text:
    The CITIZENS BANK OF WINDSOR, Appellant-Respondent, v. Burnell LANDERS et al., Respondents-Appellants.
    Nos. KCD 29078, KCD 29094.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.

      William E. Simmons, Kansas City, Robert L. Wesner, Sedaba, for respondents-appellants; Miller, Simmons, Moore & Jung, Kansas City, Wesner, Wesner & Turley, Se-daba, of counsel.
    Robert R. Raymond and Dennis D. Palmer, Kansas City, for appellant-respondent; Shughart, Thomson & Kilroy, Kansas City, of counsel.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

This case consists of cross-appeals, one by the appellant-respondent Bank from a verdict and judgment against it and in favor of the Landers on a guaranty, $48,000, plus interest, attorney fees and collection costs (Count I); and one by respondents-appellants Landers from a verdict and judgment against them for $12,000.00 as maker and guarantor (Mrs. Landers) upon a promissory note, plus interest, $1,393.31, and attorney fees and costs of collection, $3,158.64, in favor of the Bank (Count II).

J. W. Simmons was the Bank’s president. In the spring of 1971, Simmons and Archie Eugene Finley had discussions about taking over a defunct manufacturing company in Windsor, Missouri. Finley was then employed and remained employed by a company called Norandex. As a result of the discussions a new company, Windsor Manufacturing Company, was formed May 24, 1971, with Finley as its president. Finley continued his Norandex employment covering 38 states and 2 foreign countries because that company was considering stopping the manufacture of storm windows and was considering an outside source, assured to be Windsor, for that item. The Bank loaned Windsor $100,000 at its start, guaranteed by the Small Business Administration. In December, 1972, Finley received a call from Simmons informing him that he wanted $48,000. Finley asked him why and Simmons said, “ ‘Well, I don’t know, I can’t give you the exact answers, but it seems that we have loaned the company money on accounts receivable. The receivables have been paid but I didn’t get any money, so I want you to get here and pay me.’ ” As a result, Finley got Dr. Landers, his friend and neighbor, to sign a note, the subject of Count II, for $12,000, which note was prepared by Simmons. The proceeds of that note were deposited in Finley’s special account, and were used in part to pay the Bank interest owed by Windsor.

There was then a discussion in 1973 between Simmons and Finley about the purchase for Windsor of a Chicago subsidiary company of Allied Products called Star-Brite, which manufactured and sold house, yard and driveway signs and markers. SBA, however, because of Windsor’s existing indebtedness, took the position that the Bank’s second loan to Windsor, $80,000, in 1973, could not be used to purchase the Star-Brite company of Chicago. The subject then came up of forming a separate (Missouri) corporation, Star-Brite, Inc., in order to obtain an SBA guaranteed loan. On May 10, 1973, the separate corporation was formed, its Board of Directors on May 11, 1973, being Finley, Gene Roberts and Simmons. Simmons was also its elected Secretary-Treasurer. At that time Windsor was losing money.

After Star-Brite, Inc., was formed, Simmons and Finley discussed getting an SBA loan, and there was a discussion about using Star-Brite, Inc., money that was borrowed in its name for Windsor in the summer or early fall of 1973. Simmons knew from his experience in handling probably a dozen SBA loans, that it would require guarantors. Prior to any loan application being submitted for Star-Brite, Inc., Simmons and Finley met with SBA in Kansas City, and there confirmed that it would be necessary to have guarantors on the loan. Dr. Bur-nell Landers, Finley’s friend, and a social and professional acquaintance of Simmons, was suggested as a possible guarantor. Finley then invited Dr. Landers to Windsor, Missouri, for the purpose of meeting with Simmons as well as looking over the companies.

Dr. Landers went to Windsor in early September, 1973, to Simmons’ home, and there, in Simmons’ kitchen, met with Finley and Simmons, and had a discussion about Star-Brite, Inc., in which Simmons took the lead. He told Dr. Landers that Star-Brite, Inc., was and definitely could be a very successful, profit-making company. Dr. Landers was told that they would like him to be a part of Star-Brite corporation, “and so — there was a discussion of the distribution of stock. Q Was Dr. Landers supposed to get any stock? A At that meeting, it was agreed that Dr. Landers was to receive forty percent. Q What was Dr. Landers supposed to do in return for getting this forty percent? A He was to sign the guaranty for one hundred and twenty thousand dollar S.B.A. application, and for his forty percent he would only be liable for forty percent of that one hundred and twenty thousand dollars.” [Finley testifying.]

At that meeting, no one told Dr. Landers that Windsor Manufacturing Company had only operated profitably one month since 1971, or that some of Star-Brite’s money was going to be used to help pay out Windsor. Later, they submitted the loan application, which noted the fact that the Lan-ders would be guarantors, and it was approved (by SBA), and the Bank loaned Star-Brite $120,000 which was put in its account at the Bank on October 12, 1973, and on that same day $80,773.34 was transferred from that account to Windsor’s account, and a loan to Windsor for $80,000 was shown on Star-Brite’s books. It is not precisely clear in the record whether Landers’ SBA form guaranty was ever forwarded to SBA, the form providing for a 100% guaranty instead of 40%. Dr. Landers crossed out a portion of the form and apparently retained it as not being acceptable. Star-Brite’s notes receivable account shows that six loans, totalling $118,755.26, were made to Windsor.

Dr. Landers testified: “Q Did J. Simmons say anything to you about whether or not you should participate in any sort of investment or anything to do with Star-Brite? A He told me that, he said that — well, let me back up. The point was that Mr. Finley had made the statement that they could get the products of Star-Brite into the True Value Stores, Ace Hardware Stores, Western Auto, those are the three big ones. And he repeated this. Q He repeated this? A He repeated the fact that he could get this done. I remember this, that Mr. Simmons stated that he knew that a man that ran or was the head of Walmart and they could get those products into that line of stores also. Q Was anything said about making an application to the S.B.A. for a loan or S.B.A. participation in a loan that was to be made to Star-Brite? A Yes, sir. This was the part I was to play. I was to — as it was explained to me, on the basis of my guaranty, that this would help Mr. Finley and Mr. Simmons get an S.B.A. loan to get Star-Brite off the ground. Q Were you to receive anything in exchange for giving that guaranty? A Forty percent of the stock of Star-Brite.” Dr. Landers admitted that prior to the execution of the note and the security on the guaranty agreement, he had no discussions with Simmons about the financial condition of Star-Brite, Inc., or of Windsor Manufacturing Company. He did not know how much stock was outstanding in Star-Brite, Inc., at the time he executed the guaranty agreement, or from whom he was to receive 40% of the stock. It was his understanding that Finley was the sole stockholder of Star-Brite.

The Star-Brite, Inc., loan application to SBA reflected that Dr. Landers was 40 percent owner of the company, and SBA’s preliminary commitment provided this condition, among others, “13. Personal Guaranty on SBA Form 148 of Burnell Landers and Linda Long Landers, his wife; * * * each of said Personal Guaranty shall be collateralized with an Assignment with Full Voting Rights of all Stock, Warrants and Options of the corporate Borrower owned by said Guarantors, or any of them.” Dr. Landers received a copy of the commitment containing the conditions, and he testified that it gave him confidence that the SBA loan had “been approved and that things were moving forward to the fact that my, that I was entitled to, I thought, some stock after I read this letter.”

On October 31,1973, Star-Brite’s board of directors, including Simmons, passed resolutions authorizing him, among others, to borrow money and sign checks for the corporation. In two meetings, November 1 and 27, 1973, the board transferred all of Star-Brite’s outstanding common stock to Windsor Manufacturing Company. According to Finley, this was done because “in essence everything that Windsor owned, or Gene Finley, according to SBA’s conditions, was collateralized by their loan. So it made no difference. Windsor Manufacturing Company owned Star-Brite — period.” There was also a reason given that there would be a tax advantage resulting from the transfer.

Simmons and Finley procured from Roberts and Finley guaranties dated October 12, 1973, the Bank’s $120,000 loan to Star-Brite, Inc., being made on October 21, 1973. The guaranty of Dr. Landers and his wife to the Bank is dated January 9, 1974, which is after the loans from Star-Brite to Windsor were made, and after the transfer of Star-Brite’s common stock to Windsor. The discrepancy in dates is not explained in the record, but Dr. Landers was never told that Star-Brite had supplied funds to Windsor, or that the stock was going to be transferred, or that the SBA application had been withdrawn. SBA learned of the relationship between Star-Brite and Windsor in November, 1973, and called Finley and Simmons to Kansas City for a series of meetings. They, accompanied by an attorney, Riley, went to Kansas City to confer with SBA officials, who were angry about the fact that Star-Brite was actually a part of Windsor, and the officials were expressing some displeasure that they had not been told before issuing the commitment for the $120,000 loan. It was recommended to Simmons that he withdraw his application “for the SBA loan, let things cool down, spin it out and resubmit it at a later date.” Simmons did withdraw the application in December, 1973, and received the return of all papers, including Dr. Landers’ guaranty. Finley asked Simmons if he was going to return Landers’ guaranty to them, but he said, “A In so many words, no way would he return the guaranty because it made a good bankable loan and would protect him on bank examiners.” [Bearing on this testimony is the uncertainty as to whether Simmons ever had the Landers’ guaranty in his possession, but it would make no difference in the failure to disclose facts in connection with the procurement of the new guaranty, running to the Bank, of January 9, 1974, as below discussed.]

