author: SEILER, Judge.

text:
    VIC KOEPKE EXCAVATING & GRADING COMPANY, a corporation, Respondent, v. KODNER DEVELOPMENT COMPANY, a corporation, Appellant.
    No. 60106.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.

      Alan G. Kimbrell, St. Louis, Stanley J. Goodkin, Clayton, for appellant.
    Stefan J. Glynias, Clayton, for respondent.
   SEILER, Judge.

We ordered this case transferred from the court of appeals, St. Louis district, largely to resolve a conflict in the case law over whether the issue of workmanlike performance is an indispensable component of plaintiff’s verdict-directing instruction in an action on a contract.

Defendant is a general contractor. Plaintiff is a dirt-moving subcontractor. The parties had worked together on construction projects since 1960 or 1961. The present controversy centers on construction work done between 1970 and 1972 on Big Bend Woods subdivision.

Plaintiff sued in four counts for recovery of balance plus interest allegedly due for dirt-moving operations and various other construction tasks. An additional count sought recovery of the balance on a promissory note. Defendant denied the allegations of each count of the petition and as to each count asserted that:

“7. For further answer and defense . plaintiff improperly performed grading and filling operations as a direct and proximate result of which defendant was caused to expend $15,277.26. Said amount should be set off against any amounts to which plaintiff is entitled.”

Trial before a jury resulted in verdicts for plaintiff on all five counts in the amounts sought, a total of $21,729.65, subject to a set off of $2,612.00 on defendant’s claim. Defendant appeals on a variety of grounds from the jury verdicts on all counts and challenges the amount of the set off as grossly inadequate and against the weight of the evidence.

Count I of plaintiff’s petition sought $5,361.36 plus interest as the balance due on a promissory note executed by defendant to plaintiff in January of 1971.

By count II and count V of its petition, plaintiff sought recovery of balances due plus interest for grading, cutting and filling operations performed on specified lots of plat 2-B and plat 1, respectively, of the subdivision. According to written contracts of the parties, plaintiff was to be paid a specified amount per lot for a specified number of lots. The contracts provided that “[a]ll work [was] to be completed in a workmanlike manner according to standard practices. . . . ”

Counts III and IV of plaintiff’s petition sought balances due plus interest for grading equipment and labor furnished on plats 3 and 4 by plaintiff at the special instance and request of defendant for which services defendant agreed to pay an amount based on an hourly charge as set forth in a pleaded schedule.

As said, as the basis for a set off against plaintiff’s recovery, defendant asserted in its answer to each count that the work was done improperly and as a result defendant was forced to expend additional sums to correct the errors.

Defendant seeks reversal of plaintiff’s verdicts on counts II and V, alleging error in verdict director instructions submitted by plaintiff. Plaintiff’s witness testified that all grading, cutting and filling on the specified lots had been completed. Plaintiff’s ledger accounts and invoices showing the balances allegedly due were introduced. Plaintiff’s verdict directors on both counts were essentially identical and provided that:

“INSTRUCTION NO. 3
“Your verdict must be for plaintiff on plaintiff’s claim for damages in Count II if you believe:
“First, that the defendant did not pay the plaintiff, and
“Second, because of such failure defendant’s contract obligations were not substantially performed, and
“Third, plaintiff was thereby damaged,
“Unless you believe that plaintiff is not entitled to recover, or should be limited to a lesser recovery by reason of Instruction No. 7.”

Defendant’s verdict director on its set off was as follows:

“INSTRUCTION NO. 7
“If your verdict is for plaintiff under Instruction Nos. 2, 3,4, 5, and 6, or any of them, then you must determine whether plaintiff failed to complete all work in a workmanlike manner according to standard practices and whether, as a direct result of such failure, if any, defendant was damaged.
“If you believe:
“First, plaintiff failed to complete all work in a workmanlike manner according to standard practices, and
“Second, as a direct result thereof, defendant was damaged, then you must deduct the amount of such damage from plaintiff’s damage. In the event such damages is equal to or exceeds plaintiff’s damage, your verdict must be for defendant.”

Defendant attacks plaintiff’s instruction on two grounds. First, defendant asserts that plaintiff’s instructions should have specifically required the jury to find whether plaintiff performed at all. We, however, agree with plaintiff that there was sufficient evidence of performance derived from both plaintiff’s oral testimony and defendant’s testimony to remove the issue of performance from consideration by the jury. See Missouri Approved Jury Instructions, XLIX (2d ed. 1969); Bender v. Colt Industries, Inc., 517 S.W.2d 705, 709 (Mo.App.1974).

As the second ground, defendant asserts that instructions 3 and 6 were prejudi-cially erroneous by virtue of their failure to require the jury specifically to find that plaintiff performed its obligation in a workmanlike manner. The court of appeals reversed and remanded on this ground, pointing out that in Baerveldt & Honig Construction Company v. Szombathy, 365 Mo. 845, 289 S.W.2d 116, 120 (1956), we found a similar contention persuasive and held that:

“. . (in the absence of affirmative evidence by defendant conceding that nondefective materials were used and conceding that such materials were applied in a workmanlike manner and in the absence of defendants otherwise eliminating those issues), plaintiff would need to include as essential findings prerequisite to recovery that plaintiff complied with the implied provisions of its contract, viz., that the contract was performed and that the performance thereof was accomplished in a workmanlike manner. . . ”

Plaintiff, in response, contends the court of appeals action is in conflict with the Baerveldt case and also with an earlier opinion of the court of appeals, Brush v. Miller, 208 S.W.2d 816 (Mo.App.1948). Plaintiff argues that its instruction No. 3 included a specific reference to instruction 7 which hypothesized the missing element. At first blush this may appear correct, but closer examination shows it is not. Under instructions 3 and 7, the jury could first find for plaintiff as to the contract price without any consideration of the quality of the performance and then consider any evidence of defective performance as the basis only for deductions from the contract price. The result could be a damage award far different from an award made were the jury properly to recognize that plaintiff is only entitled to recovery of any portion of the contract price if plaintiff is able to persuade the jury that its performance was workmanlike. The omission of any numbered paragraph in plaintiff’s verdict directing instruction requiring the jury to determine whether plaintiff performed in a workmanlike manner requires reversal of plaintiff’s verdict and judgment on counts II and V.

Brush v. Miller, supra, was action upon a contract to recover the agreed price for labor performed and materials furnished in redecorating defendant’s residence, where defendant pleaded only a general denial, but sought to introduce evidence that the services were rendered in an unskillful and unworkmanlike manner. The court held that defendant could not show the work was done in an unworkman-like manner unless he pleaded such defense, 208 S.W.2d at 821, but earlier in the opinion there is language indicating that where the defense is merely a general denial plaintiff need only prove the fact of performance and is not required also to prove performance in a good and workmanlike manner. This is not correct. Plaintiff as a part of its case in an action on a building or construction contract has the burden of proving that the building was constructed in a good workmanlike manner. Honig Construction Company v. Szombathy, 345 S.W.2d 111, 115 (Mo.1961); Baerveldt & Honig Construction Company v. Szombathy, 365 Mo. 845, 289 S.W.2d 116, 120 (1956). To the extent that Brush v. Miller holds otherwise, it is no longer to be followed.

Our decision does not change the burden of proof in contract actions. The burden of proof is on the plaintiff with respect to compliance with the contract provision of workmanlike performance. Plaintiff logically is the one in the best position to prove his performance was up to standard. As to defendant’s set off or recoupment for unworkmanlike performance or his counter-claim in that respect, the burden is on defendant to prove the same. Logically he is the one in the best position to prove that what he received was of poor quality and workmanship. He is the one who uses and observes the work after plaintiff has finished with it.

Defendant makes several attacks on the treatment in the trial court of plaintiff’s counts III and IV, the counts involving work done on an hourly pay basis. One contention is that the plaintiff pleaded an express contract and not an action on account and, therefore, use of MAI 26.03, the verdict director for an action on account, constituted a fatal variance between proof and instruction. Defendant claims that the action was one on an express contract because plaintiff pleaded “that defendant agreed to pay the plaintiff for its services an amount based on an hourly charge for all grading equipment furnished by the plaintiff necessary to perform the grading work requested by the defendant” according to a certain schedule of hourly rates. Therefore, continues defendant, plaintiff is claiming under an express contract, because the “price to be paid for work performed is ascertained by a method of measurement specified by the contract”, citing Haughton Elevator Company v. C. Rallo Contracting Co., 395 S.W.2d 238, 246 (Mo.App.1965), but the court erroneously instructed as though counts III and IV were actions on account.

