author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Leo W. BALLARD, Appellant.
    No. KCD 28858.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied June 27, 1977.
    Application to Transfer Denied Sept. 12, 1977.
    Joe Hamilton Scott, Public Defender, St. Joseph, for appellant. ,
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

Defendant appeals from conviction by jury of burglary in the first degree, under Count I of the information, and of. felonious assault with malice aforethought, under Count II of the information. Applying the second offender act, the trial court assessed the punishment which it fixed at ten years imprisonment on the burglary and thirty-five years on the assault.

The events in question occurred at the home of Gary and Mary Huffman on the night of August 6, 1975. The house had a ground level containing bedrooms and other living quarters and a lower level consisting of basement, recreation room and garage. The upstairs portion had a front door and a back door. In the early evening hours of August 6, the front door was closed and locked and the back door was closed but unlocked. The lower level had but one door, and at all times until at least 11:00 p. m., that door was both closed and locked. The windows were all closed.

About 8:00 p. m. that evening, Mary went out to a convenience store approximately 1 mile distant from the house. She did not return until sometime between 11:00 and 11:30 p. m., entering from the rear door on the ground level. During the time she was gone, Gary watched television in the recreation room. When Mary returned, she remained upstairs for a few minutes and then joined Gary downstairs. He asked her what took her so long, but she did not answer the question. He wanted to stay up and finish watching a movie, but she turned off the television set and took him by the hand and led him to the bedroom upstairs. He undressed totally and she undressed partially; she then kissed him and rolled over and started to go to sleep. He was confused about what was going on, lit a cigarette and went over to the window to observe a lightning storm.

At that time he heard a cough from another part of the house. Mary pretended to cough in unison with the other cough, but was Unable to do so. Next Gary sensed a shadow moving down the hall. He slipped on his bathing suit and went to investigate. He walked down the hall to the adjoining bedroom, flipped on the light switch, and was greeted by a white female holding a rifle. When he turned around he was confronted by defendant, who was brandishing a baseball bat. He motioned Gary to go back into the original bedroom where Mary was sitting on the side of the bed.

Defendant then proceeded to start hitting Gary with the baseball bat, but Gary was able to block the blows and eventually started swinging his fists at defendant, causing defendant to retreat. Just as he was getting the better of defendant, the female intruder shot Gary with the rifle, and he was then shot by the female a second time. Fearing for his life, he decided to play dead but he could not control his respiration. The intruders continued to beat him and he was finally able to lay still. Then he heard the female say to his wife, “Mary, I’m sorry, but he discovered us before we were ready.”

Gary attempted to get up and reach the telephone, but defendant saw him and beat him some more. The female then shot him again. He once again played dead. The intruders then departed through the basement door, after which Gary crawled to the telephone and summoned the police. Shortly thereafter he received an outside phone call from his wife Mary inquiring how he was; he responded by cursing her.

Jerry Copeland was one of the St. Joseph policemen who about 11:30 p. m. responded to the call concerning this assault. As he arrived on the scene, he observed two suspects running, one of whom was carrying a rifle. He and his partner pursued them, but were only able to capture the female suspect, while the male suspect escaped. The female was later identified as Bonnie Ballard, defendant’s wife. Later in the early hours of the following morning at approximately 2:15 a. m., defendant arrived at the police station and attempted to post bond for Bonnie. He was told that no bond had been set, and then he himself was arrested by Copeland.

Gary Huffman did not know the Ballards, and much less did he invite them inside his home. He testified that he kept no guns nor bats within the home. The whole affray occurred, according to Gary, approximately 15 to 20 minutes after his wife arrived home from her two hour absence. Gary further testified that at the time of the assault it crossed his mind, “that Mary had set this up.” Gary did not see his wife again after the assault until November 28, 1975, when she was about to reenter the psychiatric ward at Methodist Hospital. She resumed hospitalization for a period from early December, 1975, until her Medicaid ran out and then she again entered the hospital in January, 1976, when she regained eligibility for Medicaid.

Defendant raises two points on appeal: 1) that the trial court erred in failing to acquit on the burglary charge, for the reason that the evidence was insufficient to prove that defendant broke into the Huffman house; and 2) that the court erred in excluding certain evidence respecting the voluntary nature of defendant’s turning himself in to the police. The second of these points lacks merit, but the first point is valid and requires reversal of the burglary conviction.

I.

In burglary prosecutions, proof of an illegal entry is commonly made by showing that all windows and doors were secured at a time closely preceding the entry. When proof is made that all entrances have been locked prior to the entry and there is no evidence to support any subsequent legitimate reopening of any of the entrances, then there is no reasonable way in which the burglar can explain his presence in the building and an inference logically arises that he made his entrance in one of the illegal ways proscribed by the burglary statute. That form of proof was attempted by the State in this case by the testimony that all doors and windows had been securely closed in the early evening hours of the night in question.

However, the evidence here goes on to show that Mary Huffman left the home at about 8:00 p. m. and was gone until about 11:00 p. m. The prosecution offered no evidence at all concerning the condition of the back door after she returned to the house. So far as this record is concerned, that door at 11:00 p. m. could have been left wide open, available for free entry by anyone. Hence there is no predicate laid for the inference that defendant gained entry to the Huffman residence by breaking or other illegal means. State v. Allen, 344 Mo. 335, 126 S.W.2d 236 (1939).

If speculation were to be permitted, the most reasonable explanation of this bizarre episode would be that Mary Huffman let the Ballards into the house at the time of her return at 11:00 p. m. If that did happen, then permission by her as one of the persons having equal right to the premises would prevent defendant’s entry from being burglarious. Clarke v. The Commonwealth, 25 Graft. 908, 66 Va. 612 (1874). Even if the circumstances do not completely compel the conclusion that Mary Huffman permitted entry by the Ballards, that inference is at least a sufficiently reasonable one to prevent conviction of defendant of burglary under the present evidence. The evidence of burglary against him is .purely circumstantial, and under the well settled rule the circumstances shown “must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1977).

In any event, the burden was upon the State to prove that defendant gained entry to the Huffman home by use of a false key, by picking a lock or by breaking. This it failed to do.

II.

Defendant called as his witness Mr. Wiley Gardner who testified that in the early morning hours of August 7, 1975, at between 12:30 and 1:00 a. m., he gave a ride to defendant who was then walking on the highway. During the course of that examination defense counsel asked Gardner: “Was Mr. Ballard aware at that time that the police were looking for him?” The prosecuting attorney objected to the question, and a lengthy colloquy then occurred out of the hearing of the jury. In response to the court’s inquiry as to what it was that the defense was trying to prove by this testimony, defense counsel answered, “What I’m trying to prove is that Pete Ballard, upon learning that the police were looking for him, decided voluntarily to go down to the police station and turn himself in.” He further indicated that he wanted to introduce this as a converse to the prosecution evidence that defendant had been running from the police. Thereupon after some further discussion at the bench, defense counsel proceeded with his examination of Gardner as follows:

“Q (by Mr. Scott) Now, after you had picked up Mr. Ballard, did he decide to go to the police station?
A He wanted to call first to see if they were looking for him.
Q O.K. Did he call?
A I called for him.
Q Did you relay the information you received to Mr. Ballard?
A Yes.
Q And then did Mr. Ballard decide to go to the police station?
A Yes.
Q How did Mr. Ballard get there?
A I took him.
Q Was there ever any doubt about Mr. Ballard going to the police station?
A Well, not really.”

It can be agreed that defendant is entitled to show that he voluntarily turned himself in and to let the jury know this in mitigation of the inference against defendant which the prosecution sought to draw from the fact of defendant’s flight. Granting this to be so, the fact remains that defendant was permitted to place all of this in evidence before the jury. His complaint that the evidence was excluded stands rebutted by the record just quoted.

The judgment of conviction on Count II is affirmed. However, because of the insufficiency of the evidence concerning the burglary, the conviction on Count I is reversed. It is to be noted that the State did not call Mary Huffman as a witness for the prosecution and it is unknown what her testimony would be as to whether the back door to the Huffman residence was locked or at least closed upon her return home at 11:00 p. m. on August 6,1975. Inasmuch as it is reasonably possible that the State may be able to show on a retrial this essential missing element of proof, this case will be remanded for a retrial on Count I if the prosecution desires to retry that charge. State v. Wade, 531 S.W.2d 726, 730 (Mo. banc 1976); State v. Scurlock, 541 S.W.2d 755, 759 (Mo.App.1976).

All concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Zebedee GARRETT, Defendant-Movant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37627.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Mary Louise Moran, Robert C. Babione, Neal P. Murphy, St. Louis, for defendant-movant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Jefferson City, George A. Peach, William M. Frain, Jr., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

This is the second appeal of Zebedee Garrett with respect to his motion under Supreme Court Rule 27.26. Movant’s conviction for forcible rape resulting in a sentence of 20 years in prison was affirmed on appeal in State v. Garrett, 494 S.W.2d 336 (Mo.1973). Pursuant to his motion for relief under Rule 27.26 an evidentiary hearing was held to consider whether movant had been denied effective assistance of counsel at trial. The trial court denied relief on those issues raised in the written motion. This court reversed the judgment and remanded to the trial court for further findings and conclusions concerning the issue of whether counsel’s failure to request a psychiatric examination of his client constituted ineffective assistance of counsel. Garrett v. State, 528 S.W.2d 174 (Mo.App.1975). This issue had not been raised in the written motion but had been tried by consent of the parties. This court found that the issue had been fully presented by the parties and that it was not necessary to hold an additional evidentiary hearing. The cause was remanded to permit movant to formally amend his motion and for the trial court to issue findings of fact and conclusions on this issue.

