author: DIXON, Judge.

text:
    Norman B. HUDSON, as a representative of a class consisting of the members of the Kansas City Federation of Teachers, Local 691, AFL-CIO, an Unincorporated Association, and Lawrence R. Bates, as a representative of a class consisting of the members of the Kansas City School Administrator’s Association, Plaintiffs-Appellants, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Defendants-Respondents.
    Nos. KCD 29507-511.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Thomas J. Cox, Jr., Kansas City, for plaintiff-appellant Bates.
    Doyle R. Pryor, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for plaintiff-appellant Hudson.
    William H. Sanders, D. Brook Bartlett, John K. Brungardt, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendants-respondents.
    Before SOMERVILLE, P. J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

This consolidated appeal is from class action suits brought by Norman B. Hudson, representing the Kansas City Federation of Teachers, Local 691, AFL-CIO, and Lawrence R. Bates, representing the Kansas City School Administrator’s Association, against the School District of Kansas City, Missouri. The suits attack proceedings by the School District which resulted in the furloughing of several hundred probationary teachers and reassignment of a large number of administrative employees. Filed as class actions, the suits allege violations of the Missouri “Sunshine Law” § 610.010 et seq. RSMo Supp.1975, by the School District’s Board of Directors. The petitions were in two counts. The entire thrust of the suit was for injunctive relief. Count I sought a temporary injunction and a continuing injunction against future meetings as well as an injunction against implementation of the Board action. Count II requested mandatory relief by way of undoing the actions taken and monetary relief incident to the equitable claim.

Broadly stated, the contentions of the parties raise two basic issues of interpretation of the “Sunshine Law” § 610.010 et seq. RSMo Supp.1975. The first issue relates to the interpretation of the language of § 610.025 RSMo Supp.1975, viz., “meetings relating to the hiring, firing, or promotion of personnel of a public governmental body may be a closed meeting, closed record, or closed vote.”

The second issue is the scope of injunctive relief and the propriety of the trial court’s refusal of such relief.

The parties, in the trial to the court for injunctive relief, developed the events at the challenged meetings in exhaustive detail. Summarily stated, the evidence developed the following:

The Kansas City, Missouri, School District Board of Directors, faced by a 7 million dollar budget deficit for the coming fiscal year, met in executive sessions on April 4,6, and 7, 1976. As announced by the Board president, the purpose of the closed meetings was “to consider a matter of personnel.”

At the April 4 meeting, the major activity was a slide presentation by William D. Conklin, Assistant Superintendent in charge of Business. The purpose of the presentation “was to show the Board how the administration proposed to solve a 7.3 million-dollar problem . . . ” The major proposals represented by the slides involved major program reductions, school closings, and cuts in areas such as transportation. The impact on personnel in the affected programs was shown not only by the dollars-saved figure, but by a number of employees in parentheses following each proposed program reduction. Both Mr. Conk-lin and Dr. Fields testified that, although it was announced at the first of the meeting that the discussion should be confined to personnel matters, there was some general discussion of the proposed program reductions.

The executive meeting was reconvened on April 6. At the first of the two sessions on that day, slides were shown to demonstrate the effect of eliminating the directors’ position (an administrative position established under School District policy), and to show other proposed reorganizations of the School District’s administration. Dr. Fields, acting Superintendent of Schools, had been asked to eliminate the directors’ position at the April 4 meeting; the April 6 meeting reflected his response to that direction by the Board and to the other proposed reductions made during the April 4 meeting. No Board action was taken on the proposals at either the April 4 or the first April 6 meeting.

At the second session of the April 6 meetings, a session that was to last until the early hours of April 7, the Board took several major actions on the basis of the material presented at the earlier sessions. A group of 92 resource and remedial teachers were reappointed with an addition of $30 per month to their teacher salaries; 110 other employees had salary or assignment changes made. On motion, two individual teachers had their contracts terminated or not renewed for the next year.

As reflected by the record, the two most controversial actions taken by the Board, and the actions which resulted in these lawsuits, were the decision to reemploy 465 probationary teachers who would be put on unpaid leave of absence and the decision to reemploy 19 administrative employees in positions of diminished responsibility. The effect of these actions was to completely eliminate some programs by the elimination of the personnel in those programs. .Programs involving school nurses, elementary industrial arts and physical education, elementary and secondary teachers’ aides and secondary library clerks were affected by the budget cuts involving personnel.

That these presentations were, in fact, designed to provide the School Board with information to make policy decisions concerning the allocation of funds is an inescapable conclusion. Dr. Fields, the architect of the proposed changes, testified that the proposals had the effect of eliminating programs, and further, that the involved recommendations concerning maintenance reductions, school closings, and program eliminations by elimination of personnel in those programs. Dr. Fields also testified that the Board was considering options in resolving a “seven million dollar” problem. Dr. Fields stated that the selection of those persons to be “furloughed,” as he expressed it, was to be made by the personnel department of the School District and not by the School Board. That the impelling motivation of the actions taken was a financial one and not a determination of merit, vis-a-vis the individual, is apparent from the minutes of the Board which deferred action on the elimination of the program of Home School Coordinators to see if funds were available for this program. The notices to the affected personnel likewise referred to a decline in enrollment and the financial condition of the district as the rationale for the furloughs and reassignments respectively. All of the witnesses in the ease were educators involved in the administration of the Kansas City School District or were Board members. Understandably, there was considerable sparring over semantics, but there is no real issue of credibility.

In short, as both parties concede and as the circuit court found, the actions at the meeting of the School Board “constituted the most massive reorganization of personnel in the history of the school district during the past thirty years.”

Before discussion of the issues in detail, a review of the statutory provisions and the history of the Sunshine Law is helpful. In Missouri, the guiding provision is Chapter 610, enacted in 1973. The relevant portions of that statute are as follows:

610.010. Definitions . . . (RSMo Supp.1977)

(2)“Public governmental body”, any constitutional or statutory governmental entity, including any state body, agency, board, bureau, commission, committee, department, division, or any political subdivision of the state, of any county or of any municipal government, school district or special purpose district, and any other governmental deliberative body under the direction of three or more elected or appointed members having rule-making or quasi-judicial power;
(3)“Public meeting”, any meeting, formal or informal, regular or special, or any public governmental body, at which any public business is discussed, decided or public policy formulated; .

610.025. Closed meetings authorized, when

(4)Any nonjudicial mental health proceedings and proceedings involving physical health, scholastic probation, scholastic expulsion or scholastic graduation, welfare cases, meetings relating to the hiring, firing or promotion of personnel of a public governmental body may be a closed meeting, closed record, or closed vote.

610.030. Injunctive relief authorized.

The circuit court of this state shall have the jurisdiction to issue injunctions to enforce the provisions of sections 610.010 to 610.030 and 610.100 to 610.115.

There is no dispute here that the School Board of Kansas City is a public governmental body under § 610.010(2) RSMo Supp. 1977.

The purpose of the Sunshine Law has been delineated in two Missouri cases. Cohen v. Poelker, 520 S.W.2d 50 (Mo. banc 1975) and Pulitzer Publishing Co. v. McNeal, 575 S.W.2d 802 (Mo.App.1978). Cohen v. Poelker, supra, was the first test of the statute’s constitutionality and purpose, which was explicated in the following terms:

“The several sections of Chapter 610, considered together, speak loudly and clearly for the General Assembly that its intent in enacting the Sunshine Law, so-called was that all meetings of members of public governmental bodies (except those described in § 610.025) at which the peoples’ business is considered must be open to the people and not conducted in secrecy, and also that the records of the body and the votes of its members must be open.” Cohen, supra at 52.

Pulitzer v. McNeal, supra, the most recent case on the subject, describes the tension between the general protection and specific exemption sections of the law in the language below:

“The very basic right of the public to be fully informed of government activities conflicts with the obvious necessity for restraints on this right to know in the case of litigation, meetings and records relating to personnel, mental health matters, military matters and juvenile and certain other court proceedings. The conflict here is one between the philosophy of openness in government, which for the last few years has been the subject of much discussion and legislation on both the federal and state levels, and the recognized need for confidentiality in certain special situations. The legislature recognized both the need for openness and the concomitant need for exempting certain types of information from disclosure when it passed the Sunshine Law in 1973. This conflict, coupled with the need to divine the legislative intent behind the Sunshine Law, presents a problem of some magnitude, and is further complicated by a lack of precedent in this developing field of law.” Pulitzer, supra at 805.

Turning now to the specific issues presented in this case, the first issue is the interpretation of § 610.025 RSMo Supp.1975 in particular, the language creating an exemption from the legislative mandate of open meetings. Thus, at the heart of this case is the meaning of the words, “relating to the hiring, firing, or promotion,” of personnel contained in the exemption section 610.025(4). The trial court found, and the defendant School District argues for a broad reading of this language; the plaintiffs argue for a narrow or “plain meaning” construction of the terms.

In its findings of law, the circuit court specifically found that:

“12. The word ‘hiring’ in Section 610.-025(4) is not limited to the selection of a person for employment with a governmental body in the first instance, but would include any offer of employment by a public governmental body and the acceptance thereof by the employee.
13. The word ‘firing’ in Section 610.-025(4) is not limited to permanent and involuntary termination of the employment relationship between employee and employer by the unilateral action of the employer, but would include any discharge from a position presently held even though the discharge is followed by an offer of employment for a different position.
14. The word ‘promotion’ in Section 610.025(4) is not limited to but it does include the granting of a better position with greater responsibility and/or better working conditions and/or increased remuneration.”

