author: REYNOLDS, Justice.

text:
    Estate of Peter F. LUCAS, Appellant, v. L. D. WHITELEY et al., Appellees.
    No. 8761.
    Court of Civil Appeals of Texas, Amarillo.
    April 29, 1977.
    Rehearing Denied May 23, 1977.
    Thompson, Knight, Simmons & Bullion, Stephen F. Fink, Dallas, for appellant.
    Bill A. Davis, Lubbock, for appellees.
   REYNOLDS, Justice.

The estate of a mentally incompetent was adjudged liable on a promissory note to which the incompetent’s name was affixed pursuant to a power of attorney signed, so the jury found, during incompetency. The adjudication came after the jury further determined that plaintiff holders of the note gave valuable consideration, albeit not to the incompetent, for the note and dealt with the incompetent in good faith, without fraud or imposition, and without knowledge of his mental incapacity. Given the jury’s findings, we hold that the incompetent’s liability on the note was avoided. Reversed and rendered.

On 13 April 1973, the names of Capital K Investment Corporation and Peter F. Lucas were affixed to a promissory note by Nasib Ed Kalliel as president of the corporation and as attorney-in-fact for Lucas. The note is in the principal sum of $120,000, bears interest at the rate of eight per cent per annum, and is payable to the order of J. W. Chapman & Sons in annual principal installments of $20,000 plus accrued interest, beginning 1 April 1974. The note was executed in connection with L. D. Whiteley’s sale of the Le Chateau Apartments in Lubbock, Texas, to Capital K Investment Corporation.

The power of attorney under which Kal-liel acted was a special one signed by Lucas on 12 April 1973. In a judicial proceeding of 11 June 1973, Lucas was adjudged a person of unsound mind.

A $25,000 payment was made on the note on 28 June 1973. After no other payment was made, plaintiffs L. D. Whiteley, Homer Porter and J. W. Chapman & Sons, a partnership composed of Ray Chapman and Harold Chapman, all alleging to be holders in due course of the note, instituted this suit to recover from Capital K. Investment Corporation and Virginia L. Nick, in her capacity as Guardian of the Estate of Peter F. Lucas, the principal balance and accrued interest on the note, together with reasonable attorney’s fees.

For Lucas, there was interposed, among the reasons for nonliability, the defense that he was of unsound mind and mentally incapable of acting rationally when the power of attorney was executed. No answer was filed on behalf of Capital K Investment Corporation and, when the corporation failed to appear for trial, a judgment nihil dicit was rendered against it in favor of plaintiffs.

Following a trial before a jury, the jury returned its verdict which, corresponding to the numbered special issues, was that: (1) Lucas personally signed the power of attorney dated 12 April 1973; (2) when he was mentally incompetent; (3) plaintiffs did not give Lucas valuable consideration for the note; (4) plaintiffs were acting in good faith in their dealing with Lucas at the time the note was executed; (5) they were acting without fraud or imposition; (6) they had no knowledge of Lucas’ mental incapacity! (7) plaintiffs gave valuable consideration in exchange for the note; (8) there was no agreement that the $25,000 payment would be applied to the final payments on the note; and (9) $16,000 would reasonably compensate plaintiffs as payment for reasonable attorney’s fees.

Accepting the verdict, the trial court rendered judgment that plaintiffs recover from the corporation and the estate of Lucas the sum of $141,235.06 as principal, interest and attorney’s fees on the note, together with postjudgment interest, and that the estate of Lucas have judgment against the corporation, by way of contribution, for the sum of $62,073.53, with postjudgment interest.

Only the estate of Lucas has appealed. The essence of the sole point of error is that the trial court erred in not rendering a take-nothing judgment as to Lucas’ estate because the jury’s answers to special issues 2 and 3 established the defense of mental incompetency which avoided liability. We agree and, for the reasons stated below, sustain the point.

In joining the issue, the parties have not challenged any answer given by the jury. Conclusive, then, is that Lucas was mentally incompetent when he executed the power of attorney by authority of which Kalliel affixed Lucas’ name to the note. It follows, from the principle early confirmed in Texas, that the power of attorney and the resulting note as it obligates Lucas is not void, but only voidable at the election of Lucas or his legal guardian. Williams v. Sapieha, 94 Tex. 430, 61 S.W. 115, 116 (1901). And it has been held that the avoidance is not barred by the showing, as shown here by the jury’s determinations with respect to the note, that an instrument was obtained in good faith for a valuable consideration and without fraud. Mitchell v. Inman, 156 S.W. 290, 292 (Tex.Civ.App.—Fort Worth 1913, writ ref’d). Notwithstanding, plaintiffs contend that under these elements of the verdict, Lucas’ avoidance of liability on the note is precluded by the Texas Uniform Commercial Code (1967), V.T.C.A., Bus. & C. § 3.305, and, until plaintiffs are restored to their original position, by Vernon’s Ann.Civ.St. art. 5561a, § 7 (Supp.1976).

V.T.C.A., Bus. & C. § 3.305, speaks to the rights of a holder in due course, the status conferred on the payee-holder of the note, J. W. Chapman & Sons, by the jury’s findings that plaintiffs gave valuable consideration for the note, they were acting in good faith in their dealings with Lucas at the time the note was executed, and they had no knowledge of Lucas’ mental incapacity. Riley v. First State Bank, Spearman, Texas, 469 S.W.2d 812, 816-17 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). As material here, that section provides, effective 1 September 1967, that:

To the extent that a holder is a holder in due course he takes the instrument free from
* * * * * *
(b) all defenses of any party to the instrument with whom the holder has not dealt except
* * * * * *
(2) such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity; and
******

Therefrom, plaintiffs argue that the obligation of Lucas on the note is not a nullity under the rationale of Williams v. Sapieha, supra, and its progeny, and thus, by force of the enactment, plaintiffs, or at least the holder in due course, J. W. Chapman & Sons, took the note free from the defense of incapacity. The argument is bolstered by Comment 5 under § 3.305, which recites:

Paragraph (b) of subsection (2)(sic) is new. It covers mental incompetence .. Its existence and effect is left to the law of each state. If under the local law the effect is to render the obligation of the instrument entirely null and void, the defense may be asserted against a holder in due course. If the effect is merely to render the obligation voidable at the election of the obligor, the defense is cut off.

We do not reach the efficacy of the argument. V.T.C.A., Bus. & C. § 3.305(b) becomes operative only if the holder in due course “has not dealt” with the party to the instrument. Explicit is the jury’s special issue no. 4 finding that plaintiffs dealt with Lucas in good faith. Although plaintiffs do not challenge the finding, they emphasize that they had no direct dealings with Lucas. The emphasis lacks impressiveness.

Relevant is that portion of V.T. C.A., Bus. & C. § 1.103, which reads: “Unless displaced by the particular provisions of this title, the principles of . principal and agent . . . shall supplement its provisions.” Foremost among those principles is that one who authorizes another to act for him acts as if he himself had personally acted, Wright v. Calhoun, 19 Tex. 412, 422 (1857); the resulting contract made by and in the name of the principal through the agent binds the principal, not the agent. Diacomis v. Wright, 34 S.W.2d 806, 807 (Tex.Comm’n App.1931, holding approved). To this extent, both the principal and the agent are only one person; thus, a promissory note executed by an agent for and with that authority from his principal is as if executed by the principal himself. Julian Petroleum Corporation v. Egger, 15 S.W.2d 36, 39 (Tex.Civ.App.—Fort Worth 1928, writ ref’d). As a consequence, and we hold that, when a third party deals with an agent exercising his special authority to execute an instrument by and in the name of his principal, the third party deals, within the contemplation of V.T.C.A., Bus. & C. § 3.305(b), with the principal. Accordingly, the avoidance of Lucas’ liability is not precluded by the provisions of V.T.C.A., Bus. & C. § 3.305.

Neither do we credit V.A.C.S. art. 5561a, § 7, with preventing Lucas’ avoidance until plaintiffs are restored to the original position. Summarized, that statute provides that a contract valid on its face made by one later shown to be incompetent and entered into in good faith without fraud or imposition and for a valuable consideration shall not be avoided because of the incompetency unless the parties to such contract shall have been first equitably restored to their original position. This legislation, first enacted effective 21 August 1937, is but a declaration of prior law. See Williams v. Sapieha, supra, at 118, where the court recognized the principle of restoration as a prerequisite to avoidance, but said that in the absence of proof that the ineompe-tent had the consideration in his possession, restoration was not required. A fortiori, where, as the jury found here, the incompetent seeking to avoid liability never received any of the consideration, he would not be required to restore plaintiffs to their original position to avoid the transaction. Accord, Houston Land & Trust Co. v. Sheldon, 69 S.W.2d 796, 800 (Tex.Civ.App.—Eastland 1934, writ dism’d).

That portion of the trial court’s judgment decreeing that L. D. Whiteley, Harold Chapman, Ray Chapman and Homer Porter recover from the Estate of Peter F. Lucas and that the Estate of Peter F. Lucas recover from Capital K Investment Corporation is reversed. Judgment is here rendered that L. D. Whiteley, Harold Chapman, Ray Chapman and Homer Porter take nothing from the Estate of Peter F. Lucas and that the Estate of Peter F. Lucas take nothing from Capital K Investment Corporation. Costs are taxed against L. D. Whiteley, Harold Chapman, Ray Chapman and Homer Porter, jointly and severally. Rule 448, Texas Rules of Civil Procedure..


source: Caselaw Access Project

author: PER CURIAM: FINCH, Judge, SEILER, Chief Justice,

license: Public Domain

text:
    Robert MEANS, Respondent, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellant.
    No. 59571.
    Supreme Court of Missouri, En Banc.
    May 12, 1977.

