text:
    UNITED SAVINGS LIFE INSURANCE COMPANY, Appellant, v. Marvine Claudia (Wiley) COULSON, Appellee.
    No. 8788.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 27, 1977.
    Rehearing Denied Jan. 23, 1978.

      Elliott, Churchill, Hansen, Dyess & Max-field, Bobby D. Dyess, Dallas, for appellant.
    Jones, Trout, Flygare & Moody, Charles B. Jones and W. Hollis Webb, Jr., Lubbock, for appellee.
   ROBINSON, Chief Justice.

This is a suit to recover on a life insurance policy. Decedent was an agent of the insurer, and had submitted an application on himself. The company rejected him as a standard risk and offered him a rated-up policy. After some delay he tendered the additional premium, accepting the counteroffer on the day before his death. Between the date of the initial application and the date of acceptance of the counteroffer, decedent learned that he suffered from severe coronary artery disease, which was the eventual cause of death. Decedent’s widow brought suit on the policy when the insurer denied liability. A jury returned a verdict for decedent’s widow, and the insurer has appealed. Reversed and rendered.

Walter Coulson was a life insurance agent for the defendant, United Savings Life Insurance Company, from 1968 until he died on July 6, 1970. On March 15, 1970, Coulson applied for a $50,000 insurance policy on his own life with his company. The company’s application form included a receipt which offered immediate coverage if several conditions were fulfilled. If the agent received the first premium at the time of the application, he was to deliver the conditional receipt to the applicant. The company received Coulson’s application with the receipt already removed and with a check for the first premium at the rate for a standard risk. When Coulson made this application he knew that he suffered from high blood pressure. He had been taking medication for this condition for several years. His wife testified that Coulson knew his application would not be accepted as a standard risk because of the high blood pressure. Coulson had applied for a policy with United Savings Life during 1969 and at that time the company refused to write a standard policy because of the high blood pressure. Coulson did not accept the rated-up policy in 1969. There is no evidence that his condition had improved when he made the March, 1970, application.

On May 26,1970, Coulson first visited Dr. Roy Sheffield in Lubbock. He complained to Doctor Sheffield of chest pains and heart palpitations. Doctor Sheffield performed an electrocardiogram which showed a positive finding of coronary artery disease. On this first visit, Doctor Sheffield told Coul-son that he had a serious disease. The doctor said in his deposition, “I don’t know that I used those words exactly, but I indicated to him that he had heart trouble and he was taking nitroglycerin for that purpose.”

On June 8, 1970, a rated-up policy was prepared by United Savings and forwarded to Coulson with a notice that the contract had been rated up. The notice requested that the agent (Coulson) collect an additional premium of $289.00 when he delivered the policy. Coulson did not immediately accept the policy.

Coulson returned to Doctor Sheffield on June 12 for further examination. At this time Coulson was taking blood pressure medication (which he had been taking for several years), nitroglycerin for pain, and pentriol, a long lasting drug to dilate the blood vessels. On June 12, Doctor Sheffield felt that Coulson was having coronary insufficiency, an impending heart attack, and told him so.

Doctor Sheffield saw Coulson again on June 26, 1970. Coulson related two episodes of anginal pains both of which awakened him from his sleep. Doctor Sheffield testified that heart disease is getting quite serious when one has pains while asleep or resting.

On July 5, 1970, Coulson mailed a check dated July 6,1970 in the amount of the full additional premium ($289.00), together with the signed delivery receipt. Coulson died of a heart attack on July 6, 1970.

Plaintiff brought suit on the policy alleging that it was effective March 15, 1970, when Coulson made application and submitted the first premium. The policy provided:

EFFECTIVE DATE— This policy will be effective as soon as it has been delivered to the owner and the first premium has been paid during the lifetime and continued insurability of the proposed insured. If the first premium is paid in exchange for a binding receipt on the date of application, then this policy will become effective as provided in the binding receipt.

(Emphasis added). The binding receipt provided:

The insurance applied for shall be effective from the date of the application numbered as on the reverse side only if Conditions A, B, and C, have been fulfilled. CONDITION A: A deposit at least equal to the premium for one full month’s insurance under the terms of the policy contract applied for has been received by the Company. CONDITION B: As required by the Company, (1) the Parents’ Health Statement has been completed and received by the Company, (2) the medical examination or examinations have been completed and received by the Company, and/or (3) any further information required by the Company has been received by the Company. CONDITION C: On the date of this application or upon the fulfillment of the conditions set forth in Condition B above, which ever date is later, the proposed insured was insurable and acceptable under the Company’s rules and practices for insurance on the plan in the amount and at the class of risk applied for in Part I of the application. Upon fulfillment of the conditions set forth in Conditions A, B, and C above, the insurance applied shall be effective from the date of this application, and the policy contract issued pursuant to this application shall be the date of this application.

(Emphasis added).

Defendant denied that a conditional receipt was issued, and further contended that even if issuance was proved, the conditions of the receipt were not met because Coulson was not insurable at the class of risk applied for on March 15,1970. Defendant alleged that the heart condition rendered Coulson uninsurable at any rate, and that Coulson, as both agent of the company and insured, breached his duty to advise defendant of the change in his health.

The jury findings in response to the special issues submitted were:

1. There was not such a change in the physical condition of Walter Coulson from March 15, 1970 (application submitted) to June 8, 1970 (mailing of rated-up policy) as to affect his insurability.

5. There was such a change in the physical condition of Walter Coulson from March 15, 1970 to July 5, 1970, as to affect his insurability.
6. Walter Coulson became aware of such change in his physical condition during the period March 15, 1970 to July 5, 1970, as would affect his insurability.
7. Walter Coulson was aware that such change would be of some medical significance to the underwriting department of United Savings Life Insurance Company.
8. The underwriters of United Savings Life Insurance Company would not have written a policy of insurance on Walter Coulson’s life because of the change in Walter Coulson’s physical condition during the time inquired about in Issues No. 5 and No. 6.
9.Walter Coulson received a binding receipt on March 15, 1970, the date on which he made application for life insurance.
10. Condition C of the receipt was fulfilled.
11. United Savings Life Insurance Company issued to Walter Coulson a policy of life insurance effective March 15,1970.
12. The policy was issued on the basis of the health of Walter Coulson on March 15, 1970.

The court denied defendant’s motion for judgment notwithstanding the verdict and granted judgment for plaintiff on the verdict. Plaintiff was awarded the face amount of the policy, a 12% statutory penalty, interest from the date of death, and attorney’s fees.

At the outset, it is apparent that, as a matter of law, Condition C of the conditional receipt was not fulfilled. Considering the evidence in the light most favorable to plaintiff’s position, there is no evidence that at any material time Coulson was insurable at the class of risk applied for in his March 15, 1970, application.

The application submitted by agent Walter Coulson on his own life, dated March 15, 1970, was rejected by United Savings Life Insurance by their counteroffer of a rated-up policy sent to Coulson on June 8, 1970. Where a party applies for insurance, and there is an acceptance upon different terms from those offered, it results in a rejection of the offer, but operates as a counteroffer, which must be accepted by the insured in order to render the insurance effective. Springfield Fire & Marine Ins. Co. v. Hubbs-Johnson Motor Co., 42 S.W.2d 248 (Tex.Comm’n App.1981). The Texas Supreme Court has applied this principle to life insurance:

For acceptance by the insurer to constitute a completion of the contract . such acceptance must be of the terms and conditions exactly as proposed by the application. If the insurer accepts the application only upon certain conditions being met, or proposes a new form of contract with new terms and provisions, that action of the insurer amounts to a rejection of the original proposition, and a counter offer which must be accepted by the insured in order to consummate the transaction. 12 Appleman, Insurance Law and Practice, § 7151, p. 203.

Republic National Life Insurance Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697, 699 (1950).

Therefore, the final power of acceptance rested with Coulson. He mailed the insurer the additional premium on the day before his death. Where payment by mail is authorized, performance is completed when a letter containing the remittance, properly addressed, is deposited in the mail. Lawrence v. Continental Fire and Casualty Insurance Corp., 203 S.W.2d 967, 969 (Tex.Civ.App.-Dallas 1947, no writ). Prior to his death Coulson accepted the rated-up policy on his life.

The effect of Coulson’s acceptance of the rated-up policy was to discontinue the temporary coverage which the receipt provided, if he had met the “insurability” provision of the receipt. Such temporary insurance coverage is only effective until the application is rejected or superseded by the issuance of a policy. Colorado Life Co. v. Teague, 117 S.W.2d 849, 853 (Tex.Civ.App.-Eastland 1938, writ dism’d). In the instant case, there was no policy in effect before July 5, when Coulson accepted the policy by remitting the additional premium and the delivery receipt. Therefore, any rights of Coulson’s widow are governed by the policy itself.

The policy states that it will be effective as soon as it has been delivered and the first premium has been paid during the lifetime and continued insurability of the proposed insured. Such a provision is known as a “good health” clause, common in most life insurance policies.

Good health is defined as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general health of the person and seriously or materially increases the risk to be assumed by the insurer. A good health provision is breached if the applicant is suffering from a serious kind of illness, which continues and eventually causes his death. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 905 (Tex.1966).

A good health clause is valid and prevents the policy from becoming effective if the insured, at the time of delivery, is afflicted with a disease or infirmity which increases the risk under the policy. Great National Life Insurance Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602 (Tex.Comm’n App. 1940, opinion adopted). The burden is on the insurer to prove that the prospective insured was not in good health at the time of delivery of the policy. In the instant situation, involving a rated-up policy, acceptance and delivery did not occur until the time that Coulson tendered the additional premium and the delivery receipt on July 5, 1970.