On the basis of these definitions, the circuit court found the actions of the Board of Directors on April 6 and 7, 1976, “related to the hiring, firing or' promotion of personnel and as such were properly the subject of the closed meeting under Section 610.025.”

As to the first part of the trial court’s conclusions of law set forth above, the definitions of the terms “hiring,” “firing,” and “promotion,” are attacked by plaintiffs as overly broad. In support of the contention, they argue that the word “hiring” relates only to the original employment and that “reemployment” or “reappointment” are not within the meaning of the term. This argument is supported with references to statutes relating to the employment and tenure of teachers. Plaintiffs say that Section 168.126 RSMo 1969, requires school board action to employ a teacher in probationary status but “reemployment” may be by “inaction” of the board. This leads plaintiffs to the conclusion that since the two definitions of teacher status receive different treatment in terms of board action, they both cannot be comprehended within the “hiring” and “firing” language of the Sunshine Law. Similar arguments are offered as to the administrative personnel. The only authority cited is Stoneman v. Tamworth School District, 114 N.H. 371, 320 A.2d 657 (1974). That case does define “hiring” in terms of initial employment in answering one of the contentions of the defendant school board. The holding of the case, however, is that language of “dismissal, promotion, or compensation” comprehended the entire employment status and that the nonrenewal of a teaching contract amounts to a “dismissal” because the New Hampshire statutes (like Missouri’s) provide for automatic renewal of employment, absent board action.

There is little authority in Missouri to aid in construing the terms in question. As noted in Pulitzer Publishing Co., a survey of other Sunshine Law statutes in other states is not helpful because the language of the various statutes varies so widely, and none closely tracks the language of the Missouri Sunshine Law.

“There is a thread of general intent running through this type of legislation, as adopted in other states, to exempt from disclosure matters relating to appointment, employment, discipline or dismissal of employees. In some states the employee being investigated is permitted to open to the public an otherwise closed meeting. Perusal of these statutes has only served to emphasize that the problem of closing personnel matters is recognized in nearly all jurisdictions which have passed open meetings legislation.” Pulitzer Publishing Co., supra at 809.

Plaintiffs cite the undoubted rule of construction, “ ‘When called upon to construe a statute, the court’s prime duty is to give effect to the legislative intent as expressed in the statute.’ ” In Re Tompkins Estate, 341 S.W.2d 866, 872 (Mo.1960). That duty, in this case, is not an easy one because the statute and legislative history are barren of any aids to construction of the terms “hiring, firing, or promotion” of personnel. An additional rubric of statutory construction applicable here is, “[t]he words used in the statute should be given their usual, plain and ordinary meaning so as to promote the object and manifest purpose of the statute.” State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899 (Mo. banc 1970); State ex rel. Zool. Park of St. Louis v. Jordan, 521 S.W.2d 369 (Mo.1975).

The purposes of the Sunshine Law have already been discussed. See Cohen v. Poelker, supra, and Pulitzer Publishing Co., supra. It is clear that the overall intent is to make meetings of public bodies which affect public matters open to the public. Defining a purpose for the exceptions to the general coverage of the statute is a more difficult task. Commentators and drafters of other states’ Open Meeting Laws have repeatedly pointed out the need for confidentiality in some areas of public work. See Comment, “Open Meeting Statutes: The Press Fights for the Right to Know,” 75 Harv.L.Rev. 1199,1208 (1961-62). Wickham, “Let the Sunshine In!” 68 N.W.L.Rev. 480, 485 (1973); Tacha, “The Kansas Open Meeting Act; Sunshine on the Sunflower State?” 25 Kans.L.Rev. 169, 194-195 (1977). Hollow and Ennis, “Tennessee Sunshine; The People’s Business Goes Public,” 42 Tenn.L.Rev. 527 (1974-75); 38 A.L.R.3d 1070 (1971).

The need for confidentiality in personnel matters is a well-recognized exception to the requirement for open meetings. Other state statutes have outlined the policy behind such an exception in statutory language. For example, note the language in the following state statutes which are representative selections of such policy statements:

84-1410. Closed session; when; purpose; reasons listed; vote to hold closed session; recorded; right to challenge; procedure.
(1) Any public body m&y hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting. Nebraska Rev.Stat. (Supp.).
61.810. Exceptions to open meetings.
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by such agency, are declared to be public meetings, open to the public at all times, except for the following:
(6) Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee’s, member’s or student’s right to a public hearing if requested, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussion of general personnel matters in secret. Kentucky Rev.Stat.Ann.Supp.1978.

Protection of an individual’s reputation and privacy seems to be the primary consideration in the personnel exceptions in the statutes of other states. The Attorney General, in Opinion No. 144, adopted that view where the exact question was posed:

“Does the general discussion of personnel as a group, rather than as an individual or specific individuals, when determining budgetary increases or decreases that affect the size of the staff of said governmental bodies, give cause for the exclusion of the public at such meetings under the language, ‘meetings relating to hiring, firing, or promotion of personnel?’ ”

The Attorney General’s opinion asserts that “meetings of . governmental bodies for the purpose of discussing budgetary matters affecting personnel as a group, rather than on an individual level, are not authorized to be closed and must, therefore, be open to the public.” Op. No. 144 supra. This opinion of^ the Attorney General of Missouri implicitly recognizes that the personnel exemption of the statute is based upon protection of the privacy of the employee.

Only one other possible legislative purpose for the enactment of the exemption statute suggests itself. The exemption of the statute may have been designed to permit free and open discussion by board members in personnel matters.

Considering these legislative purposes and the language of § 610.025 RSMo Supp.1975, the conclusion is compelled that the trial court definition of the terms of the statute was sound. The legislature could not have intended that the firing of a teacher was entitled to an exemption from the requirement of an open meeting and at the same time have required an open meeting when the teacher because of a probationary status failed to receive a renewal of contract, which amounts to a discharge. This would be so whether the legislative intent was to protect the privacy interest of the teacher or to foster free and open discussion by the Board. Whichever underlying purpose was intended, it can only be served if the entire employment relationship is within the exemption.

The second and more substantive argument advanced by plaintiffs to attack the trial court determination centers upon the following conclusions of law:

“13. Certain financial information relating to the projected financial deficit was presented to the Board at the April 4, 1976 session. Only matters relating to the hiring, firing and promotion of personnel were decided upon at the April 6 and 7 sessions. No matters of public policy were formulated at any of the sessions other than as related to hiring, firing or promotion of personnel. (Emphasis supplied).
17. The action taken at the sessions of the defendant’s Board of Directors on April 6 and 7, 1976, related to the hiring, firing or promotion of personnel and as such were properly the subject of the closed meeting under section 610.025. The presentation of certain financial information during the April 4,1976 session was in violation of the ‘Sunshine Act' but no action was taken thereon and the presentation of such information does not void the personnel actions of the Board on April 6-7, 1976 which were properly the subject of the closed meetings under the ‘Sunshine Act.’ ” (Emphasis supplied).

Plaintiffs argue that the trial court was in error in bifurcating the three-day session into two meetings. They assert it was in error in fact and in law. As will be seen, this question of the number of meetings is not critical. What is of critical importance is the trial court’s broad definition of the word “relating,” the prefatory word in the exemption of § 610.025(4) RSMo Supp.1975.

Although not directly centering upon the word, “relating,” as it appears in the statute, the quarrel of the plaintiffs with this portion of the trial court’s conclusions of law is based upon the general proposition that the decisions made at the meeting or meetings of the school board were primarily policy determinations. There can be no dispute that there were decisions of public policy and budgetary matters made as a necessary preliminary to the determination of the related personnel matters. It is clear from the issues drawn in this case that the words “relating to hiring, firing or promotion” of personnel could be construed either in the very broad sense, which the school district advocates, or in the narrower sense' which the plaintiffs advocate. The parties concede, and it is almost common knowledge, that a very high percentage of the entire budget of a school district is personnel expense. It follows, therefore, that almost any policy decision in a school district which involves a reduction or increase in the expenditures of the district will result in personnel reductions or increases. This is particularly true in the circumstances like those presented by the facts of this case, where the reduction of the budget is so large in comparison to the total budget that it could not be accomplished without some reduction in personnel. Thus, the discussions of the board with respect to the necessary reductions to be made in the budget and the changes in program were “related” to the hiring, firing, and promotion of personnel in the broad sense of that term. But, as the plaintiffs forcefully argue, the adoption of such a broad notion of “relationship” between the subject matter of a meeting and personnel would, in effect, subvert the entire purpose of the statute and permit almost any discussion of school board policy on the grounds that it related to matters of personnel. This raises again the “conflict” referred to in Pulitzer, supra, between the broad purpose of the Sunshine Law and the exemption.

To resolve this dispute with respect to the meaning of the term “relating” to personnel matters, and in accordance with the previously noted and well-established principles of statutory construction, the purpose or purposes of the statute are to be utilized in determining the meaning of. the term. In this context, the rules of construction require that the major and underlying purpose of requiring open meetings be reconciled, if possible, with the legislative purpose of the personnel exemption of Section 610.025.

So considered, the trial court’s broad interpretation of “related” seems in error, for the effect of that meaning attributed to the connection between specific personnel questions and underlying program or policy changes would seriously interfere with the overall legislative intent to require open meetings.