      Joel D. Monson, Anderson, Gilbert, Wol-fort, Allen & Bierman, St. Louis, for appellant.
    James P. Holloran, Sommers & Holloran, Inc., St. Louis, for respondent.
   PER CURIAM:

In an opinion written by Simeone, P. J., the Court of Appeals, St. Louis District, affirmed a judgment for plaintiff and against defendant in the amount of $40,000 (the jury had returned a verdict for $65,-000); but transferred the case to this court pursuant to Mo.Const. art. V, § 10, saying, “We believe, however, that the authority of an appellate court to review the amount of the remittitur, both as to inadequacy or excessiveness when that issue is raised on appeal by the defendant should be reexamined by the Supreme Court. We therefore order this case transferred for that purpose.” We decide the case as though here on direct appeal. We affirm.

The opinion by Judge Simeone (without quotation marks), to and including transfer to this court, is as follows:

This is an appeal by the defendant-appellant, Sears, Roebuck and Company, for a judgment entered by the circuit court of the City of St. Louis on March 10, 1975, in the amount of $40,000 in favor of the plaintiff-respondent, Robert John Means, for personal injuries sustained as a result of a fall from a bicycle purchased at the defendant’s store. The judgment of March 10, 1975, -was reduced from the jury verdict of $65,000 after plaintiff remitted $25,000. Sears raises several issues on this appeal: (1) the propriety of the verdict directing instruction; (2) the injection of insurance; (3) the gross excessiveness of the verdict and (4) the remittitur. For reasons hereinafter stated, we affirm the judgment of the trial court.

It is not necessary to detail each and every fact in this litigation. We shall state only those sufficient and relevant facts necessary to dispose of the points raised by the appellant on this appeal.

On the evening of Wednesday, August 29, 1973, Mr. Means and his wife, Carolee, together with their minor children, went to the defendant’s store in Northwest Plaza Shopping Center for the purpose of purchasing a bicycle which was to be used mainly by Mrs. Means. They purchased a man’s five-speed, 27-inch bicycle from the salesman in the sporting goods department —Mr. Robert Lesan. The cost of the bicycle was $79.50. They also purchased a “child carrier” to be attached to the rear of the bicycle for $15.69. Although a floor sample was available, they requested that Sears assemble a bicycle, for which they paid an additional cost of $7.00. This cost of assembling was added to the sales receipt at the time of the purchase.

The following evening, Thursday, Mr. Means and his family returned to the store to “pick up” the purchase. At the time the bicycle was brought to him, Mr. Means noticed that “[t]he rear fender was rubbing against the wheel.” He informed a Sears employee (not Mr. Lesan), whereupon the employee “went and got a wrench and loosened [the fender] back from the wheel and tightened it back up.” Mr. Means then placed the bicycle in the trunk of his automobile and drove to Mrs. Means’ parents’ home “to show them, and we were going to ride it that evening.” But “[bjefore we could ride it we found the seat was loose. We had to tighten that. It was wobbling back and forth.” That evening, both he and Mrs. Means rode the bicycle. They did not “jump any curbs,” “hit any large chuckholes” or “have any type of accident.” After riding the cycle that evening, it was taken to their home and placed in the garage. The next afternoon, Mrs. Means rode, but Mr. Means did not. On Saturday, Mr. and Mrs. Means and a neighbor, James Keating, rode the cycle. On this occasion, Mr. Means noticed that the “gearshift lever was loose on the stem.” This was tightened. On this occasion, none of the riders experienced any difficulty while riding.

The following morning, Sunday, September 2, 1973, Mr. Means took the bicycle and was going “to ride up to the Target Store to a big parking lot and then just ride back.” When he was on top of a hill heading down, the “front wheels [sic] started vibrating very rapidly sideways back and forth approximately six inches or so.” He tried to stop. But “[s]uddenly the front wheel went to the left a full ninety degrees. At that time the next thing I knew I was skidding along the road on my stomach.” All during this time the handlebars were perfectly straight and “didn’t vibrate at all.” He stood up, his knee was bleeding, and he flexed his leg. “I could feel something in there, but it still moved. . . . ” He walked back to the bicycle and found the front wheel was “somewhat bent.” While standing near the bike, a car pulled up with a couple in it. They asked if he were hurt. They asked if they could take Mr. Means to the hospital or to his house. Mr. Means then hid the bicycle in the weeds, and as he walked “I couldn’t move my left knee any more and I kind of fell down.” The couple was kind enough to take him to the Christian Northwest Hospital, where he was placed under the care of Dr. Charles Powell, an orthopedic surgeon. After an examination which showed a com-minuted fracture of the left patella, Mr. Means was taken to surgery and a total patellectomy was performed. Dr. Powell removed all the fragments of the fractured patella and sutured the quadriceps muscle tendon to the patellar ligament. Mr. Means was placed in a cast. The hospital called Mrs. Means, and she and James Keating arrived at the hospital. Mr. Means informed Mr. Keating of the whereabouts of the bicycle, and later Mr. Keating picked it up and placed it in Mr. Means’ garage. Mr. Means spent a week in the hospital and two weeks at home recuperating, before returning to work on crutches. Because he was unable to “get around in the field,” Mr. Means’ supervisor “gave him some office work,” during the time he was in the cast. • When the cast was taken off about six weeks later, he couldn’t move his leg— “[t]he leg muscles were — I don’t know what you call it, they were like jelly . . ..”

By January, 1974, Mr. Means could not bend his left knee more than an inch, but did resume his regular duties in February. When Dr. Powell saw him in December, 1973, some four months after the operation, he “showed only about 10 degrees of active knee flexion and at this time it was apparent that the quadriceps tendon was bound down to the underlying femur and was sticking there which prohibited the tendon moving when he attempted to flex the knee, so he had only 10 degrees of active flexion.” So another operation was decided upon. This operation pulled the “knee on both sides of the stuck-down tendon and [was to] just free it up from the underlying femur . . ..” This second operation was performed on March 18,1974 (although Dr. Powell stated he was admitted in February, 1974), for lysis of the quadriceps tendon. He remained in the hospital after this second operation for a period of two weeks or until March 30, 1974. He convalesced for a period of two more weeks.

Following his discharge, Mr. Means participated in a physical therapy program three times a week until about June 1,1974. As a result of the second operation and the physical therapy, Mr. Means was able to flex his knee approximately 90 degrees, and was able to return to his normal work. Although he is able to flex his knee, there is still 35% to 40% loss of flexion — “approximately 40 percent range of normal motion.” This condition is considered by the physician as permanent.

Dr. Powell stated his opinion that “I don’t think that he will ever regain any significant improvement in knee flexion.” Despite his condition, Mr. Means returned to his regular job activities by the time of trial in January, 1975. But his condition caused him several problems. He can no longer “squat.” In his duties he has to “lay down” to get under something and “going up and down steps is quite difficult.” He cannot bend his leg as much as he used to, and there has never been a day when he has not had “some difficulty” with his leg. He can no longer take part in “playing softball” or “run like I used to” or “sit in the front seat of the canoe any more . . .”

Mr. Means was absent from his employment a total of seven weeks and lost approximately $100.00 per month overtime compensation, and because of his morning therapy he missed other work time.

As a result of all this, he incurred medical and hospital expenses of approximately $2,600.00, and loss of wages and overtime of approximately $2,100.00.

After the unfortunate accident on September 2, 1973, the bicycle was eventually transferred to the custody of Professor Wallace Diboll, Associate Professor of Mechanical Engineering at Washington University, who, at the request of Mr. Means’ attorneys, performed several tests. The professor stated that he had testified in court before and that mechanical engineering “basically involves making of energy and the making of things, equipment, machinery. My particular area is the area of machinery, and the study of that, vibrations, stresses, forces involved in machinery.” As stated, Professor Diboll examined the bicycle. He found the wheel distorted. He also testified in some detail concerning the assembly of the handlebars and tube of the fork. In order to make the wheel turn with the handlebars so that a person can have control of the wheel through the handlebars, a sliding nut must be turned and “tightened correctly, fully, sufficiently” so that it is one “rigid piece, so that when you turn the handlebar . . . the wheels will also turn . . ..” Professor Diboll performed tests on the cycle to determine the rigidity of the connection between the handlebars and the wheel. This was accomplished by putting the bicycle on a table and holding the “wheel tightly and then [loading] it with a known weight.” He applied gradually increasing weights until the handlebars turned with respect to the wheel. Six pounds of weight turned the bars, equivalent to “seventy-eight inch pound of torque.” The tests were to determine “how rigid the connection was between the wheel and the handlebar.” A similar test was performed on Professor Diboll’s own bicycle, which “took” 588 inch pound of torque. In his opinion, “a handlebar, gooseneck, fork connection should withstand at least a thousand inch pound [of torque] if properly assembled.” In answer to a hypothetical question, it was the professor’s opinion that there was a “defective connection or assembly between the gooseneck and the fork,” and that “during the assembly, the nut which goes up into the gooseneck, had not been sufficiently tightened.”

