text:
    STATE of Missouri, Respondent, v. Ray MOOMEY, Appellant.
    No. 40134.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.

      Claude Hanks, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant was found guilty by a jury of carrying a concealed weapon and sentenced to two years imprisonment. Defendant appeals from this judgment.

The evidence shows that Officers Daniel Simpher and Richard Gregorc of the St. Louis Police Department were on patrol duty when they stopped a car in which Michael Colter, his brother Clyde Colter, and defendant Raymond Moomey were riding. Michael Colter was driving the automobile, defendant was sitting in the front passenger’s seat, and Clyde Colter was sitting in the rear seat, passenger side. The officers stopped the car because they could not read the license plates and because the trunk lock was punched out. The policemen stopped their patrol car immediately behind the vehicle in which the three men were riding. Officer Simpher then approached the vehicle on the passenger’s side, while Officer Gregorc approached it from the driver’s side. As they neared the car both officers observed the driver bend over and apparently place something under the front seat. Officer Gregorc asked the driver of the automobile for his operator’s license. The driver identified himself and informed the officer that he had no license. He was then placed under arrest for driving without a license, and the two other men were asked to get out of the vehicle. As defendant got out of the front passenger’s seat, he told Officer Simpher he owned the car. Defendant was then arrested for permitting an unlicensed person to operate his motor vehicle and subjected to a pat down. Defendant was not given his Miranda rights at this time. In the course of this search Officer Simpher found a .22 caliber pistol in defendant’s right front coat pocket. Defendant was advised that he was under arrest for carrying a concealed weapon. The police officer then read defendant his Miranda rights for the first time. Defendant also stated that the gun belonged to his wife.

Prior to trial defendant moved to suppress the .22 caliber pistol. This motion was overruled and the trial proceeded. During the trial defendant testified in his own behalf that he was not carrying a weapon when apprehended by Officers Sim-pher and Gregorc. He also stated that he was placed under arrest only after the pat down and was never given a Miranda warning.

We deal first with defendant’s contention that the trial court erred in overruling his motion to suppress the .22 caliber pistol found on defendant because the search violated his constitutional rights. Defendant’s theory is that the warrantless search was not incidental to a lawful arrest and the defendant had given no indication that he would harm the officer or any one else.

Generally, a warrantless search is unreasonable under the 4th and 14th Amendments unless it is within one of the well-settled exceptions to the warrant requirement. One such exception permits a warrantless search if it is incidental to a lawful arrest. State v. Love, 546 S.W.2d 441, 450 (Mo.App.1976). This exception includes searches incidental to a lawful arrest for traffic violations. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Defendant was arrested for violating § 302.260 RSMo 1969, which prohibits an automobile owner or one in control from permitting an unlicensed driver to operate his automobile. Such a violation is a misdemeanor under § 302.340, RSMo 1969. The test for determining the legality of the defendant’s arrest, made without a warrant and for a misdemeanor, is whether the arresting officer had probable cause to believe that defendant committed the crime. § 84.090(10) RSMo 1969. See also State v. Hedrick, 534 S.W.2d 578, 581-583 (Mo.App.1976).

The evidence shows the car was stopped because its license plates were indistinguishable and the lock on the trunk door had been punched out. As soon as the officers approached the car the driver attempted to conceal something under the seat. The driver then informed the officers that he did not have a license. As defendant stepped out of the car, he told one of the officers that he owned the automobile. Defendant’s statement that he owned the vehicle was clearly voluntary and does not fall within the prohibition of Miranda. State v. Wintjen, 522 S.W.2d 628, 630 (Mo.App.1975). Under these circumstances the officer had probable cause to believe that defendant owned or controlled the car and that he was permitting an unlicensed person to drive it. Therefore, under these circumstances a limited search was proper. See Pennsylvania v. Mimms, 434 U.S. 106, 94 S.Ct. 330, 54 L.Ed.2d 331 1977). The court did not err in denying the motion to suppress.

Defendant’s second contention is that the trial court erred in denying his motion for a mistrial after the prosecutor, in rebuttal during closing argument, referred to the failure of defendant’s wife to testify.

A review of the transcript demonstrates that during the initial portion of his closing argument, the prosecutor stated that defendant’s own testimony was the only evidence that the gun belonged to defendant’s wife. He then referred to defendant’s wife and stated that she “could straighten this whole thing up.” Defendant made no objection at this time. During his closing argument, defense counsel himself referred to the wife’s failure to testify, and stated that the prosecutor would simply have attacked her credibility, had she been a witness. In rebuttal argument, the prosecutor again referred to the defendant’s failure to call certain witnesses, this time eliciting an objection and a request for a mistrial from defense counsel, who also pointed out to the court that the court had denied defendant the opportunity to call defendant’s wife. The court overruled the motion for a mistrial, but instructed the jury “that under the law applicable to this case, it would not permit that the wife could testify either on behalf of the State or the defendant.” The court then added, “Do not take this into consideration in reaching your verdict.”

In his brief, counsel for defendant argues that a mistrial should have been granted because the prosecutor’s comments violated Supreme Court Rule 26.08 and § 546.270 RSMo 1969, both of which prohibit comments on the failure of the defendant or defendant’s spouse to testify at the trial. However, the defense counsel did not object to the prosecutor’s original reference to the failure of defendant’s wife to testify. Moreover, he made reference to that fact in the defense portion of closing argument. By the failure to preserve his objection to the prosecutor’s original comments, State v. Harris, 534 S.W.2d 516, 518 (Mo.App.1976), and by the defense counsel’s own reference to the failure of defendant’s wife to testify, State v. Green, 549 S.W.2d 644, 646 (Mo.App.1977), defendant has waived his rights under Supreme Court Rule 26 and § 546.-270.

Finally defendant contends that the trial court erred in overruling his objection to a portion of the prosecutor’s closing argument in which the prosecutor allegedly referred to defense counsel’s having manufactured defendant’s testimony. The allegedly prejudicial comments were made in apparent response to the following statements made by defense counsel:

And Ray Moomey — You saw him on the witness stand. I didn’t have — There is no law to make me put Ray Moomey on the witness stand. You look at him — a 100 percent disabled person, no job. He’s on social security. He would be putty in the hands of any policeman or attorney. He got on the witness stand, and he couldn’t even talk good. He didn’t even know how to spell the name of his street for the reporter. The prosecutor would have you believe that he fabricated this whole story. And if you believe that, shame on you.

The prosecutor made the following statements in rebuttal:

He [defense counsel] comes in and says Ray Moomey doesn’t know what he’s doing; he doesn’t have the mental capacity to think of those things. Well, you heard Ray’s testimony. What did he say? No— no— yes. Maybe he didn’t think of that story. Ray Moomey is represented by somebody who is very able in this—

At this point defense counsel interrupted. However, his objection to this the above statement was overruled, his request that the jury be instructed to disregard the statement was refused, and his motion for a mistrial denied.

The prosecutor can argue from the record, within the bounds of professional decorum, that a witness’ testimony is false, but arguments alleging that the defense counsel has suborned perjury or fabricated the defense are improper. See State v. Davit, 125 S.W.2d 47, 54 (Mo.1938). The trial court is given wide discretion in the control of jury arguments and whether comments by the prosecutor are prejudicial. State v. Westmoreland, 541 S.W.2d 769, 772 (Mo.App.1976). We cannot say that the prosecutor’s comments implied that the defense counsel manufactured defendant’s testimony, even though the defense attorney took them as such. After the court overruled defendant’s objection, the prosecutor continued to discuss the case but made no reference to wrongdoing on the part of the defendant’s counsel. Nowhere else in the record does the prosecutor explicitly or implicitly accuse the defense attorney of fabricating his client’s defense. Moreover, the prosecutor’s further reference to the defendant’s mental capacity and the possibility of defendant having concocted a story was within the prosecutor’s right in closing argument to comment on the evidence and the credibility of the witness. We find no error here.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Otis A. KELLY, Respondent, v. DAIRY QUEEN ENTERPRISES, INC., Ulrich Thiesen and Cecilia M. Thiesen, d/b/a Dairy Queen Restaurants, Appellants.
    No. 39651.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied June 19, 1979.

      Anthony F. Vaiana, St. Louis, for appellants.
    Kortenhof & Ely, K. Steven Jones, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Otis Kelly, a self-employed heating and air conditioning repairman, was injured when a ladder upon which he was climbing to the roof of a Dairy Queen restaurant at 609 Lafayette Street, St. Louis, Missouri, slid out from beneath him. He brought an action against Dairy Queen Enterprises, Inc., and the individual franchise operators of the restaurant for damages for personal injuries sustained in the fall. The jury returned a verdict for $40,000, and defendants have appealed. We reverse.

