text:
    Tony PRINCE, Plaintiff-Appellant, v. WEST END INSTALLATION SERVICE, INC., Defendant, and Pioneer Bank & Trust Company, Garnishee-Respondent.
    No. 40348.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 12, 1978.

      Tony Prince, pro se, Lawrence 0. Will-brand, St. Louis, for plaintiff-appellant.
    Andrew L. Granat, St. Louis, for garnishee-respondent.
   CLEMENS, Judge.

Plaintiff Tony Prince got a judgment and execution against defendant West End Installation Service, Inc.; thereafter he sought to collect by garnishing defendant’s account on deposit in the garnishee-bank, Pioneer Bank and Trust' Company. The issue: May a garnishee-bank withhold a depositor’s funds to offset his unmatured loan? We say no.

When summoned on November 6, 1975, the garnishee-bank answered plaintiff’s interrogatories by denying it was indebted to defendant. Plaintiff denied this and the matter proceeded to trial.

An officer of the garnishee-bank testified: On the date garnishment was served, defendant had $1,420.48 on deposit with the bank. The bank then held defendant’s promissory note for $13,000, with $95.15 unpaid interest due on the note. On November 18 — twelve days after the writ of garnishment was served — the bank made demand on defendant for payment of his $13,000 note. We infer from this that the principal of defendant’s note did not mature until after the bank was served with garnishment. This inference is further supported by the fact that when served the bank executed a cashier’s check for $1,420.12, payable to the sheriff of St. Louis County. The check was not delivered, however, because the bank “had the feeling they had the right of offset of the . loan maturing on November 18.”

The trial court rendered judgment for the garnishee-bank. Plaintiff has appealed, contending that as defendant’s judgment creditor he is entitled to defendant’s funds on deposit on the date the bank was summoned. Garnishee-bank counters by contending it had the right to apply defendant’s deposit to defendant’s indebtedness to the bank. Cases cited by the garnishee-bank concern a bank’s right to offset its matured debt against a depositor’s funds.

Established law in Missouri is that a bank may apply its customers’ deposits to reduce the customers’ loans from the bank “as they become due.” Adelstein v. Jefferson Bank & Trust Co., 377 S.W.2d 247[1] (Mo.1964). A bank cannot however defeat a garnishment on the ground that the depositor owes the bank money on a note not yet due. Iler v. Midland National Bank, 69 Mo.App. 64[1] (1897). On the date of service of the writ, a garnishee must have an enforceable cause of action against its depositor. Iler, supra, relying on Reppy v. Reppy, 46 Mo. 571[2] (1890), holding squarely: “But a demand cannot be set off in equity any more than at law, unless it existed . . .at the time of the commencement of the suit, and had then become due.” Our research of later cases fails to reveal any departure from this established principle.

Guided by the standard of appellate review set forth in Murphy v. Carron, 536 S.W.2d 30[1] (Mo.1976), we find no substantial evidence to support the trial court’s decision. Nothing in the record indicates the defendant’s debt to the garnishee-bank was due on the date garnishee was served. Both parties do agree $95.15 in interest was due by defendant to the garnishee-bank on November 6, 1975 and we therefore reverse the judgment and remand the cause with instructions to enter judgment for plaintiff to the extent the funds in the checking account exceeded $95.15 interest. Costs are to be taxed against garnishee-bank.

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


source: Caselaw Access Project

author: WEIER, Judge.

license: Public Domain

text:
    Thomas Lee-Roy KENNEDY, Jr., Respondent, v. Linda Sue KENNEDY, Appellant, Terminal Railroad Association of St. Louis, Garnishee.
    Nos. 38215, 39362.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 12, 1978.

      Keith W. Hazelwood, Rollings, Gerhardt & Hazelwood, St. Charles, for appellant.
    Theodore S. Schechter, Schechter & Zer-man, Clayton, for respondent.
   WEIER, Judge.

1.Case History

This is a consolidation of two appeals from orders of the trial court quashing garnishments issued pursuant to execution on a child support judgment.

2. Facts

Both in an order pending the final determination of a divorce case and in the final decree, the court ordered plaintiff, Thomas Lee-Roy Kennedy, Jr., to pay defendant, Linda Sue Kennedy, the sum of $21 per child per week for each of two children whose custody was awarded to the defendant-mother. The award was paid until August 1972. In April 1974, Thomas was prosecuted in the Jefferson County Missouri Magistrate Court on a criminal charge for failing to support his children. He was acquitted because of his poor financial condition at the time. At that time he discussed the matter with his wife Linda and according to his testimony she told him “she would forget all sums that I had owed her up to date, if I would pay her $30.00 every two weeks until I got back on my feet.” Afterward in May 1974 he suffered a disabling injury and was on railroad retirement and disability payments 21 months, returning to work in February 1976. A garnishment had been placed against his wages in March 1976 and also against a settlement on his disabling accident claim.

3. Issues Submitted and Their Determination

The points relied on in defendant-appellant’s brief are numbered in Roman ciphers. We present them in the same order.

I. Error is charged in that the trial court, citing Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974), held that past-due obligations for decretal child support before April 1974 were forgiven because this finding erroneously applied the law, erroneously declared the law and was against the weight of the evidence. In essence, the issue is whether these parties could form a valid contract between themselves which relieved the plaintiff-husband of his obligation under the support judgment. Defendant here contends that although the current approved rule of law would support such a contract, the rule should be changed. As stated by this court in Rodgers v. Rodgers, supra at 144[5]:

“Our courts have, however, for a long time recognized that past due child support owing by the divorced husband to the former wife pursuant to a court order for child support and maintenance incorporated into the divorce decree constitutes a debt of the husband to the former wife, . . . and they become judgments in favor of the former wife . Like any other debt or judgment they are subject to being settled or compromised by the parties and any such settlement or compromise, if supported by adequate consideration, will be respected and enforced by the courts of this state.” [Citations omitted.]

We are not disposed to attempt to change a rule so well established even if this were within our power and we were inclined to change it. Dicta in Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 768 (1932); Hart v. Hart, 539 S.W.2d 679, 682 (Mo.App.1976); Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143, 146[8] (1947).

Defendant then pursues the contention that the contract as to past-due child support failed because of an absence of consideration. In searching for a consideration to support a contract to relieve plaintiff of his liability for child support payments due his former wife before April of 1974, it is required as in any contract of settlement and compromise that there be either a benefit to promisee, here the defendant-wife, or a detriment to promisor, here the plaintiff-husband. Wells v. Hartford Accident and Indemnity Company, 459 S.W.2d 253, 260[10, 12] (Mo.banc 1970); see also Rodgers, supra at 144[5]. A compromise agreement lacking consideration becomes a nullity. Dickey v. Thirty-Three Venturers, 550 S.W.2d 926, 931[6] (Mo.App.1977).

Because Thomas had a continuing duty under the support judgment to pay to Linda $42 per week, his agreement to pay $30 every other week cannot be considered either as a detriment to himself or a benefit to Linda.