During the direct examination of Professor Diboll, plaintiff’s trial counsel inquired whether the bicycle at some point left his possession. The professor answered, “Yes,” after he had run “all the studies.” The following then occurred:

“Q [by plaintiff’s counsel] What did you do with the bike?
A I took the bike to St. Louis Test— St. Louis Testing Laboratory.
Q Why did you do that?
A It was at a request of one member of your office who said that the defense wanted the bike examined.
[Defense counsel]: I would object to hearsay.
THE COURT: Objection sustained.
Q (By [plaintiff’s counsel]) Where did you take it?
A I took it to St. Louis — let me check to make sure. I have a receipt for it. St. Louis Testing Laboratories, Incorporated.
Q You gave it to them and they gave you a receipt for it?
A That is right.
Q Have you seen the bike again until you saw it yesterday here in court?
A I have not. I might add that on the receipt there is an account Aetna Casualty and Surety—
[Defense counsel]: I object to that. I move the Court—
THE COURT: Objection sustained. Don’t volunteer anything until you are examined. I will sustain the objection and order it stricken from the record.
* *

The attorneys then approached the bench, and defense counsel asked for a mistrial, “because of the volunteered statement, that being Aetna Casualty Surety, given by the witness for the plaintiff . . ..” It is unclear from the record just what Aetna Casualty had to do with the cause — no voir dire question was asked, but in any event the trial court overruled the motion.

During the trial, Dr. Powell’s video-tape deposition was shown in which the doctor testified as to the injuries, the length of time in a cast, the permanency of the injury, the degree of flexion, and the surgical fees.

At the close of the plaintiff’s case, counsel for defendant moved to amend its answer by interlineation to allow the affirmative defenses of’ contributory negligence and contributory fault. This was granted.

The court instructed the jury and gave, among other instructions, Instruction No. 2, the plaintiff’s verdict director. After arguments, the jury returned its verdict in favor of the plaintiff-Mr. Means, in the amount of $65,000, and judgment was entered accordingly.

On February 27, 1975, the trial court ordered that “[i]f plaintiff will, within 10 days, remit the sum of $25,000 from verdict . defendant’s motion for new trial will be overruled . . ..”

The plaintiff did voluntarily remit that amount, and the court entered a judgment from which this appeal is taken.

Sears raises four points on this appeal. It contends that the trial court erred (1) in giving Instruction No. 2, (2) in failing to sustain the motion for mistrial because of Professor Diboll’s injection of insurance during his direct examination, because of the “highly prejudicial effect” on the jury which returned a “grossly excessive” verdict; (3) in receiving the verdict because the verdict was “grossly excessive” in that the plaintiff had sustained expenses in the amount of $2,610.45 and is presently employed by the same employer in the same capacity and (4) in overruling the motion for new trial because the verdict was excessive and was not cured by the remittitur of $25,000.

The plaintiff-respondent, of course, counters each of the contentions and insists that the original verdict should be reinstated and that we should award an “additional sum” as damages because the appeal is frivolous.

The appellant’s attack on Instruction No. 2 is a broad one. It contends that the court erred in giving MAI 25.04 modified because it is not an accurate statement of the law, is not supported by credible evidence, fails to hypothesize sufficient evidentiary facts, is broader than the pleadings and evidence, is too general, and is misleading and confusing. This broadside attack on the instruction is not warranted.

The instruction is based on MAI 25.04, the verdict director in a products liability case against the manufacturer. MAI 25.04 was modified only insofar as was necessary to accommodate the theory of this case — a products liability case against the retailer. MAI does not contain a similar instruction against a retailer. Specifically, MAI 25.04 was modified to substitute the word “sold” for the word “manufactured,” and the word “used” in paragraph third instead of the word “bought.”

It is true of course that a deviation from MAI is not only error, it is presumptively prejudicial error. Murphy v. Land, 420 S.W.2d 505, 507 (Mo. 1967); Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259 (Mo.banc 1967); State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 154 (Mo.App. 1974). In Brown v. St. Louis Public Service Company, supra, 421 S.W.2d at 259, it is said:

“. . . where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” (Emphasis added.)

Yet, where no approved instruction is applicable so that modification of the approved instruction is required, there is no error. Reed Schmidt and Assoc, v. Carafiol Furniture Co., 469 S.W.2d 876, 879 (Mo.App.1971).

In Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo. 1969), the Supreme Court adopted the rule of strict liability as stated in 2 Restatement, Law of Torts, Second, § 402A (1965). The cause of action was asserted against the wholesale distributor. In the course of the opinion, the court stated that if the evidence supports it, on re-trial, an instruction in substantially the form used in this case should be used. The instruction here was similar to the one suggested in the Keener case and stated the law.

Although not in its point, Sears in its argument portion of the brief argues that the instruction misled the jury because it failed to negate any mishandling of the bicycle by Mr. Means, “his wife, his in-laws, or his neighbor after it left Appellant’s control.” We glean from this that Sears claims error in the trial court’s failure to include a “tail” on the verdict director referring to plaintiff’s contributory fault. However, no instruction on any affirmative defense was given or offered. Consequently, the trial court did not err. Lawley v. Kansas City, 516 S.W.2d 829, 835 (Mo.App.1974); Strickner v. Brown, 491 S.W.2d 253, 254-255 (Mo. 1973); Shepard v. Harris, 329 5.W.2d 1, 7 (Mo.banc 1959).

We rule the first point against appellant. Next, appellant-Sears contends that the injection of “insurance” during the direct examination of Professor Diboll constituted error and that its motion for mistrial should have been granted. Sears argues that the professor had testified in other cases, his experience was known to plaintiff’s trial attorney, that it is “very likely” counsel interviewed the professor prior to trial, and that the injection of insurance — this “pernicious and reprehensible” practice — is worse when in fact no insurance is involved. Sears argues that this injection

“. . . erroneously and falsely inflamed the passions of the jurors and created bias and prejudice in their minds . causing them to return a grossly excessive verdict .
The almost universal hatred harbored by the general public for insurance companies, should not be held against Appellant.”

It has long been the law of this state that the improper injection in a jury tried case that the defendant was covered by liability insurance constitutes error, especially so if thrown in purposefully or in bad faith. Gray v. Williams, 289 S.W.2d 463, 467 (Mo.App. 1956).

“. . . Suffice it to say that, no matter which party is the offender . ., the condemned practice of injecting liability insurance coverage into jury trials is just as pernicious and reprehensible today as it was fifty years ago, for, as Mark Twain once said, ‘ “(w)e are all full of human nature” ’ . . ..” Hildreth v. Key, 341 S.W.2d 601, 615 (Mo.App. 1960).

But not each and every reference to insurance constitutes reversible error. In Gray v. Williams, supra, this court did not interfere with the action of the trial court. A single statement concerning insurance under the circumstances did not justify holding that the trial judge should have taken more drastic action.

It is the basic principle that when the trial judge is called upon to rule on the question, much must be left to his sound discretion, and only where there is a manifest abuse should we interfere. The trial court is in the most advantageous position to determine whether the issue injected into the case was done in good or bad faith. The action of the trial court will not be lightly disturbed. Where the answer to a question is voluntary and unresponsive, there is no automatic error in refusing to discharge the jury. Paulsen v. Butcher, supra, 492 S.W.2d at 187. Here the trial court sustained the objection, requested the jury to disregard it, admonished the witness and no further reference was made to the issue, the court declining to further instruct the jury to disregard the comment.

This is not a situation where one individual sues another and insurance is injected. While we cannot condone the irrelevant injection of insurance, yet under the circumstances here where the defendant is a large company, we cannot say that the trial court, who was in the most advantageous position to assess the situation, abused its discretion in refusing to declare a mistrial. The statement by Professor Di-boll was unresponsive, and in a sense an afterthought to a previous question concerning what he did with the bicycle.

Under all the circumstances, we cannot say that the trial court’s refusal to discharge the jury constituted prejudicial error.

Next, appellant contends that the court erred in receiving the jury verdict of $65,000 for the reason that the verdict was grossly excessive and the result of bias and prejudice. If such a contention is found to be meritorious, then the verdict cannot stand in any amount and a new trial is required. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 423 (Mo.banc 1973); Marshall v. Ozark Gas & Appliance Co., 506 S.W.2d 474, 476 (Mo.App. 1974). A verdict which is so “grossly excessive” so as to indicate bias and prejudice is one in which the jury was guilty of misconduct by fixing an excessive figure as a result of bias and prejudice engendered during the course of the trial. Such misbehavior vitiates the entire verdict, not only as to the amount of the award, but also as to the determination of liability, and cannot properly be cured by remittitur, but requires that the verdict in its entirety be set aside. Skadal v. Brown, 351 S.W.2d 684, 690 (Mo. 1961).

The mere size of the verdict does not in and of itself establish that it was the result of bias or passion and prejudice without showing some other error committed during the trial. Slater v. Atchison, T. & S. F. Ry., 224 Mo.App. 824, 24 S.W.2d 660, 666 (1930); Skadal v. Brown, supra, 351 S.W.2d at 690; Friend v. Gem International, Inc., 476 S.W.2d 134, 140 (Mo.App. 1971).

Appellant contends that the injection of the false issue of insurance so biased the minds of the jurors that the verdict was “grossly excessive” and, hence, the verdict must be vitiated in its entirety. But we conclude otherwise. The trial court had the opportunity to observe the effect, if any, of the incident, and took appropriate action. We cannot say that the trial court abused its discretion. Neither can we say that Professor Diboll’s singular, unresponsive reference, in the context of the entire case, so “falsely inflamed the passions of the jurors and created bias and prejudice in their minds” to render the verdict which they did. This contention is overruled.

Appellant also contended in the trial court that the verdict is “excessive”. The basis of this attack is that “ ‘ * * * the jury made an honest mistake in weighing the evidence as to the nature and extent of the injury and in fixing damage and awarded a sum disproportionate to the amounts usually awarded for comparable injuries under the rule of uniformity. Such a mistake can be cured and corrected without a new trial by requiring a remittitur of a portion of the amount awarded’ ”. Worley v. Tucker Nevils, Inc., supra, 503 S.W.2d at 423, quoting from Skadal v. Brown, supra, 351 S.W.2d at 689-690.