On Wednesday afternoon, November 26, 1975, at about 3:00 o’clock respondent made a service call to the Dairy Queen restaurant. When he arrived it was snowing heavily but there was little accumulation of snow. The equipment needing repair was the “blower assembly unit” for the furnace, and it was located on the roof of the building. The only means of access to the roof was by use of a ladder on the outside of the building. Plaintiff was familiar with the building because he had been there thirty or forty times for service calls. He used his own aluminum extension ladder which was equipped with “rubber feet.” Plaintiff climbed the ladder to the roof, disconnected the “blower assembly unit” which weighed about 30 pounds, and carried it down the ladder. He was on the roof about an hour, and while there it snowed several inches. The following day was Thanksgiving and the restaurant was closed. Plaintiff was asked to return the unit on the following Friday which he did about 8:30 o’clock in the morning. Over Thanksgiving Day there had been an accumulation of approximately 6 to 8 inches of snow. None of the snow had been removed from the west side of the parking lot where he had placed his ladder the previous Wednesday. Plaintiff testified that snow had been removed from in front of the building and from a portion of the east side, but the manager of the restaurant testified that at the time plaintiff came to the building on Friday he “had not cleared anything yet.”

The building faced south, and the ground sloped from west to east. Plaintiff placed his truck on the west side of the building and placed his ladder a few inches from the side of the truck and near the same place he had placed the ladder two days earlier. He saw what appeared to be a “clear spot,” and he placed the left leg of the ladder on that spot and placed the right leg “into the snow.” He then “jumped up and down * * * on the bottom rung” a couple of times and it “seemed quite solid.” He then obtained the blower unit from his truck and started up the ladder. When he was “just looking over the edge of the roof” the ladder “just slipped out” from under him, and he fell about twelve feet and was injured.

Plaintiff saw no ice on the parking lot, and no one told him there was ice under the snow. The west side of the lot did not appear to plaintiff to be “any worse on Friday than it was on Wednesday.”

Plaintiff did not clear the snow where he placed his ladder because “snow will usually hold it [the ladder] rather than cause it to slide.” When asked if it was his experience that “you get less slip with a ladder if you put it in the snow rather than on the bare ground,” plaintiff replied “the snow seems to hold it,” but if he had a choice he did not prefer to put the ladder in snow rather than on asphalt. However, he stated that he “didn’t think that the snow would be slippery,” and he thought he exercised due caution. After the ladder slipped he did not examine the area where it had been to see if there was any ice there, and in his testimony he did not state what caused the ladder to slip.

Mr. James P. Crowder, manager of the Dairy Queen, testified that at the time plaintiff was injured snow had not been removed from the areas on the north and west sides of the building, and that he did not know “if there was snow or if it was clear there or what.” On deposition, which was read into evidence, he testified that he did not know if there had been any “overnight melting of the snow or if it had melted the day before.” He was asked: “Do you know if there was a layer of ice covered by snow or do you have any knowledge one way or another?” He replied: “Well, I would say it was, had to be some ice out there.”

Plaintiff submitted his case against Dairy Queen Enterprises, Inc. and Ulrich and Cecilia Thiesen, the franchise owners, on the basis that “there was a hidden layer of ice underneath the snow on the parking lot and that as a result the parking lot was not reasonably safe for the public, * * *.”

Plaintiff, as an independent contractor, was a business invitee. Enloe v. Pittsburgh Plate Glass Company, 427 S.W.2d 519 (Mo.1968). The applicable rules governing the liability of defendants in this factual situation appear in Restatement of Law of Torts, Second (1965), §§ 343 and 343A(1).

§ 343: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.”
§ 343A(1): “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

The basis of a proprietor’s liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107 (Mo.1974). However, if the dangerous condition is obvious and known, or in the exercise of ordinary care should be known by the invitee actionable negligence is not established. Heine v. John R. Thompson Co., 330 S.W.2d 867 (Mo.1959); Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623 (Mo.1958); Schmoll v. National Shirt Shops of Mo., 354 Mo. 1164, 193 S.W.2d 605 (1946); Hokanson v. Joplin Rendering Company, Inc., supra.

There is no direct evidence that ice under the snow was the cause of the ladder slipping. Plaintiff saw no ice and was not told that ice was present. He did not examine the area after the ladder slipped to determine the cause, and no such examination was made by the defendants.

By his instructions plaintiff submitted that there was a “hidden layer of ice underneath the snow.” This according to plaintiff, constituted the “defective condition” which resulted in an “unreasonable risk of harm” of which defendants had “superior knowledge” and of which he was not aware and in the exercise of ordinary care could not have been aware. As proof of defendants’ superior knowledge plaintiff relies on the answer of Mr. Crowder given on deposition and read into evidence, and which is quoted above. He contends that this answer constituted “some evidence of superior knowledge” on the part of defendants.

The answer was given on deposition subsequent to the injury, and at most it constituted a speculative conjecture based on hindsight that after a six to eight inch snow there had to be some ice “out there.” In no way can this be construed to be an admission that prior to the accident Mr. Crowder knew that where plaintiff placed his ladder on the west side of the building there was a hidden layer of ice underneath the snow. But, assuming that some knowledge at the time of the accident on the part of Mr. Crowder of the presence of ice is indicated, in what respect was it superior to that of plaintiff? Mr. Crowder had no personal knowledge of the presence of ice under the snow. At most he assumed that when six to eight inches of snow occurred there had to be “some ice out there.” The duty or right to make that assumption would be equally applicable to plaintiff, and unquestionably more appropriate. Plaintiff was present at the location and looking for a safe place to stand the ladder. As stated in the Hokanson case, supra at page 114, “The ordinary care which an invitee must exercise to know and apprehend danger confronting him on premises to which he is invited must be considered in the light of the unusual circumstances surrounding cases such as this, where the invitee is actually in charge of the operation in which he is engaged, has control over the area of the premises where he is injured, is an experienced and skilled workman following his own devices in performing the work he has undertaken, and knows and appreciates the dangers involved in the use of ladders [in the snow] * * *. In such case he is ‘expected to employ his superior skill and knowledge to avoid injury to himself.’ ” Plaintiff was not a servant ordered by defendant to go where he did. He was an experienced heating and air conditioning serviceman using his own equipment and following his own devices. He knew the conditions he was to cope with and the need for precaution as evidenced by his search for a “clear spot” to place one leg of the ladder and by his jumping up and down on the bottom rung. Under these circumstances defendants cannot be charged with liability for the unfortunate occurrence.

Plaintiff’s contention that defendants did not preserve for appeal their contention that the trial court erred in overruling their motion for a directed verdict is overruled.

Judgment is reversed and the cause remanded with directions to set aside the verdict and judgment and enter judgment for defendants in accordance with the motion for directed verdict.

DOWD, P. J., and CRIST, J., concur.


author: DOWD, Presiding Judge.

text:
    LIGON SPECIALIZED HAULER, INC., a corporation, Plaintiff-Appellant, v. INLAND CONTAINER CORPORATION, a corporation, Defendant-Respondent.
    No. 38226.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 24, 1979.

      Robert C. Ely, Robertson, Ely & Wieland, St. Louis, for plaintiff-appellant.
    Eugene Buckley, Evans & Dixon, Elbert Bonnett, St. Louis, for defendant-respondent.
   DOWD, Presiding Judge.

A case of negligent misrepresentation.

This is an appeal from the judgment of the Circuit Court of the County of St. Louis in which the Court set aside the jury’s verdict awarding $5,500 to the plaintiff-appellant, and entered judgment for defendant-respondent in accordance with respondent’s motion.

Appellant contends that the Court erred in entering judgment favorable to the respondent because a) there was sufficient evidence to support the jury’s finding of negligence b) the respondent’s misrepresentation of the weight of the load was a direct cause of the damages sustained by the machinery, and c) the appellant and its driver were not contributorily negligent as a matter of law.

