author: DIXON, Presiding Judge.

text:
    Barbara A. HOOD, Plaintiff-Respondent, v. Roy J. DENNY, Jr., and Margaret Mary Denny, his wife, and Timothy C. Denny and Patricia A. Denny, his wife, Defendants-Appellants.
    No. KCD 29049.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Ronald K. Carpenter, Charles E. McElyea (Phillips & McElyea Corp.), Camdenton, for defendants-appellants.
    John L. Hearne (Keyes & Hearne), Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Presiding Judge.

Plaintiff brought a suit for reformation of deed and for title by adverse possession. Defendants appeal from a judgment in favor of plaintiff on both counts. The ultimate issue is whether fraud will support reformation and the sufficiency of the evidence. The judgment is affirmed.

The following facts are uncontested. Defendants, Roy and Margaret Denny, acquired property at the Lake of the Ozarks in the early nineteen fifties, including the parcel which is the subject of this action. The description in the warranty deed conveying to the Dennys the parcel in dispute begins at the southwest corner of a quarter quarter section of section 10, township 40 north, range 16 west. The description continues north 360 feet along the quarter quarter section line “to the center of a small cove of the Lake of the Ozarks,” then northeast 780 feet down the center of the cove, east 585 feet and then south, west and north until the description closes. A survey of the general area which was prepared in 1955 by a Mr. Stanton, County Surveyor, is reproduced below.

The Dennys became acquainted with plaintiff and her ex-husband around this time. In 1960, the Dennys conveyed to the Hoods a parcel described as follows:

Beginning at a point on the East-West section line between sections Ten (10) and Fifteen (15), Township Forty (40) North, Range Sixteen (16) West of the 5th Principal Meridian, which is one hundred forty two (142) feet East of the Southwest corner of Section Ten (10) and the Northwest corner of Section Fifteen (15); thence East on section line 1193 feet to the Southeast corner of the Southwest quarter of the Southwest quarter of said section (10); thence North on subdivision line 360 feet to the point of a cove on the Lake of the Ozarks; thence North 72°30' East in the center of said cove a distance of approximately 600 feet; thence due South to a point on the South shoreline of said cove marked by a metal pipe which is 595 feet from said point of said cove; thence South 580 feet to the South side of a roadway running Northeast to Southwest; thence South 70° West along the South line of said roadway 100 feet; thence South 87°30' West, continuing along the South line of said roadway, a distance of 250 feet; thence South 66° West along said roadway 200 feet; thence South 60° West along the South side of said roadway 300 feet; and thence South 70° West, along the South side of said roadway to the intersection of said roadway and the State maintained Jackson Branch Road, a distance of 292 feet; thence North 40° West along the Easterly side of said Jackson Branch Road 100 feet; thence North 38° West 100 feet; thence North 25° West continuing along the Easterly side of said Jackson Branch Road, a distance of 250 feet; thence so continuing North 37° West 100 feet and North 45° West 100 feet and North 55° West 100 feet and thence North 68° West 68 feet to the point of beginning. (Emphasis added.)

A survey prepared by Mr. Stanton in connection with this sale and dated April 27, 1960 is reproduced below. The shaded area denotes the property purportedly conveyed.

In 1967, the Hoods requested Mr. Wurm, a licensed surveyor, to survey their property. In making this survey, Mr. Wurm discovered that the description in the warranty deed from the Dennys to the Hoods would not close due to missing and erroneous calls. The survey prepared by Mr. Wurm showed the end of the cove extending 200 feet west of the quarter quarter section line. He measured the eastern boundary of plaintiffs property at 702 feet from the south side of the cove to the south side of the private road, rather than the 580 feet called for in the deed, and also determined that two calls from the easternmost portion of the private road forming the southern boundary of plaintiff’s property were missing. It was as a result of this survey that the dispute arose between the parties. The diagram below shows the discrepancies as illustrated by Wurm’s survey. The shaded area indicates the property in dispute.' According to this survey, the description in the deed, if literally followed, provided for approximately 395 feet of shoreline when the deed description is conformed to the actual ownership by starting from the quarter quarter corner rather than the “point of the cove.” The small inlet in the cove at the northwest corner of the disputed area is known as Chigger Gulch.

In 1969, the Dennys conveyed to their son the property east of Chigger Gulch as a gift. The Hoods were divorced in 1972, at which time Mr. Hood quit claimed his interest in the lake property to plaintiff.

Plaintiff brought this suit against the Dennys and their son, Timothy Denny and his wife thereafter. The first count of plaintiffs petition alleges fraud and seeks reformation of the deed to conform with the Wurm survey by changing the description to “thence North on subdivision line 360 feet to a point in the center of a cove of the Lake of the Ozarks,” and adding the missing calls. Count two seeks title in plaintiff by adverse possession. Timothy Denny and his wife counterclaimed for adverse possession. The court found for plaintiff on both counts and against defendants on their counterclaim, and ordered the deed reformed as requested and the deed from the Dennys to their son set aside. The defendants challenge the sufficiency of the evidence necessitating a more detailed recitation of the facts as related at trial. The evidence relating to negotiations for the sale of the property and as to adverse user was sharply conflicting.

Plaintiff testified that the Dennys had expressed a desire to sell some lake property so in the early spring of 1960 she and her husband went with the Dennys to the lake. Mr. Hood and Mr. Denny looked over the property, and Mr. Hood requested a survey. Several days after returning from the lake the Dennys came to the Hoods’ home with the two Stanton surveys. The 1960 survey shows a shoreline of 595 feet on the parcel to be sold and plaintiff testified that Mr. Denny stressed that he owned to the point of the cove as shown on the survey maps. The parties did not discuss acreage. The Hoods gave the Dennys a check for the property at that meeting and received a deed a few days later. Stanton was hired by Mr. Denny, but Mr. Hood paid for the survey.

Plaintiff further testified that the Hoods built a house on the property near Chigger Gulch in 1962. They built a boat dock in front of the house which was anchored on both shores of the inlet in which Chigger Gulch terminates. She testified that she planted pine trees east of Chigger Gulch, although admitting, “In reality I did not know at that time that the ground was supposed to be mine, I did not discover this until 1969.” She had always thought before that discovery that she owned to the end of the cove as shown on the plat. The Hoods paid taxes on 21.79 acres. On cross-examination, plaintiff testified that there is a concrete slab enclosed by screens and referred to as a gazebo, on the disputed property for which her husband helped pour the concrete. There is also an outhouse on the property. Plaintiff did not discover the conveyance by the Dennys to their son until 1973 when she started subdividing the tract. From the time she discovered the discrepancy in around 1969 until her divorce in 1972 she did not contact anyone about the problem because she did not know whether she or her husband would be awarded the property.

Both Mr. Denny and Mr. Hood testified for defendants. Mr. Denny testified that negotiations for the sale began in the spring of 1960. Plaintiff may have been present, but his discussions were always with Mr. Hood. Denny and Hood never actually stepped off the property or discussed shoreline, the agreement being “from the ravine to the county road from the entrance road to the lake.” Hood and Denny put a stake in the ground at this point. Mr. Denny never discussed selling east of Chigger Gulch at this time. He did not feel that he owned to the end of the cove and denied representing that he did to the Hoods. Mr. Denny testified that he did not receive the Stanton survey dated April 27,1960 until August or September of 1960. He also denied taking either survey to the Hood home prior to closing. He wasn’t aware of a problem with the deed until 1972 or 1973. On cross examination, plaintiff introduced a letter from Mr. Stanton to Mr. Denny with reference to the 1960 Stanton survey. The letter is dated April 29, 1960 reporting the making of the survey, drafting of a deed from the Dennys to the Hoods and showing a fee of $35.00. Denny did not remember if the deed accompanied this letter, but the deed was subscribed in St. Louis where Denny resided May 2, 1960.

Mr. Denny confirmed plaintiff’s testimony that a gazebo and outhouse are located on the disputed area. The outhouse was built around 1955 and the gazebo around 1961. Mr. Hood helped pour the concrete and finished the work when one of Denny’s sons stepped on a nail and had to be taken to a doctor. Denny paid for bulldozing and concrete in connection with building the gazebo. He also had a boat dock attached to the property near the gazebo. The gazebo was used as sleeping quarters for family and friends of the Dennys. The Hoods would come there often when the parties were on friendly terms. The Dennys also dumped trash on the disputed land. After 1960, the Dennys used the property in dispute at least once a week in the summer.

John Hood testified that only he and Denny discussed the sale of the property and on the visit to the lake marked Chigger Gulch as the boundary. No exact amount of lake frontage was discussed, the agreement being west from Chigger Gulch as far as Denny owned. He further testified that he did not see the 1960 Stanton survey until after he paid Denny. The only use made by the Hoods of the disputed area was securing their dock by a rope on the east side of Chigger Gulch. Mr. Hood helped Denny with the gazebo as a favor to a friend. He also testified that the planting of pine trees on the disputed land was “just a friendly gesture.”

