas City v. Henderson, 468 S.W.2d 48, 52 (Mo.1971); Kansas City v. Bott, 509 S.W.2d 42, 44 (Mo. banc 1974), and Murray v. State, 475 S.W.2d 67, 70 (Mo.1972). Likewise, the common law rule against double jeopardy finds no application here because the municipal court conviction appealed from does not constitute a separate prior conviction, and therefore the situation involved is not one of a second conviction for the same offense. Kansas City v. Henderson, supra, at l. c. 52. See also: State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930).

Appellant’s contention, that the evidence supplying proof of proper jurisdiction is insufficient, does not bear scrutiny. The testimony in that regard has been set out previously, and, as there indicated, is sufficient both prior to the hearing of additional evidence and as supplemented by Officer Owings.

Lastly, appellant complains (without citation of any authority) that there was insufficient evidence upon which to base a finding that he was under the influence of intoxicating liquor. He relies upon his own testimony to the effect he was suffering from, and taking medication for, diabetes, high blood pressure, and a heart condition. Nowhere, however, is there any evidence of how these circumstances might have resulted in the abundant symptoms of intoxication observed and testified to by Officers Fracassa and Owings. The officers’ testimony was substantial, State v. Roach, 480 S.W.2d 841 (Mo.1972); State v. Persell, 468 S.W.2d 719, 721[1] (Mo.App.1971), and the trial court was privileged to accept it to the exclusion of appellant’s speculative inferences.

For the reasons herein stated, the judgment is affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Jimmy Lee WILLIAMS, Appellant.
    No. 35920.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 24, 1975.

      Lawrence 0. Willbrand, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Jimmy Lee Williams, was found guilty, by a jury, of assault with intent to kill with malice. The jury was unable to agree on the punishment and appellant was sentenced by the court to imprisonment for a term of twenty-five years. We affirm.

Appellant does not challenge the sufficiency of the evidence. Therefore, our statement will be in summary form.

From the evidence offered by the State a jury reasonably could find that on February .8, 1973, appellant, Walter O’Neal, and John Griffin, became involved in an argument, the subject of which is not clear from the record. Griffin and O’Neal then met at the intersection of Taylor and Kennerly. Appellant got out of an automobile with a sawed-off shotgun and stated that every time Griffin came home he started a lot of trouble and that he was going to make sure that he “would start no more.” He then shot Griffin in the stomach.

Appellant’s first point is somewhat difficult to understand, and will require the statement of some additional facts.

Appellant asserts that the court erred in not allowing the defense to proceed with the testimony of the only eyewitness, Walter O’Neal * * * for the reason that the State intended to cross-examine him on the unrelated charge of arson for which he was presently awaiting trial in the city jail.

Walter O’Neal, called as a witness by appellant, testified that he was nineteen years of age and at the time confined in jail. The assistant circuit attorney then advised the court, out of the presence of the jury, that O’Neal was charged with a crime and was represented by an attorney, and that “in the interest of protection [sic] this man’s rights, I feel the court should postpone this witness’s testimony until our noon recess [and] that his lawyer be contacted and advised of what is happening here. He may not even want this man to testify * * * ¶¾⅛ man mjgjjf perjure himself.” The court then ruled that appellant’s counsel was to contact O’Neal’s lawyer, and it further stated that “the lawyer should be present when he’s testifying in any court where I don’t know what he’s going to say and nobody else knows what he is going to say * * * I don’t know if he is being held as a result of anything coming out of this case.” The transcript otherwise reveals that the charge pending against the witness was for arson. The witness was dismissed subject to recall, and appellant’s motion for a mistrial was overruled.

The next reference in the transcript to this witness is the statement by defense counsel to the court that “Walter O’Neal * * * has decided upon the advice of his attorney who is representing him in connection with a case that has nothing to do with this case [that he] is not going to testify, as I say, for the reasons that have nothing to do with the incidents in question here but because of the case that is pending against him.” A discussion between counsel followed, and the circuit atttorney stated to the court that “His lawyer informed [appellant’s counsel] he’s not going to testify.” Appellant’s counsel then said: “But only because he could be questioned * * * on the case that is pending against him, which has nothing to do with this case.”

The last and only other reference to this witness occurred at the close of all the testimony. Appellant’s counsel repeated to the court that O’Neal’s counsel had advised him not to testify “because of the charge that he had pending against him,” and he added that “we then had an understanding that I could advise the jury of that.” The transcript does not indicate that the jury was so advised.

