author: ROBERT R. WELBORN, Special Judge.

text:
    Donald Dean GUNNERSON, Respondent, v. KANSAS CITY STRUCTURAL STEEL COMPANY, and Royal Indemnity Company, Appellants.
    No. KCD 28086.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Harold J. Maddox, Kansas City, for appellants.
    Arthur H. Stoup, Thomas E. Thompson, Kansas City, for respondent.

      Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Workmen’s Compensation proceeding. Referee of Division of Workmen’s Compensation found for employee and awarded 30 weeks of temporary total disability at $63.50 per week and 340 weeks of permanent partial disability at $58.00 per week. The Labor and Industrial Relations Commission affirmed the award of the referee. The award was in turn affirmed by the Jackson County Circuit Court.

Donald Dean Gunnerson was employed by Kansas City Structural Steel Company as an ironworker. On December 27, 1969, he was working on the installation of an exhaust fan on the roof of a building at the Sheffield-Armco Plant in Kansas City. Gunnerson was working at the apex of a Y-shaped metal roof. He had been lifted some 80 feet to the eaves of the roof on a “headache ball.” From that point he climbed to the apex of the roof with the aid of a rope.

Gunnerson had been on the roof for about two hours when around 2:00 or 2:30 P.M. he had to go to the restroom. Rain which had been falling earlier had turned to sleet and the roof was icy. So was the rope and Gunnerson decided not to try to go down it to the eaves. Instead, he started to walk across the sloping roof to the end of the building where there was a handrail and stairs. While walking about halfway between the eaves and the apex, he started sliding down the roof. He went to his knees in an effort to get hold of something to stop his sliding. He found nothing to hold so he lay down on his stomach and spread out in an effort to stop. He continued to slide and lost consciousness before he slid over the eaves. He fell to the roof of a lean-to. He was taken off the roof by the crane operator. His hard hat was cracked for about 1½ inches by the impact of the fall.

He was taken by ambulance to St. Joseph Hospital where he was found to have injuries to his head, neck, left arm, leg and buttocks. He was hospitalized for three days. The discharge diagnosis was: Cerebral concussion and Renal contusion. He was off work for about a week following his discharge from the hospital.

On February 12, 1970, he was readmitted to St. Joseph Hospital, complaining of a “tight” feeling in his left arm, back and left leg pain and neck pain. He received physiotherapy treatment and on his discharge February 21 was provided with a neck brace.

Because of various problems connected with his injuries and the treatment, he worked only about 50% of the time between March, 1970 and July 3, 1970, when he was again hospitalized for the same complaint, this time at Research Hospital. He received physiotherapy and was treated by traction. Upon his discharge on July 21, he was provided a back brace and a traction device for use at home. For three or four months, he was unable to work because of headaches and pain in his back, arm and leg.

Following his second hospitalization, Gun-nerson had problems with shaking while he was working and lost one job because fellow-employees complained that’ he was shaking the scaffolding on which they were working. By November, 1970, he was having emotional difficulties, evidenced by difficulty in getting along with fellow-employees and his wife and children. He began to have difficulty holding a job more than a week or two at a time. He would either be terminated by the employer or quit work to avoid a fight. He became frightened by heights and it became difficult for him to get up on ladders and scaffolds. His weight dropped from around 210 to 165 or 175 pounds. He was unable to work for more than half the time.

In March, 1971, Gunnerson’s attorney arranged for his client to visit Dr. George J. Lytton, a- psychiatrist. Based upon his interview with the patient and subsequent psychological testing, Doctor Lytton concluded that Gunnerson was suffering from a depressive reaction caused by his December, 1969 fall. Doctor Lytton offered no treatment and did not see Gunnerson again for more than a year. Gunnerson did not keep an appointment with Doctor Lytton in April, 1972. In May, arrangements were made for Mrs. Gunnerson to visit Doctor Lytton and she told him of the difficulties she was having with her husband. Doctor Lytton saw Mr. Gunnerson on May 6, 1972. At that time the claimant was “profoundly depressed, blue and gloomy.” Doctor Lyt-ton again concluded that he was suffering from a depressive reaction.

In July, 1972, claimant’s wife filed for divorce, alleging that her husband had “slapped her around” and threatened her with physical harm. A divorce was granted in October, 1972.

On October 13, 1972, Gunnerson was readmitted to Research Hospital, “visibly shaking” and complaining of headaches and back pain. He was discharged on October 18, with a primary diagnosis of “back pain of questionable etiology.”

On October 27, 1972, he was again seen by Doctor Lytton, to whom he complained of inability to sleep, inability to work and loss of weight. Doctor Lytton again concluded that he was suffering from depressive reaction which had become more severe.

Doctor Lytton saw claimant next on March 16, 1973. His complaints were similar to those previously voiced and Doctor Lytton concluded that the patient’s depression was becoming accelerated. He expressed a similar view following a visit on June 20, 1973. Following this visit Doctor Lytton recommended psychiatric treatment at an estimated cost of $5,000 “to halt this deterioration.”

On September 4, 1973, Gunnerson stopped by Doctor Lytton’s office and left a note which the doctor considered “strongly suicidal.” He arranged for the claimant’s hospitalization at Research.

In June, 1973, Gunnerson had been seen in psychiatric evaluation by Doctor Bidwell, a psychiatrist for the employer-insurer. Doctor Bidwell saw Gunnerson several times thereafter, and, after the September, 1973 hospitalization at Research, Doctor Lytton got in touch with Doctor Bidwell who arranged for the patient to be transferred to Menorah Hospital under Doctor Bidwell’s care. Because Gunnerson did not wish to remain in the hospital, he was discharged and continued to see Doctor Bid-well as an outpatient. In a psychiatric evaluation, dated July 5, 1973, following Gunnerson’s June visit and neuropsychological testing, Doctor Bidwell concluded:

“It would seem that following his fall he [Donald Gunnerson] suffered some form of cerebral contusion which has left him with severe psychological impairment. The fact that it has taken the form of depression with psychomotor retardation probably has much to do with his premorbid personality. However, the precipitating event would seem to have been his injury in 1969.”

Gunnerson’s workmen’s compensation claim was heard by a referee of the division in January, 1974. In addition to the medical and psychiatric record of Gunnerson’s care and treatment following the December, 1969 fall, the claimant and his former wife testified to personality changes, manifested in various ways. Doctors Lytton and Bidwell appeared as witnesses and both asserted the conclusion stated in this report that the claimant’s psychiatric problems had been precipitated by the fall. The employer-insurer offered no contradictory medical or psychiatric evidence, but sought by cross-examination of the claimant and the witnesses produced by him to relate the psychiatric problems to the claimant’s rejection by his natural parents. The employer-insurer’s cross-examination attempted to show that claimant was emotionally unstable prior to the fall.

The referee made the following findings: “I find and believe from all of the credible evidence that the employee, Donald Dean Gunnerson, sustained an accident arising out of and in the course of his employment with the employer, Kansas City Structural Steel Company, when on or about December 27, 1969, in Kansas City, Jackson County, Missouri, he was working on the job on the roof of a building and while walking across the roof of said building to go to the restroom he slipped and fell and then slid down said roof to a point where he fell off of said roof and landed on the roof of a lean-to adjacent to and a part of said main building.