On remand the trial court, on the evidence previously produced found that mov-ant’s counsel, based on his observations and his conferences with movant and his parents, had reached the conclusion that his client was competent; that this conclusion was reasonable, and that the failure to file the motion for psychiatric examination did not constitute ineffective assistance of counsel. Our review on appeal is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous, that is whether we are left with a definite and firm conviction that a mistake has been made. Lahmann v. State, 509 S.W.2d 791 (Mo.App.1974); Rule 27.26(j).

Movant was charged with three sexual offenses, including the one which resulted in the present conviction. He was represented by the same attorney in all three cases. At the outset of his representation the attorney considered moving for a psychiatric examination, and discussed the matter with movant and his parents. During the course of this conference, movant admitted the rape with which he was charged in one of the other pending actions, and his parents said their son had previously assaulted a young school girl in their home, for which he was arrested but never prosecuted. When the lawyer suggested, “In that case, this boy ought to have some type of test . . . maybe he doesn’t know exactly what he is doing.” Both the parents and movant himself rejected the idea.

Movant was interviewed by his attorney more than a dozen times. In response to questions by the court, counsel stated that he had discussed his client’s case “point by point” with him and that Mr. Garrett by “his actions showed that he was fully capable of assisting in his own defense.” After movant’s rape conviction in one of the earlier actions in which counsel also represented him, there was a pre-sentence conference at which movant, his father, the trial judge, another judge, and the prosecuting attorney were also present. During that conference the possibility of a psychiatric examination was also discussed in connection with the criminal sexual psychopath provisions of § 202.700 et seq., RSMo.1969. Movant participated fully in that conference, “joining in the discussion along with the group and answering all the necessary questions and also asking questions on his own and explaining them away.” Counsel also stated that movant “discussed the matter freely about the test, and what he had done, and that he knew each time what he was doing. . . . ” Again the possibility of a psychiatric examination was ruled out. Mov-ant himself objected to any such examination during the course of this meeting.

Apart from the consideration given by counsel to request a psychiatric examination as well as the nature of the crimes involved, no other evidence of possible mental incompetency was adduced at the hearing or from the trial record.

Movant’s mother denied having spoken to counsel about a psychiatric examination and his father denied rejecting the possibility of such an examination. When asked about any abnormalities he may have noticed in his son, movant’s father testified only that “his mother talked to him so long, and that was something strange.” However, he indicated that his son had been “a good boy all the way up.”

The burden of proof is on the petitioner to clearly demonstrate that the acts of counsel “were of such character as to result in a substantial deprivation of movant’s right to a fair trial.” Myrick v. State, 507 S.W.2d 42, 44[2] (Mo.App.1974). We hold that movant has failed to meet that burden and that the findings and conclusions of the trial court are not clearly erroneous.

Movant argues that the evidence shows that counsel for the defense came to an “honest belief” that his client was in need of a psychiatric examination and failed to request one. Citing us to the case of Miller v. State, 498 S.W.2d 79 (Mo.App.1973), he contends that this failure amounts to ineffective assistance of counsel:

“If in the course of the prosecution defendant’s counsel comes to the honest belief that his client lacks present capacity for rational understanding and cooperation, the integrity of the adversary process and his duty of advocacy require counsel to use the procedures the law allows for an adjudication of that issue.” Miller, 498 S.W.2d at 86[14].

The case at bar and the Miller case are clearly distinguishable on their facts. At the 27.26 hearing in Miller, counsel for the defendant testified that he had had and continued to have “serious doubts” as to competency both at the time of the crime and at the time of the trial. Miller v. State, 498 S.W.2d 79, 85[13] (Mo.App.1973). His testimony was unequivocal. Furthermore the judge who sentenced the defendant following a guilty plea also expressed doubts concerning defendant’s sanity.

The case before us reflects no such “serious doubts.” Rather, the record supports the notion that the possibility of a psychiatric examination was a briefly considered idea rather than an “honest belief” which had been maintained by counsel. “We must give due regard to the trial judge’s opportunity to hear witnesses and defer to his determination of credibility unless it clearly and convincingly appears that [he] has abused [his] discretion.” Lahmann v. State, 509 S.W.2d 791, 794[5] (Mo.App.1974). The evidence, as a whole, supports the trial court’s finding that counsel, as a result of both personal observation and conferences with the defendant and others, had come to the reasonable conclusion that his client was competent.

While the State would argue that the standard for judging effective assistance of counsel should not be based on the subjective grounds of “honest belief” but rather on the more objective grounds of whether there is evidence from which one could reasonably infer possible incompetency, see, e. g., Chapman v. State, 506 S.W.2d 393 (Mo.1974), we need not decide this issue since movant has failed to meet his burden on either basis. Mental disease or a defect excluding fitness to proceed is not proved by repeated episodes of sexual perversion or criminal conduct. Miller v. State, 498 S.W.2d 79, 85[11] (Mo.App.1973). If that were the case the logical conclusion that no sane person would commit such acts would require psychiatric examinations in every case and could prevent convictions of any such defendants. Parks v. State, 518 S.W.2d 181 (Mo.App.1974). As stated before, no other evidence from which possible incompetency could be inferred was introduced. The trial judge himself had ample opportunity to view the defendant both at the hearing and at the trial as well as to judge the credibility of his attorney’s assertions that his client was competent.

Our findings here apply equally to both movant’s contentions that his counsel should have moved for a psychiatric examination to determine competency to stand trial under § 552.020 RSMo. Supp.1975, and to determine the applicability of the criminal sexual psychopath statute under § 202.-700 et seq., RSMo.1969. While competency and a finding of sexual psychopathy are not the same, movant is not entitled to a finding of ineffective assistance of counsel on either basis. As to a determination of competency, “the suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial.” Miller v. State, 498 S.W.2d 79, 85[9] (Mo.App.1973). Rather, an accused is competent to stand trial if at the time he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Brown v. State, 485 S.W.2d 424, 429[5] (Mo.1972). Both counsel’s testimony and the objective actions of movant support a finding of competence.

As to a determination of the applicability of the sexual psychopath statute to movant, we cannot agree that failure to request an examination denied to movant a legitimate line of defense. Aside from our findings that movant failed to produce evidence to support a serious doubt as to his competency, the criminal sexual psychopath statute does not provide a defense in any criminal action. § 202.750, RSMo.1969. The act gives the trial court discretion upon a finding of criminal sexual psychopathy to commit a defendant for detention and treatment or to order him tried “as the interests of substantial justice may require.” § 202.730 RSMo.1969. The initiation of proceedings under the act rests in the discretion of the prosecution. State ex rel. Kirks v. Allen, 255 S.W.2d 144 (Mo.App.1953).

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and SMITH, J., concur.


author: GUNN, Judge.

text:
    WIRED MUSIC, INC. OF THE GREAT MIDWEST, a corporation, Plaintiff-Appellant, v. The GREAT RIVER STEAMBOAT COMPANY, a corporation, Defendant, and Frank C. Pierson, Defendant-Respondent.
    Nos. 37386 and 37873.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.
    Motions for Rehearing and/or Transfer Denied July 21, 1977.
    Applications to Transfer Denied Sept. 12, 1977.

      W. W. Sleater, Clayton, for plaintiff-appellant.
    Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for defendant-respondent.
   GUNN, Judge.

Plaintiff-appellant, Wired Music, Inc., appeals from a judgment notwithstanding a jury verdict in favor of defendant-respondent, Pierson, on a suit for breach of contract. The central issue is whether Pierson is personally liable under a guaranty clause contained in a contract which he executed as president of the Great River Steamboat Co. We hold that Pierson was not personally liable under the contract and affirm the judgment.

We first indite the rather basic legal rubric that in reviewing a trial court’s granting of a motion for directed verdict we must consider the evidence and all reasonable inferences which may be derived therefrom in the light most favorable to the party against whom the verdict was directed. Jurcich v. General Motors Corp., 539 S.W.2d 595 (Mo.App.1976); Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811 (Mo.App.1975). We are to determine here whether Wired Music Inc. made a submissible case.

The facts leading to this dispute are undisputed. Pierson was president of the Great River Steamboat Co., a corporation owning and operating the “Becky Thatcher” riverboat and restaurant. A sales representative for Wired Music, Inc. contacted Pierson concerning the continuance of wired in music service on the “Becky Thatcher,” which had been used by the previous owner. It was agreed that the music service would be continued, and Pierson, as President of the Great River Steamboat Co., signed the service agreement. Under the terms of the contract drafted by Wired Music Inc., a daily “Muzak Program Service” was to be provided to the “Subscriber” for a term of five years at a monthly charge of $58.50. The contract was executed by Pierson in the following manner:

“By /s/ Frank C. Pierson. Pres._
Title
The Great River Steamboat Co.
Port of St. Louis Investments. Ine.
For the Corporation”

In signing, Pierson crossed out “Port of St. Louis Investments, Inc.” which had been incorrectly listed as the name of the corporation and inserted the proper name.

The Great River Steamboat Co. made payments under the contract totaling $234.15 and then breached the contract by making no further payments. It was stipulated that the breach of contract damages were $3,500. Wired Music, Inc. obtained a magistrate court judgment for $3,500 against both Pierson and the Great River Steamboat Co., which was appealed to the St. Louis Circuit Court. Prior to trial on the magistrate appeal, the Great River Steamboat Co. consented to a judgment against it. The circuit court trial resulting in this appeal, therefore, involved only Pier-son as a defendant. 'rf

Wired Music, Inc. has sought to hold Pier-son personally liable for the failure of the Great River Steamboat Co. to make payment under the contract. It relies on a provision in the service contract which reads:

“The individual signing this agreement for the subscriber guarantees that all of the above provisions shall be complied with.”