Appellant, Ligón Specialized Haulers, Inc., instituted the action below to recover $13,360 in expenses incurred as a result of damages sustained by machinery transported by appellant for respondent Inland Container Corporation. The record discloses that the latter corporation is in the business of manufacturing and shipping corrugated boxes. Inland’s shipping foreman, Sloman Miller, contacted William Lewellyn of Li-gón Specialized Haulers, to ship a Sheridian die cutter. Mr. Lewellyn asked Mr. Miller the weight of the machine and was told it weighed thirty to thirty-five thousand pounds and would require a flat bed truck for shipment. The bill of lading prepared by respondents contained the notation that the machine weighed 35,000 pounds “subject to correction”. In accordance with the information supplied in the telephone conversation, appellant furnished a flat bed truck to haul the machinery. Respondent’s maintenance crew loaded the machinery on the truck at its plant in Fenton, Missouri, after which appellant’s driver, Paul Russell, departed for Michigan.

Russell had the truck weighed at a weigh station in East St. Louis and discovered that the truck was overweight. The scales revealed that the machine weighed approximately 58,000 pounds causing the load to exceed the legal limit of 73,280 pounds by 9,200 pounds. Lewellyn notified Miller of the weight excess and was instructed to bring the truck back for reloading the following morning at 6 a. m. Before leaving the weigh station and while en route to Missouri, Russell rechecked the chains to insure that the load was secure. Upon entering the St. Louis Truck Port which had an uphill angular driveway, the machine broke loose and fell from the truck.

Appellant’s vice president contacted the consignee in Michigan to notify them of the damage to the machinery. It was estimated that the cost of repair would be $20,000 and would require 8-10 weeks. The consignee, G & L Industries, informed appellant that time was of the essence, as the die cutter was needed to fulfill a contract requirement. In anticipation of impending claims, appellant bought a die cutter from a Chicago corporation and forwarded it to G & L Industries. The substitute cutter was purchased by appellant for $11,000, whereas the initial cutter which was in poor condition at the time of sale, was purchased by G & L for $5000. Appellant prayed for damages of $13,360 representing $11,000 for the substitute cutter and $2,360 for expenses incurred in removing and shipping the original machine. Respondent’s motions for a directed verdict at the close of both party’s cases were overruled. The cause was submitted to the jury on theories of negligent misrepresentation, failure to warn, and contributory negligence and a verdict of $5,500 favorable to the plaintiff was returned. Following receipt of the verdict, the court sustained respondent’s motion for judgment in accordance with its motion for directed verdict at the close of all the evidence.

In this appeal the monetary amount of the jury’s verdict is not challenged.

Our review of the issue presented in the case consists of a consideration of the evidence and inferences therefrom favorable to the non-moving party, in order to ascertain whether reasonable minds could differ regarding the proper outcome of the case. Lesser v. Rubin, 548 S.W.2d 860, 864 (Mo.App.1977).

Although this cause may have also lent itself to analysis under federal agency regulations, Uniform Commercial Code principles, or the common law relating to shippers and carriers, appellant has styled this case in tort, specifically as one of negligent misrepresentation. The jury was instructed to find for the appellant if they believed: The respondent advised the appellant that the machinery weighed 35,000 pounds and the latter supplied a flat bed trailer in reliance upon respondent’s description; and, the machinery weighed approximately 56,000 pounds; and, due to the additional weight the machinery was apt to “shift and fall” from the truck while en route; and the respondent knew or could have known the machine weighed 56,000 pounds by using ordinary care, and failed to warn appellant of the machine’s true weight and was thereby negligent. The parties have submitted different analyses regarding the nature of the duty owed in a case of negligent misrepresentation.

Appellant has theorized that the Restatement of Torts, Second Edition, Section 311, defines the nature of the duty applicable to the present case:

“One who negligently gives false information to another is subject tc liability for physical harm caused by action taken by the other in reasonable reliance upon such information.” (At p. 106).

As appellant’s action was instituted to recover damages for expenses incurred, however, Restatement of Torts, Second Edition, Section 552, offered by respondent as the definition of the scope of the duty owed, is more applicable:

“One who, in the course of his business, profession or employment or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (At 126-127).

Although our research has revealed that Section 552 has not been expressly adopted in Missouri, we regard it as a persuasive frame of reference for the cause of action stated herein. The comment to this section contains the explanation that this duty extends to those parties to a commercial transaction who are aware that the information supplied is intended to be relied upon by the other party. In order to ascertain whether this standard of care is applicable, the following review of the record is necessary.

The evidence revealed that respondent’s shipping foreman, Sloman Miller, did not consult the home office in Indianapolis to ascertain the weight of the Sheridian die cutter. The weight estimate was offered to Miller by respondent’s master mechanic, Anthony Vendryzk. The latter deemed himself to be qualified to offer such an estimate because he had shipped a similar machine for the respondent in a prior year. In his deposition, Vendryzk characterized his estimate as a guess and admitted that although the record book was silent on the machine’s weight, he did not consult the home office for information on the issue. The record further reveals that Vendryzk also had guessed at the weight of the machine which he had previously shipped for the respondent, and upon which his supposed expertise was based.

Sloman Miller further testified that the weight of the machinery was not discussed in his initial conversation regarding the shipment with appellant’s terminal manager, William Lewellyn. The latter testified however, that the issue of weight is customarily discussed because it is a condition precedent to the type of truck to be provided. Lewellyn also testified that Miller requested a 40 foot flat bed truck. In compliance with Miller’s request for the particular truck and estimation that the weight of the machine was 35,000 pounds, appellant provided a flat bed truck. Had the true weight of the machinery been known to appellant, a low-boy truck would have been provided. Lewellyn had previously been employed as respondent’s shipping foreman. He testified that during his tenure with the respondent it was normal procedure to contact the home office in Indianapolis if the plant records were silent on the weight of a particular item to be shipped.

The record indicates that upon learning that the truck was overweight appellant consulted respondent for further instructions. When notified of the actual weight respondent’s shipping foreman replied, “you are kidding, can’t be”. Appellant was advised to return to respondent’s plant the following morning. Appellant’s driver headed for a truck port which was within two miles of respondent’s plant to spend the night. While en route the driver repeatedly checked the chains which secured the machinery. The chains were in substantially good condition and were sufficient for hauling machinery weighing 35,000 pounds. Appellant’s driver thought the ramp at the truck port had a tricky entrance. However, the manager of the truck port testified that approximately 300 tractor trailers negotiate the entrance ramp each day. He observed appellant’s driver entering the driveway on the date of the mishap and estimated the driver’s speed at 3 or 4 miles per hour.

The facts indicate that respondent, in supplying appellant with the particular specifications, was aware that appellant would in turn rely on the information in supplying a truck which would accommodate the load without exceeding the legal weight limit. There was sufficient evidence in the record which demonstrated the existence and breach of respondent’s duty to the appellant.

The issue of whether the respondent’s breach of the duty was the proximate cause of appellant’s injury necessitates a discussion of appellant’s alleged contributory negligence. The question of appellant’s contributory negligence was submitted to the jury in the following form:

“Your verdict must be for defendant whether or not defendant was negligent if you believe:
“First, plaintiff's driver either: failed to chain or secure the load adequately when he knew or in the exercise of ordinary care could have known that the load was overweight, or drove his loaded vehicle up the ramp when he knew or in the exercise of ordinary care could have known that the load was overweight and top-heavy and that under said circumstances it was not reasonably safe to do so; and
“Second, the conduct of plaintiff’s driver, in any one or more of the respects submitted in Paragraph First, was negligent; and
“Third, such negligence of plaintiff’s driver directly caused or directly contributed to cause any damage plaintiff may have sustained.”

The jury resolved this issue in favor of the appellant.

One is held to be contributorily negligent as a matter of law if his conduct, rather than the negligence of another party, is the proximate cause of an injury. Although an actor’s negligence may be construed as contributing to the cause of an injury, it does not necessarily constitute contributory negligence as a matter of law. McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292 (Mo.1968).

It is our opinion that the jury reasonably could have found that the respondent’s misrepresentation was the proximate cause of the damage to the machinery. Respondent’s misdescription precipitated the driver’s dilemma. Respondent’s instruction that the driver return to the plant for reloading necessitated his operating the truck despite its illegal load. We find Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223 (1945), cited by the appellant to be persuasive on this issue:

“the jury could have reasonably believed that such negligence of defendants was not only a direct, producing or efficient cause, but the direct, producing or efficient cause of plaintiff’s injury, and that the negligence of plaintiff under the circumstances was a cause which should not be reasonably regarded as a direct, producing or efficient cause for which plaintiff should be considered responsible.” (189 S.W.2d 223, 228).

It is our opinion that reasonable minds could disagree regarding the liabilities of the parties to this suit, and that the trial court erred in entering judgment in accordance with respondent’s motion for a directed verdict at the close of all the evidence.