It is difficult to say precisely what the nature of the action is as pleaded on counts III and IV. Counts II and V, the counts pertaining to the grading to be done on specified lots at $335.00 and $350.00 per lot, refer to written contracts. These contracts, in evidence, all contained clauses that certain work, such as regrading, excavation of rock, excavation for retaining walls, pulling trucks and other items, was to be done “on a time basis.” Counts III and IV, the claims for furnishing equipment for grading work, allege that “defendant agreed to pay the plaintiff for its services an amount based on an hourly charge for all grading equipment furnished by the plaintiff necessary to perform the grading work requested by the defendant on the aforesaid subdivision according to . [a] schedule”, which was then set forth in the petition. The schedule states hourly rates for various equipment and equipment operators over a period of two years. The rates were first set for the period through May 1, 1971; then higher rates through May 2, 1972 and then still higher rates after May 3, 1972. The work in Count III was alleged to have been done between October 12, 1970 and September 10, 1971 and in Count IV between March 4, 1971 and May 31, 1972. Thus, rates for all three periods are involved.

So while counts III and IV do not allege any contractual terms as to the amount of work to be done or the time or length of performance, said counts do identify one specific item on which the parties are alleged to have agreed and that is the hourly rate at which the services are to be charged and paid for.

The views of the parties at the time of trial were stated at the conference in chambers with the court upon defendant’s motion for directed verdict on counts III and IV. Counsel for defendant argued that there was a lack of evidence showing any specific amount due and owing and that with regard to the hourly work there was no showing that the charges were reasonable. The court inquired of counsel for plaintiff as to what evidence there was that the charges were reasonable. Plaintiff’s counsel did not think there was any such evidence but responded further that the situation between the parties “was an agreed-upon arrangement . . . as we pleaded” and that “we didn’t say we were seeking the reasonable value of this in our pleadings.” The court said that if plaintiff were not submitting on quantum meruit it would seem there would have to be evidence as to what rates were agreed upon. Counsel responded there was evidence that defendant was sent a copy of the plaintiff’s hourly rate charge which “came out in May of each year.” The testimony referred to was from plaintiff’s side that plaintiff had an hourly charge for its equipment, that in May of each year plaintiff would send out the proposed hourly rate for the following year and one was sent to defendant, “to the best of my knowledge”, said plaintiff’s superintendent.

The court overruled defendant’s motion to dismiss.

Counts III and IV were submitted to the jury under slight modifications of MAI 26.-03, which is the MAI instruction for an action on account. The verdict director for count III was as follows:

“INSTRUCTION NO. 4
“Your verdict must be for plaintiff on Count III if you believe:
“First, at defendant’s request plaintiff furnished to defendant certain excavating and grading services between the dates of October 12, 1970 and September 10, 1971, and
“Second, of the plaintiff’s total charges for said work the outstanding balance owed to plaintiff for such excavating and grading services is $3,071.35, and
“Third, plaintiff’s charges were reasonable,
“Unless you believe plaintiff is not entitled to recover or should be limited to a lesser recovery by reason of Instruction No. 7.”

The verdict director for count IV, instruction 5, was essentially the same.

The fatal error in instruction Nos. 4 and 5 is that they call on the jury to find that the plaintiff’s charges were reasonable and thereby disregard the real issue of whether the charges were in accord with the agreed upon rates. If the parties agreed to payment for the services according to a predetermined schedule of hourly rates, then the maximum recovery would be the agreed amount. But under instructions 4 and 5, the jury had only to find the services were furnished, that the outstanding balance was a certain amount, and that the charges were reasonable. The instruction authorized an award based upon a method of measurement different from the one agreed upon. What charges were reasonable is not material when the charges have been agreed upon. Haughton Elevator Company v. C. Rallo Contracting Co., supra, at 246. Counts III and IV must be remanded for a new trial.

Defendant also complains as to the damage instructions 11 and 12 tendered and used on counts III and IV—MAI 4.04, Damages—Quantum Meruit. The measure of damages stated therein is “the reasonable value of the labor and services furnished with interest.” What is said above about submitting reasonable value to the jury under instructions 4 and 5 in this case also applies to instructions 11 and 12, which should be redrafted on retrial.

We mentioned at the outset that one of the counts in plaintiff’s petition sought recovery of the balance due on a promissory note. The jury awarded such balance. There is no reference in the argument portion of defendant’s brief as to the connection between the controversy over the promissory note and the contractural controversies involved in the other counts. Defendant makes no specific allegation of error as to the verdict on count I. We are at a loss as to the basis of defendant’s request for relief on count I. The claim is denied. Rule 84.04(d). Judgment on this count should be affirmed.

This leaves us with counts II, III, IV and V, as to which the cause must be remanded for a new trial. What should be done about defendant’s set off of $2,612.00? In the trial court defendant unsuccessfully moved for a new trial as to its set off. Defendant appealed generally and contends here that the set off award was grossly inadequate and against the weight of the evidence. Plaintiff took no appeal.

We have earlier pointed out the way in which the jury was instructed to handle the set off or back charges (fn. 1). As a result, there is no way to be sure what part of the work the jury found plaintiff failed to complete to defendant’s damage although the jury had been instructed, by instruction No. 7, that if the verdict was for plaintiff on all or any of the counts, then as to work which plaintiff failed to complete and by reason of which defendant was damaged, the jury must deduct the amount of such damage from plaintiff’s damage. What the jury actually did was to award plaintiff, on each count, the exact amount sued for, plus interest, and then lump defendant’s set off damage together in one sum.

The issues between the two sides as to how much one owes and what the other must yield in recoupment or set off are so intermingled with respect to work done in the subdivision that they should be tried together. See Bramblett v. Harlow, 75 S.W.2d 626, 633 (Mo.App.1934). In fairness, therefore, we must also reverse and remand with respect to the set off, so that in a new trial the issues will be what plaintiff is entitled to recover on counts II, III, IV and V, which claims total $12,277.40, plus interest, less whatever amounts defendant is entitled to recoup.

The judgment is affirmed as to count I and is reversed and remanded as to all issues with respect to counts II, III, IV and V.

MORGAN, C. J., and BARDGETT, PINCH, DONNELLY and RENDLEN, JJ., concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . Altogether plaintiff had billed defendant $225,177.22 for work on the subdivision and had received payments totalling $207,786.36 prior to suit.

      . The record shows that after deliberating not quite three hours the jury sent the judge a note to the effect that they had agreed on the amount for the back charges for the defendant and asked if they could deduct it from count III, that the deduct was less than the plaintiff’s claim and that they were in doubt on which count to deduct a back charge. The court, after consultation with counsel, sent a note to the jury that they were to determine the total of the back charges, show that total at the bottom of the memo, and the court would deduct the total from the sum of the verdicts on all five counts. This is what was ultimately done.

      . The opinion was by the St. Louis Court of Appeals, as it was known at that time, now the St. Louis district, court of appeals.

      . Where plaintiff must and does submit to the jury a finding of performance in a workmanlike manner, the question may arise as to a converse instruction, inasmuch as rule 70.01(f) provides for a defendant’s verdict upon finding the converse of any essential fact or element essential to a verdict for the plaintiff. Suppose plaintiff performed almost all the work in a workmanlike manner, but failed to do so as to a minor part. Is defendant entitled to a converse that the verdict must be for defendant if the jury does not believe plaintiff performed the work called for by the contract in a workmanlike manner? “Although there is some early authority in support of the rule that a party must strictly or literally perform the stipulations on his part before the other party is obligated to perform . . . the courts now state that substantial, and not exact, performance accompanied by good faith is all the law requires in the case of any contract to enable a party to recover on it. Although a plaintiff is not absolutely free from fault or omission in every particular, the court will not turn him away if he has in good faith made substantial performance, but will enforce his rights on the one hand, and preserve the rights of the defendant on the other, by permitting a recoupment.” 17 Am.Jur.2d Contracts, § 375 p. 818 (1964). Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977); Talbot-Quevereaux Const. Co. v. Tandy, 260 S.W.2d 314 (Mo.App.1953). In the example put, therefore, the converse should be directed to the element of substantial, not literal, performance.