In the context of the factual situation in this case, there was certainly no reason apparent from the testimony, nor any advanced by the parties in argument, why the school board could not have discussed the issues of reduction and elimination of programs and reorganization of administrative staff in an open meeting, without reference to any matter which would have required the protection of the exemption concerning personnel matters.

The difficulty in the case, recognized by the trial court and still apparent on this appeal, is the characterization of the actions taken by the Board. In actual fact, when the decisions were made as to the furloughing of the probationary teachers and the demotion of the administrative personnel, there was little, if any, focus on individuals. The acting superintendent testified that the lists of teachers to be furloughed were prepared by the staff. Considerations in the preparation of the lists were the area of certification and the length of service. There was no selective determination by the Board as to which of the probationary teachers were to be furloughed. Several hundred other probationary teachers were retained by board inaction. As to the demotion of the 19 administrative employees, the acting superintendent testified that his direction from the Board was to eliminate the position of Director. So far as can be ascertained from this record, the 19 individuals reassigned as a consequence of the elimination of the position of Directors were all of the persons in that category. There was no selection of any kind on the basis of individual capability. The Board argues that there were options open to the Board to make different decisions with respect to the manner of making the program reductions, and the presence of these options made it necessary to have a closed meeting for the purpose of permitting free and open discussion of the options. Nothing that has been said impinges on that right. Once the policy decision has been made in a public meeting to eliminate a program or positions, the Board can then meet and decide the specific personnel questions arising by reason of the budgetary or policy questions which have been properly determined in public view. All of the various options with respect to the specific individuals to be affected can then be discussed in a closed meeting. The Board’s argument that the meetings needed to be closed to permit the discussion of the methods of termination and the individuals to be terminated does not support the closing of the meetings for the determination of the broad policy issues which necessarily preceded the discussion of the personnel problems. It is also argued that the meetings should be secret in order to avoid “stirring up” the teachers. That argument has validity when applied to the 465 teachers who were, in fact, furloughed. The argument’s validity is lessened when it is recognized that the Board could and should have decided the policy questions in relation to programs in a public meeting. As Dr. Fields noted in his testimony, you cannot eliminate people without affecting programs, but it is also true that you can eliminate programs without determining which of several hundred people will be released. Nor is the Board’s reliance on the formal agenda and the specific resolutions adopted persuasive. As the Board argues, the agenda and resolutions all refer to various personnel actions, but it is demonstrable on this record that the persons affected were only the persons in the programs eliminated, and the designation of the actions taken as personnel actions was but a facade to conceal the real and necessary determination to eliminate programs.

It must be concluded that the actions taken at all three sessions were not solely with respect to individual personnel problems, but were policy decisions with respect to programs and administration which should have been decided in an open meeting. Such a holding makes unnecessary any determination as to whether there were one or two meetings. A public meeting, within the meaning of the statute, is any meeting at which “public business is discussed, decided or public policy formulated.” Thus, content and not formal agendas or self-serving characterizations of the business conducted or discussed must control. It should be too clear for comment that the inclusion in a “meeting” of some single “personnel action” cannot insulate the balance of the meeting from the requirement of public disclosure. This is particularly true when it is recognized that the statutory definition of a “public meeting” contained in § 610.010 RSMo 1975 is based on the substance of what occurs and not on the formal designation as a meeting. This definition would permit a portion of a “meeting” devoted to matters within the exempt category to be closed.

However, the effect of holding that the trial court was in error in categorizing the April 6th and 7th meeting as one relating to personnel actions does pose the difficult issue of the propriety of the trial court judgment denying relief.

The parties have briefed and argued the issue on the assumption that two questions exist in this case which must be decided. These questions as posed by the parties are, first, is the remedy by injunction, specifically stated in the statute to be the relief afforded for a violation of the Sunshine Law, the exclusive remedy? Second, if the injunction is not the exclusive relief to be afforded, should the court declare actions taken in violation of the Sunshine Law void or voidable? Missouri has not decided the issue of whether the injunctive relief afforded in specific terms by the statute is exclusive. Nor has the issue of voidness or voidability of such actions been decided. Two cases have been found in which the issue of voidness or voidability has been mentioned; but in each of them, the court determined the issue need not be reached or decided. In State ex rel. Philipp Transit v. Public Service Commission, 552 S.W.2d 696 (Mo. banc 1977), the case turned on a holding that notational voting by the Commission was not authorized, and the court declined to consider the voidness issue. In State ex rel. Churchill Truck Lines v. Public Service Commission, 555 S.W.2d 328 (Mo.App.1977), the court turned aside the voidness issue upon the procedural ground that the issue had not been raised in the motion for rehearing before the Commission and, not being jurisdictional or plain error, did not require resolution.

Because of this paucity of authority in Missouri, the parties have extensively briefed and argued cases from foreign jurisdictions involving the question of voidness or voidability as a remedy and have likewise briefed and argued extensively the question of the exclusiveness of a statutory remedy. That briefing is of little benefit in the determination to be made in this case considering, as this court must, the procedural posture in which the question is presented. As is frequently the case, the issue has been presented by the briefs in much too abstract a fashion, both parties apparently desiring some determination of the principle' without devoting much attention to the procedural posture of the case and the necessity for a judicial determination of the issue presented.

There can be no question that the plaintiffs’ pleading in both cases and in both counts requests injunctive relief. Count I of both petitions, in addition to the temporary injunction, no longer an issue in this case, requested a continuing injunction against future meetings in violation of the Sunshine Law. Count II in both petitions re-pleads the allegations of Count I and requests affirmative relief in terms of a mandatory injunction directing the school district to undo the actions taken at the disputed meetings and thereby to return the plaintiff teachers to their positions as probationary teachers, and the directors to their positions as they existed prior to the meetings. The monetary relief requested is only incidental to that prayer for mandatory injunction in both petitions.

The real issue to be met and decided, in the context of these pleadings and the trial court judgment, is the nature and extent of injunctive relief available under the Sunshine Law and whether the trial court properly or improperly decided the question of the denial of injunctive relief. That injunc-tive relief by way of mandatory injunction might have the effect of voiding the actions taken by the school board cannot be denied, but that is always true when a mandatory injunction is issued requiring the undoing of a completed act.

Before undertaking a determination of the soundness of the trial court’s denial of relief in this case, certain basic principles should be noted.

When the Legislature enacts a statute referring to terms which have had other judicial or legislative meaning attached to them, the Legislature is presumed to have acted with knowledge of that judicial or legislative action. McKenzie v. Missouri Stables, 225 Mo.App. 64, 34 S.W.2d 136 (1931); Plater v. W. C. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658 (1929); State ex rel. Danforth v. Milan C-11 School District, 446 S.W.2d 768 (Mo.1969). Thus, when the Legislature adopted § 610.030 RSMo Supp.1975 and provided that the circuit courts should have jurisdiction to issue injunctions to enforce the provisions of Chapter 610 RSMo Supp.1975, it must be conceded that they did so with full knowledge of the provisions of Chapter 526 RSMo 1969 and the extensive judicial interpretation affecting injunctive relief.

In the determination of the judicial soundness of the trial court’s refusal of injunctive relief, the principles of Missouri law defining and limiting the use of injunc-tive relief must be considered.

As a general proposition, injunctive relief is discretionary and does not issue as a matter of right. “ ‘[I]ts granting rests in the sound discretion of the court, to be exercised in accordance with well settled equitable principles and in the light of all the facts and circumstances in the case.’ ” State ex rel. Ellis v. Creech, 259 S.W.2d 372 (Mo. banc 1953) at 374. See also State ex rel. Danforth v. W. E. Const. Co., 552 S.W.2d 72 (Mo.App.1977).

Certain other principles have been enunciated with respect to various types of injunctive relief. When the in-junctive relief is sought to restrain future threatened action, the threatened action must be based upon a real apprehension that the acts for which the injunction are sought are not only threatened but will in all probability be committed. Unless it can be shown that reasonable grounds exist for apprehending that absent the injunction the actions will be done, the injunction will be denied. Eckhardt v. Bock, 159 S.W.2d 395 (Mo.App.1942); St. Louis 221 Club v. Melbourne Hotel Corp., 227 S.W.2d 764 (Mo.App.1950). It is also a principle of the equity jurisprudence surrounding the use of injunctive relief that the court will not issue an injunction when the order of the court to be embodied in an injunction is impossible of performance. Hribernik v. Reorganized School District R-3, 276 S.W.2d 596 (Mo.App.1955).

Relief by way of mandatory injunction is given with more caution than other types of injunctive relief. The Missouri cases follow the general rule found in 42 Am.Jur.2d § 20.

“In this connection, it must be borne in mind that a mandatory injunction directing the undoing-of that which has been done may not be granted on doubtful proof; the mandatory injunction is a harsh remedy, to be granted only when the right thereto is clearly established, the burden of proof being upon the complainant.” Minton v. Steakley, 466 S.W.2d 441, 443 (Mo.App.1971); Cook v. Rupp, 565 S.W.2d 833, 837 (Mo.App.1978).

In cases where there is a substantial public interest involved, as in the instant case, there are other considerations that the trial court takes into account in exercising its discretionary powers. These considerations are set out in Higday v. Nickolaus, 469 S.W. 859 (Mo.App.1971), a case involving a contest between private landowners and the City of Columbia over the rights to percolating water. Higday cites and summarizes a line of Missouri cases involving injunctive relief and various public interests.