Thomas contends that due to his financially embarrassed condition, his payment of less than the amount due is a binding consideration. He relies on Dalrymple v. Craig, 149 Mo. 345, 50 S.W. 884 (1899). We find his reliance is misplaced. In Dalrym-ple, the debtor did arrange a settlement for less than the liquidated sum of his notes. However, the debtor also borrowed a sum of money specifically for paying the settlement and paid the settlement sometime before the notes were due. As the court noted the amount was not paid out of the debtor’s funds, but rather out of funds borrowed. We think a fair reading of the case shows that the court found consideration from these latter facts and not from the debtor’s payment of less than the liquidated sum of his notes at a time he was financially embarrassed. As noted in the opinion, the payment of a smaller sum in discharge of a larger sum admitted to be due is not a payment of the balance. Dalrymple, supra at 888.

Finally, Thomas contends that he relied on the contract and this induced him not to file a motion to modify the child support payments. He contends this detrimental reliance supplies the necessary consideration to bind the appellant under the doctrine of promissory estoppel. Promissory estoppel will bind contracting parties where justice so requires and where the promisor’s promise should reasonably be expected to induce the promisee’s reliance and actually does induce the promisee’s reliance. In re Jamison’s Estate, 202 S.W.2d 879, 886[13,14] (Mo.1947).

The parties here, however, were without power to form a binding contract as to future child support. Therefore, the only promise that could validly run from Linda to Thomas was the promise to relieve him of his liability for payments accrued as of April 1974. This promise could not be reasonably expected to induce him to forbear from filing his motion to modify payments due after April 1974. It is clear from the facts that if he refrained from filing a motion to modify in reliance on Linda’s void promise to reduce future due payments it was based upon a promise void under the law and contrary to public policy. It was not based upon her agreement to relieve Thomas of his liability on the payments past due as of the date of their contract. We conclude there was no consideration moving from the respondent to the appellant in exchange for the appellant’s promise to forgive the past-due child support payments.

II. Defendant Linda contends the court erred in its orders quashing the garnishments as to child support payments due after April 1974, except as to the sum of $30 every two weeks because the parties could not legally agree to an adjustment of future decretal child support.

Respondent relies upon Rodgers v. Rodgers, supra, 505 S.W.2d 138. In Rodgers, the husband and wife were divorced and the divorce court ordered periodic child support payments to be made by the husband. Because the wife angrily informed the husband that she did not want his money, the husband quit making the payments to the wife and technically fell behind. He set up a trust fund and made the payments into the fund for several months. He kept the payments current until his wife through counsel negotiated an agreement to relieve him of his duty to pay in accordance with the court order (both accrued and unac-crued payments) in exchange for his consent to the adoption of the children by the wife’s second husband. The former husband, after executing the “Consent to Adoption,” revoked the trust and used the money to help pay for his extensive needs at that time. The adoption, however, was not pursued by the mother and her subsequent husband. The former husband was not informed of this until his former wife sued him several years later for the payments that had not been made. The children were still minors at the time of this suit. This court held that the contract was valid with respect to the payments past due at the time of the contract and the former wife would be barred from collecting future payments due after the making of the contract up to the hearing of the motion to quash because of the “peculiar facts of this case.” We do not have similar facts here and for this reason adhere to the general rule set forth in Rodgers, supra.

4. Disposition

The judgments of the trial court are reversed and the garnishment proceedings are remanded with instructions to determine the amount due appellant-defendant Linda Sue Kennedy, n/k/a Wilhelm, in St. Louis County Circuit Court, Cause No. G-24035 as of the date of the issuance of the execution therein (Pflanz v. Pflanz, 237 Mo.App. 873, 177 S.W.2d 631, 636[9] (1944)) and the amount due said appellant-defendant in St. Louis County Circuit Court, Cause No. G-24703 as of the date of the issuance of the execution therein but subsequent to the date of the execution in Cause No. G-24035. Said amounts shall be computed by deducting all amounts paid to defendant from the child support payments awarded her in the sum of $42 per week by order of the St. Louis County Circuit Court in Cause No. 332080.

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


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Daniel SLOAN, Appellant.
    No. 39726.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.

      David M. Johnson, Hayes & Heisler, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant guilty of burglary and the court imposed a ten-year sentence. Defendant has appealed, contending the state failed to prove intent to steal; also that the court erroneously denied his instruction on the issue of identification.

By a pro se after-trial motion, carried forward in his brief, defendant contends he was denied effective assistance of trial counsel by his counsel’s failure to call an alibi witness. Such an allegation and the explanation thereof is appropriate under — and better adjudicated by — a motion to vacate under Rule 27.26, V.A.M.R. On this appeal we deny the point, without prejudice. We pass to the merits of the issues of defendant’s intent and the denial of his identification instruction.

Defendant contends the evidence failed to show his intent to steal. The state’s evidence was that an intruder was found in the victim’s residence at midnight. A back porch screen had been cut and a bench moved to a position under the cut screen. When accosted by the victim the intruder left the home and was seen running away. From these facts the jury could infer the intruder’s intent to steal, even though nothing was taken. Compare State v. Massey, 542 S.W.2d 88[1] (Mo.App.1976), and State v. Hooper, 494 S.W.2d 306[4, 5] (Mo.1973). We deny defendant’s first point.

There was substantial evidence as to defendant’s being the intruder. For two or three minutes the victim saw him in the partially lighted home; two neighbors saw the intruder running from the home. All three identified defendant — from police photographs, a lineup and in court — as the intruder.

As said, defendant contends the trial court erroneously denied his not-in-MAI-CR on identification. The 300-word instruction violated Rule 20.02(d) by note being “simple, brief, impartial and free from argument.” On this ground alone refusal was proper. Further, the giving of a separate cautionary instruction is discretionary. State v. Thomas, 541 S.W.2d 775[4] (Mo.App.1976). Here, there was abundant evidence of defendant’s identity. The trial court instructed the jury on the state’s burden of proof, on circumstantial evidence and alibi, and gave a converse instruction on burglary. We hold the trial court did not abuse its discretion in denying defendant’s separate instruction on identity. Judgment affirmed.

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


text:
    STATE of Missouri, Respondent, v. Jerry Dean WILLIAMS, Appellant.
    No. 39238.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.

      Robert A. Hampe, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Defendant appeals from her conviction for second degree murder, contending the trial court erred in admitting a prior consistent statement made by a state’s witness, and in excluding her evidence that other persons had motives to kill the victim.

During the night of October 19, 1975 defendant Geraldine Williams visited a tavern and became embroiled in an argument with Sabrina Wortham, the murder victim. Robert Henry, a member of the band at the tavern, intervened and restrained defendant, holding her by the arm; but released her at her boyfriend’s request. The defendant then disappeared from Henry’s view in the crowd. Henry testified he did not at that time see a knife on defendant’s person but that later, upon hearing screams from the far end of the room he saw defendant emerge from the crowd carrying a knife as she left the tavern.