It is ordered that the judgment rendered by the trial court be reversed and the cause remanded with directions to reinstate the verdict of the jury and the judgment rendered thereon.

Reversed.

CRIST and SATZ, JJ., concur.

      . Apparently because of the hybrid nature of the case, appellant fashioned this instruction after MAI 31.01. By way of observation, appellant’s coupling of failure to warn with negligent misrepresentation in the instruction may have operated to increase its burden on the trial level.


author: CLEMENS, Senior Judge.

text:
    PILOT LIFE INSURANCE COMPANY, Plaintiff-Interpleader, v. Geneva SCOTT, Defendant-Appellant, and Luvenia Scott, Defendant-Respondent.
    No. 40286.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.

      Henry Thomas, St. Louis, for defendant-appellant.
    Hollander & Vaughan, Toby H. Hollander, St. Louis, for defendant-respondent.
   CLEMENS, Senior Judge.

In this interpleader suit Herman Scott’s divorced wife, Geneva, and his widow, Luvenia, vie for the proceeds of a $15,000 group life insurance policy issued by the plaintiff life insurance company. The company pleaded that both Geneva and Luvenia had claimed the funds and the court granted its plea to pay the proceeds into court and stand discharged.

Geneva, the divorced wife, and Luvenia, the widow, interpleaded. The court gave Luvenia judgment and Geneva has appealed. We affirm.

Undisputed facts set the framework for the claims of each intervenor. When Geneva divorced Herman, his employer carried a group life insurance with another insuror, General American Life Insurance Company; Herman agreed at the time of divorce “to keep in force all life insurance policies he presently has and keep as his sole beneficiary of said insurance policies, Geneva Scott.” Thereafter Herman married Luve-nia. Later, Herman’s employer cancelled the General American group policy and acquired the Pilot Life group policy which provided $15,000 coverage on Herman’s life; he designated his then wife, Luvenia, as beneficiary. The court’s judgment granted her the fund.

Geneva contends on appeal that the trial court erred in denying her the fund because of Herman’s previous divorce stipulation to keep his insurance policies in force for her benefit. She contends Herman violated this covenant which gave her a vested interest in his insurance. Luvenia counters by contending the first policy which Herman agreed to keep in force had been cancelled by his employer, and she bases her claim on the new policy naming her as beneficiary.

Cases cited by Geneva are not in point. In each the insured had, contrary to agreement, changed the beneficiary of the same policy on which action was brought. In contrast, the General American policy naming Geneva as beneficiary was cancelled by the insured and no longer existed. Geneva was never the beneficiary in the policy in issue.

Geneva’s contention ignores the distinction between an ordinary life insurance policy between an insurer and the insured and a group life insurance policy between an insurer and an employer — for the benefit of its employees. The landmark case on the distinction is Satz v. Prudential Ins. Co. of America, 225 S.W.2d 480 [1, 2] (Mo.App.1949), declaring: “The law is well settled that a contract of group insurance is one between the insurer and the employer for the benefit of the latter’s employees . Therefore, the rights of an employee or his beneficiary are to be determined under the provisions of the contract between the insurer and the employer.” Satz was followed and applied in Straub v. Crown Life Insurance Co., 496 S.W.2d 42 [1] (Mo.App.1973) and in Burkhardt v. Am. Life Ins. Co., 534 S.W.2d 57 [10, 11] (Mo.App.1975), where we added: “One of the features which distinguish a group insurance contract from forms of other insurance policies is that a contract of group insurance is a contract between the insurer and the employer for the benefit of the latter’s employees and the rights of the employee or his beneficiary are to be determined under the provisions of the contract between the insurer and the employer. . . . In an action upon a policy of group insurance the burden is on the plaintiff beneficiary to show that the deceased employee was insured under the policy sued upon at the time his death occurred.”

Here, under the existing group policy sued on the insurer was obligated to Herman's employer to pay the fund to Luvenia, the designated beneficiary. The trial court so ruled.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


text:
    Carol MANIACI et al., Appellants, v. Harold HUTCHINGS et ux., Respondents.
    No. 39757.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.
    James M. Martin, Mark R. Eahn, St. Louis, for appellants.
    Thomas J. Briegel, Union, for respondents.
   CLEMENS, Senior Judge.

Unlawful detainer. Plaintiff-owners have appealed from an adverse judgment. Their petition in the magistrate court described their property as “a 133 acre farm containing a dwelling house and outbuildings, adjacent or near to Old State Road, R.R. # 1, Beaufort, Missouri.” On trial the magistrate dismissed plaintiffs’ petition on the ground “there is no description of the property.”

Plaintiffs duly appealed to the circuit court. There they filed an amended petition giving a metes-and-bounds description of their farm. Defendants moved to dismiss on the ground that because of the inadequate real estate description in the magistrate court that court had never acquired jurisdiction, and therefore the circuit court had no jurisdiction on appeal.

Ignoring plaintiffs’ amended petition then before it, the circuit court sustained defendants’ motion to dismiss. Plaintiffs have appealed and we reverse and remand.

Defendants argue that because the original land description was inadequate the magistrate never had jurisdiction, and therefore the circuit court acquired none on appeal. They contend § 512.300, VAMS, generally permitting amendments on appeal to the circuit court is inapplicable in unlawful detainer. This is correct since Chapter 534, RSMo.1969, Forcible Entry and Unlawful Detainer, is a preclusive code unaffected by the ordinary rules in civil cases. Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92[4] (1919). However, § 534.550, YAMS, provides that on appeal from a magistrate court the circuit court shall try the case “without regarding any error, defect or informality” in the magistrate court. Down through the years this clause has been uniformly construed to permit amendments on appeal to the circuit court, particularly to make real estate descriptions more definite. See Roberts v. Lynch, 15 Mo.App. 456, l. c. 453 (1884); Schworer v. Christophel, 72 Mo. App. 116, l. c. 119 (1897); Allen v. Jackson, 216 S.W. 539[34] (Mo.App.1919); and see Safety Savings & Loan Ass’n v. Williams, 228 Mo.App. 595, 71 S.W.2d 848[3, 4] (1934), where the court said: “. . . on appeal the complaint may be amended in any respect not involving the changing of a cause of action as originally stated.” Here, on appeal to the circuit court plaintiffs properly filed just such an amendment.

Reversed and remanded.

REINHARD, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    Pamela HUNT, Plaintiff-Appellant, v. Robert GERLEMANN and Bouef & Berger Mutual Insurance Co., Inc., a corporation, Defendants-Respondents.
    No. 40395.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.

      Morley & Boeckman by Daniel V. Boeck-man, O’Fallon, for plaintiff-appellant.
    William D. Kimme, Washington, for defendants-respondents.
   GUNN, Judge.

Plaintiff-appellant Pamela Hunt instituted this suit for slander per se against defendants-respondents Robert Gerlemann, her former insurance agent, and Bouef & Berger Mutual Insurance Company, his employer. The defendants filed a motion to dismiss the suit for failure to state a claim upon which relief could be granted. The trial court sustained the motion after allowing the plaintiff to amend her petition twice. From that order she now appeals. We reverse the order of the circuit court and remand the cause.

We gather from the petition that the corporate respondent, Bouef & Berger Mutual, is engaged in the business of selling insurance, including insurance against loss by fire. Plaintiff Hunt evidently purchased such a policy for her home from Bouef & Berger Mutual through its agent defendant Gerlemann. Subsequently, plaintiff’s home was extensively damaged by fire and she filed a claim with the defendant insurance company. The petition alleged that immediately after making payment of the claim defendant Gerlemann made the following allegedly slanderous statements to plaintiff in the presence of others:

“How did you set the fire?
If you rebuild, don’t call us.
You’ll be lucky to find anybody to insure you.”

Plaintiff prayed for general damages based upon the reputed injury to her good name and for mental pain and anguish. She also sought punitive and exemplary damages for the willful rendering of the slanderous statements.

