author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. JOSEPH, Missouri, Respondent, v. The CITY OF ST. JOSEPH, Missouri, Joseph Robidoux and Angelique Robidoux, husband and wife, and their unknown heirs, grantees, successors and assigns, Clifton Hurst, Collector of Revenue for Buchanan County, and Merrill L. Haney, acting Director of Finance for the City of St. Joseph, Missouri, Appellants.
    Nos. KCD 28676, 28706, 28714 and 28727.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application to Transfer Denied Feb. 8, 1978.
    Morton, Reed & Counts, Ronald Reed, Jr., Stephen J. Briggs, St. Joseph, for appellants.

      Gary A. Fenner, St. Joseph, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Consolidated appeals from judgment which distributed an $86,650 award for the taking in condemnation of a described area denominated “Market Square” in St. Joseph, Missouri: “To the City of St. Joseph, Missouri, for the improvements on the land the sum of $44,150.00. To the heirs of Joseph Robidoux the value of the land in the sum of $42,500.00.”

Appellants Robidoux heirs (28,676, 28,714, 28,727) contend they should receive all the award, asserting: (I) “Joseph Robidoux’s delineation on the original plat [of St. Joseph] of an area called ‘Market Square’ did not convey a title to the public in fee simple, but rather a fee in trust for the named public purpose of a market square such that on abandonment of that purpose by the City of St. Joseph, the land reverts to his heirs”; (II) “land dedicated to a public use reverts to the dedicator or his heirs where, as here, the dedicated purpose becomes impossible or so highly improbable as to be practically impossible”; (III) “Joseph Robi-doux’s intent * * * was not sufficiently clear and precise to constitute a dedication to public use forever and that intent is controlling”; (IV) the City as “one who has less than fee simple title to property and places improvements thereon has no right to reimbursement from the reversionary interests for said improvements.”

Appellant City (28,706) contends it should receive all the award, asserting that when land held for public purposes is condemned the governmental entity holding title on behalf of the public is the party damaged. Alternatively, the City contends that if it does not have an interest in the value of the land, it is entitled to the value of its building, asserting it would be inequitable to allow the heirs of Joseph Robidoux to benefit from the City’s good faith effort to comply with the dedication by its improvement of the land.

The question is whether the Robidoux heirs as holders of a possibility of reverter to title to real estate dedicated by their ancestor to public use in 1843 are entitled to any share in a condemnation award for a taking of the property in 1973; or whether appellant City to whom the property was dedicated is entitled to the entire award. As a matter of law applicable to undisputed facts, the City prevails to the exclusion of the heirs. Reversed and remanded.

In August, 1843, Joseph Robidoux, sole proprietor of the town “Saint Joseph,” filed a dedication and plat, duly acknowledged, certified and recorded, of the town by which he did “grant allot and convey for public uses all streets and alleys by the names and of the width and extent that are set forth.” Blocks, lots, streets, and alleys were numbered, named, and otherwise shown; the west half of Block 31 was designated “Market Square.”

“Market Square” has a history of use for market purposes. On January 10,1873, the City, by ordinance, appropriated $375 “towards completing the Market house in addition to” $2500 “heretofore appropriated for building the same.” Minutes of the city council and an ordinance of April 26, 1873, reflect further interest in construction of the “Central Market House.” On July 12, 1938, the City, by ordinance, authorized the issuance and sale, subject to public election, of $42,000 in general obligation bonds “for the purpose of procuring funds to erect a New Market House in Market Square.” On September 16, 1938, the City, by ordinance, recognized a favorable election result, and ordered sale of the bonds. On November 7, 1938, the City, by ordinance, authorized the Board of Public Works to enter into a contract “for the taking down of the old Market House in Market Square and for the construction of a new Market House on said site.”

On August 10, 1973, Land Clearance for Redevelopment Authority petitioned to condemn, as amended, “The west half of Block Thirty-one (31), Original Town, now City of St. Joseph * * * noted as Market Square in the dedication plat.” Commissioners were appointed and they reported damages for the taking at $86,650. The amount of the award was paid into court “for the use of * * * City of St. Joseph, * * * Joseph Robidoux and Angelique Robidoux, * * * and their unknown heirs, grantees, successors and assigns,” and on November 8, 1973, said condemnation was confirmed.

No exceptions to the award were filed, and the City and various heirs and representatives of the heirs of Joseph Robidoux moved for apportionment of the award.

Evidence was adduced on the motions to apportion the award. Arnold Coppaken, a market master at City Market in Kansas City, Frederick Waris, formerly in the fruit and vegetable business adjacent to Market Square in St. Joseph, and Eric Scott, city administrator of St. Joseph, qualified as experts. Mr. Coppaken and Mr. Waris were both familiar with prior market operation in St. Joseph. Mr. Scott, the city administrator, had general knowledge of public market operations. In their opinions, a public market in the nature of a market square or farmers’ market in St. Joseph would be beneficial, successful and feasible. Fred Eder, a realtor and one of the condemnation commissioners, stated that he attributed $44,156 to the building on Market Square, and $42,500 for the land underlying the improvement.

Sections 445.010, et seq., RSMo 1969, and their predecessors as early as 1835, provide the method of dedication of real estate to public use. The maps or plats utilized in accordance with the statutory scheme are “a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, * * * in trust and for the uses therein named, expressed or intended, and for no other use or purpose.” § 445.070.2 RSMo 1969. Under such provisions, Joseph Robidoux’s plat of August, 1843, constitutes a valid dedication of the streets and other public places, particularly “Market Square,” the subject of this proceeding. City of California v. Burke, 292 Mo. 466, 239 S.W. 830, 832 (1922); Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, 370 (1927). Doubt or ambiguity, if any, in the intent of the dedicator and the meaning of his plat is properly construed against the dedicator under the long history of public use and expenditure of public funds in this case. Goad v. Bennett, 480 S.W.2d 77 (Mo.App.1972).

By the dedication the City of St. Joseph acquired not a fee simple absolute but a fee in trust to use the property for public purpose, or as sometimes said, an easement for public use. Such defeasible fee is burdened by possibility of reverter to the dedicator or his successors if the property is abandoned by the City. Ginter v. City of Webster Groves, 349 S.W.2d 895, 899 (Mo.1961); Marks v. Bettendorf’s, Inc., 337 S.W.2d 585, 593 (Mo.App.1960); Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580, 582, 583 (banc 1943); Gaskins v. Williams, 235 Mo. 563, 139 S.W. 117 (1911); State ex rel. State Highway Commission v. Johns, 507 S.W.2d 75, 77 (Mo.App.1974); Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92 (1900); Neil v. Independent Realty Co., supra.

The general rule governing this situation is stated, 29A C.J.S. Eminent Domain § 199, page 888:

“It is generally held that, although condemnation involves a termination of the use of the property on which the fee is limited and on which a possibility of re-verter or right of re-entry would come into play, such taking does not operate to terminate the prior estate and entitle the owner of the possibility of reverter or right of re-entry to the compensation for the taking of the property. Rather, the compensation is to be paid to the owner of the defeasible fee without any allocation or apportionment to the holder of the reversion or right of re-entry on the ground that such interest is so remote and speculative as to be without present value. However, if the event on which the defeasible fee is to terminate is imminent or likely to occur within a reasonably short period of time, leaving out of consideration the eminent domain proceeding, then the award should be apportioned between the holder of the fee and the owner of the possibility of reverter or right of re-entry in accordance with the value of their respective interests.”

Other texts support the foregoing proposition. See, e. g., 27 Am.Jur.2d Eminent Domain § 251, pp. 26-27; 2 Nichols on Eminent Domain 3 ed. § 5.221[1], pp. 5-73, 5-78; Restatement of the Law of Property, § 53, p. 187; Anno.: Condemnation Award — Right of Reverter, 144 A.L.R. 774n, 81 A.L.R.2d 570n.

State v. Cooper, 24 N.J. 261, 131 A.2d 756 (1957), presented an analogous situation. In 1851, a map of the property of Joseph Coyte was filed by which the property was divided into lots, part of which was designated “Public Square.” The Public Square was devoted to public use for more than a century and the city maintained it as a public park. The property was condemned by the State Highway Commission and the heirs of the dedicator were denied any share in the condemnation award. The court stated:

“We are in accord with the individual appellants’ position that the dedicated use of the area has not been continued by the State; it seems evident that the present use of the area as part of a limited access high-speed highway differs significantly from its former use as a local park. * * And we recognize, as they stress, that the judicial decisions have dealt generally with actual transfers by deed of defeasi-ble estates * * * rather than with dedication by map which in our State involves the creation of public rights along with the retention of bare legal title. But we believe that the ultimate determination may not justly turn on metaphysical distinctions but must rest upon substantial realities. * * * When the State Highway Commissioner condemned, the possibility that there would be a re-verter entitling the individual appellants to actual use and enjoyment had no apparent worth, nor did it then accrue * *, and while there was also a taking of the bare legal title, that interest would seem, in the absence of a showing of special factors, to have little transferable value for purposes of condemnation.” 131 A.2d 1. c. 763-764.