Star-Brite, Inc., never became a going concern, but if all the money that it had received had been used for it (rather than for Windsor) “there is no doubt about it, it would have been a profit-making company”, (according to Finley).

The $120,000 loan of October 21, 1973, which was the subject of the SBA application, was paid off, $40,000 on June 13,1974, and $80,000 on August 16, 1974. The note given by Star-Brite to the Bank, against which it sought to apply the Landers’ guaranty [it being for “credit given” and hereafter given by said Bank] was in an initial amount of $128,387.65, dated August 16, 1974.

As to Count I, the Landers submitted these four affirmative defenses: In Instruction No. 6, a false representation that the loan made to Star-Brite, to which the guaranty applied, would be guaranteed by the Small Business Administration, and that the Landers would receive common stock in Star-Brite, Inc., in exchange for executing the guaranty; in Instruction No. 7, upon the same propositions, but that reasonable care was not exercised in making the representations; in Instruction No. 8, that there was a failure, in the exercise of reasonable care of the Bank to disclose to the Landers that Star-Brite’s common stock was transferred to Windsor Manufacturing Company, or that the funds were used for the obligations of the latter company, or that the Bank caused SBA to cancel its guaranty of a loan commitment to Star-Brite, and that the guaranty executed by the Landers was not in connection with any loan guaranteed by SBA; and in Instruction No. 9, the same proposition of Instruction No. 8 was submitted, but upon the basis that the Bank had knowledge of the undisclosed facts, that there was a relationship of confidence or trust between the Bank and the Landers to whom the undisclosed facts were material in executing the guaranty.

In the first of its prolix points, the Bank contends that it is entitled to judgment as a matter of law upon its guaranty because the Landers admitted the execution and delivery of the document. That would be true were it not for the affirmative defenses asserted. The real inquiry is whether the Landers pleaded legal defenses, and if so, whether they were proved by substantial evidence, and whether the defenses were properly submitted in the instructions.

The submission of Instruction No. 6, supra, is pleaded that Simmons, acting within the scope of his employment as president of the Bank, knowing statements to be false, or recklessly without regard to their truth or falsity, and acting with intention that defendants rely, made misstatements of material fact relied on by defendants, or knowingly or with utter and reckless disregard of consequences omitted to state material facts which he had a duty to disclose (in that) (a) he stated to Dr. Landers that a loan to Star-Brite, Inc., would be guaranteed by SBA, which would meet SBA requirements if Dr. Landers would execute a guaranty of a portion of the loan; and at no time did Simmons disclose the action of Star-Brite in transferring shares of its stock to Windsor, or that the issuance of the stock would impair Star-Brite’s ability to meet the conditions of the SBA loan guaranty. The Bank attacks the Instruction No. 6 theory that at the time they were made, September 3, 1973, there was no evidence that they were false and Simmons knew they were false. Expanding, the Bank says that the “allegations are not statements of existing facts necessary to a misrepresentation affirmative defense; rather they are statements of alleged promises of events to take place in the future.”

The usual case of fraud requires that there be a misrepresentation of a present, existing fact. Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275, 278[2-4] (Mo. banc 1932); Bayer v. American Mutual Casualty Company, 359 S.W.2d 748, 754[9, 10] (Mo.1962); Yerington v. Riss, 374 S.W.2d 52, 58[5] (Mo.1964), and cases and authority cited, wherein the exception was noted, “ ‘[A] false statement of a present purpose may be a misstatement of a fact.'” This exception was developed in Brennaman v. Andes & Roberts Brothers Const. Co., 506 S.W.2d 462, 465 (Mo.App.1973), noting the apparent divergent lines of authority of Reed v. Cooke, supra, and others, and cases cited: “In the decisions cited, appeal followed trial on the merits and therefore a factual record was available with which to measure the claimant’s petition allegation. On the one hand, recovery was denied where the evidence showed the alleged misrepresentation of intention to have been a mere promise or matter of opinion subsequently unfulfilled for which the proper remedy is a suit on the promise. [3, 4] Those cases in which recovery for fraud is permitted require an entirely different evidentiary basis. The essence of the fraud being a misrepresentation of an existing fact, the burden of proof requires the claimant to establish by the evidence a current intention by the promisor at the time the agreement is made not to perform. Failure of performance is insufficient to establish this intent or to shift the burden of proof.” [Italics added.] In this case there was no evidence, at the time the alleged representation was made in early September, 1973, that Simmons knew that SBA would not guarantee the Star-Brite loan to the Bank. In fact, the evidence was that an initial approval or commitment by SBA was given, which apparently was the basis for the $120,000 loan to Star-Brite on October 21, 1973, but the commitment was later withdrawn. There was further no evidence that Simmons, in early September, 1973, had a current intention not to transfer Star-Brite common stock to Dr. Landers in return for his guaranty. Thus, the submissions of Instructions No. 6, and necessarily, No. 7, of the same propositions but on a standard of reasonable care, were in error because not supported by the evidence as they must be. Brassfield v. Sears, 421 S.W.2d 321, 323[1, 2] (Mo.1967); Stotler v. Bollinger, 501 S.W.2d 558, 560[1, 2] (Mo.App.1973).

As the facts show, Dr. Landers executed the guaranty of January 9, 1974, upon which the Bank sues, after these events took place: (1) The Bank withdrew its SBA application for guaranty upon the SBA objection that Star-Brite’s funds were being diverted to Windsor; (2) the money loaned by the Bank to Star-Brite was reloaned in substantial amount to Windsor; (3) Star-Brite transferred its outstanding common stock to Windsor (thus, rendering it impossible that Dr. Landers receive his 40% of Star-Brite’s stock in return for his executing the guaranty). Dr. Landers was never informed of any of these events. Instructions Nos. 8 and 9 substantially submitting these facts along with the proposition of law — that of a failure in the exercise of reasonable care to disclose them having superior knowledge of them; and (Instruction No. 9) there was an intentional failure to disclose these known facts, and that there was a relationship of confidence and trust between J. W. Simmons and the defendants. A mere social and professional relationship, as it is argued, between Simmons and Dr. Landers would not give rise to a relationship of trust and confidence requiring a duty to disclose, and there is lacking any evidence that Dr. Landers reposed any special confidence in Simmons during their discussion. See McKeehan v. Wittels, 508 S.W.2d 277, 279, 280[2-3] (Mo.App.1974), as to factors which may establish a confidential relation giving rise to fiduciary obligations. The giving of Instruction No. 9 was thus in error. Rather, the duty to disclose would arise from Simmons’ superior knowledge of the facts when Simmons knew or should have known that they would have been material in causing him to execute the guaranty. Materiality, if Dr. Landers had been advised of the facts, is demonstrated in his continued belief that SBA participation and supervision would lend a measure of success to Star-Brite, and SBA participation had been withdrawn; that he did not know that Star-Brite’s borrowed funds, necessary to its success, had been diverted to the defunct Windsor company; and he did not know that his promised common stock had been transferred to Windsor. The propositions submitted in Instructions Nos. 8 and 9, in the aspect of non-disclosure, in reality sound in fraud, alluded to in Vendt v. Duenke, 210 S.W.2d 692, 699[2] (Mo.App.1948), where the defendants failed to disclose the known material fact, uncontro-verted by them, and unknown to plaintiffs, that a house had been built on soft filled-in ground. The court said, “There must also exist a legal duty on the part of the latter to disclose, which duty may arise from a relation of trust, from confidence, inequality of condition, or superior knowledge which is not within the fair and reasonable reach of the other party. (Citing authority and cases.) * * * If a jury should believe the foregoing evidence, then they would be justified in finding that defendant Duenke was under a duty to disclose to plaintiffs the manner of construction of the house in question in the particulars complained of, and that he practiced a fraud and deceit upon them in failing to do so.” [Italics added.] See also the equity cases of Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 193[12-14] (1949); Ash Grove Lime & Portland Cement Co. v. White, 361 Mo. 1111, 238 S.W.2d 368, 372[4, 5] (1951); and Miller v. Higgins, 452 S.W.2d 121, 124[3-5] (Mo.1970). Quite apparently, the Landers have misconceived the nature of their defensive remedy. Upon retrial of Count I, the parties will be free to explore the issue of the Landers’ opportunity, or lack of a reasonable opportunity, to learn the facts for themselves, as that might bear upon Simmons’ duty to disclose such facts.