Appellant company sustained its burden of proof by securing jury findings to the effect that Coulson was aware that there had been a material change in his physical condition between the application and the delivery of the policy on July 5, 1970, and that United Savings Life Insurance Company would not have written a policy on Coul-son had it been informed of that change.

One who submits an application to an insurance company has a duty to inform that company of any changes in his health between the time he makes application and the date of delivery and acceptance.

[E]ven the most unsophisticated person must know that.in answering the questionnaire and submitting it to the insurer he is furnishing data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make full disclosure.

Stipcich v. Metropolitan Life Insurance Co., 277 U.S. 311, 317, 48 S.Ct. 512, 513, 72 L.Ed. 895 (1927).

The holding of Stipcich v. Metropolitan Life Insurance Co. has been applied in Texas. Forrester v. Southland Life Ins. Co., 43 S.W.2d 127 (Tex.Civ.App.-Amarillo 1931, writ ref’d). In Aetna Life Insurance Co. v. Shipley, 134 S.W.2d 342 (Tex.Civ.App.-Fort Worth 1939, writ dism’d jdgmt cor.), the court extended the reasoning of Stipcich:

Furthermore, we believe that where an applicant for insurance is ill and goes to a physician for examination and treatment, even if the facts do not disclose that the applicant was advised as to his actual condition, or if there be doubt in the mind of the physician and in the mind of the applicant for insurance as to his real condition, it is the duty of the applicant to make such facts as are known to him, with respect to his illness, his treatment by a physician and his condition, known to the insurance company in such an application for insurance as was required of Shipley.

Id. at 347.

The Stipcich holding was also followed in Moore v. American Home Mutual Life Insurance Co., 174 S.W.2d 788 (Tex.Civ.App.-Dallas 1943, writ ref d w. o. m.), wherein an insurance agent applied for a policy on his daughter. In considering the agent’s duty to his company, the Court stated:

We think it was insured’s duty, and certainly appellant’s, to advise the insurer of the true condition of the risk; it was appellant’s duty, as agent of his principal, to know the condition of insured’s health and to truly advise his principal as to her condition before incurring liability. Manifestly, appellant could not be the beneficiary of his own wrong, or, by his acts, cause the Company to enter into a contract with another, naming him beneficiary, when such contract evidently would not have been made had there been a full and true disclosure of insured’s physical condition.

We conclude that the conditions under which the policy in question would have become effective were not fulfilled.

The judgment of the trial court is reversed and judgment here rendered that plaintiff take nothing.

DODSON, J., not participating.


source: Caselaw Access Project

author: MeKAY, Justice.

license: Public Domain

text:
    Roy P. SMART, Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellee.
    No. 1091.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 29, 1977.
    Rehearing Denied Jan. 19, 1978.

      David K. Line, Robert W. Hartson, Inc., Dallas, for appellant.
    John B. Webster, Dallas, for appellee.
   MeKAY, Justice.

This is a personal injury case tried before a jury. Appellant, Roy P. Smart, filed suit against appellee, Missouri-Kansas-Texas Railroad Company, for injuries allegedly sustained when he was sliding open a door on a railroad boxcar owned by appellee, basing his claim on theories of negligence and products liability. Appellee answered by general denial and specifically denied all the elements of negligence and the applicability of products liability to the facts presented. The cause was submitted to the jury on seventeen special issues. Based on the jury’s answers, judgment was rendered for appellee, from which appellant has perfected this appeal.

The basis of the controversy centers around whether the boxcar door guide upon which the sliding door moved was bent so as to impair the movement of the door. In the trial court, it was appellant’s contention that the door guide was bent, thereby causing the door to have a propensity to stop suddenly during sliding motion. Appellant contended that there existed such a defect, and that this defect caused an abrupt stopping of the door, causing him to sustain an injury to his back while attempting to close the door.

After both parties had closed and before the jury had retired, appellant moved to reopen in order to offer deposition testimony of Jerome McClung, an employee of appellee, concerning appellee’s failure to make and report inspections of the boxcar door. This motion was made after appel-lee’s witnesses had been excused. The trial court then overruled appellant’s motion to reopen.

Appellant’s sole point of error is that the trial court erred in refusing to allow appellant to reopen and offer evidence which he claims is new and independent of that already admitted. Appellant contends that the trial court’s refusal to allow appellant to reopen was reasonably calculated to cause and probably did cause the jury to answer special issues 2 and 9 unfavorably to appellant, thereby resulting in the rendering of an improper judgment. By its answer to special issue 2, the jury failed to find that at the time appellee delivered the boxcar in question to Purex Corporation, appellant’s employer, the boxcar had a bent and damaged top door track. By its answer to special issue 9, the jury failed to find that prior to the delivery of the boxcar in question to the Purex premises, appellee failed to make such inspection of the boxcar as a person using ordinary care would have made.

Appellant contends that the relevant portions of McClung’s deposition testimony are, in substance: (1) that difficulty in opening boxcar doors was a common industry problem; (2) that appellee’s inspector generally did not inspect the boxcar doors to see if they rolled freely; and (3) that there would be no report made concerning a boxcar door that was difficult to open as a dangerous condition. Appellant contends that this testimony would have had a bearing on the jury’s answers to special issues 2 and 9. We disagree.

Rule 270, Tex.R.Civ.P., provides in pertinent part:

“At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice.”

A trial court judge may exercise wide discretion in the admission of additional evidence under Rule 270. Papco, Inc. v. Eaton, 522 S.W.2d 538, 543 (Tex.Civ.App.-Texarkana 1975, no writ). It is within the sound discretion of the court to allow a party to reopen his case after having rested it. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, 476 (1945); Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.). However, there must be a showing of diligence upon the part of the moving party in making such a request. Highlands Underwriters Ins. Co. v. Martin, 442 S.W.2d 770, 772 (Tex.Civ.App.-Beaumont, 1969, no writ).

Refusing to allow a party to reopen to offer evidence on a collateral matter is not an abuse of discretion. Texas & Pacific Railway Co. v. Salazar, 458 S.W.2d 116, 124 (Tex.Civ.App.El Paso 1970, writ ref’d n. r. e.). Also, it is not an abuse of discretion to refuse to admit testimony which would have been merely cumulative of that which was already abundantly shown in the record then before the jury. Barrier v. Beavers, 531 S.W.2d 191, 194 (Tex.Civ.App.-Amarillo 1975, writ ref’d, n. r. e.); Highlands Underwriters Ins. Co. v. Martin, supra at 773.

In offering this deposition testimony, appellant has failed to show any diligence. The deposition was available at all times during the course of the five-day trial. Not until appellee’s witnesses had been dismissed and had left the courtroom did appellant offer this testimony. Nowhere does appellant attempt to explain why the testimony was not offered until appellee’s witnesses had been excused. We think the trial court’s ruling must be sustained on the ground that appellant failed to show due diligence in offering the testimony.

Moreover, a review of McClung’s testimony fails to reveal any matters material to special issues 2 and 9. His testimony does not relate in any instance to the boxcar involved in ¿his suit. In fact, the deposition reveals unequivocally that McClung had no recollection whatsoever of the boxcar involved here. Thus we fail to see the materiality of the proffered testimony. Therefore, for this additional reason, the court did not abuse its discretion in refusing to admit the testimony.

Finally, we think the testimony was merely cumulative of evidence already before the jury. During the trial, Martin Rister, chief mechanical officer of appellee, described the manner in which car inspectors regularly performed their duties and stated that they normally do not open and close the doors on boxcars to see how well they move. Rister also testified that appel-lee’s customers frequently experienced difficulty in opening and closing boxcar doors, and described the assistance given to customers in such instances.

U. L. Taylor, general car inspector for Missouri-Pacific Railroad Company, testified that it was common place on his railroad for customers to experience difficulty in opening and closing boxcar doors and that his company provided substantially the same service in this regard as that provided by appellee. He further testified that car inspectors employed by the Missouri-Pacific did not ordinarily open and close boxcar doors as part of their inspection duties.

Gilbert Whitaker, appellant’s co-worker, testified that in opening boxcar doors at appellant’s place of work, it was usually necessary to use a crowbar to open boxcar doors. Additional testimony that boxcar doors are usually difficult to open was given by appellant’s superior, Wylie Attkisson, and his supervisor, Merl Hughes.

Based on the facts of the case and the testimony adduced at trial, the trial court’s refusal to allow appellant to reopen was not reasonably calculated to cause and in our opinion, did not cause the jury to answer special issues 2 and 9 unfavorably to appellant. Therefore, we hold that the trial court did not abuse its discretion in refusing to permit appellant to reopen his case. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice.

text:
    R. T. STARK et ux., Appellants, v. Morris MORGAN et ux., Appellees.
    No. 19506.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 30, 1977.
    Rehearing Denied Jan. 19, 1978.

      Law Office of Marvin Thomas, Fred Weldon, Dallas, for appellant.
    James R. Catón, McKinney, for appellee.
   GUITTARD, Chief Justice.

We dismiss this appeal for want of jurisdiction because the judgment appealed from is not final. The only judgment in the record is a partial summary judgment denying appellants recovery of title to two of the tracts of land claimed in their petition, but providing “that this cause proceed to trial upon the sole remaining issue of a boundary line dispute on the south end of Plaintiff’s 0.32 acre tract.”

Appellants argue that this remaining issue pertains to a severable claim and that the effect of the order is to sever that claim, thus making the judgment final with respect to the claims disposed of. This argument is untenable because there is no express order of severance, and the rule is settled that a partial summary judgment on a severable claim does not effect a severance by implication. Pan American Petroleum Corp. v. Texas Pacific Goal and Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959).

