author: MORGAN, Judge.

text:
    Donald G. NIBECK, Respondent, v. WELLSTON SCHOOL DISTRICT, Appellant, and The Public School Retirement System of Missouri, Defendant.
    No. 58701.
    Supreme Court of Missouri, Division No. 2.
    June 9, 1975.
    Motion for Rehearing or to Transfer en Banc Denied July 14, 1975.

      Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Donald L. James, Patrick F. McLaughlin, St. Louis, for respondent.
    Lashly, Caruthers, Thies, Rava & Hamel, Thomas E. Tueth, St. Louis, for appellant.
   MORGAN, Judge.

Donald G. Nibeck, an employee of the Wellston School District, initiated an action against the district and the Public School Retirement System of Missouri wherein it was alleged that his contract of employment had been breached by the district and his retirement benefits had been affected adversely thereby. The trial court entered a judgment in favor of Nibeck from which the district has appealed. We affirm.

The cause was tried on factual stipulations adopted by all parties to this litigation.

On May 20, 1968, Nibeck and the district entered into a contract whereby the former agreed “to perform all duties incumbent upon him as High School Principal of the public schools within and for said school district for a term of two years” at an annual salary of $14,550. During the 1968-69 school year, Nibeck performed services as principal at Halter High School pursuant to said contract. In fact, Nibeck had occupied that position since 1940.

On March 17, 1969, Nibeck and the district executed a new contract by which the former agreed “to perform all duties incumbent upon him as Junior-Senior High School Principal of the public schools within and for said School District for a term of two years” at an annual salary of $16,550.

The latter contract was to become effective near the beginning of the 1969-70 school year at a time when one year remained on the earlier contract.

At the commencement of the 1969-70 school year, approximately 350 seventh and eighth grade students and ten teachers were transferred from another school in the district to Halter High School. The two grades are identified as the Junior High.

The stipulation of record details the underlying cause of the controversy as follows: “During the 1968-69 and the 1969 — 70 school years, there was a small group of black students who had no respect for the teachers’ authority and who ignored many of the rules and regulations of the school district. There were also some black parents at Halter High School who complained that plaintiff, who is white, was unfair to students and that plaintiff made untrue accusations against black students. In September of 1969, the Wellston Board of Education issued a directive that plaintiff be relieved of his duties as disciplinarian at Halter High School and further that plaintiff be relieved of his duties of meeting with parents and enrolling new children. These duties were assigned to the two assistant principals of Halter High School, Larman Williams, who is black, and Leonard Stephens, who is white. [Williams was later selected as principal.]” Further, that two members of the “Board of Education . would testify that the Board decided to remove plaintiff from his position as Principal of Halter High School because the Board felt that plaintiff was severely disliked by various elements of the student body and of the Wellston community, and the Board became aware around February, 1970, of a recent threat on plaintiff’s life, said threat being directly related to plaintiff’s position as Principal of Halter High. Also, the Board believed that plaintiff had continued to discipline students subsequent to its September, 1969, directive to cease, and that plaintiff was unnecessarily harsh in his discipline. [That] plaintiff and ... a teacher at Halter High School would testify that after September of 1969, plaintiff took no further action in disciplining students and that, thereafter, vandalism continued at Halter High School . the makeup of the Board of Education of Wellston was four black members and two white.”

On February 10, 1970, the board of the district took the following action: “. Be it resolved that the Board of Education on the advice of counsel declare that alleged contract of D. G. Nibeck under date of 3/17/69 is considered by the Board to be null and void and that D. G. Nibeck is therefore removed and suspended from performing any duties thereunder; this resolution to be effective immediately on passage and the Superintendent is ordered to so notify D. G. Nibeck and remove from him emoluments of the teaching position he holds.” At the same meeting, the board directed the superintendent “to make a recommendation to the Board of Education at the next board meeting for the reemployment of D. G. Nibeck as a teacher for the remainder of the 1969 — 70 school year.” (Emphasis added.) Since the latter resolution is the focal point of most of the arguments presented, for sake of clarity, some comment is called for at this time, to-wit: the tentative offer of reemployment was limited to the remainder of the 1969 — 70 school year and ignored employment for the 1970-71 school year called for in the second contract dated March 17, 1969.

Thereafter, the superintendent told Ni-beck that he was authorized to “offer” him the position of Curriculum Coordinator for the rest of his contract period (under the first contract, presumably, as called for in the resolution) at the “same salary” of $16,-550 per year (the amount called for in the second contract — which the board had declared void). Nibeck declined because “he felt that he was not qualified for the position because he had no special training along that line.” He, then, directed a letter to the board that he was “willing, ready, and able to report for work as principal of Halter High School as agreed upon in a binding and legal contract entered into on 3-17-69.” On April 13, 1970, the board advised Nibeck by letter that the “. Board of Education of the Wellston School District will not hire, contract with, nor otherwise employ you as a teacher in the Wellston School District for the next ensuing school year of 1970-71.”

On the filing of the suit, the district filed a counterclaim for $833.35 which represented the increased compensation under the second contract for five months of the school year. The Public School Retirement System of Missouri remained “neutral” in regard to the merits of the dispute, and it and the other two parties have stipulated that such contributions or recalculations of benefits as are made necessary by the final judgment will be made.

The trial court upheld the validity of the second contract; found that the district had terminated Nibeck’s employment on February 11, 1970, although he was ready to perform his duties; that no effective offer of other employment was made; and entered judgment in favor of Nibeck for those amounts due under the contract of March 17, 1969, and rejected the counterclaim.

On appeal, the district contends the second contract of March 17, 1969, was invalid “because of Sections 38(a) and 39(3) of Article III of the Missouri Constitution” and that it had a right to make and Nibeck a duty to accept a lawful reassignment.

The constitutional provisions noted, generally, place certain restrictions on the granting of public money “to any private person” or extra compensation after “a contract has been entered into and performed in whole or in part . . . ” Reliance is placed on Kizior v. City of St. Joseph, 329 S.W.2d 605 (Mo.1959). Therein the city and a sanitation company executed a ten-year fixed-compensation contract for the collection and disposal of garbage. About four years later, the company notified the city that the company, due to substantial losses and circumstances beyond its control, needed more money in order to continue. The city approved a new contract with increased compensation and certain taxpayers filed suit and therein contended the new contract was violative of such constitutional restrictions. It is sufficient to note that this court agreed. However, the holding therein is not controlling in the instant case nor are the constitutional restrictions applicable. By the explicit language of the first contract, Nibeck agreed to perform the duties of “High School Principal.” The second contract called for Nibeck to fill the position of “Junior-Senior High School Principal.” This is not a case where extra compensation was granted for performing the same duties a party already was obligated to perform. Ten additional teachers and three hundred fifty students of grades seven and eight were transferred to the charge and control of Nibeck. His duties not only were increased but “changed” by the addition of the extra responsibility and burden of assuming the duties of principal over the Junior High. Cf. State ex rel. Dreer v. Public School Retire. Sys., 519 S.W.2d 290 (Mo.1975).

Furthermore, § 168.111(6), RSMo 1969, V.A.M.S. (now repealed), provided that contracts such as that between the district and Nibeck could be terminated at any time by mutual consent of the parties. It is clear by the record made that the parties intended to terminate the first contract, and there is nothing to indicate that the second contract was invalid in any respect. The board’s unilateral declaration that the second contract was “null and void” was itself a nullity.