      . Instructions 4 and 5 are also subject to the objectionable construction that they assume there was an outstanding balance owed of $3,071.35, a disputed issue. On retrial the instruction should be revised to eliminate this assumption.


source: Caselaw Access Project

author: RENDLEN, Judge. SEILER, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Russell Lee EPPERSON, Appellant.
    No. 60308.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.

      David V. Bear, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Defendant Russell Lee Epperson was convicted on three counts of murder in the first degree for killing his wife Fern and their two children, Richard and De Ann. The jury assessed punishment on each count at life imprisonment and the court ordered that the sentences run consecutively.

On appeal, defendant contends that evidence used against him in the prosecution of the case was obtained during a warrant-less search of his home by members of the municipal police force of the City of Mexico, Missouri, in violation of his rights under the Fourth Amendment to the Constitution of the United States and Art. I, § 15 of the Constitution of the State of Missouri. This contention turns on the answers to the following questions: (1) Was there an emergency situation justifying the warrantless entrance of defendant’s house by the police which led to the discovery of the bodies? (2) Can the initial entry and discovery be justified only by the subjective rationale and beliefs of the searching police officers or may it be based upon the objective facts known to the police officers and the logical deductions based thereon? (3) Was the additional warrantless search of the defendant’s home immediately after the police had found the bodies of the three missing persons and ascertained that the defendant probably was not present, justified by the exigencies of the situation?

Appeal was taken to the Court of Appeals, St. Louis District, which, in an opinion suggesting affirmance, determined that resolution of the issues involved an original construction of the Fourth Amendment to the Constitution of the United States and Art. I, § 15 Mo.Const.1945, and thus fell within the exclusive jurisdiction of this Court under Art. V, § 3, Mo.Const., as amended 1970. See City of St. Louis v. Tinker, 542 S.W.2d 512, 513[1] (Mo.banc 1976). Accordingly the Court of Appeals, without rendering a final decision, ordered the case transferred here. Portions of the well reasoned Court of Appeals’ opinion have been utilized without quotation marks.

Defendant Epperson and his wife, Fern, lived with their two small children at 608 West Pearson, Mexico, Missouri. On Monday, March 24, 1975, Fern’s mother, Mrs. Mary Ann Smith, attempted unsuccessfully to telephone her daughter at the Epperson home. Mrs. Smith then called defendant at his place of employment and inquired concerning the whereabouts of her daughter. He told her that Fern and the children had gone to Columbia to do some shopping, which Mrs. Smith considered strange as Fern usually left the children with her when shopping.

The next day, March 25, Mrs. Smith again tried calling her daughter at home but received no answer. That evening she and her husband saw Epperson on the town square in Mexico and he told them Fern was with his mother. However, when Mrs. Smith informed him that she knew Fern and the children were not with his mother Epperson said that he did not know where they were. After Mrs. Smith returned home she received a call from Epperson who told her that Fern had telephoned and said she would be home in the morning with the children.

On March 26, at approximately 8:30 a. m., Epperson again called Mrs. Smith and asked her to come to his house. At first she refused but when he told her that Fern would be there about 9:00 a. m. she agreed to go. At 8:45 a. m. appellant picked up Mrs. Smith in his truck and took her to his home. As she and the defendant went into the house he removed something from a cabinet, keeping it behind him while he locked the outside kitchen door. He stood against the door facing Mrs. Smith, keeping his left hand behind him and told her she should go into the front room and sit down. He also told her several times that “I’ll sure be glad to get this all over.” Mrs. Smith saw her daughter’s purse on the clothes dryer in the kitchen and knowing that whenever her daughter left the house she took her purse with her, she became quite suspicious. At that time she also detected an odor in the house which, from prior experience, she associated with death. After making the excuse that she had some food in the oven at her home Mrs. Smith left the Epperson residence and went to the home of a neighbor, Mrs. Mitchell, and placed a call to the Police Department of the City of Mexico. Officer Schnidler, responding to that call, met Mrs. Smith at the Mitchell house where she related the matters that had occurred. Schindler promptly summoned Sergeant Duffner and relayed this information to him.

Both officers immediately went to the Epperson home and finding all of the windows were covered with drapes or blinds, knocked on the doors without response. Ordering Schindler to remain near the house to observe if anyone left or entered, Sergeant Duffner walked next door to the home of Epperson’s neighbor and through a series of calls obtained information as to Epperson’s place of employment and that of his wife, as well as the school in which Richard was enrolled. He learned that Fern Epperson had been on vacation that week but had not kept her usual Tuesday evening bowling date. From defendant’s employer he found that defendant had stated the day before that he had taken his wife to the hospital for x-rays but a call to the family doctor revealed that he had not seen Mrs. Epperson since December of 1974 and Mrs. Smith had informed him that the hospital had no record of Fern reporting for x-rays. School personnel where Richard was enrolled told Sergeant Duffner that Epperson had called the school the day before and told them that his son Richard would be absent because of illness. Following a conference with the Chief of Police, Duffner was ordered to determine from Epperson’s parents whether they had seen him and request that the parents come to the house.

The parents agreed to this suggestion and met the officers at the Epperson home where, again, knocking on the doors produced no response. Epperson’s father pointed out that his son’s motorcycle was not there and surmised he might be elsewhere riding it. However, the motorcycle was located at Epperson’s place of employment but he could not be found. The parents then told the officers they would not break into their son’s house and they then went to the home of the neighbor where Mrs. Smith was waiting. Nevertheless the father, accompanied by the two officers, again went to the home and the officers told the father that he should be the one to enter the house. He eventually agreed to assist and after unsuccessfully trying to open the doors, a storm window was removed and an unlocked bedroom window opened. Duffner assisted the father in raising the window and a ladder was placed against the side of the building, the blinds were pulled back and the father and two police officers entered a bedroom of the house.

When they pulled back the blinds they saw what was apparently a human form lying under a sheet on the bed. While Schindler and Epperson’s father went to the other parts of the house to see if anyone else was there Sergeant Duffner removed the sheet and discovered the bodies of Mrs. Epperson and the two children. The children had plastic bags over their heads and the son had a cord around his neck. Each showed signs of violent mistreatment. There was a sock in the bag over the daughter’s head and another sock was near the wife’s face. When the others returned to the room where the bodies were found, Duffner called his superior officers and then made an investigation of the house. As he walked through the house he saw a five gallon can of gasoline in the hallway near the bedroom, a chisel for an air hammer partially wrapped in towels in a chair in the living room and a bottle of chloroform on the top of the sewing cabinet in the kitchen. Later during an autopsy it was determined that blows by a blunt instrument had been inflicted on the victims and chloroform was found in their vital organs. Epperson, who could not be found, became the subject of an intensive manhunt and was apprehended ten days later.

I.

Defendant contends that facts known to the police when they broke into the defendant’s house were not sufficient to justify the warrantless entry and original search. It first should be noted that by objective standards sufficient facts had been made known to the police to establish probable cause that a crime had been committed. These facts include (1) the defendant’s wife and children had been missing several days; (2) defendant had given false and inconsistent explanations for their absence; (3) defendant’s unusual, suspicious and nervous manner in the days following the disappearance of his family; (4) an odor of decomposing flesh had been detected in the house, and (5) defendant’s unexplained disappearance, though he had been in the house with Mrs. Smith shortly before the police arrived.

The question we first must decide is whether the facts were sufficient to establish exigent circumstances justifying a warrantless entry of the house. In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions. United States v. U. S. District Court, 407 U.S. 297, 318, 92 S.Ct. 2126, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The burden is on the State to show an exception exists. Coolidge v. New Hampshire, supra, 403 U.S. at 455, 91 S.Ct. 2022; Vale v. Louisiana, supra, 399 U.S. at 34, 90 S.Ct. 1969. Among the exceptions are searches incident to a valid arrest, searches of cars stopped on a road, seizures of evidence in plain view, stop and frisk searches, searches with consent, searches to prevent destruction of evidence, searches to prevent the flight of a criminal, and searches in response to a need for help. See Coolidge v. New Hampshire, supra, 403 U.S. at 455-473, 91 S.Ct. 2022; Vale v. Louisiana, supra, 399 U.S. at 34-35, 90 S.Ct. 1969; Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

The State contends that the entry and search fall within the “need for help” or the “emergency” exception, claiming that the odor of death combined with the long, unexplained absence of defendant’s wife and children, defendant’s suspicious behavior and his disappearance at the time of the search, gave probable cause to believe there was a medical emergency in which someone might be ill or injured and in need of immediate help. The State also urges these facts constituted probable cause to believe a crime has been committed and raised the possibility that a victim might be in need of assistance or medical aid which also justified the warrantless search.