Defendant was also seen by Eddie May, a disc jockey for the tavern. He testified he saw defendant approach the victim, who was attempting to flee, when defendant made a stabbing motion and struck the victim in the back. He saw no knife, however, until defendant pulled her hand away from the victim. Defendant walked off into the crowd as the victim fell. Mr. May heard the victim say, “She stabbed me. She stabbed me in the back.”

Defendant does not challenge the sufficiency of the state’s evidence.

As to the challenged prior consistent statement by Robert Henry: During the state’s direct examination Robert Henry testified he had seen defendant leave the tavern carrying a knife shortly after having heard screams from the far end of the room. Defense counsel attempted to impeach Mr. Henry by using a police report containing the statement Mr. Henry had given the night of the murder. On cross examination Mr. Henry was asked whether he told police he did not see a stabbing, nor did he see a knife on defendant’s person. Mr. Henry answered that although he had told police he did not see the stabbing, he did explain he had seen defendant leave while carrying a knife. On re-direct examination, Mr. Henry repeated this statement. After having read the police report, he also testified that it failed to include that portion of his statement. Then the state showed, over defense objection, that Mr. Henry had testified before the grand jury that he had seen defendant carrying a knife as she left the tavern. This was consistent with his trial testimony. Defense counsel renewed his objection the next day and asked for a mistrial. The trial court denied that request but did instruct the jury to disregard Mr. Henry’s testimony as to what he had told the grand jury about a knife in defendant’s possession.

Generally, evidence of a witness’ prior consistent statement is admissible only when a later statement has been impeached. McElhattan v. St. Louis Public Service Co., 309 S.W.2d 591[2] (Mo.1958). Evidence of a prior consistent statement, used to shore up a witness’ credibility, is admissible only for the purpose of rehabilitating an impeached witness. State v. Haggard, 250 Mo. 335, 157 S.W.2d 354[9-10] (1913). The first consideration is whether impeachment has, in fact, been effected. This determination is left largely' to the discretion of the trial court. Nielsen v. Dierking, 418 S.W.2d 146[3] (Mo.1967). What we see here is a trial court apparently uncertain as to whether there had been an effective impeachment, ultimately deciding there was no such impeachment, and, in an attempt to correct its error, admonishing the jury to disregard the challenged evidence.

Whether a trial court has abused its discretion in refusing to declare a mistrial depends on the particular facts of the case. State v. Dennison, 428 S.W.2d 573[4] (Mo.1968). To reverse, it must appear that the prejudice was so great it could not be removed by other means. State v. Johnson, 504 S.W.2d 23[7] (Mo.1973). This has not been demonstrated here. The trial court acknowledged the initial error and removed any resultant prejudice by instructing the jury. It does not appear that the potential for prejudice was so great as to be remedied only by a mistrial and since no abuse of discretion appears, we deny defendant’s first point.

As her second point, defendant points to the trial court’s refusal to admit evidence by cross examination that other persons present in the tavern had both the motive and opportunity to kill the victim. During cross examination of state’s witness Rita Franklin, defense counsel asked her if the victim was responsible for the scar on her cheek. The state objected and defense counsel offered to show that the answer to the question would be yes. By way of explanation, defense counsel stated the evidence was relevant because it would tend to establish the victim’s propensity for violence, thereby demonstrating that other persons present in the tavern had both the motive and opportunity to stab the victim. The trial court sustained the objection and refused to admit the proffered evidence.

Evidence that another person had an opportunity or motive to commit the crime for which defendant stands charged is inadmissible absent a foundation that the third person committed some act directly connected with the crime. State v. Um-frees, 433 S.W.2d 284[4] (Mo.1968). Evidence of disconnected or remote acts is not admissible for this purpose, nor is evidence which serves only to cast bare suspicions or raise conjectural inferences of another’s guilt. Umfrees, supra; Love, supra. Evidence which merely demonstrates that a person at the scene of the crime has previously been involved in fights with the defendant does not constitute evidence of an act directly connected with the crime itself. The victim’s proclivity for violence was not an issue before the trial court and hence, standing alone, was irrelevant.

Finally, defendant contends the testimony of Rita Franklin as to who had cut her face was admissible to demonstrate her possible bias, her theory being that if Rita Franklin had murdered the victim, it would behoove her to testify against the defendant. However, defense counsel’s objection at trial to the exclusion of this evidence made no mention of the potential for bias, nor does her motion for new trial. On appeal, a defendant may not broaden the scope of his trial objection. Plumlee v. Ramsay Dry Goods Co., 451 S.W.2d 603[4] (Mo.App.1970). The objection to admissibility of evidence must be specific and contain proper grounds, otherwise there is nothing to review. Negley B. Calvin, Inc. v. Cornet, 427 S.W.2d 741[6] (Mo.App.1968). Defendant failed to preserve the issue of bias so this point is denied.

Judgment affirmed.

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


author: REINHARD, Presiding Judge.

text:
    Milton BROOKINS, Respondent, v. STATE of Missouri, Appellant.
    No. 40177.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for appellant.
    Thomas C. Mummert, III, Huck & Fasten, Inc., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant was convicted by a jury on December 17, 1969, of first degree robbery by means of a dangerous and deadly weapon. He was sentenced to a term of 60 years. That sentence was affirmed on appeal by the Missouri Supreme Court. State v. Brookins, 468 S.W.2d 42 (Mo.1971).

In 1972 movant filed a post-conviction motion pursuant to Rule 27.26 alleging that the court erred in admitting the deposition of an identification witness without any showing that the state had made a good-faith effort to obtain the presence of this witness at trial. The issue had not been presented in movant’s motion for a new trial or on his direct appeal. Movant alleged that he was entitled to review of this issue in 27.26 proceedings because his right to confrontation under the Sixth Amendment had been denied and because the issue had not been previously ruled on. Defendant further alleged that he was entitled to relief because of ineffective assistance of counsel.

The trial court found against the defendant on the ineffectiveness of counsel contention, but granted relief because of the Constitutional issue.

We are to affirm the trial judge in a 27.26 proceeding unless his findings, conclusions, and judgment are “clearly erroneous”. The standards apply whether the state or defendant appeals. Vidauri v. State, 515 S.W.2d 562, 567 (Mo.1974); State ex rel. Reece v. Campbell, 551 S.W.2d 292, 298 (Mo.App.1977).

Appellant’s sole point on appeal is:

The Circuit Court was clearly erroneous in granting respondent’s motion under Rule 27.26 on the basis that respondent was denied his Sixth Amendment right to confrontation by the admission at trial of the deposition of an absent witness, because respondent’s failure to raise this contention in his Motion for New Trial and on appeal constituted, in the light of the surrounding facts and circumstances, a deliberate bypass of orderly state procedure by respondent and thus rendered this issue unreviewable on collateral attack.

Appellant relies on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975), where we said:

[I]t is now settled by numerous decisions in both the federal and state systems that where there is a deliberate bypass, whether for strategic, tactical or other reasons, of orderly state procedure, a movant is precluded from raising a constitutional issue on a post conviction motion.