“I further find and believe from all of the credible evidence that as a direct and proximate result of said accident he sustained injuries to his head, neck, back, left arm and psyche.”

These findings were affirmed by the Labor and Industrial Relations Commission and the circuit court.

On this appeal, the first contention of the appellants, employer and insurer, is that the award was beyond the powers of the Commission because it was based upon injury to the “psyche” which was neither pleaded nor proved.

Appellants acknowledge that, on April 4, 1973, the respondent’s claim, originally filed in February, 1970, and referring only to injuries of an orthopedic nature, was amended to allege that, as a result of the fall, he had suffered a “depressive reaction.” A depressive reaction is a condition involving the mind. The words “mind” and “psyche” are synonymous. Webster’s Third New International Dictionary (1966). The referee’s use of the term “psyche” was obviously intended to refer to the portion of the body which had sustained injury. Appellants acknowledge that the issue of a depressive reaction was tried before the referee. The evidence clearly supported the conclusion that claimant had suffered a depressive reaction.

The conclusion of an injury to the “psyche” was obviously a finding by the referee on the depressive reaction aspect of the claim, and was within the scope of the claim which had been presented on that basis.

Appellants next contend that the award is beyond the authority of the Commission because the Commission failed to require respondent’s pastor to testify.

As above noted, appellants’ theory at the hearing before the referee was that respondent’s mental problems antedated his fall. On his cross-examination Gunnerson stated that between the time of his marriage in 1964 and December, 1969, he and his wife had gone to their pastor, Tommy Burgdorff at the Antioch Baptist Church, on two occasions for counseling because of domestic “typical disagreements.” Respondent’s former wife testified that they saw Reverend Burgdorff “a couple of times” “over small disagreements.”

Reverend Burgdorff was subpoenaed as a witness by appellants. He acknowledged that the Gunnersons had come to him on various occasions for marriage counseling because of problems in their marriage. He acknowledged that he talked to them about problems in their marriage, but he refused to relate any statements made to him by the Gunnersons. He said: “I feel that these statements that were made to me are made in my professional connection as a clergyman and they are a part of a sacred trust to me that I do not feel that I can divulge.” He acknowledged that his church, the Southern Baptist denomination, had no canons or rules requiring confession by its members. He stated that the Bible is the book of faith of his denomination and governs his church. He said that the New Testament does encourage confession of sins. Appellants’ counsel made an offer of proof that, if Reverend Burgdorff did testify, he would testify that, prior to December, 1969, Mrs. Gunnerson had complained to Reverend Burgdorff of her husband’s moodiness and depression and of his fits of rage, in which he either threatened to or in fact did beat her. The referee sustained an objection to the offer of proof.

The parties here have briefed this contention on the basis of the admissibility of Reverend Burgdorff’s testimony, under § 491.060(4), as follows:

“The following persons shall be incompetent to testify:

“(4) A minister of the gospel or priest of any denomination, concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination; sf: ⅜: sf: V

Assuming that the testimony would have been admissible (compare Pardie v. Pardie, 158 N.W.2d 641, 645[8] (Iowa 1968), and Simrin v. Simrin, 233 Cal.App.2d 90, 43 Cal. Rptr. 376, 378-379[9] (1965)), the question remains whether or not its exclusion requires reversal of the Commission’s decision. In arguing that the testimony should have been admitted, appellants assert that the evidence “established” that respondent had a traumatic childhood; that prior to December, 1969, respondent “would argue and find fault with his wife and over-punish their daughter, giving rise to strong arguments between the respondent and his wife,” and that, because of arguments, the respondent and his wife sought marriage counseling from Reverend Burgdorff prior to December, 1969.

Whether or not these facts were “established,” there was evidence on such matters for the consideration of the Commission. Thus the expected testimony of Reverend Burgdorff would at the most have been cumulative on the issue of respondent’s mental state prior to December, 1969. Furthermore, appellants’ counsel was permitted to ask Doctor Lytton a hypothetical question, based upon the assumption of the matters contained in the offer of proof with respect to Reverend Burgdorff’s testimony. The following appears in the cross-examination of Doctor Lytton:

“*** Assume that prior to December 1969, prior to this fall, that the Gunner-sons went to Reverend Burgdorff and that Mrs. Gunnerson advised the Reverend that Mr. Gunnerson had threatened to beat her up and had periods of moodiness and gloom and depression; that he counseled them for that; what kind of condition, mentally, would Mr. Gunnerson have been suffering from at that time, in your opinion?

“A I don’t know. I didn’t have a chance to examine him at that time.

“Q If those things are true, would you also tag him at that time, prior to 1969, as a depression reactive?

“A It could, might could, or might just call him a bad boy.

“Q Are you calling him a bad boy after December 1969?

“A I didn’t say anything about that. You said about that time, I said he could either be depressed or just a bad boy, I don’t know, but I can tell you at the time that I saw him, since then, he has been depressed.

“Q You assume that on occasion Mr. Gunnerson would be moody and depressed for hours at a time, prior to December 1969, would that suggest to you a depression reaction?

“A It could, I don’t know, I didn’t examine him.

“Q Is that the kind of thing a person like that does?

“A It could.

“Q And if we are able to establish that— in the trial of this case through Reverend Burgdorff and other people of those depressions and moody spells, and violence prior to December 1969, would you have a different opinion about the amount of disability?

“A I don’t know.”

The rejection by the Commission of competent and material evidence may require that the order be reversed and the matter remanded to the Commission for consideration anew in the light of such erroneously excluded evidence. Smith v. Smith, 361 Mo. 894, 237 S.W.2d 84, 87[3] (1951); Wills v. Berberich’s Delivery Co., 339 Mo. 856, 98 S.W.2d 569, 571[2-4] (1936). However, the erroneous exclusion of evidence of a cumulative nature does not invoke this rule. See Johnson v. Park N Shop, 446 S.W.2d 182, 188 (Mo.App.1969); Carter-Wallace Inc. v. Gardner, 417 F.2d 1086, 1096[17, 18] (4th Cir. 1969). Here the evidence would have been cumulative and it was shown not to have affected the opinion of respondent’s psychiatric witness as to the cause of respondent’s depressive reaction. In such circumstances, there is no reason to remand the matter to the Commission for consideration anew.

Appellants next contend that respondent should have been denied benefits for the claimed mental condition because he failed to give appellants reasonable and timely notice that he was claiming a mental condition as a result of the fall in question. Appellants contend that they showed that they were prejudiced by failure to receive notice of a claim based upon such condition.

Appellants acknowledged actual notice of the accident which gave rise to the claim. They contend, however, that, although Doctor Lytton had found the depressive reaction condition to have existed in March, 1971 and discussed the matter with respondent’s counsel, no notice was given appellants of such condition until June, 1972. Appellants’ claim of prejudice by reason of the failure to receive earlier notice is premised on Doctor Lytton’s testimony that respondent’s disability, rated at 65 to 75% as of March, 1971, declined to 55 to 65% in June, 1972, following treatment.