The trial court concluded that the verdict was excessive and ordered a new trial on that basis unless plaintiff remitted $25,000, which plaintiff did. On appeal defendant contends that the resulting $40,000 judgment is still excessive and seeks further remittitur.

The court of appeals addressed that request and, after consideration of the nature and extent of the injuries received, expenses incurred, the age of plaintiff, the effect on his earning capacity, the economic scene and the result in other cases, held that further remittitur should not be required. However, the court of appeals declined to consider respondent’s contention that the trial court should not have required remittitur and that the jury verdict of $65,000 should be ordered reinstated. That action was based on the conclusion that under decisions of this court, including Webb v. Reach, 476 S.W.2d 570 (Mo. 1972) and Carver v. Missouri-Kansas-Texas R.R., 362 Mo. 897, 245 S.W.2d 96 (1952), a plaintiff who consents to a remittitur may not question the validity of the court’s order after accepting it.

As suggested by the court of appeals in certifying this case to us, we have reviewed the question of whether, after re-mittitur in the trial court, the appellate court should have the right to review the amount of such remittitur as to excessiveness as well as inadequacy when that issue is raised on appeal by appellant by requesting further remittitur. We have concluded that the rule in Webb and Carver should be modified to permit such review. Fairness so demands. The trial court has ordered a remittitur as a condition for not granting a new trial. Plaintiff has acceded to that directive and made the remittitur. In so doing, plaintiff may reasonably assume that by such action the controversy as to the alleged excessiveness of the verdict has been resolved. When that does not occur and defendant keeps that issue alive by seeking further remittitur on appeal, the whole issue of what remittitur, if any, is required should be open for consideration by the appellate court. That would permit the appellate court to approve the remitti-tur ordered by the trial court or order further remittitur or direct that part or all of the remittitur directed by the trial court be restored.

Accordingly, we have reviewed the issue of whether the jury verdict was “excessive” on the foregoing basis. We conclude, as did the court of appeals, that further remittitur is not required. We also conclude and hold that the trial court did not err in ordering a remittitur of $25,000 as a condition to not granting a new trial.

Finally, plaintiff requests this court to award additional damages, pursuant to Rule 84.19 on the grounds that this appeal by Sears is “frivolous and pursued by appellant for the sole purpose of delaying the payment of the judgment”.

A “frivolous appeal” is one which presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect for success. State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783, 785 (Mo.App. 1972). While we have found no error in the trial court’s action or judgment, we do not believe that the appeal was devoid of merit on the face of the record or that there was any bad faith or lack of sincerity which prompted Sears to bring this appeal. See McMillin v. Sears, Roebuck & Co., 523 S.W.2d 111, 113 (Mo.App. 1975); Lafayette Fed. Sav. & L. Ass’n of Gr. St. Louis v. Koontz, 516 S.W.2d 502, 505 (Mo.App. 1974). The remedy provided in Rule 84.19 is both drastic and unusual and should accordingly be reserved for those rare and unusual situations where its application is warranted. Suffice it to say, this is not such a situation. We thus deny plaintiff’s request for additional damages based on the alleged frivolous nature of this appeal.

Judgment affirmed.

MORGAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.

FINCH, J., concurs in separate concurring opinion filed.

SEILER, C. J., concurs in result in separate opinion filed.

RENDLEN, J., not participating because not a member of the court when cause submitted.

FINCH, Judge,

concurring.

I concur in the principal opinion. I file this separate opinion only because Chief Justice Seiler has filed a separate opinion in which he advocates complete abolition of the Carver rule, thereby permitting a plaintiff, after entry of a remittitur, to seek to have the verdict reinstated if defendant appeals, even if defendant has not sought additional remittitur on appeal. That question need not be reached in this case because defendant sought additional remitti-tur on appeal. However, since the chief justice has set forth the argument for completely abolishing the rule in some later case, I have concluded that, in order to give the whole story, I should set forth reasons why that should not be done.

The opinion of the chief justice is premised on the theory that if a plaintiff enters a remittitur and defendant then appeals, it is unfair if plaintiff is not permitted to seek to take back the remittitur in the appellate court even if the amount of the judgment is not made an issue by the appealing defendant. This is so, he argues, because defendant makes the remittitur on the basis of an expectation that defendant will not appeal but instead will pay the judgment promptly.

In my view, the foregoing premise is not sound. Plaintiff may have a hope that defendant will pay the judgment rather than appeal but there is no reasonable basis for him to rely on an expectation that defendant will not appeal. When a defendant files a motion for new trial, asserting that the verdict is excessive and that for other reasons there should be a new trial or an outright reversal, he is not saying expressly or by implication that if the trial court finds the verdict to be excessive and orders a new trial for that reason unless a remitti-tur is entered, he will forego all other grounds for outright reversal or a new trial nor is there anything in the action of the trial court which says or implies that defendant is expected to forego an appeal and pay the judgment if the remittitur is made.

The remittitur practice never was intended to serve as a complete answer to all objections raised by a defendant in a motion for new trial after plaintiff has obtained a verdict. It was intended to address only the assertion that the verdict is excessive. The trial court’s order says only that if plaintiff makes the remittitur the defendant’s motion for new trial will be overruled but if not made, the court will grant a new trial on the basis that the verdict was excessive.

When a trial court conditions its action on a motion for new trial on whether plaintiff remits some portion of the amount fixed in the jury’s verdict, the plaintiff has three options. First, he may decline to make the remittitur and, after a new trial is ordered, simply proceed to retry his case. Secondly, he can decline to make the remittitur and, after the trial court orders a new trial on the basis that the verdict is excessive, he may appeal and test that order. That was the course followed by plaintiff in Deaner v. Bi-State Development Agency, 484 S.W.2d 232 (Mo. 1972). Plaintiff’s third alternative is to make the remittitur and thereby get the trial court to overrule defendant’s motion for new trial. If the latter course is followed, plaintiff secures a denial of a new trial on the basis of exces-siveness and eliminates any question as to the amount of his recovery unless defendant on appeal seeks additional remittitur. He does not eliminate other grounds for relief raised by defendant.

Defendant, after verdict in favor plaintiff, has a statutory right of appeal if not granted a new trial or an outright reversal by the trial court. If, for example, defendant claims that he is entitled to an outright reversal because plaintiff failed to make a submissible case, or claims that an erroneous instruction dictates a new trial, those objections are not answered by a reduction in the amount of the verdict by remittitur. Defendant is entitled to have those questions reviewed on appeal. If, on that appeal, defendant raises no further question as to the amount of the judgment, he should not be penalized for taking an appeal by having the appellate court say: Because you appealed, we will let plaintiff (a non-appealing party) attempt to take back the remittitur and inject into the appeal the issue as to the amount of the recovery, even though such an issue is not raised by the only appealing party. To do this is unfair to defendant. It swings the pendulum too far. It raises a question of whether such a practice might deprive defendant of equal protection of the law. It most certainly is unusual and extraordinary to penalize an appellant by saying to him that if you appeal, we will permit the respondent to inject into the appeal an issue not raised by appellant and will permit the non-appealing respondent to obtain affirmative relief on the issue so injected. of

In supporting his thesis that the present rule is wholly unfair, even if defendant seeks no further remittitur on appeal, the chief justice quotes from the opinion of then Chief Judge Smith in Best v. Fred Weber Construction Co., 525 S.W.2d 102, 108-109 (Mo.App. 1975). However, Judge Smith said more than the sentence quoted. Having observed that defendant appealed after the remittitur, raising as its dominant point that the judgment continued to be excessive, he said this:

“ * * * In short, defendant has the benefit of the remittitur, an opportunity to reduce the judgment even more, delay in payment of the judgment, and no risks or adverse consequences from taking an appeal. Plaintiffs, on the other hand, have gained little or nothing from accepting the remittitur, which acceptance may well have been based upon a desire to receive the judgment expeditiously.
“I entertain serious doubt that the re-mittitur entered by the trial court was warranted, at least in part and possibly in toto. If we are going to continue to permit appellate courts to entertain requests for additional remittitur then we should place the gamble for such appeals equally on the parties. Where a defendant has sought and received a remittitur from the trial court, which has been accepted by the plaintiff, such acceptance should not preclude an appellate court from examining the propriety of the re-mittitur where the defendant thereafter appeals. When the defendant elects to place before this court the amount of the damages by asking for additional remitti-tur, we should not be limited to deciding whether the action of the trial court was inadequate but should decide also whether it was excessive. * * * ” (Emphasis supplied.)

The unfairness spoken of by Judge Smith was in those cases wherein defendant seeks additional remittitur in the appellate court. This is apparent by the language italicized.

For the reasons indicated, I do not favor overruling completely the rule of the Carver and Webb cases. Doing so in the case now before us, where defendant seeks additional remittitur, thereby injecting an issue as to the amount of recovery into the appeal, can be justified. It would not be justified, and would be very unfair to defendant, to abolish the rule completely so as to permit plaintiff to raise the issue and obtain affirmative appellate relief on an issue not raised in that appeal by defendant appellant.

SEILER, Chief Justice,

concurring in result.