The record also shows that after the partial summary judgment was signed and entered, appellants filed a motion for non-suit with respect to the remaining claim and presented this motion, with a proposed order of dismissal, to the trial judge, but the judge failed to sign the order. Although appellants may have had a right to take a nonsuit under Rule 164, Texas Rules of Civil Procedure, and may have been entitled to pursue extraordinary remedies to obtain a final disposition, the nonsuit was not effective before the judge signed the order. Cornelius v. Early, 24 S.W.2d 757, 759 (Tex.Civ.App.—Eastland 1930), affirmed 120 Tex. 335, 39 S.W.2d 6 (Supreme Court did not discuss this point, but held that reversal was proper on other grounds,); cf. United Service Agencies v. Continental Casualty Co., 555 S.W.2d 192, 194 (Tex.Civ. App. — Dallas 1977, no writ) (holding that appellant has no absolute right to a nonsuit until he brings his motion to the judge’s attention).

After the partial summary judgment was signed and entered, appellants also filed an amended pleading omitting the claim not disposed of by that judgment. We recognize that the omission of a claim from an amended petition works a discontinuance of the omitted claim if the court subsequently renders a judgment, final in form, disposing of the parties and the issues presented by the amended pleading, thus treating the omitted claim as previously disposed of. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833, 836 (1942). We hold, however, that a judgment interlocutory on its face does not become final for the purpose of appeal on the filing of an amended petition omitting the sole remaining claim unless an order is signed for entry in the minutes disposing of the remaining claim as a matter of record.

We conclude that our jurisdiction should not depend on a showing of when an amended pleading was filed or when an order of nonsuit was presented for the judge’s signature. The finality of a judgment for the purpose of appeal should be determined from the terms of the trial court’s orders. Otherwise, the opposing party, if he should desire to appeal or file a motion for new trial, might not be advised as to when the time for taking such action begins to run. Accordingly, we hold that so far as the present record shows, the cause is still pending in the trial court, and appellants may take their appeal after the final order is signed.

Appeal dismissed.


author: GANT, Judge.

text:
    Marion HORN, Jr., George Arrington and Fred Arrington, Appellants, v. Harry Hale RANIER and Ridgeway Fuel Company, Inc., Appellees.
    No. CA-828-MR.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.
    Stanley M. Billingsley, Carrollton, for appellant, Marion Horn, Jr.
    Stephen G. Horner, Louisville, for appellants, Fred Arrington and George Arring-ton.
    Charles E. Shivel, Jr., C. Gibson Downing, Stoll, Keenon & Park, Lexington, for appel-lees.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

This action involves a series of options, leases, agreements, letters and other documents, most of which were not artfully drawn, concerning certain property and coal in Martin and Lawrence Counties in eastern Kentucky. The appellants are what is generally known in the oil, gas and coal business as “lease hounds”; that is, persons engaged in securing leases for a producer or operator or for themselves and then selling these leases to a producer or operator. Ap-pellees are a coal producing company and the president and sole owner of that company. The two Arringtons are cousins and friends and sometime business associates of Horn.

The time sequence began in early 1974 when Horn was lease hounding for Ranier, who was interested in perfecting a lease on a 1,092-acre tract known as the Nats Creek Lease. Ranier had already acquired a lease for 50% of the minerals under this tract from another owner, the remaining 50% being in the hands of a group referred to collectively as the Kirk heirs. Among these heirs were Gladys Miranda and her husband David, who with other members of her immediate branch of the Kirk heirs and spouses owned a 103-acre tract near Richardson, Kentucky. Although several weeks elapsed between the first documents and the last, the proof clearly discloses that the entire transaction was packaged at the same counter, wrapped with the same paper and tied with the same ribbon. This package contained the following components, not necessarily in chronological order.

1. An option from Mrs. Miranda and her group to George Arrington to lease the 103-acre tract for the construction of a coal tipple, the option to be for one year. If exercised, George was to pay 20 cents per loaded ton to the lessors.

2. A lease of the Nats Creek property to Ranier containing spaces for 44 signatures but signed by only three persons who owed a total interest of 3.75% of the minerals.

3. A lease of the Big Black Log property containing spaces for the same signatures, signed by only the same three people who, apparently, owned 7.5% of the minerals.

4. A cover letter from the lessors on both the Nats Creek and Big Black log leases stating that these leases were proposals and that the proposals were void unless (a) mining operations commenced within 180 days, and (b) unless all coal from these leases was loaded through the Richardson siding and tipple set out in Paragraph 1, above.

5. An “agreement” between Ranier and appellants to pay the appellants 3% of the gross sales on coal removed from land owned by “the Miranda and Kirk heirs.”

6. An “agreement” between Ranier and David Miranda to pay the latter 10 cents per ton on all coal removed by the former from all lands owned by “the Miranda and Kirk heirs.”

The consideration for the last two documents was recited as the securing of the lease set out in Paragraph 4, above, and that the appellants and Miranda “will endeavor in the future to assist in securing and delivering additional . . . leases on other lands . . . owned by the Miranda and Kirk heirs . . .” This action was brought by the appellants seeking to recover 3% of the gross sales of coal removed on the Nats Creek Lease, a sum in excess of $51,000, relying on the agreement set out in Paragraph 5 above. On proper motion, a summary judgment for the appel-lees was entered. The evidence educed at trial reflects that it was necessary to secure the cooperation of the Chesapeake and Ohio Railroad to construct a proper siding on the 103-acre tract in Paragraph 1 before a tipple could be constructed and that the railroad informed Ranier within a few months after the execution of the option in paragraph 1 that it would not construct such a siding and, in fact, one was never constructed. The evidence further disclosed that Ranier had sought a permit from the Commonwealth of Kentucky to mine the Nats Creek property, which permit had been denied because the 53.75% interest was deemed insufficient by the state. When David Miranda contacted Ranier, within six months of the time of execution of the Nats Creek lease, Ranier informed him of the difficulty whereupon Miranda obtained a new lease from the Kirk heirs, signed by 39 of the interest holders. Ranier then secured the permit and mined the property, extracting some 79,000 tons of coal which brought a gross sale price of over $1,700,-000. The appellants had no part whatsoever in securing the second lease.

There are three basic questions presented to us in this ease. First, was the shipment of coal through the Richardson siding a condition precedent to the payment of the 3% royalty set out in Paragraph 5 of the listed documents? Second, was this condition precedent, if there was such, impossible to perform to the extent that the royalty agreement could be ignored when the appellants still had six months in which to perform under the option contained in Paragraph 1? Third, was the evidence so clear that a summary judgment was justified?

It is obvious to the court that the loading of the coal over the Richardson siding was a condition precedent. The cover letter by the lessors made that perfectly clear. The exact language was as follows: “We make this proposal providing that any and all coal that we have an interest in must be loaded through, by, or over our Richardson siding premises, according to the terms and tonnage agreed upon in our lease with George Arrington on the Richardson siding property.” Nothing could be clearer. The cover letter even goes on to say that if the Richardson siding lease became null and void, “the whole proposal is to be null and void.” The royalty agreement set out in Paragraph 5, above, recited the lease from Miranda, et al. as a part of its consideration. That lease and cover letter were secured and delivered by the appellants, who also were instrumental in preparing them. They knew its contents and import and set out to skim off an additional sum by requiring the coal to be loaded at their own siding. It was they who imposed the condition precedent and then could not perform.

An additional condition is found, although not relied upon by the lower court. The proposed lease required that mining commence within 180 days and further provided that payment under the lease “shall begin no later than 90 days after all the lessors sign lease.” When this is considered with the royalty agreements which stated as a part of the consideration therefor that the appellants would “endeavor in the future to assist,” there is an indication that before the expiration of the 180 days appellants would perfect the lease to such an extent that mining could commence. The evidence is uncontradicted that appellants did nothing to get other signatures.

Having determined that the use of the proposed Richardson siding was a condition precedent, may the appellees unilaterally make a determination that the condition was impossible to perform and proceed to secure a new lease without regard to the royalty agreement with appellants and without regard to the unexpired status of the tipple option set out in Paragraph 1? It is our opinion that under the circumstances of this case appellees may do so. The fact that the option from Miranda to George Arrington still had time to run is of no consequence when the proof is clear that the construction of the tipple was rendered impossible by an act which was not ascribable to either the promisor or promisee. The case of Aronson v. Gibbs-Inman, 283 Ky. 107, 140 S.W.2d 806 (1940) sets out the law in Kentucky as follows:

A statement of the general rule is found in Straus v. Kazemekas, 100 Conn. 581, 124 A. 234, 238: “Where from the nature of the contract and the surrounding circumstances the parties from the beginning must have known that it could not be fulfilled unless when the time for fulfillment arrived, some particular thing or condition of things . . . exist(s) so that they must be deemed, when entering into the contract to have contemplated such . . . existence as the foundation of what was to be done; in the absence of any express or implied warranty that such thing or condition of things shall exist the contract is to be construed as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible . . . without default of either of the parties.”

The court goes on to adopt the principle that: “An event which substantially frustrates the objects contemplated by the parties when they made the contract excuses nonperformance of the contract. In such a case it is sometimes said that the foundation of the contract is gone.” See also Juett v. Cincinnati, N.O. & T.P.R. Co., 245 Ky. 379, 53 S.W.2d 551 (1932) and Senters v. Elkhorn & Jellico Coal Co., 284 Ky. 667, 145 S.W.2d 848 (1940).