Higday cites Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597, 601 (Mo.1912) for the proposition that:

“ ‘The writ of injunction is an extraordinary remedy. It does not issue as a matter of course, but somewhat at the discretion of the chancellor. It is his duty to consider its effect upon all parties in interest, and to issue it only in case it is necessary to protect a substantial right, and even then not against great public interest.’ Higday, supra at 871.

See also Johnson v. Independent School Dist. No. 1, 239 Mo.App. 749, 199 S.W.2d 421, 424 (1947); 43 C.J.S. Injunctions § 37.

In the Smith ease, the court balanced the competing interests of . a landowner and a city in a case involving water pollution — the city was held to have the paramount interest, and the injunction was denied. In the Johnson case, a septic tank owned by the school district which overflowed onto plaintiff’s land, was held to be a sufficient public health interest to deny the injunction, even though the plaintiff had no adequate remedy at law.

Higday, supra, continues the summary of cases involving the weighing of public and private interests by citing Rubinstein v. City of Salem, 210 S.W.2d 382, 386 (Mo.App.1948), and Barber v. School District No. 51, Clay County, 335 S.W.2d 527, 530 (Mo.App.1960). In Rubinstein, the court balanced the rights of an individual businessman who constructed a sidewalk in good faith, relying on the oral approval of the City Council, and the rights of the City Council to require written building permits. In upholding the business’ permanent injunction, the court made the necessary weighing of inconvenience and need.

The Barber school district case is factually similar to the Johnson case cited earlier, and holds that the school district’s need for the' septic tank was greater than the damage done to the individual plaintiff’s land. The rule announced in Barber, supra at 530, and repeated in Higday, supra at 871, drawn from 43 C.J.S. Injunctions § 37, p. 849, is as follows:

“[W]hen the issuance of an injunction will cause serious public inconvenience or loss, without a correspondingly great advantage to plaintiff, no injunction will be granted, . . ."

See also 42 Am.Jur.2d § 56, pp. 798-800.

In the extreme case, where the balance is definitely weighted toward the public interest, the grant of injunctive relief may even be “unconscionable.” Higday, supra at 871, and Horine v. People’s Sewer Co., 200 Mo.App. 233, 204 S.W. 735, 736 (1918).

The first issue is the denial of relief under Count I of the petition. As has been previously noted, the only remaining claim for relief at trial was the request for a continuing injunction. At the time of trial, a request for an injunction against the implementation of the actions adopted at the disputed meetings was a pleaded issue, but the issue concerning that relief is now moot since all of the actions have been fully implemented by the School District and were so implemented at the time of the circuit court hearing. Hribernik, supra at 597-98.

On the issue of a continuing injunction to restrain future violations of the Sunshine Law, there was no proof of any sort in the hearing before the trial court that the school board contemplated, planned, or even threatened to conduct any future meetings in a manner violative of the Sunshine Law. In fact, it is apparent from the record that the school district was attempting to comply with what its understanding was of the restrictions of Chapter 610 and, in the absence of authoritative judicial interpretation of the provisions of the statute, they failed to properly observe its mandate. In this respect, the instant case is very much like St. Louis 221 Club, supra, in which there was a dispute between the parties with respect to the meaning of the lease contract, and the court held that a continuing injunction was not necessary since there was no reason to believe that once the contract issue had been settled, the defendants would not comply with its terms. Here, too, there is no evidence and certainly no implication that the school board will not conduct future meetings in accordance with the statute as here construed.

The second count of both petitions seeks mandatory relief. Plaintiffs requested the trial court to command the school district to take such action as would be necessary to return the situation to its status quo prior to the contested meetings. In determining the rightness of the trial court’s denial of that particular form of relief, this court will weigh, as the trial court properly could have, the nature of the right sought to be enforced and the public interest that would be affected by the issuance of an injunction to protect that right.

In this connection, it is well to advert to the plaintiffs’ interest and claim of right. These were class actions brought by a class of teachers and a class of administrators adversely affected by the actions of the board. There is no claim on the part of either set of plaintiffs that they were representing any portion the public as members of their class. Nor did the evidence produced in support of the composition and validity of representation of the class indicate any claim on the part of these plaintiffs that they sought to protect the patrons of the Kansas City School District or their children from violations of the Sunshine Law. In fact, the named plaintiff Bates lives in Johnson County, Kansas, and named plaintiff Hudson lives in Platte County.

Unnecessary for decision in this case but implicit in the circumstances is the question of whether or not these plaintiffs could even assert rights under Chapter 610. That issue with respect to the granting of injunc-tive relief was discussed in Eyerman v. Mercantile Trust Company, N.A., 524 S.W.2d 210 (Mo.App.1975), where the court quoted from a federal case, Coalition for the Environment v. Volpe, 504 F.2d 156 (8th Cir. 1974). That case applied a dual test to determine first, if the challenged action would cause the plaintiffs injury in fact, and second, if the injury was within the “zone of interests” created by statutes which plaintiffs contend are being violated. The Eyerman court noted that the rule suggested a need for a causal relationship between the action challenged and the injury complained of. It may well be that there is no causal relation in this case between the violation of the Sunshine Law and the plaintiffs’ injury, the loss of their positions and their demotions. Those acts are not caused by the violation of the Sunshine Law; they are caused by the actions of the board. Those actions were completely lawful in terms of the statutes governing the dismissal of probationary teachers and demotion of administrative personnel. Although it is not necessary to determine or decide the “standing” question, it is apparent that the plaintiffs do not seek to enforce a clearly established and substantial right.

On the other hand, the granting of a mandatory injunction in this case would clearly be against great public interest. The actions of the school board taken in these contested meetings constituted a massive reorganization of the programs and personnel of a large metropolitan school district. As far as can be ascertained, they have been completely and totally implemented. To require their undoing by means of a mandatory injunction would create administrative and fiscal chaos within the school district. Compared to the public interest noted in Higday, supra, and Smith, and Johnson, supra, the public interest here which would be adversely affected by the issuance of mandatory injunctive relief is clearly much greater.

If error be found in the review of a court-tried case under Rule 73.01, the obligation of this court is to further determine if the error substantially affects the rights of the parties. Fowler v. S-H-S Motor Sales Corp., 560 S.W.2d 350 (Mo.App.1977). The trial court was in error in its conclusions of law concerning the application of Chapter 610 RSMo Supp.1975 to the disputed meetings, but the trial court’s denial of the injunctive relief sought was, in the circumstances, a proper judgment so that no error affecting the rights of the plaintiffs has occurred. Judgment of the circuit court is affirmed.

All concur.

      . Chapter 610 was originally RSMo 1975. Some amendment, not here relevant, is contained in RSMo 1977.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    N. W. ELECTRIC POWER COOPERATIVE, INC., a corporation, Appellant, v. Donald J. BUCKSTEAD and Marjorie M. Buckstead et al., Respondents.
    No. 29604.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Phil Hauck, Jack Peace, Stockard, Ander-eck, Hauck, Sharp & Evans, Trenton, for appellant.
    Stephen W. Angle, Warrensburg, for respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and ROBERT R. WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Proceeding in condemnation to acquire right of way for electric transmission line. Commissioners awarded landowners Donald J. Buckstead and Marjorie M. Buckstead $3,530 for 100' wide perpetual easement across 80-acre tract of their farm land in Johnson County. On trial of landowners’ exceptions, jury awarded them $8,000.00. Condemnor appeals.

In this court the issues involve the consequences of respondents’ failure to make timely answers to interrogatories, and their failure to disclose, in response to interrogatories, the names of witnesses called by them to testify to respondents’ damages, the qualification of one of respondents’ value witnesses and the propriety of the trial court’s exclusion of evidence of the price respondents paid for their property.

N. W. Electric Power Cooperative, Inc. filed .an action to condemn a perpetual easement to erect and maintain an electric transmission line on a 100' wide strip across the north 40 acres of the Bucksteads’ 80-acre farm. Two pole structures were to be constructed on the land. The length of the easement on the Buckstead property was 1,188 feet. The total area involved was 2.73 acres.

Mr. Buckstead testified that the 80-acre farm had a before taking value of $1,000 per acre and $600 or $700 per acre after taking value. Mrs. Buckstead testified to $1,000 before taking and $750 after. Respondents’ witness Shafer testified to before and after values of $850 per acre and $750 per acre. Witness Ogden’s figures were total value of $76,000 before and $62,-000 after. Appellant’s witness testified to a value of $850 per acre before, and $828.75 per acre after, the taking.

The respondents’ exceptions to the commissioners’ award were filed October 29, 1976. On February 22, 1977, appellant filed interrogatories to be answered by respondents. On March 15,1977, appellant moved to compel answers to its interrogatories. The motion was taken up on March 28, 1977. The transcript shows the following Docket Entry on that date: “Defendants Buckstead to file answers to Plaintiffs interrogatories within 10 days.” No further order appears. The answers were filed April 11, 1977, 14 days later.

The case came to trial on April 13, 1977. Appellant moved to strike the respondents’ pleading or alternatively to dismiss for respondents’ failure to answer interrogatories within the 10-day period allowed by the court on March 28. The appellant’s motion was overruled.

In this court, appellant contends that the trial court’s ruling was erroneous because Rule 61.01(b)(2) mandatorily requires the striking of the pleading or dismissal of the cause of action of a party who fails to answer interrogatories within the additional time to do so granted by the court.