Pierson testified that he had not been informed of any personal guaranty clause and that he had signed the contract without reading it. He further testified that he signed the agreement only in his capacity as president of the Great River Steamboat Co. Jury verdict was for Wired Music, Inc., but the trial court granted Pierson’s motion for directed verdict, set aside the jury verdict and entered judgment for Pierson.

On this appeal, Wired Music, Inc. importunes us to view a single clause in a contract between two corporate entities as sufficient ligature to bind a corporate official (Pierson) to a personal guaranty of his corporation’s obligations under the contract. We refuse to do so under the circumstances before us in this case. We are impelled to view with suspicion the so called guaranty provision in Wired Music, Inc.’s contract, especially where there is a patent absence of bargaining over the provision and no apparent consideration for it. See National Refining Co. v. McDowell, 201 S.W.2d 342 (Mo.1947).

The general rule regarding liability incurred by an individual who signs an instrument on behalf of another party is: where the principal is disclosed and the capacity in which the individual signs is evident, e. g., president, secretary, agent, the liability is the principal’s and not the individual signing for the principal. Receivables Finance Corp. v. Hamilton, 408 S.W.2d 44 (Mo.1966); Reifeiss v. Barnes, 166 S.W.2d 225 (Mo.App.1942). “The presumption, in such cases, is, that it was the agent’s intention to bind his principal and not to incur personal liability, and an agent will not be bound personally, except upon clear and explicit evidence of an intention to be bound.” Bridges v. Rice, 99 S.W.2d 531, 534 (Mo.App.1936). Of course, where the circumstances surrounding the transaction disclose a mutual intention to impose personal responsibility on the individual executing the agreement, the individual may be personally liable even though the form of the signature is that of the agent. Kalberg v. Gilpin Co., 279 S.W.2d 177 (Mo.App.1955). But that is not the situation here.

In this case, the form of the signature was clearly that of an officer in his representative capacity for a corporate entity. Pierson took special care to designate the proper corporate name by crossing out the incorrect name before signing. He made it palpable that the contract was between Wired Music, Inc. and the Great River Steamboat Co. Hence, we are particularly attracted to the following statement in Wired Music, Inc. v. Wiemann, 468 S.W.2d 668, 670 (Mo.App.1971):

“ . . . the contract prepared by plaintiff clearly shows on its face that it was the intention- of the parties to enter into a contract between the plaintiff on the one hand and the corporate entity on the other . . . . It is equally apparent, from the face of the contract, that Wiemann [individual defendant] signed the agreement, in his capacity as president of the corporate entity whatever its precise name, and not in his individual capacity, for as appears he signed as ‘Pres.’ and ‘For the Corporation.’ Furthermore, defendant’s testimony was that he signed only as president of the corporation, for the sole purpose of consummating the agreement between plaintiff and the corporation of which he was chief officer . . .

The manner of executing the contract in Wired Music, Inc. v. Wiemann, supra, is uniquely similar to this case.

The determinative issue here is whether, in view of the form of the signature to the agreement, the language of the so called guaranty clause is sufficient to manifest a clear and explicit intent by Pier-son to assume a personal guaranty contract. See Ogilvie v. Ogilvie, 487 S.W.2d 40 (Mo.App.1972). We hold that standing alone it does not. Furthermore, the contract language imposing a personal obligation is inconsistent with the form of execution which positively interdicted Pierson’s participation to his official corporate capacity and not as an individual. Such inconsistency creates at least a latent ambiguity which permits the admission of parol evidence to explain the true intent of the parties. Receivables Finance Corp. v. Hamilton, supra; Reifeiss v. Barnes, supra; Finch v. Heeb, 131 S.W.2d 146 (Mo.App.1939); Finch v. Heeb, 231 Mo.App. 591, 107 S.W.2d 962 (1937); Puget Sound Nat’l Bank v. Selivanofi, 9 Wash.App. 676, 514 P.2d 175 (1973); Brasher Motor and Finance Co. v. Anderson, 20 Utah 2d 104, 433 P.2d 608 (1967). See generally, Annot., 70 A.L.R.3d 1276 (1976).

Pierson has stressed the fact that he neglected to read the contract prior to its signing. The law is well settled that one who signs a contract is presumed to have known its contents and accepted its terms. Sanger v. Yellow Cab Co., Inc., 486 S.W.2d 477 (Mo.banc 1972); Wallach v. Joseph, 420 S.W.2d 289 (Mo.1967). Thus, Pierson’s failure to examine the terms of the instrument would afford no defense to the corporation regarding its obligations under the contract, as his signature was sufficient to bind the corporation. Such neglect is a relevant circumstance, however, in ascertaining Pier-son’s intent to assume personal liability, as his personal signature appeared nowhere on the instrument. Without knowledge of the guaranty clause he could not have possessed the requisite intent to assume obligations under it. The record is destitute of any indication that Pierson was ever made aware of his potential personal liability under the “guaranty clause,” and he steadfastly denied any such knowledge. Wired Music, Inc. drafted the contract, and its agents procured Pierson’s corporate signature without explanation of or bargaining over its terms. Under these circumstances we find that there was an absence of the meeting of the minds as to the nature and the extent of the personal obligations imposed, essential to the formation of a binding guaranty. See Shepard v. Glick, 404 S.W.2d 441 (Mo.App.1966).

We are aware that the Florida Court of Appeals in Steele v. Hallandale, Inc., 125 So.2d 587 (Fla.App.1960), held that where the terms of the contract clearly impose personal liability on the signer he may be personally bound thereunder even where he signs as an agent for a disclosed principal. That decision, however, was an interlocutory appeal from the trial court’s denial of defendant’s motion to dismiss the complaint. “This being an interlocutory appeal, it is only necessary that the allegations in the complaint show that the contract involved makes Steele (defendant) individually responsible to plaintiffs under certain circumstances. Whether he is or is not can only be determined by the evidence.” (emphasis added) Steele v. Hallandale, Inc., supra at 588. Thus, the court merely refused to hold that as a matter of law an officer executing a contract for his corporation in his official capacity cannot be held personally liable thereunder. We likewise refuse to declare such a principle as a matter of law. We do hold, however, that where the form of an agent’s signature is inconsistent with the assumption of personal liability under the terms of the contract that an ambiguity is created allowing parol evidence to explain the true intent of the parties.

Three decisions of the New York courts support our conclusion that an agent of a disclosed principal may not be personally bound under a guaranty clause in a contract between the principal and another party, unless there is evidence of a clear and explicit intent to do so. Though highly instructive they are not directly on point, as all three were decided on the basis of the statute of frauds. These cases hold that personal liability through a guaranty clause may not be imposed on an officer who signs a contract for the corporation in his capacity as an officer, as his signature is that of the corporation alone and does not meet the statute of frauds requirement that the instrument be signed by the party to be charged. The court in Salzman Sign Co., Inc. v. Beck, 10 N.Y.2d 63, 217 N.Y.S.2d 55, 57, 176 N.E.2d 74, 76 (1961), cites the following as the policy behind its holding:

“In modern times most commercial business is done between corporations, everyone in business knows that an individual stockholder or officer is not liable for his corporation’s engagements unless he signs individually, and where individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as an officer and again as an individual. There is great danger in allowing a single sentence in a long contract to bind individually a person who signs only as a corporate officer. In many situations the signing officer . may be stuck for a very large obligation which he never dreamed of assuming.”

We find the foregoing statement to be reasonable. We therefore adopt the policy that in order to hold a corporate officer individually liable in signing a contract of guaranty, as in this case, the officer should sign the contract twice — once in his corporate capacity and once in his individual capacity. If the parties have mutually agreed and intended that the officer executing the contract for his corporation is to assume personal obligations thereunder, the simple but unequivocal act of manifesting such intent can be accomplished by having the officer also sign in his individual capacity. Such practice, in addition to making the guaranty agreement explicit, would promote the policies behind the statute of frauds.

In this case, evidence is lacking to establish that Pierson explicitly intended a personal guaranty. The evidence presented was that Pierson signed the agreement only in his corporate capacity — not as an individual. There was a total absence of any evidence from which the jury could conclude otherwise. It was therefore proper for the trial court to direct a judgment for Pierson.

Judgment affirmed.

KELLY, P. J., and REINHARD, Special Judge, concur.

      . See § 400.3--403 RSMo 1969 which codifies this rule for negotiable instruments.

      . In Linro Medicine Co. v. Moon, 190 Mo.App. 366, 177 S.W. 322 (1915), the fact that an individual guarantor had failed to read the contract was held to be relevant to determine whether the individual had knowledge of the acceptance of the guaranty.

      . But see St. Joseph Valley Bank v. Napoleon Motors Co., 230 Mich. 498, 202 N.W. 933 (1925), where the defendant, a corporation, entered into a contract with plaintiff, a bank, under which the latter agreed to buy certain unmatured notes of the former. Contained in the instrument was a clause stating that “Full performance of seller’s obligations under this contract is individually guaranteed” by the following persons:
      Napoleon Motors Co.
      /s/ Frank Trude, Vice Pres.,
      /s/ W.G. Rath, Secy-Treas.
      When the notes were not paid plaintiff sued the corporation as well as the individual signers under the guaranty clause. The court noted that standing alone the contract terms would impose a personal guaranty. “But here the corporation alone, Napoleon Motors Company, signed the guaranty. It could sign only by its officer or officers. We cannot ignore its name so written. And without the signing of its officer or officers its signature would be incomplete. The undertaking so signed must be taken conclusively to be that of the corporation.” Id. at 934. The court held that as a matter of law the corporation only was bound and parol evidence was not admissible to show a contrary intent.

      . Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 254 N.Y.S.2d 521, 203 N.E.2d 206 (1964); Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 217 N.Y.S.2d 55, 176 N.E.2d 74 (1961); Warren-Connolly Co., Inc. v. Saphin, 283 App. Div. 391, 128 N.Y.S.2d 272 (S.Ct.1954).

      . Statute of frauds is an affirmative defense which must be pleaded but was not done in this case. Rule 55.08.


author: RENDLEN, Judge.

text:
    Jerome STEHLIN, Plaintiff-Appellant, v. Alta HENRY, Defendant-Respondent.
    No. 37388.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 14, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Igoe & Igoe, Leonard P. Cervantes, St. Louis, for plaintiff-appellant.
    James F. Godfrey, Denis C. Burns, St. Louis, for defendant-respondent.
   RENDLEN, Judge.

Plaintiff Jerome Stehlin appeals from the judgment entered on a verdict awarding him $250 automobile property damage, but “nothing” for personal injuries alleged to have occurred in a motor vehicle collision, asserting error in the denial of his personal injury damage claim.

While proceeding north on Kingshighway in the City of St. Louis December 16, 1972, and waiting at a red light near Shaw Avenue, plaintiff’s automobile was struck in the rear by that of defendant’s, resulting in moderate damage to both vehicles. The trial court denied plaintiff’s motion for new trial, wherein plaintiff complained the verdict denying damages for personal injuries was so shockingly inadequate it could only have resulted from bias, passion or prejudice of the jury. No challenge is made to the $250 property damage award, rather, plaintiff contends that in view of the evidence of extensive personal injuries the verdict denying damage for such injuries must be set aside. Further, because defendant was found negligent, the personal injury damage claim could have been denied only if plaintiff sustained no personal injuries or defendant’s negligence was not the proximate cause of such injuries. From a review of the record we have concluded the verdict denying an award of personal injury damages was based on want of proof of causation. We affirm.

Treating defendant as the prevailing party on the issue presented here, we examine the evidence to determine the sufficiency of proof to support the verdict. In Frantz v. State Farm Mutual Automobile Insurance Co., 526 S.W.2d 345, 346 [1] (Mo.App.1975), the court stated “[T]he evidence will be viewed in the light most favorable to the verdict with all the inferences from the evidence drawn in favor of the verdict.” The court went on to note, inconsistencies will be resolved in favor of the prevailing party and “[a]ll the plaintiff’s evidence must be disregarded unless it aids the defendant’s case.” Id. at 348. It has been stated that “[a]n appellate court does not weigh the evidence. It is only when there is a complete absence of probative fact to support a verdict that an appellate court will interfere.” Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 496 [3] (Mo.App.1973); Wilson v. Concordia Farmers Mutual Insurance Co., 479 S.W.2d 159, 161 [1] (Mo.App.1972).

Plaintiff testified his seat belt had been fastened at the time of the collision and though he did not come into contact with any part of the car’s interior, he felt a numbness in his head and pain in his back immediately after the accident. Some hours later he called Dr. Grundmann and the following day was admitted to the hospital, remaining there for twenty-one days. Testifying for plaintiff, Dr. Grundmann stated that in addition to several complaints not related to the accident, plaintiff suffered from headaches and cervical strain from a pre-existing arthritic condition, contusions and strain of the right shoulder, lumbar strain and coccygodynia, all cáused or aggravated by the accident. It developed that plaintiff had been involved in another automobile accident about one month earlier, in which his car was struck broadside passing through an intersection. In that accident he suffered a fractured right thumb and coccyx together with injuries to his head, right shoulder and base of the neck. Though plaintiff testified he suffered no other injuries in the November accident, he admitted wearing a corset and having a walking stick in his car when struck by defendant in December. Dr. Grundmann admitted on cross-examination plaintiff had not told him of another accident which occurred in 1968, involving a back injury and ultimately a 5 percent workman’s compensation disability award. Also he did not examine plaintiff until after the December accident and perforce relied on plaintiff to tell if his injuries predated the accident. A medical report of Dr. Dooley, a neurologist, who examined plaintiff at the behest of Dr. Grundmann indicated that on December 28 Dr. Dooley could find no spasms or other objective signs of injury in the cervical region. He did note plaintiff’s subjective complaints and found limited motion in the neck area. Patrolman Helbert testified his accident report contained no mention that plaintiff complained of pain nor that plaintiff requested medical treatment. A representative of plaintiff’s employer testified plaintiff worked only five days between the November and December accidents, taking sick leave for the balance of the month. The medical report of Dr. Tottes mentioned plaintiff’s injured thumb, head, right shoulder, coccyx and pressure at the base of the neck with limited motion but no tenderness. Plaintiff testified that the impact had not been serious. Finally, Dr. Thiele, who examined plaintiff for defendant in September of 1974, testified he could find no permanent injuries and no objective signs of plaintiff having been in an accident. Defendant’s converse instruction addressed itself solely to the issue of the causation of plaintiff’s injuries.

We believe the evidence sufficient to support a jury believing that plaintiff’s personal injuries did not result from the accident of December 16, 1972, and such injuries stemmed from his prior accidents. “[T]he jury finding of liability against defendant did not require a finding that defendant proximately caused every post-accident ailment complained of by the [plaintiff]. ‘A jury may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part . ’ ” Wells v. Bellman, 531 S.W.2d 770, 771 [1] (Mo.App.1975). “The general rule is that, where a plaintiff may have suffered disability and damage from two different causes, it is peculiarly within the province of the jury to apportion the disability and damage to the respective causes.” Turner v. Yellow Cab Co. Of Springfield, 361 S.W.2d 149, 155 [4] (Mo.App.1962); see also Belisle v. Wilson, 313 S.W.2d 11, 17 [11] (Mo.1958). The causal connection, if any, between appellant’s injuries and respondent’s negligence was for the jury, Glowczwski v. Foster, 359 S.W.2d 406, 409 [3] (Mo.App.1962); Croney v. Pence, 346 S.W.2d 574, 577 [4] (Mo.App.1961); that issue has been resolved by them in defendant’s favor and we will not interfere.

Plaintiff also raised the issue of passion, bias and prejudice of the jury in denying his claim for personal injuries. It has long been the rule in Missouri that an appellate court may not infer bias or prejudice merely from the amount of the verdict, but the party raising this issue must show “some incident or occurrence at the trial, or error committed, of such a nature as to engender bias, passion or prejudice.” Reynolds v. Arnold, 443 S.W.2d 793, 801 [11] (Mo.1969); Erny v. Revlon, Inc., 459 S.W.2d 261, 267 [9] (Mo.1970); DeArmon v. City of St. Louis, 525 S.W.2d 795, 801 [15] (Mo.App.1975). Plaintiff having pointed to no such incident or occurrence, and we, having found none, the contention is denied.

Finally, plaintiff contends that even if the jury found defendant did not cause plaintiff’s injuries, plaintiff was entitled to recover the cost of x-rays and other diagnostic expense reasonably necessary to determine if he had been injured, citing Wise v. Towse, 366 S.W.2d 506 (Mo.App.1963). However Wise does not stand for the proposition that such damages must be awarded as a matter of law if the jury finds defendant negligent. Instead the court in Wise, supra at 508, held that when, following an accident, a party seeks diagnosis and treatment for injuries, and the consulted doctor orders x-rays or other diagnostic procedures, “[w]e should ascribe honest motives, good faith and proper conduct in such matters, at least to the extent of permitting the jury, if it wishes to do so, to infer as a reasonable inference that these medically prescribed x-rays were sufficiently necessary to permit reimbursement of their cost as an element of damage.” The court then ruled that the trial court erred by withdrawing from the jury’s consideration, evidence of plaintiff’s x-ray expense, because the jury could properly consider the seriousness of the collision, the fact of pre-existing injuries and all relevant circumstances in determining plaintiff’s entitlement to recover such diagnostic expenses. However, questions of causal connection and other factual determinations were for the jury, not the court to decide as a matter of law.

Defendant, to obviate the necessity of plaintiff bringing in “someone from the office” stipulated that Dr. Dooley’s bill for $50 was “reasonable and necessary” and by so doing rendered that item of evidence admissible as a business record without further proof. However this stipulation did not, as plaintiff contends, constitute a binding admission requiring the jury to find the injuries and this $50 expenditure causally connected, simply because defendant was found negligent.

Judgment affirmed.

McMILLIAN, P. J., and STEWART, J., concur.


text:
    Lyla F. KLINGE, Plaintiff-Respondent, v. Frederick W. KLINGE, Defendant-Appellant.
    No. 37836.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 14, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      William R. Kirby, St. Louis, for defendant-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Justin Cordonnier, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

In this dissolution of marriage case, one of the current outpouring of such appeals, the husband appeals the trial court’s decision alleging abuse of discretion in the award of maintenance and child support, division of marital property and wife’s attorney’s fees. We find no abuse of discretion and affirm the judgment.

Prior to the dissolution action, the parties had been married 28 years with four children born of the marriage, two of whom were minors at the time of the dissolution hearing. In June, 1973 the husband, a physician, left his wife and children. At that time in his practice as a physician-surgeon, the husband’s income was in the upper $70,-000 per year bracket. Por a short period after leaving his family the husband voluntarily paid his wife and children $2,000 a month in maintenance and support. The husband subsequently reduced the maintenance and support payments to $1,500 per month, $1,000 per month, and, finally, at the time of the dissolution hearing, to $830 per month from which the wife was paying $217.78 per month for house payment.