Appellants furnished no proof that the siding could or would ever be built by themselves or Chesapeake & Ohio. No competent evidence rebutted the testimony of the railroad official that several persons had sought the siding for years without success, that appellee had tried after the option was given without success, and that the company simply would not build the siding which was necessary for the tipple. Some contention was made that Ranier promised to endeavor to secure the siding. He did just that, but appellants contend that he did not try hard enough. This argument is totally without merit.

The evidence was of such nature that no question remained for the jury and summary judgment was proper. This judgment is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Harry M. SPARKS, Appellant, v. Jimmy BOONE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.
    Nat Ryan Hughes, Murray, for appellant.
    Henry 0. Whitlow, Thomas B. Russell, Threlkeld, Whitlow & Roberts, Paducah, for appellee.
    Before HOWERTON, COOPER and HAYES, JJ.
   HOWERTON, Judge.

This is an appeal from a jury verdict dismissing appellant Sparks’s libel action against the appellee Boone.

In May 1975, appellant was one of three candidates for state senator in the Democratic primary. Appellant had previously served as Superintendent of Public Instruction for the Commonwealth of Kentucky, an elected office, and he had also served as President of Murray State University until his retirement on September 15, 1973.

On Saturday, May 24, 1975, The Murray Ledger & Times published a letter from the appellee in its “Letter to the Editor” section. The letter referred to three subjects during the term appellant served as President of the University. They were (1) a decline in enrollment of full-time students, (2) unresolved tenure problems, and (3) the University’s financial condition at the end of appellant’s term.

The election was held the following Tuesday, and appellant was defeated.

The center of controversy is the letter, which we herewith quote in full:

Dear Sir:
The upcoming Senate election for the Kentucky General Assembly is a political contest of considerable importance for the citizens of Murray and Calloway County. At a time when more Kentuckians are unemployed than at any other time since the Depression of the 1930’s, business is stagnating, and our young people encounter difficulties in finding employment, we need dynamic, imaginative and responsive leadership in Prank-fort.
The Murray Ledger & Times, which has served this community well for more than twenty years, has endorsed the candidacy of Dr. Harry Sparks, former President of Murray State University. Usually, I find myself in agreement with the endorsements of our local paper, however, in this endorsement I feel compelled to register my objections. In both its editorial and feature columns, the Ledger & Times has implied Harry Sparks represents strong leadership for Murray and Calloway County. Political leadership, it seems to me, might include forthrightness, openness, the willingness to make needed decisions in the face of unpleasant facts and fiscal responsibility.
A survey of student enrollment at Murray State University will reveal shortly after Dr. Sparks’ inauguration as President the number of students full-time enrolling at the University began to decline. Significantly. The decline continued until only recently. Yet in the regis-trative figures released by the University during Dr. Sparks’ tenure as President, that very serious situation was not made clear to the public. Why was the information not made public? What in his capacity as a leader did Dr. Sparks do about this serious problem? Is this forthrightness and openness?
In the face of a declining student enrollment and a tenure policy (adapted by the Sparks administration) regarding a tenure decision on a faculty member after six years of service, why was Harry Sparks’ successor confronted with tenure decisions on faculty members who had between seven and eleven years of service? Harry Sparks left Deno Curris a legacy of unpleasant but vital decisions our candidate refused to make. Is that the willingness to make needed decisions in the face of unpleasant facts? Is that leadership?
Why, one might also ask, was Murray State University faced with a serious financial crisis at the time Dr. Sparks retired? What happened to the financial reserve built by Dr. Ralph Woods? Was it necessary to use those reserves to balance the budget? Did the University’s financial condition at the end of Dr. Sparks’ administration reflect fiscal responsibility or the capacity to make difficult decisions? I think not!
Normally, we are requested to cast our ballots on the basis of a candidate’s record. The Ledger & Times has given you one part of the record. I have detailed other aspects of the record which seem to me to merit the serious consideration of you the voters.
s/Jimmy Boone

We have reviewed the record, and we have heard the arguments of counsel, and we are unable to find any proof of actual malice on the part of the appellee, nor has there been an attempt by the appellant to prove actual malice. Indeed, counsel for appellant stated at the close of his proof at trial that “malice need not be proven”. Furthermore, we are unable to discover any proof that the publication was made with actual knowledge of its falsity, if any, nor was it made in reckless disregard of the truth.

At the close of all of the evidence, appel-lee moved for a directed verdict and cited four grounds. First, the words alleged to have been spoken were not libelous but were fair criticism of a candidate for public office. Second, the words complained of were substantially true. Third, at the time the words complained of were published, plaintiff (appellant) was a candidate for the office of Kentucky State Senator and, otherwise, plaintiff was a public figure. Under the provisions of the Constitution of the United States and the Constitution of Kentucky, Sparks is barred from asserting any action concerning the words of which he complained. Fourth, and finally, appellant has shown no malice of the appellee under the terms of the case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and the doctrine therein developed in subsequent Supreme Court cases.

The trial court overruled appellee’s motion and instructed the jury as follows:

1. Published words are libelous and actionable per se, if they are false and directly tend to the prejudice or injury of anyone in his profession, trade or business.
If you believe from the evidence that the publication admittedly made by defendant did not directly tend to the prejudice or injury of the plaintiff in his profession, trade or business, you will find for the defendant.
2. The court instructs the jury that they may award the plaintiff damages if they believe from the evidence that the statements made by defendant in the published letter were, in fact, libelous as defined in the foregoing instructions; and if the jury further believes from the evidence that said statements were false and were known to the defendant to be false when made, or that defendant entertained serious doubt as to the truth of the statements contained therein at the time the publication was made; and the jury believes from the evidence that the publication was made with actual malice, that is, with knowledge that the publication was false or with reckless disregard of whether it was false or not.

Additional instructions were given regarding compensatory damages, punitive damages, a definition of “actual malice,” mitigation of damages, and the requirements for a verdict. Neither party has challenged the remaining instructions.

The jury returned the following verdict, “We, the jury, find that the publication made by defendant was not libelous under Instruction No. 1.”

Appellant argues that the jury verdict was flagrantly against the evidence, and that the instructions were erroneous. We cannot agree with either contention. If anything, the instructions given were more favorable to the appellant than they were required to be under the facts of this case, since it is an undisputed fact that appellant was a candidate for public office at the time of the publication of the letter.

Appellee argues that he was entitled to a preemptory instruction, and that for this reason appellant could not have been prejudiced by the instructions of the court. We agree with this argument.

In New York Times Co. v. Sullivan, supra, the Supreme Court held that the First Amendment of the United States Constitution provides a conditional immunity from liability in libel actions brought by public figures. This rule prohibits recovery unless appellant proves with “convincing clarity” that a defamatory falsehood was made with “actual malice” — that is, actual knowledge of falsity or reckless disregard of the truth. In this sense, the necessary malice could be shown by proof of actual knowledge of the false statement or by proof of publishing a false statement with reckless disregard for the truth. There was no such proof in the case sub judice. The tone of the letter in no way presents a vicious attack on the appellant, although it was obviously written with the intention of showing another view of the candidate to counter-balance the newspaper’s endorsement with the hope of seeing the appellant lose the election.

The rule for public figures was expanded to apply specifically to a candidate for public office. In Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971), the court stated: “. . . Publications concerning the candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office . It can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”

When considering such items as actual malice, knowledge of the falsity of the statements, and reckless disregard for the truth, we must consider the evidence before us. The testimony of the appellee and his witnesses indicated that the statements contained in the publication were true to the best of his knowledge. There was evidence of the fact that enrollment of full-time students at Murray State University did decline during appellant’s tenure as president. There was evidence of the fact that the University administration succeeding appellant did publish statements that the University was in a financial crisis. There was also evidence of a highly publicized suit brought by eleven teachers at the University, claiming that because of no action to remove them by the Sparks administration, they were entitled to de facto tenure.

Appellant primarily relies on the case of Tucker v. Kilgore, Ky., 388 S.W.2d 112 (1965), in which a police officer was entitled to recover a judgment in libel for defamatory remarks made against him. Officer Kil-gore was clearly not a candidate for public office, and he was specifically found not to be a “public figure”. He was, however, a “public servant,” and we are pleased to quote from Tucker v. Kilgore, supra, at 116, which reads in part:

The freedom of “uninhibited, robust and wide-open” debate on public issues guaranteed by the 1st Amendment cannot sensibly be turned into an open season to shoot down the good name of any man who happens to be a public servant.

The attack on Kilgore was flagrant and reckless. The personal attack on Kilgore challenged his fitness and character as a man in an effort to vilify a rival organization of Tucker to which Kilgore belonged.

There must be limits placed on the right of individuals to attack public figures and candidates for public office, but such individuals are always subject to fair comment and criticism when they attempt to put themselves in a good light with the public. For the criticism to be actionable, however, malice must be shown. The requirements for the proof of such malice have been set forth in New York Times, supra, and the subsequent Supreme Court decisions.

We need not discuss the instructions and the jury verdict further. For the foregoing reasons, the judgment of the circuit court dismissing the appellant’s claim must be affirmed.