The sole issue in this case is whether the foregoing statements in the petition alleged to be slanderous per se are capable of defamatory meaning on their face — a meaning which would be understood by a third party without the aid of innuendo. •

In Missouri, only four categories of slanderous statements are generally recognized as “per se” actions: those which impute a crime, a loathsome disease, the unchastity of a woman and those affecting the offended party in his trade or business. Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969). If the plaintiff here has pleaded a proper case of slander per se, she need not allege as a prerequisite to recover any special damages because the law presumes her injury. Riss v. Anderson, 304 F.2d 188 (8th Cir. 1962). Defendants contend that agent Gerlemann’s comments were not obviously defamatory and, therefore, plaintiff’s failure to allege special damages has rendered her petition insufficient to state a cause of action. Brown v. Kitterman, supra. Plaintiff counters that the agent falsely accused her of an indictable crime — arson of insured property as defined in § 560.030, RSMo 1969. See, e. g., Priest v. Central States Fire Ins. Co., 223 Mo.App. 122, 9 S.W.2d 543 (1928). Our obligation is to determine if the facts pleaded and the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the pleader, invoke substantive principles of law which entitle her to relief. B. G. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674 (Mo.App.1978).

For the petition here to state a cause of action, the allegedly slanderous language must without reference to any innuendo accuse the plaintiff of a crime. Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385 (Mo.1963). The accusation need not be direct, but if not, it must be the only inference that could be reasonably drawn from the language used. Walker v. Kansas City Star Co., 406 S.W.2d 44 (Mo.1966); Hoog v. Strauss, 567 S.W.2d 353 (Mo.App.1978). The words, although not required to be uttered with precision, must be naturally and presumably understood by third parties to constitute an allegation that plaintiff committed, in this case, arson. Under the circumstances, we believe that persons who heard these statements could have so understood. Though we are prevented from considering extrinsic matters which attempt to impute a slanderous meaning to words which are otherwise innocent on their face, it is clear that the pleadings may be used to place the actionable language in some sort of context without destroying the plaintiff’s “per se” cause. See, Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596 (1953); Tincher v. National Life & Accident Ins. Co., 235 Mo.App. 663, 146 S.W.2d 663 (1940); Atterbury v. Brink’s Express Co., 90 S.W.2d 807 (Mo.App.1936). For example, in Lightfoot v. Jennings, supra, plaintiff Lightfoot alleged that in the course of a public meeting, the defendant stated: “M.D. Lightfoot was paid by private utility money to defeat the bond issue.” In response to the defendant’s charge, plaintiff read aloud a complete list of contributors to the campaign fund against the bond issue and swore under an oath administered by a notary public that the statements he read were true and correct. Following plaintiff’s oath, the defendant allegedly stated: “M.D. Lightfoot is slick enough to cover it up — no sworn statement can change the truth.” The plaintiff contended that the defendant’s language ascribed to him the crime of making a false affidavit. The Supreme Court ultimately found in defendant’s favor because technically no affidavit was ever drawn. However, it is evident from the court’s language and reasoning that the allegedly slanderous statements were analyzed in the context of the time when, and the place where they were uttered:

Whether language has that tendency (that is, whether it is defamatory and actionable without proof of special damages) depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place. Id. at 599, quoting Mencher v. Chelsey, 297 N.Y. 94, 100, 75 N.E.2d 257, 259 (1947).

Not only did the court recognize the circumstances which gave rise to defendant’s language but even considered factors which were outside the pleadings. From these statements, we conclude that while the plaintiff may not resort to explanatory or interpretive allegations in her per se petition, neither must the offensive language be scrutinized in a vacuum.

Our conclusion that plaintiff has pleaded a proper case is not inconsistent with the frequently repeated pronouncements of the law of slander or libel per se. [E. g.: “In determining whether language is libelous per se, it must be viewed stripped of any pleaded innuendo. The meaning of the phrase ‘per se’ is ‘taken alone, in itself by itself.’ Words which are libelous per se do not need an innuendo, and conversely, words which need an innuendo are not libelous per se.’ ” Langworthy v. Pulitzer Pub lishing Co., supra at 388, 389, citing Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231 (1932).] Somewhere on the spectrum of pleadings between the naked allegations of defamatory language and understanding listener and the fully dressed interpretations of defamation via inducement, colloquim and innuendo, lies plaintiff’s actionable slander per se complaint.

In the context of the conversation between the insurance agent and insured following payment for a claim arising out of a fire damage the statement “How did you set the fire?” could be a forceable imputation of arson. Of course, plaintiff will have to demonstrate at trial that the hearers understood defendant’s comment in that manner. Plaintiff’s pleaded conclusion that they did will not suffice. But in this extremely close and bothersome case we hold that opposed to a motion to dismiss, plaintiff’s petition does state a cause of action and that the judgment of dismissal should be reversed and the cause remanded.

Reversed and remanded.

REINHARD, P. J., and CRIST, J., concur.


author: CRIST, Judge.

text:
    Donald MILLER and James Oberkramer, Appellants, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A. Schicker, Jr., Mayor James Conway, Comprising the Board of Police Commissioners, Saint Louis, Missouri, Respondents.
    No. 40605.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.

      London, Greenberg & Fleming, C. John Pleban, St. Louis, for appellants.
    David 0. Danis, St. Louis, for respondent.
   CRIST, Judge.

Appeal from the circuit court’s affirmance of a determination by the Board of Police Commissioners of the City of St. Louis that appellants, members of the St. Louis Metropolitan Police Department, failed to file a required police report of an incident and, when commanded to file a report several days after the incident, filed a false report. The Board assessed each a loss of 40 hours accumulated court and/or overtime on each of two charges, and designated each such punishment to run concurrently.

The inspector of the St. Louis Metropolitan Police Department charged appellants with violations of Rule 3, § 3.108(i) and Rule 9, § 9.015 of the Police Manual (published July 1, 1970). Rule 3, § 3.108(i) provides, in applicable part, that the officers “shall make reports, in conformity with established procedures, on all matters that come to his attention that require reporting.” Rule 9, § 9.015 of the Police Manual provides, in applicable part, that “[f]alse reporting shall not be tolerated.”

The above filed charges arose out of an incident on March 31, 1976, occurring about 8:10 to 8:25 p. m., at the Climax Pool Hall at 1523 South 39th Street. Appellants, along with several other officers, responded to an assist call relating to the flourishing of a sawed-off shotgun within the pool hall. The Board found that while the appellants were on the premises of the pool hall, two patrons were struck and injured, and the glass part of a juke box was broken. The Board further found that no police report was filed on the above incident until appellants Miller and Oberkramer were ordered to file such reports, and on April 7, 1976, Miller and Oberkramer filed reports denying the happening of any “reportable” incident.

On appeal, we must limit our review to a determination of whether the administrative Board’s findings and order are supported by competent and substantial evidence upon the whole record. Mo.Const. Art. 5, § 22; § 536.140, RSMo.1969; Rule 100.07(b)(3). E. g. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 114, 220 S.W.2d 61, 64 (banc 1949); McNeal v. Bequette, 571 S.W.2d 657, 658 (Mo.App.1978). The evidence must be viewed in the light most favorable to the decision of the Board. Aubuchon v. Gasconade County R-1 School District, 541 S.W.2d 322, 326 (Mo.App.1976). Neither this court nor the circuit court may substitute its judgment for that of the administrative Board. McNeal v. Bequette, 571 S.W.2d 657, 658 (Mo.App.1978). We find competent and substantial evidence supports the findings and order of the Board.

Department’s Exhibit 2, introduced without objection, showed that there were five police officers involved at the time and place in question. The department called several witnesses who were present in the pool hall on the night in question. Their testimony established that: (1) Five, or more than four, policemen entered the pool hall looking for the shotgun; (2) a policeman struck John A. McFadden in the head with a pool stick; (3) a policeman struck Tommy Lee Brownlee in the head with a pool stick; (4) a policeman busted the glass in the juke box with a pool stick; and (5) the window facing the street was broken while the policemen were present.

Appellants’ case established the presence of appellants at the pool hall but that only officers Richards, Helton, and appellant Miller entered the pool hall in search of the shotgun. Upon an unsuccessful search of occupants and premises, the officers left. The officers testified that they did not injure any patrons nor did they damage property therein. All three testified that appellant Officer Oberkramer never went inside the pool hall but that he had maintained watch outside the door.

The Board’s decision depended in part on whether it believed respondent’s or appellants’ witnesses. Appellants seem to base their contention that the Board’s findings and order are without support of competent and substantial evidence upon the officers’ testimony that no incident occurred. The Board chose to believe the testimony of the department’s witnesses regarding the occurrence of an incident. Appellants admit to being present, although appellant Ober-kramer claims to have been only standing outside the pool room. The testimony of the department’s witnesses that five or more than four officers entered the pool room could support the Board finding that Officer Oberkramer entered the pool hall. Regardless of his entrance the evidence of standing guard outside the door would support a finding of being “on the premises.” “The fact that there is a conflict in the testimony . . . does not impeach a contrary finding supported by substantial competent evidence.” Schrewe v. Sanders, 498 S.W.2d 775, 780 (Mo.1973). “In addition, the determination of the credibility of witnesses is a matter for the board.” McNeal v. Bequette, 571 S.W.2d 657, 658 (Mo.App.1978). The Board’s determination is supported by competent and substantial evidence on the whole record.