Appellants argue:

“By reason of the above, it must necessarily follow then that in view of Doctor Lytton’s admissions that treatment would have helped the respondent in March of 1971 and in fact did, the final rating is 85%, i. e., at least 20% greater than it would have been had treatment been given in March of 1971 and had the employer and insurer been given notice of the claimed mental condition and been given an opportunity to provide the respondent with treatment. It is also probable by reason of Doctor Lytton’s testimony, the disability could have been reduced by 30% of the body.”

The referee and the Commission were not obliged to accept this reasoning. In the first place, the reduction in disability between March, 1971 and June, 1972 did not follow treatment for no treatment was given during that period. Secondly, even after notice was given appellants in June, 1972 of the claim based on the mental condition, appellants did not have their psychiatrist examine respondent until June, 1973. Instead of providing treatment once the condition had been called to the attention of appellants, appellants sought to take the respondent’s deposition rather than to offer treatment. In these circumstances the conclusion that appellants did not show prejudice by reason of the delayed notice will not be disturbed.

Appellants next assert that, on several matters, the award was not supported by substantial and competent evidence and was contrary to the overwhelming weight of the evidence. The first matter complained of is the finding of an injury to the “psyche”. Appellants assert there was no evidence of such an injury. This problem has already been dealt with. What was said above answers the objection here raised.

Appellants next assert that the Commission erred in failing to find that respondent’s depressive reaction started in his early childhood and developed as he grew older and was not the result of the fall in question. Appellants’ argument on this score ignores all of the well-established, often repeated law on the nature of judicial review of factual findings of the Commission. Appellants have simply marshalled all of the evidence which might have supported the finding for which they contend and have completely ignored the contrary evidence which supports the finding made. It does not avail appellants to cite the case of Patane v. Stix, Baer and Fuller, 326 S.W.2d 402 (Mo.App.1959), in which the Commission did find that the psychoneurotic condition there involved was a pre-existing condition, not the result of an employment related accident. That case merely demonstrates that the question is for the Commission when different conclusions may be drawn from the evidence. Just as the court in the Patane case did not substitute its conclusion for that of the Commission, this court will not do so in this case.

Nor is this case similar to Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App. 1973), where equivocal medical testimony was held inadequate to relate the disability there claimed to the employment related accident. Here Doctor Lytton stated unequivocally that the depressive reaction was caused by the fall and Doctor Bidwell, the psychiatrist employed by the appellants, stated that, although respondent’s psychological impairment in the form of depression with psychomotor retardation probably was related to his “premorbid personality,” “ * * * the precipitating event would have to have been his injury in 1969.” Thus, there was substantial and competent evidentiary support for the Commission’s finding.

Appellants next attack the finding of 85% disability of respondent. Their argument on this point is prefaced as follows:

“It is to be remembered that the basis for awarding permanent partial disability is competent and substantial evidence of present and future impairment of earning power. Franklin v. St. Louis Independent Packing Company, 360 S.W.2d 350 (Mo. App.).”

The cited case does not support this proposition. In that case the court stated (360 S.W.2d 354):

“ * * * An employee may have a permanent partial disability within the meaning of the Workmen’s Compensation Act, and still be able to work. Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170; Worley v. Swift & Co., Mo.App., 231 S.W.2d 828. Nor is actual loss of earnings an essential element of a claim for permanent partial disability. Carr v. John W. Rowan Plastering Co., 227 Mo.App. 562, 55 S.W.2d 727; Worley v. Swift & Co., supra; Sleets v. St. Louis Material & Supply Co., Mo. App., 39 S.W.2d 821; Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224. * * * tt

See also Komosa v. Monsanto Chemical Company, 317 S.W.2d 396, 400[7] (Mo. banc 1958); Davis v. Brezner, 380 S.W.2d 523, 528[6 — 9] (Mo.App.1964).

Appellants’ citations to cases from other jurisdictions (Joyce v. Chicopee Manufacturing Company, 103 N.H. 471, 175 A.2d 521 (1961), Ede v. Ruhe Motor Corp., 184 Pa.Super. 603, 136 A.2d 151 (1957) and Benedict v. Fox, 192 Pa.Super. 197, 159 A.2d 756 (1960)) are not helpful, dealing as they do with statutes different from those of Missouri.

Doctor Lytton testified that, based upon his examination of January 11,1974, he felt that respondent had an 85% disability of the body as a whole as a result of a neurotic depressive condition. He also stated that he considered the condition permanent. This court cannot say that the disability finding is not supported by competent, substantial evidence.

Appellants next contend that the finding that respondent sustained an injury in a compensable accident is not based upon substantial and competent evidence and was contrary to the weight of the evidence.

The respondent’s version of his fall has been set forth previously. No eyewitness testimony contradicted the respondent’s version of the incident. Appellants contend that the evidence established that the fall was the result of a previously existing condition which involved dizzy spells on the part of respondent. Appellants did offer evidence from respondent’s foreman that respondent had complained to him some six months before the fall of dizziness. Respondent denied that he had dizzy spells before the fall. Appellants point to language in a report of the surgeon who first saw respondent when he was hospitalized following the fall. In that report the doctor stated: “Patient states the last he remembers he was on roof of electric furnace. Starting down for drink of water, fellow workers found him on roof of lean-to.” The same doctor, in his history in the record of the respondent’s December 29 hospitalization, stated that the patient fell a long distance from a roof and “was knocked unconscious.” Appellants also call attention to the statement in the respondent’s history on his July, 1974 hospitalization to the effect that respondent stated that “ * * * he thinks he was unconscious before he fell, but really thought he blacked out because he was faint.” This report was signed by Doctor Coburn. Doctor Coburn had previously seen respondent at the request of appellants in May, 1970, at which time he made a report to appellants’ counsel in which he stated: “Mr. Gunnerson stated that on December 27, 1969, while employed by Kansas City Structural Steel Company, he fell about forty feet, sliding from an iced sheet metal building to a lower metal building. He said he was unconscious before he fell, but thinks from fear because he guessed as he looked around and couldn’t find anything to grab, he blacked out.”

There was positive direct evidence to support the findings that respondent had sustained an accidental injury within the meaning of the Workmen’s Compensation Law. There were some inconsistencies in the physicians’ reports, but they were for the fact finder to resolve and do not rise to the level of destroying the direct evidence of the occurrence. The direct positive evidence here present distinguishes this case from Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App.1973), relied upon by appellants.

Under this point appellants have also argued a claim of error on the part of the Commission in excluding records of prior litigation involving respondent in which he had claimed a head injury in a 1966 automobile collision. Inasmuch as such claim is beyond the scope of appellants’ assignment of error under this point, it will not be considered. Massey-Harris Co. v. Rich, 233 Mo.App. 509, 122 S.W.2d 858, 867-868[11] (1938).