Timothy Denny, Roy Denny’s son, testified that he and his wife received the disputed land by deed from his parents in 1969. He has used the property only on visits to his parents, walking over the land to go down to the water.

Mr. Forbes, a friend of defendants, testified that both before and after the gazebo was installed he has camped on the disputed land at the invitation of Mr. Denny.

Defendants first attack the judgment of the trial court reforming the deed, arguing that reformation was not a proper remedy where fraud is pleaded and proved, and that even if reformation is proper, the judgment of the trial court was against the weight of the evidence.

In Hoxsey Hotel Co. v. Farm & Home Savings & Loan Assoc. of Missouri, 349 Mo. 880, 163 S.W.2d 766, 770 (1942), the Supreme Court rejected an argument that fraud would defeat reformation of a deed. “We think reformation may be had where there is a mistake on the part of one party caused by fraud or inequitable conduct of the other party, as well as in the case of mutual mistake.” Hoxsey, supra, at 770; Citizens Bank of Festus v. Frazier, 352 Mo. 367, 177 S.W.2d 477, 482 (Mo.1944); Strothcamp v. Sandy Ford Ranch, Inc., 440 S.W.2d 193, 195 (Mo.App.1969).

As to the sufficiency of the evidence to support the judgment granting reformation, defendants correctly recognize that the action of the trial court must be measured against the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), requiring a decree or judgment of a trial court to be sustained unless there is no substantial evidence to support it. The record here reveals substantial evidence to support a finding of all of the elements of fraud. See Strothcamp v. Sandy Ford Ranch, Inc., supra.

Plaintiff testified that Mr. Denny represented to her and her ex-husband that he owned from Chigger Gulch west to the end of the cove which was 595 feet of shoreline and as the trial court found the deed given to the Dennys called for a beginning point on the “point of the cove” when the Hood deed called for a beginning point in the center of the cove. The known falsity of this statement was clear from Mr. Denny’s testimony that he knew he did not own as far West as to the end of the cove and did not intend to sell east of Chigger Gulch. The subsequent acceptance of a check from the Hoods is evidence of the Hoods’ reliance and Denny’s intent that they rely on this misrepresentation. The Hoods’ reliance on Denny’s statements as supported by the erroneous surveys was certainly justified, and plaintiff’s injury resulted from the failure of the conveyance to give plaintiff the land bargained for.

While defendants’ evidence conflicted with that of plaintiff as to the negotiations for sale, the question of fraud was one of fact, and the trial court believed plaintiff’s testimony. Because the ’trial court had an opportunity to observe the witnesses on the stand and so judge their credibility, deference should be given to its findings of facts. Allen v. Smith, 375 S.W.2d 874, 881 (Mo.App.1964); Thornburgh v. Warson Village Corporation, 331 S.W.2d 144, 148 (Mo.App.1960). The record does not support a firm belief that the judgment granting reformation is erroneous. Murphy v. Carron, supra.

Defendants also attack the ruling of the trial court against defendants, Timothy C. Denny and Patricia A. Denny, on their counterclaim for adverse possession. Defendants contend that they clearly showed all of the elements of adverse possession, i. e., a possession which is “ 'hostile and under a claim of right, actual, open and notorious, exclusive and continuous.’ ” Wykle v. Colombo, 457 S.W.2d 695, 700 (Mo.1970). The trial court found that until the senior Den-nys transferred the tract in dispute to their son in 1969, their use of the disputed tract was a “permissive use constituting a shared usage with plaintiff and her husband; that no act of defendants occurred to change the permissive nature of their usage into an adverse and notorious claim and never constituted an actual, peaceable and exclusive possession thereof.” There was substantial evidence to support this finding. Murphy v. Carrón, supra.

It is true that a grantor may reacquire title from his grantee by adverse possession. Rottink v. Nagle, 275 Mo. 196, 204 S.W. 802, 803 (1918). This is true whether title is transferred for valuable consideration or fraudulently to avoid the grantor’s debts. Rottink v. Nagle, supra. However, continued possession of the transferred property alone will not ripen into a claim of adverse possession, the rule being that following delivery of the deed a grantor continuing in possession must by words, acts or conduct notify the grantee that he is claiming title and possession against the covenants of the grantor’s deed, the presumption being that he holds possession in subservience to the covenants. Rottink v. Nagle, supra; Barada-Ghio Real Estate Co. v. Keleher, 214 S.W. 961, 962 (Mo.1919). “It is not a mere occupancy or possession which must be known to the true owner to establish title by adverse possession, but one which is in opposition to his rights and in defiance of, or inconsistent with, his title.” Reinheimer v. Rhedans, 327 S.W.2d 823, 830 (Mo.1959); Wilkerson v. Thompson, 82 Mo. 317 (1884).

In the instant case, following transfer of the deed, not only did the character of the Dennys’ possession continue unaltered, but also a permissive and joint use by the parties was apparent. It was not until 1969 when the Dennys attempted to convey the property in dispute to their son that the Hoods received constructive notice of a hostile claim. Thus, the trial court ruled correctly that plaintiff has not been under notice for the requisite statutory period that her grantor’s possession was adverse and hostile.

The defendants’ final point, as it is stated, is “The trial court erred in failing to reject the repugnant portion of the legal description prepared by the scrivener, Jackson Stanton,” fails to comply with Rule 84.04(d) requiring the points to state wherein and why the actions of the trial court complained of are erroneous. Considered with the argument, however, it may be discerned what error is claimed.

The argument under this point is in two parts. First, the defendants urge that the trial court should have ruled that regardless of any ambiguities in the description, Chigger Gulch became the eastern boundary of plaintiff’s property by a continuing agreement of the parties, citing Ashauer v. Peer, 147 S.W.2d 144, 146 (Mo.App.1941); Martin v. Hays, 228 S.W. 741, 743-744 (Mo.1921); Barnes v. Allison, 166 Mo. 96, 102, 65 S.W. 781, 783 (1901). Defendants’ claim of an agreed upon boundary line constitutes an affirmative defense. Gillenwaters Building Co. v. Lipscomb, 482 S.W.2d 409, 413 (Mo.1972); Nichols v. Tallman, 189 S.W. 1184, 1185 (Mo.1916), which was neither pleaded nor raised at trial. A defense not presented to the trial court cannot be considered on appeal. Kammeyer v. Concordia Telephone Co., 446 S.W.2d 486, 491 (Mo.App.1969).

The second argument under defendants’ final point is an assertion that the portion of the deed description referring to a point on the south shoreline of the cove marked by a metal pipe was controlling over the description of that point as being 595 feet from the point of the cove, and, therefore, the distance call of 595 feet should be disregarded as repugnant. The argument assumes that the metal pipe referred to is the one placed in Chigger Gulch by plaintiff’s ex-husband and Mr. Denny. Defendants cite cases holding that a monument controls a distance call, however, those cases do not involve fraud. The trial court’s finding of mistake induced by fraud makes such cases inapposite. The fraudulent inducement was defendants’ representation that plaintiff would receive 595 feet of shoreline extending west of Chigger Gulch to the end of the cove when defendants admittedly did not own the west 200 feet of that section of shoreline. The reformation granted gave plaintiff clear title to 595 feet of shoreline, approximately 200 feet of which necessarily includes property owned by defendants east of Chigger Gulch. Until the true nature of the defendants’ ownership was disclosed, the plaintiff thought she owned a different shoreline. What was essential to the bargain was the length of the shoreline conveyed. The trial court on substantial evidence found that “shoreline” distance was an important motivating factor in sales of lakefront property. By its decree, the court restored in equity that which plaintiff had been fraudulently induced to believe she owned, 595 feet of shoreline.

Defendants also question the sufficiency of the evidence to support a judgment for plaintiff on her claim for adverse possession. However, in view of the decision affirming the judgment of the trial court granting reformation, that issue need not be reached or decided.

The judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Robert E. LAWRIE, Plaintiff-Respondent, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant.
    No. 28108.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.

      R. Lawrence Ward, John R. Caslavka, Shughart, Thomson & Kilroy, Kansas City, for defendant-appellant.
    James C. Wirken, Welch & Austin, Kansas City, for plaintiff-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from grant of a new trial to plaintiff after adverse verdict in his action for commissions on insurance sales as an agent of defendant. The question is whether Instruction 4, given at the request of defendant, was an improper converse instruction as determined by the trial court. Affirmed.

Plaintiff pleaded that on or about June 16, 1966, he and defendant entered into an agreement under which he was to receive a commission of five per cent of the total premium earned and received by defendant on insurance policies of group health, accident, and medical insurance if he sold said insurance to Local Union 1464, International Brotherhood of Electrical Workers in Kansas City, Missouri; that defendant agreed to pay such commissions so long as said policies were maintained by defendant or replacements of said policies were in force; that he sold said policies, effective December 1, 1966; that defendant paid his commissions through June 30, 1968, and failed, neglected and refused to pay said commissions after June 30, 1968, and until termination of the coverage September 30, 1972, thus breaking its contract with plaintiff.