From the record presented, there can be no doubt but that the district summarily discharged or “fired” Nibeck at the board meeting on February 10, 1970. Such is obvious, not only because the resolution passed by the board provided as much, but it declared that the contract under which Nibeck was serving was “null and void.” The board had no authority, statutory or otherwise, to dismiss Nibeck and such action constituted a breach of contract for which relief could be sought. Williams v. Longtown School Dist. No. 71 of Perry Co., 468 S.W.2d 673[2] (Mo.App.1971); Lynch v. Webb City School District No. 92, 373 S.W.2d 193[4, 5] (Mo.App.1963). In this connection, “The general law of contracts applies . . .” Adamick v. Ferguson-Florissant School District, 483 S.W.2d 629, 631 (Mo.App.1972). Mo.Dig., Schools & School Dist.,

The latter part of the resolution passed by the board, heretofore quoted, only authorized the superintendent at the next meeting “to make a recommendation” as to the “reemployment” of Nibeck. At least at that moment, the board itself did not consider Nibeck to be an employee. Even if Nibeck had considered himself qualified for the new position and accepted, it is significant that the “offer” only covered the remainder of the 1969—70 school year and disregarded completely Nibeek’s contractual right of employment for the 1970-71 school year. “A school board cannot breach a valid contract merely by making some new arrangement, no matter how legal it may otherwise be.” Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W.2d 874, 881 (1946).

The district seeks to justify its action by contending, first, that it had an implied or inherent right to reassign Nibeck to other duties and, second, that an assignment was what it intended to make. We have given consideration to the first part of the argument and the authorities relied on, but refrain from developing dicta in that connection for the simple reason the district, acting through the board, did not purport to make a reassignment but, in fact, discharged Nibeck and rejected the contract of employment under which he had been serving. To do otherwise, would call for this court to ignore the record presented.

The judgment is affirmed.

All of the Judges concur.

      . Gartenbach v. Board of Education, 356 Mo. 890, 204 S.W.2d 273 (1947), is the only Missouri case cited and it is so factually distinguishable that little guidance would be available. The aggrieved principal in the Gartenbach case, unlike Nibeck in the instant case, did not have a definite contract specifying the terms of her employment, and the court found, l.c. 275, an express statutory power to transfer personnel under § 10730, RSMo 1939. That statute was subsequently repealed and there is no similar statute in effect at this time. The question is considered in 78 C.J.S. Schools and School Districts § 198 and 68 Am.Jur.2d, Schools, § 136, from which, it can be seen that the question is generally controlled by statute or rules and regulations incorporated into the contract of employment. Absent such statutory provisions, resolution of the extent to which a school board may act in the “best interest” of a school in disregard of specific contractual obligations it has created will be left to a time when an actual reassignment is attempted.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    Louise L. DOOLIN and H. J. Doolin, Plaintiffs-Appellants, v. Donna J. SWAIN and Blue Ridge Shopping Center, Inc., Defendants-Respondents.
    No. 58798.
    Supreme Court of Missouri, En Banc.
    June 9, 1975.
    Rehearing Denied July 14, 1975.

      Herman M. Swafford, and Thomas K. Thompson, Kansas City, for plaintiffs-appellants.
    Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for defendant-respondent Donna J. Swain.
    John R. Gibson, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant-respondent Blue Ridge Shopping Center, Inc.
   SEILER, Judge.

This is an action for damages for personal injuries and loss of consortium stemming from the intersection collision on October 17, 1969, of a car operated by plaintiff, Louise L. Doolin, and one operated by defendant, Donna J. Swain, which occurred upon the privately owned parking area of defendant, Blue Ridge Shopping Center, Inc. A jury returned a verdict for both defendants. On appeal to the court of appeals, Kansas City district, the judgment in favor of defendant Blue Ridge Shopping Center was affirmed, while the judgment in favor of defendant Donna J. Swain was reversed and remanded for new trial.

The case was ordered transferred here by this court on application of defendant Swain largely because of statewide interest in whether the statutory rules of the road as to right-of-way apply to motorists driving on parking areas of large shopping centers. We hold they do not.

Blue Ridge’s parking area surrounds a shopping center bounded by 1-70 on the north, Blue Ridge Boulevard on the east, and 43rd Street on the south. Vermont Street runs south from 43rd Street near the central entrance-exit of the parking area. Mrs. Doolin had parked on the south side of the area near that exit about 2:00 p. m., prior to the time she did her shopping.

The shopping center had a sizeable expanse of level paved parking area. While the record does not disclose the number of acres in the parking area, it necessarily was several, because the plot plan has marked parking spaces for more than four thousand vehicles. The parking spaces were marked by painted stripes in regular alignment for vehicles to be parked side by side, thus forming a long straight row of parked vehicles with an open street-like area or aisle approximately 24 feet in width between each row for use in driving to or leaving the parking places. The parking areas were numbered. Each had a pedestal type sign at the entrance directing the way to turn for parking. There were other street-like areas, at right angles to the parking area lanes mentioned above, for traffic across the shopping center area. These streets had names (Tower Entry Road, East Drive, Sterling Drive, etc.) and enabled shoppers to drive to a particular store area and then turn off to a convenient parking space. Finally, there was a perimeter or ring street, about 30-35 feet wide, circling the area, used by traffic to enter or leave the center. At many of the street intersections there were “stop” signs painted on the pavement. In general, there was a “stop” sign on the pavement at all exits from a parking area onto one of the named streets. Most of the roadway areas had yellow middle lines. There were also “yield” signs and “keep right” signs, “15 miles per hour” signs and “private property” signs at various locations.

The collision occurred in an intersection near the south exit of the parking lot as Mrs. Doolin was leaving upon completion of her shopping. Mrs. Doolin was driving south, in the north-south roadway between parking areas 75 and 76, between two rows of parked cars, approaching the perimeter road, South Ring Road. Miss Swain was driving west on the perimeter road, approaching the intersection formed by the perimeter road and the parking roadway. Mrs. Doolin said there was no stop sign painted on her road protecting the intersection. The evidence of the defendants was to the contrary. Mrs. Doolin was first into the intersection, traveling three to five miles per hour. Miss Swain’s car, traveling ten miles per hour, struck Mrs. Doolin’s car at the driver’s door. The first claim of error is the giving of defendants’ instruction No. 7 on the subject of Mrs. Doolin’s contributory negligence in failing to keep a careful lookout. Plaintiffs contend there was no substantial evidence to support the instruction.

While the court of appeals set forth the evidence on the lookout issue in some detail, the main point of interest now concerns the statutory rules of the road as to right-of-way and the extent of their applicability to shopping centers, and as we see no precedential value in the lookout question, we believe it suffices to say that this being an intersection collision with Mrs. Doolin going south at three to five miles per hour and Miss Swain west at ten miles per hour, with level terrain and no obstruction to view except for whatever vehicles were parked to Mrs. Doolin’s left as she approached the intersection and with her admission that she never saw defendant’s vehicle until it was only three car lengths away, there is no doubt there was submissi-ble issue of contributory negligence on lookout and we agree with the court of appeal’s conclusion that Mrs. Doolin by exercise of appropriate care would have seen Miss Swain’s approach in time to have stopped short of the collision and thereby avoid it. Commerford v. Kreitler, 462 S.W.2d 726, 729, 731 (Mo.1971); Allen v. Bi-State Development Agency, 452 S.W.2d 288, 290, 291 (Mo.App.1970); Dixon v. Kinker, 410 S.W.2d 347, 350, 351 (Mo.App.1966).