Respondent’s motion for assessment of damages for frivolous appeal, ordered taken with the case, is overruled. Appellants have presented justiciable questions on this appeal and there is no basis for the conclusion that the appeal was solely for the purpose of vexation and delay.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: STEWART, Judge. KELLY, Judge

license: Public Domain

text:
    ST. LOUIS TERMINALS CORPORATION, a corporation, Plaintiff-Respondent, v. CITY OF ST. LOUIS, a Municipal Corporation et al., Defendants-Appellants.
    No. 36199.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 30, 1976.

      Jack L. Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for defendants-appellants.
    G. Lane Roberts, Jr., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Respondent, St. Louis Terminals Corporation, brought a declaratory judgment action against the appellants, City of St. Louis and the Board of Public Service of the City of St. Louis. The respondent will hereafter be referred to as Terminals and the appellants will be referred to jointly as City.

Count I of Terminals’ petition sought a declaration that an agreement effective May 13, 1966, entered into between City and Terminals, pursuant to Ordinance 54034 of the City of St. Louis, for the operation of the Municipal Dock known as the North Market Street Dock by Terminals, is a valid and binding obligation. Count II sought judgment enjoining City from breaching the contract and an order that the agreement be specifically enforced. The City appeals from a judgment granting the relief requested. We affirm.

In 1957 the City entered into an agreement with Terminals for the operation of the North Market Street Dock, hereafter referred to as the dock, for a term of 15 years. This contract was awarded to Terminals upon a bid pursuant to Chapter 292, Revised Code of the City of St. Louis (Ordinance 48175), hereafter referred to as Chapter 292, a general ordinance titled “Municipal Quays and Warehouses.” Supplemental agreements were entered into in 1962 whereby Terminals made $200,000 in capital improvements.

In 1966 the parties discussed the need for additional capital improvements to attract shippers to St. Louis. Negotiations were commenced toward “extension of [the] agreement” which would cover the remaining term of the original agreement and grant to Terminals the option to renew for 3 additional 5 year periods.

The result of the negotiations was a proposal for a new agreement. In March of 1966 the City enacted Ordinance 54034 which authorized the City to enter into the agreement with Terminals as set forth in the Ordinance. This agreement was executed by the parties and became effective May 1,1967, for a period of 5 years with an option to Terminals to renew for three additional 5 year periods.

The agreement granted to Terminals “the exclusive right and privilege of occupying and using [the dock]” for the purposes of operating the dock. In brief, Terminals agreed to pay “tollage/rental” upon specified cargo handled by it. The “tol-lage/rental” rates increased 10% in the second 5 year period, 20% in the third period, and 30% in the fourth 5 year period. A minimum annual “tollage/rental” fee was also provided, with increases in each of the 5 year periods. The agreement recites that Terminals had previously invested $203,-442.00 in capital improvements and that it agreed to invest a minimum of $500,000.00 for additional capital improvements within the original 5 year period of the agreement. The improvements are to become the property of the City. Terminals has complied with the terms of the agreement.

In 1973 the City enacted Ordinance 56450. The Ordinance recites that it repeals Ordinance 54034 which it refers to as granting a franchise to Terminals. This Ordinance provides that the Board of Public Service should call for bids from persons interested in operating the dock, and further provides in minute detail the terms to be required of the successful bidder.

Succinctly stated the issues to be determined are whether Ordinance 54034 which authorized the contract of 1966 was validly enacted, and secondly whether Ordinance 56450 in fact repealed Ordinance 54034 and thus terminated the agreement of May 1966.

Preliminary to our discussion we must determine the nature of the agreement of May 1966. City, in its brief, alternately labels the agreement a “lease” and a “franchise”. A lease has been said to be “a contract for the possession and profits of property in consideration of a rent, and a franchise being a special privilege, granted by the government.” 37 C.J.S. Franchises § 7, p. 150. In the case before us the contract grants to Terminals the “exclusive right and privilege of occupying and using [the dock].” The consideration for the grant was denominated “tollage/rental” with the additional consideration of constructing additional capital improvements which were to become the property of the City at the termination of the agreement, which may be classified as rent. This agreement can be more properly termed a lease as distinguished from a franchise and is not governed by Article XIX of the Charter of St. Louis, which covers the subject of franchises, as contended by the City. See Greene Line Terminal Co. v. Martin, 122 W.Va. 483, 10 S.E.2d 901, 903 (1940). Our determination is further fortified by the provisions of Article I, Sec. 1(16) of the Charter of the City of St. Louis which grants to the city the specific power to lease portions of the wharf. Clearly the intent of this agreement was to exercise the authority granted by the Charter..

The City contends that the contract of May 1966, is “void and invalid” because it did not comply with Chapter 292, the general Ordinance regulating the operation of municipal docks, which had been expressly repealed or amended by Ordinance 54034, which authorized the contract.

Without detailing the requirements of Chapter 292 suffice it to say that the agreement of May 1966 does not comply with the terms of Chapter 292. -In fact Ordinance 54034 acknowledges that it is a departure from the terms of Chapter 292.

A similar contention was made in Ruschenberg v. Southern Electric R. Co., 161 Mo. 70, 61 S.W. 626, 629 (1900). There was, in that case, an ordinance regulating the speed of street railway cars at a maximum of 8 miles per hour. A subsequent ordinance granted the defendant a franchise and provided for a speed limit of 15 m. p. h. In that damage suit the plaintiff claimed that the 8 mile an hour speed limit was applicable. The rule, as stated in that case, is applicable here, l.c. 629:

“. .we are not required to hold it is a repeal, and is therefore void, because not an express repeal, because when there are two . . . ordinances, one of which is special and particular, and certainly includes the matter in question . . . and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision . . . the special act must be taken as intended to constitute an exception to the general act or provision, and not a repeal.”

Ordinance 54034 constitutes an exception to Chapter 292 and is not invalid for the reasons espoused by City.

City contends that the Ordinance is void because it does not comply with Article IV, Sec. 10 of the Charter which reads:

“The style of every ordinance shall be: Be it ordained by the City of St. Louis as follows.”

Without setting out the Ordinance in detail suffice it to say that the Ordinance contains such a clause and thereafter incorporates, by reference, the contract, which is set out in full in the title. In any event an omission of the ordaining clause would not invalidate the Ordinance. Our courts have long held that such requirements as to the form of ordinances are directory and not mandatory; and that the omission will not invalidate the ordinance. City of St. Louis v. Foster, 52 Mo. 513, 514 (1873).

The remaining contentions are that the agreement is invalid because it permits Terminals to set the fees; it constitutes an absolute divestment of public property without a right of re-entry; and it constitutes a grant of public money in aid of a private corporation in violation of Art. VI, Sec. 25, Mo.Const.1945.

Common to each of these contentions is the nature of the authority granted to the city with respect to wharves and docks. Article 1, § 1(16) provides that the City shall have the power “to . . . rent or lease for not exceeding twenty-five years portions of the wharf for any purpose tending to facilitate the trade of the city.”