Appellants contend that the Board erred in overruling their motions for production of the police department’s internal file made both before and during the hearing. Although the hearing examiner sustained respondent’s hearsay objection, appellants’ witnesses, the police officers who prepared the report, were allowed to testify “for the record” as to the report’s contents. It is apparent from the leading nature of appellants’ questions that appellants were already aware of the contents of the department’s internal file before eliciting the testimony of the above officers.

Under the Administrative Procedure Act (A.P.A.), Ch. 536, RSMo., only three modes of discovery are provided for: depositions, subpoenas, and subpoenas duces tecum. §§ 536.073, 536.077, RSMo.1969. This court has consistently held that these methods of discovery are the only ones available in administrative proceedings. Myers v. Moreno, 564 S.W.2d 83, 87 (Mo.App.1978); National Advertising Co. v. State Highway Commission, 549 S.W.2d 536, 541 (Mo.App.1977). Because oral motions for production of evidence are not provided for in the Missouri A.P.A., the hearing officer properly denied appellants’ motions for production of the department’s internal file. Furthermore, because appellants apparently knew of the report’s contents, it does not appear that appellants were prejudiced by the denial of discovery.

Appellants' final argument asserts that Rule 3, § 3.108(i) and Rule 9, § 9.015 are so vague as to fail on their faces to provide reasonable standards for enforcement and therefore violate the due process clauses of the Federal and Missouri Constitutions. Rule 3, § 3.108(i) requires officers to report incidents that require reporting “in conformity with established procedures.” Testimony of several officers at the hearing indicated that customarily when several officers respond to a call, the one receiving the original call writes the only police report. Although assist men generally do not write reports, they are under a duty to see that information they have as witnesses to an incident is included in a report. Further, if an assisting officer arrives and takes affirmative action prior to the arrival of the officer who receives the call, the assist officer would be under a duty to file a report.

Appellants rely on DeGrazio v. Civil Service Commission, 31 Ill.2d 482, 202 N.E.2d 522 (1964), as establishing the controlling standard in this case. The DeGra-zio court held that police regulations are subject to the same due process standards as statutes. Missouri, however, rejected a similar contention in Milani v. Miller, 515 S.W.2d 412 (Mo.1974). Relying on Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Milani court held that police department regulations can be likened to military regulations and therefore need not meet the same standards of specificity as criminal statutes. The Missouri Supreme Court stated:

“We may legitimately assume that by custom, usage and ‘experience’ a reasonable degree of ‘specificity’ has been afforded in the application of the regulations and that the members of the Department are familiar with their responsibilities and duties. We are not dealing with a criminal statute which may leave the public uncertain as to its permissible conduct.”

515 S.W.2d at 418-19. Here, to delineate every possible “reportable incident” would be impossible. It is apparent from the testimony that “custom, usage and ‘experience’ ” do inform officers of the context of the “established procedures” which must guide their reporting practices. Therefore, Rule 3, § 3.108(i) is not void for vagueness.

Rule 9, § 9.015 merely states that “[fjalse reporting shall not be tolerated.” Appellants’ argument that this rule is void for vagueness apparently relies on their argument with regard to Rule 3, § 3.108(i). This argument is equally unconvincing in this context.

The judgment of the circuit court upholding the decisions and order of the Board of Police Commissioners is affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Raymond CLARK et al., Appellants.
    No. 40253.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.

      J. B. Carter, Clayton, for appellants.
    Richard E. Baker, Legal Division, Kirk-wood, Bruce A. Ring, Chief Counsel, Jefferson City, for respondent.
   CLEMENS, Senior Judge.

In this condemnation case defendant landowners, Raymond and Eleanor M. Clark, have appealed from a $55,000 judgment awarded for taking part of their filling station property.

By their points relied on defendants vaguely contend: “I. The trial court erred in allowing plaintiff’s counsel to improperly question defendant, Ray Clark, in a manner calculated to impugn his integrity, confuse the issues and prejudice the jury against the defendants.”

“II. The trial court erred in permitting an improper and highly prejudicial closing argument by counsel for the plaintiff, in that counsel misstated the evidence, and maligned the character and integrity of the defendants.”

Rule 84.04(d), VAMR, requires points relied on to state concisely what actions by the trial court are challenged and wherein and why they are erroneous, and declares abstract statements do not comply with the rule. Appellant’s points are even less specific than those condemned in Earney v. Clay, 516 S.W.2d 59 [1-3] (Mo.App.1974).

The purpose of Rule 84.04(d) is to enable opposing counsel — and the court — to get to the hard-core issues. This can be done only when an appellant’s points relied on clearly and specifically pinpoint claimed errors. Caveness v. Armstrong, 525 S.W.2d 446 [2, 3] (Mo.App.1975); Pauling v. Roundtree, 412 S.W.2d 545 [1] (Mo.App.1967). By ignoring the rule defendants have forfeited their right to appellate review.

On our own motion under the plain error rule we have reviewed defendants’ contentions made in the argument portion of their brief. The case was tried aggressively; objections arose frequently, but defendants now point to no material adverse ruling. Generally, objections were ruled in defendants’ favor. Now, however, they contend plaintiff’s evidentiary objections, although overruled, were “designed to implant in the minds of the jury that defendants were improperly trying to obtain recovery for lost profits.” Defendants also complain of parts of plaintiff’s closing argument, to which the court sustained defendants’ objections. The allegedly harmful effect of the plaintiff’s evidentiary objections and closing argument, despite rulings in defendant’s favor, was a matter addressed to the trial court’s broad discretion in ruling on matters allegedly affecting the determination of fact issues. Overtrop v. Bi-State Development Agency, 521 S.W.2d 488 [1-4] (Mo.App.1975). In sum, we find no material error resulting in manifest injustice under Rule 84.13(b, c), VAMR.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri ex rel. CHEMICAL DYNAMICS, INC., d/b/a Schultz Company, Edmund C. Rogers, A. Y. Schultz and Jack Schultz, Relators, v. The Honorable Drew W. LUTEN, Jr., Judge of the Circuit Court of The County, Missouri, Respondent.
    Nos. 40641, 40642 and 40643.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 1, 1979.

      Thomas B. Curtis, Thomas E. Allen, Clayton, Jim J. Shoemake, J. Richard McEac-hern, Mont S. Levy, J. Richard McEachern, St. Louis, for relators.
    Ted D. Ponfil, Martin M. Green, Louis F. Bonacorsi, Clayton, for respondent.
   DOWD, Presiding Judge.

Original proceeding in prohibition.

On June 30, 1978 this court issued a preliminary writ of prohibition which restrained respondent “from enforcing his amended order of judgment in which a receiver was appointed” in the above entitled cause, and which declared his “amended findings of fact, conclusions of law and order of judgment to be void ab initio”. Relators request that the preliminary writ be made absolute.

The underlying cause from which the writ arose was instituted in July, 1976 by A. Y. Schultz and Jack Schultz to adjudicate the ownership of stock in a closely held corporation, Chemical Dynamics, Inc. In its final form, the petition listed the following as defendants: Sol Schultz, Harry Schultz, Marvin Saks, Chemical Dynamics d/b/a Schultz Co., Allen H. and Gloria B. Molasky, Mark and Ellen M. Molasky, Laurence New-feld, Marti Ellen, Rose Molasky, and Melan-jo Investment Corporation. Edmund C. Rogers was granted leave to intervene.