Rule 61.01(b) provides:

“(b) Failure to Answer Interrogatories. If a party fails to answer interrogatories or file objections thereto within the time provided by law, or if objections are filed thereto which are thereafter overruled and the interrogatories are not timely answered, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:
“(1) An order striking pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or render a judgment by default against the disobedient party.
“(2) Upon the showing of reasonable excuse, the court may grant the party failing to answer the interrogatories additional time to file answers but such order shall provide that if the party fails to answer the interrogatories within the additional time allowed, the pleadings of such party shall be stricken or the action be dismissed or that a default judgment shall be rendered against the disobedient party.”

Appellant contends that the word “shall” used in subparagraph (2) means that the sanctions thereby authorized are mandatory and that the trial court ignored this mandatory language. Appellant, however, overlooks the requirement of the rule that the order extending the time for answer shall advise the delinquent party that his failure to answer within the time granted will result in his pleadings being stricken or default judgment against him. There is no showing that this requirement of the rule was complied with in this case. In view of the drastic nature of the sanctions involved, strict compliance with the rule should be observed. Absent such compliance, this court will not hold the trial court’s refusal to strike respondents’ exceptions or to dismiss was error.

Appellant’s interrogatories asked whether or not the respondents’ property had been appraised by them or on their behalf. The response was affirmative.

Interrogatory 12 asked:

“If so, for each appraisal, state:
* * * * * *
“b. The name, address and occupation of each appraiser.”

The response was:

“(b) Donald J. Buckstead and Marjorie Buckstead.”

Interrogatory 15 asked:

“State the names and addresses of all persons whom you propose to give testimony of the value of your lands and/or improvements, both before and after the appropriation mentioned in Interrogatory No. 1.”

The response was:

“Ourselves and such other witnesses as may be available at the time of trial, but no other persons have been committed for appraisal at this time.”

At a conference just prior to the trial, respondents’ counsel stated that the witnesses would be Mr. and Mrs. Buckstead, Gordon Shafer, a real estate man, and Tom Ogden, a real estate broker. Appellant’s counsel objected to the use of the last two because they had not been named in the answers to interrogatories. The objection was overruled.

When Shafer was called as a witness, the objection was renewed. Counsel for respondents stated that the answers to interrogatories were true when made and that Shafer and Ogden had been “employed” only on the preceding day. The appellant’s objection was overruled.

Appellant here contends that the trial court abused its discretion in overruling its objection to the calling of Shafer and Ogden and contends that it was prejudiced by the ruling because it was unaware of the witnesses until the day of the trial.

Appellant’s contention necessarily recognizes the discretion accorded the trial court in the situation here presented. Missouri State Park Board v. McDaniel, 473 S.W.2d 774 (Mo.App.1971), cited and relied upon by appellant, discusses at length the discretionary nature of a trial court’s application or refusal of sanctions for failure to reveal, in response to interrogatories, the names of witnesses. In McDaniel, the trial court was held not to have abused its discretion in refusing to permit testimony by expert value witnesses for the condemnor who had not been named in answers to interrogatories, although they had appraised the property seven or eight months before the trial.

In this case, the respondents explained their failure to notify appellant earlier of the witnesses — they had been “employed” the day before the trial. Appellant does not question the truth of that explanation which the trial court found acceptable.

In its objections in the trial court, appellant stated no claim of prejudice. In this court, appellant complains that, had the witnesses been known earlier, there would have been an opportunity to depose them, placing appellant in a better position to cross-examine and possibly discredit them at the trial. It is also suggested that appellant might have called more expert witnesses had it known that respondents would call two experts.

These were considerations which might well have influenced the trial court in its exercise of discretion had they been called to his attention. Inasmuch as they were not, they can hardly be the basis for concluding that the court’s ruling was an abuse of discretion.

Appellant argues that, since the action of the trial court in the “so similar” McDaniel case (supra) in refusing to permit the witnesses there to testify was not an abuse of discretion, the contrary ruling of the trial court in this case must have been an abuse of discretion. This argument ignores the nature of judicial discretion. In any event, the fact that in McDaniel the witnesses had appraised the property six or seven months before the trial whereas here they did so the preceding day distinguishes the two cases.

No abuse of discretion has been shown in this case. This assignment is without merit.

Mr. Shafer testified to his appraisal of the property and his before and after value of it. In his direct examination he testified that he had been a farmer, residing in Johnson County for 58 years, and that he had been a real estate broker for the past three years. He had been familiar with the Buckstead property from driving past it for several years. He testified that before the taking of the easement the farm had a value of $850 per acre and afterwards $750 per acre.

On cross-examination, Shafer acknowledged that he had not read the condemnation petition and had not looked at the engineering maps. Counsel for appellant moved to strike his testimony on the grounds that the witness was not “knowledgeable, did not know the elements and could not have taken them into account since he did not know the elements of damages which he then relied upon.” The motion was overruled. In subsequent cross-examination, Shafer acknowledged that he did not know the standard clearance under the lines, did not, at the time of his appraisal, know the acreage being taken, did not step off the property, nor did he walk the line.

In this court, based upon the foregoing, appellant contends that Shafer should not have been permitted to testify because he was unfamiliar with the rights being acquired by the condemnor and therefore could not have been familiar with the damages incident to the taking.

The witness did state that his testimony was based upon the taking of a 100-foot easement over a 1190-foot strip of land. When asked the rights of the property owner in the easement, he said:

“I understand he can continue to farm it as long as his farming operation doesn’t interfere with whatever the line may want because as I understand it, they have an easement against that 100 foot strip of land that goes down through there which gives them control of it whenever they need control.”

He said that the condemnor would have construction rights, along with the right to patrol the easement and to go in and make repairs. He stated on cross-examination that he understood that, in the future, the condemnor would take care of any damage caused by its entries on the land.

“One need not be an ‘expert,’ in the sense that word is ordinarily used, to testify as to the value of land. If the witness knows or has inspected the property, and if he has such information, knowledge, and skill which enable him to form an intelligent judgment, and if this knowledge and information is superior to that possessed by the ordinary person who composes the jury, then he should be permitted to testify. Beyond that any deficiency he may have goes to the weight of his testimony, not to the qualification.” State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20, 24[3-5] (Mo.App.1964).

In this case, Shafer’s qualifications included experience in both farming and the real estate business. His responses to questions demonstrated a familiarity with the rights of a condemnor of an easement for an electric transmission line. No issue was taken with the replies which he gave in that regard. He was familiar with the property.

This court cannot conclude that the witness was so lacking in knowledge that his testimony was baseless. Again, the area involves an exercise of discretion by the trial court. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., supra. No abuse of discretion here appears.

Appellant’s final point of error is based upon the trial court’s sustaining respondents’ objection to the question of Mr. Buckstead at the trial regarding the price he paid for the land when he bought it in 1959. An objection by respondents’ counsel on grounds of materiality was sustained. (Answers to interrogatories show that Buckstead paid $70 per acre for the land.)

Appellant points to the general rule that the purchase price of land is some evidence of value at the time of appropriation and is therefore admissible in evidence in condemnation proceedings unless “conditions or values have changed so significantly that it can no longer be said that the purchase price is ‘some evidence’ of the worth of the land on the latter date.” State ex rel. State Highway Commission v. Henderson, 381 S.W.2d 10, 12[3] (Mo.App.1964). See also Kirst v. Clarkson Construction Company, 395 S.W.2d 487, 496-497[13] (Mo.App.1965). Appellant contends that, if the landowner wants to exclude evidence of the price he paid for the land, he must show the court that there have been significant changes which made the purchase price irrelevant and nonprobative.

In Clarkson, the court noted that it had “ * * * found no Missouri case in which the judgment has been set aside on account of either reception or rejection of evidence as to purchase price * * 395 S.W.2d at 498[17, 18]. Appellant has cited no later case in which such result occurred. If the court’s rejection in 1933 of evidence of purchase price paid in 1928 was explicable on the grounds that the court “well knew” that in that interval, “ * * * property had greatly depreciated in value generally” (State ex rel. Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, 270[15, 16] (1934)), certainly the well-known appreciation in the selling price of Missouri farm land during the 18 years that Buckstead owned this property would justify the trial court’s exercise of discretion (Kirst v. Clarkson Construction Company, supra, ibid.) in favor of exclusion of the evidence in this case.

Judgment affirmed.

All concur.


text:
    Benjamin CHRIST, Appellant, v. Ruth E. TICE, Respondent.
    No. 29605.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Robert T. Steinkamp, Robert R. Bartu-nek, Kansas City, for appellant.
    Lloyd S. Heilman, Sandler, Balkin, Hellman & Weinstein, Professional Corp., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment on verdict for defendant in action on promissory note.

Benjamin Christ, appellant, owned 250 shares of common stock of American Hot Rod Association, Incorporated, a Missouri corporation. James E. Tice and respondent Ruth E. Tice, his wife, owned the other 250 shares of the corporation. In November, 1969, the Tices offered to buy Christ’s stock. An agreement was reached for a purchase price of $250,000.00. On November 26, 1969, the parties met at an attorney’s office. The Tices executed a promissory note to Christ for $250,000, payable in 10 annual installments of $25,000 commencing January 1, 1970, and on the first day of each calendar year thereafter until January 1, 1980 (sic). The note called for interest at 8% per year and for reasonable attorney’s fees of not less than 10% if resort to judicial proceedings was required to collect the note.

The $25,000 payments due January 1, 1970 through January 1, 1973 were made. $6,500 was paid on the January 1, 1974 payment. No further payments were made on the note. At some point, James E. Tice became bankrupt.