For the purposes of this case the most significant power which the City is granted in the Charter provision is to “rent or lease” the docks. We have heretofore determined that the agreement entered into was a lease. The term lease must be taken in its ordinary meaning. It is generally held that a lease is a species of contract for the possession and profits of land for a determinate period, which must be less than the term of the landlord, with the recompense of rent. 51C C.J.S. Landlord and Tenant § 202(2), p. 519. A lease creates an estate in the tenant with transfer of exclusive possession and control of the premises to the tenant subject to such conditions as may be imposed by the terms of the contract creating the tenancy. Friend v. Gem International Inc., 476 S.W.2d 134 (Mo.App. 1971).

When the City has exercised its Charter power to lease the docks, the lessee must of necessity have all of the rights of a tenant under the ordinary business lease, subject only to the restrictions and conditions set out in the contract between the parties. The Charter places no limitations on the power to lease, except that it may not exceed 25 years. If one is to have the “possession and profits” of the property leased, he must have the power to set the charges for his services and merchandise necessary to provide such profits. This is recognized in the agreement in this case. By the contract Terminals is empowered to set charges which are to be reasonable and to be applied without discrimination. Upon objection, the question of reasonableness is to be determined by arbitration if it cannot be settled between City and Terminals. City cites Clay v. City of St. Louis, 495 S.W.2d 672 (Mo.App.1973) in which this court held that the City could not by ordinance delegate to the Airport Commission the legislative power to set landing fees at the municipal airport. The court was there dealing with the question of delegation of discretionary power to an administrative body; a body created to administer the municipal airport. The power to maintain and operate the airport is not one specifically granted by charter but is conferred by the broad general powers of a municipal corporation. See Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045 (Banc 1928). The charter grants no specific authority to establish the method of operation of the airport. In the case of the municipal docks the charter specifically grants the power to lease.

In Matthews v. City of Alexandria, 68 Mo. 115 (1878), cited by the City the City of Alexandria was indebted to Matthews and leased the wharf to him and permitted him to collect wharfage in payment of the debt. The court there said, l.c. 119, “By the charter of the city of Alexandria, authority was conferred upon the city council to erect, repair and regulate public wharves and docks, and to fix the rate of wharfage thereat. Acts 1849, 352; Acts 1851, 393. No authority was given by the charter to the city to lease the wharf, or farm out its revenues, or to empower any one else to fix the rates of wharfage.” The deficiency noted in that case is not present here. The Charter of the City of St. Louis grants the specific authority to lease. The fact that Terminals may set the fees within the limitations set forth in the agreement does not in this case render the agreement invalid.

The thrust of City’s argument that the lease constitutes an absolute divestment of public property without a right of re-entry eludes us. The lease follows the power granted by Charter which provides that the City may “rent or lease for not exceeding twenty-five years.” If all options are exercised the life of the lease will be twenty years which is well within the limitation imposed.

City in support of its contention cites ‘Belcher Sugar Refining Company v. St. Louis Grain Elevator Company, 82 Mo. 121 (1884). In that case the city had condemned certain property including property of Belcher for wharf purposes. The City leased a large portion of the property for a shed or warehouse under charter authority to “lease portions of the unpaved wharf for special purposes . . . such as the erection of sheds, elevators and warehouses.” The one question presented was whether this lease was for a purpose other than that for which the property was condemned. It was held that in view of the changed methods of handling produce the City could license the erection of warehouses upon the unpaved portion of the wharf in connection with the operation of the wharf. The court, however, held that the City must reserve the right to “cancel the lease, whenever it should become necessary to pave and extend the wharf.” The court gives no specific authority or reason for the latter assertion. While we question the validity of the statement and entertain doubt as to its meaning we do not feel that it has. any effect upon this case.

We are not faced with the question presented in that case. There is no doubt but that the lease here was for the public purpose of operating a dock which was open to all in need of it. In any event the lease in this case provides that the parties have agreed that the responsibility to keep the docks maintained is in the City. The parties have agreed that the work on City owned property and structures deemed necessary and which is approved by City shall be performed by Terminals on behalf of City. This plus the fact that City has the right of inspection along with the further provision that upon default of Terminals as to any of the terms of the agreement City has the right to “re-enter” removes any objection that might be read into Belcher. We have also reviewed the subsequent case of Belcher Sugar Refining Company v. St. Louis Grain Elevator Company, 101 Mo. 192, 13 S.W. 822 (1890). It lends no further support to City’s position.

City contends that the lease constitutes a grant of public money or property to a private corporation in violation of Art. VI, § 25, Mo.Const.1945, because the rental received is grossly inadequate. City cites us to no cases nor has our research revealed any. We have found a comment with respect to a similar contention. In Cleveland Stevedore Co. v. City of Cleveland, 16 Ohio Misc. 91, 241 N.E.2d 290, 293 (1968) it was said of the lease payments of docking berths: “Financial return in the form of lease payments is not the sole criterion, however, and other benefits such as an increase in the flow of goods through the port may properly be sought.” This very thought was also considered by City at the time it passed the Ordinance. Upon completion of negotiations the City’s Comptroller in a letter to Terminals said, “. we look forward to the final consummation which will provide many long term benefits to the City’s economic progress.”

The bond issue for improvement of the docks was not based upon any commitment to Terminals. The fact that City exercised its Charter authority to lease the dock after making improvements upon it did not violate the provisions of the Constitution.

There is no contention and indeed there is no indication of bad faith, fraud or abuse of discretion on the part of the Board of Public Service or on the part of the Board of Aldermen who passed the Ordinance which authorized the lease.

In the view that we have taken of this case, the fact that Terminals has made a profit from the operation of the dock or the extent of the profit is not relevant.

The agreement of May 16, 1966, was a valid contract of lease in accordance with the Charter provisions of the City of St. Louis.

Having reached the conclusion that the agreement was a valid and binding contract it necessarily follows that Ordinance 56450 is void. The Constitutional prohibition against any “law impairing the obligations of contracts . . .” is applicable to Municipal Ordinances. Neill v. Gates, 152 Mo. 585, 54 S.W. 460 (1899).

We have reviewed other matters argued by City but find no merit in them.

The judgment of the trial court is affirmed in all respects.

CLEMENS, P. J., concurs.

KELLY, J., dissents in separate opinion.

KELLY, Judge

(dissenting).