I agree that the $40,000 judgment should be affirmed. But, respectfully submitted, instead of limiting the modification of the rule in Webb v. Bench, 476 S.W.2d 570 (Mo.1972) and Carver v. Missouri-Kansas-Texas R.R., 362 Mo. 897, 245 S.W.2d 96 (1952) to the situation where the defendant, after obtaining a remittitur in the trial court, seeks further remittitur on appeal, I would do away with the rule altogether and permit the plaintiff to seek to have the jury verdict reinstated whenever defendant appeals, regardless of whether defendant seeks further remittitur on appeal. Otherwise defendant can take his appeal, secure in the knowledge that so long as he seeks no further remittitur on appeal, he can fare no worse than to have to pay the judgment as reduced by the remittitur in the trial court. This is not fair, because as well expressed in Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130, 135 (1963):

“ . . . The objective underlying [the practice of remittitur in lieu of having a new trial] is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party’s accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal . . . ”

Or as put by Judge Smith in his concurring opinion in Best v. Fred Weber Construction Co., 525 S.W.2d 102, 108-09 (Mo.App. 1975) from the plaintiff’s standpoint: “. . . Plaintiffs, on the other hand, have gained little or nothing from accepting the remittitur, which acceptance may well have been based upon a desire to receive the judgment expeditiously.”

The unfairness mentioned by the Wisconsin court and Judge Smith does not depend on whether defendant does or does not seek a further reduction in the appellate court. The unfairness is there either way. While I agree with Judge Finch that “[t]he remitti-tur practice was never intended to serve as a complete answer to all objections raised by a defendant in a motion for new trial after plaintiff has obtained a verdict”, this does not meet the unfairness issue. When a conditional remittitur is ordered, plaintiff has only a Hobson’s choice — take that or else acquiesce in a new trial (which is exactly what defendant has prayed for) or appeal on the ground that the trial court erred in reducing the verdict [(usually quite fruitless, as the standard of review applied to the question is that the reviewing court looks at the evidence in the light most favorable to the remittitur, which means the evidence favorable to defendant’s, not plaintiff’s position. See these cases for example where plaintiff refused to remit and was unsuccessful on appeal: Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 612-13 (1953); Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566, 569 (1951), and Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 431 (banc 1951)]. However, when defendant appeals after a conditional remittitur, defendant is given a much more attractive choice: the option of whether the remitti-tur issue is to be kept alive on appeal is entirely up to defendant, even though the action of the trial court in that regard was in his favor. No such option is necessary for justice to be done. Either with or without it, defendant is free to test, by appeal, other reasons why he contends he should have a new trial, such as failure to make a submissible case, error in instructions, error in evidentiary rulings or other trial errors. The option is an unjustified bonus.

With the question being squarely presented to us as to whether we should overrule the rule of the Carver and Webb cases, I would, as stated at the outset, do away with the rule completely and would permit plaintiff to raise the question on appeal of whether the verdict should be reinstated whenever the defendant takes an appeal after plaintiff has remitted, whether defendant seeks further reduction on appeal or not. I agree, however, with the principal opinion that in this particular case the trial court did not err in ordering a remittitur of $25,000.

      . Special damages:

      Emergency Admission and First
      Operation $ 400.00
      Hospital Bill (Sept., 1973) 796.70
      Hospital Bill (March, 1974) 1,046.75
      Treatment Following Operations 40.00
      Therapy 327.00
      $2,610.45
      Dr. Powell's Testimony as to Bills:
      1st operation $ 300.00
      2nd operation 150.00
      $ 450.00
      SALARY
      $925 per month salary
      $100 per month overtime
      7 weeks off work 1,618.00
      4 or 5 months lost overtime 500.00
      $2,118.00

      . At the trial much was made of the chain of custody of the bicycle. In the interim between the time James Keating picked up the bicycle in the weeds and placed it in the Means’ garage and the time of trial, a number of individuals handled the bicycle. First, a law student (Mr. Borgmann) working for Mr. Means’ family attorney (Mr. Spilker) picked up the bicycle from the garage and delivered it to the home of the family attorney — Mr. Spilker. Then the case was referred to Mr. Means’ trial attorneys, and the partner of trial counsel (Mr. Sommers) picked up the bicycle, and the “child carrier” was removed. The referred attorney delivered it to the home of Professor Diboll. At trial, each of these individuals was called as a witness, and each witness testified that the bicycle introduced in evidence was the same one they handled. In addition, each witness testified that no adjustments had been made while it was in their respective controls.

      . INSTRUCTION NO. 2:
      "Your verdict must be for plaintiff if you believe:
      First, defendant sold the bicycle, and Second, the bicycle, as sold, was defective and therefore dangerous when put to a use reasonably anticipated, and
      Third, when plaintiff used the bicycle it was in substantially the same condition as when sold by the defendant, and
      Fourth, plaintiff used the bicycle in a manner reasonably anticipated and was damaged as a direct result of the bicycle being defective. MAI 25.04 Modified, Offered by Plaintiff.”

      . MAI 25.04:
      “Your verdict must be for plaintiff if you believe:
      First, defendant manufactured the (describe article), and
      Second, the (describe article), as manufactured, was defective and therefore dangerous when put to a use reasonably anticipated, and
      Third, when plaintiff bought the (describe article) it was in substantially the same condition as when manufactured, and
      Fourth, plaintiff used the (describe article) in a manner reasonably anticipated and was damaged as a direct result of the (describe article) being defective.”

      . “If the evidence supports it on re-trial, an instruction in substantially the following form should be used:
      Your verdict must be for plaintiff if you believe:
      First, plaintiff was (here insert statutory qualification required to bring wrongful death action), and
      Second, defendant sold the sump pump, and
      Third, the sump pump, as sold by defendant, was defective and therefore dangerous when put to a use reasonably anticipated, and
      Fourth, when Harold Keener used the sump pump it was in substantially the same condition as when sold by defendant, and
      Fifth, Harold Keener used the sump pump in a manner reasonably anticipated and, as a direct result of the sump pump being defective, died.
      [unless you believe plaintiff is not entitled to recover by reason of Instruction No.-(here insert number of affirmative defense instruction)]. Cf. verdict-directing instructions MAI 20.01 and MAI 25.04, published since the trial of this case.” Keener v. Dayton Electric Manufacturing Company, supra, 445 S.W.2d at 366.

      . Parenthetically, we note that Sears was granted leave to amend its answer at the close of plaintiff’s case to allow for the affirmative defenses of contributory negligence and contributory fault. The accepted rule is that contributory negligence is not a defense in a strict liability case. See Lindsay v. McDonnell Douglas Aircraft, Corporation, 460 F.2d 631, 636 (8th Cir. 1972). Rather, in order to relieve the defendant of liability, it must be shown that plaintiff discovered the defect in the product and was aware of the danger, but nevertheless proceeded unreasonably to make use of the product and was injured by it. This is the affirmative defense of contributory fault. Keener v. Dayton Electric Manufacturing Company, supra, 445 S.W.2d at 365.

      . Gray v. Williams, supra, 289 S.W.2d at 467— plaintiff’s counsel in voir dire stated to juror “ ‘your company is not in this case’ ” — not reversible error; Paulsen v. Butcher, 492 S.W.2d 186 (Mo.App. 1973) — plaintiff in an unresponsive answer stated that defendant stayed at the scene and called his insurance company; Beckett v. Kiepe, 369 S.W.2d 258, 263 (Mo.App. 1963) — plaintiff stated that defendant said, “ ‘Well, I wouldn’t worry about that. He said, “I’ve got insurance with the Fidelity Insurance Company.” He told that to me.’ Vesper v. Ashton, 233 Mo.App. 204, 118 S.W.2d 84, 89 (1938); Bridgeforth v. Proffitt, 490 S.W.2d 416, 426 (Mo.App.1973); Conrad v. Twin Oaks, Inc., 344 S.W.2d 286, 288 (Mo.App.1961); Barger v. Green, 255 S.W.2d 127, 129-130 (Mo.App. 1953).

      . In recent years the extreme growth of inflation in this country has caused the courts of this state to approve larger verdicts than in the past and have seldom had to resort to the use of remittiturs. Worley v. Tucker Nevils, Inc., supra, 503 S.W.2d at 423-424.

      . Rule 84.19: “If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper,”


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Wesley John WELLS, Appellant.
    No. KCD28478.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14, 1977.
    Richard J. Yocum, Asst. Public Defender, 5th Judicial Circuit, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted by a jury of burglary and stealing and sentenced by the court, as a second offender, to concurrent sentences of five years for each offense.

There is no issue that the evidence was not sufficient for conviction, so we recite only that testimony which bears on the contentions raised on this appeal.

There was evidence that when Wayne Wilson left his residence that morning the windows and doors were closed and the contents of his home were in order. When he returned that evening, the door was unlocked and his property was in disarray. Among the belongings missing were a medical identification card for his wife upon which his signature appeared [Exhibit 1], his social security card [Exhibit 2] and a .38 caliber revolver [Exhibit 3]. These items of property were later found in the possession of the defendant during an arrest for a different offense and resulted in his conviction for burglary and stealing. These events are explained by the testimony of McKinley, Butner and Darenkamp, all members of the Atchison, Kansas, police force.

On the evening following the burglary, Officer McKinley [then off duty] was on a visit at the home of a friend in Atchison, Kansas. Among those present was the defendant who posed as Jim Wilson. McKinley and the defendant left for a store to replenish the beer supply and stopped off at the home of a neighbor. There, joined by other guests, they shared beer and badinage. During the course of casual conversation, the defendant recounted his days in the service and other matters — one subject of this appeal — which we later relate in appropriate detail.

When the defendant left McKinley he appeared to be somewhat drunk, so the officer suggested to him that he not drive because of the danger to children in the neighborhood. Also, en route to the liquor store, the defendant had shown McKinley a revolver under the car seat. This prompted him, about six-thirty that evening, to call the Atchison Police Department and inform Sgt. Ryan, the officer in charge, that the defendant was operating a described car bearing a described numbered license plate while intoxicated and that he was then in the possession of a concealed weapon.