Id. at 472.

The trial court in this case specifically found that “movant did not deliberately or intentionally bypass any procedural rules.” In 27.26 appeals we are to defer to the fact findings of the trial court where supported by the evidence. Vidauri v. State, 515 S.W.2d at 570. And while other trial courts could have, we believe correctly ruled contrary to the ruling here, we can not say that the findings, conclusion and judgment of the trial court here are clearly erroneous. This determination in no way affects the merit or vitality of the cases relied on by the appellant.

We affirm.

CLEMENS and GUNN, JJ., concur.


text:
    James Richard ABNEY, Appellant, v. Constance Rose ABNEY, Respondent.
    No. 38708.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.

      Robert D. Benjamin, Law Offices of Kenneth J. Rothman, Clayton, for appellant.
    Forrest S. Fitzroy, Clayton, for respondent.
   REINHARD, Presiding Judge.

This is a dissolution action in which the husband appeals from that portion of the decree awarding $100.00 maintenance to the wife.

The parties were married in 1960. Two children were born of the marriage, a son in 1961 and another son in 1962. The marital property consisted of the real property (home) with an equity of $10,000.00, household furnishings (no value given), an automobile valued at $2,800.00, and one-half interest in a bait and tackle shop worth $4,000.00. At the time of the dissolution, the husband was employed as a meat cutter, earning approximately $1,200.00 per month, and the wife was employed at Missouri Pacific Railroad earning between $900.00 and $1,000.00 per month.

The court dissolved the marriage, awarded the house and furniture within to the wife, awarded the automobile and the one-half interest in the bait and tackle shop to the husband, and granted custody of the two children to the husband with temporary custody to the wife. The court also ordered the wife to pay to the husband $25.00 child support per child per month and ordered the husband to pay to the wife $100.00 per month maintenance.

The husband appeals the award of maintenance to the wife, alleging that the court “erroneously declared and applied the law in that respondent does not lack sufficient property to provide for her reasonable needs, nor is she unable to support herself through appropriate employment nor is she the custodian of any minor child, . . .” and further claiming that the award is not supported by substantial evidence.

In order to reach a determination as to appellant’s complaint, it is necessary for us to recite additional facts relating to the wife’s health and employment. She became employed by the Missouri Pacific Railroad in 1968. In 1971 she had a brain tumor removed from the right side of her cerebellum. This left her with partial paralysis of the right hand and leg, partial paralysis of her face, a spasmotic blinking eye, and an inability to drink without a straw. She also experienced a hearing loss in her right ear. A second operation helped relieve some of these physical manifestations, and she can now drink without a straw. She was off work five months in 1971 because of the operation but has worked ever since. However, the disability affected her housework, created problems between her and the children, and led to the breakup of her marriage in 1976. She has continued her employment through “grit and determination”. At work, the wife has received pay increases when other employees received them and at the time of the trial was receiving $900.00 to $1,000.00 per month. There was no medical testimony as to her present condition or a prognosis. There was no testimony from the wife as to any future additional disability.

Maintenance under § 452.335 may be awarded to either party upon dissolution of a marriage, but unless the spouse seeking maintenance is the custodian of a child, it must appear that he or she: 1) lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs, and 2) is unable to support herself through appropriate employment.

The husband makes an initial assertion that the wife has sufficient property to provide for her reasonable needs; however, the court in Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977) noted that in considering property in place of maintenance, “the focus of our statute seems more specifically on income-producing property, . . . .” There is no contention that the property awarded the wife was income producing. Therefore we look to the wife’s ability to support herself through appropriate employment.

The husband claims that since the unrefuted testimony was that the wife is presently employed and self-supporting, the court erred in allowing maintenance. The wife relies on McBane v. McBane, 553 S.W.2d 521, 524 (Mo.App.1977), where our Kansas City brothers held that where “the evidence shows a physical condition existing at the time of the marriage dissolution which has a substantial potentiality for disabling the wife from remaining self-supporting, fairness to the wife requires that her existing physical condition be taken into account.” However, the McBane extension of the considerations for maintenance becomes applicable only when the potential for future inability to work is established by evidence exceeding mere guesswork or speculation. Mere suppositions of future inability to work are not adequate. In McBane, for example, there was medical testimony as to the potential for Mrs. McBane’s future incapacity. We do not believe the requisite evidence was presented here.

In this case there is no dispute as to a substantial disability on the part of the wife. However, on the record here, we cannot determine whether this disability has a “substantial potentiality” for disabling her from remaining self-supporting. There is no evidence in the record as to the effect of her disability on her future employment. Furthermore, there was no evidence presented as to the present needs or expenses of either the husband or the wife. Under the standard of review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we find that the court’s order as to $100.00 for month maintenance is not supported by substantial evidence. Therefore, this order cannot be affirmed. However, in view of the fact that the wife might be able to establish her entitlement to maintenance under the McBane standard, we remand. Jaeger v. Jaeger, 547 S.W.2d 207, 213 (Mo.App.1977).

Case reversed and remanded for proceedings consistent with this opinion.

CLEMENS and GUNN, JJ., concur.

      . Although neither party presented evidence as to the husband’s expenses or the particular needs of the wife or children, and the husband in his pleadings had not requested child support, we note that the wife did not appeal the award against her for child support. Consequently, we cannot disturb this portion of the judgment. Tellmann v. Civil Service Commission of St. Louis County, 564 S.W.2d 226 (Mo.App.1978). In this regard, we further note the husband’s statement during oral argument that if he succeeds on appeal, he would not expect child support. On the other hand, the wife says that she would like to contribute to the support of the children.

      . In oral argument, the parties contend that expense and income statements were before the court. Although they may have been filed with the case in accordance with a local court rule, there is no indication in the record that they were offered in evidence or considered by the trial court. In fact, there is nothing in the record mentioning expense and income statements.


text:
    Patricia KARLESKINT, Appellant, v. John C. KARLESKINT, Respondent.
    No. 39642.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.
    Ellsworth W. Ginsberg, Clayton, for appellant.
    Steven M. Hamburg, Summers & Compton, Clayton, for respondent.
   REINHARD, Presiding Judge.

Plaintiff, Patricia Karleskint, appeals from an order of the Circuit Court entered August 26,1977, quashing an execution and garnishment issued to the employer of her former husband, defendant, John Karle-skint.

The parties were divorced on January 15, 1971. The divorce decree left title to the house and two automobiles to the defendant.

On November 26, 1976, the defendant filed a motion to modify the decree, claiming the plaintiff to be an unfit mother and requesting the custody of the children. The plaintiff filed a motion to dismiss husband’s motion to modify based on defendant’s failure to pay child support. In January of 1977, plaintiff requested execution and garnishment.

On April 19, 1977, a hearing was held on the motion to dismiss the motion to modify. On June 24, 1977, plaintiff again requested an execution and garnishment alleging that as of December 23, 1977, there was “due and owing from the Respondent to Petitioner the sum of $14,866.00” as and for child support. On July 14, 1977, defendant moved that the court quash the garnishment because “all or substantially all of the alleged indebtedness claimed by the Plaintiff has been paid or satisfied . . . .’’ The transcript shows that on August 26, 1977, the motion to quash garnishment was called, heard and submitted. The court sustained the motion and the plaintiff appeals.