Similar statement of the law has been made in other jurisdictions. See e. g., Romero v. Department of Public Works, 17 Cal.2d 189, 109 P.2d 662, 665 (1941): “The authorities generally are to the effect that the owner of the possibility of a reverter prior to a breach of the condition is not entitled to compensation when the property is taken under the law of eminent domain. Such cases hold that the possibility of voluntary abandonment by non-user is so remote and improbable that it has no substantial value to be estimated in a condemnation proceeding.” See also Hamman v. City of Houston, 362 S.W.2d 402, 405 (Tex.Civ.App.1962), “that where the grantee does not violate the terms of the trust so as to bring about a reverter, but the trust property is appropriated for other uses under the power of eminent domain, the award of damages resulting from the condemnation is decreed to the grantee * *

With respect to similar contention by the heirs, the argument has been advanced that inasmuch as the condemnation terminates the use to which property was to be put according to the condition, the estate of the grantee or its successors has been terminated and the reverter is no longer a mere possibility and is compensable in eminent domain. “However, the weight of authority does not support this view. The prevailing view is that there is no interval of time between the seizure of the estate of the grantee and the seizure of the rights of the grantor during which there could be a reverter of title to the latter, since at the moment of appropriation there as been no disuser by the former in breach of the condition.” Nichols, supra, 1. c. 5-73; and see, e. g., First Reformed Dutch Church v. Croswell, 210 App.Div. 294, 206 N.Y.S. 132 (1924), that the disuser in such circumstances is a consequence, not a cause, of loss of title by the grantee.

Nor have the heirs adduced any evidence to support their contention of an abandonment with resultant reverter. The only record here is that the City has appropriated public funds on two occasions, one as late as 1938, for construction of market houses on Market Square, and the last such building was on the premises at the time of this condemnation. In addition, the continuance of a public market in St. Joseph is shown to be beneficial, successful and feasible. Such circumstances show that the City possessed the fee for its trust purpose at the time of the taking, and are inimical to interest in the heirs by way of reverter. Patrick v. Mississippi State Highway Commission, 184 So.2d 850 (Miss.1966).

Carmack v. United States, 177 F.2d 463 (8th Cir. 1949), is close in point. The United States condemned land in Cape Girar-deau, Missouri, for use as a United States post office, customhouse, and court building. The site was a city park upon which were located a courthouse, city library, and bandstand, the land having been conveyed to Cape Girardeau by deeds executed in 1807 and 1820 which limited the use to public purposes. The City was adjudged entitled to the entire award over a claim of the grantor’s heirs. The court affirmed the lower court’s determination, United States v. Certain Land in City of Cape Girardeau, 79 F.Supp. 558 (D.C.), that the deed to the city created a trust as to public use of the land, and that there was no violation of the trust by the city, because the taking by the federal government was by condemnation and not by voluntary conveyance so as to entitle the heirs of the grantor to the award.

Similarly, in State ex rel. Sayers v. School District, 79 Mo.App. 103 (1899), property was condemned by the school district which had been granted by deed jointly to the school and a church. The deed contained a condition that if the land should cease to be so used for a period of seven years, title would revert to the grantor. For a period of four years the property was not used for church purposes, after which the property was condemned by the school. The grantor contended he was entitled to an award for the taking. The court denied the grantor’s contention because he had no title to the property at the time it was condemned but possessed only a “bare possibility of a re-verter dependent upon the future conduct of the beneficial owners of the land, over whose action he had no control whatever. * * * As his title had not then accrued, it could not have been injuriously affected by that [condemnation] proceeding. Under the terms of his grant * * * the revert-er could only take place upon the future abandonment by the grantees of the joint use of the property. It could not be affected by the institution of a suit to condemn his title prior to the happening of the contingency upon which it hinged.” 79 Mo. App. l. c. 110.

Judgment reversed and cause remanded with directions to enter judgment to distribute the entire award of $86,650 to the City of St. Joseph, subject to allowances, if any, for fees and costs which may be taxable against these parties.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Myrtle L. SCOTT, Respondent, v. CLUB EXCHANGE CORPORATION, Attorney in Fact for the Automobile Inter Insurance Exchange, Appellant.
    No. 28738.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Max Von Erdmannsdorff, Von Erd-mannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for appellant.
    Snowden, Crain & DeCuyper, Joseph Y. DeCuyper, Hsiang-Lin Lee, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for Myrtle L. Scott in action under uninsured motorist coverage for damages for death of her husband sustained when his automobile, northbound on Interstate 29, came into collision with the wreckage in his right of way of an automobile theretofore also operated northbound on 1-29 by one Jessie Virginia Malcolm who perished in the wreckage of her vehicle prior to the Scott collision. The questions are whether the res ipsa loquitur doctrine is available to plaintiff in the unusual circumstances of this case; and, if so, whether her action fails for failure to comply with notice provisions of her policy. Affirmed.

The doctrine applies when the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care, the instrumentalities2 involved were under the management and control of the defendant, and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Furlong v. Stokes, 427 S.W.2d 513, 517[2] (Mo.1968).

Appellant contends that plaintiff was not entitled to submit her case under the res ipsa loquitur doctrine, asserting: that there has been no showing that the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; that the case is not one in which the instrumentalities involved were under the management and control of defendant; that defendant does not possess superior knowledge or means of information as to the cause of the occurrence; and that plaintiff failed to prove lack of contributory negligence on the part of her decedent.

On January 2, 1973, Raymond E. Scott, age 57, in good health, was living at 5056 Tarkio Northeast, Kansas City, Clay County, Missouri, with Myrtle L. Scott to whom he had been married for 32 years. Mr. Scott was a superintendent for Garney Con- . struction Company on a waterline job in Rulo, Nebraska. He had been on that job for three or four months during which he would be away from home during the week and at home weekends. On January 2, 1973, he arose at his home around 3:00 A.M., had his breakfast, and left the house at approximately 4:00 A.M. His normal route to Rulo was by way of northbound Interstate 29. Mrs. Scott did not go back to sleep and heard of an accident on 1-29. “I didn’t know it was him. Then I got a call shortly after from the hospital * * * to go where his car was, and I went there, and then directly from there to the hospital.”

John Blankenship, an over-the-road truck driver of 10 years’ experience and a driver for Consolidated Freightways, left its terminal in Kansas City, Missouri, around 3:30 A.M., January 2, 1973, driving a two-trailer and tractor rig on a regular run to North Platte, Nebraska. His route also was by way of northbound 1-29, and at approximately three-tenths of a mile north of the 92 spur on 1-29 near Platte City, Missouri, he came upon a vehicular accident. At that location, “you kind of go around the corner there to the right, and kinda on an uphill grade, kind of in a blind spot in the road is what I would call it, * * * you can’t get a clear vision of what’s on down the road ahead of you there until you get a little higher. * * * it seems to me like where the accident happened was * * * like you’d be driving up the road and you’d get a clear vision of what was ahead of you you’d be on top of the accident.” Mr. Blankenship’s first knowledge of the casualty “was a Yellow Transit truck ahead of me * * * he had a pretty hard time getting stopped and I think he ended up more in the left lane than he did in the right lane * * * kind of stopped at an angle * * like he was kind of undecided whether he was going to get stopped or not.” Mr. Blankenship went up to the first vehicle “which was the Scott vehicle, and the man was sitting in there behind the wheel * * the other car * * * was laying there upside down in the highway and the top was all smashed down on it * * * I walked around to the north side of the car and I seen this lady’s * * * arm sticking out from underneath the top of the car.” He did not see any lights on the lady’s car, and did not recall any headlights burning on the Scott car. “[H]is taillights might have been on * * * the lady’s car was laying upside down facing the west and the Scott vehicle was still facing northbound about in the driving lane or maybe just a little bit to center of it * * * she was pretty much in the driving lane * * she pretty well had the highway * * * blocked.” The radiator was steaming on the Scott car. He did not see the lady; he detected no odor of alcohol on the man. “[I]t looked to me like that she had ran off the road and ran into one of those highway signs * * * she had one of these big highway signs completely wrapped around the front of her car where she had ran over it.” Her car was “just smashed flat on top * * * and then where * * * he ran into the side of her was buggered up.” He talked with Mr. Scott. “He just said he came upon it and there it was, said he didn’t have time to do anything hardly.” He observed where “she ran off the road and hit the sign and came back on the highway * * * upside down.” He “wouldn’t want to be driving down the highway at the speed limit and just run up there and try to get around * * * if you was already stopped and you already knew * * * that you had room enough to get around you might try it, but if I was coming down the road in that truck and I ran up on this accident I sure wouldn’t * * try to drive around it. * * * I would have tried to have gotten stopped, but * * you just can’t run upon something and just run off the road.”