The Supreme Court of the United States has held a warrantless search was reasonable in an emergency situation when a police officer heard a shot and a cry for help. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For a discussion of the emergency doctrine and its history see State v. Sutton, 454 S.W.2d 481 (Mo.banc 1970). Because of the circumstances of the case, the search in Sutton was subsequently ruled unconstitutional in Root v. Gauper, 438 F.2d 361, 365 (8th Cir. 1971), but in Root it was recognized that Missouri had “the prerogative” to accept that doctrine, and we reaffirmed our adoption of the emergency exception in State v. Miller, 486 S.W.2d 435 (Mo.1972). See also Wayne v. United States, 115 U.S.App.D.C. 234, 240-243, 318 F.2d 205, 211-214 (1963).

It has been persuasively stated that whenever the police have reliable information of a death, an emergency exists sufficient to justify an immediate search because apparent death may turn out to be a barely surviving life, still to be saved. Patrick v. State, 227 A.2d 486, 489[3-9] (Del.Supr.1967). Here, although the odor of decomposing flesh would indicate death of one of the persons involved, at least three persons were missing under very unusual circumstances and Epperson could not be found. One or more could have been in immediate need of help to prevent death. Many courts have approved searches upon the emergency exception rationale in situations similar to the case before us. See People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207 (1972); People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (banc 1974); People v. Clayton, 34 Ill.App.3d 376, 339 N.E.2d 783 (1975); People v. Lovitz, 39 Ill.App.3d 624, 350 N.E.2d 276 (1976); State v. Pires, 55 Wis.2d 597, 201 N.W.2d 153 (1972); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191.

People v. Brooks, supra, concerned facts remarkably similar to those at bar. There the victim and defendant, who were mother and son, lived together in the mother’s apartment. Friends of the victim were unable to contact her for several days and when they questioned defendant concerning her whereabouts they received incredulous answers. After the janitor of the victim’s apartment building noticed an odor of death in the place, he contacted the police. Upon arrival, the police detected a strong “odor of death,” entered the victim’s apartment and discovered her body in the living room. The Illinois Court upheld the entry and subsequent search of the apartment as a reasonable response to an emergency situation. We hold that the exigent circumstances presented by this record justified the entry and original search of the house as “reasonable” under the Fourth Amendment to the United States Constitution and Art. I, § 15, Mo.Const., 1945.

II.

The defendant, as further challenge to the entry and search, places great emphasis on the police officers’ statement of their subjective belief that no crime had been committed and their somewhat ambiguous statements as to a possible emergency. The State counters with the contention that when the legality of a search is in question the subjective thoughts of the police are not controlling but instead the objective facts within their knowledge and the reasonable conclusions objectively drawn therefrom are determinative.

The Supreme Court of the United States has measured both probable cause and the warrant requirements for searches against objective standards. It has stated that in determining the reasonableness of a particular search, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” (Emphasis added.) Terry v. Ohio, supra, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. The Court in Terry emphasized that subjective good faith alone is not enough; that there must also be objective reasonableness to enable meaningful review by the court.

Many lower federal courts and some state courts have said, sometimes in dicta, that objective reasonableness alone suffices to uphold either an arrest or a search. See United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 754[7-8] (2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976); United States v. McCoy, 517 F.2d 41, 43 n. 1[1] (7th Cir. 1975), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975); United States v. Vital-Padilla, 500 F.2d 641, 644[2] (9th Cir. 1974); White v. United States, 448 F.2d 250, 254[5] (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); Sirimarco v. United States, 315 F.2d 699, 702[7] (10th Cir. 1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963); State v. Donnell, 239 N.W.2d 575, 578[6] (Iowa 1976); Commonwealth v. Miller, 366 Mass. 387, 318 N.E.2d 909, 911[4] (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632, 637[5-6] (1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976). Cases holding that the objective facts were not enough have done so on the basis that the police officers’ subjective motives were demonstrably in bad faith. See Mills v. Wainwright, 415 F.2d 787, 790[1] (5th Cir. 1969); Moss v. Cox, 311 F.Supp. 1245, 1251-52[13-15] (E.D.Va.1970). Contra United States v. Dunavan, 485 F.2d 201, 205[4 — 6] (6th Cir. 1973). This is not a problem here as the officers in good faith were searching for persons missing under unusual circumstances rather than to harass the defendant or entering to search for evidence linking him with a crime.

Furthermore, the officers’ testimony reveals that though they may have considered this a “missing persons” investigation they also considered the medical emergency factors involved. In response to the question why he did not get a search warrant Sergeant Duffner testified:

Well, I really didn’t know what I had. I didn’t know — I knew the circumstances, that Russell Epperson and his wife were gone, and as far as I was concerned, I was just looking to try to find them to see if they had skipped the country or they were injured or what. I didn’t really know what I had. I mean there was no indication further to my prior investigation of any foul play involved of [sic] anything. As far as I knew they were just gone wherever they went; I couldn’t tell. (Emphasis ours.)

From this response it appears the officer in charge of the search considered the probability that someone in the house might be injured and need medical aid. By an objective standard there are sufficient facts to justify the officers’ initial entry into defendant’s home, despite the ambiguous testimony as to their subjective belief.

Following the entry under the emergency doctrine, the officers could seize evidence of the crime in the bedroom under the theory of “plain view,” if such evidence was readily observable and was discovered inadvertently rather than by anticipation or by a concerted search, and was immediately recognized as evidence of a crime. Coolidge v. New Hampshire, supra, 403 U.S. at 465, 91 S.Ct. 2022; State v. Dayton, 535 S.W.2d 479, 486[6-8] (Mo.App. 1976). Here, following the officers’ permissible warrantless entry through the window of the bedroom, they could properly pull back the sheet to see if the form observed on the bed was that of a living person. It is then that evidence, such as the bodies, cord, socks and plastic bags came into “plain view,” which the police immediately recognized as evidence of a crime. All such items found in the bedroom, as well as the photographs taken there, were properly admitted in evidence. For similar decisions in other states see Patrick v. State, supra, 227 A.2d at 489-90[9-11]. People v. Brooks, supra, 289 N.E.2d at 214; People v. Hill, supra, 117 Cal.Rptr. at 412, 528 P.2d at 20.

III.

The admission of evidence from rooms of the house other than the bedroom presents a somewhat different problem and cannot be justified under the plain view doctrine except as they might be said to have been inadvertently discovered during a continuation of the emergency search for injured or missing persons. This evidence was discovered as the result of Sergeant Duffner’s search of the rest of the house immediately following the initial search for defendant (a source of potential danger) or other victims by Officer Schindler and Epperson’s father. If the evidence had been found moments earlier during Schindler’s cursory search, it would clearly have been admissible under the plain view theory. United States v. Blake, 484 F.2d 50, 57[7-8] (8th Cir. 1978), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); State v. Dayton, supra, 535 S.W.2d at 484-86[1-4],

However, the evidence adduced at the hearing for the motion to suppress and at trial revealed that the bottle of chloroform, the gasoline can and the chisel were found and the photographs and diagram of the other rooms were made by Sergeant Duff-ner after he had discovered the bodies of the three missing persons and Officer Schindler had ascertained that neither defendant nor any other victims were in the house.

In People v. Brooks, supra, after the police discovered the body of defendant’s mother in his apartment following the war-rantless entry justified by the emergency exception, they searched the apartment and discovered a bloody rug in the bathroom and a blood splattered shirt in one of the bedrooms. Shortly thereafter other police personnel arrived and photographed the apartment’s interior. All of this activity occurred without a search warrant, though upon the discovery of the body defendant became the only suspect. In that case the defendant claimed the search and seizure of physical evidence violated his rights under the Fourth Amendment. However, the Illinois Court justified the initial entry, the immediate discovery of the body, as well as the subsequent search which yielded the rug and shirt by the emergency exception. See also People v. Clayton, 34 Ill.App.3d 376, 339 N.E.2d 783 (1975) and People v. Lovitz, 39 Ill.App.3d 624, 350 N.E.2d 276 (1976) for remarkably similar fact situations with the same result.