The dispatch of this information was received over the police radio by Officer But-ner at about 8:15 that evening, and shortly thereafter he was notified the car was headed in the direction of the Missouri River bridge in Atchison. The vehicle was detected as it turned onto a parking lot in the vicinity, and so the police car followed. As the defendant stepped away from his vehicle, Officer Butner confronted him and asked for driver identification. The defendant could not produce one, so Officer Darenkamp [who had joined them by that time] asked for other identification. The defendant complied by tendering an insurance identification card issued by the International Brotherhood of Teamsters in the name of Wayne E. Wilson [Exhibit 1] and a social security card with the name Wayne E. Wilson. [Exhibit 2] The defendant was given a traffic citation for operation of a motor vehicle without a license and the defendant acknowledged the summons with the writing Wayne E. Wilson. Officer Dar-enkamp then requested and received his permission to look into the car. The officer opened the front door and saw a revolver on the floor in plain view. The pistol was taken into custody, the serial number recorded, and at the trial identified by the officer as the weapon he had taken from the automobile.

The first point of error relates to the narration into evidence of a portion of the conversation by the defendant to Officer McKinley and others in their company:

A. [McKinley] . . Everybody was carrying on a conversation at that time.
Q. What occurred then?
A. Well, during that time he was referring to that he was in the service before and had got kicked out, or something. He mentioned about Colorado, and he was talking about armed robbery. .

The counsel for defendant made the objection that the testimony was about an armed robbery, a crime not charged. He moved the jury be instructed to disregard that answer and also for a mistrial. The court observed that the testimony did not convey the meaning that the defendant did an armed robbery. The court thereupon instructed the jury to disregard the reference to the armed robbery but denied the mistrial. The defendant contends that nothing short of mistrial was sufficiently remedial so that the ruling of the court was error.

It is evident from the colloquy between court and counsel after the objection, that the purpose of the question which elicited the response was to show that the defendant had displayed a gun to the witness, the same weapon taken from the burglary for which the defendant stood accused. The witness, instead, began his response by relating the conversation among the defendant and the other social guests which rambled from one subject to another. Taken in this undoubted context, the testimony of a Colorado armed robbery came in by inadvertence. The mention was voluntary and casual, without hint of connivance or intention to do prejudice. Such errors cannot always be avoided. The remedy lies with the trial court and the exercise of a discretion which evaluates the entire state of the trial to determine whether something short of a mistrial will overcome the error. State v. McClain, 531 S.W.2d 40, 44 (Mo.App. 1975). The record discloses no basis for disagreement that the trial court acted wisely and effectively by his instruction to the jury to disregard the reference to armed robbery and by the denial of mistrial.

The second point contends that Exhibits 1, 2 and 3, the identification cards and revolver, were taken as the result of an unlawful seizure of the defendant, and so the conviction which rests on that evidence cannot stand. The precise contention made on this appeal is that the offenses reported by Officer McKinley through the dispatcher to Officer Butner — carrying a concealed weapon [§ 21-4201(l)(d) and (4), KSA, 1974 Supp.] and driving while intoxicated [§ 8-1567, KSA, 1974 Supp.] — were misdemeanors actionable by Officer McKinley because committed in his presence but beyond the authority of Officer Butner who knew of it only by report. Thus, the contention concludes, the seizure of the defendant by Officer Butner was without authority of law and the search which followed yielded illegal evidence.

The defendant concedes this ground for objection was not made at trial or otherwise preserved by the pre-trial procedure defined in § 542.296 Laws 1974, p. 922 § 8, but nevertheless requests review of the question under plain error Rule 27.20(c). We grant review because the subject of his contention is a right guaranteed under the Fourth and Fourteenth Amendments of the Federal Constitution and because, despite lack of compliance with the requirements of orderly State procedures, the record before us sufficiently defines the contention for our informed determination. State v. Dayton, 535 S.W.2d 469, 475[l-5] (Mo.App. 1976). It is evident as well that the evidence revealed by the seizure was the only basis for conviction, and if that evidence was incompetent as defendant insists, imprisonment was without proof of a crime, that is — without due process of law, and subject to review under Rule 27.20(c). State v. Sockel, 490 S.W.2d 336, 339[3, 4] (Mo.App.1973).

The argument of the defendant misconceives the law of Kansas where the act of seizure occurred and which governs the validity of that procedure. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The statutory law of Kansas [§ 22-2401, KSA, 1974 Supp.] clearly authorizes a law enforcement officer to arrest a person not only when

(d) Any crime has been or is being committed by such person in his view.

But also when the officer

(c) . . . has probable cause to believe that the person is committing or has committed
(2) A misdemeanor .
(Emphasis supplied.)

Whatever authority may have been wielded by In re Kellam, 55 Kan. 700, 41 P. 960 (1895) as the earlier rule in Kansas — that arrest for misdemeanor may be only for conduct committed within the presence and sight of the officer — has been modified by the recent enactment of § 22-2401. This section has been construed by the Kansas Supreme Court to justify an arrest without warrant by an officer who has not observed a misdemeanor where his information reliably shows exigent circumstances surround the criminal conduct. State v. Schur, 217 Kan. 741, 538 P.2d 689, 695[10, 12] (1975). In this case, the danger presented by the possession of a concealed weapon in a moving vehicle by an intoxicated driver constitute such circumstances and render § 22-2401(c)(2) operative rather than the rule of In re Kellam, supra.

There can be little doubt that Officer McKinley, although not on active duty, was empowered by his office to make the arrest of the defendant for the concealment of the weapon or for the driving offense [Fisher, Laws of Arrest, (1967) § 21] even though prudence may have prompted reference of the offenses to other officers armed and better equipped for that purpose. The description of these misdemeanors committed in his view to other officers was a reliable source of probable cause for their interception of the defendant and his subsequent arrest. It follows, then, that the request by Officer Butner for identification which yielded the medical and social security cards [Exhibits 1 and 2] was a valid investigation upon probable cause and these items were properly used as evidence on the trial for burglary and stealing. State v. McCoy, 207 Kan. 87, 483 P.2d 489 (1971).

The other item of property [Exhibit 2 the revolver] used to convict the defendant of burglary and stealing was taken from him only after he had granted Officer Darenkamp permission to open the car and search. The revolver was found lying open to- view on the floor by the front seat of. the vehicle. A consensual search did not violate the constitutional provisions against unreasonable searches and seizures. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The defendant argues, nevertheless, that although he gave permission to the search of his automobile, the consent was not voluntary because he was not informed he had a right to refuse, his consent was coerced— or at least his state of mind was vulnerable to such suggestion, and he was intoxicated and so his voluntary conduct was impaired. Schneckloth treats the same question and holds [1. c. 248, 93 S.Ct. at 2059]:

Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

The defendant did not challenge the competency of this evidence by pre-trial motion or by those other procedures for an orderly determination of the validity of the search and seizure established by law for his protection. § 542.296, Rule 33.01. There is no gauge for his state of mind at the time of his consent to Officer Darenkamp other than that which the record describes. The testimony of the officer, although somewhat equivocal, establishes that he informed the defendant he did not have to consent to the search, and that consent nonetheless was given. There is no other evidence on the issue. There is simply nothing which sustains the claim of involuntary accession.

This contention, in any event, is quite beside the point. A search incident to a lawful arrest — that is, upon probable cause — requires no consent; it is an exercise of duty within the constitutional principles. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The Kansas statute enables a law enforcement officer to arrest upon probable cause that a person has committed a misdemeanor. That probable cause was established by the information from Officer McKinley to the other officers who intercepted the defendant and conducted the search that the defendant was in the commission of two crimes, operation of a vehicle while intoxicated and concealment of a weapon. It was for precisely the purpose to seize the concealed weapon that the request to search the automobile was made — according to the testimony of Officer Darenkamp. It can be of no consequence that by the time search was made, the weapon was no longer concealed, but was in open view. At the time the information was conveyed, the officer witnessed an offense, and so probable cause was established.

The point is without merit.

The conviction is affirmed.

All concur.


author: DIXON, Judge.

text:
    Roger HAGEN et al., Petitioners-Appellants, v. PERRYVILLE BOARD OF ALDERMEN, Respondents.
    No. KCD 28212.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.
    Lawrence J. Fleming, London & Green-berg, St. Louis, for petitioners-appellants.
    Alex Bartlett, Hendren & Andrae, Jefferson City, for respondents.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

Petitioners, police officers of the town of Perryville, Missouri, appeal the dismissal of their petition for administrative review. After suspension by the Chief of Police and approval by the Mayor, the petitioners requested and were afforded a hearing before the Perryville Board of Aldermen. The hearing was attended by the Mayor, five of the six members of the Perryville Board of Aldermen, the three suspended officers and their attorney, the city attorney, an attorney advising the Mayor, Ray Pourney, the City Marshal and Chief of Police, and his attorney. Testimony was taken from witnesses at this hearing and the Perryville Board of Aldermen later made findings and rulings. These findings and the Board’s ruling that the officers be suspended without pay for 35 days are supported by substantial evidence.

On November 19, 1974, Officers Hagan, Brace, and Zahner filed a petition for administrative review (§ 536.010 et seq. RSMo 1969) in the Circuit Court of Cole County, Missouri praying that the findings and rulings of the Perryville Board of Aldermen be vacated, that the petitioners be compensated for the pay forfeited, that the records of this disciplinary action be expunged from the personnel file and that the Perryville Board of Aldermen be ordered to pay a reasonable sum for the expenses incurred in connection with the action. The respondents, the Perryville Board of Aldermen, moved the court to dismiss the action, and the court dismissed the action on the ground that § 536.110, RSMo 1969, required that copies of the petition be mailed to the agency by registered mail and that proof of such delivery or mailing be filed in the case but that the petition filed in the court was not accompanied by proof of delivery or mailing as required by the statute. Petitioners perfected this appeal and claimed that the trial court erred in dismissing their petition on the ground stated.