The Bank contends that the representation that Dr. Landers would receive 40% of Star-Brite’s stock is one of law which cannot be made a basis for fraud. As noted, there being no evidence of Simmons’ current intention not to cause the stock to be issued, as submitted in Instructions Nos. 6 and 7, that is now out of the case except for non-disclosure that all outstanding stock had been transferred to Windsor making it unavailable to Dr. Landers in fulfillment of the promise made to him. On re-trial, any issue of fraudulent non-disclosure of the transfer of Star-Brite’s common stock to Windsor would have to relate back to the original promise to Dr. Landers as bearing upon his continued expectation that stock would be issued to him, and not become unavailable. The argument is based upon the provisions of Const.Mo.1945, Art. XI, § 7, and § 351.160 RSMo 1969, that “no corporation shall issue stock, * * * except for money paid, labor done or property actually received; * * Because the issue may arise on new trial as to Count I, attention is directed to the case of Hartley Realty Company v. Casady, 332 S.W.2d 291 (Mo.App.1960), where a misstatement of law was made to defendant that a six months’ apprenticeship was a prerequisite requirement for taking the examination for a real estate broker’s license, thus inducing him to sign a contract with a non-competition clause and a liquidated damage penalty. At 332 S.W.2d 293[2-3], the court quoted 17 C.J.S. Contracts § 158, p. 511, “ ‘However, misrepresentations of law may constitute fraud avoiding contracts where the speaker sustained a confidential relation toward the hearer, or possessed superior means of information, or wilfully misled him into a misconception of his rights and liabilities.’ ” See also the cases and authority cited at pages 294 and 295 of the Hartley opinion. As to the capability of performance of the promise to Dr. Landers to issue him 40% of the Star-Brite stock, despite the constitutional and statutory provisions, see Eastern Oklahoma Television Company, Inc. v. Ameco, Inc., 437 F.2d 138 (C.A. 10th 1971), holding that a personal guaranty of an obligation of the corporation, was, in part, adequate consideration for the issuance of stock under constitutional and statutory provisions like those here. The court said, page 143, “Absent the guaranty, the essential equipment for the operation of a television station could not have been obtained. The organizers personally furnished the security for the purchase of this property. * * * The record clearly indicates that the result of this security was the completion of the station, which eventually led to a successful corporate operation. The guaranty was valuable property or services within the meaning of the Oklahoma Constitution.” So, here the Landers’ personal guaranty enabled Star-Brite to obtain the SBA commitment and the Bank’s extension of credit, and a possible successful operation, as the record shows, had the funds been used for Star-Brite and not diverted to Windsor. Absent non-consenting shareholders or creditors the issuance of the stock to him would have been supported by a valuable consideration, and would have been good as between Dr. Landers and the existent, participating shareholders of Star-Brite at the time the promise was made. An ancient case contrary to Ameco, Inc., supra, is Hinkley v. Sac Oil & Pipe Line Co., 132 Iowa 396, 107 N.W. 629, 632 (1906).

The Bank says that there was no evidence that Simmons made representations that the Landers would receive Star-Brite stock in exchange for their guaranty, the only evidence being that the representation was made by Finley. The argument ignores the inferences which the jury could legitimately draw from the September, 1973, kitchen discussion in which Simmons took the lead. He was part and parcel of the proposed enterprise, and his superior knowledge and condition is shown by the fact that he had engaged in at least a dozen SBA negotiations. Dr. Landers was a full-time practicing physician, being as Simmons acknowledged “a very busy man.” As is shown by his refusal to return the Lan-ders’ guaranty after the SBA guaranty commitment was withdrawn, which was after the Bank made the loan to Star-Brite, Simmons interest was to protect the Bank, and that would include, as the jury might find, the non-disclosure of facts bearing on the Landers’ decision to execute the guaranty, here sued upon, of January 9, 1974.

The Bank says no representations were made to Mrs. Landers. It is clear, however, that representations were made to Dr. Lan-ders, and he and his wife discussed the proposition after which they both executed the guaranty. The contention is without merit. Other points raised by the Bank as to Count I either need not be ruled at this time, and if they arise on new trial, the parties are sufficiently apprised by their briefing to meet them on the new trial. Because the submissions in Instructions Nos. 6, 7 and 9 are not supported by the evidence, as above held, the case must be remanded for new trial as to Count I of the Bank’s petition. Stotier, supra.

On their appeal from the judgment against them upon Count II of the Bank’s petition, the Landers first contend that they were discharged from the obligation to pay the note because it was altered as to due date, citing § 400.3-407, RSMo 1969. The note, dated December 18, 1972, was payable upon demand, with interest from date at 8% per annum, payable semi-annually. A first notice of interest due was sent to Dr. Landers, who contacted Simmons who said the matter would be taken care of. Apparently, Finley, for whose accommodation the note was given, paid the three interest payments at approximate six-month intervals. The written notations are on the note’s face, “July 10, 1974; June 16, 1973; Jan. 3, 1974; Feb. 15, 1975.” The Landers say these dates are an alteration in the sense that the due date was extended. Clearly, from the evidence, the date notations related to the times when interest would be due, and is not an extension of the due date of the demand note. See Lynes v. Holt-Taylor, 268 S.W. 702, 705[6-8] (Mo.App.1925), holding that periodical collection of interest is not an extension of time for payment and “A demand note is, by its very nature, without specification of date of maturity. Demand for payment fixes the date of maturity.” The contention is without merit.

Instruction No. 11 given by the court is: “Your verdict must be for plaintiff and against defendants Burnell Lan-ders and Linda Landers on plaintiff’s Count II $12,000.00 promissory note claim; Unless you believe plaintiff is not entitled to recover against such defendants by reason of Instruction No. 12. Not in MAI.” The Landers say the giving of this instruction was error first because it failed to include the element that Dr. Landers had given the note sued on. He, throughout the case, admitted the execution and delivery of the note. This conceded fact need not have been submitted. Young v. Frozen Foods Express, Inc., 444 S.W.2d 35, 40[5, 6] (Mo.App.1969), but however that may be, there was no trial court objection to the instruction on that ground, or on the second assertions that there was omitted the elements that there was consideration received, that the time for payment was past due, that demand had been made but that there was failure to pay the note. The claims of error here were not presented to the trial court, and therefore were not preserved for review. Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11[7-9] (Mo.App.1974).

A further attack upon Instruction No. 11 was presented to the trial court and is preserved for review. In essence, the contention is that the instruction submitted as against Mrs. Landers a theory of liability (which was on the note) different than her liability on the guaranty of payment. In this, she is correct. Her liability is secondary or collateral to that of Dr. Landers on his note. Beauchamp v. North American Sav. Ass’n, 543 S.W.2d 536, 537[2-5] (Mo.App.1976). The bases for liability should have been submitted separately as to Dr. and Mrs. Landers. See the approved form of guaranty instruction in Linwood State Bank v. Lientz, 413 S.W.2d 248, 256 (Mo.1967). Dr. Landers’ note was given by him on December 18, 1972, and Mrs. Landers’ guaranty of payment was given September 3, 1973. No issue is presented as to a lack of consideration, but it may arise on re-trial, in which event, see MacFarland v. Heim, 127 Mo. 327, 29 S.W. 1030, 1031 (1895), and 38 Am.Jur.2d Guaranty, § 45, p. 1047.

The Bank has lodged a motion with this court asking for attorneys’ fees on this appeal as to both counts. There is no judgment upon Count I for the Bank, and that count is reversed and remanded for new trial. The notes sued upon provide for collection costs and attorneys fees. Such provisions are valid. American Savings Bank v. Sutton, 204 S.W. 572[1] (Mo.App.1918), and cases cited. No cases have been cited from this state allowing collection costs and attorneys fees provided by contract beyond the time of judgment entered in the trial court. It is, however, the rule in Missouri that in an action for the recovery of money the cause of action is merged in the judgment for plaintiff and is extinguished. Household Finance Corporation v. Avery, 476 S.W.2d 165, 167 (Mo.App.1972); McQuerry v. Bank of El Dorado Springs, 230 Mo.App. 1215, 96 S.W.2d 515, 519[4] (1936). The causes of action would be for the recovery of the principal amount of the notes, plus interest, collection costs and attorney fees, and upon recovery of the judgment, these items would be merged therein, and the judgment would only bear interest at 6% per annum until satisfied under § 408.040, RSMo 1969. Other jurisdictions have applied the doctrine of merger of the cause of action into the judgment and have denied further attorneys fees on appeal. McCormick v. Falls City Bank, 57 F. 107, 111 (C.A. 7th 1893); Hales v. Snowden, 40 Cal.App.2d 801, 105 P.2d 1015 (1940) [holding that the rights of the parties are governed by the decree entered after the mortgage provisions were merged therein]; Honey Creek Corp. v. WNC Development Co., 331 N.E.2d 452, 459[3] (Ind.App.1975); Anno. 52 A.L.R.2d 863, 871. Centennial State Bank v. S.E.K. Construction Co., Inc., 518 S.W.2d 143, 151 (Mo.App.1974), is of no aid to the Bank because that was a case where an insurer refused to defend its insured, thus violating its contract to defend throughout. Dissolution of marriage costs and legal services after entry of judgment are governed by statute, § 452.355 (L.1973, p. 470, § 12, eff. Jan. 1, 1974). Other cases cited have no contractual provision for the payment of these expenses. The motion is overruled.

The judgment upon Count I is reversed and remanded for new trial in its entirety. As to Dr. Landers, the judgment is affirmed upon Count II. The judgment against Mrs. Landers upon Count II is reversed and as to her, the case is remanded for new trial, but with directions that the judgment against Dr. Landers be held in abeyance until the liability of Mrs. Landers shall have been determined upon new trial.

All concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Reinhart FAJEN et al., Exceptions of Minnie Arnett et al., Defendants-Respondents.
    No. KCD 29141.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Milton D. Skeens, Ronald V. Muller, Asst. Counsel, Missouri State Highway Commission, Kansas City, for plaintiff-appellant.
    George H. Miller, Royal M. Miller, John E. Miller, Sedalia, for defendants-respondents.
    Before WELBORN, Special Judge Presiding, PRITCHARD, J., and ANDREW JACKSON HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action in eminent domain to acquire easement and property rights in real estate owned by Minnie Arnett and others for road purposes. Appeal by State Highway Commission from verdict and judgment which awarded landowners $248,000 damages for the taking. The question is whether the verdict is supported by substantial evidence. Affirmed.

Plaintiff filed its petition October 17, 1973, to condemn 31 tracts of land for relocation of U. S. Highway 65 near Warsaw in Benton County. Included were 44.43 acres of land belonging to the Arnetts for part of the relocation and construction of an interchange at Truman Dam Access Road. Condemnation commissioners assessed Arnetts’ damages at $236,500; both sides excepted from the award.

The landowners offered six witnesses on the issue of damages whose testimony ranged from $239,000 to $267,700. Each considered loss of some 800 feet or more of 960 feet of frontage along, and access to, the Truman Dam Access Road on the north side of the Arnett property in arriving at his assessment. The Highway Commission offered two witnesses on the issue of damages whose testimony ranged from $63,000 to $70,500. Neither considered that the landowners had any access to the Truman Dam Access Road for which to be compensated.

In support of its theory, the Highway Commission offered witnesses Stanley Grant and William Morris. Mr. Grant, a civil engineer with the Highway Commission, plotted the description of the Truman Dam Access Road as condemned by the U. S. Corps of Engineers; and testified that his plat showed that all the right of way for the access road was taken from the Drake Estate to the north of Arnetts’ land, and that there was a gap of 30 feet between Arnetts’ north property line and the south right-of-way line of the Truman Dam Access Road. His plat showed the width of the access road as varying between 80 to 115 feet. Mr. Morris, a civil engineer with the U. S. Corps of Engineers, agreed with Mr. Grant’s testimony.

Appellant asserts that resolution of the question on this appeal depends on whether Arnetts’ north property line abutted the south right-of-way line of the Truman Dam Access Road. “If the two lines were in fact one and the same then the verdict is supported by substantial evidence and should be permitted to stand. However, if the two lines are not one and the same and are in fact separated by 30 feet, then there is no substantial evidence to support the verdict * * * >)

Appellant argues that the question is “relatively simple” because the Highway Commission offered two civil engineers who testified that the two lines were separated by 30 feet as opposed to Arnetts’ evidence by way of a Corps of Engineers plan sheet “not otherwise identified or interpreted,” and the “judgment” of a lay witness, Ken Brown, that Mr. Grant’s calculations were in error; that a verdict in disregard of the Commission’s specific evidence should not be permitted to stand. This position is further stated: “The defendants’ lone witness in support of their contention that the defendants’ north property line abutted the right-of-way line of Truman Dam Access Road was Ken Brown who did not have any education, training or experience as a surveyor. * * * The State introduced un-contradicted evidence by two qualified civil engineers that there was a thirty (30) foot gap * * *

The difficulty with appellant’s contention is that it fails to reckon with other evidence in the case from which the jury could determine that Arnetts’ north line and the south line of the access road were “one and the same,” and thus to find that Arnetts had a precondemnation right of access to the Truman Dam Access Road.

Plaintiff represented in its condemnation petition as to defendants Arnett:

“Said detail plans show the actual survey, location and plans for construction and certain limitation of access to, from and across said part of said highway, and, among other things, the location of said highway through or by the lands herein affected and particular parcels of land sought to be acquired or rights extinguished * * *. The descriptions of the lands and rights of the defendants being condemned were taken from said survey, maps and detail plans and are intended to describe the parcels of defendants’ lands * * *

Arnetts’ 44.43-acre tract was taken as legally described, together with “All abut-ters’ right of direct access between the Truman Dam Access Road and defendants’ abutting land.”

Upon appointment of condemnation commissioners, the landowners were furnished copies of Highway Commission plan sheets showing boundaries of properties taken, e. g., Sheet 7, Exhibit A, which showed the northern line of Arnetts’ tract colored red by the Highway Commission. Such line was designated also as the property line (PL) between the Truman Dam Access Road and the Arnett tract. The line also showed the presence of trees and fencing along such line. The Truman Dam Access Road was shown to have a width of 70 feet on either side of its center line. This information also appears in Exhibit 8. Exhibit E is an aerial photograph which showed the right of way of the Truman Dam Access Road as constructed to the north of the Arnett tract and the tree-fence line appears at the south edge of the improved right of way. This is confirmed by a larger aerial photograph furnished by plaintiff.

Exhibit 6, the judgment of the United States District Court for the Western District of Missouri, of October 3,1966, covered the taking of a perpetual and assignable easement and right of way for the Truman Dam Access Road, “reserving, however, to the owners * * * the right to use the surface of the land as access to their adjoining land; subject, however, to existing easements for public roads and highway * * * Exhibit K, a series of plan sheets identified within itself as for the Kaysinger Bluff (Truman) Dam and Reservoir, shows the access road as 140 feet of right of way, the southern line of which is Arnetts’ property line. It and Exhibit 8 show the total length of abutment as 960 feet with only the east 140 feet not providing access to Arnetts.

During trial, Arnetts’ witness Ken Brown made on-site measurements of the distance from Arnetts’ north fence to the center of the Truman Dam Access Road and determined the distance to be 70 feet at each of three points. He also observed sizable trees in the fence line.

Appellant cites Burke v. Colley, 495 S.W.2d 699 (Mo.App.1973), and Klinhart v. Mueller, 166 S.W.2d 519 (Mo.1942), for the proposition that unless it is definitely shown that a survey commenced from a known government corner or re-established in accordance with statute it has no probative force. The rule has no application here except to support authenticity of the Missouri and United States surveys and plans which show that Arnetts’ north line and the south right-of-way line of the access road are “one and the same,” and, thus, their precondemnation right of access to the Truman Dam Access Road.

Appellant also cites cases, e. g., Armstrong v. City of Monett, 228 S.W. 771 (Mo.1921), to the effect that testimony of a layman such as Mr. Brown has no probative value on matters requiring scientific proof. The rule has no application here because the testimony from Mr. Brown involved a measuring operation which a layman is capable of performing; and his testimony only corroborated that shown by the surveys, plans, and exhibits in evidence.

Judgment affirmed.

All concur.

      . See also State ex rel. State Highway Commission v. Dunn, 569 S.W.2d 353 (Mo.App.1978).


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. William Louis QUILLUN, Appellant.
    No. KCD 29396.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.

      David M. Strauss, Public Defender, David Doak, Asst. Pub. Defender, Bill Reeves, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

William Quillun was convicted of rape, § 559.260, RSMo.1975 Supp., and sodomy, § 563.230, RSMo.1969. The court fixed sentence under the Second Offender Act at twenty years imprisonment on the rape charge and five years imprisonment on the sodomy charge, the sentences to run consecutively.

On this appeal Quillun alleges error in that (1) the State did not prove venue; (2) he was denied the right to testify; (3) he was denied effective assistance of counsel; (4) the prosecutor referred in argument to his failure to testify, and (5) the court refused to excuse a venireman for cause. Affirmed.

Quillun does not question the sufficiency of the evidence to convict him. Briefly, the State produced evidence from which the jury could find that Quillun was a cab driver in Columbia. The victim called a cab to take her to the bus station. The cab arrived with Quillun as the driver. Quillun took her to the bus station and she went inside to purchase a ticket. When the ticket agent told her the bus station was closing she returned outside and Quillun was still there. Quillun then inquired as to why she had left the station and she told him the station was closing because of the late hour and she had some time until her bus left. Quillun then invited her to have a cup of coffee and ultimately drove to a remote spot where the acts charged were committed.

Quillun first argues the State failed to produce sufficient evidence from which the jury could find the offenses occurred in Boone County. The victim testified Quillun took her outside of Columbia to an area known as Stone’s Junkyard. An investigator for the prosecutor’s officer testified the victim later took him to the scene of the crime. He stated the area was northeast of Columbia off of Mexico Gravel Road and north of such road. He said the area was commonly known as Stone’s Junkyard. An official map of Boone County has been lodged with this court and shows Mexico Gravel Road to begin and end entirely within Boone County. It begins approximately three miles northeast of Columbia and runs approximately four miles in an easterly direction. It ends approximately one mile from the Callaway County line.

In State v. Heissler, 324 S.W.2d 714, 716[2] (Mo.1959) it was held that venue need not be proven by direct and positive evidence. The court stated venue may be satisfactorily shown if the facts and circumstances in evidence reasonably support the inference the offense was committed in the county alleged. Heissler further held courts may take judicial notice of the location of cities and highways. The only evidence in this case as to the location of the crime came from the investigator and placed it just north of Mexico Gravel Road. Because this road runs wholly within Boone County and undoubtedly was well known to the court and jury and because this road is several miles south of the north county line of Boone County, the jury was entitled to infer that the offenses were committed in Boone County.