From appellant’s argument in his brief it appears that he contends that if O’Neal took the stand and testified the circuit attorney intended to cross-examine him concerning the charge of arson pending against him. We need not discuss or attempt to outline the area of permissible cross-examination in the circumstances presented here. Appellant had the right to call O’Neal as his witness, and there is absolutely nothing in the record to indicate that if he was called and testified the trial court would not have required the cross-examination to have been kept within authorized and permissible limits. We are not to assume that the court would not have ruled correctly on any objection made to a question asked on cross-examination. Certainly, there is nothing to support the assertion made in appellant’s brief that “The court erred in lending its aid in allowing the prosecuting attorney to prevent the witness from testifying, irrespective of what the witness would have adduced.” Also, we mention that it was not the choice of the witness or his counsel whether or not he would take the stand as a witness. Appellant had the right to call O’Neal as a witness subject to the rules applicable to all such witnesses, and there is nothing to indicate that the appellant was in any way denied that right. There is no merit in this point.

Appellant next asserts prejudicial error resulted when the trial court refused to declare a mistrial when the circuit attorney asked appellant on cross-examination if “you took a pistol and killed on the 80th day of July, 1973, * * * one Tracy Armstrong.” Appellant answered: “No, it’s not.” Appellant’s counsel then objected and requested “the jury to be instructed to disregard that and I ask for a mistrial.” The trial court sustained the objection, instructed the jury as requested, but denied the request for a mistrial.

Appellant argues that this question of the circuit attorney is to be equated to the situation where a witness is asked about a previous arrest, and to demonstrate error he cites State v. Rumfelt, 258 S.W.2d 619 (Mo.1953) in which it was ruled that “questions asked appellant [in that case] about his previous arrests [were] prejudicial error.”

Appellant voluntarily took the witness stand and testified in his behalf. Therefore, his credibility was subject to attack in the same manner and to the same extent as any other witness. State v. Byrth, 395 S.W.2d 133,135 (Mo.1965); State v. Massa, 512 S.W.2d 912 (Mo.App.1974). When the trial court sustained the objection to the question, as above set forth, counsel for the State said: “It’s my understanding you will not permit me to proceed based on the Williams case?” The Court answered “Yes.” This calls for a review of the cases upon which the State’s counsel apparently was relying. There is a vast difference when counsel for the State intentionally violates the rules of evidence for the purpose of injecting a prejudicial feature with the purpose of relying on the Court’s instruction to disregard, and when the State’s counsel, correctly or incorrectly, asks a question when he justifiably relies on what he believes to be the accepted rule. The former case should not be tolerated by the appellate courts, and reprimands of counsel would be appropriate, but in the latter the appellate courts should view the matter from the practical effect upon a jury composed of persons of average intellect and reasonable comprehension, together with the long and properly accepted concept that the trial court is in a much better position than an appellate court to determine the existence of prejudice and its removal by reason of appropriate instructions.

We are of the opinion that the “Williams Case,” referred to by counsel for the State is State v. Williams, 492 S.W.2d 1 (Mo.App.1973). It was there said: “While an adverse party is privileged under statute [§ 491.050, RSMo 1969] to ask a witness about the nature of prior criminal convictions, whether felony or misdemeanor, * * * questions about acts of misconduct not resulting in conviction have been held improper.” After a discussion of cases applying the rule, the court then said: “The restriction, however, does not apply to every specific act of misconduct which might result in a criminal charge, investigation, or indictment. In State v. Foster, Mo., 349 S.W.2d 922, * * * the Court drew a distinction between asking a witness whether he had been arrested or charged with a crime and asking him if he committed the crime. It held questions of the latter sort proper, subject to the witness’ right against self-incrimination.” In the Foster case, a witness for the defense was asked on cross-examination whether he had admitted that he had planned and attempted to rob a theater. After a discussion the witness answered, “I admitted it after a beating.” After first discussing the right of a witness not to answer on the grounds of self-incrimination, the court stated: “While it is error to ask a witness if he has been arrested for or charged with a crime, there is an obvious distinction if he is asked if he committed the crime (Wendling v. Bowden, 252 Mo. 647, 697, 161 S.W. 774, 789), and we conclude this distinction extends to asking him if he has admitted committing an offense.”

Following the Williams case above referred to, the Missouri Court of Appeals, Kansas City District, handed down State v. Summers, 506 S.W.2d 67 (Mo.App.1974). There a State’s witness was asked, “Now then, Mr. Bossert, how many burglaries have you participated in?” That court stated: “The obvious distinguishing rationale between asking a witness if he has been arrested for or charged with a crime as opposed to asking a witness if he has participated in or committed a crime is, that as to the former, being arrested or charged with a crime proves nothing as to guilt, but, as to the latter, the witness’ answer, if given and in the affirmative (and only the witness can interpose the privilege against self-incrimination), constitutes an admission of guilt of •the crime.” The court held the question was proper, and added, “It is academic that cross-examination of witnesses directed toward showing that they have committed criminal offenses is perhaps the most common method of attacking their credibility.”