Turning to the right-of-way problem, we note first that among the charges of negligence made against defendant Swain by plaintiffs, one was that defendant Swain “failed to yield the right-of-way to plaintiff who had already entered the intersection where the accident occurred.” This is an allegation of common law right-of-way. Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 580 (1955). Defendant in her answer made various charges of contributory negligence against Mrs. Doolin, including the charge that plaintiff “failed to yield the right of way by disregarding a stop sign which required that plaintiff Louise Doolin stop and yield the right of way to the automobile being driven by” defendant. This is an allegation of statutory right-of-way. Sec. 304.351, subd. 4, RSMo 1969, Y.A.M.S. The answer of defendant Blue Ridge alleged contributory negligence of plaintiff in general terms.

From the outset, one of the contested issues in the case was right-of-way. Plaintiff took the position that there was no stop sign against her at the intersection in question, that the shopping center had been doing some resurfacing and if there had been a stop sign there, it had become obliterated. Defendant Swain took the position that the perimeter road on which she was driving west was a through street protected by a stop sign painted on the pavement against Mrs. Doolin as the latter proceeded south; that the defendant Swain knew she (Swain) was on a through street and expected cars coming onto it to stop before doing so. Defendant Blue Ridge Shopping Center took the position there was a stop sign against Mrs. Doolin and that she drove out into the intersection in front of Miss Swain without stopping.

Mrs. Doolin and her husband submitted their claims in Instruction Nos. 2 and 3, which except for the names of the parties, were identical, reading as follows:

“Your verdict must be for plaintiff, Louise Doolin, against defendant, Donna Swain, if you believe:
“First, That defendant Donna Swain, either
Failed to yield the right-of-way as submitted in Instruction No. 6, or
Drove at an excessive speed in approaching an uncontrolled intersection where the visibility to her right in order to see other approaching vehicles was greatly reduced and restricted.
Second, Defendant Donna Swain’s conduct, in any one or more of the respects submitted in paragraph First was negligent . . .”, etc.

Plaintiffs asked the court to give a right-of-way definition which would have been in accord with the common law on the subject as follows:

“The phrase ‘right-of-way’, as used in these instructions, means the right of one vehicle to proceed ahead of the other.
“When two vehicles do not reach an intersection at approximately the same time, the vehicle which enters the intersection first has the right-of-way provided a very careful person would so proceed under the same or similar circumstances.”

Instead, the court over plaintiffs’ objection, modified the tendered instruction by adding a final paragraph providing as follows:

“When a vehicle is about to enter a through highway from an intersecting road and another vehicle on the through highway is so close as to constitute an immediate hazard, the vehicle on the through highway has the right-of-way provided a very careful person would so proceed under the same or similar circumstances.”

This was prejudicial error because the final paragraph is based on the statutory rule of the road relating to intersections as set forth in Sec. 304.351, RSMo 1969, V.A. M.S. This statute gives the state highway commission, with reference to state highways, and local authorities with reference to other highways, authority to designate through highways and erect stop or yield signs at entrances thereto. When this is done the driver is required to stop before entering such an intersection and after having stopped, must yield the right-of-way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard.

This statutory right-of-way rule does not apply to the shopping center because it is private property, and the rules of the road apply only to public highways and private ways which are used as highways, City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57 (1944); State ex rel. Audrain County v. City of Mexico, 355 Mo. 612, 197 S.W.2d 301 (1946); Sec. 304.025, RSMo 1969, V.A.M.S.; 40 C.J.S. Highways § 236b, p. 256; 60A C.J.S. Motor Vehicles § 349(1), pp. 465 et seq.; 7 Am.Jur.2d Automobiles, Sec. 169, p. 723.

While it is true that the shopping center in question is used by thousands of automobiles, it is not correct to say that it thereby becomes public property or that operators of motor vehicles are as free to travel upon it as they are the public streets and highways which surround the parking center. Although many members of the public drive motor vehicles on the parking center, it is not thereby being used as a public road. The public is welcome to come on the property, but not to use it for travel as they would a highway. We have found only two Missouri eases where collisions occurred entirely on a privately owned parking lot, and neither of those involved the application of the statutory rules of the road, Kimmich v. Berry, 319 S.W.2d 546 (Mo.1959); Feldman v. Lewis, 338 S.W.2d 364 (Mo.App.1960). We note also that the parties agree the required standard of care here is ordinary care; Sec. 304.010, RSMo 1969, V.A.M.S., requires the “highest degree of care” for persons operating motor vehicles on the highways.

Any other conclusion would lead to highly questionable results. If the statutory rules of the road as to right-of-way apply to private property such as a shopping center parking lot, then stop signs or other traffic directing signs erected by the owners of said public property would have the same force and effect as signs erected by the state highway commission or by the local municipality, despite the fact the state highway commission or the municipality have no authority to enter upon private property and erect such signs. Furthermore, violation of state highway or municipally erected stop and yield signs constitutes a misdemeanor, Secs. 304.361 and 304.570 RSMo 1969, V.A.M.S., and may be negligence per se, Lincoln v. Railway Express Agency, Inc., 359 S.W.2d 759 (Mo.1962) and MacArthur v. Gendron, 312 S.W.2d 146 (Mo.App.1958). Violation of a privately erected traffic sign, however, could not be considered a misdemeanor or negligence per se. Private property owners have no authority to exercise the police power of the state in this fashion. For that reason, until such time as the legislature in its wisdom sees fit to enact statutes which make the rules of the road applicable to parking areas on shopping centers, the liability of a motorist with respect to collisions which occur thereon must be governed by the common law rules.

We hold, then, that it was prejudicial error to submit the statutory right-of-way definition instruction in this case. We do not mean to say, however, that on retrial the presence, location, and visibility of the stop sign is necessarily irrelevant or inadmissible. The common law right-of-way rule given in the first paragraph of instruction No. 6 is not an absolute right-of-way; the vehicle entering the intersection first has the right-of-way, provided a reasonably prudent person would so proceed under the same or similar circumstances. If plaintiff submits on common law right-of-way along with its definition, and if defendant were to converse the issue of whether defendant failed to yield the right-of-way, then depending on the evidence, defendant could be in a position to argue that a careful person would not have proceeded into the intersection without first stopping even though otherwise her vehicle would have arrived there first. It could not be argued, however, that failure to obey the stop sign was the equivalent of disregarding an official stop sign.

The ultimate fact issue remains whether or not defendant yielded the right-of-way as defined by the common law right-of-way instruction, and argument of the evidentia-ry detail concerning the surrounding circumstances would be germane to that issue. One of the primary goals of Missouri Approved Instructions practice is, of course, to leave the evidentiary detail to argument and submit only the ultimate issues to the jury, Missouri Approved Jury Instructions, 1963 Report to the Supreme Court, pp. xxiii-xxiv (2d ed. 1969); 20 J. of Mo.Bar. 53, 58 (1964).