Defendant answered that the agreement was not a vested commission agreement but to pay plaintiff commissions only so long as he remained the designated agent of Local 1464 and defendant remained the carrier, and that the five per cent flat rate commission obtained only through the initial contract period and not beyond June 30, 1968.

Robert E. Lawrie had been in the insurance sales and service business since 1939 and had operated an independent agency since 1946. In the course of his business he became acquainted with William James, Business Manager for Local 1464, IBEW, and in May, 1966, had a discussion with Mr. James regarding a group health, accident, and medical insurance plan for members of IBEW 1464. As a result of such discussion, Mr. Lawrie communicated with a number of insurance companies regarding such business. He obtained bids from them and prepared a chart of such bids for comparison by IBEW 1464. Mr. Lawrie communicated with Thomas Eubeler concerning the proposal of Continental Casualty Company.

Mr. Lawrie and Mr. Eubeler discussed the commission to be paid to Mr. Lawrie if Continental were chosen as the insurance carrier. The commission under discussion was five per cent. Mr. Lawrie asked Mr. Eubeler to put the agreement to pay a “five percent flat commission in writing.” Continental was chosen as the insurance carrier by IBEW 1464 and, on June 16, 1966, Mr. Eubeler wrote Mr. Lawrie and confirmed the commitment for a five per cent flat commission on the policy sold to IBEW 1464.

On July 11, 1966, Mr. Eubeler wrote Mr. Lawrie concerning the policy and confirmed the agreement to pay Mr. Lawrie a flat five per cent commission “as long as you are agent on the case and we are the carrier.” Upon receipt of this letter, Mr. Lawrie called Mr. Eubeler to state it was not in accordance with the agreement on commissions and Mr. Eubeler told him to ignore the letter. Mr. Eubeler denied such discussion.

All bids sought by Mr. Lawrie were to figure a flat five per cent commission which was higher than the standard commission on this type and size policy. Mr. Eubeler advised Mr. Lawrie that a flat five per cent commission would increase the insured’s premium cost.

IBEW 1464 accepted Continental’s bid effective December 1, 1966. Mr. Lawrie and Continental entered into an agreement effective the same date which specified a five per cent flat commission to be paid to Mr. Lawrie. A written agreement signed February 14, 1967, by Mr. Lawrie, and February 23,1967, by Continental, provided for a termination on June 30, 1968. Mr. Lawrie recognized the differences between his agreement with Mr. Eubeler and the written agreement, and signed it in reliance upon representations of Mr. Eubeler that he was just supposed to sign the agreement and that Mr. Eubeler would take care later of the five per cent flat commission through the policy and renewal periods. Mr. Eubeler said, “Just trust me.” Mr. Eubeler denied this discussion.

Mr. James wrote Mr. Eubeler December 13, 1966, and stated the understanding of IBEW 1464, “that, in accordance with your letter of June 16, 1966 to Mr. Lawrie, the commission is to be a 5% flat rate. It is our intention to limit this commission to the initial contract period and is not to be paid beyond June 30, 1968.”

On January 3, 1967, Mr. Eubeler, on behalf of Continental, wrote Mr. Lawrie to “confirm the contractual agreement to pay you ... a flat 5% commission on the . Local 1464 case IBEW . as long as we maintain the current policy being issued or its replacement in force. . My letter of June 16, 1966 shall serve as the basis of a contractual agreement, no further written agreement being deemed necessary.”

On February 3, 1967, Mr. Eubeler wrote Mr. Paul Rings, President, Blue Hills Bank of Commerce, to “reconfirm our agreement to Mr. Lawrie to assign commissions payable [on the IBEW 1464 policy], . we have agreed to pay Mr. Lawrie . five per cent of the earned premium for the period December 1, 1966, to June 30, 1968.

On March 30, 1967, following delivery of the written agreement on March 1, 1967, Mr. Eubeler again wrote Mr. Lawrie to “confirm our agreement to pay to you or your assigns 5% commissions on the premiums as received by us. . The commissions due commence 1st December, 1966 and will be continuous.”

Mr. Lawrie was paid his commissions from December 1, 1966, through June 30, 1968, at a rate of five per cent of the total premium dollars. A new policy was negotiated between IBEW 1464 and Continental beginning July 1,1968. Mr. Lawrie did not participate in the negotiations. Continental maintained group coverage for IBEW 1464 until September 30, 1972.

Between July 1, 1968, and September 30, 1972, Continental earned $1,665,767.86 in premiums from IBEW 1464. Five per cent of that amount, or $83,288.90, together with interest, was claimed by Mr. Lawrie.

Plaintiff’s claim was submitted by Instruction 3:

“Your verdict must be for plaintiff if you believe:
“First, defendant agreed to pay plaintiff a commission of 5% of the monthly earned premiums on the Continental Casualty Company policies issued to Local 1464 for so long as the initial policies or renewals thereof remained in force, and
“Second, the initial Continental Casualty Company policies or renewals thereof remained in force from December 1, 1966 to September 30, 1972, and
“Third, defendant failed to pay plaintiff a commission of 5% of the monthly premiums earned after June 30,1968, and
“Fourth, plaintiff was thereby damaged.”

Defendant offered and the court gave Instruction 4:

“Your verdict must be for defendant if you believe that plaintiff was not entitled to commissions after June 30, 1968. M.A.I. 33.05.”

The jury found for defendant. Plaintiff moved for a new trial, asserting that Instruction 4 was erroneous because: It failed to converse any element submitted in plaintiff’s verdict-directing instruction; it constituted a roving commission to the jury to determine a question of law, i. e., whether plaintiff was entitled to commissions after June 30, 1968; and it was confusing and misleading.

The court sustained the motion for new trial without specifying a ground on which the new trial was granted. See Rules 78.03 and 84.05(b), V.A.M.R.

The issue on this appeal is whether Instruction 4 was a proper converse instruction under MAI 33.05.

Instruction 4 is in the form of MAI 33.05 in that it begins “Your verdict must be for defendant if you believe . . . .” Sheets v. Dakota Iron Store, 442 S.W.2d 953 (Mo.App.1969). This is known as the “third method” converse and the quoted language is to be “followed by a hypothesized ultimate issue which, if true, would defeat plaintiff’s claim.” See General Comment at MAI 33.01, p. 351.

The difficulty with Instruction 4 is that it lacks the required hypothesis. Oliver v. Bi-State Dev. Agency, 494 S.W.2d 49 (Mo.1973). The pleadings, the evidence, and the verdict-directing instruction, No. 3, demonstrate that the ultimate issue was whether there was an agreement between Mr. Law-rie and Continental for Continental to pay him commissions on insurance in force after June 30, 1968. Instruction No. 3 permitted a conclusion limited to that hypothesis of fact. An MAI 33.05 converse to fit this situation might well have read: “Your verdict must be for defendant if you believe defendant did not agree to pay commissions after June 30,1968,” or “Your verdict must be for defendant if you believe there was no agreement between plaintiff and defendant for payment of commissions after June 30, 1968.” Instead, the jury was permitted the ultimate conclusion whether plaintiff was “entitled” to commissions after June 30, 1968, without defining “entitled” and without limiting entitlement to a hypothesis which would defeat plaintiff’s claim. This permitted the jury a roving commission to conclude that plaintiff was not entitled to such commissions for any reason upon which they might agree. “Entitled” is a broad and conclusive word with various meanings, such as designated, qualified, authorized, and enabled. Webster’s Second and Third New International Dictionaries; Roget’s Thesaurus of the English Language. In the context here used, it could have suggested to the jury that plaintiff had somehow to show he was worthy to receive the commission he sought.

Judgment affirmed and cause remanded.

All concur.


author: FRANK CONLEY, Special Judge.

text:
    Karen M. FRIMEL, Kendall A. Shipley, and Donna K. Jones, Plaintiffs-Appellants, v. Norman HUMPHREY, John R. Ferguson, Jeanne Miller, Robert B. Goodrich, Carlton L. Milby, Betty Stites and Emory Parks, Defendants-Respondents.
    No. KCD 28234.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.

      George E. Kapke, Thomas D. Cochran, Piedimonte & Cochran, Independence, for plaintiff s-appellants.
    Rufus Burrus, Independence, for defendants-respondents.
    Before DIXON, P. J., and NORMILE, CONLEY and BELT, Special Judges.
   FRANK CONLEY, Special Judge.

This is an appeal from a judgment entered on August 21, 1975, denying appellants’ application for a temporary injunction and the granting of respondents’ motion to dismiss appellants’ petition and assessing the costs of the action.