I cannot concur in the decision of the majority that the “Agreement” of May 1, 1967, can properly be termed a lease. We are concerned here with a wharf — the North Market Street Dock — erected with public funds from a Bond Issue voted for dock and waterfront improvements pursuant to the power bestowed on the City to construct wharves. Ordinarily a municipal corporation has no proprietary rights in its public wharves, and whatever rights it has in them it holds in trust for the public. 56 Am.Jur. Wharves, § 25. Public wharves, by their nature, are for the use of the public and a lease of a wharf is a particular kind of a lease, being merely a letting of the franchise of wharfage; no property in or right to the wharf itself passes to the lessee. 94 C.J.S. Wharves § 5a, New York Pilot Comm’rs v. Clark, 33 N.Y. 251, (1865), Taylor v. Beebe, 26 N.Y.Super. 262 (1865). It is in this context that the power to lease a portion of the wharf for any purpose tending to facilitate the trade of the City was bestowed upon the City in Art. I, § 1(16) of the Charter of the City of St. Louis. This same Charter provision is the source of the City’s authority to provide and maintain a harbor and wharves, to regulate the use thereof, and to impose wharf-age and other charges therefor. The term “lease” when used with reference to wharves has a meaning different than when used in respect to ordinary lessor-lessee contracts. It is not necessary to burden this opinion with a lengthy discussion of the law of Navigable Water, but it cannot be contradicted that the Mississippi River is a navigable stream. Nor, do I believe, that it is open to debate that the facility plaintiff is “operating” is a public wharf constructed as an aid to navigation and commerce along the Mississippi River. The Supreme Court, in Belcher’s Sugar Refinery Co. v. St. Louis Grain Elevator Co., 101 Mo. 192, 13 S.W. 822 (1890), 1.c. 824, took notice of the nature of a wharf, when it said:

“A wharf is intended to afford convenience for the landing of vessels, the loading or unloading of their cargoes, and to supply a place on which the wares discharged from vessels, or awaiting shipment, may be laid or deposited; . Wharves on our rivers are not only ways for traveling, but they are necessarily used for the deposit of merchandise.”

Because of the nature of a municipally owned wharf, and more particularly, a public wharf, we believe that it should not go unnoticed that both the Charter of this City of St. Louis empowering the City to lease its wharves specifically limits that power to lease “portions” of the wharf. § 237.220, RSMo. 1969, V.A.M.S., likewise limits a lease to “any portion” of the City wharf. This term “portion” implies less than the whole. The phraseology of the provision of the City Charter of the City of St. Louis was chosen, in my opinion, to prevent the leasing by the City of the entire wharf to any one lessee. The statute, § 237.210 RSMo. 1969, V.A.M.S. — enacted in 1872— precludes any lease of a City wharf to any owner or association of owners of any steamboat, or boats or, vessels so as to give any such lessee a monopoly of said portion of such wharf. This is a logical restriction with respect to the right of the public to use a municipally owned wharf.

Belcher, supra, provided that the defendant, which was organized under a special act creating a corporation for the purpose of acquiring frontage on the Mississippi River not in excess of 500 feet for the erection and maintenance of grain elevators and uses connected therewith, upon the public wharves of the City of St. Louis and when the lease executed between the City and the defendant corporation, only a “portion of the unpaved wharf” was leased to the defendant, the remainder of the wharf being left available for public usage. This was held to be a valid exercise of the power granted the City by the Charter of 1876 to “set aside and lease portions of the unpaved wharves for special purposes,” among which was for the erection of grain elevators.

A reading of the “agreement” demonstrates that the City “granted” to “the Operator” the exclusive right and privilege of “occupying and using” the “dock and terminal facilities” including the City railway tracks and the river frontage to a point eight feet north of the north end of the old dock. The consideration to be paid the City by the “Operator” was based on “tonnage handled through the Terminal.” The “Operator” guaranteed the City a minimum “annual tollage/rental” of $37,500.00 per annum during the first 5 years of the “Agreement,” of $41,250.00 during the second 5 years and $45,000.00 during the third 5 years, and $48,750.00 for the final 5 year period. In addition it agreed to make certain capital improvements in addition to those already made under the prior agreement. The Operator was required, at its own expense, to provide, operate and maintain the necessary merchandise and cargo handling equipment and such other equipment as may be necessary for the proper operation of the Terminal. The Operator was further required to provide and furnish to waterway users without discrimination or favoritism adequate terminal services including services for loading, unloading or transferring of freight from barge to car, from car to barge, from barge to truck, from truck to barge, and for mooring, shifting and pumping barges. Charges for these services, although set by the “Operator” were, upon protest to the City, subject to a hearing on their reasonableness, and if not settled there, they were then to be submitted to arbitration. Sec. 9 of the Agreement also required that the business to be conducted on the premises was to be that of a public river-rail-truck terminal for the handling of waterborne cargo, storage incidental to the transportation of waterborne cargo or incidental to the development of waterborne commerce, and all other activities that contribute to the development of the Port of St. Louis and terminal distribution operations. This “Agreement” constitutes in my opinion, a franchise because it involves a grant by the sovereign to a corporate entity the exclusive right to operate for a term of years a public wharf and the public services ordinarily evident thereto.

Respondent’s contention that the Agreement of May 1, 1966, is void is based upon that section of Ch. 229, Ordinance 48175 R.C.C. St. Louis, § 292.030, and more particularly that part of the section requiring all contracts entered into by the Board of Public Service on behalf of the City for stevedores or other services for the handling of freight to be let upon competitive bidding to the lowest responsible bidder. The majority opinion acknowledges that the Agreement does not comply with the terms of Ch. 292. Appellants, in their brief and argument, espouse the position that Ch. 292 does not control because the “basic authority” for such leases comes from Article 1, § 1(16) of the City Charter, and admits non-compliance with Ch. 292. Respondent further contends that Ordinance No. 54034, the ordinance approving the Agreement now under attack, was enacted pursuant to the Charter provisions and therefore, whether Ordinance No. 54034 is an outright repeal of Ch. 292 for the purposes of this Agreement or a qualification of Ch. 292 for the purpose of this Agreement, it is neither a repeal nor an amendment to Ch. 292 and that Chapter has no application here. Respondent further argues that Ordinance No. 54034, being later in time and the more specific of the two, controls. In support of this latter contention respondent leans on Laughlin v. For grave, 432 S.W.2d 308 (Mo. banc 1968) so that this Ordinance No. 54034 should be considered an “exception to, or qualification of, the prior general one, . ” The Laughlin case was not a contract problem where the validity of a contract or franchise grant was at issue; rather, it was a case where the question was whether, in a suit for damages in a medical malpractice case, the two year statute of limitations relating to malpractice actions applied or the general statute of limitations was controlling. That case is inappropriate here. Nevertheless, the majority opinion, relying on Ruschenberg v. Southern Electric R. Co., 161 Mo. 70, 61 S.W. 626, 629 (1900), concluded that by enacting Ordinance No. 54034 the Board of Aldermen of the City created an exception to Chapter 292 and the Agreement of May 1, 1966, is therefore valid. Ruschenberg involved an “exception” authorizing a franchise to operate its street cars at a speed not greater than 15 m. p. h. in the area where the plaintiff’s minor child was killed whereas the speed allowed in a prior general ordinance limited the speed of the “cars” to 8 m. p. h. In upholding the 15 m. p. h. speed ordinance, the court identified the issue before it as: “In an ordinance passed by the City in strict compliance with Article 10 of the Charter, and fixing a new rate of speed under new and changed conditions, necessarily in conflict with the old ordinance, fixing eight miles an hour as the maximum speed for horse cars.” The court held that the new franchise ordinance was an “exception,” a special ordinance, to the general ordinance which was meant to apply to “horse cars” whereas the special ordinance was meant to cover cars propelled by electricity; that therefore there was no intention to repeal the general ordinance. No question of the granting of the franchise was raised in Ruschenberg and for that reason I am not of the opinion it should influence the decision reached here.