Christ filed suit on the note against Ms. Tice. At the time of trial, April 4, 1977, he testified that principal and interest were then due in the amount of $275,793.40.

Ms. Tice admitted execution of the note and did not question the amount claimed by appellant. Her defense was based on an oral agreement by Christ at the time of the sale of the stock that he would keep the four or five drag race tracks operated by him in the AHRA. The sources of income for the AHRA were fees for the “sanctioning” of events held at drag race tracks and commissions on insurance provided such operations. According to Ms. Tice, at the time that the sale was completed, her husband asked Christ to stay, “that we would need his racetracks.” According to Ms. Tice, Christ said “ * * * he understood we needed him and his tracks, and that he would stay with us, he wouldn’t leave us.”

Shortly after the sale, Christ formed his own sanctioning body and removed his tracks from AHRA sanction and participation.

The respondent’s defense was submitted by the following instruction:

“Your verdict must be for [Respondent] on [Appellant’s] claim on the note if you believe:
“First, [Appellant] agreed to continue to sanction race tracks under his control with American Hot Rod Association, Incorporated as a material part of the consideration to be received by [Respondent], and
“Second, [Respondent] relied upon [Appellant’s] agreement when she signed the promissory note of November 26, 1969, and
“Third, [Appellant] did not continue to sanction race tracks under his control with American Hot Rod Association, Incorporated.”

The jury returned a verdict for defendant on plaintiff’s claim.

In this court, the primary contention of appellant is that the judgment of the trial court should be reversed and judgment entered in his favor for the amount sued for because his claim is based upon a written instrument, execution of which was admitted by respondent, and there is a “complete absence of probative facts” to support any defense by respondent to the claim.

This appeal presents problems because of the appellant’s approach to the issues attempted to be presented. According to the brief, appellant is asking this court to reverse the judgment below and enter damages for him under Rule 84.14. Rule 84.14 does authorize an appellate court to “ * * * give such judgment as the court ought to give.” However, this rule is merely a summary of the alternatives available to the appellate court upon completion of its review of a case under applicable rules and does not provide a separate manner of review.

Review is still of claimed errors on the part of the trial court which, with some exceptions, (Rule 78.07) requires that the matters reviewed have been presented to the trial court. Rule 84.13(a). Rule 84.-04(d) requires the appellant’s points relied upon in his brief to state briefly and concisely the “rulings of the court * * * sought to be reviewed * * *.” As respondent’s motion to dismiss the appeal for failure of appellant’s brief to comply with Rule 84.04 points out, appellant’s brief, at least in its first eight points, specifies no ruling on the part of the trial court which appellant claims to have been erroneous. The points merely recite: “The judgment of the trial court should be reversed and judgment should be entered in appellant’s favor * * * because,” etc. Inasmuch as two points in appellant’s brief do allege wherein and why the trial court erred, the respondent’s motion to dismiss the appeal is overruled.

The substance of the first seven points of the appellant’s brief is that he was entitled to a directed verdict in his favor in the trial court because the evidence relied upon by respondent was not sufficient as a matter of law to establish a defense to appellant’s claim based upon a written instrument, which respondent admittedly executed and admitted the amount claimed due.

Such a claim could have been presented to the trial court by way of a motion for directed verdict. Rule 72.01(a). However, the transcript here shows only that at the close of the defendant’s evidence, plaintiff moved for a directed verdict on the defendant’s counterclaims. (Defendant dismissed one count of her counterclaim before the case was submitted to the jury. The jury found against her on the other count and no appeal was taken from that judgment.) The transcript shows the following entry at the conclusion of plaintiff’s rebuttal testimony: “Plaintiff entered an oral motion for a directed verdict on plaintiff’s claim for damages, and said motion is, by the court, overruled.” The content of the motion nowhere appears.

Following the return of the verdict plaintiff filed a motion for judgment in accordance with its motion for a directed verdict, or alternatively, for a new trial. The motion asked the verdict to be set aside “since the verdict is clearly against the weight of the evidence, and against the law under that evidence * * *The motion prayed for judgment for plaintiff “in accordance with his motion for a directed verdict.”

However, absent a motion for directed verdict which complies with the requirement of Rule 72.01(a) (“A motion for a directed verdict shall state the specific grounds therefor.”), the postverdict motion for judgment n. o. v. is without basis and preserves nothing for appellate review. Milner v. Texas Discount Gas Co., 559 S.W.2d 547, 550[1, 2] (Mo.App.1977).

Therefore, it must be concluded that appellant’s Points I through VII are not properly before this court because the matters therein argued were not properly presented to the trial court. Point VIII requests a new trial on essentially the same basis. However, the motion for new trial in this respect alleged only that the verdict and judgment “ * * * are against the weight of the evidence and against the law under that evidence * * *.” Such an assignment of error preserves nothing for appellate review. Treon v. City of Hamilton, 363 S.W.2d 704, 708[6] (Mo.1963).

Turning to the alleged trial errors assigned in appellant’s brief, he first challenges respondent’s instruction, above quoted, on the grounds that it “ * * * had no legal basis in substantive law, and was not based on the Missouri Approved Instructions even though an appropriate MAI Instruction was available.” In his motion for new trial, the complaint voiced against the instruction was that it “improperly instructed the jury to find for defendant under circumstances which do not support such a finding * * *."

The assignment of error based upon MAI was obviously not included in appellant’s motion for new trial. In any event, the claim of error in that regard is without merit, being based as it is on the premise that respondent was obliged to submit her instruction in the form of MAI No. 33.13 for a converse instruction. The instruction offered by respondent was for an affirmative defense and could not have been presented as a converse of plaintiff’s verdict-directing instruction.

The instruction submitted the respondent’s pleaded defense of failure of consideration. That is a defense recognized in law. Restatement of Contracts, § 274, pp. 399-402 (1932). The appellant questions whether or not the breach here claimed by respondent was of “a vital provision going to the very substance or root of the contract * * * ” (McCullough v. Newton, 348 S.W.2d 138, 142[4-6] (Mo.1961)). However, the instruction did submit that appellant’s alleged agreement was a “material part of the consideration to be received” so that it will not be held inadequate as a matter of law in that regard. Inasmuch as the attack is upon the instruction as a matter of law, the attempt to demonstrate that the evidence did not support the submission is beyond the scope of the point stated and will not be considered.

In this connection, it should be noted that at no time in the trial court, insofar as appears from the transcript, did the appellant raise the question of the effect of the parol evidence rule upon the defense there offered. Appellant’s original brief in this court contained no reference to that question. His reply brief does attempt to raise the question, relying upon the rule stated in Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820[6, 7] (1950), to the effect that the parol evidence rule is a rule of substantive law which requires that where the rule is applicable, evidence which violates the rule be ignored even though it was received without objection. However, although the rule is substantive, reliance upon the rule must be made known at some proper stage by the party relying upon it. The rule is well established that a complaint first advanced in a reply brief is not properly presented and will not be considered. Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348, 354[9] (Mo.1964).

Appellant assigns as error the trial court’s overruling his objections to questions asked appellant on cross-examination and respondent on direct examination concerning the consideration which he paid for his shares of stock in AHRA when that corporation was formed.

On the cross-examination of appellant, he was asked what he paid the corporation for his shares. There was no objection to the question and appellant replied that he and the Tices paid an equal amount but he had forgotten what he paid. A following question concerning a $10,000 loan by appellant to the corporation was the subject of an objection on the grounds of relevancy. The objection was overruled and appellant testified that he loaned Tice personally $10,000 in 1967 and that the amount was repaid. Appellant does not show how any of these matters were prejudicial, even if they were irrelevant.

In the examination of Ms. Tice, she was asked what “comments” appellant made at the time of incorporation of AHRA as to his function with the corporation. Again an objection on the ground of relevancy was overruled. After several intervening questions and answers, Ms. Tice was asked: “Did Mr. Christ have any investment for his fifty percent of American Hot Rod Association?” There was no objection and she replied negatively.

Appellant argues that the evidence pertaining to what he paid for his stock was prejudicial because “[t]he testimony could only have been intended to convince the jury that Appellant had a history of not satisfying his obligations to Respondent, * * *However, there was no objection to the question directly asked either appellant or respondent about what appellant paid for his stock so error on the basis of admission of evidence in that regard cannot be asserted. If, by this claim of error, appellant is including testimony that appellant was to come up with a $100,000 “capital reserve” for the corporation and failed to do so, such evidence was, when offered, relevant in view of the then still pending count of respondent’s counterclaim which alleged that appellant had failed to perform the “financial functions” he had agreed to provide AHRA.

Judgment affirmed.

All concur.


text:
    Kenneth SKELTON, Appellant, v. STATE of Missouri, Respondent.
    No. 29678.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Denise V. Phillips, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Mary McClellan, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment denying, after hearing, motion under Rule 27.26.

On December 28, 1976, in the Circuit Court of Boone County, Missouri, the appellant pleaded guilty to a charge of stealing over $50.00. He was sentenced to three years’ imprisonment. On February 9, 1977, he filed a 27.26 motion seeking relief from the judgment and sentence. The motion asserted as grounds for relief: that movant was denied his guarantee of due process of law under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution because (1) he was not accorded a speedy trial, there having been a two-year interval between the time he was charged and the time he was brought to trial, and (2) he was entitled to jail time credit for the full time that he was confined in jail as a result of a detainer issued by the Boone County Prosecutor’s Office.