As held above, there was sufficient evidence to submit plaintiff’s contributory negligence in regard to lookout. The error in the giving of instruction No. 6 was referable only to plaintiffs’ claims against Miss Swain. The claimed negligence against Blue Ridge was its sealing over of the stop sign, or allowing it to wear, and failing to maintain a pre-existing sign, which asserted negligence and had nothing to do with plaintiffs’ claims against defendant Swain. The jury’s finding in favor of Blue Ridge was either upon the basis that it was not negligent or that Mrs. Doolin was contribu-torily negligent with respect to lookout, which latter proposition is the sole assignment of error advanced by plaintiff as to Blue Ridge. Therefore, the judgment for Blue Ridge should be affirmed. There is thus no necessity to rule its claim that its alleged negligence was not the proximate cause of Mrs. Doolin’s injuries nor to consider appellants’ other points.

The judgment in favor of Blue Ridge Shopping Center, Inc., is affirmed. Its motion to be dismissed from this appeal, taken with the case, is overruled. The judgment in favor of Donna J. Swain is reversed and the cause remanded for a new trial as to her.

All of the Judges concur..

      . This is also about the same as right-of-way at an uncontrolled intersection as set forth in Sec. 304.351, subd. 1, RSMo 1969, V.A. M.S., an example where the statutory rule does not establish a standard higher than the common law standard. In such an instance the statutory rule is not preclusive of common law negligence. Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561, 569 (Mo.1970); Gooch v. Avsco, Inc., 337 S.W.2d 245, 251 (Mo.App.1960).

      . To fit the common law standard, the instruction should read “[provided] a reasonably prudent person would [so proceed] under the same or similar circumstances.” Welp v. Bogy, 320 Mo. 672, 8 S.W.2d 599, 600 (1928).

      . See Wilson v. Toliver, supra, 285 S.W.2d l.c. 580: “Absent statute or ordinance regulation of vehicle traffic at highway intersections, the vehicle first reaching and entering the intersection has the right of way over a vehicle subsequently reaching the intersection unless the situation would indicate to a reasonably prudent man that to proceed would probably result in a collision .


author: WEIER, Presiding Judge.

text:
    Charles PEDROLI, Administrator of the Estate of Angelo Pedroli, Deceased, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD, a corporation, and Thomas Charles Cerutti, Defendants-Respondent.
    No. 36331.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 17, 1975.

      Riggio & Crouther, LeRoy Crouther, Jr., Thadeus F. Niemira, St. Louis, for plaintiff-appellant.
    Charles P. Lippert, Charles E. Gray, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

Charles Pedroli, administrator of the estate of Angelo Pedroli, deceased, filed suit for the wrongful death of decedent’s wife, Louise Pedroli. The petition was dismissed by the trial court for failure to state a claim upon which relief could be granted. On appeal, the sole issue concerns the survival of a wrongful death action in the administrator of a decedent who died subsequent to the alleged wrongful death of his spouse without having filed the action. We affirm the action of the trial court in dismissing the petition.

The facts disclosed by the pleadings indicate that on March 13, 1971 Louise Pedroli, the wife of Angelo Pedroli, while a passenger in an automobile driven by David Cer-utti, was fatally injured in a collision with a train of the Missouri Pacific Railroad in the City of St. Louis. David Cerutti also died in this accident. Sixteen days thereafter, on March 29, 1971, Angelo Pedroli, without having filed any wrongful death action, died and plaintiff Charles Pedroli was appointed the administrator of his estate. The administrator then brought this action for the death of Louise Pedroli, alleging specific acts of negligence by the defendant Missouri Pacific Railroad and the deceased, David Cerutti. The petition stated that it was brought pursuant to § 537.020, RSMo 1969, V.A.M.S., and prayed damages in the sum of $50,000.00.

Plaintiff administrator contends on appeal that he is the proper party to commence an action for the wrongful death of Louise Pedroli. He submits that Angelo Pedroli had a vested right to bring this action after the death of his wife which did not abate at his death. Further, plaintiff administrator contends that the right having once vested in the deceased passed to plaintiff as deceased’s personal representative and the administrator of his estate pursuant to § 537.020.

Section 537.020 reads in part as follows: “1. * * * Causes of action for death shall not abate by reason of the death of any party to any such cause of action, but shall survive to the personal representative of such party bringing such cause of action * * (Emphasis added.) As plaintiff acknowledges, the basic question to be decided under this provision of § 537.020 is whether Angelo Pedroli, the deceased’s husband, had to institute an action for his wife’s death prior to his own death in order for this claim to survive to his personal representative, who is in this case the plaintiff. Plaintiff bases his argument on §§ 537.010, other provisions of 537.020, and 537.080, RSMo 1969, V.A.M.S. He urges that these statutory provisions should be considered in pari materia and must be construed together in order to maintain harmony in this area of the law. Section 537.010 provides that actions for property damage may be brought by the person injured or by his administrator after his death. Section 537.020, before that portion previously quoted, provides that causes of action for personal injuries not resulting in death should not abate by reason of death but should survive to a personal representative of such injured party. Section 537.080 designates the specific and exclusive parties who have a right to commence an action for wrongful death: First, the surviving spouse or minor children of the deceased; if none of these survive or do not bring an action, then the surviving parents of a deceased; and if none of these parties survive, the deceased’s administrator. Plaintiff submits that the language of § 537.020, supra, in regard to survival of wrongful death actions, is ambiguous, and that the legislature could not have intended certain actions such as personal injury claims and property damage claims to survive to a personal representative or administrator, and at the same time not intend wrongful death actions to survive in the same manner. We do not see that the language of that portion of the section questioned is ambiguous and can see no basis for the application of the rule of construction which he seeks to apply.

The primary rule of statutory construction is to ascertain the intent of the legislature. Missouri Pacific Railroad Company v. Kuehle, 482 S.W.2d 505, 509[3] (Mo.1972). This legislative intent should be ascertained from the words used, if possible, and in doing so the words should be given their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899, 902[5] (Mo. banc 1970). When the language of a statute is unambiguous and conveys a plain and definite meaning, the courts have no business to look for or to impose another meaning. DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724, 727[1] (Mo.App.1973). If a statute is unambiguous, a court should regard it as meaning what it says since the legislature is presumed to have intended exactly what it states directly. DePoortere v. Commercial Credit Corporation, supra at 727[2].

The applicable language of § 537.020 is plain and unambiguous. It conveys a definite meaning. When it says: “Causes of action for death shall not abate by reason of the death”, it refers to “death of any party to any such cause of action”. When it states that the cause of action shall survive to the personal representative, it refers to “the personal representative of such party bringing such cause of action”. Clearly, survival of the cause of action to the personal representative of any party is dependent upon that party having brought the cause of action before his death. If, as suggested by the plaintiff, we consider the other sections to which he referred (§§ 537-010, the provisions of 537.020 applicable to survival of claims for personal injuries, and 537.080), our conclusion is the same. The language of these provisions is plain. There is no language to indicate that in such actions a suit must be brought by the deceased prior to his death in order that the actions survive.