Trooper James Dale Morrison of the Missouri State Highway Patrol was about 20 miles south of the casualty scene when he received a call to investigate. He fixed the time of the casualty at 4:35 A.M. The casualty occurred in the northbound lane of 1-29, approximately three-tenths of a mile north of 92 spur overpass. 1-29 at the scene is a four-lane highway with two northbound and two southbound lanes separated by a median. The traveled portion of the northbound lanes is 23 feet wide. There is a 6-foot shoulder on the west or median side and a 10-foot shoulder on the east or ditch side. He observed “one car upside down pointing toward the west, this was in the driving lanes of 29, the second vehicle a few feet south of that car on its wheels.” The latter was headed generally northeast, and its driver identified himself as Raymond Edward Scott. “I wrote down his estimated speed at 70, and his injuries, he complained of chest injuries and he told me he was wearing a ‘lap belt.’ ” Mr. Scott was lucid and alert and made some statements about the occurrence but the trooper did not write them down and could not recall them. The other driver, Mrs. Malcolm, “had partial ejection out of the driver’s window and the car was resting on her head and neck.” She had already expired. With respect to the path of Mrs. Malcolm’s car south of the scene, “there were tire tracks leaving the driving lane, or the right hand lane, on the right shoulder. The tire tracks were visible for 153 feet. There the vehicle apparently struck a highway sign * * * the tracks continued, the left wheels were on the shoulder, and the right wheels were on the dirt edge of the shoulder. There was an indentation in the dirt embankment where car one [Malcolm] had apparently struck this embankment causing it to overturn on its top * * * there were metallic marks on the pavement * * * from the top of the car when it overturned, and pieces of driver number one’s body was found in this area, along with the skid marks.” The Malcolm car traveled 85 feet after striking the sign and up to the embankment, after which there were the metallic scuff marks and blood in a trail 96 feet northwest from the embankment to where the car “stopped or was struck by number two [Scott]” when number one was crosswise or upside down in northbound I-29. One hundred one feet of skid marks leading southward from the Scott vehicle also ended there, and such point of impact was marked with glass and pieces of chrome from the grill of the Scott car. At that point Mrs. Malcolm’s vehicle “kind of spun in a counter-clockwise direction, it was knocked for an additional forty-seven feet.” The Scott vehicle, a 1969 Ford two-door, was damaged across its front end which was not pushed up to the driver’s seat, i. e., “not that much force.” The Malcolm vehicle, a 1967 Chevrolet two-door, was demolished. “The top of the car was caved in.” Trooper Morrison estimated the speed of both vehicles to have been at 70 miles per hour. He did not detect any odor of alcohol on either driver, and stated the speed limit as 70 miles per hour.

Mr. Scott was taken by ambulance to Spelman Hospital in Smithville, Missouri, where he was found to be in acute distress. He continued downhill and died January 6, 1973, of “shock lung syndrome, rib fractures, pneumothorax and * * * ” as a result of injuries sustained in the accident.

Defendant stood on a motion for directed verdict at the end of plaintiff’s case. Plaintiff’s case was submitted as a res ipsa loqui-tur case in the form of MAI 31.02(1). Defendant offered, and the court refused, instructions which would direct a verdict for defendant if the jury found that Raymond E. Scott was negligent in some particular which caused or contributed to cause Mr. Scott’s death. Appellant does not question the form of plaintiff’s verdict-directing instruction, nor is there any error charged to the refusal of defendant’s offered instructions.

In these facts and circumstances, the court did not err in permitting plaintiff to submit her case under the res ipsa loquitur doctrine.

Although there is no presumption of liability to be drawn from the fact of an accident and resultant injury, Clymer v. Tennison, 384 S.W.2d 829, 834 (Mo.App.1964), the character of the accident, rather than the fact of the accident, determines whether the res ipsa loquitur doctrine applies, Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003 (1934). A plaintiff to come within the doctrine need not show such a state of facts surrounding the accident as excludes every reasonable hypothesis except defendant’s negligence; the attendant facts must raise a reasonable inference of defendant’s negligence but they need not exclude every other inference. Maxie v. Gulf, M. & O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 325 (1949). Loss of control or failure to control the movement of a motor vehicle so that it leaves the highway and causes injury permits an inference of negligence on the part of the driver; and so long as the plaintiff’s evidence does not show the cause of the casualty, or if the true cause is left in doubt, plaintiff is not deprived of the right to invoke the res ipsa loquitur doctrine. Collins v. Nelson, 410 S.W.2d 570, 573 (Mo.App.1965). The inference of negligence is from the operation of the automobile in such manner and lack of control that it leaves the proper part of the highway safe for travel and encounters or creates dangers to persons whether such persons are occupying the automobile or are near or along the highway, and such inference is not dependent upon whether the person injured as a direct result thereof is in the automobile or in its pathway. Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, 477 (1935).

The evidence tends to prove that while Mrs. Malcolm was driving her automobile, she operated it in such manner and lack of control that, for reasons known only to her, it left the traveled portion of the highway, returned to the traveled portion of the highway and came to rest upside down in Mr. Scott’s path, thereby creating danger of and the setting for the collision which resulted in his death. The evidence does not otherwise show the cause of the casualty; and, as the trial court’s refusal of defendant’s offered instructions suggests, it does not show Mr. Scott negligent or in control of the instrumentality which caused the casualty. Under the foregoing authorities, the evidence produced the character of situation to which the res ipsa loquitur doctrine is applied. The converse holds in cases where the evidence discloses that two or more instrumentalities, one of which was plaintiff’s and only one of which was under defendant’s control, contributed to, or may have contributed to, the injury. Speiser, The Negligence Case: Res Ipsa Loquitur, § 2.16; Estes v. Estes, 127 S.W.2d 78 (Mo.App.1939); Hutchins v. Southview Golf Club, Inc., 343 S.W.2d 223 (Mo.App.1960); Copher v. Barbee, 361 S.W.2d 137 (Mo.App.1962).

Appellant states the dichotomy that the automobile driven by Mrs. Malcolm was, at the time of its collision with the automobile driven by plaintiff’s decedent, either moving or at rest, to argue that if moving, plaintiff’s case fails under Dwyer v. Moss, 462 S.W.2d 645 (Mo. banc 1971), on the issue of control; and if at rest, it fails under Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95 (banc 1955), for failure to show that Mr. Scott was not contributorily negligent in colliding with a stationary vehicle.

Neither case precludes plaintiff in the uncommon circumstances of her case. Dwyer v. Moss, supra, denied the res ipsa loquitur doctrine in a fact situation distinguishable from Mrs. Scott’s case. Both Dwyer and Moss adduced evidence — plaintiff Dwyer to show that the Moss automobile being driven northwardly on “Old Sugar Creek Road,” skidded 90 feet, left the road, struck a culvert on the east side of the road, and then collided with Dwyer’s truck on the west side of the center of the road— defendant Moss to excuse her conduct and to show that Dwyer drove his truck in the middle of the road and caused her to run off the road to the right and then into the collision. In such circumstances, Dwyer’s case, if any, existed by virtue of the inference of negligence noted in Friederich v. Chamberlain, 458 S.W.2d 360 (Mo. banc 1970), i. e., presence of a motor vehicle on the wrong side of the road at time of collision is, of itself, sufficient to create inference of negligence submissible under MAI 17.01 for submission of a single negligent act coupled with MAI 17.13 for submission of the single negligent act, “Defendant drove on the wrong side of the road.” It is true that Mrs. Malcolm was not in control of Mr. Scott’s vehicle other than with respect to the circumstances she set in motion and the danger she created; but neither did defendant control the movements of the sidewalk pedestrian injured by defendant’s automobile in Harke v. Haase, supra. Frazier v. Ford Motor Co., supra, involving a plant accident and thus distinguishable from Mrs. Scott’s case, recited the rule that in order to make a prima facie case under the res ipsa loquitur doctrine the evidence must be such as to reasonably exclude the negligence of the injured party as a contributing cause of the injury, and determined that defendant had evidence that plaintiff was not injured in the manner he contended and that defendant was entitled to a converse instruction bearing on the merits of plaintiff’s submitted case. Plaintiff’s verdict was reversed for failure to give such an instruction. The evidence in Mrs. Scott’s case is such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of plaintiff’s decedent. Maxie v. Gulf, M. & O. R. Co., supra. So far as the evidence shows, Mr. Scott was driving in his proper lane within the speed limit and tried to avoid when danger showed. There was no evidence to show that he should or could have stopped or otherwise taken effective action to avoid the trap set by Mrs. Malcolm. To the contrary, in the words of Mr. Scott via Mr. Blankenship, “he didn’t have time to do anything hardly.” Situations in which the doctrine is available against motorists who unexplainedly collide with large, stationary objects or vehicles lawfully parked at or near the curb of a street or highway are also to be distinguished from Mrs. Scott’s case on their facts. See, e. g., Byrne v. Great A. & P. Tea Co., 269 Mass. 130, 168 N.E. 540 (1929); Boresow v. Manzella, 330 S.W.2d 827 (Mo.1959); Blashfield, Automobile Law and Practice, § 6045.