The action was tried without a jury before the respondent, The Honorable Drew W. Luten. The respondent entered findings of fact, conclusions of law, and an order of judgment favorable to the plaintiffs on March 16, 1978. Defendants Sol Schultz, Harry Schultz, Marvin Saks and Newfeld filed a joint post trial motion to set aside or amend the court’s March 16th order of judgment. Defendants Molasky and Melanjo Investment Corporation filed a joint post trial motion for a new trial, or in the alternative, for the court to set aside or amend its judgment. This latter post trial motion was filed on March 31, 1978. While both these motions alleged that the judgment was inconsistent with the evidence adduced at trial, neither requested the appointment of a receiver. Respondent held a hearing on these post trial motions on May 12, 1978. On June 28, 1978 Respondent issued amended findings of fact, conclusions of law and order of judgment which provided inter alia for the appointment of a receiver. The relevant segment of the court’s amended order of June 28, 1978 reads as follows:

“The Court has considered the various alternatives available to it and has determined that the proper method to protect the rights of ALL parties is for it to appoint a receiver who shall be empowered to take steps necessary to insure that the equitable interests of the Defendants and the rights of the Plaintiffs are adequately protected. The receiver is being appointed as ancillary to the relief granted the Plaintiffs. Such relief as encompassed in the Order of Judgment heretofore granted is now conditioned on Plaintiff’s consent to the appointment of said receiver. The Court believes this is necessary to properly and equitably adjust and protect the rights of the parties herein. Accordingly, until such time as the Plaintiffs agree to this condition, the Court will stay the effective date of its Order of Judgment heretofore granted.”

Respondent entered judgment on his amended findings of fact and conclusions of law on June 29, 1978. Relators sought a writ of prohibition in this court on June 30, 1978 contending that Respondent’s entry of judgment on June 29, 1978 was in excess of his jurisdiction in two respects. First, Rela-tors assert the relief granted by Respondent was in excess of his jurisdiction because said relief was not requested by the parties in their post trial motions and was awarded more than 30 days after the entry of the original judgment. Relators assert that Respondent’s action in this regard constituted a violation of Rule 75.01. Secondly, Rela-tors allege that Respondent exceeds his jurisdiction in appointing a receiver because such action was taken absent notice, hearing, or request of the parties in the post trial motions.

We are of the opinion that the preliminary writ should be made absolute. It is well established that a court is empowered to “correct, amend, vacate, reopen or modify a judgment upon its own motion (and for good cause)” for 30 days following the entry of judgment. Rule 75.01. The jurisdiction of the trial court is extended for a period of 90 days from the timely filing of a motion for a new trial or other authorized post trial motion. Rule 81.05. Following the expiration of the initial 30 day period however, the relief awarded by the court is confined to the range of remedies suggested by the parties in their post trial motions. Wiseman v. Lehmann, 464 S.W.2d 539 (Mo.App.1971). As previously stated, neither of the post trial motions filed in this action requested the appointment of a receiver. Accordingly, the respondent’s order to this effect was void. S— v. S-, 514 S.W.2d 1, 10 (Mo.App.1974).

This reasoning was employed in a dissolution of marriage proceeding. S- v. S-, supra. The initial judgment was entered on March 5, 1973. The husband’s motion for a new trial was filed on March 19, 1973. Fifty days after the entry of the initial judgment, the trial court attempted to amend its original judgment by awarding alimony and attorneys fees to the wife. Relying on Wiseman, the appellate court sustained the husband’s objection that the trial court’s action in this regard exceeded its jurisdiction. The court in S— v. S— held that the relief granted on April 24, 1973 was void because it was not requested in the husband’s post trial motion.

At this juncture it should be noted that Respondent’s reliance on Cook v. Cureatz, 466 S.W.2d 133 (Mo.App.1971) is misplaced since the relief accorded therein corresponded with the remedy sought in the post trial motions which were filed.

Respondent’s order also contained the provision that the court intended to maintain continuing jurisdiction over the cause in order “to effectuate the terms of this Order”. As we have already determined that the substance of the amended order was in excess of respondent’s jurisdiction, any attempt by him to exercise jurisdiction to effectuate the order similarly would have been void. State ex rel. Safety Ambulance v. Kinder, 557 S.W.2d 242 (Mo. banc 1977).

Respondent contends that the writ should be “vacated” because Relators should have pursued a remedy by direct appeal and posted a supersedeas bond to stay the amended order of June 29, 1978. We disagree. While a writ of prohibition will not lie as a substitute for an appeal, it may be invoked to preclude a court from acting without jurisdiction. State ex rel TJH v. Bills, 504 S.W.2d 76, 79 (Mo. banc 1974). As we have determined that Respondent lacked jurisdiction to issue the amended order, the judgment was void, “entitled to no consideration”, and properly challenged by a writ of prohibition. State ex rel. Rhine v. Montgomery, 422 S.W.2d 661, 663 (Mo.App.1967).

Respondent also contends that he was empowered to order the appointment of a receiver on equitable grounds, despite the fact that a request for this relief cannot be found in either post trial motion. Courts should proceed with great caution in appointing receivers for corporations. A court’s exercise of the power to appoint a receiver is conditioned on a finding of imminent danger or miscarriage of justice. Niedringhaus v. William F. Niedringhaus Ins. Co., 46 S.W.2d 828, 836 (Mo.1931). Respondent’s amended judgment does not indicate that these conditions had been found to exist. In fact, Respondent’s amended findings of fact indicate that it was the implementation of the “implied equitable trust” which he had imposed in his prior order which was the source of the potential harm which could threaten the shareholder. Finally, Respondent’s determination that a receiver was necessary to “protect the rights of ALL the parties” was not of such an urgent posture and great emergency that it justified the failure to accord the parties the requisite notice and hearing. Pesch v. Boswell, 84 S.W.2d 151, 152 (Mo.App.1935).

Our preliminary writ of prohibition is made absolute.

CRIST and SNYDER, JJ., concur.


text:
    Ronald MORTON, Respondent, v. CITY OF MAPLEWOOD, Missouri, Appellant.
    No. 40761.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 1, 1979.
    Dennis Buchheit, Clayton, for appellant.
    Arthur S. Margulis, Clayton, for respondent.
   CRIST, Judge.

This appeal involves the June 3, 1977 dismissal of Officer Morton from the Ma-plewood Police Force. Officer Morton appealed his discharge to the City Council of Maplewood which dismissed his appeal and affirmed his discharge. Upon review, the circuit court reversed and set aside the order and decision of the City Council of Maplewood. The City of Maplewood now appeals from the judgment of the circuit court which we affirm.

The notice of discharge given to respondent Officer Morton stated that he was discharged “for having made a false certification . . . as to the purchase of a firearm.” It further “advised” Officer Morton that such false certification amounted to “dishonest conduct.”

At the hearing in front of the City Council, although Officer Morton did not testify on his own behalf, he was called by the City of Maplewood as a hostile witness. He stated his name and thereafter upon advice of his counsel invoked the Fifth Amendment right against self-incrimination.

After Officer Morton filed his petition for review in the circuit court but before a hearing was held, the City of Maplewood filed a motion to strike and dismiss claiming:

Where a person who invokes his privilege against self-incrimination is voluntarily before a tribunal and is seeking affirmative relief, as plaintiff [Officer Morton] did before the City Council of defendant [City of Maplewood] by praying that the City Council revoke his discharge, and as plaintiff does here by praying that this Court stay and set aside the action of the defendant and to restore to him his lost salary, his prayer for such affirmative relief should be stricken and his cause of action dismissed by the Court.

The circuit court overruled the motion to strike or dismiss on January 19, 1978. On appeal as point one of error the City of Maplewood claims the circuit court incorrectly ruled on the motion.

In support of this claim the City of Maplewood cites State ex rel. Pulliam v. Swink, 514 S.W.2d 559 (Mo. banc 1974). While Pulliam and the cases cited therein as well as State ex rel. Falcone v. Levitt, 572 S.W.2d 252 (Mo.App.1978) do state a principle relating to the discretional authority of a tribunal to strike pleadings of a party invoking the Fifth Amendment right against self-incrimination where that party is seeking affirmative relief, that principle is not applicable here.

First, all the cases enunciating the above stated principle are reviewing the use of the principle in the trial court, not in evidentiary administrative hearings. Second, the overruled motion to strike or dismiss, of which the City of Maplewood complains, was filed at the circuit court level, a level of appellate review in administrative cases, and not the level in which the right against self-incrimination was invoked. If the Pulliam principles were to apply at administrative hearings, the discretion to strike or dismiss would lie in the tribunal before whom the right is invoked and not in a court acting as a reviewer of the proceedings. The circuit court was not in error in overruling the motion to strike or dismiss filed in the circuit court.

As City of Maplewood’s second point of error, it claims the circuit court erred in reversing respondent’s discharge because there was competent and substantial evidence upon the whole record to support the City Council’s decision.

While the City of Maplewood correctly states that our review is limited to a determination of whether there is competent and substantial evidence upon the whole record supporting the City Council’s decision, Mo.Const. Art. V, § 22; § 536.140 RSMo. 1969; Rule 100.07(b)(3), we cannot agree with their claim of error. Our review of the transcript of the City Council hearing reveals that City of Maplewood failed to produce competent and substantial evidence to support the decision of the City Council.