Quillun next contends he was denied the right to testify in his own behalf by his attorney and this resulted in a denial to him of effective assistance of counsel. Quillun claims his attorney at trial told him he would testify but claims his attorney abruptly rested Quillun’s side of the case without calling Quillun as a witness. This matter was presented by different counsel than Quillun’s trial counsel to the court in a motion for new trial. The court heard extensive evidence on this claim from Quillun, his attorney at trial, and other witnesses, including another lawyer unconnected with the case. Quillun’s trial counsel testified he discussed the matter of Quillun testifying and pointed out that if he did the State would be entitled to show his four previous convictions, one of which was rape, and Quillun would also have to explain inconsistent statements he had made and the presence of seminal fluid on his tee shirt which the State had in its possession. He stated under these circumstances Quillun said he did not want to testify. Another lawyer stated Quillun’s trial counsel had discussed the strategy of Quillun testifying and he heard Quillun tell his trial counsel he did not want to testify. When the motion for new trial was overruled, the trial court expressly found from the evidence presented that Quillun made a knowing decision not to testify and such decision was freely and voluntarily made. The court further found Quillun was not deprived of the effective assistance of counsel.

Normally a claim of ineffective assistance of counsel is not taken up on direct appeal. State v. Hall, 525 S.W.2d 364, 366, n.1 (Mo.App.1975). However, when the record on appeal contains sufficient facts to permit a meaningful review of the claim, then such review may be made on direct appeal. That situation exists in this case.

The burden was upon Quillun to prove his allegation that he had been denied the right to testify by his attorney and had thus been denied effective assistance of counsel. State v. Nolan, 499 S.W.2d 240, 252[14-16] (Mo.App.1973). Here the trial court heard the witnesses on the questions presented and determined that Quillun had made a free and voluntary decision not to testify. This court is required to defer to the determination of the credibility of the witnesses made by the trial court unless it clearly and convincingly appears that the court has abused its discretion. Bennett v. State, 549 S.W.2d 585, 586[1, 2] (Mo.App.1977). The finding of the trial judge is amply supported by the evidence and no abuse of discretion is charged or shown.

Quillun next charges the prosecuting attorney referred to Quillun’s failure to testify. In his final argument the prosecuting attorney stated there was no evidence to the contrary to show that the events related by the victim did not happen; the jury had heard nothing to the contrary to contradict what the victim said; and the jury had heard no evidence to the contrary that what the victim said wasn’t the absolute truth. It was pointed out in State v. Morse, 542 S.W.2d 365, 368[4] (Mo.App.1976) that the argument made by the prosecutor to the effect there was no evidence to the contrary has been held many times not to be an improper comment on the defendant’s failure to testify. The comments made by the prosecutor in this case fall within that rule.

Quillun finally contends the court erred in failing to excuse venireman Spease because Spease was a member of the Coast Guard Reserve and as such had the power to issue citations for alleged violation of federal regulations. The voir dire of the jury panel was conducted by both the court and counsel for the State and Quillun. During the voir dire the court asked venireman Spease if there were anything about his experience of active duty with the Coast Guard that would cause him to be unable to listen to the evidence and base his verdict solely on the evidence. Venireman Spease answered in the negative. This was the only question directed to this venireman concerning the effect of his Coast Guard authority to sit as a juror in this case.

In State v. Lovell, 506 S.W.2d 441, 443-4[1-2] (Mo. banc 1974) the court said the trial court’s ruling on challenges for cause “will not be disturbed unless it is so manifestly against the record of the voir dire examination as to show an abuse of discretion.” No effort is made to show an abuse of discretion and based on the voir dire examination of this venireman no abuse is found in overruling the challenge for cause.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Marian J. SNIDER, Petitioner-Respondent, v. Homer K. SNIDER, Respondent-Appellant.
    No. KCD 29451.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Cedric Siegfried, Robert J. Wise, James Russell Ford, Independence, for respondent-appellant.
    Thomas D. Cochran, Wm. D. Piedimonte, Joe F. Willerth, Independence, for petitioner-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Dissolution of marriage. Question is whether or not trial court erred in awarding wife $124,250 cash plus real property valued at $21,500 as her share of the marital property.

Marian J. Snider, petitioner below and respondent here, was married to Homer K. Snider, appellant, on August 1,1954. After the marriage, both parties completed their education, Marian receiving a Master’s Degree in music education and Homer a Doctorate in Veterinary Medicine. Three children were born to the marriage. The parties separated about October 25, 1975 and the petition for dissolution of marriage was filed January 27, 1976.

At the time of the separation and dissolution Doctor Snider engaged in the practice of Veterinary Medicine at Hamilton, Missouri. The exact course of his professional career does not appear. Mrs. Snider had been a housewife during the marriage except for four years between 1968 and 1971 when she was also employed as a teacher.

Doctor Snider had been in the cattle business with his father since 1947. Apparently the operation was conducted for at least some time on the father’s farm.

In 1960, the Sniders began acquiring property. A 180-acre tract, known as the “Austin” property was acquired in 1960 for $7,200. Title was taken in the names of Keith and Marian Snider. In December, 1967, the 124-acre “Jamison” property was acquired for around $175 per acre with Keith Snider as grantee. Five acres off this tract were sold in 1970. In August, 1970, the 90-acre “Pickering” tract was purchased for $31,500.00. In February, 1972, the 280-acre “Farley” place was purchased for $56,000.00.

In December, 1971, Farview Cattle Co., Inc., was incorporated, with Keith and Marian, along with Keith’s parents, Homer and Ava Snider, as incorporators. Homer and Ava transferred 192 acres of land, plus a ½ interest in an 80-acre tract and their interest in the cattle operation to the corporation in exchange for stock in the corporation. They also transferred $15,000 in cash. Marian and Keith transferred the Austin, Jamison, Pickering and Farley places to the corporation, along with Keith’s interest in the cattle operation.

Just what stock was issued in these exchanges was not wholly clear. The attorney who handled the incorporation produced at the trial what purported to be the original stock record book of the corporation, showing that on December 1, 1971, 25 shares of stock were issued to Homer J. Snider, 25 to Ava Snider, 25 to Keith Snider, three certificates for eight shares each to Keith Snider as trustee for each of his minor children, and one share to the attorney. On February 1, 1972, there was filed with the Internal Revenue Service on behalf of the corporation an “Election by Small Business Corporation,” signed by Marian, Keith, Homer and Ava, which recited that 70 shares of stock in the corporation were held by Keith, 50 by Marian and 40 each by Homer and Ava. The first income tax return for the corporation for the year ending January 31, 1973 recited that Keith was the owner of 75 shares of the corporation and Homer 25 shares. The original returns for the years ending January 31, 1974 and 1975 repeated this ownership statement. Sometime in 1975 or early 1976, Keith’s attorney advised the accountant that the statements of ownership of the parents as owners of 25 shares each, Keith 26 shares and 24 shares as trustee for his children.

Following its incorporation, Farview Cattle Company, Inc., purchased additional land. In January, 1974, a 120-acre second' “Farley” place was purchased for $36,-000.00. Title was taken originally in the names of Keith and Marian and transferred immediately to the corporation. In December, 1975, the 225-acre “Ward” property was purchased for $93,000.00. In 1972, Keith and Marian sold a lot in Hamilton to one Brehm. The corporation later purchased the lot upon foreclosure.

The respondent produced testimony of two real estate appraisers as to the value of the various tracts as lows: of May, 1976 as fol-

Appraiser Simmons Appraiser Shelman
1. Pickering $ 81,615 $116,000
2. Parley 228,350 186,000
3. Jamison 57,865 62,400
4. Austin 97,150 90,000
5. Ward 130,675 135,000
6. Brehm 5.700 8.500
Total $601,355 $597,900

These properties were subject to liens totalling approximately $200,000.00.

The appellant’s opinion was that the value of the above property (except the Brehm tract) was in the aggregate $319,525.00. He also offered the only evidence as to the value of the land transferred by his parents to the corporation. He stated that his father was offered $150,000 for 152 acres in the 1950’s. Another 40-aere tract was estimated to have a current value of $1,200 per acre.

A loan statement, dated December 17, 1975, furnished the First National Bank of Gallatin showed that the value of cattle and hogs then owned by the corporation was $172,900.00. They had been pledged as security for a loan to the corporation of $75,-000 ($94,000 at the time of trial) by the bank.

During the marriage, the parties purchased some lots at Lake Viking for $15,-600.00. Respondent valued this property at $21,500 at the time of trial. It was then still in the names of the parties as joint owners. The respondent showed a value of $4,236 on household furnishings.

At the dissolution hearing, not a great deal of attention was given appellant’s veterinary practice. Income tax returns for 1973 showed a net income of $11,038.53 from veterinary practice.

At the conclusion of a hearing on May 13, 1976, the court announced that it would enter the decree of dissolution. It ordered appellant to pay respondent $350 per month as temporary maintenance and $150 per month for the support of a child. The court stated that the property division would be taken under advisement.