The case of Michigan v. Tyler, No. 76-1608, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is clear authority to render the warrantless entry in the case at bar “reasonable,” under the Fourth Amendment to the Constitution of the United States, and having discovered the victims of the crime, to authorize the police to investigate for and seize readily accessible evidence of the crime. In that case defendants were convicted of conspiracy to burn real property in violation of the applicable Michigan statute. Shortly before midnight on January 21,1970, a fire broke out in the building leased to the defendant, Tyler. The fire department responded, quenched the fire and “was ‘just watering down smoldering embers’ ” when Chief See arrived on the scene about 2:00 a. m. on the morning of January 22. A Lieutenant of the fire department informed the Chief that “two plastic containers of flammable liquid had been found in the building.” Using portable lights the Chief and the Lieutenant entered the gutted store which was filled with smoke and steam to examine the plastic containers. They concluded that the fire “ ‘could possibly have been an arson,’ ” whereupon the Fire Chief called police Detective Webb who arrived at about 3:30 a. m. and took several pictures of the containers and the interior of the store. However, they abandoned their efforts to search after the Chief had “[ljooked throughout the rest of the building to see if there was any further evidence, to determine what the cause of the fire was.” By 4:00 a. m. the fire had been finally extinguished and the firemen departed. The Fire Chief and the Detective took the two containers to the fire station where they were turned over to the Detective for safekeeping. They had neither consent nor warrant for the entries of the building nor for the removal of the containers.

About four hours after leaving the premises, Chief See with his assistant returned to the empty building to determine the origin of the fire and examine for arson. After a cursory inspection they left but at about 9:00 a. m. that morning the Assistant Chief and Detective Webb returned to the building looking for evidence of arson and they discovered suspicious burn marks in the carpets which Webb could not see earlier that morning because of the heat, steam and darkness. They also found pieces of tape, with burn marks, on the stairway. After leaving the building to obtain tools they returned and removed pieces of the carpet and sections of the stairs to preserve these bits of evidence suggestive of a fuse trail. The Assistant Chief also searched through the rubble “looking for any other signs or evidence that showed how this fire was caused.” l. c. 502, 98 S.Ct. l. c. 1946. Again, there was neither consent nor warrant for these entries and seizures. Both at trial and on appeal the defendants objected to the introduction of evidence obtained during these searches. Thereafter other investigators entered the premises on January 26 and 29, and again on February 16 to gather evidence concerning the charge of arson and the cause of the fire.

The Court held that Fourth Amendment protection extends to entries by officials, whether they be building inspectors, police, representatives of the health department, firemen or others. That such entries are permissible only on proper warrants or with consent or if exigent circumstances occur of sufficient proportions to render a warrant-less entry “reasonable.” In that case the firemen were deemed to have made a reasonable entry when entering the burning structure to put out the blaze and were permitted to seize the readily observable evidence of arson. Thus the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler’s Auction, nor by Chief See’s removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.

Prior to 4:00 a. m. on January 22, however, the firefighters suspected arson and summoned the police whose investigation was not only for the cause of the fire’s origin but to determine whether a crime had been committed. Defendants objected to any of the evidence following the time the firefighters and the police detective left the premises about 4:00 a. m., including the entries at 8:00 a. m. and 9:00 a. m. when the Assistant Fire Chief and the Detective returned to the premises, made a detailed inspection but left the building again to obtain tools, then returned and removed parts of the carpet and stairs and continued to search through the rubble. The Court stated that the original exigent circumstance of the fire permitted the entry, noting that the officials charged with extinguishing the fires are also charged with prompt determination of their origin. The Court added that “[ijmmediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and recovery efforts of the victims.” 1. c. 510, 98 S.Ct. 1. c. 1950. The Court then concluded “[o]n the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22,” nor the re-entries at about 8:00 a. m. and 9:00 a. m. for “[ujnder these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” 1. c. 511, 98 S.Ct. 1. c. 1951.

Thus the investigation of the building for arson and the taking of pieces of the stairs, carpet and the flammable liquid found in the plastic containers, as well as the search of the building for other evidence of arson, were a continuation of the exigent entry. The right of the officers to return after daylight and continue their investigation sprang from the fact that the exigent quality of the circumstances continued. The Court stated “[i]n determining what constitutes ‘a reasonable time to investigate,’ appropriate recognition must be given to the exigencies that confront officials serving under those conditions, as well as to individuals reasonable expectations of privacy.” The emergency of the fire permitted the entry. The length of time and scope of the search for evidence of possible arson was extended by finding the plastic containers containing the flammable liquid. However, the Court held that the entries occurring after January 22 “were clearly detached from the initial exigency and warrantless entry.”

In the case sub judice, the urgent circumstances permitting the warrantless entry included possibility of death, illness, or serious injury to persons in the house. After the entry, the exigent quality of the moment was heightened by discovery of the bodies, apparently brutally murdered. The limited superficial search that followed and the removal of the bodies, the taking of photographs of a few scenes in the house and the removal of the few items of personal property not located in the bedroom were within the reasonable time, spatial scope and limited intensity approved by Tyler. Thus the absence of a warrant or of consent, as in Tyler, did not render the challenged evidence inadmissible and for these reasons defendant’s contention is denied.

As previously discussed, the bodies, plastic bags and chloroformed socks and Venetian blind cord were discovered in the bedroom and admissible under the plain view doctrine and the evidence from the other part of the house (i. e., the gasoline can, chisel, bottle of chloroform and certain of the photographs) were within the scope of the emergency exception to the Fourth Amendment as delineated in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). We are also convinced that had admission of this latter evidence been deemed improper, such admission would have been non-prejudicial. The evidence of defendant’s guilt was strong and certain. Defendant fled the area and despite an intensive search covering several counties, was not apprehended until ten days after the discovery of the crime. We are aware, as stated in State v. DeGraffenreid, 477 S.W.2d 57, 65 (Mo.banc 1972) “that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” See State v. Davis, 556 S.W.2d 45 (Mo.banc 1977) and Thomas v. United States, 281 F.2d 132 (8th Cir. 1960).

The body of testimony from thirteen State’s witnesses occupying almost two hundred transcript pages and some twenty-six exhibits, not including those discovered in Duffner’s search, were unrebutted. Defendant offered no evidence. We believe beyond a reasonable doubt the overwhelming weight of the evidence was such that the claimed error, and we find none, could only have been non-prejudicial. The judgment of the trial court is affirmed.

MORGAN, C. J., and BARDGETT, FINCH and DONNELLY, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

SEILER, Judge,

dissenting.

I respectfully dissent. What the police did here was to break into a man’s home. It is true that they did so rather politely, using defendant’s father as their arm, and not resorting to a sledge hammer, but the fact remains that they entered a man’s home, a cherished and well nigh sacred place to most of us, by force, without first obtaining a search warrant to do so.

This is being justified on the ground it was warranted by an emergency. In my opinion, we are providing a dangerous and alarming precedent here, one which will give the police extremely broad powers and which seriously reduces the protection of the Fourth Amendment against unreasonable searches and seizures. We are developing a new doctrine for the police — the delayed response doctrine or once an emergency, always an emergency, with no need for a search warrant thereafter.

Wiser men than I have pointed out the dangers of relaxing Fourth Amendment standards.

As said in McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948):

“We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”

See also, Brinegar v. United States, 338 U.S. 160, 182, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948) (per Jackson, J., dissenting):

“We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit.
“And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.”

The question before us is not simply whether there was an emergency making reasonable a warrantless entry and search of defendant’s home. The question is whether this particular warrantless entry, search and seizure can be upheld under the emergency doctrine in light of the almost two and a half hour delay by the officers. The proposed opinion does not address this critical difference between this case and those on which it relies. The latest United States Supreme Court case on the subject states: “[A] warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Mincey v. Arizona, - U.S. -, -, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978).

Under part I, the opinion discusses the state’s contention that the entry was justified under the “need for help” or “emergency” exception, saying the circumstances gave probable cause to believe there was a medical emergency “in which someone might be ill or injured and in need of immediate help ” (emphasis supplied). Then the opinion refers to the rule of certain cases that whenever the police had reliable information of a death, an emergency exists sufficient to justify an immediate search, because apparent death may turn out to be barely surviving life, still to be saved. The opinion points out the odor of decomposing flesh indicated death of at least one person, but there were three persons missing and “one or more could have been in immediate need of help to prevent death.” But this justification was not acted on by the police for over two and a half hours. I fail to see how the belated warrantless entry made by the police can be justified as being appropriate under an emergency calling for immediate entry to help someone inside the house in need of immediate assistance.