With respect to appellant’s assertion that it does not possess superior knowledge or means of information as to the cause of the occurrence, res ipsa loquitur cases impute such knowledge to the driver in control of the offending instrumentality in similar circumstances. Smith v. Hollander, 257 P. 577, 579 (Cal.App.1927), held that when an automobile leaves its accustomed place of travel in the street, runs up on the sidewalk, and there strikes a pedestrian, the injured person is not in a position to know the cause of a mishap. The one in control of the instrumentality causing the injury is or should be in a position to know. Such an occurrence does not usually happen in the absence of negligence on the part of the one in control of the automobile. Harke v. Haase, supra, l. c. 1003, stated that the res ipsa loquitur rule applies when an automobile unexplainedly leaves the street “and the plaintiff does not know what caused it to do so. The occurrence would seem to speak negligence, and it is easy to see why an injured plaintiff would not know what specific negligence did cause it.” So, in Mrs. Scott’s case, Jessie Virginia Malcolm was in position to know why her vehicle left the highway, returned, and came to rest upside down in Mr. Scott’s path. The evidence does not show that Mr. Scott knew the cause of the casualty. In such circumstance, it does not appear why Mr. Scott’s survivor should be deprived of the doctrine on the ground that Mrs. Malcolm is now unavailable for explanation or excuse, if any, for the casualty.

Appellant contends that the court erred in refusing to direct a verdict on the ground that plaintiff failed to fulfill her burden of establishing that either she or her decedent had complied with the notice conditions of their insurance policy. Appellant has not furnished the policy; however, it appears that the policy required the notice in question “as soon as practicable” following the casualty.

This casualty occurred around 4:30 A.M., January 2, 1973. Plaintiff’s husband was injured and taken immediately to the hospital. He did not recover but went downhill and expired January 6, 1973. The insurance company admitted it received notice of plaintiff’s claim on January 10 by letter dated January 8 from plaintiff’s attorney. The rule in this situation “is that, if no time is specified or notice is required to be given immediately, notice given with diligence and in a reasonable time, due regard being had to the attending circumstances, is a legal compliance with such condition.” Columbia Paper Stock Co. v. Fidelity & Casualty Co. of New York, 104 Mo.App. 157, 78 S.W. 320, 323 (1904); Soukop v. Employers’ Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86, 92 (1937). Under this rule, the court was not required to convict Mrs. Scott of failure to give her notice “as soon as practicable” in the attending circumstances.

Judgment affirmed.

All concur.

      ,2. These matters are also expressed in the singular. See West’s Missouri Digest, Negligence 121.2(3).

      . MAI 17.13 was revised in 1973 to describe the single negligent act as “defendant’s automobile was on the wrong side of the road at the time of the collision.” MAI 1973 Pocket Part, p. 55.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Sherman BOYD, III, Appellant.
    No. KCD 28987.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application for Transfer Denied Feb. 9, 1978.
    Clifford A. Cohen, Public Defender, Charles M. Rogers, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., and SWOF-FORD, C. J„ and DIXON, J.
   SWOFFORD, Chief Judge.

The appellant (defendant) was convicted, upon trial by jury, of assault with intent to kill without malice (§ 559.190 RSMo 1969). The sole point raised by defendant upon this appeal is that the trial court erred in overruling his motion to disqualify the assistant prosecuting attorney of Jackson County who tried the case for the state from participating in the prosecution because of a conflict of interest. Therefore, the evidentiary facts and other facets of the case need not be considered.

The offense for which the defendant was tried and convicted occurred on November 13,1975. An information was filed January 21, 1976 and on January 28, 1976 the defendant was arraigned, waived the reading of the information and entered a plea of not guilty. Upon this occasion he was represented by private counsel for the purposes of arraignment only. On February 9,1976, this private counsel was permitted to withdraw and the Public Defender was appointed to defend, and that office represented him thereafter.

While the record is not perfectly clear as to the date, it was conceded that the defendant was represented at his preliminary hearing by an Assistant Public Defender on or about January 28, 1976.

At the trial of the case, which commenced on June 7, 1976, the defendant was represented by Mr. William Lopez, also an Assistant Public Defender.

At the time of the filing of the information, arraignment, and preliminary hearing, one Mark Bryant was also an Assistant Public Defender, leaving that office on March 1, 1976 and becoming an Assistant Prosecuting Attorney for Jackson County, Missouri, and he appeared as principal trial counsel for the state in the prosecution of the defendant below. It was upon the conceded fact of Mr. Bryant’s previous connection with the Public Defender’s office during the early stages of the defense that Mr. Lopez moved that he be disqualified from any connection with the prosecution of the case against the defendant because of conflict of interest.

Mr. Bryant categorically denied that he had any direct connection with or knowledge of the case during the period of time up to March 1,1976 when he left the Public Defender’s office and Mr. Lopez candidly admitted that he had no evidence to the contrary.

The above facts (here summarized) were developed in a pretrial in camera hearing at the conclusion of which the court below overruled and denied the defendant’s motion to disqualify Mr. Bryant.

The issue here raised can be simply stated but presents complex considerations of law, ethics and judicial administration. Does a conflict of interest arise where an Assistant Prosecuting Attorney prosecutes a criminal case, the defense of which was undertaken by the Public Defender while such prosecutor was an Assistant Public Defender when he had no actual knowledge of defendant or of his case during that time? Or more precisely stated: Need actual knowledge of the case or the facts be shown to give rise to such conflict?

The court below, defense counsel, and indeed, this court, accept the statements of Mr. Bryant and his disclaimer of any knowledge of the defendant’s case gained by reason of his connection with the defense organization and the lack of any showing of actual impropriety.

A prosecuting attorney is a quasi-judicial officer, an arm of the state, and he has the duty not only to see that the guilty are brought to justice but also that the innocent go free. A vital concomitant in the exercise of either function is to assure a fair trial and avoid impropriety in any prosecution. Equally important is the duty to avoid any appearance of impropriety. In the latter area there must be included as a meaningful component the strict avoidance of any appearance of conflict of interest, whether such conflict operates for the benefit of the state or the accused.

The Legislature has recognized the importance of requiring such high standards of conduct from prosecuting officials. By Section 558.310 RSMo 1969 (Laws 1889) it is made a misdemeanor for a prosecutor, having once engaged in the prosecution of a criminal case, to thereafter engage in the defense thereof. Sections 484.170, 484.180 RSMo 1969 (Laws 1889) make it a misdemeanor for counsel to defend a person criminally accused, prosecuted by his law partner, a prosecuting official. It will be noted that these statutory proscriptions, obviously directed against conflicts of interest, do not require any factual findings or showing of prejudice but are mandatory and automatic in their application.

The organized bar of Missouri is keenly aware of this principle. In Advisory Opinion No. 66 (subsequently renumbered No. 65) the Advisory Committee stated that a former Assistant Prosecuting Attorney is not permitted to accept employment in defense of a case which was pending while he held that office but which he did not pass upon, investigate or prosecute. 20 J.Mo.Bar 336 (1964).

It is also worthy of note that these statutory and ethical restrictions as to prosecutors are not couched in terms of prejudice to the accused or to the state but are rather directed to the public welfare and need that prosecutorial conduct be beyond reproach and the integrity of judicial proceedings remain beyond reproach, criticism or appearance of impropriety.

These statutes were passed and the Advisory Opinion issued before the legislative creation of Public Defenders. Chapter 600, Laws 1972, p. 1035, Section 1, et seq. Both the Prosecuting Attorneys and the Public Defenders are tax-supported branches of the government and logic rejects the proposition that the one should be impressed with the public interest and the restraint of avoidance of conflict and not the other.

Respondent contends that this strict standard with reference to conflict of interest is inapplicable in this case due to the fact that Mr. Bryant acquired no actual knowledge of the defendant’s case while Assistant Public Defender. Respondent, and the court below, apply an improper standard for the determination of this problem.

A case very similar and controlling in principle is State v. Burns, 322 S.W.2d 736, 742[6] (Mo.1959). In Burns, counsel was employed to defend the accused. Thereafter, and before trial, he assumed the office of Prosecuting Attorney and assigned one of his assistants to prosecute Burns. He revealed no confidences of his former client to his assistant and apparently divorced himself completely from the prosecution. Nevertheless, in reversing the conviction, the court held (l.c. 742):

“We shall not attempt to weigh or measure the actual prejudice in a case of this kind, and we do not consider a more specific showing of prejudice to be necessary. The acts were such as to infringe upon the generally recognized concept of proper conduct of prosecuting officials. Specifically, the acts constituted a violation of Rule 4.06 prohibiting the representation of conflicting interests.” (Emphasis supplied)

This principle is clearly and forcefully stated by the Supreme Court of Illinois in People v. Gerold, 265 Ill. 448, 107 N.E. 165, 177[13—15] (1914) in reversing a conviction where the prosecutor had previously advised the defendant on the same matter, l.c. 177:

“* * * an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter even though while acting for his former client he acquired no knowledge which could operate to the client’s disadvantage in the subsequent adverse employment. * * * If this is the rule in civil cases, the law will not be less strict in criminal proceedings, especially as to the duty in this regard resting upon counsel for the state. Such an officer is acting in a quasi-judicial capacity, and he and those associated with him should represent public justice * * *. It is unnecessary that the prosecuting attorney be guilty of an attempt to betray confidence; it is enough if it places him in a position which leaves him open to such charge * * *.” (Emphasis supplied)

See also and compare: Humble Oil and Refining Company v. American Oil Company, 224 F.Supp. 909, 911[2] (E.D.Mo.1963), where it was held that a conflict of interest arose not only from work done on a legal matter but access to confidential information.