All concur.


text:
    PERCY GALBREATH & SON, INC., Appellant, v. Charles A. WATKINS and Elleanor J. Watkins, his wife, Charles A. Watkins, Carlos Marberry, Jerry Adams, Kenneth Watkins, Gary Cain and Bill McKnight, d/b/a Watkins Investments, a general partnership, and Watkins Investments, Kenneth and Austin Wise, d/b/a W & W Construction Company, W. H. Carter and Harold Carter, d/b/a Carter’s Bulldozer Services, Modern Welding Company, Inc., Southern Fence & Landscaping Company, Central Concrete, Inc., West State Steel Co., Inc., Tri-State Construction Company, Lowe’s of Elizabethtown, Inc., A. C. Miller, Jack C. Dodson, Inc., Climate Control of E’Town, Inc., Burnett’s, Inc., the Jenkins-Essex Co., Inc., Odis Bell, d/b/a General Woodworking Company, Charles White Company, Inc., Howard W. Pence, Inc., Bill Wheeler, d/b/a Bill Wheeler Painting & Drywall Company, James Matthews, d/b/a E’Town Glass Company, Bob Reeves, d/b/a Bob’s Sign Service, Commonwealth of Kentucky, Department of Human Resources ex rel. Division of Unemployment Insurance, Tractor Supply Company, Appellees.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.

      John L. Arnett, Collier, Arnett, Coleman & Cooper, Elizabethtown, for appellant.
    D. Michael Coyle, Huddleston, VanZant & Coyle, Elizabethtown, Warning Order Atty., for Charles A. Watkins and Elleanor J. Watkins, his wife, Charles A. Watkins, Carlos Marberry, Jerry Adams, Kenneth Watkins, Gary Cain and Bill McKnight, d/b/a Watkins Investments, a General Partnership, and Watkins Investments.
    Dwight Preston, Lewis, Bland & Preston, Elizabethtown, for Kenneth and Austin Wise, d/b/a W & W Const. Co., W. H. Carter and Harold Carter d/b/a Carter’s Bulldozer Services, Central Concrete, Inc., Jack C. Dodson, Inc., Burnett’s Inc.
    Jesse T. Mountjoy, Sandidge, Holbrook & Craig, Owensboro, for Modern Welding Company, Inc.
    W. Currie Milliken, Milliken & Milliken, Bowling Green, for Southern Fence & Landscaping Co.
    E. P. Barlow Ropp, Travis, Ropp & Davis, Glasgow, for West State Steel Co., Inc.
    Keith M. Carwell, English, Lucas, Priest & Owsley, Bowling Green, for Tri-State Const. Co.
    James L. Pate, Jr., Pate, Richardson & Bailey, Elizabethtown, for Lowe’s of Eliza-bethtown, Inc., A. C. Miller, The Jenkins-Essex Co., Inc., Odis Bell, d/b/a General Woodworking Co.
    D. Michael Coyle, Huddleston, VanZant & Coyle, Elizabethtown, for Climate Control of E’Town, Inc., James Matthews, d/b/a E’Town Glass Co.
    Richardson, Barrickman & Dickinson, Glasgow, for Charles White Company, Inc.
    Pate, Richardson & Bailey, Elizabeth-town, for Howard W. Pence, Inc.
    John J. Scott, Bondurant, Whitlow, Scott & O’Dell, Elizabethtown, for Bob Reeves, d/b/a Bob’s Sign Service.
    Robert H. Kennedy, Frankfort, for Commonwealth of Kentucky Dept, of Human Resources ex rel. Division of Unemployment Insurance.
    Karl H. Crandall, Bowling Green, for Tractor Supply Co.
    Before GANT, VANCE and WILHOIT, JJ.
   GANT, Judge.

Watkins Investments, a limited partnership, executed a promissory note and securing mortgage to the appellant, this being a construction loan. The terms of the note provided for payment of interest only from September 1, 1974, to February 1, 1975, for installment payments from March 1, 1975, to January 1, 1977, and payment of the unpaid principal and any accrued interest on February 1, 1977. Additionally, a construction loan agreement was executed between Watkins and appellant. The promissory note was for “the principal sum of One Hundred Ninety-Three Thousand and No/100 Dollars ($193,000.00), or as much thereof as may be advanced, with interest thereon computed from the date of each advance at the rate of ten per cent (10%) per annum until paid . . .” The construction agreement provided that if the borrower abandoned the project or failed to complete the work, the lender, at its option, could enter and complete the project, apply undisbursed sums toward retirement of the principal or disburse such funds to pay for work not previously paid for.

In December, 1974, it became evident that Watkins was financially unable to proceed and had defaulted, which was known to appellants and various persons who had furnished labor and materials. Many of the latter filed liens against the property and are the appellees herein. At this point, appellants had advanced the sum of $152,-503.00 under the terms of the various instruments. Appellants, pursuant to the construction agreement, took control of the property and made additional advancements in the amount of $30,268.08 in order to finish the project and protect an existing lease, these advancements being made with knowledge of the claims and liens of the appellees.

The sole question presented to this Court is whether the advancements of $30,268.28 made by the appellants after receiving notice of intervening mechanics’ liens and after all parties knew of Watkins’ default entitled the appellant to a first and superior lien for that sum. There is no question concerning the $152,503.00 advanced prior to the liens and prior to default. Nor do the lien holders contend that they have a superior lien, the lower court having placed all liens on equal footing with the advance and the lienholders not having cross-appealed. The Court, in passing, compliments the Hon. L. A. Faurest, who acted as Special Commissioner, for an excellent report.

The facts of this case clearly disclose that the construction loan by the appellant to Watkins was a discretionary loan and not an obligatory loan. The note called for the payment of $193,000.00 “or so much thereof as may be advanced.” This is in contrast to the obligatory loan found in Professional Constructors, Inc. v. Merchants National Bank & Trust Co., Ky.App., (Dec. 9, 1977). However, the law set out in that case as dictum is, in our opinion, the law in Kentucky. As we said in that case:

. where the lender is required by the terms of the mortgage and accompanying papers to lend “up to” a specific sum, making it an optional mortgage, the lender has a first and superior lien where the mortgage is recorded prior to the commencement of labor or furnishing of materials only to the extent of the sums advanced prior to default.

In Kentucky Lumber and Mill Work Co. v. Kentucky Title Savings Bank & Trust Co., 184 Ky., 244, 211 S.W. 765 (1919), the court stated:

The mortgage . . . attached to the property as the advancements under it were made, and ... it could only be enforced to the extent of the advancements made as against the mortgagor. It did not become a mortgage “for value” until the money it was intended to secure was advanced by the mortgagee.
It does not seem equitable that the mortgagee with notice of the equities of the materialmen and laborers against the property should be permitted to destroy the effectiveness of their liens, and thereby make its own security sufficient at their expense.

See also -annotation in 80 A.L.R.2d 179 (1961).

The judgment of the lower court is affirmed.

All concur.


author: WILHOIT, Judge.

text:
    Michael VINSON, Appellant, v. Bradley E. GOBRECHT, Appellee.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.
    Samuel G. Hayward, Williamson & Hayward, P.S.C., Louisville, for appellant.
    Martin Roach, Roach, Cox & Brown, Louisville, for appellee.
    Before HOWARD, REYNOLDS and WILHOIT, Judges.
   WILHOIT, Judge.

This appeal is from a judgment of the Jefferson Circuit Court based on a jury verdict returned in favor of the appellee, Gobrecht, in the amount of $2,970.00 for damages to his automobile which was destroyed while being driven by the appellant, Vinson. The jury in making its award apportioned the causation of the damage at 10 percent to Gobrecht and 90 percent to Vinson under a comparative negligence instruction given by the court.

On the evening of June 18, 1975, Go-brecht let Vinson borrow his automobile so that he could go get some beer and cigarettes for himself. Gobrecht told him to bring the car right back. Vinson did not return the car and about 3 hours later the police found him and the car in a ditch. The car was totally demolished. Vinson did not remember how the accident occurred but the evidence showed that on that evening the road surfaces were dry and clear and that the car was in good operating condition. It further appeared that both Gobrecht and Vinson had been drinking beer prior to the time Vinson took the car.

The appellant contends that the court erred in giving an instruction on comparative negligence rather than on contributory negligence. The appellee counters that if it were error it was not properly preserved by a specific objection to the instruction and that an instruction on contributory negligence is not warranted in a case such as this involving a bailment.

Our examination of the record, and in particular of a statement made by appel-lee’s attorney before final arguments were made to the jury, convinces us that the appellant did make a specific objection to the comparative negligence instruction as being improper in this jurisdiction. This question was thereby preserved for appellate review. CR 51. The appellant also tendered an instruction on contributory negligence which was rejected.

The appellant was correct that this jurisdiction does not recognize the rule of comparative negligence and the instruction given by the court was not proper. Peerless Manufacturing Corporation v. Davenport, 281 Ky. 654, 136 S.W.2d 779 (1940).

Further, we are convinced that an instruction on contributory negligence was called for in this case. Appellee/bailor’s complaint alleged that injury to the bailed property was caused by the negligence of the appellant/bailee. In such a case it has been held, and we believe correctly, that contributory negligence on the part of a bailor proximately contributing to the loss or injury complained of by him is a bar to his recovery. Scholman v. Joplin Automobile Auction Co., 439 S.W.2d 215 (Mo.App.1969); Osborn v. Cline, 263 N.Y. 434, 189 N.E. 483 (1934); 8 C.J.S. Bailments § 46. Here, there was evidence that the appellant had been drinking prior to the time the appellee let him borrow the automobile. The jury could have concluded, and did, that the appellee did not act as a reasonably prudent person in permitting the appellant to take possession of the car.