The exigency of the situation when it first became apparent objectively, whether the police appreciated it or not, that something was seriously wrong inside the Epper-son house cannot be extended to, nor render reasonable, in my opinion, a forcible entry made several hours later, during which interval the police could have obtained a search warrant. What we are developing here is a new weapon for the police — the continuing exigency justification, where a delayed entry will be held to relate back to the original emergency, thus obviating the need for a search warrant even though there was ample time in which to obtain one.

Not only does such a doctrine fail to comport with the way reasonable people, including policemen, ordinarily react to emergency “need of help” situations, it means the police can safely delay entry, so far as entering legally is concerned. This is not calculated, in my opinion, to produce prompt action by the police in an emergency and this may delay legitimate investigation.

In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) there was a lapse of one and a half to two hours between the initial appearance of the police investigator on the scene and the second appearance around 4:00 a. m. Then there was a third entry around 9:00 a. m. All three entries were held valid and a search warrant was not required. But the difference in the cases is that in Michigan v. Tyler the first entry was made at the time the emergency arose, while the smoldering embers of the arson were still being extinguished, and the court found that the subsequent warrantless entries mentioned above “were no more than an actual continuation of the first”, Id. at 511, 98 S.Ct. at 1951, not detached from the initial exigency. In the case at bar there was no entry at the initial exigency. The entry came several hours later, long after the objective indicia first suggested the possibility of death or need for help within the Epperson house.

In Patrick v. State, 227 A.2d 486, 489 (Del.Supr.1967), cited as supporting the action of the police, the court speaks in terms of the police duty “to act forthwith upon the report of the emergency”, not to miss the chance that “a spark of life remains”, as the basis for the emergency situation exception. In the Patrick case, the police “immediately entered the premises”, id. at 488, upon their arrival at the scene. In the present case, if there had been a spark of life existing at 9:15 a. m. (which is when the police first learned of the situation) in someone needing immediate aid, it would have died out long before the police finally entered at approximately 11:50 a. m.

People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207 (1972), also relied upon and discussed in the proposed opinion, likewise speaks in terms of an emergency which required “immediate action.” In the Brooks case, the janitor in the apartment building caused the police to be called. When they were going up the stairs to the deceased’s apartment they noticed the odor of decomposing flesh. When they got to the front door of the apartment the police opened the door and promptly went in and found the deceased (who had been dead for several days) on the couch in the living room. Id. at 210. There was no delay on the part of the police in acting. The Brooks case, id. at 213, quotes with approval the language of Mr. Justice Burger in Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, 212 (1963), cert. denied 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), in which he stresses the duty of the police, when confronted by an emergency, to act and the need for swift police response in order to support what would otherwise be an illegal entry.

The facts in Brooks are significantly different from the facts in the present case, in which we have no such swift response. The police knew as early as 9:15 to 9:20 a. m. that Mrs. Smith noticed the odor of decomposing flesh in the Epperson house and that her son-in-law was acting suspiciously and that she had reason not to believe his explanations of the whereabouts of her daughter and two grandchildren.

The state in its brief states that “speed was of the essence to bring aid to anyone who needed it . . .” But the police took no action then. Instead, as the facts related in the proposed opinion show, the police tried to figure out some way by which they could induce someone else to break in the house so that the entry would not be charged to them. It was almost noon, two and a half hours later, when the police finally entered the bedroom. If entry to the premises could be delayed this long, obviously there was no immediate need emergency. A true emergency does not invite delayed action. The two are mutually inconsistent.

Someone may say, however, that despite the delay by the police, the need for help and in that sense the emergency, continued throughout the period of delay. But the point is that if so, the justification for dispensing with a search warrant did not, because one could easily have been obtained during that time, as discussed later herein. If the police are confronted with an emergency they should act. If they choose to delay, then they should obtain a search warrant. They should not be permitted both to delay and to dispense with a search warrant. That is not what is called for by the Fourth Amendment.

Under part II, the opinion takes up the matter of objective standards, quoting from Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) about whether the facts available at the moment of the search would warrant a man of reasonable caution in believing what was done was appropriate. The moment of search here was shortly before noon, over two and a half hours after the officer had reason to believe there was a dead body in the house and that three people were missing. I do not believe a reasonable man would consider it was appropriate to wait two and a half hours and then enter the premises to see if there might be someone inside alive and in need of help.

The opinion then, still under part II, says that what the officers were doing was in good faith searching for persons missing under unusual circumstances. I agree. But a search for missing persons, while a serious matter, is not per se an emergency of the kind under discussion, nor did the police consider it such, as shown by the unhurried way in which they went about it.

The opinion states that the validity of the search must be judged on objective reasonableness, but then quotes Sgt. Duffner’s subjective thoughts “as far as [he] was concerned” that he really didn’t know what he had, that he was just looking to see “if they had skipped the country or they were injured or what.” There is no testimony in the record that Sgt. Duffner ever expressed these thoughts to anyone. In fact, he testified he did not think anyone was in the house, that he was not alarmed, but was extremely curious. The record shows that Duffner consulted several times during the morning with the chief of police, Chief Bol-li, as well as with Officer Schindler. Chief Bolli told them the police were not to break in the house. Much of the police discussion related to the possibility of getting defendant’s father to do the breaking in. There is no mention (except for Duffner’s thought to himself) of there being any need to break in because someone inside needed help and quickly.

As the proposed opinion states, the general rule is that an entry and search without a warrant is unreasonable and the burden is on the state to show an exception exists. The state has failed to do so. The “need for help” or “emergency” justification comes from the state as an afterthought to justify a belated entry. The officers were curious about what had happened to Epperson, his wife, and children. They wanted to enter the house to investigate, not to try to give first aid to someone who might be in dire circumstances.

Defendant’s motion to suppress the evidence discovered and seized after the unlawful entry should have been sustained. It is true this would result in a reversal and a new trial for a defendant who no doubt is guilty as charged. But we cannot disregard the Fourth Amendment in cases where to do so will benefit the defendant. Having seen fit not to act promptly upon the information furnished by Mrs. Smith, the police should have obtained a search warrant and entered the house legally. They could easily have done so. It was a weekday, Wednesday. The court house is located in Mexico. The magistrate, the circuit judge, and the prosecutor were close at hand. The police had control of the situation at the house because they were watching and standing guard over it. There was no need for them to break into defendant’s home two and one half hours later. They were in possession of facts which they should have presented to a neutral magistrate for his determination as to whether there was probable cause that a crime had been committed and that a search of the house was warranted. It is noteworthy that no suggestion is made by the state that a search warrant could not easily and conveniently have been obtained.

The recent Mincey decision, mentioned earlier, states: “There was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that probability. And there is no suggestion that a search warrant could not easily and conveniently have been obtained.” Id. at -, 98 S.Ct. at 2415. See, also United States v. Donovan, 429 U.S. 413, 436 n. 24, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), as follows: “Although law enforcement officials can often take action without a warrant when they have been unable to foresee the circumstances that eventually confronted them, they still must obtain a search warrant when their prior knowledge is sufficient to establish probable cause . . Here there can be no doubt that for a considerable period of time prior to their breaking into the house, the police officers had sufficient knowledge to establish probable cause. See also Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), as quoted with approval in Mincey v. Arizona, supra.

It is our duty to uphold defendant’s constitutional rights under the Fourth Amendment, whether or not he is guilty. If we do not enforce the Fourth Amendment, no one will. Here defendant’s counsel carefully and properly raised the constitutional question and has preserved it throughout. The motion to suppress should have been sustained. I therefore respectfully dissent.

      . The Supreme Court of the United States has stated, “Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).

      . The United States Supreme Court has recently disapproved Arizona’s “murder scene exception” to the reasonable search requirement of the Fourth Amendment in Mincey v. Arizona, - U.S. -, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and condemned the admission of evidence taken in an extended four day warrant-less search during which a number of police officers proceeded to gather evidence from defendant’s apartment. This search followed the warrantless entry and fatal wounding of a narcotics agent and the arrest of defendant in his apartment who was also wounded in the shootout. The officers, after the removal of defendant, the wounded officer and other suspects, proceeded in the four day search. During that period "the entire apartment was searched, photographed and diagramed. The officers opened drawers, closets and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried and two or three hundred objects were seized. In short, Mincey’s apartment was subjected to an exhaustive and intrusive search.” l. c. -, 98 S.Ct. l. c. 2412. The exigency of the situation could not extend to nor render reasonable such an intensive, long term search. The facts in Mincey were clearly distinguishable from those in Tyler, or those in the case at bar.