Both parties have proceeded with this cause under the provisions of the Administrative Review Act (§ 536.010 et seq., RSMo 1969) and have consistently treated it as a “contested case” under that Act. It will be reviewed in that posture. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 439 S.W.2d 1 (Mo.App.1969); and see State ex rel. Police Retirement System of the City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W .2d 68 (banc 1949).

The trial court’s ruling will be upheld if it can be sustained on any reasonable theory, and the issue of the proof of the service of the petition need not be reached or decided. State ex rel. State Highway Commission v. Nickerson, 539 S.W.2d 771 (Mo.App.1976); Simpson v. Spellman, 522 S.W.2d 615 (Mo.App.1975). Respondents have asserted that the Circuit Court of Cole County never acquired jurisdiction over the petitioners’ cause of action because the petition for administrative review was filed more than thirty days after the delivery of the notice of the Perryville Board of Aldermen’s final decision.

Section 536.090, RSMo 1969, provides in part: “Immediately upon deciding any contested case the agency shall give written notice of its decision by delivering or mailing such notice to each party, or his attorney of record, . . . .” (Emphasis added). In the brief filed in this court, petitioners’ attorney states, “The Board’s Findings were delivered to Appellant’s attorney in St. Louis on October 19,1974, . . . This statement is taken as true for purposes of this appeal. The transcript does not reveal the manner of service of the Board’s final decision but the issue of the timeliness of filing the petition for review was raised in the City’s motion to dismiss. Appellant did not present any proof of a service date other than as set forth in his brief. Appellant also approved the transcript with no reference to the manner and date of service.

Section 536.110, RSMo 1969, provides in part: “1. Proceedings for review may be instituted by filing a petition in the circuit court . . . within thirty days after the mailing or delivery of the notice of the agency’s final decision.” Petitioners filed their petition for review on November 19, 1974.

Rule 44.01 provides in part: “(a) Computation. In computing any period of time prescribed or allowed by these rules, . or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday . . . ” November 19,1974, was a Tuesday. An appellate court takes judicial notice of the calendar and date on which a particular day of the week fell. Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1 (1910); Kuczma v. Droszkowski, 243 Mo. 57, 147 S.W. 1000 (1912).

Having received notice of the agency’s final decision on October 19,1974, petitioners seeking review would have had to file their petition for review on or before November 18, 1974. The filing of the petition for review on November 19, 1974, was filed on the 31st day after its delivery. Such a filing was not timely on the transcript and record here presented, and this constituted a jurisdictional defect which could not be waived. Lafayette Federal Savings & Loan Association of Greater St. Louis v. Koontz, 516 S.W .2d 502 (Mo.App.1974); Moore v. Damos, 489 S.W.2d 465 (Mo.App.1972); State Board of Registration for the Healing Arts v. Masters, 512 S.W.2d 150 (Mo.App.1974). The trial court, being without jurisdiction over the matter, was bound to dismiss the action and properly did so.

The judgment is affirmed.

All concur.

      . Ace Mining & Milling Co. v. R. U. Mining Co., 247 S.W. 172 (Mo.1922); State v. Ray, 225 S.W. 969 (Mo. 1920); Baker v. Baker, 274 S.W.2d 322 (Mo.App.1954); Davis v. Davis, 354 S.W.2d 526, 531 (Mo.App.1962).


author: ALDEN A. STOCKARD, Special Judge.

text:
    John SCKORHOD and Mary Ann McGivem, Appellants, v. Captain Dale STAFFORD, Respondent.
    No. 37280.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 1, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14,1977.

      Robert D. Benjamin, American Civil Liberties Union of Eastern Missouri, St. Louis, Francis L. Ruppert, American Civil Liberties Union of Eastern Missouri, Clayton, for appellants.
    F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary, Jeackel, Keaney & Brown, St. Louis, J. H. Cunningham, Jr., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Plaintiffs have appealed from the judgment of the Circuit Court of St. Louis County dismissing their petition for a declaratory judgment and an injunction.

Appellants alleged that on March 6,1974, they and others, totaling about 20 persons, “peaceably assembled and gathered on a public street” in front of or near the home of the president of People’s Liquor, Inc. doing business as 905 Liquor Stores, for the purpose of expressing their “individual and collective feeling, thought, and support” of certain “ideas and beliefs,” not otherwise described, presented by the United Farm Workers of America in opposition to “certain principles and practices,” not otherwise described, of 905 Liquor Stores. They alleged that the method of expression was in the form of singing and the “disseminating and leafletting” of literature, and that the purpose and means of appellants’ expression are “protected rights” provided by the First Amendment of the Constitution of the United States and the Constitution of Missouri insuring freedom of speech and assembly. Appellants then alleged that respondent, as Chief of Police of Ladue, Missouri, and other police officers under his authority and command “were present when petitioners arrived * * * and remained throughout the assembly,” that they “constantly took photographs and video-taped petitioners and others present” throughout the demonstration, and that the actions of respondent and his agents “were intended and calculated to [and did] harass and intimidate petitioners and to otherwise discourage and chill the petitioners from the exercise of their constitutional rights of free speech and assembly.” Appellants further alleged “on information and belief” that “identifying information” concerning appellants has been “disseminated and sent by respondent through a national data collection and/or computer network” to participating local, state, and federal law enforcement agencies and that the photographs and videotapes were taken for the express purpose of “present and future criminal identification” and are “designed to subject [appellants] to the immediate and looming fear of retaliation or reprisal, unwarranted suspicion and unjustified aspersions cast upon their integrity by local or foreign police officers.” Finally, appellant alleged that the “purported policy” of respondent to photograph and videotape all demonstrations “has been applied and enforced upon only petitioners” and they are thereby denied equal protection under the law and such actions comprise “an invidious and capricious discrimination” against appellants.

The prayer for relief was for a declaratory judgment that (1) the “above stated actions of respondent [are] unlawful and a violation of the civil liberties” of appellants; and (2) that a “mandatory and permanent injunction” be issued to (a) “cause respondent to cease and desist now and forever from directing, authorizing or doing of the * * * activity complained of,” (b) “compel respondent to turn over to petitioners any and all photographs, negatives of photographs, videotapes, sound tape recordings, and all information concerning petitioners taken as a fruit of respondent’s * * * activity complained of” and (c) compel respondent to “totally and permanently” expunge from any local or national law enforcement computer or data storage system any record of appellants’ activity as described in the petition.

We first note that there is no allegation, aside from the constitutional challenge, that respondent was not authorized as Chief of the Police Department of the City of Ladue to take the action alleged, or that the taking of pictures and the use of videotape in anyway interfered with appellants in their attempt to express their “individual and collective feeling [and] thought.”

Appellants contend that “police officers had no authority to take photographs, collect personal data or record the actions of citizens where police have no cause to believe that illegal acts are occurring or will occur.” This theory is, in substance, what has been termed “The Total Privacy Concept.”

Appellants summarize their contention as follows: “The constitutional objection to respondent’s photographic surveillance is that it puts a very real burden on Appellants’ exercise of their First Amendment rights,” and they then asser1 that assuming respondent has the authority to conduct photographic surveillance, “the courts may not ‘balance’ away First Amendment rights in response to a claim of governmental necessity * * * [and] First Amendment activity cannot be curtailed even to facilitate the regulation of conduct within the sphere of legitimate governmental concern.” We shall mention here that neither we nor the United States Supreme Court agrees with the latter assertion of appellants. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), it was stated that “the prohibition on encroachment of First Amendment protections is not an absolute. Restraints are permitted for appropriate reasons.”

We also note that the demonstration conducted by appellants was held on a public street, and it was conducted for the express purpose of obtaining publicity. Unquestionably, any private citizen or member of the news media would have had the right to take pictures of the demonstrators, and then retain those pictures for future reference and disseminate copies to others. Appellants necessarily contend that those activities, permissible by others, should not be permissible when done by members of the police.

While this case is one of first impression in the appellate courts of this State, it is not without precedent in other jurisdictions.

In Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), the complainants alleged that the army’s surveillance of lawful and peaceful citizen political activity constituted a chilling effect on their First Amendment rights. The court likened the activities of the army in the circumstances to that of a police force, and stated that the conduct “consisted essentially of the collection of information about public activities that were thought to have at least some potential for civil disorder, the reporting of that information to Army Intelligence headquarters * * *, the dissemination of [those] reports from headquarters to major Army posts around the country, and the storage of the reported information in a computer data bank * * *.” The court defined the issue as “ * * * whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid government purpose.”