Appellants, Karen Frimel, Kendall Ship-ley and Donna Jones, were each offered probationary teaching contracts with the Independence School District on April 14, 1975. Each appellant executed and returned the probationary teaching contracts. All of. the appellants were members of the Missouri Public School Retirement System.

The respondents acting as the Board of Education passed a resolution on June 24, 1975, furloughing ten probationary teachers including appellants.

Each appellant on June 25, 1975, was forwarded an identical letter from the school district which provided that they were being officially placed on leave by the Board of Education, without pay, because of “further erosion of the expected sources of revenue.”

Thereafter, appellants filed a petition for temporary and permanent injunction. Respondents filed motions to dismiss, and a hearing was held on appellants’ application for a temporary injunction. The trial court denied appellants’ application for a temporary injunction and granted respondents’ motion to dismiss. Appellants filed timely notice of appeal, and this appeal was perfected.

From an examination of the transcript, it appears that the hearing held before the trial court on July 30,1975, was, in fact, on appellants’ application for a temporary injunction and that there was no explicit stipulation to hear the case on its merits. It further appears from a review of the transcript that the plaintiffs-appellants assumed the burden of going forward with the evidence on the temporary injunction.

There are three permissible phases in an injunction proceeding:

[1.] a restraining order granted against a defendant with or without notice or hearing; .
[2.] temporary injunction granted after notice and summary hearing; and,
[3.] permanent injunction granted after the pleadings are made up and the evidence is fully developed. (See Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 12 (Mo.App.1966).

It is furthermore noteworthy that the burden is expressly placed upon the defendant to show cause why the temporary injunction should not issue. See State ex rel. Eagleton v. Cameron, 384 S.W.2d 627 (Mo.1964).

Furthermore, the denial of a prayer for temporary injunction is not appealable. See Bayer v. Associated Underwriters, Inc., supra, and Goldman v. Hoehn, 228 Mo.App. 202, 64 S.W.2d 733 (1933).

The parties have, however, stipulated that there is no additional evidence other than that received at time of hearing on the temporary injunction and the sense of their comments at the oral argument is that they implicitly agreed to the hearing on the entire case. They likewise assumed the burden of going forward with the evidence as in a hearing on a permanent injunction. We consider this matter as a final appeala-ble order from the trial court’s action.

The correctness of the trial court’s action depends upon an interpretation of § 168.124, RSMo 1969, and upon a determination as to whether the School Board’s furloughing of appellants was unconstitutional, unlawful, unreasonable, arbitrary or capricious or involved an abuse of discretion. Rule 100.08.

Section 168.124 provides that:

“The board of education of a school district may place on leave of absence as many teachers as may be necessary because of a decrease in pupil enrollment, school district reorganization or the financial condition of the school district.”

Subsection (1) further provides that a permanent teacher may not be furloughed if qualified for a position in which a probationary teacher is retained. A reasonable construction of this statute would indicate that both probationary and permanent teachers may fall within the category which may be placed on leave of absence described “as many teachers as may be necessary . .” Obviously, if a decrease in pupil enrollment, reorganization, or the financial condition of the school district, or any combination of these factors, should necessitate furloughing “as many teachers as may be necessary,” the legislature must have contemplated that a combination of probationary and permanent teachers might be required to be placed on leave of absence to meet the reduced manpower needs. The preference for retaining permanent teachers over probationary teachers as long as the permanent teachers are qualified for the available positions reinforces such a construction of the statute.

We conclude that § 168.124 applies to both permanent and probationary teachers, and that probationary teachers may be placed on leave of absence if the school board finds such action “necessary.”

Plaintiffs also contend that the trial court erred in denying plaintiffs’ injunction because it was established that the Board’s action was not necessary and exceeded the authority of Section 168.124, RSMo 1969.

While neither alluded to by plaintiffs or defendants in their briefs or arguments, the review which plaintiffs seek is that provided by Rule 100.08.

Rule 100.08(a) provides that the trial court may not substitute its discretion for the discretion legally vested in the School Board. The court may only “determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary or capricious or involves an abuse of discretion.” Harrod v. Board of Education, City of St. Louis, 500 S.W.2d 1, 6 (Mo.App.1973).

A review of the record, while replete with enrollments, teacher-pupil ratios and other aspects of the budget of a large metropolitan school district does not disclose that the Board acted arbitrarily or capriciously or that it exceeded its authority. The record does not support the contention that the Board acted other than properly in furloughing certain teachers on the basis of declining enrollments and other financial considerations.

As stated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976):

“. . . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

Here, the trial court made detailed findings and specifically found from the evidence presented that plaintiffs’ evidence “was not persuasive” to sustain the plaintiffs’ position.

Prom an examination of the transcript, the trial court’s findings and our review, there is no showing that the Board acted in excess of their authority.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    Laurance C. PHISTER, Appellant, v. The SINGER COMPANY, Respondent.
    No. KCD 28604.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.

      Don W. Kennedy, Nevada, for appellant.
    Michael P. Casey, Evans, Hoemeke & Casey, St. Louis, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   PER CURIAM.

Lauranee Phister brought suit against the Singer Company to recover $6,411.77 which he claimed he had earned in commissions but had not been paid because he had been terminated. The court, sitting without a jury, found in favor of Singer and Phister appeals.

Singer filed a counterclaim, but did not present any supporting evidence. Neither did it complain of the failure of the trial court to rule upon it. In this court Singer urges the judgment be affirmed. In this posture, the counterclaim has been abandoned and is a dead issue. Palmer v. Lasswell, 279 S.W.2d 535, 537[5] (Mo.App.1955). See also Webb v. Harrington, 504 S.W.2d 252, 264[17] (Mo.App.1973).

The ultimate question presented to the trial court was whether or not Singer had a policy that commissions earned prior to an employee’s termination would not be paid to the employee after he left Singer’s employ. Phister claimed he had never been informed of such policy.

The sales manager of Singer testified Phister attended numerous sales meetings at which this policy was explained. The policy further provided the commissions which a terminated employee had earned would be paid to the employee’s replacement. Phister admitted he had received commissions earned by his predecessor.

The evidence bearing on this question consisted of the oral testimony of Phister and the Singer sales manager. On this conflict in evidence the trial court found the Singer policy had been made known to Phister. The court made findings of fact which indicated Phister was not entitled to recover because of the policy.

This court must give due regard to the opportunity of a trial court to judge the credibility of the witnesses. It is especially appropriate to give deference to the trial court in this case when the resolution of the questions rests upon the credibility of the witnesses and the weight to be given to their testimony. Rule 73.01; Labor Discount Ct. v. State B. & T. Co., 526 S.W.2d 407, 421[4, 5] (Mo.App.1975).

Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) the judgment must be affirmed unless there is no substantial evidence to support it or unless it is against the weight of the evidence or erroneously declares or applies the law. The judgment here is supported by substantial evidence and no other reason exists to disturb it.

The judgment is affirmed under Rule 84.-16 and an extended opinion would have no precedential value.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Cornell JACKSON, Appellant.
    No. KCD 28725.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Leonard W. Buckley, Jr., St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

Appellant was charged (upon the state’s sustained motion to reduce the charge) and convicted of second degree murder by the verdict of a jury, and was sentenced by the court, upon its finding that appellant was a second offender, to 99 years imprisonment in the Department of Corrections. His first point is that the court erred in not suppressing a tape recording of his confession (which was admitted into evidence before the jury, and which was the only evidence submitted as to his guilt of the crime charged) because it was obtained in violation of his constitutional rights.

Lieutenant Harold V. Atkinson, a Missouri State Penitentiary corrections officer, was found stabbed to death in a cell on January 20, 1975. Thereafter, other inmates and appellant were interviewed by investigators, and appellant was interviewed by Cole County investigator, Mark Sehreiber, four times, the first time on February 11,1975, from 7:40 to about 9:10 p. m. At that time appellant was advised of his rights and given a “rights card” but he refused to sign the card or to make any statement whatsoever. It appears that appellant was interviewed two or three times by Captain Jack Stewart, but no confession was made to him personally by appellant.

The second interview was about 22 hours after the first. Appellant did then sign a “rights form” and did give some statements about the murder, but did not implicate himself. About three hours later a third interview was conducted in the warden’s office, with Sehreiber, Highway Patrolman George Payne and Captain Jack Stewart, of the penitentiary, present, at which time Sehreiber did not again advise appellant of his rights. At this third interview appellant made statements implicating himself in the murder, and an attempt was made to make a tape recording of the interview, but it failed because the operator of the machine failed properly to depress one of its control buttons. About eight hours later the same morning (February 13, 1975), at 10:20 a. m., appellant had the fourth interview, at which time he was again advised of his rights and signed a “rights card”, and at which a successful tape recording was made.