      . To illustrate, the search for Epperson did not get under way until in the afternoon, hours after the emergency first came to the attention of the officers. The delay on the part of the police apparently enabled him to get a good head start, because, despite an extensive search, he was not arrested until ten days later, when he voluntarily surrendered.

      . One analyzing me facts of this case finds himself returning again and again to the fact that Mrs. Smith noticed the odor of death — decomposing human flesh — in the Epperson house. It was this fact that made it apparent that something was very, very wrong in the Epperson house, as she made clear to the police in her initial report.

      . In Mincey v. Arizona, supra, - U.S. at -, 98 S.Ct. at 2410, the court declined “to hold that the seriousness of the offense under investigation [there murder, assault and narcotics] itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.”


author: FLANIGAN, Judge.

text:
    HI-PLAINS ELEVATOR MACHINERY, INC., a Kansas Corporation, Stanley Plumbing and Heating Company, a corporation, and Balden Equipment Company, a Missouri corporation, Respondents, v. MISSOURI CEREAL PROCESSORS, INC., a Missouri Corporation, Appellant.
    No. 10252.
    Missouri Court of Appeals, Springfield District.
    Sept. 11, 1978.

      L. Thomas Elliston, Webb City, for' appellant.
    Julian J. Ossman, Myers, Perry, Ossman & Copeland, Webb City, for respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

In 1973 Hi-Plains Elevator Machinery, Inc. (Hi-Plains), respondent, entered into a contract with Missouri Cereal Processors, Inc. (Cereal), appellant, by which Hi-Plains was to provide the labor and material for certain improvements on real estate owned by Cereal. The work having been fully or at least substantially performed, Hi-Plains instituted this action against Cereal for the amount due Hi-Plains under the contract. The petition also sought a mechanic’s lien against the real estate. Additional parties defendant were the holder of a deed of trust and its trustee.

After the commencement of the action Stanley Plumbing and Heating Company (Stanley) and Balden Equipment Company (Balden) filed applications to be 'added as parties plaintiff under Rule 101.12(c). Although their respective applications were sustained, neither Stanley nor Balden filed a petition or any other pleading.

On May 29, 1975, attorneys for Hi-Plains served upon Cereal a document entitled “Notice of Taking Depositions.” That notice informed Cereal that depositions of “witnesses, to be read in evidence in the above entitled cause would be taken on the part of [Hi-Plains] at the law offices of [Hi-Plains’ attorneys], 112 North Webb, Webb City, Missouri, on June 17, 1975, between 1:00 p. m. and 5:00 p. m.”

Significantly the notice also stated:

“The witnesses to be examined are:
Missouri Cereal Processors, Inc. (Robert V. Burgess, President) Baldwin Equipment Company (Charles J. Hauver, President)”

No subpoena was served upon Robert V. Burgess. On June 17, 1975, neither Cereal nor Burgess appeared at the deposition session. Thereupon Hi-Plains filed a “Motion for Default Judgment,” set out marginally.

On August 12, 1975, a hearing was held upon Hi-Plains’ motion. Cereal was given notice of that hearing but made no appearance. The court sustained the motion and in its judgment made separate awards to Hi-Plains, Balden and Stanley and further decreed that each of them was entitled to a mechanic’s lien. Cereal’s motion to set aside the judgment was denied by the trial court. Cereal appeals.

Tn its judgment the trial court, in sustaining Hi-Plains’ motion, made this finding: “Notice to take depositions was served on [Cereal] in the manner and form provided by law, but [Cereal] failed to appear for the same.” The judgment makes no reference to the fact that Robert V. Burgess failed to appear. The motion itself failed to make specific reference to the non-appearance of Burgess.

On this appeal Cereal asserts that the trial court erred in sustaining Hi-Plains’ motion and in entering judgment thereon for the reason that neither Cereal nor Burgess violated the Missouri Rules of Civil Procedure by failing to appear for the deposition session because Hi-Plains’ notice was insufficient to require their presence.

The opening paragraph of Hi-Plains’ motion recites that it is filed “in accordance with Rule 61.01(g) and (d)(2).” The reference to Rule 61.01(g) is incorrect because that rule deals with the failure or refusal of a witness “to testify in response to questions propounded on deposition.” Here no question was propounded. Rule 61.01(g) is inapplicable. It seems clear, however, from a reading of the entire motion that Hi-Plains was in fact claiming that Cereal violated Rule 61.01(f).

Rule 57, Interrogatories and Depositions, in its present form, became effective on January 1, 1975. Portions of Rule 57 must be examined in light of the instant facts.

Rule 57.03 provides, in pertinent part: “After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination . . . The attendance of witnesses may be compelled by subpoena as provided in Rule 57.09. The attendance of a party is compelled by notice as provided in subdivision (b) of this Rule.” (Emphasis added.)

In the case at bar no subpoena was served upon Burgess nor did he receive the notice. Burgess himself was not “a party.”

Rule 57.03(b)(1) provides, in pertinent part: “A party desiring to take the deposition of any person upon oral examination shall give not less than 7 days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the same is not known, a general description sufficient to identify him or the particular class or group to which he belongs. . . . ”

Cereal makes no complaint of the fact that the deposition notice given by Hi-Plains does not contain an address. The significance, if any, of that omission need not be considered.

With regard to the “name ... of each person to be examined” the notice says, “Missouri Cereal Processors, Inc. (Robert V. Burgess, President).” It is at least arguable that the “witness” is Cereal. The notice is subject to that construction. The reasonableness of that construction is supported by paragraph 1 of the motion of Hi-Plains set forth in footnote 4. In that motion Hi-Plains, in construing its own notice, claimed the latter stated “that one of the witnesses to be examined was Missouri Cereal Processors, Inc. by Robert V. Burgess, President.” It should be observed that the word “by” appears in the motion but not in the notice.

Manifestly the notice is poorly drafted. Hi-Plains is not in a position to deny that it was subject to the construction that the deposition to be taken was that of Cereal— Cereal itself was to be the deponent. This is the construction placed upon the notice by Hi-Plains itself as evidenced by its motion.

Prior to 1975 there was no specific provision in Rule 57 for the taking of the deposition of a corporation. Such a provision is now found in Rule 57.03(b)(4) which reads, in pertinent part: “A party may in his notice and in a subpoena name as the deponent a . private corporation . and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which he will testify. . . The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(4) does not preclude taking a deposition by any other procedure authorized in these Rules.” (Emphasis added.)

Hi-Plains’ notice named Cereal as the deponent. However, the notice did not “describe with reasonable particularity the matters on which examination is requested.” The duty of Cereal to comply with the second sentence of Rule 57.03(b)(4) was contingent, through the use in that sentence of the words “in that event,” upon Hi-Plains’ compliance with the first sentence of Rule 57.03(b)(4). In failing to give the description called for by the first sentence, Hi-Plains did not comply with the latter.

The notice given by Hi-Plains was insufficient to trigger the operation of Rule 57.-03(b)(4) insofar as it purported to name Cereal as the deponent. That it was the intention of Hi-Plains to invoke Rule 57.-03(b)(4) is demonstrated by this statement contained in the brief of Hi-Plains, “[Cereal] failed to designate an officer or representative to attend the deposition and was, therefore, in default.” The fallacy in that statement is that Cereal was under no duty to make the designation prescribed by the second sentence of Rule 57.03(b)(4) for the reason, as previously stated, that Hi-Plains had failed to comply with the first sentence of Rule 57.03(b)(4).

If the defective notice were to be given the efficacy claimed for it by Hi-Plains, Hi-Plains would be exercising itself the privilege to make the designation in the face of the specific language of the rule which reposes that privilege (and duty) in the corporate deponent. The notice was an abortive attempt to invoke Rule 57.03(b)(4). It is deficient not only because it fails to comply with the first sentence of that rule but also because it attempts to supplant, and overreach, the second sentence thereof.

No party to this appeal has cited any case, Missouri or federal, factually in point nor has the research of this court led to one. The peculiar wording of the instant notice renders this case unique. It should be observed that the facts here do not present either of the following situations: (1) The failure of Cereal to comply with the second sentence of Rule 57.03(b)(4) after Hi-Plains had met the requirements of the first sentence of that rule; (2) the failure of Burgess and Cereal to appear for the deposition after Hi-Plains had given a notice, pursuant to Rule 57.03(b)(1), naming, as the person to be examined, “Robert V. Burgess, President of Missouri Cereal Processors, Inc.”