By 1974 the husband had lost his hospital surgical privileges, and from June 1,1974 to December 1,1975, he worked on a part time basis at a surgical clinic. Although working only on a 20 hour week part time basis at the clinic, the husband was paid at a rate which would result in income of $34,000 to $35,000 per year. The husband was offered full time employment at the clinic but rejected it to devote his time to his own office practice which he testified brought him about $600 per month in income with expenses between $1,100 to $1,200 per month. The wife, who was 55 years old at the time of the dissolution hearing, possessed a Missouri teacher’s certificate. At the time of the hearing the wife was netting about $400 per month as a secretary in a doctor’s office and as a substitute teacher. She had approximately $500 in a checking account and $14,735.00 in a savings account, representing an inheritance from her father. The wife was living in the family home having a $100,000 value according to the wife and an $80,000 value according to the husband. The loan balance on the house was $12,807. The wife had contributed $2,500 toward the purchase of the house. The wife testified that her estimated expenses for her and her two children were $1,256 per month without provision for health insurance, recreational expenses or income tax on any maintenance award. The husband testified that he owed a legal fee, unrelated to the dissolution proceedings, of $5,204. He also owed $2,282 on the purchase of an automobile, $8,148.04 on some medical equipment and $12,807 on the house. The husband further stated that he had an unsecured debt of $15,000 which he owed to his father. The husband also testified that he had no stocks, bonds or cash assets. It is apparent from the record that the husband had engaged in social activity with a female companion prior to his physical separation from his wife and family.

The trial court awarded the wife $400 per month maintenance and $250 per month for each of the two minor children and $1,500 for attorney’s fees. The wife was also awarded the family residence. The husband was awarded $20,000 to be filed as a lien against the house to be paid out of the proceeds of the sale of the house but with the provision that the lien could not be the basis of a partition suit until the youngest child (who at the time of hearing was 14) had reached 21 years of age, or unless the property was voluntarily sold by the wife.

On appeal, the husband charges that the trial court’s award amounted to an abuse of discretion. He urges that the award is in excess of his current income and exceeds his ability to pay. He stresses the fact that he is 59 years old and that as he has lost his hospital privileges he can no longer practice surgery and must build a practice in a new area of medicine.

Under the facts of this case we find that there was no abuse of discretion in the trial court’s award of maintenance and child support. The husband may still practice medicine; he has not lost his ability to earn substantial income. He may not escape his responsibility to his family or stymie justified support for them by deliberately limiting his work to reduce his income. The husband’s past, present and anticipated earning capacity serve as competent evidence of his ability to pay the amounts awarded. In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976); Richardson v. Richardson, 524 S.W.2d 149 (Mo.App.1975). Here, the husband is a licensed physician, who by working only 20 hours a week was earning income at the rate of $34,000 to $35,000 a year. He was offered full time work (presumably, at least 40 hours a week) but rejected the offer to work at his own practice at a substantially unfavorable balance of expenses in excess of income. We believe it unfair for the husband to shirk his family responsibility in such manner. Obviously, the husband has the capacity, even though not as a hospital staff surgeon, to earn sufficient income to pay the maintenance and child support awards. In re Marriage of Vanet, supra; Richardson v. Richardson, supra; Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976); Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976). Even though there had been a reduction in the husband’s income, that factor alone will not serve as a basis for a reduction of family support payments. Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976). As stated in Foster v. Foster, 537 S.W.2d 833 (Mo.App.1976), l. c. 836:

". . . [A] court may, in proper circumstances, impute an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities.”

We believe that proper circumstances existed here for the trial court to have concluded that the husband was capable of earning a much higher income if he had chosen to work on a full time basis.

If the trial court is vested with substantial discretion in making maintenance and child support awards, so, too, does the court possess considerable discretion in its division and award of marital property. Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977); In re Marriage of Vanet, supra. Giving effect, as we must, to the relevant factors, § 452.330 RSMo Supp.1975, we find no abuse of the trial court’s discretion as to the division of property awarded, except with respect to the $20,000 lump sum awarded to the husband to be a lien on the house. This court’s recent decision in Ortmann v. Ortmann, 547 S.W.2d 226 (Mo.App.1977), impels us to modify the husband’s award. As noted in Ortmann, inflationary trends make unfair a fixed sum payment to the husband on the future sale of the residence. Rather, we believe that the husband should participate in a percentage of the net proceeds of the sale of the residence under the terms of the trial court’s award after payment of proper charges and expenses of sale — the method prescribed in Ortmann. We believe that when the sale of the residence occurs, the husband should be awarded 20 percent of the net proceeds of sale of the residential property.

Finally, the husband attacks the award of attorney’s fees to be paid by him. Again, we find no manifest abuse of the trial court’s discretion in its award of attorney’s fees. Barnhill v. Barnhill, 547 S.W.2d 858 (Mo.App.1977).

We have read the transcript, briefs and authorities cited by both parties and conclude that the decree of the trial court, as modified herein,.is supported by substantial evidence and is not against the weight of the evidence. The decree, as modified herein does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In view of the abundance of case law covering the points raised by the husband an extended opinion would have no precedential value. See Rule 84.16(b).

The judgment, as modified herein, is affirmed.

KELLY, P. J., and WEIER, J., concur.

      . “[Dr. Klinge] I believe as they [clinic] calculated out my hours my salary on 20 hours, it was in the neighborhood of $34,000.00 or $35,-000.00, as I recall it [on a twelve month basis.]”

      . The inheritance had been reduced by $5,265 to pay some delinquent income taxes owed by the husband.

      . We note that 20 percent of the total value of the house as estimated by the wife ($100,000) would equal the trial court’s lump sum award to the husband — $20,000.


author: WEIER, Judge.

text:
    Eileen LAYMAN, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE CO., and Wright Tree Service of Iowa, Inc., Defendants-Respondents.
    No. 37746.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 21, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Sherwood R. Volkman, St. Louis, for appellant.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, St. Louis, for Southwestern Bell.
    George J. Jeggle, St. Louis, for Wright Tree Service.
   WEIER, Judge.

This court-tried case comes to us on appeal from a judgment in favor of defendants Southwestern Bell Telephone Company and Wright Tree Service of Iowa, Inc., and against the plaintiff Eileen Layman. Plaintiff’s petition contained two counts. In Count I she alleged that she was the owner of real estate in Jefferson County, Missouri, and that the defendants had trespassed upon this land and had installed underground telephone wires and cables without her consent. She further alleged that the defendants continued to enter upon this land and maintained the wires and cables. As to damages she stated that by reason of the trespass the property had depreciated in value in the amount of $7,500. She prayed judgment for this sum together with $2,000 for punitive damages because of the willful and forceful nature of the acts of defendants. In Count II she realleged the same facts, prayed for the same damages and added as additional relief that she be restored to possession of the real property. After hearing the evidence, there being no request for findings of fact and conclusions of law, the court rendered judgment in favor of defendants stating that there was “insufficient evidence to establish the trespass pleaded and sought to be proved.”

On appeal, subject to the standards set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we review the case upon both the law and the evidence as in suits of an equitable nature. Rule 73.01(3)(a). We undertake this review only in respect to the specific matters urged on appeal by appellant. DeBow v. Higgins, 425 S.W.2d 135, 140[2] (Mo.1968); L.S. v. L.M.S., 538 S.W.2d 753, 754 (Mo.App.1976).

The evidence indicated that plaintiff had received a title to the 10.3 acres of land by deed on March 8, 1956. Although unsupported by record evidence, in cross-examination, she admitted conveying a remainder interest in the land in 1967 without consideration to her son and daughter retaining a life estate. On July 11,1973, she saw some men and equipment digging across the south boundary of her land and destroying trees. They dug a trench about a foot wide and some three feet deep and anywhere from eight to twelve feet from the south boundary line. Mrs. Layman testified that prior to July 11,1973, the fair market value of her property was $35,000 and that thereafter, after telephone wires had been layed in the ditch and covered up, the market value was $20,000 or a difference of $15,000. By answers to interrogatories directed to Southwestern Bell Telephone Company, this defendant admitted that it had employed Wright Tree Service to perform the work of installing the telephone wires on the property of plaintiff. Defendant Wright Tree Service also admitted installing the v/ires under contract with Southwestern Bell Telephone Company.

The theory of the defendants in defense of their action in going upon plaintiff’s property and installing a telephone cable beneath the surface of the ground was that defendant Southwestern Bell Telephone Company had received an assignment of an easement originally executed by owners of the land prior to the conveyance to plaintiff Layman and further that Mrs. Layman had given her permission for the installation of the cable across her land. In support of their easement defense, a recorded instrument entitled “Easement” executed by Ferdinand Kramme and his wife to Union Electric Company of Missouri dated March 1, 1946, was introduced in the evidence. Defendants claimed assignment of this easement by a document entitled “Joint Use Agreement” between Southwestern Bell Telephone Company and Union Electric Company. It is in the introduction of these documents, the easement to Union Electric and the alleged assignment of the easement rights of Union Electric to Southwestern Bell by the Joint Use Agreement, that plaintiff’s contentions on appeal are grounded. Preliminary to a discussion of these points, it should be pointed out that “prejudicial error” or “reversible error” in the admission or rejection of evidence is not. an issue on an appeal in a case tried before the court. As stated in Menos v. Hodges, 499 S.W.2d 427, 429[4] (Mo.1973), “[t]he issue is whether the evidence should have been admitted and considered, or rejected and not considered, and when that issue is determined the next issue is what the judgment of this court should be, based upon a consideration of the competent and admissible evidence.” When the evidence is admitted improperly, if other competent evidence supports a judgment in a court-tried case, harmless error results. But we do not consider evidence improperly admitted. Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 170[5, 6] (Mo.App.1975).