According to Sehreiber at the time of the first interview when appellant stated that he did not wish to make a statement, the questioning ceased. At the third interview, at which appellant implicated himself, his answers were given voluntarily and without coercion — there was no physical abuse; appellant’s speech was coherent; he did not appear to be on drugs or intoxicants; and he appeared to be in full possession of his mental faculties. Jackson substantially corroborated Sehreiber in these respects, which were again testified to before the jury. Sehreiber denied telling appellant what to say, and he did not tell him that about 25 minutes earlier he had obtained a taped statement, which implicated appellant, from inmate George Williams.

Appellant’s version of the interviews at trial was that he had been beaten and kicked by Stewart and a Lieutenant Lorts after the first interview after he refused to make a statement; Sehreiber and the warden had forced him to make statements at the fourth interview; the only reason he signed the waiver of rights forms was that he feared for his life, which had been threatened by his interrogators; and the warden had promised him a lighter sentence if he would confess.

At the close of the hearing on the pre-trial motion to suppress, the court found that the tape recording was authentic, that speakers were capable of being identified; that the statement of appellant was made voluntarily, and was not a product of coercion, promises, threats, or fear, nor was it induced by promise of leniency; that the Miranda warnings were given and appellant knowingly, willingly and intelligently waived his rights; and that he knowingly and willingly waived counsel. The court further found, for those reasons, beyond a reasonable doubt that the statement was competent evidence, and overruled the motion to suppress it. Although not a point here, it is clear that the court complied with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

The tape and the recording device have been submitted to this court, and the tape has been listened to by the writer of this opinion. It shows that the interview began at 10:16 a. m., on February 13, 1975, with appellant present, in the Associate Warden’s office at the State Penitentiary. It was specifically stated that the interview was for the purpose of investigation of the murder of Lieutenant Atkinson. Also present were the members of the investigation team. Appellant was specifically advised of his rights: That he had the right to remain silent; any statements made by him could be used against him in court; he had a right to have a lawyer with him during questioning; that if he was indigent a lawyer would be appointed for him; and (importantly) that he had a right to stop answering questions at any time. Appellant answered that he understood his rights, and affirmatively answered that he wanted to sign the waiver of rights form, which he did, and that he wanted to give the statement. Then, in quite apparent intelligence, clarity and in detail, appellant, mostly in narrative form, described the stabbing death of Lieutenant Atkinson, his own participation in it and the participation of each of his accomplices, including hiding the body under a cell bed, the clean up operations, and down to the disposal of the knife used by him in the stabbing. Appellant answered affirmatively that his statement was given voluntarily, and that there were no promises, coercion or threats relative thereto.

The burden of proof of establishing the voluntariness of a confession, taken while a suspect is in custody, is, of course, upon the state. State v. Hunter, 456 S.W.2d 314, 316[3—5] (Mo.1970); State v. Blankenship, 526 S.W.2d 78, 81[4,5] (Mo.App.1975). That burden is met if the state presents a prima facie showing of voluntar-iness, and the standard is whether the evidence shows conclusively that the confession is involuntary. State v. Hunter, supra.

Under the evidence, except for one occasion, appellant was clearly given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There was testimony on behalf of the state both at the pre-trial hearing and at trial that appellant had not been threatened, coerced, physically abused or otherwise induced to sign the Miranda forms, or to give the statements. In this posture, the credibility of his own testimony concerning the confession was for the jury to determine.

Because he was interrogated six times, two by Stewart, and four by Schreiber, during about 20 days, appellant contends his will was broken down to the point where his confession was obtained. A similar claim was made in State v. Hunter, supra, which was discussed at 456 S.W.2d 302: “The six interviews took place over a period of approximately seven weeks, with time intervals of several days between the June and July and the July and August sessions. The first five interviews lasted only an hour or two. The August 5 session at which the written confession was obtained lasted four hours. There is nothing to indicate that these interviews were conducted in uncomfortable quarters, after physical deprivation, under oppressive circumstances or in an atmosphere of hostility, intimidation or coercion. Hunter made no claim in his testimony that his will was overcome by persistent, rigorous, relentless questioning or that the interrogation was overly long or too frequent. On the contrary, these interviews appear to have been conducted in a calm and dispassionate manner, with regard for the rights of the suspect.” Here, appellant’s only claim was that he was beaten and kicked after the first interview, that he was forced to make statements at the fourth interview, and that he signed the Miranda forms and made statements because he feared for his life which was threatened. These claims were controverted by the state, both in the pretrial hearing and at trial, and the jury, as it had a right to do, found against appellant’s version. Appellant made no claim of coercion as to any of the factors above quoted from the Hunter case which might, if believed by the jury, lend some substance to his contention. Certainly, under the evidence, appellant’s confession was not involuntary as a matter of law because of the six interviews.

Appellant further contends that his confession was involuntary because he was interviewed after the first one, when, upon being advised of his rights, he was subsequently interviewed which was impermissible under the Miranda decision which holds that once an accused chooses to remain silent interrogation must cease. As noted, upon being advised of his right to remain silent at the first interview, appellant chose not to give a statement, and interrogation did immediately cease. On all occasions except on the third interview, appellant was advised of his right to remain silent. Thus, his fifth amendment right not to incriminate himself was “scrupulously honored” within the requirements of Miranda. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), controls. There, the defendant, in custody for robbery, upon being advised of his Miranda rights refused to give a statement, and interrogation immediately ceased. Two hours later the defendant was again interviewed by another detective about a different crime, a murder. He was then again advised of his constitutional rights, but this time he waived the rights and confessed to the murder. The issue presented to the court was “whether the conduct of the Detroit police that led to Mosley’s incriminating statement did in fact violate the Miranda ‘guidelines’, so as to render the statement inadmissible in evidence against Mosley at his trial.” (96 S.Ct. 324) More specifically, the question was whether after a person indicates that he wishes to remain silent a resumption of questioning is permissible. The passage from Miranda (384 U.S. at 473-474, 86 S.Ct., at 1627), that the interrogation must cease when the person in custody indicates that he wishes to remain silent was analyzed and discussed by the court as to possible constructions. It was first said that a continuation of custodial interrogation after the momentary cessation would frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the accused. The court then rejected the other extreme of “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances” because it “would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” It was said that the passage from Miranda could not sensibly be read to create a per se proscription of indefinite duration upon any further questioning by a police officer on any subject once the person in custody has indicated a desire to remain silent (noting at footnote 9, 96 S.Ct. 326, that a vast majority of federal and state courts so hold); that “The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning’;” and that this right, under Miranda, must be “ ‘scrupulously honored.’ ” The court noted that the two hour passage of time before Mosley was again interrogated (but about a different crime) was significant and that he was provided a fresh set of warnings. Here, appellant was given new warnings and was questioned 22 hours after the first interview, but did not then make a confession. The third interview was conducted about three hours later prior to which no fresh Miranda warnings were given, but appellant having been advised of them twice before, he could not but have known of them. After the recording device failed to record appellant’s-confession given in the third interview, eight hours later he was given a new Miranda warning and repeated his confession. As in Mosley, these time intervals are significant. Nothing appears that appellant was in any way overreached or that he did not knowingly, intelligently and voluntarily give his confession.

Appellant contends that the court erred in not granting his application for change of venue, which was supported only by his own affidavit of prejudice of the inhabitants of Cole County, Missouri. That county is less than 75,000 inhabitants and Rule 30.04 requires as to it that the application be supported by five or more credible, disinterested persons residing in different neighborhoods of the county. Appellant having failed to present a sufficient number of affidavits, the court did not err in denying his application for change of venue. State v. Denmon, 473 S.W.2d 741, 746[5, 6] (Mo.1971).

The judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Eddie BRUNSON, Appellant.
    No. KCD 28795.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was tried under the Second Offender Act for the crimes of Burglary Second Degree and Stealing. The jury returned a verdict of guilty on both charges and the court sentenced him to five years on each of the two offenses, sentences to run consecutively.

Upon this appeal the defendant seeks reversal of this judgment upon a single ground. He asserts that the trial court erred in overruling his objection and in allowing the introduction of objectionable evidence concerning the other unrelated burglaries near the scene of the crime; such evidence had no probative value, was evidence of another crime, and was unduly prejudicial.

The defendant does not challenge the sufficiency of the evidence but the vagueness of the statement of the single point relied on, as above quoted, requires at least a summary of the facts in the record to place the point in its proper context for decision.

On May 14, 1975, Robert Spielberger and his wife left their home at 1543 East 46th Street in Kansas City, Missouri at about 6:30 p. m. Their home was part of an apartment complex known as the Village Green and when they left that evening both the front and back doors were securely shut and locked. Upon their return at about 9:30 p. m., they found that a pane of glass had been broken in the back door, which was standing open; the window glass was shattered on the kitchen floor; stereo components from the dining room were placed by the back door; and, their portable Mag-navox TV was missing. Mr. Spielberger called the police to report the burglary on a telephone from which he had a view of the parking area in back of his home. At this time, he saw a small brown automobile come into the parking area, reach the end thereof and back out.

Upon the arrival of the police officers it was discovered that a brown wood jewelry box was missing from an upstairs bedroom.