Mr. Bryant’s employment as an assistant in the Public Defender’s office during part of the time that such office acted as counsel for the defendant followed by his prosecution of the defendant in the same case as Assistant Prosecuting Attorney creates an apparent conflict of interest and appearance of impropriety inimical to the proper administration of criminal justice. The trial court erred in overruling defendant’s motion to disqualify the assistant prosecutor.

Nothing herein is intended to reflect in any way upon the ethics or ability of the Assistant Prosecutor. No doubt exists that he acted in good faith in assuming his assigned task of representing the state in this case, but this situation should be scrupulously avoided.

Appellant does not raise possible constitutional problems in this case, and such are not decided. It should be noted, however, that the situation here presented is fraught with constitutional implications involving due process. State v. Burns, supra, at l.c. 742. The right to due process and a fair trial include the essential element that there is no unfair advantage to the prosecution by reason of a prior professional relationship “between a member of its staff and a criminal defendant concerning the same or closely related matter.” Branan v. State, 316 N.E.2d 406 (Ind.App.1974).

The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Edward Thomas COOK, Appellant.
    No. KCD 29188.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Kranitz & Kranitz, Hugh D. Kranitz, Ronald M. Sokol, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and SOMER-VILLE and WASSERSTROM, JJ.
   SOMERVILLE, Judge.

Two strangers were caught in a whirlpool of senseless events during the early morning hours of October 5, 1975, in Buchanan County, Missouri, resulting in the homicidal death of one and imprisonment of the other for fifteen years. One of the strangers, Edward Thomas Cook (defendant), was charged by information with murder in the second degree for killing the other stranger, Robert Allen Pistole (victim).

The charge was first tried to a jury in the court of Judge Frank D. Connett, Jr. and ended in a hung jury. Thereafter, defendant waived a trial by jury and the cause was submitted for trial to Judge Connett upon the following stipulation, “that the evidence which was adduced at the first trial in this matter will be presented to the court in the form of a transcript, with two additional stipulations, and waive any further hearing in the matter.” Although neither party requested findings of fact and declarations of law, Judge Connett made the following general and special findings which have the force and effect of the verdict of a jury:

“This Court finds beyond a reasonable doubt that on the 5th day of October, 1975, in the County of Buchanan, State of Missouri:
1. That the defendant caused the death of Robert Allen Pistole by shooting him with a .22 caliber single-action revolver;
2. The revolver was not fired accidentally;
3. The defendant intentionally fired the revolver in the direction of the deceased;
4. That the defendant did this while in the act of exhibiting a deadly and dangerous weapon in a rude, angry and threatening manner in the presence of Robert Allen Pistole;
5. The defendant was not acting in lawful self-defense when he pointed or fired the revolver at the deceased;
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED by the Court that the defendant Edward Thomas Cook is guilty of murder in the second degree and punishment is fixed by the Court at imprisonment in the State Department of Corrections for a term of 15 years.”

Defendant’s motion for a new trial was overruled, allocution was afforded, judgment was entered, and sentence was pronounced accordingly.

The facts, abstracted to the extent permitted by the points presented for review, will now be set forth. On the evening of April 4,1975, the victim attended a dance in St. Joseph, Missouri, sponsored by the Citizen’s Band Radio Club. Following the dance, the victim accompanied Gary Car-pentier to the latter’s home. At approximately 1:30 A.M. on the morning of April 5, 1975, the two men were talking on a citizen band radio which Carpentier had in his home. While doing so they were verbally abused by an unknown person using gutter language on the “C.B.” channel they were operating on. An argument ensued between the victim and the unknown person over the “C.B.” broadcast channel culminating in an agreement to meet at a service station on the northwest corner of Belt Highway and Mitchell “to settle the dispute.”

Gary Carpentier and the victim drove to the service station to keep the prearranged rendezvous in Carpentier’s 1977 maroon Vega station wagon. The station wagon was equipped with a “C.B.” radio. Carpen-tier and the victim waited at the service station anticipating the arrival of a brown pick-up truck which they erroneously believed contained the verbal assailant. Car-pentier and the victim waited in vain for the arrival of a brown pick-up truck. Defendant arrived at the service station driving a white 1966 Chevrolet. He was accompanied by Philip DeRoin and several other buddies. Neither defendant nor DeRoin identified DeRoin as the victim’s verbal assailant. While at the service station the victim, in the presence of defendant and DeRoin, stated that he was going to put some “speed knots” on the head of the person who had been verbally abusing him “over the air”. Several other motor vehicles with “whip” antennas arrived at the service station. A police officer who arrived ordered all of the vehicles which had gathered there to disperse. When the Vega station wagon occupied by the victim left the service station it was followed by the white 1966 Chevrolet driven by defendant.

Carpentier and the victim returned to Carpentier’s home. After their arrival they noticed the white 1966 Chevrolet cruising through the neighborhood. This prompted them to monitor several channels on the “C.B.” radio in Carpentier’s home. After doing so they concluded that the victim’s verbal assailant was an occupant of the white 1966 Chevrolet. Carpentier and the victim again left the Carpentier home in the Vega station wagon. This time their destination was a bowling alley on the Belt Highway. As they traveled north on the Belt Highway they came in sight of the white 1966 Chevrolet which was also traveling north on the Belt Highway. They gave chase to the white 1966 Chevrolet. As they did so, it turned east off of the Belt Highway and onto Frederick Avenue. They too turned east onto Frederick Avenue and pulled up alongside the white 1966 Chevrolet. The victim was sitting in the right front seat of the Vega station wagon and defendant was driving the white 1966 Chevrolet. While the two vehicles were traveling east on Frederick Avenue, side by side, at a speed of approximately ten to fifteen miles per hour, the following occurred. The victim rolled down the window on the passenger side of the Vega station wagon and shouted, “You motherfuckers, you’re going to get it now, you son-of-a-bitch.” Carpen-tier and the victim had no weapons. Defendant reached under the seat of his car and picked up a loaded .22 caliber single action revolver which he owned. Holding the revolver by the butt, defendant stuck it out the window. The revolver was discharged and a bullet fired from it struck and killed the victim. After the fatal shot was fired, defendant “floorboarded” his car and fled the scene. He was eventually found in a service station “hiding under a mattress”.

According to defendant he didn’t mean to shoot the victim, “the gun just went off”. He claimed he didn’t have his finger on the trigger when the revolver fired and that it was discharged accidentally. Defendant further testified that while holding the revolver outside the window, DeRoin, who was sitting in the front seat of defendant’s automobile, placed his arm in front of defendant’s arm and then pulled it back and as he did so the revolver discharged. It is appropriate to note at this point that the parties stipulated that if DeRoin “were called to the stand, his testimony would be that at the time Robert Allen Pistole was shot, Philip DeRoin did not reach across in back or in front of the defendant.”

A “firearm expert” called by the state testified that the weapon which fired the fatal shot was a single-action revolver; that it had five “hammer positions”, the “fired” position, the “quarter-cocked” position, the “half-cocked” position, the “three-quarter-cocked” position, and the “full-cocked” position; that it had to be in the “full-cocked” position before it could be fired by means of pulling the trigger. He also testified that when the hammer was in the “fired” position, striking the muzzle or “back portion” of the hammer “with a sufficient amount of force” could cause the gun to fire. Although the witness demonstrated to the jury at the first trial what constituted a “sufficient amount of force”, it is not reflected by or preserved in the record.

Six points are raised by defendant on appeal. In varying degree they are involved, lengthy, and vacillatory in terms of frame of reference. In several instances they are negatively posed. This court has undertaken the concededly difficult task of compressing and restating them for purposes of this opinion. Doing so has produced the following results. One: (a) the evidence is insufficient to support the trial judge’s finding that defendant intentionally fired the revolver; and (b) under all the evidence defendant, as a matter of law, was acting in lawful self-defense when he fired the revolver at the victim. Two: (a) the evidence is insufficient to support defendant’s conviction for conventional second degree murder because of the existence of provocation which reduced the homicide to manslaughter; and (b) the evidence is insufficient, generally speaking, to prove, and the trial court failed to find, all the requisite elements of conventional second degree murder. Third: As the general and special findings made by the trial judge show that defendant was found guilty of second degree felony murder, the information upon which defendant was tried failed to vest the trial judge with jurisdiction because it failed to allege an underlying felony. Four: The guilty verdict, as connoted by the general and special findings of the trial judge, is so vague and ambiguous that it would not bar defendant’s subsequent prosecution for an underlying felony. Five: Convicting defendant of second degree felony murder on the basis of a felony which was an integral part of the homicide “eviscerated” his defense of provocation and “negated” the requisite elements of conventional second degree murder. Six: As the general and special findings of the trial judge failed to affirmatively find all the requisite elements of conventional second degree murder, defendant was acquitted of conventional second degree murder and therefore entitled to have his conviction reversed outright or, at most, reversed and remanded for a new trial solely on manslaughter.