Ch. 292 of the Revised Code of the City of St. Louis is legislation concerning the supervision and control of Municipal Quays and Warehouses, and a “Quay” is defined in § 292.010 as: “Any structure owned by the City, built on the Mississippi River shore and extending therefrom to deep water, so that boats may lie alongside to receive and discharge freight.” While the Charter authorized the City to lease wharves, it set up no procedure whereby the City might enter into a contract for that purpose; this, the Board of Aldermen did by enacting § 292.-030. There is in the Charter no requirement that a granting of a franchise or a lease of a portion of the City owned wharf be subject to bids and let upon competitive bidding. Nevertheless, the Board of Aider-men in § 292.030 so provided. However, this the Board of Aldermen could properly require. City of Excelsior Springs v. Etten-son, 120 Mo.App. 215, 96 S.W. 701 (1906). The original Agreement between the parties was subject to this section of Chapter 292. Respondent did not choose to exercise its option to continue the operation of the municipal wharf under the terms of that Agreement as it neared the end of the first 5 year term. Rather, in an apparent effort to avoid the requirement that a new Agreement be let on bids and awarded to the “lowest responsible bidder,” the Board of Aldermen, without repealing or amending Ch. 292 enacted Ordinance 54034 and bypassed the bid requirement of § 292.030 by merely stating in Sec. 2 of the “Agreement” that “Notwithstanding the terms and conditions of Ordinance 48175 (Chapter 292), approved February 13, 1957, and notwithstanding the terms and conditions of an agreement between the parties entered into May 1, 1957, and supplement thereto dated February 27, 1962, this Agreement is entered into pursuant to Ordinance . . ” Both parties to this appeal are in agreement that Ordinance 54034 does not constitute a repeal or an amendment to Ch. 292. It is apparent that the purpose of the Board of Aldermen in requiring that the leases for the Quays and Warehouses be submitted to competitive bidding and be let to the lowest responsible bidder was intended to secure free and unrestricted competition among bidders, eliminate fraud and favoritism, and obtain the most remunerative contract for the City while at the same time affording the public enjoying the services afforded by the wharf the least expensive and most efficient operation. There is, in this record, no evidence to support a conclusion that there was any fraud in the enactment of Ordinance 54034; however, the writer fears that approving the avoidance of the requirements of § 292.030 by the mere usage of the term “Notwithstanding” and holding that an “exception” to bid requirements on city contracts, even when bids are not required by the City Charter or State law, sets a dangerous precedent and points the way to abuse.

For the foregoing reasons I would hold Ordinance 54034 void.

      . The wording of the Ordinance is: “Notwithstanding the terms and conditions of Ordinance 48175 (Ch. 292).”

      . Article I, § 13 Const.Mo.1945.

      . § 237.210 RSMo. 1969, V.A.M.S. empowers cities to lease any portion of a city wharf for a term of years.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Larry W. BARNES, Appellant.
    No. 36624.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 30, 1976.

      Charles D. Kitehin, Public Defender, James C. Jones, John H. Marshall, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Larry Barnes guilty of first-degree robbery and the court sentenced him to ten years’ imprisonment.

Defendant raises three points on appeal: Errors in overruling his motion to suppress identification testimony, his motion for a mistrial because of the prosecutor’s improper use of a gun for demonstration purposes and his request for a mistrial when photographs were referred to as “mugshots.” Defendant does not challenge the sufficiency of the evidence.

Briefly summarized, the State’s evidence showed that on May 8, 1974 defendant accosted Calvin Butler in an alley and threatened and pushed him. Defendant’s hand was on a gun butt protruding from a paper sack, partially hidden inside his pants. Defendant- took $11.25, some keys and other papers from Butler’s pockets and fled. Butler reported the incident and gave a description of defendant to two police officers at a nearby store. They began a pursuit but were unable to find defendant. A few days later police came to Butler’s house and asked him to look at a book of pictures, but Butler did not recognize his assailant among the pictures. (The book did not then contain defendant’s picture.) The police subsequently returned to Butler’s house and showed him a group of pictures. Butler “wasn’t really sure about” one of them, but the following day he viewed a lineup and “immediately saw the one that robbed him.” He also identified defendant in court as his assailant.

Additional testimony will be mentioned as it relates to the points raised on appeal.

In his first point, defendant contends the trial court erred in failing to suppress Butler’s in-court identification. He argues that the identification of him was based on photographic exhibits and a lineup which were unnecessarily suggestive and' conducive to misidentification, but he does not say how. As to the lineup, he merely states he was the only one there with a limp, that Butler had only a fleeting glance at him and the lineup occurred three weeks after the crime.

We consider the following in determining whether the pre-trial confrontations were unduly suggestive: Opportunity of the witness to fully view defendant at the time of the crime; his degree of attention; accuracy of his prior description of defendant; the level of certainty demonstrated by Butler at the lineup and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Defendant’s allegation that Butler had only a fleeting glance of his assailant is refuted by the evidence. Butler’s testimony throughout the trial indicated he had seen his assailant on numerous occasions before and on the day of the crime. Also, defendant and Butler were face-to-face in close proximity at the time of the attack. That the lineup confrontation occurred three weeks after the crime was not impermissible in view of the certainty of the identification.

The fact defendant was the only one with a limp did not make the lineup unnecessarily suggestive. Butler “saw four persons . . . immediately saw the one that robbed him.” He made a positive identification before the defendant moved and made his limp noticeable. Butler’s unequivocal identification was based on defendant’s “face, hair down here and all the rest.”

Furthermore, “[pjroof of a source of identification independent of the confrontation itself is enough to overcome a claim of unnecessary suggestiveness.” State v. Jordan, 506 S.W.2d 74[11 — 14] (Mo. App.1974). Here, Butler had previously seen the defendant “around the neighborhood a whole lot.” On the day of the robbery Butler once noticed his assailant walking with a girl and again saw him at a nearby store. During the course of the crime, Butler saw defendant as he removed the money and other items from Butler’s pockets and pointed out defendant to police as he exited from the alley. Butler gave a reasonable description to the police, including the fact that the assailant had a limp. Without suggestion or encouragement from the police, Butler immediately and positively identified defendant upon viewing the lineup. Thus, evidence was that Butler had an independent source of identification which would give considerable support to the admissibility of the subsequent in-court identification. We rule this first point against defendant. State v. Goshon, 506 S.W.2d 99 (Mo.App.1974); State v. Britt, 504 S.W.2d 38[3] (Mo.1973).

Defendant’s second allegation of error concerns the gun butt partially protruding from a paper sack on the counsels’ table. No weapon in the instant case had been found. The court sustained defendant’s objection to the prosecutor’s use of the gun for demonstration purposes, instructed the jury to disregard the sack and the gun butt, but denied defendant’s request for a mistrial.

We first note that defendant’s objection followed considerable testimony by Butler. The objection was not based on information elicited by prior testimony. It is apparent that its basis was known to defendant at the very commencement of trial. “Error in the admission of evidence in the trial court must be preserved for appellate review by objection . . . made at the earliest opportunity after objectionable character of the evidence becomes apparent.” State v. Simmons, 500 S.W.2d 325[2] (Mo.App.1973).