On appeal, plaintiff contends the trial court erred in sustaining defendant’s motion to quash garnishment because defendant failed to support his affirmative defenses with substantial evidence. In this court tried case we must sustain the decree of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

No evidence was presented on defendant’s motion to quash, but the parties agree that we are to consider the evidence which they presented at plaintiff’s motion to dismiss defendant’s motion to modify. At that hearing only the plaintiff presented evidence. She testified that defendant had made no child support payments (other than four checks of $25.00 each); that in 1971 defendant transferred to her the title to the automobile she was driving at the time of the divorce, as well as his equity in one-half interest in their house; that in 1971 when she applied for welfare, the welfare department contacted defendant; that in 1973 she contacted an attorney relative to the defendant’s non-payment of child support and that he wrote defendant; that seven months before defendant filed his motion to modify, she and her second husband requested that defendant move into their home, which he did; that during that time defendant acted as a live-in babysitter for the children (but plaintiff also testified that such action by defendant was not in consideration of forgetting past due child support payments); and that from 1973 to 1977 she made no effort to collect support payments.

The defendant had the burden of proving his pleaded affirmative defenses of payment or satisfaction. Stringer v. Reed, 544 S.W.2d 69, 73 (Mo.App.1976).

In his brief on appeal, the defendant submits that the trial court can be sustained on either of two theories, his first theory being based on an agreed compromise and settlement for adequate consideration of past due child support payments. However, in oral argument before this court defendant admitted that the record contains no evidence of agreement, but claimed the trial court can be sustained on a theory of acquiescence. Defendant submits that the plaintiff acquiesced in his failure to remit child support payments as they became due and thereby waived the right to enforce payment.

That waiver by acquiescence may be interposed as a defense to an action brought by wife for arrearages in alimony or past due child support has been recognized in many jurisdictions. 24 Am.Jur.2d, Divorce and Separation § 719; 137 A.L.R. 884, 897-899 (1942) supplemented by 70 A.L.R.2d 1250,1279-1283 (1960). Missouri has adopted the rule. Rodgers v. Rodgers, 505 S.W.2d 138, 145 (Mo.App.1974).

Waiver is also an affirmative defense which if not pleaded, presented, or passed on in the trial court, cannot be presented for the first time on appeal. Ehrle v. Bank Bldg. & Equip. Corp. of America, 530 S.W.2d 482, 491 (Mo.App.1974). Defendant failed to raise the defense of waiver in his motion to quash the garnishment and, unlike Rodgers, defendant failed to testify and present any evidence to substantiate this defense. He argues that the trial court’s judgment can be sustained on the testimony of the wife in the motion to modify proceedings. Standing alone, her testimony is insufficient to sustain the defense of waiver by acquiescence.

The order to quash the garnishment is not supported by substantial evidence and therefore must be reversed. See Bonadonna v. Bonadonna, 322 S.W.2d 925, 926 (Mo.1959); Cain v. Cain, 546 S.W.2d 203 (Mo.App.1977). The order quashing the writ of execution is reversed and the cause remanded for further proceedings.

CLEMENS and GUNN, JJ., concur.

      . The same judge who quashed the garnishment also heard the plaintiffs motion to dismiss defendant’s motion to modify. The record fails to indicate whether the parties stipulated that the trial judge consider the evidence produced at the hearing on the motion to modify.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Herbert ARMSTRONG, Jr., Defendant. Appeal of Calvin MERCER (Surety), Appellant.
    No. 40284.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.
    Lee, O’Hanlon & Brady, R. J. O’Hanlon, St. Louis, for defendant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

This appeal arises out of a $20,000 bail bond forfeiture proceeding in which judgment of forfeiture was obtained against appellant Calvin Mercer as surety for the court appearance of Herbert Armstrong, Jr. Armstrong had been granted bond on a felony charge and failed to appear for court proceedings.

After bond forfeiture was declared, hearing was held on the State’s motion for judgment on the forfeiture. At that proceeding, the prosecutor requested the trial court to take judicial notice of the court file which contained a photostatic copy of the bond. Appellant’s counsel specifically objected to reference to the photostatic copy as not being the best evidence. The objection was overruled with the prosecutor disdaining the opportunity to utilize the original bond, presumably kept in the clerk’s office pursuant to Rule 32.10(d) and relying, instead on the photostatic copy.

Appellant has appealed, alleging error in the trial court’s taking judicial notice of the photostatic copy of the bond as a violation of the best evidence rule. We believe appellant’s complaint is meritorious and reverse and remand.

As stated in Yeager v. Wittels, 517 S.W.2d 457, 466 (Mo.App.1974): “Under the ‘best evidence’ rule, the original document must be produced to prove the terms of a writing unless it is shown to be unavailable for reason other than the fault of the party seeking to prove the same.” (original emphasis) Further, “[i]n order to be admissible in evidence a public ‘record or document must be produced from or in the proper custody, and its identity, authenticity, and genuineness must be established.’ ” Cole v. Bumiller, 549 S.W.2d 95, 97 (Mo.App.1976), quoting from Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570 (Mo.1964). The Dyer case involved an aborted effort to have some photostatic documents placed in evidence.

Finally, this court has specifically held that absent agreement of the parties, a duplicated or photostatic copy of a document is not properly admissible in evidence. Layman v. Southwestern Bell Tel. Co., 554 S.W.2d 477 (Mo.App.1977).

Here, there has been no showing of the unavailability of the original bond. In fact, respondent in its brief argues that it now lays where it has been all along — snug in the protection of the clerk’s office pursuant to rule 32.10(d). But the bond was never produced, and by reason of Layman, the photostatic copy of the bond is inadmissible without agreement of the parties and cannot form the basis of a valid judgment. There was no such agreement here, and appellant’s attorney’s timely and specific objection was well taken.

Judgment reversed and remanded.

REINHARD, P. J., and CLEMENS, J., concur.

      . Inasmuch as Missouri has no statute allowing machine copies of documents to be treated as originals, the result here treating the bond as secondary evidence is congruent with McCormick on Evidence § 236 (2d ed. 1972).


author: HOGAN, Presiding Judge.

text:
    David M. STONER, Claimant-Appellant, v. DAWSON METAL PRODUCTS, Employer-Respondent, and Aetna Casualty & Surety Company, Insurer-Respondent.
    No. 10607.
    Missouri Court of Appeals, Springfield District.
    Dec. 22, 1978.
    Motion for Rehearing or Transfer Denied Jan. 3, 1979.

      L. R. Magee, Hines & Magee, Kansas City, for claimant-appellant.
    Kelly Pool, Jefferson City, for respondents.
    Before HOGAN, P. J., STONE, J., and GRIMM, STEELMAN and McHANEY, Special Judges.
   HOGAN, Presiding Judge.