Historically, at common law, a tort action for wrongful death did not survive the death of either the victim or the wrongdoer. Manson v. Wabash Railroad Company, 338 S.W.2d 54, 57[1] (Mo. banc 1960). A person suing under the statute must bring himself in his pleadings and proof strictly within the statutory requirements. If this is not done, then the petition states no cause of action and the proof is insufficient to sustain the judgment. Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35, 37[4] (1913).

Perhaps, as plaintiff suggests, an anomalous result is achieved in the situation presented here if his appeal is denied, argument could be made that in certain circumstances, that is, where a person survives a short time after the wrongful death of his or her spouse and is not able to initiate a cause of action, a possible hardship ensues. The language of § 537.020 has been subject to question on this particular point. However, even assuming an undesirable result may occur, we are not at liberty to alter plain statutory wording to overcome this and allow a cause of action to be created when the decisions of this state so clearly confine the right of action to the wording of the statutes. If the statute brings about an undesirable result, any change is for legislative consideration. An

Much the same question with regard to interpretation was presented to the court in Heil v. Rule, 327 Mo. 84, 34 S.W.2d 90 (1931). There, an action for personal injury was brought some three months after the death of the alleged tort-feasor. The action was instituted against the defendant Rule as executor of the estate of the deceased tort-feasor. The cause of action was based upon the first part of the provisions of what is now § 537.020 (then § 4231, RSMo 1919). At that time the section read in part as follows: “Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, * * * shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, * * The court pointed out that the statute must be construed as exempting from the operation of the common law rule only those causes of action upon which suit had been brought before the death of either party. It is interesting to note that when this section was amended in 1947 to eliminate the words “upon which suit has been or may hereafter be brought”, a second sentence was added: “Causes of action for death shall not abate by reason of the death of a party liable for such death, but shall survive against the legal representatives of such party.” A.L. 1947, V. II, p. 225. Then, in 1949 the last sentence was changed to its present reading. A.L.1949, p. 633. Certainly, the legislature by its action in 1949 intended to add the restriction which requires the bringing of a cause of action by the person entitled to recover before it may survive to the personal representative of that party.

It appears that no appellate court has ruled on the precise issue presented to us in this case since the statutory amendment in 1947 allowed wrongful death actions to survive. To sustain his position, the plaintiff has cited Day v. Brandon, 394 S.W.2d 405 (Mo.1965). In the Day case an administrator of a wife’s estate brought a wrongful death action for her death. She had died first in a near simultaneous death situation. The court dismissed the plaintiff’s petition and held that the cause of action “vested” in the surviving spouse, the husband. Plaintiff argues that nothing in the Day opinion suggests the surviving spouse’s cause of action abated at his death. But this argument does not aid plaintiff since the court was not required to reach this issue and did not do so. The court merely pointed out that the cause of action, although vesting in the surviving husband who only survived for one day and did not file suit, did not thereupon revest in the wife’s administrator who is not named in the statute, § 537.080, supra, as being one of the persons who may bring a statutory death action where a spouse survives.

We conclude that under the language of § 537.020, Angelo Pedroli’s cause of action for the wrongful death of his wife abated upon his death since he did not commence this action before his death. Accordingly, there was no cause of action that survived to his personal representative, the plaintiff in this case. Since the plaintiff had no statutory right to bring an action for the wrongful death of Louise Pedroli, the circuit court properly dismissed plaintiff’s petition.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.

      . See: Lewis, Can Two be Killed as Cheaply as One?, 22 Mo.Bar Journal 368 (1966).


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Charles F. NEELY, Appellant.
    No. 35797.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 24, 1975.
    Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Charles S. Stone, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Asst. Atty. Gen. K. Preston Dean, II, Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant Charles F. Neely, charged with second degree murder, was found guilty by a jury of manslaughter and sentenced to the custody of the Department of Corrections for a term of five years.

There is no challenge to the sufficiency of the evidence, and it is sufficient to say that a jury reasonably could find that appellant caused the death of Bessie Hamilton by striking her on the head with a beer mug.

Appellant’s only contention of error is that the trial court erred in denying his motion for a mistrial “when the defendant was paraded in shackles once in front of the entire jury panel and once in front of the actual jury.” We affirm.

At no time was appellant “paraded” any place “in shackles.” The implication of this assertion is not justified by the record.

The trial took place in the Civil Courts Building in the City of St. Louis which was not the building where criminal eases usually are heard, and there did not exist in that building the normal security facilities, such as retaining cells near the courtroom. The deputy sheriff who was charged with maintaining custody of appellant during the trial testified at the hearing on appellant’s motion for a mistrial that after the court recessed at approximately 4:30 o’clock, on Monday afternoon, June 25, 1973, he placed handcuffs on appellant while he was still in the courtroom. He then took him into the hallway to an elevator, and then to the sheriff’s office on the first floor of the building. At the time there were at least some of the members of the jury panel in the hallway apparently waiting for an elevator, but they did not ride in the elevator with appellant. When the court recessed the trial at the end of the second day, the deputy sheriff again placed handcuffs on appellant, took him into the hallway to an elevator, and took him to the sheriff’s office. At that time “part” of the jury was in the hallway, but none of them rode in the elevator with appellant. At no time during the trial, or during short recesses, were handcuffs placed on appellant while he was in the courtroom, and there is no showing in the record that any member of the jury panel or of the jury was in the courtroom when the handcuffs were placed on appellant preparatory to taking him to the elevator.

In State v. Fields, 487 S.W.2d 560 (Mo.1972), the same ground for reversal was asserted because the defendant, in the presence of the jury, was brought into the courtroom in handcuffs. Quoting from United States v. Leach, 429 F.2d 956, 962 (8th Cir. 1970), the Court held: “It is a normal and regular as well as highly desirable and necessary practice to handcuff prisoners when they are taken from one place to another, and the jury is aware of this. This is necessary to prevent an escape and possible injury to others in an escape attempt.” We consider this case to be controlling of the issue presented on this appeal.

Appellant relies on Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). That case pertained to permissible methods to control an obstreperous accused during trial, and is not controlling in view of the facts of this case. Appellant also relies on State v. Robinson, 507 S.W.2d 61 (Mo.App.1974). In that case the accused was unnecessarily shackled in the courtroom in the presence of the jury during trial, and is not pertinent to this case. Appellant also cites State v. Johnson, 499 S.W.2d 371 (Mo.1973), and State v. Richards, 467 S.W.2d 33 (Mo.1971). In those cases necessary restraints in the courtroom during trial were held to have been justified because of the misconduct of the accused. State v. Yates, 442 S.W.2d 21 (Mo.1969), also cited, is no more than indicative of the concern of appellate courts to protect an accused from an abuse of a customary practice of using handcuffs when transporting an accused to and from a courtroom.

There is nothing in the record before us to indicate that the officer charged with the custody of appellant, who was being tried for a homicide, exceeded or abused his right and duty to take reasonable precautions for the retention of that custody.

The judgment is affirmed.

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


author: HOGAN, Judge.

text:
    STATE of Missouri ex rel. Frank E. USKALI and Alice J. Uskali, Relators, v. The Honorable LeRoy SNODGRASS, Judge of the 26th Judicial Circuit of Missouri and of the Circuit Court of Camden County, Missouri, Respondent.
    No. 9473.
    Missouri Court of Appeals, Springfield District.
    June 10, 1975.
    Warren E. Slagle, Slagle & Bernard, Kansas City, for relators.
    John F. Low, Low & Honssinger, Lebanon, for respondent.
   HOGAN, Judge.