Officer Brown commenced a search of the neighborhood in the course of which he observed a man (the defendant) walking along a sidewalk in the complex a short distance from the Spielberger home; the man walked onto a common entrance porch of two apartments and the officer saw him throw something into the bushes next to the porch. When interrogated by the officer, the man refused to give his name but stated he was there to see a friend named George. After being joined by his fellow officer, Brown found a pair of men’s gloves in the bushes; the man was frisked or “patted down” for weapons, at which time some keys, including car keys, were found in his trouser pocket, and he was taken back to the Spielberger residence. Both the Spielbergers identified the gloves as belonging to Mr. Spielberger and the suspect was placed under arrest, given the Miranda warning and taken to the police station by other officers.

The investigating officers then commenced a search of the various parking lots in the complex for a small brown car. A 1971 brown Ford Pinto bearing Arkansas licenses was found in a parking lot on the west side of the complex; the car keys found on the defendant fitted this ear and the officers found a portable Magnavox TV and a brown wood jewelry box in the trunk, which items were identified by the Spiel-bergers as their missing property.

As part of the state’s case photographs of this car were identified by the officers, one of which, State’s Exhibit No. 9, showed the TV and jewelry box in the trunk. The car was owned by a Charlene Ross. The defendant subsequently told the officers the car belonged to a friend of his and he used it often, but not for several days before the burglary. It was developed, however, that the defendant had been involved in an accident while driving this car at about 5:20 p. m. on May 14, 1975, in the near vicinity of the Village Green. For this accident the defendant had been taken to a district police station, booked on a traffic charge and released on bond.

The defendant did not testify in his own behalf but built his defense upon the testimony of his brother, Abelee Brunson, who was 14 years old at the time of the burglary. In substance, Abelee testified that he had committed the burglary of the Spiel-berger home alone and that the defendant knew nothing about it. While his testimony was at times vague and contradictory, he stated that he had been engaged in a basketball game with his brother and others a number of blocks from the Village Green in the late afternoon of May 14, 1975; that he had borrowed the Pinto car from his brother to “go to the store” and left the defendant, still engaged in the basketball game; burglarized the Spielberger home; placed the TV and jewelry box in the car trunk; threw the gloves into some bushes; and, intended to return to the Spielbergers to get the stereo components which he had piled by the back door. He found, however, that the Pinto would not start. He went back to the basketball game, advised the defendant of the car trouble and left the keys with the defendant, who told him he knew the trouble and would fix it. Abelee stated that the defendant did not know that the TV and jewelry box were in the trunk. He stated that after the defendant’s arrest, he tried to “turn himself in” to the police but they would not listen to him and, in fact, threatened him. He stated he also tried to contact the prosecuting attorney, without success.

The grounds for defendant’s appeal arose during the cross-examination of Abelee Brunson by the prosecutor. He was shown State’s Exhibit No. 9, theretofore identified by the police officers and admitted in evidence as part of the state’s case as a photograph taken of the Ross Pinto on the evening of the burglary showing the TV and jewelry box in the car trunk. Abelee identified the TV shown in State’s Exhibit No. 9 as the one he took from the Spielberger residence.

The prosecutor then handed the witness photographs, marked State’s Exhibits No. 19 and No. 20 for identification, of a TV set in the trunk of a car and Abelee stated it looked “like the one I stole”.

He was then handed a photograph, marked State’s Exhibit No. 21 for identification, and Abelee was unable to identify the TV shown in that picture in the back seat of a car as the same as shown in Exhibits 19 and 20. He was thereupon again shown State’s Exhibit No. 9 and concluded this phase of his testimony by stating that the TV in that exhibit (the Spielberger set) was not the same as shown in State’s Exhibits 19, 20 and 21.

The defense counsel objected to this testimony as prejudicial in that it constituted evidence of other unrelated crimes, and the court overruled the objection. In his brief, the appellant argues that the above cross-examination constituted improper evidence “of another, unrelated burglary in the neighborhood”. The record fails to support that argument.

The ownership, identity or source of the TV sets shown in State’s Exhibits 19, 20 and 21 does not appear nor does the description or identity of the automobile shown in such exhibits; the arresting officers testified that the items found in the Ross Pinto were the TV and jewelry box burglarized from the Spielbergers; no evidence was adduced of any other burglaries in the Village Green; and, the record contains not the slightest suggestion that would lead the jury to believe that the defendant was accused of, arrested for, or had committed any other burglaries than the one for which he stood charged.

State’s Exhibits 19, 20 and 21 were never offered nor received in evidence and, of course, were not viewed by the jury.

There can be no argument that the introduction of evidence of unrelated crimes is generally improper and will call for reversal unless such evidence has some legitimate tendency to directly establish the guilt of the defendant of the crime for which he is on trial. State v. Mitchell, 491 S.W.2d 292, 295[1] (Mo. banc 1973); State v. Lee, 486 S.W.2d 412, 414-415[3] (Mo.1972).

It is clear that the circumstances of this case do not bring it within the prohibition of this rule. The cross-examination of Abelee Brunson with reference to the photographs as above summarized, was clearly an attempt on the part of the state to test his credibility in the area of his identification of the Spielberger TV which he asserted he had stolen and not an attempt to bring before the jury directly or indirectly evidence that the defendant had committed unrelated crimes. The scope of cross-examination upon matters affecting a witness’ credibility rests largely within the discretion of the trial court, and appellate courts will not interfere unless a clear abuse of that discretion is apparent. State v. Mitchell, supra, 491 S.W.2d l. c. 296[5] (Mo. banc 1973); State v. Williams, 492 S.W.2d 1, 4[2] (Mo.App.1973). Thus, within the trial court’s discretion, a witness may be asked on cross-examination any question directed to test his recollection, accuracy, veracity or credibility, however irrelevant such examination may be to the basic issues, and he must answer so long as his answer affects his credibility and does not expose him to a criminal charge. State v. Miller, 485 S.W.2d 435, 441[9] (Mo.1972); State v. Davis, 284 Mo. 695, 225 S.W. 707, 709[5] (1920); Chism v. Cowan, 425 S.W.2d 942, 948[6] (Mo.1967).

Under the record in this case, the cross-examination of Abelee Brunson was properly permitted and did not constitute an abuse of discretion.

The judgment is affirmed.

All concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Dean ANDERSON, Defendant-Appellant.
    No. 10518.
    Missouri Court of Appeals, Springfield District.
    Aug. 11, 1977.
    Rehearing Denied Sept. 1, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lloyd R. Henley, Springfield, for defendant-appellant.
   TITUS, Judge.

Defendant was jury-convicted of second degree burglary and sentenced to two years’ imprisonment. He appealed.

In determining defendant’s first point, i.e., the sufficiency vel non of the evidence to sustain the conviction, we accept as true all evidence which tends to prove defendant’s guilt and indulge all reasonable inferences favorable to the state. State v. Potter, 530 S.W.2d 268, 270[2] (Mo.App. 1975).

Briefly, the evidence was this: Near 9 p. m. on the day involved, an employee of a supermarket located across the street from the burglarized store observed a man in the market who was wearing a dark-colored stocking cap and carrying a transistor radio. A few minutes thereafter a market customer told the employee “she had seen somebody trying to get in that store . and asked us to call the police.” The market employee immediately went to where he could see into the store which was illuminated with inside lights. The employee saw the same man previously seen in the supermarket trying to get out of the store by prying on its front and side doors with a pry bar. Following this the employee observed the stocking-capped man emerge from the side of the store pushing a power lawnmower. The capped man headed for the rear of the store premises to the vicinity of two parallel fences, one board and one wire. At about this time police arrived. They found a lawnmower and a Vaughn Superbar just inside the entrance between the two fences and discovered defendant trying to negotiate the area inclosed by the fences which was a veritable thicket overgrown with trees, weeds and vines. Defendant was bareheaded and carrying the back plate of a transistor radio. A dark brown stocking cap was found hanging on vegetation in the thicket. A search of the area revealed no unauthorized person but defendant on the premises. The police found all doors and windows to the store locked and summoned a store manager to obtain entrance. One of four glass panes (the bottom one) in the side door had been completely broken out. Most of the broken glass was inside the store on the floor. Fragments of the glass appeared to be stained with blood. Blood was seen on the handle of the lawnmower found at the fences. Defendant had blood and a cut on his hand. The lawnmower and pry bar were store property and had been removed without authorization. The store had been closed and all the doors and windows had been locked at 5 p. m. Pry marks were found on the inside of the front and side doors. The opening made in the side door by the breaking of the bottom glass pane was large enough to permit the removal of the power mower through that opening.