Thereafter, counsel for respondent moved the court to reopen the matter for further testimony as to the value of the real estate. On October 4,1976, following withdrawal of respondent’s original attorney, the matter was reopened and the testimony of respondent’s real estate appraisers was presented, along with testimony of respondent.

On December 30, 1976, the trial court entered judgment, making permanent the former arrangement for child custody and support and dividing the marital property. The judgment recites that “ * * * except for a certain lot on Lake Viking, essentially all of the marital property was conveyed to Farview Cattle Co., Inc., a Missouri corporation, and the unencumbered value of all of the marital property including the Lake Viking property and that property conveyed to Farview Cattle Co., Inc., is $270,000; * * *.” The judgment further recites:

“ * * * [A]fter considering all relevant factors, the Court determines that it would be just to equally divide the property between Petitioner and Respondent, but inasmuch as all of the marital property except for the Lake Viking property is now an asset of the Farview Cattle Co., Inc. be divided and that the above-described real property being marital property that has not been disposed of, it would be just that said real property be set apart to the Petitioner as her sole and separate property at a value of $21,500.00, one-half of the value to be deducted from Petitioner’s monetary share of the marital property.”

The Court awarded the Lake Viking property to respondent and also ordered appellant to pay to respondent $124,250 by June 30, 1977.

In this court, appellant’s first point is that the trial court erred in its distribution of marital property because the cash figure of $124,250 “purported to be a quotient of the value of real property sold by a valid agreement of the parties four years previously * * * to the Farview Cattle Co.” Argument in support of this point relies upon § 452.330, subd. 2(4), RSMo 1975 Cum.Supp., which excludes from marital property “property excluded by valid agreement of the parties.” That provision has no bearing on this case, there having been no evidence of an agreement between the parties as to the status of the property insofar as marital rights are concerned. The transfers to the corporation changed the nature of the property in which the marital rights existed from real property to corporate stock. However, the trial court made no order which purported to transfer to respondent any property of the corporation and appellant’s argument premised upon the theory that it did so is without merit.

What the trial court did was award the respondent the sum of $124,250 cash plus the Viking Lake property as her share of the marital property. The allowance of cash to the wife in lieu of the distribution to her of stock owned by her husband in a closed corporation has been held to be a proper exercise of the court’s discretion in dividing marital assets. Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

The record in this case leaves much to be desired on the issue of the value of appellant’s interest in the corporation. See Krauskopf, Marital Property at Marriage Dissolution, 43 Mo.Law Rev. 157, 161-166 (1978). However, the burden is upon appellant to demonstrate that the award of the trial court was erroneous. Even if the theory of the trial court in making the distribution was erroneous, if the trial court reached the proper result upon any proper theory, its judgment will be sustained.

A large part of the difficulty in this ease arises because of the question as to just what the appellant’s share of the corporation was. The stock record book purported to show the issuance upon the formation of the corporation of shares amounting to a 50% interest in appellant’s parents and 50% in appellant and his children (plus one qualifying share), with no changes thereafter in the stock distribution. However, within two months of the date of the purported original stock issue, appellant signed a Small Business Corporation Election showing the ownership of 70 shares by him, 50 by respondent and 40 by each of his parents. Income tax returns showed a 75% interest in appellant and 25% in his parents. These returns were amended but only after the separation of the parties and following a discussion among them and their attorneys of the impending dissolution action. The evidence showed that appellant controlled the corporate activity. In fact, until the dissolution proceedings became imminent, he listed the assets of the corporation as his personal assets in loan statements to banks.

Furthermore, there was evidence that appellant was deliberately using the corporate structure in order to complicate respondent’s problem of obtaining her share of the marital property in the event of a dissolution action.

In view of the disparate economic situation of the parties, a less than equal division of marital property, favoring the wife, is justifiable. Appellant has an active veterinary practice in addition to the farming and cattle operation carried on by the corporation. Respondent was educated to be a teacher and had used her training for a short time several years ago. She testified at the trial that she had made 28 inquiries about finding employment in her field but that the possibility of her employment appeared very limited.

Given the uncertainty as to the exact extent of appellant’s substantial and controlling interest in the corporation, the evidence of a scheme to defeat respondent’s marital property rights and the disparate economic situation of the parties, there has been no demonstration that the amount of the award to respondent is erroneous. Appellant attacks the amount as wholly unjust, unconscionable, unsupported by evidence and shocking to the conscience, but does so on the grounds that there is no showing that appellant will be able to produce the amount awarded within the six-month period allowed by the trial court. The amount is relatively large, but appellant has substantial assets under his control and is undoubtedly better able to produce that sum than was the party in Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975), where “ * * * the court upheld an order granting all of the couple’s meager property to one party and requiring that party to pay half the property’s value in cash to the other, even though no cash existed.” Krauskopf, op. cited, 43 Mo.Law Rev. at 159 (1978). The argument here advanced calls for no finding of error on the part of the trial court.

Appellant contends that the trial court erred in failing to make findings of fact and conclusions of law. Following the original hearing and the trial court’s entry of a decree of dissolution and the temporary support and maintenance orders, counsel for respondent moved the court for “findings of fact and conclusions of law as provided by Supreme Court Rule.” No express findings, other than the above recitals from the final judgment, were made. Appellant contends that the failure on the part of the trial court was error. He contends that he may rely upon the respondent’s request because after the request of appellant’s counsel, he was entitled to assume the trial court’s compliance therewith and was not required to make a separate request on his own behalf. The difficulty with this position is that appellant overlooks the inadequacy, under the existing rule, of the request of respondent’s counsel. Formerly Rule 73.01 required the trial court, upon request, to make “findings on any of the principal controverted fact issues.” Presently Rule 73.01 requires specific factual findings only upon “such controverted fact issues as have been specified by counsel.” Counsel for respondent in his motion stated no specific issues upon which findings were requested. If appellant wished the court to make findings on specific issues, it was his duty, in view of the inadequacy of the request of respondent’s counsel, to specify the issues upon which findings were sought. Having failed to do so, appellant is in no position to assert error.

Appellant contends that the trial court erred in entering its December 29, 1976 judgment because it lost jurisdiction upon the expiration of 30 days from the entry of the May 13 judgment. As above noted, the May 13 judgment expressly reserved the issue of division of marital property. Obviously, the May 13 decree was not a final judgment on that issue. Whether or not additional evidence should have been heard was a matter for the trial court’s discretion and the hearing of additional evidence has not been shown to have been an abuse of that discretion.

The judgment will be modified to fix the date for payment of the sum of $124,250 by appellant to respondent at six months following the date of the filing of the mandate of this court in the circuit court. Otherwise, the judgment is affirmed.

Judgment modified and affirmed, as modified.

All concur.


text:
    J. H. McCORD, III, Plaintiff-Respondent, v. Jacob ROSENTHAL, Dorothy B. Rosenthal, and Iowa-Missouri Walnut, Inc., Defendants-Appellants.
    No. KCD 29698.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    William Rosenthal, St. Joseph, for defendants-appellants.
    Wilcox, Houts & Douglass, St. Joseph, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

J. H. McCord III brought suit for a mandatory injunction to require the Rosenthals to disconnect a sewer connection made to a sewer installed by McCord. The trial court entered a judgment granting the mandatory injunction and this appeal follows.

Rosenthal contends McCord was not entitled to an injunction because McCord did not show the requisite title to entitle him to injunctive relief. Reversed.

McCord was originally the lessee of property adjoining 36th Street in St. Joseph. At that time he installed a sewer in the street right of way adjoining the property he owned and extending over 400 feet to connect to an existing city sewer. This sewer passed in the street right of way immediately adjacent to property subsequently acquired by Rosenthal. While McCord was a lessee the title to that property was vested in Iowa-Missouri Walnut, Inc. McCord later purchased such property from Iowa-Missouri.

In his petition McCord alleged his leasehold interest in certain property adjoining 36th Street and alleged that the Rosenthals purchased and owned property immediately south of the property leased by McCord with both properties adjoining 36th Street. McCord alleged he had constructed a private sewer within the right of way of 36th Street and that Rosenthal connected a sewer line to the private sewer constructed by McCord. Iowa-Missouri was brought in as a party defendant but made no appearance either in the trial court or in this court.

At trial McCord stated he had been the lessee of the property owned by Iowa-Missouri and had later purchased this property. McCord further testified that after he filed the lawsuit involved here he had sold all of the property to Goodrich Dairy. At the time of trial McCord did not own any property adjoining the sewer line in question or adjoining the land owned by Rosenthal. McCord further admitted he had made no reservation in his deed to Goodrich of any interest in the sewer. The deed from McCord to Goodrich was introduced in evidence. The description of the tract conveyed runs along 36th Street.

Rosenthal contends McCord was not entitled to an injunction because he failed to show any ownership interest in either the land served by the sewer or in the sewer itself. McCord contends the deed only described the tract sold as running along the right of way line of 36th Street and since the sewer was constructed within the right of way of 36th Street the deed did not convey any interest in the sewer.

“Injunctive relief with respect to property will not be granted to one who does not have title to, possession of, or some interest in the property, such as a right of possession. The party seeking the injunction must stand on the strength of his own right or title rather than on the weakness of the right or title claimed by his opponent.” 43A C.J.S. Injunctions § 62.