This is an original proceeding in prohibition. Our preliminary writ issued and the cause is now taken on the record made in this court as provided by Rule 84.24, V.A. M.R., and the briefs filed by the parties.

On July 21, 1959, relators and Frank and Doral Parish entered into an agreement to develop and sell a parcel of land located in Camden County, Missouri. As immediately material, the contract provides that in consideration of the discharge of a mortgage, a payment in cash and an undertaking to bear the cost of development, Frank and Doral Parish shall “develop” the land described and sell it “by Lots”. “[C]omplete control” over the development and sale of the land is vested in Frank and Doral Parish, and paragraph three of the contract provides that at such time as a sale is made, the first parties (relators) will execute all instruments necessary to consummate the sale, including deeds.

Incorporating and attaching a copy of the contract as provided by former Rule 55.24, Frank Parish as plaintiff filed a petition in the Circuit Court of Camden County, alleging the existence of the contract, performance according to its terms and the sale of a developed lot to E. E. and Thelma E. Gebhardt for the sum of $8,850. Parish further averred demand upon the relators for the delivery of a warranty deed, tender of the relators’ share of the purchase price and the relators’ refusal to deliver a deed. Alleging that he was without an adequate remedy at law, Parish prayed that relators be directed to convey the lot sold to E. E. and Thelma E. Gebhardt, and for general relief.

Having been personally served with process in Jackson County, the relators appeared specially, seeking only to quash the summons and the return of service. In their special motion to quash service, rela-tors alleged that plaintiff Parish was a resident of Camden County, and they were residents of Jackson County; that Parish sought to enforce certain “alleged” contractual rights under the “purported” contract incorporated into the petition, and that the court was without jurisdiction because the venue of the action was improperly laid. The substance of the motion is that the action is not a suit for the possession of real estate nor an action whereby the title to real estate may be affected, and therefore the action should have been commenced in Jackson County. No other motion was filed by the relators. In this court they allege and respondent admits that the motion filed was denied after argument.

In their petition for a writ of prohibition, the relators set out, directly or by reference, the facts just recounted, and then proceed to allege that the respondent is threatening to act in excess of his jurisdiction because the plaintiff seeks specific performance of an alleged contract of sale between the relators as vendors and the Gebhardts as purchasers. It follows, rela-tors argue, that plaintiff Frank Parish is a stranger to the action and lacks the capacity to sue. Alternatively, the relators aver that if the contract of July 1959 is indeed the contract sued on, plaintiff is entitled to no relief, because a broker may not enforce his principal’s contract against the vendee in an action for specific performance. Respondent puts the nature of the action in issue by alleging that plaintiff Frank Parish is neither broker, vendor or purchaser, but “has a vested interest” in the realty described in the contract and in the petition. In conclusory language, supplemented by suggestions, the respondent argues that in view of the Supreme Court’s construction of the contract of July 1959 in Parish v. Uskali, 393 S.W.2d 507 (Mo.1965), plaintiff has a right to maintain this action against the relators.

No lengthy statement of general principles is necessary for our very limited purposes. It must be remembered, however, that prohibition is an extraordinary remedy to correct and prevent the exercise of extrajurisdictional power, is not a writ of right and should not be employed for correction of alleged or anticipated judicial errors, and does not lie for grievances which may be adequately redressed in the ordinary course of judicial proceedings. Knisley v. State, 448 S.W.2d 890, 892 [3] (Mo.1970); State ex rel. W. A. Ross Const. Co. v. Skinker, 341 Mo. 28, 32, 106 S.W.2d 409, 411 [1, 2] (1937). Admittedly proper venue is necessary before service of process will confer jurisdiction over the person of the defendant, State ex rel. Boll v. Weinstein, 365 Mo. 1179, 1183-1184, 295 S.W.2d 62, 65-66 [4—6] (banc 1956), and we must consider whether the venue of the action is properly-laid. The other contentions tendered, in our view, are addressed to the merits of the action, and the relators should not be allowed to circumvent the principle that prohibition is not a substitute for demurrer, appeal or error. State ex rel. Schoenbacher v. Kelly, 408 S.W.2d 383, 395 [17, 18] (Mo.App.1966). In so holding, we realize that prohibition is appropriate and will lie if it clearly appears that a petition presents no justiciable issue, State ex rel. State Highway Commission v. Elliott, 326 S.W.2d 745, 750 [3] (Mo. banc 1959), but no such want of jurisdiction is demonstrated in this court.

Section 508.030 reads as follows: “Suits for the possession of real estate, or whereby the title thereto may be affected, or for the enforcement of the lien of any special tax bill thereon, shall be brought in the county where such real estate, or some part thereof, is situated.”

It seems abundantly clear to us that original venue of the present action is governed by this statute. Both parties cite cases which discuss the jurisdiction of appeals involving “the title to real estate” under Mo.Const. Art. V, § 3, V.A.M.S., prior to amendment of that article in 1970. Those cases consider the requirement, then essential to original appellate jurisdiction in the Supreme Court, that title be directly in issue as well as the requirement that the judgment sought or rendered take title from one litigant and give it to another, but they are nevertheless relevant. Where the relief prayed for and granted was specific performance of a contract to convey realty, there was no doubt that the judgment operated directly upon the title. Domyan v. Dornin, 348 S.W.2d 360, 361-362 [2, 3] (Mo.App.1961). As noted by commentators, this was true because a judgment for specific performance of a contract directly effects a passage of title. 1964 Wash. U.L.Q. § 5.140, p. 577. Even if the suit must be characterized as a suit upon a contract which incidentally requires the relators to deliver a deed as a muniment of title, the result, in our opinion, would be no different. The execution of a conveyance of land located in Camden County could not be ordered by the Circuit Court of Jackson County. Marston v. Catterlin, 290 Mo. 185, 192-193, 234 S.W. 816, 817 [1] (1921). Our preliminary writ in prohibition was improvidently granted, and is hereby discharged.

All concur except FLANIGAN, J., not participating because not a member of the court when the cause was submitted.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and V.A.M.R., except where otherwise noted.


author: McMILLIAN, Judge.

text:
    Lester EICHELBERGER, Defendant-Appellant. v. STATE of Missouri, Plaintiff-Respondent.
    No. 36219.
    Missouri Court of Appeals, St. Louis, District, Division Three.
    June 17, 1975.

      Richard A. Fredman, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Neil N. Bernstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal from a judgment of conviction entered on a jury verdict in the Circuit Court of the City of St. Louis finding defendant guilty of robbery first degree with a dangerous and deadly weapon and fixing the punishment at fifteen years imprisonment. § 560.120 and § 560.135 RSMo 1969, V.A.M.S. Defendant raises three points on appeal: (1) that the State failed to properly establish the venue (2) that the State failed to prove the defendant’s commission of the offense beyond a reasonable doubt and (3) that certain statements by the prosecutor amounted to prejudicial comments on the defendant’s failure to testify. For reasons set forth herein, each point is decided against the appellant; therefore,' we affirm the judgment entered by the trial court. Because the defendant challenges the sufficiency of the evidence, we have set out the evidence in a detailed narrative form.