The last sentence of Rule 57.03(b)(4) is not here involved because, under the peculiar language of the instant notice, Hi-Plains was not attempting to take “a deposition by any other procedure authorized in these Rules.”

The instant facts were insufficient to justify the trial court in invoking the sanctions contemplated by Rule 61.01(f). With regard to Burgess, the combination of the following factors excuses his absence: (1) Burgess was not subpoenaed; and (2) the notice of Hi-Plains was ineffective to designate Burgess as the person to be produced by Cereal because the notice had named Cereal as the deponent. With regard to Cereal’s non-production of a witness, Cereal had no duty to designate and produce a witness under the second sentence of Rule 57.03(b)(4) because Hi-Plains failed to comply with the first sentence of that rule.

It is true that Cereal failed to appear by counsel but that alone would not justify the imposition of a default judgment. Had counsel appeared, he himself would not have been a witness or a source of testimony. The presence of counsel alone would have been of no benefit to Hi-Plains and indeed the absence of counsel, in view of the question left open in footnote 5, might have been a benefit to Hi-Plains. An order entered under Rule 61.01(f) must be an order “as [is] just.” Under the facts here the trial court’s judgment was not a “just” one.

Although not mentioned by any party to this appeal, Rule 57.07(d)(1), set out marginally, is of no help to Hi-Plains. Rule 57.07(d) sets forth certain exceptions to Rule 57.07(c). The latter rule, in effect, preserves the right of a party to make certain objections therein enumerated, at the trial, although no such objection was made at the taking of the deposition. Rule 57.07(d)(1) in effect requires the prompt service of a written objection upon the party giving notice for taking the deposition in order to preserve the objection to errors and irregularities in the notice. As its title reflects, Rule 57.07 deals with use of depositions in court proceedings, that is, depositions which have in fact been taken. Rule 57.07(d) is inapplicable to the situation in the case at bar where neither Cereal nor Burgess actually gave a deposition.

During the pendency of the action in this court, Hi-Plains filed here a motion to dismiss it on the ground that “all issues are moot.” The motion recites that “subsequent to the filing of the notice of appeal, [Cereal] conveyed title to the real estate in issue to International Multifoods, Inc.” and “after said conveyance Hi-Plains, Stanley and Balden” each “settled their mechanic’s liens claims in full” with International Mul-tifoods, Inc. The motion to dismiss is without merit and is denied.

Contrary to the recital in the motion, the conveyance to International Multifoods, Inc. took place prior to the filing of the notice of appeal and while the case was pending in the trial court. Rule 52.13(c) provides, in pertinent part: “In case of any transfer of interest, the action may be continued by . the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party . . . ” Hi-Plains, Balden and Stanley each failed to file, in the trial court or in this court, a motion for substitution or joinder. Moreover, the motion to dismiss fails to consider the fact that the judgment appealed from not only awarded mechanic’s liens in the real estate but constituted an in personam judgment in favor of Hi-Plains, Balden and Stanley, respectively, and against Cereal. See Dill v. Poindexter Tile Co., 451 S.W.2d 365, 373[17] (Mo.App.1970). The latter aspect of the judgment was not rendered moot by the conveyance to International Multifoods, Inc.

The judgment is reversed and the cause remanded.

ALL CONCUR.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . For a case dealing with the effect of such failure, see Truog v. Elbel Construction Company, 374 S.W.2d 612 (Mo.App.1963).

      . The record is replete with other instances, including Hi-Plains’ motion set forth in footnote 4, where Balden Equipment Company is referred to as Baldwin Equipment Company.

      . “MOTION FOR DEFAULT JUDGMENT
      Comes now Plaintiff Hi-Plains Elevator Machinery, Inc. and in accordance with Rule 61.-01(g) and (d)(2) moves the Court to enter a Default Judgment against Defendant Missouri Cereal Processors, Inc., for the following reasons:
      1. That on the 28th day of May, 1975 Plaintiff mailed to all attorneys of record in the captioned cause a Notice of Taking Depositions on June 17, 1975 wherein it was stated that one of the witnesses to be examined was Missouri Cereal Processors, Inc. by Robert V. Burgess, President.
      2. That at the appointed day and hour Plaintiff took the deposition of Baldwin Equipment Company who appeared by its attorney Max Glover as per the above-mentioned Notice.
      3. That neither the attorney for Missouri Cereal Processors was present nor was any representative of that company present to answer questions.
      4. That such failure to appear is a blatant violation of Rule 57.03(a) and under the provisions of Rule 61.01, this Court is authorized to enter Default Judgment against the disobedient party, Missouri Cereal Processors, Inc.
      WHEREFORE, Plaintiff prays that judgment be entered against Defendant Missouri Cereal Processors, Inc. as prayed for in its petition.”

      . Whether or not the notice was adequate, with respect to Cereal, so far as the deposition (that of Charles J. Hauver) which was actually taken is concerned is outside the issues on this appeal and is not ruled. See Rule 57.07(a).

      . Rule 61.01(f) provides: “Failure to Attend Own Deposition. If a party or an officer, director or managing agent of a party or a person designated under Rules 57.03(b)(4) and 57.-04(a), to testify on behalf of a party, fails to appear before the officer who is to take his deposition, after being served with notice, the court may, upon motion and reasonable notice to the other parties and all persons affected thereby, make such orders in regard to the failure as are just and among others, it may take any action authorized under paragraphs (1), (2), (3) and (4) of subdivision (d) of this Rule.”

      . Although Hi-Plains offered no evidence that Burgess was the president of Cereal, the briefs of the parties, including that of Cereal, referred to him as “Cereal’s president.” This court assumes that Burgess held that position during the pendency of the action in the trial court.

      . The counterpart to Missouri Rule 57.03(b)(4) is Fed.R.Civ.P. 30(b)(6). In discussing the latter rule a leading authority has emphasized the importance of the privilege, and duty, of making the designation. “At first glance this rule may seem oppressive to an organization that is a party, however, when reviewed it becomes clear that the organization is the one that determines who the witness will be on a particular subject. This can be of great benefit in many cases. Selecting your representatives who will testify is of the utmost importance. Sometimes the person who may know the most about a subject is probably not the best witness available by way of his manner and demeanor.” Wright and Miller, Fed.Prac. & Proc., Vol. 8, § 2103, footnote 27.2.

      . There is authority with respect to Fed.R. Civ.P. 30(b)(6), mentioned in footnote 8, to this effect: “The notice issued by Plaintiff is all that is necessary to require attendance of parties or their officers or managing agents and a subpoena was not required in the circumstances present. See Wright and Miller, Fed.Prac. & Proc., Civil, § 2107.” Continental Federal S & L Ass’n v. Delta Corp., D.C., 71 F.R.D. 697, 699[2] (1976).
      In Continental, however, the notice designated the corporation as the deponent, requested the corporation to designate the witness, and specified the matters on which examination was requested, all in accordance with Fed.R. Civ.P. 30(b)(6).

      . With regard to federal procedure, the following statement appears in Wright and Miller, Fed.Prac. & Proc., Vol. 8, § 2107, p. 390. “Rule 30(a) provides that the attendance of witnesses at the taking of a deposition may be compelled by subpoena as provided in Rule 45. Though the rules do not say so expressly, a subpoena is not necessary if the person to be examined is a party or an officer, director, or managing agent of a party.” (Emphasis added.)
      The counterpart of Federal Rule 30(a) is Missouri Rule 57.03(a); the counterpart of Federal Rule 45 is Missouri Rule 57.09.

      . This court has not overlooked the fact that the language of Rule 61.01(f) differs in one respect from its counterpart, Fed.R.Civ.P. 37(d). The Missouri rule contains the lan-' guage, “after being served with notice.” The federal rule contains the language, “after being served with a proper notice.” The latter language also appeared in the pre-1975 version of Missouri Rule 61 and in § 510.060. This court holds that the notice in the case at bar does not constitute a “notice” or “a proper notice.”

      . 57.07 Use of Depositions in Court Proceedings

      (d) Effect of Errors and Irregularities in Depositions.
      (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is. promptly served upon the party giving the notice.

      . Balden and Stanley joined in the motion, although neither filed a brief as respondent.