Plaintiff’s first point relied on to reverse the trial court contends that the court erred when it permitted the defendant Southwestern Bell to introduce evidence of an easement when it had pleaded only a general denial and not an affirmative defense of easement to plaintiff’s claim of trespass. It was the theory of Southwestern Bell that it had a right of easement across plaintiff’s land and that this right of easement was supported by two documents. As previously described, one was an easement which had been granted to Union Electric Company and the other was an assignment of this easement right by a joint use agreement. When defendant Southwestern Bell attempted to introduce the easement as its first exhibit, plaintiff objected on the grounds that an easement is an affirmative defense and that the answers of both Southwestern- Bell and Wright Tree Service failed to set this defense out affirmatively. The court overruled the objection and allowed the introduction of the easement. The question now posed is whether right of entry by easement is an affirmative defense in an action for trespass.

Rule 55.08 specifies that certain named affirmative defenses shall be pleaded to a preceding pleading. In addition to those named, which does not include “easement,” the rule specifies “and any other matter constituting an avoidance or affirmative defense.” In applying Rule 55.08 and in determining what defenses must be affirmatively pleaded as a condition to the admissibility of such evidence at the trial, the test applied is whether the defendant intends to rest his defense upon some fact not included in the allegations necessary to support the plaintiff’s case. A general denial places in issue all of the material allegations contained in plaintiff’s petition necessary to support his claim and the defendant is entitled to prove any fact which tends to show plaintiff’s cause of action never had any legal existence. On the other hand, if the defendant has a defense in the nature of a confession of the facts of the plaintiff’s petition but avers that the plaintiff’s theory of liability even though sustained by the evidence does not apply to it because of additional facts which place defendant in a position to avoid any legal responsibility for its action, then such defense must be set forth in his answer. Semo Grain Company v. Oliver Farms, Inc., 530 S.W.2d 256, 258[1] (Mo.App.1975). It seems clear that the right of defendant to enter upon the land to which plaintiff has indisputable possessory right would have to be proven by some competent evidence which would give that right to defendant. This would not be in derogation of plaintiff’s claim by way of showing that her claim was nonexistent but rather that despite her claim, the defendant had a positive right to enter and disturb the possesso-ry rights of the plaintiff. Thus it is the obligation of a defendant in an action for trespass to affirmatively plead and prove matters in justification. Corrington v. Kalicak, 319 S.W.2d 888, 894[9] (Mo.App.1959); Schmidt v. City of Tipton, 89 S.W.2d 569, 572 (Mo.App.1936). It should also be noted that another form of authority to go upon land, that is a license, is specifically mentioned in Rule 55.08 as an affirmative defense. The conclusion is therefore inescapable that plaintiff’s objection to the introduction of the easement evidence when it was not pleaded in justification of the trespass should have been sustained.

The question then remains is to whether there is sufficient competent evidence which would sustain the judgment of the lower court for the defendants. Defendants assert that there is such evidence and that the evidence upon which they rely proves consent on the part of the plaintiff to entering the land, digging the trench and laying the cable therein. The evidence upon which they rely is testimony of an engineer employed by Southwestern Bell Telephone Company who testified that he talked to Mrs. Layman at her residence concerning the placing of a buried cable across her land. The following questions were asked of this witness and the answers given in response thereto:

Q. Did you ask her permission at that time to do that?
A. I asked her; yes, sir.
Q. Did she give you permission?
A. She didn’t object.

Mrs. Layman denied that she ever had such a conversation and further testified, without contradiction, that she asked the men installing the cable to leave. Even under the most favorable inference that we give this testimony, we cannot infer that consent was given. There is a complete absence of facts proving consent in the testimony of defendants’ witness. Silence may in some instances give rise to an inference that consent has been given, State v. Stanfield, 1 S.W.2d 834, 836[2, 3] (Mo.1927), but “consent” in its usual and accepted sense is an “expressed willingness” for the action to be taken or done for which permission is sought. Casserly v. Bench, 521 S.W.2d 395, 396 (Mo. banc 1975). In the situation here presented, we determine that the failure of Mrs. Layman to object at the time that the announcement was made to her that the Southwestern Bell Telephone Company would run a cable across her property cannot be implied to show consent to that action. There is then a failure of competent properly admitted evidence to prove that defendants were entitled to enter upon the land of plaintiff and after digging a trench, install a telephone cable. Plaintiff’s first point relied on is therefore well-taken and we must reverse and remand.

We make a brief reference to two other points raised by the plaintiff for the reason that they may be at issue again on retrial. In plaintiff’s second contention it is asserted that the easement granted Union Electric, which is one of the easement papers relied upon by the defendants, was improperly admitted because the instrument was not properly notarized. The instrument was executed by Ferdinand Kramme and his wife and was witnessed by “Geo. W. Tiley.” A certificate was taken of “George W. Tiley” wherein he was reported by the notary public as stating that he saw the Krammes subscribe their names to the instrument, heard them acknowledge that they executed the same as their free act and deed and that they were the persons who executed the same. The certificate further stated that George W. Tiley subscribed his name to such instrument as a witness thereof at the time of the execution of said instrument and with the knowledge and consent of the parties executing the same and that George W. Tiley was known to the notary public and his name was subscribed to the instrument as a witness. This type of acknowledgement of a witness is authorized under §§ 442.260-442.290, RSMo 1969, and cannot be attacked on the basis that it was not notarized. The other complaint that “Geo. W. Tiley” and “George W. Tiley” may not be the same persons is resolved by the certificate itself which states that “George W. Tiley” is the person who subscribed his name to the instrument as a witness thereof and after such certificate, no question of identity can be properly raised. There is also an objection to the instrument being recorded before the date of the certificate. The date of the certificate was October 15,1947, and it appears to us from the copy of the instrument submitted in the exhibits that the recording was October 17, 1947, which interpretation is further borne out by the fact that October 12, 1947, the date seized on by plaintiff as being the date of recording, is a Sunday when the recorder’s office would be closed.

The final point raised by plaintiff concerns the admission of a copy of the joint use agreement which allegedly transferred the easement rights of Union Electric to construct an underground cable to Southwestern Bell Telephone Company. The copy was one obviously made by some duplicating process and was not an original executed copy of the instrument. It was objected to by plaintiff as not being the best evidence. The court sustained the objection with permission to introduce a copy upon the assurance by Southwestern Bell’s counsel that the original would be brought into court. The record does not disclose that this was done and the plaintiff is correct in its contention that absent agreement the duplicated copy was not properly admitted. Although this was one of the contested issues on appeal, a reading of the contents of this document indicates that it has no assignment clause of any right to subsurface easements but only concerns the rights of the parties to make joint use of utility poles.

The judgment is reversed and the cause remanded for new trial.

KELLY, P. J., and GUNN, J., concur.

      . Although this case has been considered as a trespass case by both parties and the court, because permanent damages were sought and proven under the value formula, it would actually seem to be a suit in the nature of inverse condemnation. Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66 (Mo.App.1952), transferred 363 Mo. 751, 253 S.W.2d 785 (1953); Harris v. L.P. and H. Construction Company, 441 S.W.2d 377 (Mo.App.1969). Punitive damages are compatible with a claim for permanent damages. Hayden v. Grand River Mutual Telephone Corporation, 440 S.W.2d 161 (Mo.App.1969).


author: KELLY, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Amos W. BRUCE et al., Defendants-Appellants.
    No. 38936.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 21, 1977.
    As Modified on Court’s Own Motion July 26, 1977.
    Application to Transfer Denied Sept. 12, 1977.
    Amos W. Bruce, pro se, for defendants-appellants.
    Courtney Goodman, Pros. Atty., James J. Cook, Patrick Clifford, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   KELLY, Presiding Judge.

This is an appeal from a proceeding under the provisions of § 149.055.2 RSMo.1969, and a judgment of the Circuit Court of St. Louis County forfeiting to the State of Missouri a 1970 Chrysler Tudor automobile seized from Amos W. Bruce on June 15, 1976, when he was arrested in Clayton, Missouri, on a charge of possession of unstamped cigarettes with intent to sell in violation of § 149.051 RSMo.1969. Pursuant to the authorization of Rule 81.13 a “Partial Transcript,” approved by the trial judge, counsel for the state and the defendant, Amos Bruce, was filed in this court.

As best we can glean from the transcript, the basis for this appeal is “the failure of the lower court to observe the statutory law of the State of Missouri, namely Section 610.105 V.A.M.S.”

To ascertain the points to be considered on appeal we turn to defendant’s brief. The following are the Points Relied On as they appear in the defendant’s brief:

“I
The Prosecuting Attorney is forbidden the use of nolle-prossed records as pertains to a misdemeanor charge in any proceeding, including any further litigation.
II
Under the established rules of statutory interpretation, the court cannot interpolate words or phrases into a clearly enacted statute and when said statutory enactment is clear and concise, it must not be eluded under the pretext of grasping its intention.
III
The use of nolle-prossed records creates a violation of the citizen’s statutory rights in the event of an appeal to an appellate court.”

It is apparent that these Points Relied On are in violation of Rule 84.04(d) in that they constitute nothing more than abstract statements and do not “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, . . . Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.” Defendant has therefore preserved nothing for this court to review.