Defendant, in a perfunctory manner, variously attributes two meanings to the guilty verdict returned by the trial judge. In advancing certain claims of error, he treats it as finding him guilty of conventional second degree murder. With equal facility, in advancing other claims of error, he treats it as finding him guilty of second degree felony murder. The dichotomous approach taken by defendant toward the guilty verdict has injected considerable confusion into the collective points of error asserted on appeal and has placed them in a dispositional dilemma. Determination of just which of the two versions of homicide the trial judge found defendant guilty of will eliminate the confusion, resolve the dilemma, and narrow the issues on appeal.

The trial judge’s special finding that defendant shot the victim “while in the act of exhibiting a deadly and dangerous weapon in a rude, angry and threatening manner in the presence of Robert Allen Pistole [victim]” is stressed by defendant as being conclusively indicative of a guilty verdict of second degree felony murder because the conduct outlined in quotes constitutes a felony proscribed by Section 564.610, RSMo 1969. Defendant weights this special finding out of all proportion with the other special findings and ultimate verdict returned by the trial judge. Other special findings made by the trial judge, i. e., that the revolver was not fired accidentally and that defendant intentionally fired the revolver at the victim, would be wholly immaterial and superfluous if the verdict were to be construed as finding defendant guilty of second degree felony murder. State v. Barnett, 365 Mo. 1060, 293 S.W.2d 335, 343 (banc 1956), affirming a conviction for first degree felony murder, held that it was immaterial that the fatal shot may have been fired unintentionally or accidentally. See also State v. Beal, 470 S.W.2d 509, 513 (Mo. banc 1971). Basic logic transposes this principle to second degree felony murder cases and common sense effects the same result. Moreover, the trial judge’s special finding that defendant intentionally fired the revolver at the victim, as opposed to the revolver being accidentally fired, constituted a finding of an essential element of conventional second degree murder, namely, willfulness. As oft stated, the requisite elements of second degree murder are willfulness, premeditation and malice aforethought. State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973). In the context of murder, willfulness is defined as “intentionally” or “knowingly”. State v. Marston, 479 S.W.2d 481, 484 (Mo.1972). As aptly put in State v. Woolford, 545 S.W.2d 367, 372 (Mo.App.1976), “[u]pon the . . . finding of the intentional killing of a human being with a deadly weapon used upon a vital part of the body, a presumption of the requisite malice and premeditation arises.”

An even more compelling reason exists to conclude that the trial judge found defendant guilty of conventional second degree murder and not second degree felony murder. The salient facts disclose that no appreciable amount of time elapsed between the time defendant stuck the revolver out the window of the car and the shooting of the victim. This being the case, defendant’s display of the revolver in a “rude, angry and threatening manner” was such an integral part of the consummated homicide that it lost its separate identity. Contrary to defendant’s contention, it did not constitute a separate underlying felony proscribed by Section 564.610, supra, but was part and parcel of the homicide itself. In those countless homicide eases where deadly weapons are wielded in an unconcealed manner to inflict mortal wounds there is necessarily a period of time, fleeting in some, longer in others, when the deadly weapon is displayed in a rude, angry and threatening manner in the victim’s presence. The attendant physical realities of such offenses inexorably dictate this result. Exhibiting the revolver in a rude, angry and threatening manner in the presence of the victim in the instant case was of such a fleeting nature that it was a distinct part of and inseparably related to the overall physical act required to perpetrate the homicide. Common sense dictates that flourishing the weapon in the manner heretofore mentioned and killing the victim constituted a single indivisible transaction. Such being the case, no distinct or separate underlying felony existed upon which to predicate application of the second degree felony murder rule. To hold otherwise would give the felony murder rule a diabolic twist, extend its application beyond all national bounds, and pervert the very purpose which it was legally designed to serve. Basing the result heretofore reached upon the concept that only a “single indivisible transaction” was involved finds support in a number of other jurisdictions. See: People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (banc 1969); People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927); State v. Branch, 244 Or. 97, 415 P.2d 766 (banc 1966); and State v. Essman, 98 Ariz. 228, 403 P.2d 540 (banc 1965).

As noted in Cook v. State, 511 S.W.2d 877, 879 (Mo.App.1974), with respect to jury verdicts “the controlling object is to learn the intent of the jury”, and in ascertaining the jury’s intent their verdict “should be liberally construed” and should not be tested “by technical rules of construction.” No reason comes to mind why the same should not likewise be applicable to verdicts in court tried cases. When the facts at hand are juxtaposed with the special findings made by the trial judge, in an atmosphere composed of the various principles heretofore mentioned, it becomes apparent that the verdict is not as rife with doubt as defendant would have all believe. Concomitantly, this court finds that the verdict which defendant faults does not have to be torturously construed to arrive at the conclusion that the trial judge intended to and did find defendant guilty of conventional second degree murder.

Moving on from the digression occasioned by the necessity of construing the verdict returned by the trial court, attention now focuses on the points of error asserted by defendant. Defendant’s contention that the evidence was insufficient to support the trial judge’s finding that he intentionally fired the revolver rests on his exculpatory testimony that the revolver fired accidentally. Defendant conveniently ignores the inherent weakness of this contention — the prerogative possessed by the trier of the facts to disbelieve and reject defendant’s exculpatory testimony. State v. Rose, 325 S.W.2d 485, 487 (Mo.1959); State v. Love, 546 S.W.2d 441, 455 (Mo.App.1976); and State v. Garrett, 510 S.W.2d 203, 206 (Mo.App.1974). On the other hand, the trial judge could reasonably find from the collective import of the following evidence that defendant intentionally fired the revolver: (1) defendant reached under the driver’s seat of his car and grabbed a loaded revolver which he kept there; (2) holding the revolver by the butt, he stuck it out the window and pointed it toward the victim; (3) the revolver was fired; (4) nothing struck the revolver while it was being held out the window which would cause it to fire accidentally; and (5) the bullet fired from his revolver struck the victim in a vital area and caused his death.

Regardless of the patent inconsistency between “accidental” or “excusable” homicide and self-defense, defendant contends that he was entitled to acquittal as a matter of law on the ground of self-defense. The absence of aggression or provocation on the part of an accused, a real or apparent apprehension on his part of the necessity to kill in order to avoid great bodily harm or being killed, the existence of reasonable cause to support such apprehension, the doing of everything in his power, consistent with his own safety, to avoid the danger confronting him and to avert the necessity of taking the life of another, and a duty to retreat, if retreat be practicable, are the constituent requirements of self-defense. State v. Jackson, 522 S.W.2d 317, 319 (Mo.App.1975), and cases cited therein. When evidence touching upon them is contradictory or of such a character that different inferences might reasonably be drawn, it is up to the trier of the facts to resolve whether an accused acted in self-defense. State v. Hammonds, 459 S.W.2d 365, 368 (Mo.1970); State v. Hicks, 438 S.W.2d 215, 219 (Mo.1969); and State v. Vincent, 321 S.W.2d 439, 442 (Mo.1959). The trial judge could reasonably find that defendant and his compatriots provoked the confrontation that resulted in the victim’s death, and that defendant fell woefully short of doing everything within his power, consistent with his own safety, to avoid the confrontation and avert killing the victim. Defendant and his compatriots had numerous opportunities to “retreat” to the safety of their individual homes throughout the course of the early morning hours in question. Instead of doing so, they chose to continue to incite trouble and went out of their way looking for it. Moreover, the absence of any weapons possessed by the victim or the driver of the car he was riding in, coupled with the physical locations of the defendant and the victim in separate moving automobiles, substantially negates any basis for any real or apparent apprehension on defendant’s part that it was necessary to kill the victim in order to avoid being killed.

Defendant’s claim that the evidence discloses that he was provoked into killing the victim, thereby reducing the homicide to manslaughter, as a matter of law, is equally misplaced. The only provocation which defendant has to rely upon was verbal. This state has repeatedly held that verbal provocation is insufficient to reduce a proven case of second degree murder to manslaughter. State v. Hubbard, 484 S.W.2d 224, 226 (Mo.1972); State v. Mosley, 415 S.W.2d 796, 799 (Mo.1967); and State v. Taylor, 309 S.W.2d 621, 624 (Mo.1958).