Defendant argues that there was insufficient evidence of a breaking in and that the evidence is more consistent with a breaking out which is not the crime charged and is not burglary undpr our statutes. In other words, defendant is saying that entry without a breaking and a later escape by breaking out does not constitute burglary. State v. Ewing, 298 S.W.2d 439, 444[4] (Mo. 1957). He further suggests there was no competent direct evidence of a burglarious entry if the case be measured by the evidence sans the hearsay testimony of the supermarket employee that a customer told him “she had seen somebody trying to get in that store.” This ignores that no objection was made to such testimony and that “[hjearsay evidence, although otherwise inadmissible, when admitted without objection, is in a case for all purposes and may be given its natural and logical probative effect by the trier of the facts.” State v. Day, 531 S.W.2d 780, 782[2] (Mo.App. 1975).

There was ample evidence to sustain the verdict. Upon arriving at the store, the police were directed by the supermarket employee to the place where the stocking-capped man seen inside the store had gone with the lawnmower - removed from the store. In reaching the location to which they had been directed, the police found the lawnmower, a pry bar also removed from the store, and defendant trying to make his way through the dense thicket between the fences. A dark-colored stocking cap was found in the thicket. No one other than defendant was found in the area. A glass panel in the store’s side door had been broken out in such fashion as to indicate the breaking occurred outside the building. There was blood on the broken glass, blood on the handle of the mower, and blood from a cut on defendant’s hand. The aperture resulting from the breaking of the glass panel provided a sufficient opening for passage of a power mower which was of such size that it would cut a 19-inch swath. These facts are consistent with the following hypothesis: that defendant was the one who broke the glass panel from the side door and cut himself in so doing; that defendant gained entry into the store through that opening and, unable to pry open another exit, again used the broken panel opening to remove the mower, the pry bar and himself from the store; and that defendant proceeded to the rear of the premises where he abandoned the mower and pry bar and tried to make escape (losing the stocking cap in the process) through the thicket upon arrival of the police. Turner v. State, 267 So.2d 882-883[2] (Fla.App. 1972).

Defendant’s second point is that the court erred in admitting into evidence State’s Exhibit No. 1, which we have and which is a drawing of the burglarized premises showing its relation to adjacent streets. Defendant’s only objection to the trial court was that the exhibit was not shown to have been drawn to scale and he will be limited to that specific objection upon appeal. State v. Jones, 515 S.W.2d 504, 506[3, 4] (Mo. 1974); State v. Hindman, 543 S.W.2d 278, 284[11] (Mo.App. 1976).

The testimony which was employed to gain entry of the exhibit into evidence was that of the supermarket employee. He testified the exhibit “looks like a drawing [of the store] . . . . I don’t know whether it is drawn to scale, or not, but it is close as far as the demensions [sic] [and] as far as the shape of the building, and the doors, and things, they are in the right places.” The witness said the drawing would be of assistance to him in describing to the jury what he had seen on the night in question.

The admission into evidence of a diagram or drawing is largely within the discretion of the trial court, and the trial court’s determination will not be disturbed upon appeal except in case of manifest error or an abuse of discretion. State ex rel. State Highway Commission v. DeLisle, 425 S.W.2d 938, 940[1] (Mo. 1968). Exhibit 1 was not used to measure distances, and whether it was drawn to scale or not had nothing to do with its use in the trial of this case. The drawing has been of considerable assistance to us in understanding the testimony, and we are certain it was an aid to the jury. There was no error in admitting Exhibit 1 into evidence. Martin v. Sloan, 377 S.W.2d 252, 263[15, 16] (Mo. 1964); State v. Anderson, 375 S.W.2d 116, 120[11] (Mo. 1964); State v. Brooks, 159 S.W.2d 646, 647[2] (Mo. 1942).

Defendant’s penultimate point contends the trial court erred in denying his two oral motions to quash the array of prospective jurors because the presence in the courtroom of a person wearing a uniform, a badge and a holstered pistol made it appear that defendant was a dangerous person.

No evidence was offered on the motions nor at the hearing on the motion for new trial. The contents of motions and objections do not prove themselves [ Williams v. Williams, 497 S.W.2d 415, 417[2] (Mo.App. 1973)] and do not constitute evidence of the purported facts stated therein. State v. Daniels, 347 S.W.2d 874, 876 (Mo. 1961).

Prior to and after making jury strikes, defendant’s counsel moved that the array be quashed because of the presence of the uniformed officer and because the officer on one occasion “appeared, to me, to chase after my client . . . when my client headed for the restroom.” The court responded by stating “that the incident you have described I did not see. But I would observe this: That there is a uniformed officer in the Court Room [sic], and he does wear a pistol . . . that the Bailiff is in plain clothes, and has no weapon displayed. And the Bailiff is busy on other matters and cannot be expected to attend to the security of the prisoner as well as to attend to the jury and the exhibits and the other matters that he is required to handle. The defendant is in custody, and he’s charged with a crime, and I think it is perfectly reasonable for one officer, who has not drawn his gun, but simply is in uniform, and wearing a badge and a holstered revolver, that he be permitted to accompany the defendant, particularly when the defendant goes unfettered, un-handcuffed, and goes to the restroom.” The court also observed that the uniformed officer, when not escorting the defendant, was “simply seated next to the bailiff.”

“While care should be taken to prevent the creation of an atmosphere prejudicial to an accused, courts may take all reasonably necessary precautions for the maintenance of order during the progress of a trial ., and for the retention of the custody of an accused.” State v. McKeever, 339 Mo. 1066, 1083, 101 S.W.2d 22, 31[23] (1936); State v. Johnson, 539 S.W.2d 493, 514[43] (Mo.App. 1976). There is nothing in the record which indicates that the court exceeded its rights and duties in the matter. Defendant was not handcuffed, in leg irons or otherwise restrained by any device. Only one armed officer was present in the courtroom and, except for escorting defendant to the restroom, he was seated next to the bailiff during the proceedings, not hovering over the defendant. It was incumbent upon defendant to show prejudice by the mere presence in the courtroom of an armed officer. We find no such showing and deny the point. Snow v. State of Oklahoma, 489 F.2d 278, 280[5, 6] (10th Cir. 1973); State v. Daniels, supra, 347 S.W.2d at 876[1]; State v. Edmonson, 371 S.W.2d 273, 277[11] (Mo. 1963).

Finally defendant asseverates it was error to permit introduction of the stocking cap into evidence as a state’s exhibit because “it had not been connected sufficiently with defendant in that defendant was never identified as having worn a stocking cap, it was not taken from his possession, and it was not shown to have any connection with the crime.” We disagree.

While it is “true that to be admissible demonstrative evidence must be identified as the articles they are purported to be, and shown to be connected with the crime or with the accused[,] . . . such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than the admissibility of the articles in question.” State v. Threat, 530 S.W.2d 41, 42[1] (Mo.App. 1975). As previously noted, a man wearing a dark-colored stocking cap was seen inside the burglarized store. The same stocking-capped man was seen leaving the store pushing a lawnmower to the rear of the premises where he disappeared into a dense thicket after abandoning the mower. Almost immediately thereafter defendant was discovered capless and floundering in the thicket where a dark-colored stocking cap was found caught on some growth therein. This evidence was sufficient to connect the cap to the crime and to the defendant. The trial court did not err in admitting the cap as an exhibit.

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry JENNINGS, Defendant-Appellant.
    No. 10166.
    Missouri Court of Appeals, Springfield District.
    Aug. 15, 1977.

      John D. Ashcroft, Atty. Gen., Frank Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Don W. Owensby, Buffalo, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Jerry Jennings was tried as a habitual criminal and convicted of the second degree murder of Joe Woodruff. The trial judge sentenced defendant to life imprisonment. In this appeal he contends he was entitled to a preliminary hearing when the information was amended to charge first degree murder, an autopsy report was erroneously admitted as a business record, and that he should have had a mental examination. We affirm.

The sufficiency of the evidence to support the jury’s verdict is not questioned. There was substantial evidence from which the jury could find that defendant fatally shot Woodruff with a shotgun and pushed the latter’s body into a stream.

The original charge against the defendant alleged second degree murder, inasmuch as it omitted the word “deliberate.” Following a preliminary hearing, the defendant was bound over to circuit court and the information charging second degree murder was filed. Thereafter, the state was permitted to amend the information by inserting “deliberately” as an element. Defendant claims the amendment was error and he was entitled to have the case remanded to the magistrate court for a preliminary hearing on the first degree murder charge.

The transcript reflects that prior to the amendment, the trial court explained to the defendant his rights concerning a preliminary hearing on the amended charge and that both defendant and his employed counsel advised the judge that defendant waived the defendant’s “right to any preliminary hearing on the charge, as amended.” Defendant’s waiver is authorized under Rule 23.02, Y.A.M.R., and the point is without merit.