At approximately 12:40 P.M. on August 26, 1973, two armed men, with stocking caps over their faces, robbed Evans’ Confec-tionary. In the store at the time were Steven Evans, the proprietor, and James Johnson, his 13-year old helper. At the trial, both Evans and Johnson described the holdup in essentially the same manner. One of the robbers was described as a large, heavy man wearing blue jeans and a black and white checked shirt and who was carrying a derringer. The one robber was described as shorter and thinner than the, other robber, who wore blue jeans and a dark blue sweatshirt and carried a sawed-off shotgun. This shorter robber was later identified as the defendant. The slender man grabbed Johnson and held the shotgun on Evans; the larger man put his derringer to Evans’ head and threatened to blow it off unless Evans opened the cash drawer. The larger man took everything out of the drawer including a dollar bill which had been taped together by Evans and a metal slug which had been in the cash register ever since Evans bought the store. The heavier robber also took $75.00 in cash from Evans’ pocket and Evans’ gun from under the counter. During the course of the robbery, the smaller robber said: “I ought to kill you because you drew a pistol on me.” Evans testified that this statement jogged his memory because he had only pulled a gun on one person in the store. That incident arose some time earlier and involved the defendant Eichelberger. Evans also recognized the stature and voice of the slender robber as Eichelberger’s because he had been in the store nearly every day to shop. Johnson also remembered the slender robber’s statement about wanting to kill Evans. After the robbery, the two men left the store and fled around the corner on Lincoln Street.

When a policeman arrived, he drove Johnson around the neighborhood to look for the robbers. As Johnson and the policeman approached Lincoln Street, Johnson spotted a heavy man on a second floor porch taking off a shirt like one of the persons wore during the robbery. Other policemen were called. The police went inside the house and took five occupants, including the defendant, into custody. The police recovered from the house three guns of the same type involved in the robbery, a metal slug identified as the one from Evans’ cash register, a taped dollar bill and some coins and currency from a chair in which one of the occupants was sitting. Search of the defendant revealed $36.50 in cash.

The defense called three witnesses. First, Noel Bernaugh testified that he was standing on a porch two doors from the store at the time of the robbery and got a sideview of two men without masks running across the street. He was unable to identify either .man though he knew Eichel-berger. Randy Robinson testified that he was the manager of a store at 4000 Lincoln Street, one block away from Evans’ store. It was on the second floor of Robinson’s building that the defendant was taken into custody. Robinson testified that the defendant had walked up the street alone, asked Robinson whether his brother was home and then entered the house a few minutes before the police arrived. The final witness for the defense, Steven Dazig, testified that he employed the defendant on a part-time basis and that the defendant had been paid about $54.00 four days before the robbery.

In closing argument, the defense attorney argued, referring to the testimony of Mr. Dazig:

“. . . Does that sound logical to you that someone who is working and getting paid every week, or every two weeks is going to go in and rob some place? No, it doesn’t. .

In rebuttal closing argument, the state’s attorney made the following statement which defendant claims amounts to the violation of his rights:

“Let’s look here as to the theories of innocence here. . . . Number two, a person who works is never going to rob, steal, or do anything. . . . Now with regard to, you know, the fact that Mr. Eichelberger apparently has worked during that prior week you don’t know what his needs are, you don’t know what his desires are, you don’t know anything along those lines. You don’t know if he owed money, if he already got rid of the other money. . . .” (Emphasis added.)

Defendant first contends that the state failed to prove the venue of the offense. Section 541.033 RSMo 1969, V.A. M.S., the state statute parallel to the Sixth Amendment of the U. S. Constitution, does require that the trial be held in the district where the crime has been committed. Venue must be proven but it is not an integral part of the offense. Therefore, venue need not be proven beyond a reasonable doubt or by direct evidence, rather it can be inferred from all of the evidence, State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974); State v. Garrett, 416 S.W.2d 116, 118 (Mo.1967). In the present case, the jury could reasonably have found from the testimony of James Johnson and Officer Allen that they met in front of the store at 4069 Lincoln Street in the City of St. Louis and from the testimony of defendant’s witness, Bernaugh, that he was only two doors down from the scene of the robbery at 4063 Lincoln Street in the City of St. Louis, that the robbery occurred in the City of St. Louis. Instruction No. 6 given by the court required a verdict of guilty to be premised on a finding that the offense transpired in the City of St. Louis. The jury so found. The evidence supports the jury’s finding.

Alternatively, the court has long recognized its authority to “. . . take judicial notice of county lines, the locations of towns. . . .” State v. Garrett, supra, at 119; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245 (1938) and State v. Ruckman, 222 S.W.2d 74 (Mo.1949). Official maps of the City of St. Louis indicate that the locations described in the testimony as surrounding the store are some miles away from the boundaries of the City of St. Louis.

Defendant also contends that the evidence advanced by the state was insufficient to prove the commission of the robbery beyond a reasonable doubt. It is important to remember that this was jury verdict in this case. In that situation—

“. . . Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence, considered in the light most favorable to the state and all inferences therefrom, disregarding evidence to the contrary, is sufficient to make a submissible case. ... If there is substantial evidence to support the finding of the jury, it cannot be disturbed on appeal.

State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974) and State v. McCreary, 504 S.W.2d 132, 134 (Mo.App.1973). Defendant’s contention that he advanced a strong case in defense is irrelevant because the reviewing court must reject evidence which is contrary to and conflicts with the verdict, State v. McCreary, supra, at 134. Under this standard, the evidence offered by the state is sufficient. The occurrence of a robbery of Evans’ store was clearly established by the testimony and is admitted by the defense. The identification of the defendant as the slender robber was established by Evans’ recognition of the voice, stature, and language of Eichelberger. Identification by means of a defendant’s voice is a permissible method. The fact that Evans had no specialized training in voice identification merely goes to the weight to be given to this identification, State v. Riddle, 324 Mo. 96, 23 S.W.2d 179, 182 (1929) and State v. Preston, 184 S.W.2d 1015, 1016 (Mo.1945). The issue of the weight to be given to the identification creates a question in the province of the jury, not one for the appellate court, State v. Summers, 506 S.W.2d 67, 69 (Mo.App.1974) and State v. Gantt, 504 S.W.2d 295, 301 (Mo.App.1973). The evidence introduced by the state, therefore, constituted sufficient proof of the commission of an armed robbery by the named defendant.

The final contention of defendant is that certain statements made by the prosecutor in closing argument constituted impermissible references to the defendant’s failure to testify.

Section 546.270 RSMo 1969, V.A. M.S., consistent with the principles of the Fifth Amendment of the U. S. Constitution, states a general prohibition against references to the defendant’s failure to testify. This prohibition is consistent with the decision of the United States Supreme Court in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Missouri courts have interpreted this statutory prohibition to identify a violation of the defendant’s rights where the challenged remark constitutes either a direct reference to the defendant’s failure to testify or “such indirect reference thereto that it was reasonably apt to have directed the jury’s attention to the fact he did not testify? . . ” State v. Shields, 391 S.W.2d 909, 913 (Mo.1965).