Defendant’s attack upon the sufficiency of the evidence to prove, and the trial court’s failure to find, all the requisite elements of conventional second degree murder is, in a limited sense, directly akin to his earlier contention that the victim was shot accidentally rather than intentionally. The trial judge could, and obviously did, reasonably find that defendant intentionally killed the victim by means of a deadly weapon used upon a vital part of the latter’s body. It is appropriate at this point to reiterate the established principle that by reason of certain permissible inferences, a submissible case of conventional second degree murder is made when the evidence discloses the intentional killing of a human being by another with a deadly weapon used upon a vital part of the victim’s body. State v. McQueen, 399 S.W.2d 3, 6 (Mo.1966); State v. Goodwin, 352 S.W.2d 614, 619 (Mo. banc 1962), cert. denied 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174 (1962); State v. Majors, 329 Mo. 148, 44 S.W.2d 163, 167 (1931). The foregoing adequately disposes of defendant’s attack upon the sufficiency of the evidence to prove, and the trial court’s failure to find, all the requisite elements of conventional second degree murder. Particularly so as “a presumption of the requisite malice and premeditation” in the context of second degree murder “arises” upon a finding that there was an intentional killing of a human being with a deadly weapon used upon a vital part of the body. State v. Woolford, supra, at 372.

The frame of reference for defendant’s third and fifth points is that the trial court found him guilty of second degree felony murder, and the frame of reference for his fourth point is that the verdict is so vague and ambiguous that it is impossible to tell whether the trial court found him guilty of conventional second degree murder or second degree felony murder. Having concluded that the trial court found defendant guilty of conventional second degree murder, his third, fourth, and fifth points are rendered academic.

Having heretofore concluded that the general and special findings and verdict returned by the trial court adequately constituted a finding that defendant was guilty of conventional second degree murder, defendant’s sixth and final point is minus a base from which to forge any ground for relief.

Judgment affirmed.

All concur.

      . “The state and defense would stipulate that if Philip DeRoin were called to the stand, his testimony would be that at the time Robert Allen Pistole was shot, Philip DeRoin did not reach across in back or in front of the defendant.”
      “The other stipulation would be that in rebuttal to that testimony, your Honor, Mr. Cook, if called to the stand, would testify that during the jury deliberations in the first trial, Mr. DeR-oin came up to Mr. Cook and stated that if he were called he would not tell the truth about what happened that evening.”

      . Rule 26.01(c) provides in part: “In a case tried without a jury the court shall make a general finding and may in addition, in his discretion, find the facts specially. . .

      . Rule 26.01(b) provides in part: “The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury.

      . According to defendant, one example being exhibiting the revolver in a rude, angry and threatening manner in the presence of the victim in violation of Section 564.610, RSMo 1969.

      . State v. Hale, 371 S.W.2d 249 (Mo.1963); and State v. Malone, 301 S.W.2d 750 (Mo.1957).


author: WEIER, Judge.

text:
    Gordon A. GUNDAKER, Jr., d/b/a Gordon A. Gundaker Real Estate Company, Appellant, v. Jerry J. TEMPLER and Karen M. Templer, Respondents.
    No. 38549.
    Missouri Court of Appeals, St. Louis District, Division 3.
    Dec. 6, 1977.

      William C. Wefel, St. Louis, for appellant.
    James L. Homire, Jr., St. Louis, for respondents.
   WEIER, Judge.

The defendants, Jerry J. Templer and Karen M. Templer, were the owners of certain real estate in St. Louis County. Wishing to sell this property, they entered into an exclusive listing contract with the plaintiff, Gordon A. Gundaker, Jr., a licensed real estate broker. This contract, which was a form provided by plaintiff, read in part as follows:

“If within three (3) months after date of this listing, a ready, willing and able purchaser is produced by the undersigned Realtor, or by us, [owners] or by any other person, or if said property shall be contracted by us to be sold to, leased to, or exchanged with any person procured by the undersigned Realtor, or by us, by any other person, or if within an additional term of two (2) months the property is contracted, by us to be sold to, leased to, or exchanged with anyone contacted by or through said Realtor within the first period, and registered in writing with us within ten (10) days following the expiration of the first period, we will pay said Realtor a commission on the total selling, leasing, or exchange price of 6%.”

The contract was dated July 13,1972, and thus the initial three month period expired on October 12, 1972. The additional two month period ran from October 13, 1972 to December 12, 1972. During the initial three month period, Gundaker interested a Robert L. West, Jr., and a Terene M. West in buying the Templer property. The Wests made three successive offers to buy the property, each time having the plaintiff submit to defendants a written earnest money contract. The Templers responded to these offers by making counteroffers. Thus on August 22,1972, the Wests offered to pay $30,000 for the property and the Templers answered by offering to sell for $34,900. On August 30, 1972, the Wests offered to buy for $31,200 and the Templers offered to sell for $34,500. On September 22, 1972, the Wests offered to buy for $32,-500 while the Templers offered to sell for $33,500.

No agreement was made until, on October 25, 1972, the Wests and the defendants, acting on their own, contracted to sell the property for $32,500. The property was actually conveyed to the Wests by deed from the Templers dated November 27, 1972, and recorded December 1, 1972. The defendants refused to pay Gundaker any commission on the sale. He sued for the 6% commission mentioned in the listing contract in magistrate court, where judgment was entered for the Templers. He then appealed to circuit court, where the above facts were established through discovery proceedings. Both parties filed motions for summary judgment. The circuit court denied Gundaker’s motion and granted Tem-plers’ motion. On appeal from that judgment to this court, plaintiff seeks to reverse the court’s judgment and remand for an entry of judgment in his favor.

It is beyond doubt that the eventual buyers of defendants’ property were contacted by and through the plaintiff real estate broker within the initial three month period under the listing contract and that the property was both contracted to be and actually sold to these buyers within the additional two month period. The issue in this case is whether the plaintiff substantially complied with that portion of the listing contract making the payment of commission on a sale within the additional two month period dependent on the broker’s registering in writing with the property owners the eventual buyers within ten days following the end of the first or three month period and whether such compliance was sufficient. The plaintiff concedes that he did not literally comply with the terms of the contract, such literal compliance requiring by the unambiguous terms of the listing contract that he give the defendants during the period from October 13 to October 22, 1972, a list of the names of those potential buyers he had contacted within the three month period. The plaintiff contends, however, that by submitting the three written offers, each of which had the Wests’ name on it, during the three month period, he substantially complied with the requirements of the contract and thus is entitled to commission on the sale. The defendants also agree that the plaintiff did not literally comply with the unambiguous terms of the contract. They contend, however, that substantial compliance, if it existed, was insufficient because literal compliance was the intent of the contracting parties as was shown by the clear and unambiguous language of the contract; and thus plaintiff’s failure to so comply with the contract was justifiably relied on by the defendants as a basis for their action in reducing the sale price to a previously unacceptable level because no commission would be due on the sale.

Before turning to the question of substantial compliance, we must answer the plaintiff’s additional contention that he is entitled to his commission merely because he was the procuring cause of the sale. Such a contention would have probably resolved this case if appellant had sued on quantum meruit or on a general listing contract, but here the action was brought on a special contract, one fixing by its own terms when a commission is to be paid, and for that reason appellant’s right to a commission must be governed solely by those terms. See E. A. Strout Realty Agency, Inc. v. McKelvy, 424 S.W.2d 98, 101[1] (Mo.App.1968); Nichols v. Pendley, 331 S.W.2d 673, 675-76 (Mo.App.1960).

Before we determine if there has been substantial compliance with this contract, we must determine what literal compliance, which both parties agree did not occur here, would have entailed. The key phrase in the contract is “registered in writing with us within ten (10) days following the expiration of the first period.” “Register” is defined in Black’s Law Dictionary (Rev. 4th edition, 1968) as “[t]o record formally and exactly; to enroll; to enter precisely in a list or the like.” As used in this real estate contract between private parties, this phrase is reasonably susceptible of only one construction, that of entering the names of prospective customers precisely in a list. Since this phrase is susceptible of only this one construction, it is unambiguous and its meaning is a matter of law for the court to decide. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264[1—9] (Mo. banc 1973).

Certainly, plaintiff at no time gave defendants a list with the Wests’ name on it and so he did not literally comply with the registration provision of the contract. Defendants contend such literal compliance was necessary here and substantial compliance was not enough. Many Missouri cases, however, have held that substantial compliance with a contract is enough to entitle a plaintiff to recover for his performance under it, including at least one case that has applied this substantial compliance rule to an action for a commission on a real estate contract. See, e. g., McAlpine Company v. Graham, 320 S.W.2d 951, 954[4] (Mo.App.1959); Fredericktown Chamber of Commerce v. Chaney, 250 S.W.2d 820, 824—25[6, 7] (Mo.App.1952); Meyers v. Kilgen, 177 Mo.App. 724, 160 S.W. 569, 572[1, 3] (1913); Clough v. A. J. Stillwell Meat Co., 112 Mo.App. 177, 86 S.W. 580, 582 (1905). In accordance with this general rule, we find substantial compliance, if it existed, to be enough here. It might be different if there had been an express provision in the contract requiring literal compliance, but no such provision was included. In the absence of such a provision, we cannot find that it was the parties’ intent to require literal compliance. Therefore, we must find that the defendants were not justified in relying on a lack of literal compliance by the plaintiff to reduce their sale price.