This finding of the jury appears to have been a finding of contributory negligence which should bar appellee’s claim and require that a judgment be entered in favor of the appellant. We are convinced, however, that since the issue of contributory negligence was clothed in a comparative negligence instruction and since the court failed to instruct the jury as to the necessity of any negligence by the appellee being a substantial factor in causing the accident, it would amount to a manifest injustice for us to direct the trial court to enter such a judgment. CR 61.02. The judgment of the trial court is, therefore, reversed with instructions that a new trial be granted.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Matt SAVU, Defendant-Appellant.
    No. 37287.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 7, 1976.
    Motion for Rehearing or Transfer Denied Feb. 14, 1977.
    London & Greenberg, Lawrence Fleming, St. Louis, Dempster, Yokley & Fuchs, Gene R. Yokley, Sikeston, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Matt Savu was found guilty of the offense of stealing property of a value of at least $50.00, and was sentenced to five years imprisonment by the jury. §§ 560.156, 560.161, RSMo.1969. From this conviction, defendant appeals.

On December 16, 1974, one woman and two men were observed leaving the P. N. Hirsch store in Jackson, Missouri, wearing long, dark topcoats that bulged in the back. They entered a dark brown Oldsmobile whose license number was noted by an employee of the store. A check of the department from which direction the trio had come revealed nine men’s leisure suits of the value of $33.00 each were missing. The police were notified, and a description of the automobile and its occupants was sent over the radio. Although defendant could not be identified by employees of the P. N. Hirsch store as personally present, he was identified as one of the trio in other stores from which merchandise had been taken in the same area on the same day.

Later that same day, the automobile was seen by a special officer of the Cape Girar-deau, Missouri, police department. The officer followed the car and prevented its occupants, defendant and his companions, from leaving after it was parked in front of a restaurant. A regular officer was called to take the trio into custody. In the automobile, the officers later discovered a cache of merchandise stolen from several stores in the vicinity, including the suits from the P. N. Hirsch store.

Defendant first contends that his motion for acquittal should have been sustained. The facts and circumstances here introduced in evidence together with the inference that the possessor of recently stolen goods whose possession is unexplained are sufficient to submit the case to the jury. Joint possession with others in an automobile soon after the theft satisfies the requirement that possession be exclusive. State v. Ransom, 500 S.W.2d 585, 588[4] (Mo.App.1973), and cases cited therein.

Defendant’s second contention that the court erred in admitting evidence of other crimes allegedly committed by defendant must also fail. Defendant did not preserve this error on appeal because he failed to make timely objections to the evidence at the time it was introduced during trial. State v. Lewis, 532 S.W.2d 843, 844[3] (Mo.App.1975). In light of the trial court’s statement when it denied a pre-trial motion to exclude this evidence, that it would “rule on the evidence questions as they arise”, objections to the admission of such evidence prior to trial and during the prosecutor’s opening statement were not sufficient to preserve the point for appellate review. State v. Rennert, 514 S.W.2d 579, 580[2] (Mo.1974).

Finally, defendant contends that the court erred in admitting photographs of the stolen items discovered in the automobile in which defendant was found. As the basis for his contention defendant submits that the photographs were not properly identified, that no foundation was laid for their introduction, and that they were not the best evidence.

It is obvious that the best evidence rule does not apply here because the rule pertains only to documents, and not to objects. State v. Frith, 525 S.W.2d 568, 570[1, 2] (Mo.App.1975). Testimony revealed that the photographs were fair and accurate representations of the objects shown therein. Testimony by the arresting officer traced the objects from the automobile in which defendant was riding to their removal, identification and photographing in his presence at police headquarters. Sufficient identification was made, and proper foundation for admission was laid. State v. Rogers, 523 S.W.2d 344, 347[6] (Mo.App.1975).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: GEORGE W. CLOYD, Special Judge.

text:
    William J. VORBECK, Plaintiff-Appellant, v. Theodore McNEAL et al., Defendants-Respondents.
    No. 38674.
    Missouri Court of Appeals, St. Louis District.
    Oct. 25, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      London, Greenberg & Fleming, Lawrence J. Fleming, James J. Hennelly, St. Louis, for plaintiff-appellant.
    Kenneth C. Brostron, Albert J. Stephan, Jr., St. Louis, for defendants-respondents.
   GEORGE W. CLOYD, Special Judge.

Plaintiff appeals from the ruling of the circuit court sustaining defendants’ motion to dismiss for plaintiff’s failure to state a claim on which relief could be granted.

The significant facts of the case are reasonably few and simple. At a public meeting of the Board of Police Commissioners on April 29, 1976, plaintiff William J. Vor-beck, a sergeant in the St. Louis Metropolitan Police Department, was given permission to respond to a statement made by Colonel Theodore McNeal, President of the Board of Police Commissioners. Vorbeck’s remarks were in response to statements made by Colonel McNeal that he had met with Vorbeck, then acting as President of the St. Louis Police Officers’ Association, to discuss certain matters relating to salaries and conditions of employment of the police officers in the department. In the course of his remarks at the Board meeting, Sgt. Vorbeck made the following statement about the alleged meetings with Col. McNeal:

“ * * * I can’t say it’s a misrepresentation of facts, I can't say it’s a half truth, because it’s not.
Colonel, it’s just without foundation, it has to be a lie; * *

After Sgt. Vorbeck made these remarks, Colonel McNeal made a brief statement and adjourned the meeting.

On May 12, 1976, the Board of Police Commissioners, with the exception of Colonel McNeal, caused to be read a statement at a public meeting of the Board. The significant portions of the Board’s public statement read as follows:

“Colonel Edward J. Walsh, vice-president of the St. Louis Board of Police Commissioners, read the following statement at today’s public Police Board meeting:
The Board of Police Commissioners wishes to express its deep concern and disapproval over the conduct of Sgt. William Vorbeck at the public Board meeting held on April 29, 1976. At our request and because of his personal involvement as the target of the Sergeant’s remarks, Colonel Theodore D. McNeal, Board President, is not participating in this statement and disposition of the matter.
First of all, the Board wishes to state our commitment to the good faith, integrity, and fairness of Colonel McNeal. * * * Sgt. Vorbeck’s accusation at the public Board meeting that Colonel McNeal did not tell the truth must be taken as an attack- on the integrity of the entire Board. Reasonable standards of decorum and conduct apply to all members of the Department and in assailing his ultimate superiors with his remarks, Sgt. Vorbeck has violated those standards.
It would serve no useful purpose to file charges against Sgt. Vorbeck although such action would be altogether justified. * * * The Board has decided instead to use this incident as an occasion to remind all officers of the expected standards of conduct. A great majority of officers adhere to these standards. However, with increasing frequency in recent months, some officers, individually or in a representative capacity, have made oral and written statements questioning the honesty and integrity of members of the Board, and which border upon allegations of misconduct in office and dereliction of duty.
* * * We therefore caution all officers who have a propensity to question the honor, integrity and reputation of fellow officers and superiors, that such conduct, and any conduct, which brings discredit to the Department and is contrary to good order and discipline will be subject to appropriate action.
As for Sgt. Vorbeck, we publicly censure him for his conduct. The Board considers this incident closed.”

This censure and warning was disseminated in written form through “Board Bulletin” No. 36 to all officers of the Police Department.

On June 11, 1976, Sgt. Yorbeck filed a petition in the Circuit Court of the City of St. Louis. In his petition plaintiff alleged: 1) that he was disciplined without the notice and hearing required by Rule 7 of the Personnel Regulations of the Board of Police Commissioners and by the provisions of the Missouri Administrative Procedure Act Sections 536.010 to 536.140, RSMo.1969, and contrary to his right to due process of law guaranteed to him by the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution; 2) that defendants have deprived him of his right to freedom of speech and expression guaranteed to him by the First Amendment to the United States Constitution and Article I, Section 8 of the Missouri Constitution of 1945; 3) that plaintiff had suffered damages because of this public humiliation and ridicule resulting from the Board’s statement; and 4) that unless the requested relief is granted he will continue to suffer irreparable harm to the rights guaranteed to him by the Missouri and the Federal Constitutions. As relief, plaintiff’s petition sought an order compelling the Board of Police Commissioners to give him notice of charges against him and a full and fair hearing, and to retract publicly the “censure” and declare it null and void. The plaintiff also sought a declaration of the court to the effect: 1) that the plaintiff was entitled to notice and a hearing relative to the charges against him; 2) that the officers’ freedom of speech cannot be so restricted by the Board and that plaintiff and others cannot be disciplined for questioning statements made by defendants without a showing and finding that such conduct is slanderous or otherwise improper; and 3) that the penalty of “censure”, not being authorized by applicable statements and regulations, is null and void.

Defendants filed a motion to dismiss plaintiff’s petition on the grounds that it failed to state a claim on which relief could be granted and failed to allege an actual controversy between plaintiff and defendants. Defendants’ motion was based on three contentions: 1) that no disciplinary action was taken by the Board requiring either notice or a hearing; 2) that defendants Walsh, Mehan, Seddon and Poelker were merely exercising their right to freedom of speech; and 3) that no relief could be granted against defendant McNeal because he had taken no part in the acts complained of in the petition.

The trial court sustained defendants’ motion to dismiss, and plaintiff appealed. The trial court stated no reasons in dismissing the petition, so we must assume it was for the reasons alleged in defendants’ motion.

In reviewing the trial court’s dismissal of the plaintiff’s petition for failure to state a claim on which relief could be granted, the appellate court must construe the petition favorably to the plaintiff and accept as true all the facts alleged therein. Furthermore, the pleader is entitled to all favorable inferences which can be reasonably deduced therefrom. Jacobs v. Jacobs, 272 S.W.2d 185 (Mo.1954); Mercantile Trust Company v. Chase Hotel, Inc., 510 S.W.2d 807 (Mo.App.1974); Trotter v. Sirinek, 515 S.W.2d 67 (Mo.App.1974).