To the same effect is Crenshaw v. Cook, 65 Mo.App. 264 (1896) in which the court held that a party to be entitled to an injunction must first establish his title.

Here McCord sold the property which adjoined 36th Street and was served by the sewer line he constructed. At the time this suit was tried, McCord did not have any ownership interest in the real estate served by the sewer line. His claim, that the description of the property sold only carried to the right of way line of 36th Street and, therefore, did not include the sewer line within the right of way, cannot be sustained. In American Steel & Wire Co. v. City of St. Louis, 354 Mo. 692, 190 S.W.2d 919, 923[1, 2] (1945) the applicable rule is stated:

Absent an express reservation, it is the universal rule that a conveyance of land bounded on a public highway or street carries with it the fee to the center of the highway or street. Furthermore, a description of the land by metes and bounds, giving courses and distances of the boundaries, does not exempt the conveyance from therule.

There is no evidence here to show the land for 36th Street came from one owner so the exception to the above rule need not be considered. However, even if the entire right of way of 36th Street came from the adjoining land owner so that McCord’s title would not carry to the center of the street, McCord would not have any ownership interest because the ownership would be vested in the adjoining owner subject to the street right of way. So, in either event, McCord did not retain any ownership to the sewer located in the street right of way upon his conveyance to Good-, rich.

McCord did not show any ownership in the property which he sought to protect. Under the rule in this state he was not entitled to an injunction absent this showing.

Further, McCord was not the real party in interest after he had sold his property. Without some ownership interest in either the adjoining real estate or sewer line he had no interest susceptible to protection. Hribernik v. Reorganized School District R-3, 276 S.W.2d 596, 598[4, 5] (Mo.App.1955).

For these reasons McCord was not entitled to an injunction. The judgment is reversed and the court is instructed to enter judgment for the Rosenthals.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Tommy L. HUNT, Appellant.
    No. KCD 29519.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Lee M. Nation, Asst. Public Defender, Kevin Locke, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW J. HIGGINS, Special Judge.

Appeal from judgments on convictions by a jury of kidnapping and sodomy. The questions are: Whether the Jackson County jury selection process denied defendant his Sixth Amendment rights; whether there was sufficient evidence of the corpus delicti of sodomy; whether a mistrial should have been declared for juror misconduct; and whether a hearsay statement of the victim qualified as an excited utterance. Affirmed.

Appellant charges the court erred (I) in overruling his motion to quash the jury panel insofar as Jackson County’s procedure for selection of jury panels allows women an automatic exemption which denies the accused his right to a jury composed of a representative cross-section of society, thus denying him his Sixth Amendment rights.

For purposes of this, opinion, it may be assumed that appellant’s contention has been preserved. It is not presently an open question in Missouri. See State v. Duren, 556 S.W.2d 11, 13-18 (Mo. banc 1977), and State v. Lee, 556 S.W.2d 25 (Mo. banc 1977), where identical contentions were denied.

Appellant charges the court erred (II) in failing to enter judgment of acquittal insofar as there was insufficient evidence of the corpus delicti of the crime of sodomy. The argument is that there is insufficient corroboration of defendant’s confession to warrant a conviction; that is, “[pjroof of a confession of a crime not made in open court, without independent proof of the corpus delicti, will not sustain a conviction.” State v. Craig, 328 Mo. 938, 43 S.W.2d 413, 414 (1931). See also State v. Capotelli, 316 Mo. 256, 292 S.W. 42 (1926); State v. Patterson, 347 Mo. 802, 149 S.W.2d 332 (1941); State v. Bowman, 294 Mo. 245, 243 S.W. 110 (1922); State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551 (1949); State v. Summers, 362 S.W.2d 537 (Mo.1962); City of St. Louis v. Watters, 289 S.W.2d 444 (Mo.App.1956).

The rule in Missouri is that “full proof of the corpus delicti, independently of the confession, is not required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case.” State v. Skibiski, 245 Mo. 459, 150 S.W. 1038, 1039 (1912); State v. Colton, 529 S.W.2d 919 (Mo.App.1975).

Appellant concedes a case of kidnapping was made; and the question thus becomes whether the corroborating evidence is sufficient to satisfy the foregoing rule in order to bring defendant’s confession of sodomy into the corpus delicti determination.

The indictment charged that on September 12, 1976, Tommy L. Hunt did “forcibly seize and kidnap one Phillip J. Weyant * * * and did “commit the abominable and detestable crime against nature by then and there inserting the penis of him * * into the mouth of one Phillip J. Weyant * * * )t

Phillip J. Weyant, age 4, was found incompetent to testify due to his tender years. His brother, Joe Michael Weyant, age 9, was found competent to testify. According to Joe Michael, he and Phillip were playing before supper on September 12, 1976, near Holy Cross School in the same block as their home at 148 North Bellaire. Joe Michael was riding a bicycle; Phillip was riding a tricycle. A man, subsequently identified as the defendant, rode up to them on a red, ten-speed bicycle. Joe Michael had seen the man about a week earlier when the man frightened him, Phillip, and several of their cousins at a Skaggs Drugstore. Defendant began throwing the boys’ cycles against a wall and into the street. After awhile, perhaps half an hour, he took Phillip from his tricycle, put him on the red bicycle, and left with him. Phillip was crying and asking to be put down; Joe Michael was yelling to defendant to stop to no avail. Joe Michael pursued his brother’s abductor but lost him after he turned a corner. Joe Michael then went home and told his mother what had happened and the police were called. After they came, Joe Michael accompanied them to the station where he participated in the construction of a composite picture of defendant. He later identified defendant in a lineup.

Josephine Bonnie Weyant saw her son, Joe Michael, when he came home upset at about 5:30 p. m., September 12, 1976. She had previously last seen him and her son, Phillip, at about 5:00 p. m., when they were playing on their cycles. After talking to Joe Michael, she and her husband called the police. They arrived about half an hour before Phillip got home. She saw Phillip around 7:30 to 8:00 p. m. He was messy and dirty; “he was quite stunned and he just didn’t look good at all. He was very white at the face.” She tried to talk with him, as did the police. He would not talk to her and was reluctant to talk to the police. “He talked to his dad. He would try to put me out because he was ashamed.” She previously had seen the defendant a week before when “he was harassing the children in the [Skaggs] drug store.”

James D. Harbison of 2006 East 48th Terrace, was at the corner of 11th and Van Brunt in the evening, September 12, 1976, visiting property he owned at 1016 Van Brunt. He saw a young person, fifteen or sixteen years of age, five-six or seven, sitting on a red bicycle at the steps of the house next door, 4630 East 11th Street. “I went down into the street and across the street so that I might get a better look at the young man * * * and he maneuvered so that I couldn’t see him, behind a tree, and kept facing away from me. * * I approached him and he rode around the corner * * *. I ran to the corner to try to get a better look and at that time, I saw a small boy on the porch of 4630 East 11th Street. * * * it was between 7:30 and 8:00 o’clock in the evening * * * he had the screen door open * * * knocking on the door. * * * The boy was crying, and he told me he wanted his mother. * * he looked kind of bedraggled and he was dirty, and he was frightened * * *. He was sobbing. He had been crying for some time, * * * j thought he had been injured and he didn’t seem to have been injured * * *. He was a little frightened of me, too. * * * I asked him ‘What is your trouble, son, what do you want?’ * * * He said he wanted the police. And I asked him what his trouble was. And then he said * * * that fellow had hurt him and left him there.” He and his wife calmed the child, after which the child was able to direct them to his home where they delivered him.

Officer Robert Fordemwalt of the Kansas City Police Department was dispatched to 148 North Bellaire at 7:08 p. m., September 12, 1976, to investigate an alleged kidnapping and sodomy. He arrived there at 7:10 p. m., where he talked to Leroy J. Weyant and his sons, Phillip and Joe Michael. Phillip “was in a dirty condition, like he had been rolling in the dirt * * * he had a bruise above his left eye.” He obtained a description of the suspect and broadcast it over his radio, viz., “white male, fifteen to seventeen years old; height, five foot seven inches to five foot nine inches. Medium build, sandy colored hair * * * riding a red ten-speed bicycle.”

Officer James Barbee of the Kansas City Police Department went to the Weyant home about 6:00 p. m., September 12, 1976, while looking for a young white male, approximately five years old, reported missing. He talked later with the Weyant parents around 6:00 to 6:30 p. m., when Officer Fordemwalt was interviewing Phillip, after which he prepared the composite drawing of a molestation suspect. On September 13, 1976, he was riding patrol with Officer James Browning. They discussed the case and considered the composite drawing. Officer Browning recognized the suspect as Tommy Hunt, and the two officers proceeded to the area of 12th and Jackson where they found him. Officer Barbee advised defendant of his rights, after which he admitted he picked the boy up and took him down by Skaggs at Independence Avenue where he made the boy perform fellatio on him. Defendant was taken to central police headquarters where he was questioned by Detective William Frazier.