State v. Sanders, 360 S.W.2d 722 (Mo. 1962), should be mentioned. There an alibi witness was cross-examined concerning her participation in the procuring and cashing of two checks, a collateral matter, and there was then an attempt to impeach her testimony in rebuttal. The court held that the cross-examination constituted “references to an investigation of the witness for a possible criminal offense, not even rising to the dignity of a formal charge,” and that the “principal vice in the * * * line of questioning arises from the violation of the established rule that a witness’ credibility may not be attacked by showing a mere arrest, investigation, or criminal charge which has not resulted in a conviction.” The court added that it had noted State v. Foster, supra, but it was not considered to be “applicable,” because it was there held that “questions and answers concerning an admission or confession of a crime [were] not * * * erroneous,” while in the Sanders case “the questions * * * were too vague and confused to be considered as calling for a confession of a crime.”

Turning now to the facts of the case before us. The question was rather ineptly worded, but the effect was to ask appellant if he took a pistol and on July 30, 1973 killed Tracy Armstrong. If appellant had admitted that he had done so, it may not have constituted the admission of a crime. However, appellant’s answer was that he did not do so, and the State was bound by that answer because it was a collateral matter not subject to impeachment. The circuit attorney did not ask about an arrest, an investigation, or a charge of any kind. Because of its inept wording we cannot say that the question clearly was proper, but in view of the Williams case, which in turn relied on the Foster case, we cannot say that it was a deliberate and intentional attempt to proceed into a prohibited area of cross-examination.

The trial court sustained the objection to the question and gave the requested instruction. It is true that there are some cases in which a trial court cannot by an instruction to a jury to disregard certain questions extract or neutralize the prejudicial effect. In most cases the transgression went directly to the issue of guilt or innocence, as in State v. Burchett, 302 S.W.2d 9 (Mo.1957), or the transgressions were persistent and repeated. See State v. Spencer, 307 S.W.2d 440 (Mo.1957); State v. Tiedt, 206 S.W.2d 524 (Mo. banc 1947). We do not consider this case to fall within either group. The vice of the question was its inept wording; not its general subject. The only issue is whether under these circumstances the trial court abused its discretion in not granting the requested mistrial, an extremely “drastic remedy” which should be exercised “only in extraordinary circumstances.” State v. Camper, 391 S.W.2d 926 (Mo.1965). Under the circumstances of this ease we cannot say that as a matter of law the trial court abused its discretion.

Appellant’s third point is that the trial court erred in failing to declare a mistrial “after the State inquired about an inconsistent statement allegedly made by the defendant to a juvenile officer while in the custody of juvenile authorities.”

During cross-examination of appellant he was asked if it was true that he and Walter O’Neal stopped and talked to Mr. Griffin (the victim) “at a distance of about ten feet between you?” He answered: “No, it’s not.” He was then asked if he had ever told anybody “that was true,” and he replied: “No, I haven’t.” The following then occurred:

“Q. Do you remember being interviewed by Mr. Joseph Letterwood?
“A. No, I don’t.
“Q. -On — a deputy juvenile officer on February 9, 1973?
“A. No, I don’t.”

Appellant then objected because the question “apparently is based on an interview by a deputy juvenile officer of a juvenile.” The court sustained the objection, but denied a motion for a mistrial. The complete answer to appellant’s point is that the circuit attorney was not allowed to, and he did not, show that appellant had made any statement to a juvenile officer, much less show an inconsistent statement. The circumstances could not possibly have justified a mistrial.

Appellant’s final contention pertains to a statement made by the circuit attorney as follows:. “You’ve gota great responsibility. You put this man on the street again and he’ll have another shotgun. That’s right.” Upon request of appellant’s counsel the court sustained an objection to that argument and instructed the jury to disregard it. It denied a request for a mistrial. Assuming that the remark went beyond permissible grounds in speculating on possible future acts of appellant the issue is whether this single remark, which the trial court instructed the jury to disregard, was “so extremely inflammatory and prejudicial as to deprive the [appellant] of his constitutional right to a fair and impartial trial,” State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), and the error could be cured in no way other than by use of the drastic remedy of granting a mistrial. State v. Camper, 391 S.W.2d 926 (Mo.1965). The trial court, in the exercise of its discretion, determined that the error was not so grievous that the prejudicial effect could not be removed by a proper instruction to the jury. The proper function of an appellate court in this situation is to determine whether as a matter of law the trial court abused its discretion, and we cannot so find.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.