The City Council had the following evidence before it upon which to base its decision. At the hearing, Officer Morton stipulated to City’s Exhibit #1: a record of proceedings on October 30, 1969 in Cause No. 1947-R in the Circuit Court of the City of St. Louis, Division 16, The Honorable Thomas F. McGuire presiding in which Morton pleaded guilty to the crime of stealing from a person, a felony punishable by imprisonment for a term exceeding one year. Judge McGuire suspended sentence and placed Morton on probation for four years. Morton was discharged from probation and his rights and privileges of citizenship were restored on April 10, 1972.

At the hearing, the City of Maplewood called Raymond W. Reynolds who testified that he owned Ray’s Police Supply, Inc. and that on October 11, 1974 he sold a firearm to respondent Morton. He further testified that Morton completed a Firearms Transaction Record, A.T.F. Form 4473. Although there are several references to this form and Police Chief Heberer testified he discharged Officer Morton for “falsifying an application for purchasing a firearm,” at no time did appellant offer into evidence nor did the Council accept a copy of Form 4473 which appellant had marked as Exhibit # 2.

Police Chief Heberer testified that he had been shown a copy of Form 4473 which he believed Officer Morton had falsified by answering in the negative a question on the application which inquired if the applicant had ever been convicted of a felony regardless of the actual sentence given.

The only other relevant evidence before the Council was introduced on behalf of respondent Officer Morton. Officer Morton called Carl Porter, the former Police Chief of the City of Maplewood, who admitted receiving a letter while he was Police Chief from Judge Thomas McGuire on July 2, 1973. Carl Porter read the contents of the letter to the Council without objection. The letter, after reciting the facts found in Exhibit # 1 discussed above, stated: “As no sentence was pronounced by the Court, Mr. Morton has no conviction on his record under Missouri law.”

From this evidence the City Council made the following conclusions of law:

6. In 1974 Ronald Morton made a false certification upon a Firearms Transaction Record, ATF Form 4473, by answering “No” to Question 8.b., which asked if he had been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, and that the applicant must answer “yes” if the judge could have given such a sentence, whether he actually did or not.
7. Such false certification by Morton amounts to dishonest conduct.

Conclusion No. 6 clearly indicates a reliance on Exhibit # 2, documentary evidence which was never properly admitted into evidence. Because this documentary evidence relied on by the Council was not in the record, the conclusion is not supported by substantial and competent evidence. State ex rel. Church’s Fried Chicken, Inc. v. Board of Adjustment, 581 S.W.2d 861 No. 40222 (Mo.App. April 3,1979). The testimony of Police Chief Heberer alone on which he states his conclusion that Officer Morton falsified the application, is insufficient to support the detailed conclusion.

Likewise Conclusion No. 7 is without competent and substantial evidence based on the whole record. Regardless of the use of “false certification” in Conclusion No. 7, which is unsupported here the same as in Conclusion No. 6 above, there is no showing that such certification, if made, was “dishonestly” made. Dishonesty necessarily involves an intent to deceive, a showing of which is completely absent in the record.

We do not find need to discuss the City of Maplewood’s point three of error because it is not relevant.

We affirm the judgment of the circuit court reversing the decision of the City Council and setting aside the discharge of Officer Morton.

REINHARD, P. J., and GUNN, J., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. L. Ray HEDGPETH et al. on Exceptions of George W. Wright and Betty H. Wright, Defendants-Respondents.
    No. 10510.
    Missouri Court of Appeals, Southern District, Division Two.
    July 5, 1979.
    Bruce A. Ring, Chief Counsel, William T. Powers, Jr., Asst. Counsel, Jefferson City, for plaintiff-appellant.
    James L. Eiffert, Ozark, for defendants-respondents.
   HOGAN, Judge.

This is a condemnation action. In the course of acquiring right-of-way for the construction and maintenance of Highway 14, the State Highway Commission took about 4 acres of land which belonged to defendants Wright. Commissioners appointed by the court assessed the defendants’ damages at $7,250. The defendants excepted to the award as provided by Rule 86.06, V.A.M.R., and the issue of damages was tried to a jury. The jury assessed defendants’ damages at $16,000 and a verdict was entered accordingly. The Commission appeals.

A single issue is presented. It is whether the unresponsiveness of a single witness for the defendants was such that a mistrial should have been declared.

The claim of error must, of course, be considered in factual context. The parcel taken was small, but it is fair to say that the defendants conducted a high-grade dairy operation on their property, and the Commission’s taking deprived them of a valuable all-weather spring. The taking of the spring alone, in defendant George Wright’s opinion, had diminished the value of his dairy farm in the amount of $15,000. Defendants also had evidence from one Richard Bilyeu, a well-qualified witness, that the amount of their damage was $16,-000. There is no contention that the verdict was not supported by substantial evidence, even though the Commission produced two witnesses who testified defendants’ damages amounted to $3,400 and $3,500.' There is no claim that noncompensable items were considered. The finding of the jury was clearly within the range of the evidence, and of course the jury was not required to find an amount precisely in accordance with the claim of either party. Baker v. Brown’s Estate, 365 Mo. 1159, 1165, 294 S.W.2d 22, 27[14] (1956).

So, we are reduced to considering whether witness Keller’s demeanor was such as to deny the Commission a fair trial. Keller, called by the defendants, demonstrated that part of his testimony was based on hearsay. Thereupon the Commission moved to strike all Keller’s testimony. Mr. Keller then continued:

“THE WITNESS: You’d move the truth knocked out of anything, wouldn’t you?
THE COURT: Mr. Keller—
MR. POWERS: —Your Honor, I ask for a mistrial now. That’s highly prejudicial. Let’s try this case over then. This witness continues to answer me that way, no matter when I have him.
THE COURT: Motion for mistrial denied, and you may ask your question. That portion of the testimony pertaining to the cost obtained from the Wrights be ordered stricken from the record, and the jury—
MR. POWERS: —I ask that the witness be admonished.
THE COURT: I beg your pardon.
MR. POWERS: I asked the witness be admonished for making that assertion.
THE COURT: I admonish the witness to be very responsive to the questions asked by—
THE WITNESS: —I apologize—
THE COURT: —That’s quite all right — by Mr. Garrison and whoever conducts the cross examination, whether it be Mr. Powers or Mr. Johnson.”

Later, upon cross-examination, the witness again mistook a court of law for a public forum, and fenced with his cross-examiner in the following manner:

“Q. Let me strike that question. Did you- — do you intend to be paid or were you paid to make an appraisal on this property?
A. Never said a word about pay, and I never asked—
Q. —-Are you just here because—
A. • — But, I did tell you boys on the witness stand one time I’d work for you for nothing if you’d go down the line and treat the farmer fair.
MR. POWERS: Your honor, I move for a mistrial. I can’t- interrogate this witness if he answers that way.
MR. JOHNSON: Your Honor, I think this is highly—
THE COURT: —I’m going to order this last statement of Mr. Keller stricken from the record and admonish Mr. Keller to be as responsive as he can be; just answer the question that is asked of you by Mr. Garrison, by Mr. Powers, and by Mr. Johnson, if he should inquire, and refrain from making any comments, and I request the jury—
THE WITNESS: —if they’d be as nasty to you as they are to me—
THE COURT: —Just—Just—
MR. POWERS: —Your Honor, there you are. I again move for mistrial because this jury is highly prejudiced against me already because of what this witness has said. We couldn’t get a fair verdict if we wanted to now with a witness talking to me like that.
THE WITNESS: Well, you’ve talked to me worse than that—
THE COURT: —Just a minute. We’ll stand in recess for five minutes.”

The Commission’s position is that nothing short of a new trial will redress Mr. Keller’s abusive unresponsiveness. We cannot agree. Ordering a mistrial or a new trial because of a witness’ improper or unresponsive remarks is a matter within the trial court’s discretion. State v. McClain, 531 S.W.2d 40, 44-45[6] (Mo.App.1975); Scharff v. Standard Tank Car Co., 214 Mo. App. 658, 670-672, 264 S.W. 56, 60-61[11-13] (1924). We cannot know Mr. Keller’s manner of response nor the tone of voice in which he was addressed. The trial court was present and could judge the effect of any impropriety upon the jury. We decline to interfere with the trial court’s exercise of discretion. The judgment is affirmed.

BILLINGS, C. J. and YEAMAN, CONLEY and RAGLAND, Special Judges, concur.