Detective William Frazier also advised defendant of his rights after which he made the confession in question in his own words as follows: “I left my house about 5:30 p. m. and rode over to my girl friend’s house on my bicycle. I stayed there about twenty to thirty minutes. I went up to Cliff Drive and then I came back down to St. John and Bellaire where I saw these three boys playing. One of the boys asked me to take him for a ride. This boy had shorts and some kind of shirt on. I have heard his name but I can’t remember it now. I rode my bicycle with the boy on it down to Skaggs Drug Store at Independence Avenue and White Street. By Skaggs Store, there is a bunch of trails running up to the railroad tracks and I took the boy up there. When we got up there, I told him to suck my dick. I unzipped my pants and took my dick out and I squatted down a little bit so he could suck me off. The boy told me that he didn’t want to do this and stated he wanted to go home. I told him I wouldn’t take him home until he sucked me off. After I told him this, I put my dick in his mouth and he sucked it for about fifteen minutes. When I got through, he spit something out of his mouth, I don’t know what you call it. I then took the boy up around 9th and Van Brunt Extension where I dropped him off and then I went home.”

Following completion of the statement, defendant was asked, “Is there anything else you would want to say in connection with this statement?” He answered: “I would like to say that I wasn’t truthful when you asked me if I ever struck the boy. I pushed him down when we first went on the hill behind Skaggs. After I pushed him down, that’s when I told him I wasn’t going to take him home — back home, if he didn’t do what I told him to do.”

Detective Frazier also asked defendant why he did these things to this boy. “He said that some man did that to him when he was a little boy.”

Tommy L. Hunt, 19 at trial, denied any association with the Weyant boys on September 12, 1976. He admitted the incident at Skaggs a week before when four or five boys, including the Weyants, “got scared or something” and “took off.” He stated that most of his confession was made up and that he made it and signed it only for the purpose of going home.

Defendant also presented his aunt, uncle, cousin, mother and father in support of his alibi defense.

The foregoing demonstrates satisfaction of the rule of State v. Skibiski, supra. As said in The State v. Patterson, 73 Mo. 695 (1881), a homicide case from which the rule is taken: “It is unnecessary that the corpus delicti be established by direct and positive testimony; * * * It is sufficient, in addition to the extra-judicial confessions, which in this instance in express terms admit all the indictment charges, that there be such extrinsic corroborative circumstances, as will, taken in connection with the confession, produce conviction of the defendant’s guilt in the minds of the jury. It has often been ruled * * * that confessions uncorroborated by circumstances are insufficient. * * * This is equivalent to asserting their sufficiency when meeting with the necessary corroboration. * * * such suppletory evidence need not be conclusive in its character.” 73 Mo. l. c. 712-713.

The foregoing is consistent with decisions on the independent corroboration rule in federal courts; for example, Moll v. United States, 413 F.2d 1233, 1239 (5th Cir. 1969): “Evidence introduced to corroborate a confession * * * must be substantial enough to establish the trustworthiness of the confession”; Mapys v. United States, 409 F.2d 964, 967 (10th Cir. 1969): “* * * it is not necessary that the corroborating evidence be sufficient, independent of the statement, to prove the crime charged. The rule is satisfied if there is substantial independent evidence which will tend to establish the trustworthiness of the confession or incriminating statement.” McCormick, Evidence 2d ed. § 158, p. 349, in discussing the phraseology of the federal cases and the traditional rule, states: “It is doubtful whether this makes much practical difference.”

Appellant charges the court erred (III) in failing to declare a mistrial when it appeared that one of the jurors, following an evening recess, spoke with two State’s witnesses in violation of the court’s adjournment instruction against such communications.

The incident is described on the record by defense counsel:

“MR. BLOEMKER: * * * Upon leaving the courtroom, following the recessing of the proceedings for the evening, and on my way to the elevator, I observed the State’s first witness, Officer Fordemwalt, conversing with Juror William E. Werner. Now, I wasn’t able to overhear their conversation and I don’t know the content of it, but the conversation was taking place by the stairway, in the hallway close to the elevators, and their conversation was taking place I would estimate five or six feet distant from a conversation that was taking place among another group of people. Included in the second group was Officer Bar-bee; the victim was also in the area; the victim’s brother, Joe Mike, was in the area, and the mother of the victim was there; I don’t recall whether the father was in the group or not. I am unable to say exactly what the topic of their conversation was, but the words that they were speaking were audible from a considerable distance, and I am sure would have been audible the five or six feet away from Mr. Werner and Officer Fordemwalt were standing.
“THE COURT: Okay. I sent the bailiff out as soon as I was aware of it. You caught — just relate what you did and what you understood. * * * MR. THEDINGER: For the record, I’m not sure of the name of the juror or the name of the officer. But I did approach them. I recognized the man as a juror and I did approach the two and I did not overhear their conversation, and my first words to them were to the effect ‘Are you talking about this case?’ The response of the juror was ‘No, we are not’, and he said something to the effect that he played baseball, or that the officer with whom he was talking either played baseball with him or for him. And I told them that it looked bad, and that I — and I asked them not to have any more conversations until the case was over. And after that, the juror said ‘Sure’, and he immediately left and headed toward the elevator, and I came back in the courtroom. THE COURT: Okay. Let’s pursue it further in the morning when the juror gets in * * we’ll interrogate him further. And if you want, I’ll do that, rather than you in some way alienate the jurors.”

At the outset of proceedings the next day, juror Werner was questioned by the court:

“THE COURT: Mr. Werner, last night, were you the one that was talking to the police officer that was the first witness? JUROR WERNER: That’s right, yes. THE COURT: Would you relate to us what that conversation was about? JUROR WERNER: This young man, Bob Fordem-walt, I have known since he was maybe four or five — the whole family, played baseball for me. I used to manage ball teams. And he played baseball for me back in Midget A, and Midget B and Midget C, and this is the first time I have seen the young man since he was ten years old, and I have seen his dad on and off since then, but that was it. And I was flabbergasted. It had nothing to do with the case. I just wanted to let him know who I was and he didn’t even recognize me after all.
“THE COURT: When you were talking to him, were there any other conversations going on out in the hallway that were audible that you overheard? JUROR WER-NER: No, the only thing that did happen, the young man, I was standing there talking to the officer and the young man — well, I don’t remember his name— THE COURT: This man here? JUROR WER-NER: No, the boy, the boy. THE COURT: Oh, all right. JUROR WERNER: Walked up to me and said — and he was with some other quite large gentleman, walked up to me and the officer and says ‘How did I do, did I do good?’, to me and the officer, but whichever one, I don’t know, and, of course, we poo-pooed him on, he had done fine, and then this larger man grabs him, and I just told Bob ‘Glad to see you; tell your mother and dad hello from me.’ It had no bearing in relation to anything to the case whatsoever.
“THE COURT: Anything that either of you want to ask? MR. STIGALL: I have no questions. MR. BLOEMKER: No.”

Private communications, possibly prejudicial, including innocent visiting, between jurors and third persons or witnesses are forbidden and will invalidate a verdict unless their harmlessness be made to appear. State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953); State v. Edmondson, 461 S.W.2d 713 (Mo.1971); State v. Raspberry, 452 S.W.2d 169 (Mo.1970); State v. Miles, 364 S.W.2d 532 (Mo.1963). The question in such situations is whether the incident in a given case results in prejudice to defendant such that the court is guilty of an abuse of discretion in refusing to grant a mistrial. State v. Foster, 490 S.W.2d 659, 661 (Mo.App.1973); State v. Edmondson, supra, 461 S.W.2d l. c. 724.

Appellant concedes, properly so, that “the Werner-Fordemwalt conversation is relatively harmless,” and focuses attention on the Weyant-Werner conversation. The single question inquiry of juror Werner by young Weyant appears innocent and uncal-culating, and Mr. Werner’s reply appears in the same spirit. Similar circumstances did not demonstrate an abuse of discretion in State v. Eaton, 504 S.W.2d 12, 21-22 (Mo.1973).

Appellant charges the court erred (IV) in permitting State’s witness Harbison to state that the victim said of the man who put him off the red bicycle and rode away, “that fellow had hurt him and left him there.”

Appellant recognizes that in Missouri certain hearsay statements are nonetheless admissible as “excited utterances.” State v. Gilreath, 267 S.W. 880 (Mo.1924). He argues, however, that the time 5:30 to 8:00 p. m., during which the sodomy was committed, makes it impossible to say how soon after the incident the victim may have spoken to Mr. Harbison, and that the statement came too late to qualify as an excited utterance.

The circumstances of Mr. Harbison’s encounter with both the defendant and his victim have been stated in detail, and they, together with those in defendant’s confession, demonstrate the shocked condition of the child and that the utterance in question followed immediately his release by defendant. Such circumstances are similar to those showing admissibility of the excited utterance of the sodomy victim in State v. Smith, 540 S.W.2d 189, 190-191 (Mo.App.1976). See also McCormick, supra, l. c. § 297, p. 709: “In rape cases, and increasingly in cases of sex offenses generally, evidence is admissible that the victim made complaint. The only time requirement is that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a much less demanding time aspect than with the typical excited utterance situation.”

Judgment affirmed.

All concur.

      . Petition for writ of certiorari was granted by the Supreme Court of the United States in Duren v. Missouri, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387, 1978.