The Supreme Court ruled that “to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show he has sustained or is immediately in danger of sustaining a direct injury as the result of that action * * The court added that the claim “simply stated, is that the [the complainants in that case] disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs * * In commenting on the alleged “chilling” effect, the court stated that it “may perhaps be seen as arising from [complainants’] very perception of the system as inappropriate to the Army’s role under our form of government, or as arising from [their] belief that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from [complainants’] less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to [complainants].” It then held that “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or threat of specific future harm; * *

In Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (N.J.1970), the complainants sought a declaratory judgment that their First Amendment rights of speech and association were violated by the preparation and dissemination to local law enforcement officials of a memorandum entitled “Civil Disorders — The Role of Local, County and State Government.” After reviewing the recent history of severe civil disorder in that state, the court commented that the “police function is pervasive,” and is not limited to the detection of past criminal events, but of at least equal importance is the “responsibility to prevent crime,” and that in the then current scene the preventive role required an awareness of group tensions and preparations to head off disasters as well as to deal with them if they appear. The court commented that “To that end the police must know what forces exist, what groups or organizations could be enmeshed in public disorders. * * * The police interest is in the explosive possibilities and not in the merits of the colliding philosophies.” The court further declared: “Here we are dealing with the critical power of government to gather intelligence to enable it to satisfy the very reason for its being — to protect the individual in his person and things. The question in the case is not merely whether there are some individuals who might be ‘chilled’ in their speech and associations by reason of the police activity here involved. Rather the critical question is whether that activity is legal and although the amount of ‘chill’ might in a given case be relevant to the issue of legality, the fact of ‘chill’ is not itself pivotal.” The court then concluded that “The First Amendment itself would be meaningless if there were no constituted authority to protect the individual from suppression by others who disapprove of him or the company he keeps. Hence the First Amendment rights must be weighed against the competing interests of the citizen. If there is no intent to control the content of speech an overriding public need may be met even though the measure adopted to that end operates incidentally to limit the unfettered exercise of the First Amendment right. * * * If a properly drawn measure is within the power of government, it is no objection that the exercise of speech or association is thereby ‘chilled.’ ”

Appellants allege no act of respondent at the time of the demonstration except that he took or caused to be taken photographs, or pictures by use of videotape, of appellants while they were in a public place engaging in activity which had as its purpose to attract as much attention as possible. This was not illegal or improper conduct on the part of the police, and if a “chill” resulted, as stated in Fifth Avenue Place Parade Committee v. Gray, 480 F.2d 326 (2nd Cir. 1973), “The shivering * * * was self-induced.” There is no allegation that there was any interference with the demonstration except the conclusionary statements that the acts harassed, discouraged and chilled appellants. But as stated in Laird v. Tatum, supra, mere allegations of a subjective “chill” are not an adequate substitute for the claim of specific harm or threat of specific future harm. See also Donohoe v. Duling, 465 F.2d 196 (4th Cir. 1972). Also, as ruled in Anderson v. Sills, supra, it is immaterial that some “chill” resulted from the presence of the police and their lawful activity. The presence of police officers walking their “beat” or riding in “prowl ears” undoubtedly “chill” some who would otherwise speak or act more freely. Surveillance by the police, without more, of public meetings is a proper police function and has been sustained by the courts. United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969); and United States v. McLeod, 385 F.2d 734 (5th Cir. 1967). See also Socialist Workers Party v. Attorney General, 419 U.S. 1314, 95 S.Ct. 425, 42 L.Ed.2d 627 (1974). It is basic that the executive branch may gather whatever information it reasonably believes to be necessary to enable it to perform the police roles, detectional and preventive, and it is not the prerogative of the judiciary at the behest of the super-sensitive, or those who in good faith may have a different perception of the role of the police, to sit in judgment of each administrative decision made by those trained in their highly specialized field. The judiciary may properly interfere only in the event of illegal conduct or gross arbitrariness, and there are no facts alleged from which either may be found in this case.

Appellants next assert that “police officers have no authority to retain and/or disseminate or share photographs, records, or any personal identifying information about citizens when that data pertains to no threatened or actual illegal activity or acts and where there has been no arrest effected.”

Most of appellants’ argument is based on the assumption that the taking of photographs and the making of videotapes were unlawful, but we have held otherwise. However, they do contend that even if this court should rule that respondent “had the authority to act as he has,” it does not follow that he has authority to “retain those records.” For an excellent discussion of the right of police officials to retain identification records of persons, see Walker v. Lamb, 254 A.2d 265 (Del.1969), and particularly the comment that “this is a field in which the police have broad discretionary powers which will not be disturbed by the courts save under some exceptional circumstances.” Appellants have not alleged facts from which “exceptional circumstances” could be found.

Reference is made by appellant to § 610.100, Laws of Missouri 1973, p. 502, known as the “Sunshine Law.” That statute provides that “If [a] person is arrested and not charged with an offense against the law within thirty days of his arrest, all records of the arrest and of any detention or confinement incident thereto shall thereafter be closed records to all persons except the person arrested.” Further provision is made for records to be “expunged” in certain areas when no conviction is had within one year. This statute has no relevance to the issue before us. There were no arrests made in this case. Appellants argue, however, that by analogy the courts should grant the relief requested. That argument might be appropriate to the legislative branch of government but it affords no basis for judicial relief.

At most, appellants assert that the retention, and possible future dissemination of the photographs and videotapes, would “chill” the exercise of their constitutional rights of free speech and assembly. But, by reference again to Laird v. Tatum, supra, “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Appellants allege no more than that the photographs and videotapes were taken for the express purpose of “present and future criminal identification,” a proper use of them, and that they “subject [appellants] to the immediate and looming fear of retaliation or reprisal * * suspicion and unjustified aspersions.” These are no more than conclusionary statements which are speculative as to future occurrences. In Laird v. Tatum, supra, the court reviewed certain cases in which it was held that governmental action infringed First Amendment rights, but it added that those “decisions have in no way eroded the ‘established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action * * ” Appellants’ petition is deficient in this respect.

There is no point in appellants’ brief pertaining to the claim of denial of equal protection. We consider it abandoned.

Judgment is affirmed.

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


author: WEIER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Johnny HURD, Defendant-Appellant.
    No. 37732.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 1, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14,1977.

      Scott Richardson, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Judge.

By its verdict, a jury found defendant Johnny Hurd guilty of murder in the second degree. The jury was unable to agree upon the punishment and the judge sentenced the defendant to thirty-five years in the custody of the Department of Corrections. From this judgment and sentence he appeals and we affirm.

Two eyewitnesses identified the defendant as having participated in the robbery and murder of the victim Thomas J. Murphy. Defendant assisted another man in grabbing Murphy, throwing him to the ground and ripping off his back pocket. The other man then shot Murphy who died thirty days later as a result of his wounds.

At the opening of the voir dire examination, after a few introductory remarks and a question as to whether any of the members of the panel knew either of the lawyers or the defendant in the case, the trial judge made this statement:

Ladies and gentlemen of the jury panel, as the Judge I know nothing about the facts in this case. I do know from the Indictment that is filed that the defendant is charged with the murder of Thomas J. Murphy. Thomas J. Murphy was, prior to his retirement, a Major in the Police Department of the City of St. Louis. He was not on active duty nor was he an active member of the Police Department at the time of this incident on August 31st of 1974.

Defendant’s attorney moved for mistrial and asked that the jury panel be discharged on the grounds that the remarks made were prejudicial to the defendant. The court thereupon explained to defendant’s attorney and State’s attorney out of the hearing of the jury that he purposely introduced the victim as a former Major on the Police Force because he had served with distinction for many years and was well-known by virtue of that fact. He also stated that the victim was a member of a prominent family in the City of St. Louis, his brother being a circuit judge, another brother was a jury commissioner in the City of St. Louis, and a nephew was a prominent lawyer in the City. The judge indicated that he thought that both the State and defendant were entitled to a fair and impartial trial and that the defendant’s attorney was entitled to know if any prospective member of the jury was in any way identified with the Murphy family. The motion was denied.

The issue raised for our determination on appeal is whether the statement of the court made to the jury panel at the beginning of the voir dire examination was so improper and prejudicial that it was impossible for the defendant to receive a fair trial.

Generally a trial court has broad discretion in controlling voir dire examination and its rulings will not be disturbed unless they clearly indicate abuse of this discretion. State v. Mudgett, 531 S.W.2d 275, 279[2] (Mo. banc 1975); State v. Yowell, 513 S.W.2d 397,403[4] (Mo. banc 1974). In the exercise of this discretion a court may of its own motion examine the veniremen. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079, 1082[9] (1931). Of course if any remark or comment of the court is of such a nature as would reasonably intend to prejudice the minds of the jury against the defendant and thereby deny him a fair and impartial trial, a proper motion for mistrial should be granted. State v. Dixon, 463 S.W.2d 783, 785[1] (Mo.1971). When statements or comments by the trial court are challenged on appeal, certain standards may be used to determine whether the defendant’s cause has been prejudiced during any stage of the trial. The trial court at all times must maintain a neutral position and (1) should not utter an expression of feeling or partiality to the detriment of the defendant, State v. Tate, 468 S.W.2d 646, 648[1] (Mo.1971); (2) avoid any remark which might be construed as indicating a belief on the part of the judge as to the guilt of the defendant, State v. Gastino, 264 S.W.2d 372, 375[3] (Mo.1954); and (3) the court should not demonstrate hostility toward the defendant, State v. Hill, 518 S.W.2d 682, 685[8] (Mo.App.1975).

The question may then be asked as to whether this statement of the court to the jury panel setting out the identification of the victim was such that it indicated the court had abandoned its position of neutrality and was demonstrating bias and prejudice toward the defendant. It cannot logically be said that identification of the deceased victim reflects upon the defendant’s guilt. Furthermore, the statement by the court if propounded by the State on voir dire would have been proper. Obviously the name Thomas Murphy is held by many people. To identify the victim with his former occupation could materially assist the members of the panel in determining whether they knew the victim either in a personal or business relationship and thereby produce intelligent answers to questions as to their qualifications to sit as jurors. It would not appear that the statement itself indicated any feeling on the part of the judge so as to demonstrate a belief in guilt of the defendant nor a hostile attitude toward him.

Under our current practice as a part of MAI-CR 1.02, the court is required to inform the panel of the offense and the name of the victim. Rule 20.02. It must be noted that the contentions here made were not referenced to the form of the statement by the judge but rather to the prejudicial effect of the words used and the information conveyed. We have concluded that the statement of the court was not prejudicial. The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.