This appeal is taken from an award of the Labor and Industrial Relations Commission denying compensation to claimant David M. Stoner. The claimant’s sole point on appeal is that the award is clearly contrary to “all of the competent and substantial” evidence because the evidence clearly establishes that claimant contracted an occupational disease which arose out of and in the course of his employment. Inasmuch as this is the only point stated in the “points relied on” part of the appellant’s brief, it is the only point we shall consider. Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405(3) (Mo.1964); Haase v. Richmond, 570 S.W.2d 341, 343-344(3) (Mo.App.1978).

There is not really very much before us for review. The parties stipulated before the Referee that on or about June 14, 1973, claimant sustained an injury arising out of and in the course of his employment, that the employer had notice of the injury and that a claim for compensation was timely filed. Admittedly the claimant is suffering from a serious lung condition; the only real question is whether his condition was brought on by a peculiar risk or hazard inhering in his working conditions. There is medical evidence which would support the conclusion that it was; there is also extensive medical evidence that it was not. Therefore the determinative issue, whether or not the claimant was entitled to compensation because he developed an occupational disease, depended upon the acceptance or rejection of conflicting medical opinions or theories and was an issue peculiarly for the determination of the Commission. Vollmar v. Board of Jewish Education, 287 S.W.2d 868, 872(4) (Mo.1956); Hawkins v. Nixdorff-Krein Mfg. Co., 395 S.W.2d 247, 251(4) (Mo.App.1965); Greer v. Missouri State Highway Department, 362 S.W.2d 773, 778-779(4) (Mo.App.1962).

Having considered the records, having determined that the award of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record, and being convinced that an extensive written opinion would be of no precedential value, we affirm the award of the Commission pursuant to Rule 84.16(b), V.A.M.R.

All of the Judges concur.


author: BILLINGS, Judge.

text:
    Robert Gene KEENY, Movant-Appellant, v. STATE of Missouri, Respondent (two cases). STATE of Missouri, Respondent, v. Robert Gene KEENY, Appellant.
    Nos. 10941, 10946 and 10361.
    Missouri Court of Appeals, Springfield District En Banc.
    Dec. 26, 1978.
    Nicholas R. Fiorella, Springfield, for mov-ant-appellant in No. 10941.
    Richard T. Martin, Gainesville, for mov-ant-appellant in No. 10946.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent in Nos. 10941, 10946.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent in No. 10361.
    Don M. Henry, West Plains, for appellant in No. 10361.
   BILLINGS, Judge.

No. 10941

Defendant Robert Gene Keeny was convicted of first degree robbery in Bates County in 1966 and sentenced under the Second Offender Act [§ 556.280, RSMo 1969] to 25 years imprisonment. The judgment was affirmed by our Supreme Court in 431 S.W.2d 95 (Mo.1968). Three prior felony convictions formed the basis for the prosecution of defendant as a second offender.

In 1976 defendant filed this proceeding for Writ of Error Coram Nobis in the Circuit Court of Webster County. He contended that the guilty plea which he entered to a felony charge in that court in 1964 was constitutionally infirm, and that the conviction resulting therefrom should not have been used in his prosecution as a second offender. The trial court denied relief and defendant appealed.

No. 10946

By a proceeding brought in the Circuit Court of Oregon County in 1977, defendant sought to invalidate a 1956 Oregon County grand larceny conviction which had followed his guilty plea. The 1956 felony conviction was one of the three used to trigger his prosecution as a second offender in the 1966 robbery trial. Defendant’s application was denied and he appealed.

No. 10361

Defendant was convicted of second degree murder in the Circuit Court of Oregon County in 1975 and appealed. This court adopted an opinion affirming that conviction and denied defendant’s motion for a rehearing. While defendant’s motion to transfer was pending before our Supreme Court, defendant died, and his motion to transfer was ordered stricken because of his death.

Death of Defendant

A certified copy of the certificate of death filed with this court shows defendant died of a heart attack on November 13, 1978, while he was incarcerated in the state penitentiary at Jefferson City. His death abates these appeals. State v. Macklin, 560 S.W.2d 69 (Mo.App.1977); 21 Am.Jur.2d Criminal Law § 608 (1965); 83 A.L.R.2d 864, et seq.; Annot., Criminal Case — Death Pending Appeal (1962).

The appeals are dismissed.

All concur.


text:
    Donald R. CASADA and Kathy Casada, Plaintiffs-Respondents, v. HAMBY EXCAVATING COMPANY, INC., Defendant-Appellant.
    No. 10536.
    Missouri Court of Appeals, Springfield District.
    Dec. 26, 1978.

      James W. Newberry, Schroff, Keeter, Glass & Newberry, P. C., Springfield, for defendant-appellant.
    Charles A. Moon, Springfield, for plaintiffs-respondents.
    Before HOGAN, P. J., STONE, J., and GRIMM, STEELMAN and McHANEY, Special Judges.
   HOGAN, Presiding Judge.

This is a blasting damage case. Plaintiffs have had a verdict and judgment in the amount of $24,970. Defendant appeals.

In briefest sketch, the record shows that in February 1975, defendant was constructing a sewer line in the southwest part of Springfield, Missouri, using ammonium nitrate and dynamite to excavate the trench. By February 18, operations had progressed to a point 130 feet directly east of the plaintiffs’ residence. On that day, defendant’s employees detonated two series of explosive charges at a depth of “approximately seventeen foot.” Apparently, not all the explosive (probably the ammonium nitrate), was detonated on February 18. On February 20, defendant determined that the trench west of plaintiffs’ residence was not deep enough. A small charge of dynamite, “half a stick,” according to Stewart, was placed in a 2-foot hole and covered with “three to four foot” of dirt. Although Stewart did not expect anything untoward to happen, when he “. . . pushed the plunger, there was rock started flying.” “[T]hat time,” Stewart testified, the rock and debris “. . . just all went right straight west.” Being asked if he had any doubt that rock and debris were thrown against plaintiffs’ residence, Stewart straightforwardly replied “No, I heard glass and all.” The order of force of the explosion is illustrated by testimony that a 40-pound rock was thrown 130 feet through the air against plaintiffs’ residence, tore a window, complete with casement, out of the west side of the house and passed through a wall opposite the window into another room.

The only points briefed and argued in this court have to do with the award of damages. Defendant’s first point, as stated, is: “[T]he trial court gave Instructions 4 and 5, offered by plaintiffs over defendant’s objection thereto and refused Instruction “A” offered by defendant. This action was prejudicially erroneous because plaintiffs failed to adduce proof of difference in fair market value of their property sufficient to support submission of that theory of damages to the jury.” This claim of error is in fact a sufficiency point, but the defendant does not contend that the fact or cause of plaintiffs’ damage was not established; it is the sufficiency of plaintiffs’ proof of the a mount of loss to which defendant excepts.