On November 13, 1974, an affidavit was filed in the Boone County Magistrate Court, charging appellant with theft by deceit, alleged to have occurred on or about August 28, 1974. On November 6, 1974, appellant was arrested in Buena Vista County, Iowa and held on Missouri and Texas detainers. Appellant was extradited to Deaf Smith County, Texas and there pleaded guilty to a charge of stealing on July 23,1975. He was sentenced to two years in the penitentiary. On this sentence the appellant received jail time credit for the time spent in custody since his arrest in Iowa. On February 6, 1976, appellant pleaded guilty to a theft charge in Ector County, Texas and was sentenced to two years in the penitentiary. He received jail time credit for the time spent in custody since his arrest in Iowa on this sentence also. Appellant was released from prison in Texas on March 29, 1976 and was picked up in Winslow, Arizona on September 6, 1976 on the warrant from Boone County, Missouri. He was transported to Missouri on September 19, 1976 and arraigned in Boone County on September 20, 1976. A preliminary hearing was held on November 5, 1976 and the appellant was arraigned in circuit court on November 15, 1976. On December 28, 1976 appellant entered an equivocal plea of guilty to the charge of theft by deceit. In pleading guilty, appellant stated: “Due to my past record and due to the lapse of time since this charge was committed. I thought I could prove I was in Texas but people there, the police officer said they can’t get on the stand and swear I was there because their memory just isn’t that good about the date. So to benefit myself, I am going to have to plead guilty to get it off my back.” The court accepted the plea and appellant was sentenced to three years in the Department of Corrections on February 7, 1977. He was granted credit for the 150 days he spent in the Boone County jail. At the conclusion of the evidentiary hearing on this 27.26 motion the trial court denied relief. This appeal followed.

In this court appellant claims that he was deprived of a speedy trial and that he was prejudiced thereby because during the delay his alibi witnesses forgot the exact dates of his presence in Texas. He was, he asserts, thus stripped of his defense and was forced to accept the agreement reached through plea bargaining. This argument is premised upon the assumption that the appellant was charged with the crime on November 13, 1974.

However, the prosecution was by complaint and information and not by indictment. As of November 13, 1974, a complaint only had been filed against appellant. An information was not filed against him until after the preliminary examination was held in November, 1976. This being the case, the appellant’s right to a speedy trial did not arise until November, 1976 when he was charged by information because the constitutional provision guaranteeing the right to a speedy trial contemplates a pending charge by indictment or information and not merely a complaint which represents a mere possibility that a criminal charge will be filed. Billings v. State, 503 S.W.2d 57 (Mo.App.1973); State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. Caffey, 438 S.W.2d 167 (Mo.1969).

In any event, the appellant pleaded guilty to the charge and there is no contention that such plea was given involuntarily or without understanding of the nature of the charge. A plea of guilty voluntarily made with understanding of the náture of the charge is conclusive as to guilt and waives all nonjurisdictional procedural and constitutional infirmities, if any, in any prior stage of the proceeding. Geren v. State, 473 S.W.2d 704 (Mo.1971); Beach v. State, 488 S.W.2d 652 (Mo.1972). Hence, the entry of the guilty plea here ended all questions based upon either statutory or constitutional guarantees of a speedy trial. Hulstine v. State, 533 S.W.2d 228 (Mo.1975); Schuler v. State, 476 S.W.2d 596 (Mo.1972); Rew v. State, 472 S.W.2d 611 (Mo.1971).

Appellant contends that, under § 546.615(1), RSMo 1975 Supp., he should have been given jail time credit for all the time spent in jail from November 6, 1974 when he was arrested in Iowa through March 29, 1976 when he was released from a Texas prison. He claims that during all that time he was being held on, or the terms of his confinement were affected by, the Missouri detainer and, consequently, all that time he spent in jail should be credited against the sentence ultimately rendered against him on the charge which was the subject of the detainer. This contention is answered by the holding in Harkins v. Lauf, 532 S.W.2d 459, 463[2] (Mo. banc 1976). In that case the court stated (532 S.W.2d 463[2]):

“The statute was originally enacted in 1959 and also provided that it was discretionary with the trial court to give credit for confinement prior to sentence. By amendment in 1971 both provisions were made mandatory. Are they applicable to confinement other than when the subject is a state prisoner? We think not. As noted, the second portion of the statute previously authorized discretion as to prior confinement by the sentencing court. Surely the General Assembly was not so presumptuous as to include courts other than those of Missouri. By the same token, the mandatory provisions as to subsequent confinement can only be construed to be applicable to that compelled under the laws of Missouri— and we so hold.”

King v. Wyrick, 516 F.2d 321 (8th Cir. 1975), relied upon by appellant, is not in point. The court there never discussed whether the time spent in jail on two de-tainers need be credited on both subsequent sentences or whether time served on one charge need be credited against another sentence imposed upon a charge pending during the serving of the other. All that was involved in King was whether the trial court had or had not allowed jail time credit and, if he hadn’t, whether that deprived appellant of equal protection of the laws. The fact that the defendant was charged with two crimes during his incarceration and ultimately received jail time credit on each sentence was merely an incidental fact in that case.

Umphenour v. State, 535 S.W.2d 579 (Mo.App.1976), relied upon by appellant, is not controlling here. That case involved multiple charges in Missouri. Foreign imprisonment was not involved. Furthermore, as above noted, appellant received credit for jail time on his Texas sentence. In Um-phenour, the court noted:

“[I]t is important to point out that a defendant will be given credit only once for the total time spent prior to sentencing; if he is sentenced on another charge by the same or another judge duplicate jail time cannot be given.” Umphenour v. State, supra, at 581.

There has been no demonstration of error on the part of the trial court. Its judgment should be affirmed.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John R. JACKSON, Defendant-Appellant.
    No. KCD 29686.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Bruce W. Simon, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

The defendant was convicted by a jury of stealing property of a value of at least $50. In accordance with the jury’s verdict, he was sentenced to two years imprisonment. He was alleged to have stolen a chain saw from the Sears store at the Independence Shopping Center.

Defendant has appealed to this court, alleging only that the evidence was insufficient to show that “the chain saw was . . . the property of Sears or stolen from Sears,” and, therefore, insufficient to sustain the conviction. Defendant’s point must be disallowed and the judgment affirmed.

The State’s evidence tended to prove the following facts:

On January 8, 1977, at about 6:00 P.M., defendant saw and was seen by police officer Bales, who was in uniform, as they both emerged by different doors from a Sears store in Independence, Missouri. Defendant was carrying a chain saw. Upon seeing the police officer, he quickly stepped behind a partition, from which he shortly reappeared without the chain saw.

Upon the officer’s inquiring where the chain saw was, the defendant said, “It’s around here,” pointing in the direction of a truck sitting on the parking lot. An electric “Craftsman” chain saw was found behind the front wheel of the truck. Nearby there were found in the snow a few minutes later a white price tag and a red safety tag, which were identified as being of the kind which would have been on the chain saw as it rested on a display rack in the Sears store — and a National Beef Packing payroll check, acknowledged by defendant to be his.

Defendant’s explanation to the police officer upon his arrest was that he had placed the saw under the truck because he had gotten tired of carrying it, that he was looking for his wife in the store, and that she had bought the chain saw that day.

Defendant had been in the chain saw area at about 6:00 P.M. He had asked witness Truelove, the salesman in the department, if he had seen a payroll check. At about 6:30 P.M. it was discovered that a chain saw, of the kind being carried by defendant, was missing from the display rack. It was Sears’ practice not to sell the display saws, but upon sale to get one from the stockroom. In any case they had not sold any chain saw on the day in question.

The defendant had carried a chain saw to the catalog sales desk and had asked the manager of that area, witness Tannahill, if he could leave it there beside the counter for a few minutes. The witness said he could. Defendant returned in a few minutes, exchanged nods with the witness, picked up the chain saw and left toward the outside exit.

Defendant’s own testimony on the trial, corroborated in some respects by other witnesses called by him, was that he had purchased the chain saw that day from a woman named Sue Lyons, and that she had brought him to the store for the purpose of exchanging it for a gas-powered saw. Sue, whom he had not known before, was to wait for him at the south side of the building. She was not there when the defendant returned. He had placed the saw under the truck and was going to call someone to pick him up when he had his unfortunate encounter with Officer Bales.

Considering only the evidence tending to support the verdict, as we must, and rejecting that which is contrary to it, State v. Lee, 556 S.W.2d 25, 32 (Mo. banc 1977) [reversed on another point by the Supreme Court of the United States, Lee v. Missouri, - U.S. -, 99 S.Ct. 710, 58 L.Ed.2d 736, 1979] it is quite clear that the verdict is abundantly supported by the evidence. It requires no extended argument to demonstrate that which is clear on its face.

It is true, of course, that in cases which depend upon circumstantial evidence,

[t]he facts and circumstances relied on by the state to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. (Citations omitted) State v. Lee, supra at 32.

This does not mean, however, that the jury must accept defendant’s exculpatory explanation of incriminating facts and circumstances. The jury may reject defendant’s explanation, and the testimony tending to support it, and may accept the defendant’s guilt as the more plausible construction. State v. Hatten, 561 S.W.2d 706, 711 (Mo.App.1978). That is what the jury has done here, and what it had the right to do.