As his first point of error, plaintiff contends that the trial court erred in dismissing plaintiff’s petition in which he sought mandatory injunctive relief. Plaintiff asserts that he had made a claim on which relief could be granted in his petition for injunctive relief based upon allegations that he had been disciplined, humiliated and ridiculed publicly without notice and a hearing, all contrary to Police Board regulations, the Missouri Administrative Procedure Act, and his right to due process guaranteed by the United States and Missouri Constitutions. We find no error in the trial court’s dismissal of plaintiff’s petition.

In alleging that he was entitled to notice and a hearing before the Board’s issuance of the “public censure” statement, plaintiff points to Rule 7 of the Personnel Regulations of the Board of Police Commissioners, which provides in part that a member of the department is granted the right to request a hearing should he refuse “to accept recommended disciplinary actions greater than an oral reprimand.” Section 7.016 of the Rules and Regulations of St. Louis Metropolitan Police Department. Plaintiff asserts that the censure by the Board and its subsequent dissemination constituted a disciplinary action by the Board greater than an oral reprimand. We cannot agree.

The Board in its public statement did publicly censure Sgt. Yorbeck, and the Board disseminated written copies of its statement to all the officers in the Department. The Board’s statement, however, clearly stated that, whatever the members’ feelings about Sgt. Vorbeck’s conduct, the Board had not filed and did not intend to file any charges. No disciplinary proceeding was initiated against Sgt. Vorbeck for his conduct. The Board’s statement, although a public statement- by a public body, constituted no official disciplinary action against Sgt. Vorbeck and no record of the incident or the censure was placed in his personnel file or on his records as would have been a written reprimand. The statement by the Board, unlike a written reprimand, was not directed only to Vorbeck but rather was in the form of a general public statement by the Board relating to broader concerns of Departmental conduct. To be sure, reference was made specifically to Sgt. Vorbeck’s conduct, but that portion of the statement, as did the entire statement, represented merely the Board’s public response to Sgt. Vorbeck’s remarks. Although critical of Sgt. Vorbeck, the statement did not constitute a disciplinary action by the Board requiring a notice of charges (which were not filed) and a hearing under Rule 7 of the Personnel Regulations. Rather it represented a public statement in general to the members of the Department.

Nor is this a “contested case” requiring a hearing under § 536.010 through § 536.140, RSMo.1969, of the Missouri Administrative Procedure Act. A “contested case” is-defined in § 536.010(3) as a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing. “A ‘contested case’ * * * is a case which must be contested before an administrative agency because of a requirement (by constitutional provision . or ordinance . . .) for a hearing before it * * Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972), citing State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958). No such contested case within the meaning of the act exists here. Plaintiff was neither disciplined nor were any proceedings instituted by the Board to deprive Sgt. Vorbeck of any of the privileges or emoluments of his office, which would require a hearing. Moore v. Damos, supra. The case involves no rights required by law to be determined after a hearing. No protected rights of the plaintiff have been affected by the Board’s action.

Plaintiff’s contention that Federal and State standards of due process require a hearing is also without merit. While it is true that a state’s direct impingement of protected free speech rights must be preceded by an adversary hearing, Board of Regents v. Roth, 408 U.S. 564, 574-75 n. 14, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), such a rule is not applicable here. Plaintiff’s free speech rights have not been impinged. Whether or not his speech was protected, Sgt. Vorbeck was neither disciplined for his conduct nor suffered any deprivation of protected interests as a result of the Board’s response to his statement. He was criticized by the Board, and reminded along with the other officers that Department Regulations provide that the members of the Department are to conduct themselves in such a manner that no discredit will be brought upon the Department or themselves. Rule 7.010, Police Department Regulations. A merely critical response by the Board to Sgt. Vorbeck’s statement does not constitute an impingement upon free speech rights requiring the due process staples of notice and a hearing. As noted above, plaintiff was not deprived of any of the privileges or emoluments of his office. Moore v. Damos, supra.

Furthermore, the statement by the Board does not attach a “badge of infamy” on the plaintiff nor subject him to any grievous loss requiring notice and a hearing under Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The cases cited by plaintiff in support of his due process position involved severe losses far beyond the effects of the critical response which followed Sgt. Vorbeck’s statement. The lack of injury to any protecta-ble interest of Sgt. Vorbeck negates the need for notice and a hearing to satisfy the requirements of due process.

Even assuming an injury to the interests and reputation of Sgt. Vorbeck, a hearing would not be warranted. In the case of injury to reputation, however, the purpose of requiring a hearing is to afford the plaintiff an opportunity to clear his name. Miller v. Iowa State ASCS Committee, 374 F.Supp. 415 (S.D.Iowa 1974). In the present case, such a factual hearing would serve no useful purpose.

In Magri v. Giarrusso, 379 F.Supp. 353 (E.D.La.1974), a police officer was dismissed for public statements by him to the effect that the Police Superintendent was a liar and a coward. In discussing the need for notice and a hearing, the court stated:

“There undoubtedly are appropriate cases in which it would serve some useful purpose to reinstate a discharged employee and require that a notice of proposed removal provide for some type of hearing before the responsible authority. However, under the peculiar facts of this case, we think we would be performing a meaningless act. As previously pointed out, Magri has never denied publicly calling his superior a ‘liar’ and a ‘coward’ * * *.” 379 F.Supp. at 360.

An analogous situation exists here. Plaintiff admits that he called Col. MeNeal a liar. The factual hearing would undoubtedly result in such a finding. The issue at such a hearing would not be whether Col. MeNeal and Sgt. Vorbeck had met as Col. MeNeal stated, but rather whether Sgt. Vorbeck called Col. MeNeal a liar. He admits that he did. A hearing on the issue would add nothing.

For the foregoing reasons, plaintiff was not entitled to notice and a hearing and the court did not err in dismissing his claim for injunctive relief.

Plaintiff also asserts that the Board, in issuing the statement, failed procedurally to enact a precise rule or regulation for insertion into the Police Board Manual. However, the Board’s statement clearly does not have the effect of a new rule or regulation but instead may be viewed as the explication of a rule already existent, requiring members of the Police Department to conduct themselves in such a manner that no discredit will be brought upon the Department or themselves. Rule 7.010 Police Board Manual. This rule was upheld as a valid exercise of the Board’s power in Milani v. Miller, 515 S.W.2d 412 (Mo.1974). The Board does not exceed its power by issuing statements which explicate some of the parameters of a valid rule.

In his second assertion of error, plaintiff asserts that the trial court erred in dismissing Sgt. Vorbeck’s petition in which he sought declaratory relief on allegations that the public statement by the Police Board disciplined him for exercise of his First Amendment rights to free speech as well as “chilling” the First Amendment rights of all the officers in the Department. Sgt. Vorbeck contends that the effect of the petition on his rights and those of the other police officers constituted a justiciable controversy for which relief lies under the Missouri Declaratory Judgment Act, Section 527.010, RSMo.

Because we find that Sgt. Vorbeck was not the subject of any official disciplinary action by the Board through its public statement, no justiciable controversy allowing declaratory relief exists as to the Board statement as a response to Sgt. Vorbeck’s conduct at the Board meeting. We are then left to consider plaintiff’s allegation that the Board’s action as a warning has had and will continue to have a chilling effect on the protected free speech rights of Sgt. Vorbeck and the other officers in the police department.

In ascertaining the sufficiency of plaintiff’s petition to state a claim for declaratory judgment, we must accord it the benefit of every reasonable and favorable inference the facts well pleaded will permit. Kalberloh v. Stewart, 378 S.W.2d 820 (Mo.App.1964). Whether or not the petition is sufficient depends on whether the allegations in the petition “ ‘invoke substantive principles of law which entitle plaintiff to relief.’ ” Pollard v. Swenson, 411 S.W.2d 837 (Mo.App.1967). “These substantial principles of law require that a petition invoking declaratory relief allege a state of facts which shows a subsisting justiciable controversy between the parties as to their respective rights and duties, admitting of specific relief by way of a judgment conclusive in character and determinative of the issue involved. * * * Plaintiffs must show that they have a legally protectable interest at stake and that the question they present is appropriate and ripe for judicial decision.” Higday v. Nickolaus, 469 S.W.2d 859, 862-3 (Mo.App.1971); Schmitt v. City of Hazelwood, 487 S.W.2d 882, 884 (Mo.App.1972). Applying these principles we find that plaintiff failed to state a claim on which such declaratory relief could be granted.

In support of his argument as to the improper chilling effect of the Board’s action, plaintiff relies heavily on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), asserting that Sgt. Vorbeck’s statement, and potential statements of similar import by other officers, lies within the parameters of protected speech laid down by the court in Pickering. We are constrained to disagree.

In Pickering, a teacher was dismissed from his position for sending to a local newspaper a letter critical of the way in which the Board of Education and the district superintendent had handled past proposals to raise new revenue for the schools. The court found the dismissal improper, holding that teachers may not constitutionally be compelled to relinquish First Amendment rights they would otherwise enjoy as‘citizens to comment on matters of public interest. 391 U.S. at 568, 88 S.Ct. 1731. The court did not, however, give public employees absolute freedom in all cases to speak out on any issues. Instead, the court stated that certain cases could involve “significantly different considerations” in the determination of the validity of the State action in response to the employee’s public statements. 391 U.S. at 570, 88 S.Ct. 1731. After recognizing that the State has interests as an employer in regulating the speech of its employees that differ from those it asserts in control of the citizenry in general, the Court states: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568, 88 S.Ct. at 1734. Utilizing such a balancing test, the type of statements criticized in the statement by the Board of Police Commissioners falls outside the protection of Pickering.