Defendants chose to appear in both the trial court and in this court in propria persona. We have been directed to no evidence that they are indigent nor have requested the appointment of counsel on that grounds. Having elected to conduct their own defense they are bound by the same rules of procedure as are those admitted to the practice of law, and are entitled to no indulgence they would not have received if they were represented by counsel. Collector of Revenue of the City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens et al., 531 S.W.2d 100[2] (Mo.App.1975).

Judgment affirmed.

WEIER and GUNN, JJ., concur.


author: PRITCHARD, Chief Judge.

text:
    The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Relator, v. The Honorable Lewis W. CLYMER, Respondent.
    No. KCD 29495.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Taylor Fields, John C. Noonan and Sheryl B. Etling, for relator; North, Colbert & Fields, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.
    Norman Humphrey, Jr., Independence, for amicus curiae, Missouri School Bds. Assn.; Burns & Humphrey, Independence, of counsel.
    Robert J. Reinhold, Kansas City, for ami-cus curiae, John E. Keane.
    William A. Jolley, Doyle R. Pryor, Donald M. Fehr, Kansas City, for respondent; Jol-ley, Moran, Walsh, Hager & Gordon, Kansas City, of counsel.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ., sitting as the Court en banc.
   ORIGINAL PROCEEDING IN PROHIBITION

PRITCHARD, Chief Judge.

The preliminary rule in prohibition, the return thereto, and the traverse to the return seek to test the power and authority of respondent judge to enter a memorandum and order of May 6, 1977, amending a temporary injunction dated April 13,1977. The temporary injunction enjoined defendants, Kansas City, Missouri, Federation of Teachers, Local 691 (AFL-CIO), and all of its members from “(1) participating in any strike, concerted walkout, concerted work stoppage, concerted refusal to teach or work, concerted breach of employment contracts, or concerted interference with other teachers’ employment contracts; or any other acts of coercion against plaintiff [The School District of Kansas City, Missouri], its employees or its property; (2) establishing or maintaining or participating in any picket line on or around any of plaintiff’s schools or other of plaintiff’s premises, where the purpose of such picketing is to cause or attempt to cause others to fail or refuse to report for work”, in Case No. CV77-0968 pending in the Circuit Court of Missouri, Sixteenth Judicial Circuit.

A temporary restraining order had been issued against certain named individuals and the teachers’ union on March 20, 1977, and an order to show cause why a temporary injunction should not be granted. Many of the teachers had been on strike, as called by the union, after March 21, 1977, which resulted in citations for contempt of the temporary restraining order, and resultant fines and incarceration, which are not really relevant to the issues here presented, except that they were a part of the overall situation which prompted respondent judge to initiate procedures aimed at an amicable resolution of the strike and the return to work of all teachers and other district employees who were involved. Pursuant to this salutary purpose, respondent, on April 15, 1977, appointed Mr. Sal A. Capra, Esq., as a liaison officer, after which “Mr. Capra has been conferring with the parties and to secure a return to an orderly education system and a resolution of the existing controversy.” As a result of Mr. Capra’s reports and his recommendations, the court entered, without participation by relator and over its objection (as is apparent from its petition for writ of prohibition herein), the May 6, 1977, amendment to the temporary injunction, as follows:

“1. The parties are directed to act in good faith for the purpose of effecting the end of the strike, the cessation of related activities and the normalization of the educational process in the District.
2.All employees, including those terminated since March 20, shall be allowed to return to work without loss of accumulated seniority or District Service and be issued contracts or (in the case of non-certified employees) be otherwise renewed for employment for the 1977-1978 school year with the assurance of the Board and the Administration that all teachers and employees shall be treated equally and fairly and that no one shall be discriminated against because of his or her part in the events that have transpired since March 20, 1977.
3. The Union shall end the strike and all picketing against the School District within forty-eight (48) hours.
4. The District may investigate, evaluate and deal with any alleged acts of teachers or other employees occurring during the period from March 20, 1977, through the end of the strike in accordance with Missouri law and the provisions of this Order. The School District shall not terminate the employment of any teacher or other employee because of strike activities unless it is proven with due process that such person engaged in violent acts causing physical injury to persons or damage to property.
5. With the exception of termination of employment or non-renewal of contracts of employment for violent acts causing physical injury to persons or damage to property, neither the School District nor the Union nor any of its officers, agents, employees or members shall discriminate against any teacher because of that employee’s peaceful participation or nonparticipation in the strike.
6. Any teacher not reporting for work within seven (7) calendar days following the end of the strike may be subjected to appropriate proceedings under the Teacher Tenure Act for excessive or unreasonable absence except, however, that such seven (7) calendar day period may be extended for good cause upon written application to the Board of Education.
7. Upon cessation of the strike, the discussion teams representing the School District and the Kansas City, Missouri Federation of Teachers, Local 691 (AFL-CIO) shall meet, confer and discuss in good faith at reasonable times and places in an effort to resolve the issues between said parties, including but not limited to the issues of dues check-off and loan status.”

The preliminary rule in prohibition ordered that respondent refrain from enforcing these parts of the memorandum and order, with denoted exceptions:

“(a) All of Paragraph 2, EXCEPT that all employees, including those terminated since March 20, 1977, shall be allowed to return to work without loss of accumulated seniority or District service, except those who have been terminated for various and sundry reasons wholly unrelated to the strike.
(b) All of Paragraph 4, EXCEPT that the District may investigate, evaluate and deal with any alleged acts of teachers or other employees occurring during the period from March 20, 1977, through the end of the strike in accordance with Missouri law.
(c) All of paragraph 5.”

Apparently relator has in its discretion met with representatives of the teachers’ union to discuss problems of mutual interest although § 105.510, RSMo 1969, excepts “teachers of all Missouri schools, colleges and universities” as having the right to join labor organizations and bargain collectively. It is stated in relator’s brief that “The Kansas City, Missouri Federation of Teachers, Local 691 (AFL-CIO) (hereinafter referred to as the ‘union’) is a labor organization which is recognized by Relator as the nonexclusive agent of defendant teachers.” No issue is presented as to whether the teachers’ union has any right at all to negotiate with relator.

It is without question, however, that the teachers’ strike was illegal. It was so conceded by respondent’s counsel in argument before this court. Although not within the ambit of restrictions against strikes by employees under § 105.530, RSMo 1969 (and § 105.510), the teachers’ strike was violative of the common law. City of Grandview v. Moore, 481 S.W.2d 555, 557[1, 2] (Mo.App.1972), citing 51A C.J.S. Labor Relations § 306, p. 104; and St. Louis Teachers Ass’n v. Bd. of Ed., etc., 544 S.W.2d 573, 575 (Mo. banc 1976).

What respondent’s order of May 6, 1977, does is to invade the legislative prerogatives of the Board of Education of the Kansas City School District. It is provided by Mo.Const., Art. IX, § 1(a), that the “general assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years as prescribed by law.” Pursuant to this constitutional direction the general assembly enacted various statutes establishing and regulating public schools. Among these is relator which comes within § 160.011, RSMo (Supp.1975); and the government and control of it is vested in a nine member Board of Directors (§ 162.471) who are elected by the residents of the district (Kansas City, Missouri) under §§ 162.481 through 162.492. The Board of Directors is empowered by § 171.011 to make “all needful rules and regulations for the organization, grading and government in the school district.” As more directly pertinent to the validity of respondent’s order of May 6, 1977, are §§ 168.102, et seq., known as the “Teacher Tenure Act”, one of the purposes of which is to protect competent and qualified teachers in the security of their positions. Hirbe v. Hazelwood Sch. Dist., 532 S.W.2d 848, 850[1, 2] (Mo.App.1975), and cases and authority cited. Definitions are set forth in § 168.104: The “Board of Education” is the school board or directors having control of the affairs of the school district; an “indefinite contract” is one between the district and a permanent teacher who is one having been employed for five successive years in the district; a probationary teacher is one who has been so employed five years or less. The indefinite contract between the district and a permanent (tenured) teacher shall continue for an indefinite period subject only to the conditions enumerated in § 168.-106, but the indefinite contract may be modified for the ensuing year on or before April 15th by the board as to the length of the school year, and in fixing the amount of annual compensation for the following school year as provided by the board’s adopted salary schedules applicable to all teachers by § 168.110. The indefinite contract shall not be terminated by the board except for one or more of the causes listed in § 168.114, the notice of charges and procedure for hearing being prescribed by § 168.116 and § 168.118, and the appeals to the circuit and appellate courts is provided by § 168.120. Probationary, non-tenured teachers may be terminated immediately or at the end of a school year upon the board’s compliance with the provisions of § 168.126. Non-certified (nonteacher) employees may be employed by the board under § 168.201 and it may prescribe their powers, duties, compensation and term of office or employment which shall not exceed 3 years.