We also find this point without merit. This case is distinguishable from State v. Mayfield, 506 S.W.2d 363 (Mo.1974), relied on by defendant. In that case, there was no opportunity to object prior to the prosecutor brandishing before the jury a shotgun not introduced into evidence. The prosecutor had hidden the shotgun beneath a rain coat and asked if any of the jurors had observed it; there had been, however, no evidence of the type of clothing worn by defendant. Significantly, the court also refused defendant’s request to instruct the jury to disregard the demonstration.

Here, the court refused to allow the prosecutor to use the gun for demonstration purposes. It was not brandished before the jury. The court positively instructed the jury to disregard it and had it removed from the courtroom.

Declaration of a mistrial rests largely in the discretion of the trial court. Our function is to determine whether, as a matter of law, the trial court abused its discretion to the prejudice of the appellant in refusing to declare a mistrial. State v. Chester, 445 S.W.2d 393[11, 12] (Mo.App. 1969).

When an improper incident occurs during trial and the jury is instructed to disregard it, “ . . . the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.” State v. Dennison, 428 S.W.2d 573[2-4] (Mo.1968); State v. Williams, 486 S.W.2d 221[3] (Mo.1972).

We rule the trial court did not abuse its discretion in denying a mistrial.

In his final point, defendant contends the trial court erred in failing to grant a mistrial following admission of evidence of pri- or crimes of defendant. This focuses on the testimony of Officer Thomas:

“Q. Let me hand you what’s been marked as State’s Number 3. Can you tell the jury and for the record what that object is, please?
A. It is what I would call an LB Photo Book.
Q. What does it contain?
A. It contains mugshots and pictures.
Q. Photographs.”

Defendant objected and requested a mistrial. The objection was sustained but the mistrial denied. Defendant now alleges that such testimony indicated to the jury he had committed prior crimes.

We note initially that defendant made no objection when Butler gave the same testimony in reference to the identification photographs at least twice earlier in the trial. To preserve error for review on appeal it is necessary for an objection to be made at the earliest opportunity so the trial court may set right that which is later to be claimed wrong. State v. Simmons, supra, 500 S.W.2d 325[2] (Mo.App.1973).

Even if the point had been preserved for review it is without merit. Butler had testified that when shown the photo book by police he did not recognize anyone as his assailant. Subsequent testimony by Officer Thomas revealed defendant’s photograph was not in the book at the time it was shown to Butler. In the context of the present case, the photo book referred to the one Butler looked at; it did not refer to the group of pictures from which defendant was selected. “So long as the testimony or photograph does not identify the party thus pictured as a criminal there can be no valid objection to an identification based on such a picture.” State v. Tyler, 454 S.W.2d 564[7, 8] (Mo.1970). See also our recent decision of State v. Harris, 534 S.W.2d 516 (Mo.App.1976).

No reversible error being shown, the judgment is affirmed.

KELLY and STEWART, JJ., concur.

      . In State v. Rutledge, 524 S.W.2d 449 (Mo. App.1975), this court noted that in Neil v. Biggers, supra, the Supreme Court held in view of the reliability of the identification, a lapse of seven months was not impermissible.

      . Rutledge, supra, l.c. 456, revealed: “The following facts do not necessarily constitute a valid challenge to the propriety of a lineup: one participant has growth of hair on chin—State v. Tidwell [500 S.W.2d 329, (Mo.App.1973)] supra; assailant is bald but another in lineup has full head of hair — State v. Ealey, supra, 515 S.W.2d [778] at 780, State v. Ealey, 519 S.W.2d 314, 319 (Mo.App.1975); one in lineup is older and wearing hat and coat — State v. Britt, 504 S.W.2d 38, 41-12 (Mo.1973); appellant is only one in lineup with a ‘weather-beaten face’— State v. Tomizoli, 519 S.W.2d 713, 715 (Mo. App.1975). For a complete discussion of allegedly suggestive procedures, see Annot., 39 A.L.R.3d 487, 791 and 1000 (1971).


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin BROWN, Defendant-Appellant.
    No. 35859.
    Missouri Court of Appeals, St. Louis District.
    March 30, 1976.
    Bell, Wilson, Fullwood & Harris, James A. Bell, Allen I. Harris, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Christopher R. Brewster, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Defendant was convicted, in a court tried case, of possession of cocaine, a Schedule II Controlled Substance in violation of § 195-017 RSMo Supp.1973, and of violation of the Habitual Criminal Act, § 556.280 RSMo 1969. For the reasons set- out herein the judgment of the trial court is affirmed.

If we are to expedite the ever increasing number of cases presented for our consideration we must have the cooperation of counsel. The simple rules of the Supreme Court regarding appellate practice, and in particular 84.04, must be followed. This rule is equally applicable to civil and to criminal cases. Rule 28.18. State v. Shumate, 516 S.W.2d 297 (Mo.App.1974).

Rule 84.04(c) requires a fair and concise statement of the facts relevant to the questions presented. Such statement may be followed by a resume of the testimony of witnesses whose testimony is relevant to the issues. The brief before us contains only a resume of that testimony of all of the witnesses which is most favorable to the defendant, which required respondent to file an extensive supplement. This does not comply with the rule. Graff v. Montileone, 523 S.W.2d 131 (Mo.App.1975).

The brief contains a page which has the heading “Points and Authorities Relied Upon.” It consists of an alphabetical list of cases, textbooks, statutes and ordinances without reference to any issue in the case.

On the following unnumbered page, under the heading “Questions Presented” we find two numbered paragraphs, the first reads as follows:

“I. The search and seizure herein was unreasonable and without probable cause in violation of defendant’s rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution, and Section 15 and 18 of Article I of the Missouri Constitution.”

Rule 84.04(d) provides:

“(d) The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder. If more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first. All authorities discussed in the argument shall be cited under the ‘Points Relied On.’ Long lists of citations shall not be included.
Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.”

The “Question Presented” does not tell us briefly and concisely what action or ruling of the court is sought to be reviewed. It should not be too difficult for counsel in writing the Points Relied On to answer a simple question for us. What specifically did the trial court do that counsel contends is erroneous? Not having told us what the court did, it follows that counsel here did not tell us wherein and why the action of the trial court is claimed to be erroneous.

No authorities are listed under either of the “Questions Presented.” The list of authorities on the preceding pages under the title “Points and Authorities Relied Upon” are not indicated as being related to either of the two paragraphs under the heading “Questions Presented.” As set out above, Rule 84.04(d) requires that all authorities discussed in argument shall be cited under the point relied upon.

We cannot and will not take the time to do the work of counsel who are derelict in their compliance with these rules while diligent counsel await our consideration of their cases.

Because of the numerous violations of Rule 84 this brief presents nothing for our consideration.

We have reviewed the record under Rule 28.02 and find that the information is sufficient; the judgment is responsive to the charges and in proper form; the punishment is within statutory limits; and that allocution was accorded the defendant. The judgment is affirmed.

All Judges concur.

      . None of the pages was numbered.