There was no error in the admission of the autopsy report as a business record because the pathologist’s secretary testified as to its identity, its mode of preparation, that it was made in the regular course of business, and at or near the time of the autopsy. The report met the statutory requirements of a business record [§ 490.680, RSMo 1969] and was admissible as such. Rossomanno v. Laclede Cab Company, 328 S.W.2d 677 (Mo. banc 1959). Pathologist’s reports constitute an admissible business record if the statutory requirements are met. State v. Payne, 342 S.W.2d 950 (Mo.1961); State v. Cheatham, 340 S.W.2d 16 (Mo.1960). By the testimony of the unavailable doctor’s secretary the autopsy report was properly admitted as a business record. The point is denied.

Defendant’s final point is that the court should have ordered a psychiatric hearing as to mental condition under § 552.020, RSMo 1969. We are left in the dark whether the suggested psychiatric examination was for the purpose of determining mental disease or defect excluding responsibility or mental disease or defect excluding fitness to proceed, but in either event we find no error.

Defendant, with employed counsel, entered a not guilty plea in January of 1975. Mental disease or defect excluding responsibility was not pled as a defense as required by the statute. § 552.030.2, RSMo 1969. On the date of trial, August 21, 1975, defendant’s court appointed attorney made a rambling statement to the court in which he stated he wanted to call to the judge’s attention that defendant had allegedly attempted self-destruction at some time in the past and he understood defendant was presently taking medication. The trial judge conducted an inquiry as to the nature and amount of medication defendant was taking, interrogated the defendant at some length, and concluded the defendant was competent to stand trial.

Remote and unspecific incidents of emotional or psychiatric disturbances do not compel a trial judge to order a psychiatric examination. State v. Harris, 477 S.W.2d 42 (Mo.1972). Defendant assured the court he was not under the influence of drugs and was able to assist his attorney. The court is required to hold a hearing on the issue of competency only when a bona fide doubt exists as to the defendant’s capacity. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Such a doubt is not shown by the record in this case.

This appeal presents one other matter which requires discussion. After the case reached circuit court, defendant’s employed attorneys were permitted to withdraw and the public defender was appointed to represent him. Following judgment, defendant was permitted to appeal as a poor person. At the request of the public defender, the reporter included “everything, omitting nothing, including the preliminary hearing”, and “Depositions, and everything else” in the transcript which was filed with us. At least one-half of the nearly 900 page transcript consists of matters which are not authorized under Rule 81.14, V.A.M.R. The reporter’s certificate of cost of preparing transcript shows a charge of $535.80 and certified this amount is provided by statute and is due from Dallas County. A second reporter’s certificate of costs shows the sum of $471.90 “taxable as cost” in this court. The trial court is directed to allow the reporter as costs only those matters which are properly included in the transcript pursuant to the mandate of Rule 81.14, V.A.M.R.

The judgment is affirmed.

All concur.

      . Complaint, warrant for arrest, application to transfer prisoner to Greene County, order transferring defendant, application for continuance and suggestions in support and opposition, copies of subpoenas for magistrate court witnesses, letters to magistrate, suggestions in opposition to motion for continuance, transcript of preliminary hearing and index thereto, transcript from magistrate court to circuit court, motion to withdraw as counsel, letter and notice and motion for change of venue, letter and notice and amended motion for change of venue (including affidavits), order changing venue, letters, notices, various proceedings, copies of circuit court subpoenas, applications, motions, certificates, writs, bond reduction application, copy of deposition, copy of jury lists, etc.


text:
    Jerry L. McCALLISTER and Lynn K. McCallister, Plaintiffs-Appellants, v. FIRST NATIONAL BANK, Walter Alley, Mary Alley and Jane Nieman, Defendants-Respondents.
    No. 10719.
    Missouri Court of Appeals, Springfield District.
    Aug. 15, 1977.

      C. John Forge, Jr., Independence, for plaintiffs-appellants.
    Gene A. Hilton, Camdenton, for defendants-respondents Walter and Mary Alley.
    Charles E. McElyea, Camdenton, for defendants-respondents First Nat. Bank and Nieman.
   PER CURIAM.

On March 15, 1977, the Circuit Court of Camden County entered judgment dismissing plaintiffs’ petition as it related to Walter Alley and Mary Alley. The judgment was specifically designated final for purposes of appeal. Rule 81.06 V.A.M.R.

Thereafter, on June 23, 1977, plaintiffs filed a single notice of appeal. All defendants, including Walter and Mary Alley, were listed as parties to the appeal. Additionally, the circuit clerk sent a copy of the notice to all attorneys including the attorney for Mary and Walter Alley.

The purported appeal involving Mary and Walter Alley must be dismissed for lack of jurisdiction. This court acquires no jurisdiction unless a notice of appeal has been filed not later than 10 days after the judgment or order, from which the appeal is sought, becomes final. Rule 81.04 V.A.M.R. Since such timely action has not been taken on the judgment of March 15, 1977, that judgment is not before us for review. Dombroski v. Cox, 431 S.W.2d 680, 682[2] (Mo.App.1968).

The appeal as to Mary and Walter Alley is dismissed.

All concur.


author: PER CURIAM:

text:
    RIVERSIDE CHEMICAL COMPANY, Plaintiff-Respondent, v. Florence J. HAWKINS, Executrix of the Estate of Charles T. Hawkins, Deceased, Defendant-Appellant.
    No. 10632.
    Missouri Court of Appeals, Springfield District.
    Aug. 15, 1977.

      Hal E. Hunter, Jr., Hunter & Hunter, New Madrid, for plaintiff-respondent.
    Albert C. Lowes, Buerkle, Buerkle & Lowes, Jackson, for defendant-appellant.
   PER CURIAM:

Appeal from an action to recover for property damage to a truck leased by respondent Riverside Chemical Company. On December 6, 1976, a Scott County jury returned a verdict in favor of respondent company in the amount of $1,404.06.

Thereafter, the following entry was made on December 6, 1976:

“WHEREFORE, in accordance with the verdict it is ordered, adjuged [sic] and decreed that plaintiff have and recover from the defendant the sum of $1404.06.”

The quoted material may suffice as a minute or docket entry but fails to constitute a judgment from which an appeal may be taken, notwithstanding its cognomination as the “Judgment” of the court. Cochran v. DeShazo, 538 S.W.2d 598, 601[6] (Mo.App.1976).

The appeal is dismissed.

All concur.


author: STONE, Judge.

text:
    Carolyn KEATON, Petitioner-Respondent, v. Alvie Ward KEATON, Respondent-Appellant.
    No. 10298.
    Missouri Court of Appeals, Springfield District.
    Aug. 16, 1977.
    Motion for Rehearing or to Transfer Denied Sept. 2, 1977.

      J. Max Price, Salem, for petitioner-respondent.
    Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for respondent-appellant.
   STONE, Judge.

This action was instituted on June 17, 1975, by the filing of a petition in which the wife prayed, inter alia, that her marriage to defendant-respondent be dissolved. Upon trial in the Circuit Court of Texas County, judgment was entered on March 1, 1976, which dissolved the marriage, awarded to the wife custody of the only child of the marriage, Robert Edward Keaton, born August 30, 1973, and $25.00 per week child support, denied the husband visitation rights until further order of the court, enjoined the husband from molesting the wife or remaining in the vicinity of her home, awarded to the wife a note executed by Jim and Ruby Mooney which was secured by a deed of trust, allowed petitioner’s attorney a $100 fee which the husband had promised to pay in a prehearing agreement dated December 15, 1975, taxed against the husband all costs including $500 as an additional attorney’s fee, and awarded all other property to the husband. The husband appealed and here claims the trial court erred in granting the petitioner custody of the minor child, in denying the husband visitation rights, in awarding child support and the amount thereof, in enjoining the husband from molesting the wife and going near her home, and in the distribution of marital property.

In this court-tried case, we review both the law and the evidence, and it is our duty to sustain the decree unless there is no substantial evidence to support it, or the decree is against the weight of the evidence, or in rendering judgment the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo.banc 1976); Jaeger v. Jaeger, 547 S.W.2d 207, 208(1) (Mo.App. 1977); Blessing v. Blessing, 539 S.W.2d 699, 702(2) (Mo.App. 1976).

Evidence was introduced anent the social habits of both parties and the hostility exhibited by the parties when they encountered each other subsequent to their separation; and the wife and other witnesses testified concerning the husband’s violent proclivities, including threats against the life and well-being of the wife. Having considered this and all other evidence, having carefully studied the trial transcript and the briefs of both parties, and having meticulously examined the authorities cited therein, we conclude that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence, that no error of law appears, and that an extended opinion would have no precedential value. Therefore, the judgment nisi is affirmed. Rule 84.16(b) Y.A. M.R. See Fouts v. Fouts, 553 S.W.2d 488 (Mo.App. 1977); Dickey v. Dickey, 553 S.W.2d 889 (Mo.App. 1977); Czapla v. Czapla, 552 S.W.2d 286 (Mo.App. 1977); Harris v. Harris, 501 S.W.2d 854 (Mo.App. 1973); Long v. Long 501 S.W.2d 502 (Mo.App. 1973).

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