The foregoing statutes obviously grant to the boards of education or directors of school districts broad powers and discretion in the management of school affairs. It is a continuation of the legislative function first vested in the General Assembly. State ex inf. Eagleton v. Van Landuyt, 359 S.W.2d 773, 777[1] (Mo. banc 1962). These broad powers include the matter of tenure (employment and termination of employment, and the fixing of compensation) subject to the guidelines of the statute and to due process of law considerations, and subject also that in the exercise of its powers a board may not act in an unreasonable, arbitrary, capricious or unlawful manner. Other than in these aspects a court may not interfere. Magenheim v. Board of Education, 347 S.W.2d 409, 417 (Mo.App.1961); Adamick v. FergusonFlorissant School District, 483 S.W.2d 629, 632[7] (Mo.App.1972). Respondent has exceeded his jurisdiction in interfering with the discretion legislatively granted to relator in dealing with its employees and prohibition therefore lies to prevent enforcement of his May 6, 1977 order (State ex rel. Taylor v. Nangle, 360 Mo. 122, 227 S.W.2d 655, 657[4, 5] (banc 1950), it being an interim order from which relator has no remedy by appeal. It should be noted, however, that respondent’s May 6,1977 order had the practical effect of getting a majority of relator’s employees back to work, thus ending the strike. In this connection, in view of the increasing number of cases involving discord and disputes between large number of employees and employers in the public sector, and the difficulty in resolving them by use of the remedy of injunction and the resultant harsh remedy of contempt proceedings against those who disobey the injunction, and the impracticality of quickly hearing and disposing of large number of contempt proceedings arising out of a dispute, it may be that the General Assembly, in its wisdom, will continue to address itself to other available solutions to good faith disputes, such as binding arbitration awards, mediation and the like. See the discussion of these possibilities, 48 Am. Jur.2d Labor and Labor Relations, § 1196, p. 750; and 36 Mo.L.Rev. 167 (1971), where at page 181, footnote 49, the author says, “The weight of evidence suggests that the enactment of positive legislation is the best way to harness and direct the energies of public employees eager to have a voice in determining their conditions of work. Such legislation will not eliminate all disputes and may not eliminate all work stoppages, but it will produce some rational methods for dealing with them.”

Respondent contends that his May 6,1977 order was justified in ordering relator to allow employees to return to work and be issued contracts or (in the case of non-certified employees) be otherwise renewed for the 1977-1978 school year, etc., and that relator not terminate the employment of any teacher or other employment because of strike activities, because it preserved the status quo pending a trial on the merits. What the order does, in effect, is to require relator to issue contracts for the ensuing year and not to take “reprisal” action against teachers or other employees for participating in the illegal strike far beyond that required pending a determination of the issues in the action seeking a permanent injunction. Respondent attempted to go beyond that which would prevent defeat or impairment of his jurisdiction pending determination of the petition seeking a permanent injunction. In United States v. Moore, 427 F.2d 1020 (C.A.10th, 1970), the order appealed from enjoined F.A.A. from taking any administrative action against illegally striking defendants for their participation in a work slowdown. At page 1023, the court said, “However, upon the conclusion of the initial lawsuit in the district court, the F.A.A. will be free to impose against the defendants whatever sanctions are authorized by the applicable administrative regulations.” In this quote, the Moore ease may be distinguished because relator here will be prevented from imposing whatever sanctions may exist under Chapter 168, RSMo 1969, by reason of restoration of employment and issuance of new contracts. So also with the cited cases, Brotherhood of L. E. v. Missouri-Kansas-T. R. Co., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379 (1960); and United States v. Plasch, 75 LRRM 2231 (C.A.7th, 1970).

The preliminary rule issued herein was based upon the allegations of the petition for writ of prohibition. Upon development of the issues by the parties upon full briefing and argument, it appears that the preliminary rule was in some aspects too broad, and in others, too narrow. It permitted respondent’s order of May 6, 1977, to stand in its requirement that relator allow its employees to return to work without loss of accumulated seniority or district service, which was too broad. It required relator through a discussion team to comply with respondent’s order to meet, confer and discuss in good faith with the Union at reasonable times and places in an effort to resolve the issues between the parties (Paragraph 7 of respondent’s order) which was too narrow. The preliminary rule therefore also interfered with relator’s statutory prerogatives above discussed. Consequently, respondent is absolutely prohibited from enforcing in its entirety his May 6, 1977, amendment to the temporary injunction. Of course, respondent’s temporary injunction of April 13, 1977, still stands.

All concur.


text:
    STATE of Missouri, Respondent, v. Billy McKINNEY, Appellant.
    No. KCD 28883.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and PRITCH-ARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

By a verdict of a jury appellant was convicted of the commission of the crime of burglary in the second degree. Upon a finding that appellant was a second offender, the court sentenced him to five years in the Department of Corrections.

Two points are presented. The first is that the trial court committed error in refusing to permit appellant to argue to the jury that it could draw an unfavorable inference from the state’s failure to produce evidence of matching pry marks on victim Danny Paradise’s door with a knife taken from appellant, or otherwise connecting the knife with the burglary; and to argue the same inference as to the state’s failure to produce evidence of appellant’s fingerprints inside the Paradise home. The second point is that the court erred in admitting into evidence State’s Exhibit 6, the knife taken from appellant on his arrest (acknowledged by him to the arresting officer to belong to appellant) because there was no foundation laid; there was no evidence showing the knife’s role in the burglary; it was irrelevant; and was highly prejudicial.

The sufficiency of the evidence to sustain the conviction is not challenged. With respect to the points presented, on December 9,1975, Danny Paradise, prior to leaving for work, checked the rear door of his residence and found it locked. He locked the front door and left. At about 6:25 p.m., Paradise took a break from work to pick up his wife and son, and on the way he passed his home and noticed that the front door was partially open, and as he pulled to the curb he saw someone sticking his head out of the front door. Paradise got a disassembled pistol from his glove compartment, assembled it and went toward the house. He then saw two men run from the residence. One of them, appellant, whom Paradise identified in court, escaped by jumping a railing and the other ran into the house where he was apprehended by Paradise. He called the police, and when they arrived they found a hasp had been pried from the front door which had been forced open. Contents of the house were in disarray.

Richard Brown investigated the burglary and identified photographs of the scene of the crime showing the broken door hasp and the disarray of the interior of the home. The photograph of the door, which was before the jury, showed it had been pried away from the door facing, and the other end, with a padlock, was still attached to the door, and was hanging down. Brown arrested appellant about 3 hours later and found upon him the knife which appellant then said belonged to him. The knife which is before this court and was before the jury has a blade 4% inches long which folds into its handle. Its blade tip is bent and scarred about one inch back, with a greater bend about xh inch from the point of the blade. Brown testified that the knife was in that condition when it was handed to him by appellant, but no other evidence with regard to the knife’s role in the burglary was offered.

Appellant relies upon such cases as State v. Johnson, 536 S.W.2d 851, 856 (Mo.App.1976); State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648 (1942); State v. Denmon, 473 S.W.2d 741, 745 (Mo.1971); and Adam Hat Stores v. Kansas City, 307 S.W.2d 36 (Mo.App.1957), to support his argument that he was entitled to argue an unfavorable inference to the jury of the missing evidence of matching pry marks on the door and the lack of evidence of appellant’s fingerprints. The cited cases are representative of the well-established rule that one may argue that testimony of an uncalled witness, who is not equally available to the parties, would be unfavorable. Brown, however, was a witness, and appellant had ample opportunity to develop from him the facts, or lack of facts, concerning the pry marks and fingerprints. State v. Dethrow, 510 S.W.2d 207, 210[4] (Mo.App.1974), and cases cited. Brown was thus equally available to both parties at trial. There is no evidence that the pry marks were not matched with the knife blade, or that no attempt was made to secure evidence of fingerprints. What counsel was attempting to do was to argue matters not in evidence which is impermissible. State v. Cuckovich, 485 S.W.2d 16, 27 (Mo.banc 1972), under this record — where there was no showing, either positively or negatively, that it existed, or that it was suppressed by the state. Cf. 31A C.J.S. Evidence § 156(1), p. 391; and note State v. Swing, 391 S.W.2d 262, 265 (Mo.1965), where it was said, “And while counsel may have a wide latitude in commenting on the fact that certain evidence is. not offered, it is indeed improper to ‘charge the adverse party with the suppression and concealment of evidence unless such charge is supported by the evidence.’ 88 C.J.S. Trial § 184, p. 361.” Furthermore, “It is not incumbent on the State to search for fingerprints and it is not error to refuse to let defendant comment on the absence of such evidence. State v. Terry, 472 S.W.2d 426 (Mo.banc 1971) [8].” State v. Wiggley, 515 S.W.2d 791, 792[2, 3] (Mo.App.1974). By analogy, under this authority, it was not encumbent upon the state to match the knife blade with the pry marks. Point I is overruled.

As noted, the evidence was that the hasp on Paradise’s front door was pried off. The knife found on appellant’s person had a bent, scarred blade. It is a reasonable inference for the jury to draw that it might have been used to pry the hasp. Before evidence can be excluded as irrelevant, it must appear to be so beyond a doubt. State v. Dethrow, 510 S.W.2d 207, 210[4] (Mo.App.1974). The evidence is “relevant to show that the accused owned, possessed or had access to tools, implements, or any other articles with which the particular crime was or might have been committed, and that he owned or had such weapons in his possession prior to or shortly after the commission of the crime * * * State v. Stancliff, 467 S.W.2d 26, 30[1] (Mo.1971). See also State v. Taylor, 506 S.W.2d 94, 95[1-3] (Mo.App.1974). The identification of a weapon allegedly used in committing a crime need not be wholly unqualified in order to make the instrument itself admissible as to the weight to be accorded the identification by the jury. State v. John son, 286 S.W.2d 787, 791[3, 4] (Mo.1956). The fact that the introduction into evidence of the knife might have been prejudical to appellant does not cause it to have been inadmissible, it being competent and relevant evidence. State v. Mullen, 528 S.W.2d 517, 523 (Mo.App.1975).

Here, the matter of the introduction of the knife was discussed with the trial court before trial, and the state stipulated that the fact that the knife was a concealed weapon would not be mentioned. No evidence of another crime, as contended, was in this case. Compare State v. Holmes, 389 S.W.2d 30, 33 (Mo.1965). Point II is overruled.

The judgment is affirmed.

All concur.