Section 84.170(2), RSMo., authorizes the Board of Police Commissioners to “make all such rules and regulations, not inconsistent with Sections 84.010 to 84.340, or other laws of the state, as they may judge necessary, for the appointment, employment, uniforming, discipline, trial and government of the police.” Pursuant to such authority, the Board promulgated Rule 7.010 providing that “[e]very member of the Department shall * * * conduct themselves in such a manner that no discredit will be brought upon the Department in general or themselves in particular.” In upholding this rule, the Missouri Supreme Court in Milani v. Miller, supra, 515 S.W.2d at 418, stated that “the principles declaring the validity of such regulations as necessary for the discipline of the military, are also applicable to the internal regulation and discipline of a metropolitan police department.” The strict requirements of the military for obedience and imposition of discipline beyond that applicable in civilian life was recognized in Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

As we noted above, we believe that the Board’s censure of Vorbeck and the warning to the rest of the officers in the department against that which “brings discredit to the Department and is contrary to good order and discipline” represented not a disciplinary action but rather the explication of an existing police regulation. We further believe that the statement was not directed to quell open discussion of matters of public interest but rather to caution against public attacks on the “honor, integrity and reputation of fellow officers and superiors,” which might undermine the discipline and cooperation essential to the effective functioning of a major metropolitan police department. Vorbeck’s statement did not constitute a simple statement on a matter of public interest but more nearly represented the type of vitriolic personal attack criticized in Magri v. Giarrusso, supra. To be sure, the attacks in Magri were more concentrated; but in Magri such statements were found to warrant dismissal. The type of speech and conduct alluded to and cautioned against in the Board’s public statement to the officers of the department was simply that type of speech harmful to and disruptive of the effective functioning of the Police Department. Such speech does not lie within the parameters of Pickering, and therefore the Board’s cautioning of such conduct does not constitute the improper infringement of any legally protected interest as needed for an application of the Declaratory Judgment Act, § 527.010, RSMo.1969.

Sgt. Vorbeck was not disciplined nor did he suffer any grievous loss of reputation or other interests. As to any general chilling effect of the Board’s statement, such a matter is conjecture and supposition such that the question presented is neither conducive to specific relief nor could it foster a judgment conclusive in character and determinative of the issues involved. Higday v. Nickolaus, supra. The Board’s statement, although a public statement, was merely a response to Sgt. Vorbeck, not a disciplinary action or a rule-making document. It presents no justiciable controversy under § 527.010.

The judgment of the trial court is affirmed.

McMILLIAN, SMITH and GUNN, JJ., and MILTON SAITZ, Special Judge, concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Cornelius DALY, Defendant-Appellant.
    No. 37761.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 1, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      J. Martin Hadican, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George F. Meyer, Jr., Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Defendant-appellant was found guilty by a jury of two counts of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. He was sentenced under the Second Offender Act, Section 556.280 RSMo 1969, to twenty-five years on Count I and fifty years on Count II, the sentences to run consecutively in the Missouri Department of Corrections. Defendant appeals.

Defendant raises three points on appeal. He first charges that the court erred in imposing consecutive sentences. Defendant’s second point is that the court erred in overruling the defendant’s motion for an evidentiary hearing on the admissibility of the results of a polygraph examination. His third contention is that the court erred in overruling his motion to suppress certain physical evidence, arguing that the evidence was the product of an illegal search and seizure. We affirm the judgment. There is no challenge to the sufficiency of the evidence. Therefore, we shall state only the facts necessary for a decision of the appeal.

On January 29, 1975, defendant entered the Gravois Bi-Rite Store and robbed Lawrence Margulis, the owner of the store of about $800.00. At the trial, Mr. Margulis identified defendant as the man who committed the robbery. Pamela Denning who was also present in the store on January 29, 1975, identified defendant as the man who robbed the store. Mr. Margulis was also present when the store was robbed again on March 24, 1975 and he positively identified defendant as the man who committed the second robbery. Three other witnesses who were also present in the store on March 24, 1975 at the time of the robbery, identified defendant as the perpetrator of the crime.

Officers Ronnie Marshall and Joseph Walsh traced the license number of the getaway car and the license was issued to defendant. They then proceeded to defendant’s apartment and arrested him. Three hundred and eighty dollars in cash was found in his pockets. Later, Officer Marshall looked in defendant’s car and observed within plain view articles of clothing matching the description of the clothing worn by the robber. The police officers then entered the unlocked car and seized the items of clothing. The car was then searched and two .38 caliber revolvers were found and seized.

Defendant contends that “the court erred in imposing consecutive sentences for the reason because that it did so because it was under the impression that it was required to do so under Section 546.480 of the Revised Statutes of Missouri rather than because it exercised its judicial discretion.” § 546.480 RSMo 1969 reads:

“When any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction.”

On June 9, 1975 the Missouri Supreme Court held § 546.480 RSMo 1969 unconstitutional in State v. Baker, 524 S.W.2d 122, 131 (Mo. banc 1975). In Baker, the court held that while the trial court may exercise its discretion to impose consecutive sentences, it is not mandatory that consecutive sentences be imposed.

The defendant relies on Baker in arguing that there was a failure on the part of the court to exercise discretion as to whether consecutive or concurrent sentences should be assessed. Defendant contends that the transcript fails to demonstrate that the trial court exercised its discretion in imposing the consecutive sentences. Because of the allegedly silent record, defendant asserts that it must be assumed that the trial judge imposed the consecutive sentences mandatorily, believing he was still bound by § 546.480. We disagree.

The judge clearly stated the various factors involved in assessing the punishment. The factors influencing the judge’s decision were appellant’s prior criminal record, the age of appellant, and the seriousness of the offenses involved. The record also indicates that defendant was sentenced on January 6, 1976. State v. Baker was decided on June 9, 1975. At the time the judge sentenced defendant, we are confident that the trial judge was cognizant of the fact that § 546.480 RSMo 1969 was no longer controlling. In addition there is no mention in the record that the court imposed consecutive sentences because of § 546.480.

Defendant’s second point is that the court erred in overruling the motion for an evi-dentiary hearing on the admissibility of the results of a polygraph examination. Defendant further contends that the denial of this motion precluded him from introducing testimony justifying the admissibility of the results of the polygraph examination thereby denying him his right to a fair and impartial trial.

Several months after the robberies, the defendant took a polygraph test administered by the Wells Fargo Investigation Services. The test indicated that defendant was not lying when he denied the robberies of the Bi-Rite Store. At the trial defendant filed a motion for an evidentiary hearing on the admissibility of the results of the test. His motion was denied. Defendant argues that the Missouri Courts should admit the results of polygraph tests if certain criteria is established: a) the expertise of the polygraph examiner; b) the reliability of the testing procedure used as approved by authorities in the field; and c) the validity of the test as applied to the particular defendant. Additionally defendant asserts that he should have been granted an opportunity to present the necessary evidence to meet the above criteria.

The law is well established in Missouri and in most other states that the results of polygraph tests are not admissible in evidence because they lack scientific support for their reliability. State v. Cole, 188 S.W.2d 43, 51[13] (Mo.1945); State v. Weindorf, 361 S.W.2d 806, 811[17] (Mo.1962), and State v. Faught, 546 S.W.2d 515, 516[1] (Mo.App.1977). While the Missouri Supreme Court has ruled that the results of polygraph tests can be introduced into evidence if both parties stipulate to their admissions, it did not rule on the issue of scientific reliability of the polygraph tests. State v. Fields, 434 S.W.2d 507, 514[3] (Mo.1968). In the present case, there was no stipulation as to the admissibility of the polygraph test. Therefore, even if the trial judge had granted an evidentiary hearing, the results of the test could not have been admitted into evidence. State v. Cole, supra; State v. Faught, supra.

The third point relied on is that the court erred in overruling defendant’s motion to suppress evidence of the revolvers found under the front seat of defendant’s car. Defendant contends that the search of the ahtomobile was illegal and violated his Fourth Amendment rights.

Defendant concedes that the jackets, gloves and hats were clearly visible in the back seat, justifying seizure under the plain view doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, defendant argues that the seizure of the revolvers cannot be justified under the plain view doctrine of Coolidge or under the holding of Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) that a police officer may search an auto where there is probable cause to believe that the auto contains instrumentalities or fruits of a crime. At the motion to suppress the evidence, Officer Marshall testified that the search was conducted without a warrant and that the guns were not visible from outside the car.

We believe that the facts here established that the search of the automobile and the resulting seizure of the guns was based on probable cause.

Because of an automobile’s mobility, it may be searched without a warrant if the police have probable cause to suspect that the automobile contains instrumentalities of a crime. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In the case of State v. Hornbeck, 492 S.W.2d 802, 805[2] (Mo.1973) probable cause is defined as:

“. . . more than mere suspicion, but exists where the facts and circumstances within the knowledge of the seizing officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed or that the contents of an automobile offend' against the law.”

Probable cause is clearly established here. The officers were given a description of the automobile, the suspect, and both the suspect’s name and address. Defendant matches the description of the robber. Three hundred and eighty dollars were found in his pockets. A large amount of cash was taken in the robbery. A car similar to the description of the getaway car, with the license number of the getaway car, was parked near the apartment building. In the back seat of the automobile the police could see within plain view, clothing matching the description of the clothing worn by the robber. The officers knew that a gun had been used in the holdup. Upon finding the clothing in the automobile, it was reasonable for the police to suspect that the revolvers were hidden somewhere in the automobile. We believe there was probable cause for the search of the automobile. Chambers v. Maroney, supra.

The judgment is affirmed.

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