The prosecutor’s statement in the present case does not amount to either a direct or indirect reference. Under the “direct and certain reference” test, State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974) and State v. Overall, 519 S.W.2d 549 (Mo.App.1975); use of the words “defendant,” “accused,” and “testify” is crucial, State v. McNeal, 517 S.W.2d 187, 188 (Mo.App.1974). None of these magic words appear in the challenged statement. The indirect reference test requires the court to view the challenged statement in the context in which it appears. As discussed above, the statement by the prosecutor was in response to a prior closing argument by the defense attorney that a person who is earning money will not steal. Read in this context, the statement does not highlight the defendant’s failure to testify, rather it merely directs the jury’s attention to the weaknesses of the defendant’s case. Such an argument is permissible, State v. Hayzlett, 265 S.W.2d 321 (Mo.1951). The situa tion here is not one in which the defendant was the only person who could testify as to the disposition of the defendant’s earnings as in State v. Morgan, 444 S.W.2d 490 (Mo.1969), or where there was repetition of the comment as in State v. Hardy, 365 Mo. 107, 276 S.W.2d 90 (1955). The prosecutor sim ply made a general, nonprejudicial comment in closing argument.

Judgment of conviction affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James D. ALRED, Appellant.
    No. 36021.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 20, 1975.
    Rehearing Denied June 26, 1975.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
    Dewey S. Godfrey, Jr., St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant James D. Aired guilty of feloniously stealing a motorcycle, and the court sentenced him to three years’ imprisonment. He appeals, contending the trial court erred in admitting into evidence a bolt cutter allegedly connected with the theft.

The evening of May 18, 1973, John Burke padlocked his motorcycle to his porch with a chain. When he later realized someone was tampering with the cycle, he went outside and saw that his chain had been cut and three men were loading the cycle into a gray van. Burke gave chase in vain; the three men got away. A few minutes later, as Burke was reporting the incident to police the van passed by. During the ensuing police chase, someone threw a plastic bag from the van which contained numerous motorcycle keys. A search of the van revealed more keys, a bolt cutter and motorcycle gear, but not Burke’s cycle. Burke identified the three men in the van as the thieves and at trial he again identified defendant.

Defendant’s wife testified defendant was in the business of repairing motorcycles, and another witness testified that no key thrown from the van window would fit Burke's cycle. An expert witness testified that he himself could not cut Burke’s chain with the bolt cutter found in the van but that he was able to do so with another man’s help. Stiration marks on the cut chain were inconclusive as to whether or not defendant’s bolt cutter had actually been used to cut Burke’s chain. To summarize, the evidence failed to show the bolt cutter was used to cut the chain but did show it could have cut the chain.

Defendant now argues the trial court erred in admitting in evidence the bolt cutter found in the van. He contends the bolt cutter was not shown to have been used by defendant in cutting the chain around Burke’s cycle, and that the evidence was therefore “negative and non-probative.” In support of his contention, counsel claims the State misled him during pre-trial discovery by sending him a letter indicating the bolt cutter had not cut Burke’s chain.

The disputed letter merely said the State’s analysis “failed to establish” whether the bolt cutter had been used to cut the chain involved. Counsel mistakenly inferred the State meant the bolt cutter actually did not cut the chain. But the State established at trial that while one man alone was unable to cut the chain with the bolt cutter, two men together could and did accomplish this act.

The basic issue is not whether the bolt cutter in question actually did cut Burke’s chain. The issue is whether the court erred in admitting the bolt cutter as relevant evidence. We hold there was no error, since the evidence was relevant to whether defendant participated in a theft during the course of which a chain was cut. It is enough that the bolt cutter found in defendant’s van could have been used to cut the chain on Burke’s motorcycle.

“One fact is relevant to another fact whenever, according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other certain or more probable.” Crowley v. Crowley, 360 S.W.2d 293[2] (Mo.App.1962). In this case, the mere fact defendant possessed the bolt cutter did not in itself prove that defendant stole Burke’s motorcycle. But the fact defendant possessed a bolt cutter capable of cutting the chain, when considered in connection with its location in a vehicle recently involved in a theft and owned by defendant, rendered the implement admissible as relevant to the issue of defendant’s guilt.

Cases upholding the relevance of comparable demonstrative evidence include State v. Miller, 368 S.W.2d 353[14] (Mo.1963); State v. Mick, 506 S.W.2d 35[9] (Mo.App.1974), and State v. Greathouse, 519 S.W.2d 299[7-14] (Mo.App.1975).

The facts in the present case show defendant possessed the van used to transport the stolen motorcycle, that the cycle was stolen by means of cutting the padlocked chain, and that soon after the theft defendant was in possession of an instrument which could have been used to cut that chain. In light of these circumstances the bolt cutter was relevant to the stealing charge and was properly admitted in evidence. Its weight was for the jury.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


author: STEWART, Judge.

text:
    SCHOLZ HOMES, INC., a corporation, Plaintiff-Appellant, v. CLAY WIDEMAN & SONS, INC., a corporation, Defendant-Respondent.
    No. 35820.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 17, 1975.

      David L. Colson, Colson & Wagner, Farmington, for plaintiff-appellant.
    Charles W. Medley, Gary E. Stevenson, Farmington, for defendant-respondent.
   STEWART, Judge.

The plaintiff brought an action in one count. It alleged that plaintiff sold, shipped and delivered certain building materials to defendant at a described building site pursuant to the terms of a written contract which was made a part of the petition. Plaintiff alleged the contract price of the material and further that the price was to be paid by way of a note secured by a deed of trust, and that defendant refused to execute the note and deed of trust by reason of which plaintiff was damaged in the sum of $20,000. Plaintiff prayed judgment for the purchase price, $20,000.00, as damages and for an order directing defendant to execute a first “mortgage”.

Defendant filed four separate motions to dismiss. One of the motions was titled “Motion to Dismiss Plaintiff’s Action in Equity”. Upon hearing the above motion the court entered an order dismissing plaintiff’s “Action in Equity”. The trial court did not designate his order as “a final judgment for purposes of appeal” within the meaning of the second sentence of Rule 81.06, V.A.M.R. The trial court did not rule on the other motions which are still pending.

The parties have in all fairness faced the first problem confronting the court. Is the order of the trial court appealable?

Plaintiff cites Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315 (Mo.App.1971), which holds that the dismissal of a petition upon the ground that it fails to state a cause of action is a disposition of plaintiff’s claim on the merits and is an appealable order. However the order must also dispose of the whole case or the trial court, where applicable, must designate its order as final for purposes of appeal pursuant to the second sentence of rule 81.06. Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974).

The order of the court here did not dispose of the whole case; the court did not enter an order designating its order as final for the purposes of appeal and it is apparent that the subject of the court’s order is not an entirely separate and independent claim unrelated to the claim remaining in the case, which would bring it within the third sentence of 81.06. See Spires v. Edgar, supra; and Ramatowski v. Ramatowski, 414 S.W.2d 827 (Mo.App.1967). The order entered is not a final judgment for purposes of appeal.

The appeal is dismissed.

CLEMENS, P. J., and KELLY, J., concur.

      . “. . . When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. . . .”

      . “. . . However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.-020, Revised Statutes of Missouri, . . . ”