Having found that substantial compliance would be enough here, we must determine if plaintiff substantially complied with the registration provision when he submitted three written offers to the defendants, each offer containing the name of the eventual buyers, the Wests. There is no Missouri law directly on point. But the cases generally define what constitutes substantial compliance. A party’s performance under a contract is substantial if the deviation from the contract was slight and if the other party received substantially the same benefit it would have from literal performance. McAlpine Company v. Graham, supra at 954[4]; Fredericktown Chamber of Commerce v. Chaney, supra at 825; Clough v. A. J. Stillwell Meat Co., supra at 582. Here the distinction between a written list with the buyers’ name on it and a written offer with their name on it is trivial. Moreover, the benefit to be received by defendants by being given a list was received by them by being given a written offer. That benefit was written notification of those customers whom the plaintiff had contacted during the first three month period and whom the defendants could not sell to within the second two month period without being liable for a commission. Giving defendants a list, in addition to the written offers, would have served no practical purpose. In support of our decision, we cite cases from other jurisdictions concerned with similar contract provisions. Hyde Park-Lake Park, Inc. v. Tucson Realty and Trust Co., 18 Ariz.App. 140, 500 P.2d 1128, 1130-31[1] (1972) (submitted in writing); Schwartz v. Weinstein, 104 N.J.L. 368, 140 A. 418 (1928) (reported in writing); Briggs v. Henley, 319 S.W.2d 453, 455—56[2] (Tex.1958) (advised in writing); L. W. Smith and Co. v. Romadka, 261 Wis. 374, 52 N.W.2d 797, 798[3] (1952) (filed in writing), as limited by Dunn and Stringer Inv. Co. v. Krauss, 264 Wis. 615, 60 N.W.2d 346, 348 (1953). Even without these cases, however, we believe our reasoning to be sound.

The final aspect of the substantial compliance question left to be addressed concerns time. In all the cases cited above, the act which the courts considered to be in fulfillment of the writing provision of the contract took place within the time specified in the contract. Here, however, the written offers were submitted before the time specified in the contract, for they were submitted during the three month period and not during the ten days following it. Naturally, there would have been no substantial compliance if the offers had been submitted after the ten day period. See E. M. Boerke, Inc. v. Williams, 28 Wis.2d 627, 137 N.W.2d 489, 492-93 (1965). For then defendants would not have received the benefit of timely notice. Such benefit was received, however, by an early notice and this deviation from the contract terms was insignificant. Therefore, there was a substantial compliance as to time as well as manner of notification and plaintiff is entitled to his commission.

We reverse the summary judgment for defendants and remand the case to the circuit court with directions to enter a summary judgment for plaintiff.

GUNN, P. J., and KELLY, J., concur.

      . Ordinarily, the question of the existence of substantial compliance is one for the jury, Meyers v. Kilgen, supra, 160 S.W. at 572[3], but here the facts claimed to constitute substantial compliance are not in dispute and we believe that only one reasonable conclusion can be drawn from them, making this a question for the court.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence BENNETT, Defendant-Appellant.
    No. 38504.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 6, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied Feb. 8, 1978.

      Tofle, Mack & Oxenhandler, Ollie R. Mack, Columbia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, James G. Gregory, Pros. Atty., Montgomery County, Montgomery City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Clarence Bennett appeals from a judgment of conviction entered by the circuit court of Montgomery County, on a jury verdict finding him guilty of stealing property of the value of more than $50.00, § 560.156, RSMo 1969, and sentencing him to two years in the custody of the Department of Corrections. In reviewing the record, we view the evidence and inferences reasonably to be drawn therefrom in a light most favorable to the state.

On November 3, 1975, Claude Perry parked his Ford pickup truck on the street in Wellsville, Missouri. Mr. Perry left his truck unlocked at 7:00 a.m., on his way to move cattle. Located on a gun rack in the cab of the truck was Perry’s .22 caliber automatic rifle.

At approximately 8:00 a.m., on the day in question, Benny Beshears and Frank Koes-ter were driving through Wellsville on their way to go duck hunting. In doing so, they noticed Perry’s truck parked near a 4-way stop in Wellsville. Both Beshears and Koester knew Claude Perry and were aware of the fact that he kept his rifle in his truck. As they approached the location of Perry’s truck, Beshears and Koester noticed a person who they later identified as the defendant moving suspiciously near the truck. The defendant was carrying a rifle. Upon further observation, they witnessed defendant “sneaking” in a crouched position alongside a car. Defendant proceeded to throw the rifle in the passenger side and run around to enter the driver’s seat. Beshears and Koester pulled up to where the defendant’s vehicle was located. Both yelled at him, but he failed to respond. Koester alighted from his vehicle and stepped in front of defendant’s vehicle. Defendant swerved to avoid striking Koes-ter and drove off along Highway 19. Koes-ter recorded the license number of the vehicle and reported the occurrence to John Whyte, Chief of Police in Wellsville.

Upon returning to his truck, Claude Perry discovered his rifle was missing and reported the theft to John Whyte. The rifle was found three days later in the backyard of Chief Whyte’s home. The chief’s ten-year-old son discovered the firearm while playing in the backyard. Apparently the gun had been abandoned by someone throwing it over a fence which borders the chief’s yard. An alley runs adjacent to the backyard which intersects with Highway .19. Rain had caused rust to form on the rifle, consequently no fingerprints were traceable.

Defendant was apparently apprehended through the use of the license recorded by Frank Koester. Defendant was subsequently charged and convicted of stealing property of the value of more than $50.00. This appeal follows.

On appeal defendant contends the court erred in overruling defendant’s motion for judgment of acquittal at the close of all the evidence for the reason that, “. . . the State failed to connect the accused with the disappearance of or possession of the missing rifle by sufficient circumstantial evidence to warrant a conviction proving defendant’s guilty (sic) beyond a reasonable doubt.” Although defendant’s brief alludes to the sufficiency of the evidence to support a conviction, we believe that defendant’s principal contention is that no submissible case was made. The record does not contain direct evidence of the defendant entering the truck and removing the rifle. Therefore, our determination is limited to whether the state presented sufficient circumstantial evidence to make a submissible case.

Defendant contends that presence at the scene of the crime alone is insufficient to make a submissible case. While we agree that presence is insufficient alone, it is evidence to consider in determining guilt. State v. Simmons, 494 S.W.2d 302 (Mo.1973). Further, flight from the scene of a crime is not sufficient to make a submissi-ble case; however, it may also be considered. State v. Simmons, supra.

Defendant was charged with stealing property of a value of more than $50.00. The elements of this crime have been defined to mean the felonious taking and carrying away of the property of another. State v. Eye, 415 S.W.2d 729, 730[2] (Mo.1967). Implicit in this crime is the showing of affirmative participation. Therefore, our courts require some evidence of defendant’s affirmative participation in the offense to support a conviction. State v. Reed, 453 S.W.2d 946 (Mo.1970). Thus to make a submissible case, the state is required to provide some evidence of affirmative participation. State v. Burks, 521 S.W.2d 11 (Mo.App.1975).

The evidence to show affirmative participation may be circumstantial. To warrant a conviction or make a submissible case, however, based on circumstantial evidence, the facts and circumstances must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant’s .guilt, but must be inconsistent with every other reasonable hypothesis of innocence. State v. Eye, 492 S.W.2d 166, 167-168 (Mo.App.1973); State v. Burnley, 480 S.W.2d 881, 882 (Mo.1972).

Defendant contends there is no evidence, circumstantial or otherwise, that he removed the rifle or at any time had it in his possession, and therefore, the jury was required to speculate. While the record is absent of any direct evidence, the facts in evidence give rise to a strong inference on which a jury could reasonably believe affirmative participation. We are aware of no case that requires the state to show affirmative participation by means of direct evidence. Such a requirement would impose a heavy burden which is frequently beyond proof.

Here defendant was seen within 18" of Mr. Perry’s truck. He was seen by two eyewitnesses carrying a rifle that resembled the stolen firearm. Further his conduct in “sneaking” around in a crouched position towards a car used to hastily leave the scene gives rise to the inculpatory inference. Although not probative by itself, defendant’s failure to respond to Beshears and Koester at the scene corroborates the inference of perpetration.

Taken as a whole, we believe that the evidence shows more than presence of the defendant at the scene of the crime, and that there was sufficient circumstantial evidence to make a submissible case. Further, we believe that the circumstantial evidence is inconsistent with every other reasonable hypothesis of innocence.

Accordingly, we hold the court did not err in overruling defendant’s motion for judgment of acquittal.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.