State v. Celmars, 399 S.W.2d 145 (Mo.App.1966) is cited by defendant. In that case, the defendant was found with cigarettes shown to have come from the Betten-dorf-Rapp store. But the store employees were unable to testify whether the cigarettes were stolen or purchased — and, in fact, the manager knew of no merchandise being stolen from the store on that date. On such evidence, or the lack of it, it was held that the evidence was insufficient to support a guilty verdict. The evidence in the case before us is much stronger than in Celmars.

The judgment is, therefore, affirmed.

All concur.


text:
    Charles Alvin DAVIS and Evelyn J. Davis and Gladys E. Bovard, Appellants, v. Jane Leone FISKE, Respondent.
    No. 29696.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      John J. McFadden, Sr., Kansas City, for appellants.
    F. Russell Millin, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries claimed to have arisen from automobile collision. Count I of petition sought $5,000 damages on behalf of Charles A. Davis for loss of services of his wife, Evelyn J. Davis. Count II was by Evelyn Davis for $25,000 damages for her injuries. Count III was by Charles A. Davis for $10,000 damages for his personal injuries. Count IV was by Gladys E. Bovard for $25,000 for her personal injuries. Jury trial resulted in verdict for defendant on all counts. After their motion for new trial had been overruled, plaintiffs appealed.

The issues on this appeal include (1) whether plaintiffs are entitled to a new trial on the grounds that the verdict was contrary to the undisputed evidence; (2) whether defendant improperly injected issue of seat belts into trial; (3) whether plaintiffs are entitled to a new trial because of an unobjected to statement by defendant’s counsel in closing argument that “plaintiff must prove they were not negligent;” (4) whether the above claims of error entitle plaintiffs to relief; (5) whether plaintiff Evelyn Davis was improperly prevented from showing of loss of earning capacity as a result of her injuries, and (6) whether the trial court erred in refusing to permit Evelyn J. Davis voluntarily to dismiss her claim after trial had begun.

On February 22, 1971, Charles A. Davis was the driver of, and his wife, Evelyn J. Davis, a front seat passenger, and Evelyn’s mother, Gladys E. Bovard, a rear seat passenger in, a Chevrolet station wagon. Davis stopped his vehicle at the intersection of Routes 69 and 45 in Platte County, in observance of a posted stop sign. The stop sign was some 80 feet from the edge of the intersection and when Davis reached that point, he stopped again because of oncoming traffic. Jane L. Fiske was driving a Pontiac automobile behind and in the same direction as the Davis vehicle. She saw the Davis vehicle stop for the stop sign and when she reached the sign, she too stopped. She then went forward and started looking at the traffic. She failed to see that the Davis auto had stopped again and collided with the rear end of the Davis car.

Charles Davis said that the force of the collision caused him to hit his chest against the steering wheel, resulting in soreness to his neck and shoulders. There was evidence of $60 medical expenses on his behalf. He said that his wife was “subconscious” following the collision and an ambulance was called and she was taken to the St. Joseph Hospital Emergency Room. Ms. Bovard said that the force of the collision threw her to the floor and her knee struck the hard part of the back of the front seat and when the car “jolted back it threw my back against the edge of the back seat and kind of jerked me around that way.” She stated that her “right knee was bruised and injured and has a knot on it,” along with a blood blister on the kneecap.

Ms. Davis testified that, after their car stopped the second time, she remembered only “like an electric shock that went from my head clear down my back and the next thing I know I woke up in St. Joseph Hospital emergency room * * *.” Following the accident she suffered back pain which prevented her from doing manual work she had been accustomed to doing before. She lost ten days from her work as a clerk at Panhandle Eastern Pipeline Company, but lost no wages. Her evidence showed physicians’, hospital and ambulance expenses of $188.50.

Dr. John T. Skinner, M.D., testified that he saw the three plaintiffs at the St. Joseph Hospital Emergency Room on February 22, 1971. Ms. Davis appeared to be the most seriously hurt. He X-rayed her neck and found no fractures. He looked at Ms. Bo-vard’s swollen and bruised knee and Mr. Davis’s chest. On March 5, 1971, he saw Ms. Davis in his office and because of her complaint of lower back pain, he took lum-bosacral X rays but found no fractures or dislocations in her back. He stated that in his opinion Ms. Davis had suffered a “cervical neck sprain and a lumbosacral sprain, mainly a sacroiliac sprain.” He stated that he found muscle spasms in Ms. Davis’s back in 1974 and 1976 examinations and he was of the opinion that she had a permanent back injury.

Both autos were operable after the collision. The rear bumper of the Davis vehicle was dented, the rear door, the tail light and left fender were bent.

Suit was filed April 4, 1975 and the case tried April 11, 1977.

The claim of each of the plaintiffs was submitted on the “rear end” theory, MAI No. 17.16. As to each of the plaintiffs, defendant submitted an instruction conversing damages only (MAI No. 33.02(3)). A jury returned a verdict for defendant on each count.

In this court, appellants first contend that the verdict was the result of bias and prejudice and against the law and the evidence because the undisputed evidence supported the plaintiffs’ right to recovery.

In their argument on this point appellants point to no occurrence at the trial which might have caused bias and prejudice toward them. They point to the facts which their evidence, along with the defendant’s testimony, would show and draw the “inescapable conclusion” that they were entitled to verdicts in their favor in some amount.

The authorities relied upon by appellants fail to support this conclusion. Appellants have cited numerous cases discussing the elements and theory of the rear end doctrine, such as Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (1942); State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68 (1948); Witherspoon v. Guttierez, 327 S.W.2d 874 (1959), and other cases. These citations would support the conclusion that a submissible case under the rear end doctrine was made by appellants in this case. However, that is not the issue presented by this appeal.

Appellants are here asking for a new trial on the grounds that their uncontradicted evidence entitled them to a favorable verdict. They have, however, overlooked the oft-repeated rule stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559[1—3] (1931):

“ * * * The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.”

That rule answers the complaint of the appellants’ first point.

Appellants’ second point concerns the trial court’s ruling on the course of the following interrogation by defense counsel of Ms. Davis:

“Q. The car that you were riding in was equipped with seat belts?
“MR. McFADDEN: If Your Honor please, Mr. Millin asked that question two or three times and, under the law, the State of Missouri, I think, there’s absolutely no reason this question should be asked of these people. He’s asking it as though it were a mandatory thing, under the laws of Missouri, and I object to it because of it’s not a proper question to ask these people.
“THE COURT: Objection overruled.
“THE WITNESS: Do you want me to answer the question?
“Q. (By Mr. Millin) I think so.
“A. No, I didn’t have the seat belts on.
“Q. I didn’t ask you that, I said, was your car equipped with seat belts?
“A. Yes, sir, I didn’t have it on.
“Q. Did it also have a headrest back here?
“A. Yes, sir, I believe all the late model cars do.”

As the objection of appellants’ counsel indicates, this was not the first time that the subject of seat belts had arisen. Previously in the recross-examination by defense counsel of Mr. Davis, the following occurred:

“Q. Your car was drivable, you drove it home?
“A. I drove it.
“Q. Both cars were drivable?
“A. I guess, mine was, I don’t know if hers was or not.
“Q. Your car was equipped with seat belts?
“A. Yes.
“Q. They were not being used?
“A. No.
“Q. And you had head rests in back?
“A. Yes.”

In this court, appellants’ counsel would excuse the absence of objection to this questioning on the grounds that he considered the question about use of seat belts to have referred to the time at which Davis drove away from the accident. Although the question asked Mr. Davis did not specifically refer to the use of seat belts at the time of the collision, the clear import is that such time was the time intended, the use of seat belts in driving away from the collision scene being entirely without significance.

Appellants’ explanation cannot avoid the effect of the rule that they may not be heard to complain of the admission of testimony of Ms. Davis when testimony of the same tenor had been received from Mr. Davis without objection. State ex rel. State Highway Commission v. Warner, 361 S.W.2d 159, 164[7, 8] (Mo.App.1962); Baker v. Woodbury, 492 S.W.2d 157, 159[2-4] (Mo.App.1973).

Appellants next complain of the statement of defense counsel in closing argument: “Plaintiff had the duty to prove they were not negligent.” The lack of any objection at trial precludes any finding of error in this matter on the part of the trial court.

Appellants state that the cumulative effect of the above three matters should entitle them to a new trial. There being no basis for a finding of error in any of the three points, the cumulative effect of the trial court’s rulings would not warrant relief. Neither of the matters in Points II and III calls for relief under the plain error rule.

Appellants complain of the trial court’s exclusion of evidence designed to show that Ms. Davis, by reason of her injuries, was unable, following the accident, to work on various building projects which she and her husband had undertaken.

There is no need to detail the evidence and the offer of proof. Regardless of the propriety of the trial court’s ruling, the matter affords no basis for relief on this appeal. The evidence excluded went to Ms. Davis’s damages. The jury having found against her on the issue of liability, any error in the exclusion of evidence relating to damages becomes harmless error. Jackson v. Haley, 432 S.W.2d 281, 284[4] (Mo.1968).

When the trial court sustained defense objection to the evidence and offer of proof pertaining to Ms. Davis’s impaired earning capacity, counsel moved to dismiss her claim. Defense counsel objected and the trial court refused to permit the dismissal. In presenting their claim of error here, appellants’ counsel merely asserts that the action of the trial court was an abuse of discretion. No argument or authority is advanced to demonstrate an abuse of discretion. Appellants have not carried their burden of showing error on the part of the trial court.

Judgment affirmed.

All concur.