Plaintiffs claimed and presented proof of damage to both real and personal property. Considering first plaintiffs’ proof of damages to personal property, we note that on direct examination, plaintiff Kathy Casada was shown Plaintiffs’ Exhibit 2, two sheets of paper, which Kathy identified as a “list of articles that was damaged in the explosion.” Kathy had prepared the list “the day after” the explosion but had “figured value before and value after at a more recent time.” At the time the list was prepared, Kathy put down “what I gave for it and how old [the particular item] was.” Upon offer of the exhibit, defendant’s counsel objected to the exhibit’s being received “in toto" because it did not “fall within the proper criteria to be an exhibit passed to the jury.” Counsel had no objection to the exhibit’s being used to refresh Kathy’s memory.

As it appears before us, Plaintiffs’ Exhibit 2 consists of two sheets of lined paper, upon which are listed 34 items of personal property. Included are such items as a “Batman Transister [sic] Radio,” pillows, mattress covers, a “74 Indian Motorcycle” and other articles one might expect to find in any middlewestern household. For each item, there is a “price,” a “value before,” an “age” and a “value after.” Five of the items are shown as having some salvage value; the others are shown as having none.

Plaintiff Kathy Casada was shown the list and was asked to “tell the jury each item that was damaged, when you purchased that item, what you paid for it, the condition of it and what it was worth.” Without any preliminary objection, Kathy read the figures from Plaintiffs’ Exhibit 2 to the jury. Upon cross-examination, counsel for defendant asked several questions directed to the basis for Kathy’s opinion. In particular, our attention is called to the following interrogation by defendant’s counsel:

******
“. . . As I understand it then, you made your own judgment. Of course, you knew what you paid. You made your own judgment as to whether there had been a decrease in value just before the occurrence and whatever the decrease was after the occurrence?
A. Yes.
Q. Based on your own personal information and nothing else. Correct?
A. Yes.” (emphasis supplied).
* * * * * *

The objection to plaintiffs’ evidence concerning damage to their realty is that the only witness who gave evidence concerning the value of the Casada residence before the explosion was plaintiff Donald Casada. Mr. Casada testified that he had acquired his residence “approximately six months” before the explosion occurred. The price he agreed to pay was $29,950. Upon direct examination, the following questions were put to Donald:

* * * * * *
“Q. . . . Now on — immediately before this explosion, what did you consider the fair market value of your home — of the home itself, not— A. What we give [sic].
Q. And that was twenty-nine thousand nine hundred and fifty dollars? A. Sure.
Q. And you had made some improvements on it, hadn’t you?
A. Yeah. Oh, trees and shrubs and stuff like this, you know, but it don’t really — no, you know, no big dollar valuation or nothing but it’s [sic] improvements.
Q. You considered it [sic] value just the same? A. Sure.”
* * * * * *

As authority for its contention that there was no substantial evidence of the damage to plaintiffs’ real and personal property, defendant cites one sentence from a single case, Bridgeforth v. Proffitt, 490 S.W.2d 416 (Mo.App.), decided by this court in 1973. In that case, plaintiffs Bridgeforth sued in tort on the ground that defendants negligently allowed fire to escape, causing plaintiffs’ trailer and the contents to burn. This court reviewed plaintiffs’ evidence of damages to personalty and concluded that there was no evidence from which a jury could have found or inferred the fair market value of plaintiffs’ personalty immediately before the fire. In the course of the opinion, we stated “[N]either original cost nor plaintiffs’ subjective opinions as to ‘value’ or ‘worth’ of used articles of personalty may be equated with or substituted for ‘fair market value.’ ” Defendant has seized upon this one sentence as supporting its argument that there was no proof of plaintiffs’ damage here. Certainly the statement of the court applied to the facts of Bridgeforth was apt, but it was not intended as a rigid, inflexible pronouncement applicable to all cases whatever the facts might be, nor was the opinion meant to prescribe the language in which a qualified witness’ opinion must be expressed. Defendant has mistakenly interpreted the opinion.

The point of Mayor, etc., of City of Liberty v. Boggess, 321 S.W.2d 677, 681-682[4—6] (Mo.1959); Bridgeforth v. Proffitt, supra, 490 S.W.2d at 425[13-15]; Langdon v. Koch, 393 S.W.2d 66, 70 (Mo.App.1965), and like precedents is this: ordinarily an owner may testify as to the reasonable value of an item of personalty which has been damaged or destroyed without further qualification. Carnell v. Dairyman’s Supply Company, 421 S.W.2d 775, 779[9] (Mo.1967); Langdon v. Koch, supra, 393 S.W.2d at 70[6]; 3 H. Wigmore, Evidence § 716, p. 56 (Chadbourn Rev. 1970). Further, the owner of a parcel of realty may testify to the value of his land, even though he does not qualify as an expert. Esmar v. Zurich Insurance Co., 485 S.W.2d 417, 423-424[8, 9] (Mo.1972); State ex rel. State Highway Commission v. Northeast Building Company, 421 S.W.2d 297, 301[3] (Mo.1967). The qualification of an owner as a witness to the reasonable value of his property is usually held to rest on the assumption that an owner is familiar with the characteristics of his property, has some acquaintance with its actual and potential uses and some experience in dealing with it. Generally, this competency is assumed whether the property taken or damaged is a parcel of realty, United States v. Sowards, 370 F.2d 87, 92[15] (10th Cir. 1966); Esmar v. Zurich Insurance Co., supra, 485 S.W.2d at 423-424[8, 9]; Shelby County R-IV School District v. Herman, 392 S.W.2d 609, 613 (Mo.1965); 3 H. Wigmore, supra, § 714, p. 50, or a chattel. Langdon v. Koch, supra, 393 S.W.2d at 70[6]; Finn v. Indemnity Co. of America, 297 S.W. 175, 176 (Mo.App.1927); Annot., 37 A.L.R.2d 967, 982-984, § 5 (1954).

Nevertheless,- the owner’s competence is a quality in the nature of a rebut-table presumption, and if it is shown upon a qualifying voir dire or upon cross-examination that the owner in fact lacks knowledge of the value at issue, or that his opinion is based on an improper standard, then a trial court may exclude or strike out the owner’s opinion, and if the opinion is erroneously received, a court on appeal may reverse for want of substantial evidence of damage. Otherwise put, when the foundation for the owner’s opinion collapses, so does the opinion. See: United States v. Sowards, supra, 370 F.2d at 91 (owner’s valuation of land based on location of coal deposit “reflected only a future hope”); Shelby County R-IV School District v. Herman, supra, 392 S.W.2d at 613 (owner attempted to estimate value of a farm based on capitalization of net profits for one year); Langdon v. Koch, supra, 393 S.W.2d at 70 (only knowledge plaintiff had was that her automobile had been previously involved in a wreck). The principle that an owner’s opinion may in fact be wholly without foundation is vividly illustrated by the record itself in Bridgeforth v. Proffitt, supra, 490 S.W.2d 424. There plaintiff testified that he had lost a “record player.” Upon cross-examination, plaintiff was asked the age of the record player. He answered “. . . Approximately seven years of age.” Cross-examination proceeded thus:

* * # * * *
“Q. The valuation that you gave the jury is $250.00? A. Yes sir.
Q. . That had been used seven, eight or nine years. Is that correct? A. Yes, sir.
Q. Had you attended any auctions in the neighborhood where furniture is auctioned off or sold? A. No Sir.
Q. Have you priced record players in a furniture store . . ?
A. Not no used furniture, no.
Q. Do you have any idea as to what this record player would have sold for on the market? A. Today?
Q. On April the 8th, 1970? A. Well no sir, .
Q. Well what I’m talking about, what a seven or eight year old record player would have sold for that had been used on April 8th, 1970. Do you have any idea as to the market value of it?
A. No sir, I do not. (emphasis added).
MR. CLARK: All right, I’ll ask the Court that that ... be stricken and that the jury be instructed to disregard the valuation placed on the record player by this witness.
(discussion off the record)
THE COURT: All right, the objection will be overruled. You may proceed.”
* * * * * *

The foregoing quotation is illustrative; Bridgeforth also claimed damage in the amount of $300 because of the loss of phonograph records — “[J]ust a little bit of everything.” On cross-examination, it was shown that Bridgeforth had used the records nine years; he had attended no sales where used records were sold; he had never “checked” to see what a used record might sell for in a used furniture store, and finally admitted he had no idea what the value of a used record would be if he were trying to sell it. Plaintiff also set a value of $250 upon a used television set, “five or six or seven years” old. Plaintiff was again asked “Do you have any idea as to the market value of a five or six or seven year old, nineteen inch, black and white T.V.?” and he answered “No sir, I don’t.” Defense counsel asked much the same questions and received equally negative answers concerning every chattel claimed to have been lost, and at the close of Bridgeforth’s testimony, moved the trial court to strike plaintiffs’ testimony “concerning the valuation of these items” and to admonish the jury to disregard the valuation. The trial court refused. So, the foundation for the owner’s opinion having been entirely demolished, this court properly concluded “. that there simply was no evidence from which the triers of the facts properly could have found the fair market value of plaintiffs’ personalty immediately before the fire.” Bridgeforth v. Proffitt, supra, 490 S.W.2d at 425. We stand firmly upon what was said there, but it is not controlling on this appeal.

In Bridgeforth, it was effectively demonstrated on cross-examination that the plaintiffs’ opinions were wholly without foundation in fact or experience; in the case at hand, it was shown that plaintiff Kathy Casada’s opinion was only her proper opinion, but that showing was not sufficient to destroy the assumption, or presumption, that she had some special acquaintance with and familiarity with the characteristics and uses of her own personal property. As to plaintiffs’ evidence of the value of their personalty, what was said in Keeton v. Sloan’s Moving and Storage Company, 282 S.W.2d 194, 199[11] (Mo.App.1955), is apt here:

“. . . [A]ny lack of professional experience on the part of [plaintiff] in regard to the valuation of the property affected went only to the weight and not to the competency of her testimony. She was testifying about articles with which she and most housewives are familiar and her testimony was sufficient proof of the value of the goods both before and after [the property was damaged by fire].

See, also, Seyfarth v. St. Louis & Iron Mountain R. R. Co., 52 Mo. 449, 451-452 (1873); State ex rel. Terry v. Ace Storage & Moving Co., 135 S.W.2d 363, 368[9] (Mo.App.1940); Finn v. Indemnity Co. of America, supra, 297 S.W. at 176.

Neither can it be said that plaintiffs’ evidence of value of their residence before the explosion was so wholly lacking in probative value as to be insubstantial. Plaintiff Donald Casada testified that he had been willing to pay $29,950 for the residence approximately six months before the explosion. That was the fair market value of the residence immediately before the explosion. Casada had made some minor improvements on the grounds. Plaintiff Kathy Casada described the property, and photographs introduced in evidence were sufficient to indicate that prior to the explosion and contrary to defendant’s suggestion, the residence had not deteriorated. There was substantial evidence of the value of the residence before the explosion.

It follows that defendant’s first assignment of error is without merit. Instructions 4 and 5 submitted the issue of damages substantially in the language of MAI Nos. 4.02 and 16.02. Defendant’s first assignment of error is not an exception to the form of Instructions 4 and 5, but a complaint that there was no evidence to support their submission. Inasmuch as defendant’s tendered Instruction “A” was an instruction withdrawing the issue of damages to personalty, it also follows that tendered Instruction “A” was properly refused.

Defendant’s second assignment of error is stated as follows: “[T]he trial court gave Instructions 4 and 5, offered by Plaintiffs, over Defendant’s objection and refused Instructions “B”, “C” and “D” offered by Defendant. This action was prejudicially erroneous because the only properly submis-sible theory of damages under the evidence was the cost of repairing plaintiff’s property.” The essence of this complaint is that the trial court should have submitted the cost of repair as the measure of damages, rather than instructing the jury, as it did, that if the jury found for the plaintiffs, then it would award plaintiffs the diminution in the fair market value of plaintiffs’ “residence, contents and automobile” before and after they were damaged. This assignment, in part, rests on defendant’s construction of the evidence. In part, with deference to quite able counsel, it reflects a fundamental misunderstanding of the law governing instructions to juries.

Defendant contends there is no substantial evidence establishing the diminution in the fair market value of plaintiff’s property. We find this argument wholly without merit. Both plaintiffs fixed the reasonable value of their residence before the explosion at $29,950. This represented the sum they had been willing to pay, and had obligated themselves to pay, about 6 months before the residence was damaged. Plaintiff Kathy Casada gave as her opinion that the fair market value of the property after it was damaged was between $3,000 and $3,500. Plaintiff Donald Casada was of the opinion that the fair market value of his property was $29,950 before the explosion, and after some prodding by counsel, testified that the fair market value of the residence after it was damaged was $4,000. As the authorities cited plainly show, an owner of property is ordinarily qualified to give his opinion as to the value of his own property even though he is not a real estate expert. Esmar v. Zurich Insurance Co., supra, 485 S.W.2d at 423-424. It was in no wise demonstrated, either by preliminary voir dire, by cross-examination or by any other means that plaintiffs had used an erroneous method of valuing their property, and their opinions, if they were “advisory” in nature, were nevertheless substantial evidence. It was for the jury to determine the weight and credibility to be given plaintiffs’ opinions. Kirst v. Clarkson Const. Co., 395 S.W.2d 487, 494-495 (Mo.App.1965).

The contention that “one” of the defendant’s three tendered instructions should have been given is likewise without merit. This argument is based on defendant’s construction of the evidence, with which we do not fully agree but shall take as true for the purposes of this opinion. In addition to their own testimony concerning the amount their property had diminished in value as a result of the explosion, plaintiffs had the evidence of a consulting engineer. The engineer testified, in substance, that the only way to restore the Casada residence to its pre-explosion condition would be to “. . . tear the structure down and redo it.” Counsel then asked: “Q. Would that, in your opinion, have been the only way to have put [the Casada] house back into the condition it was immediately prior to the explosion?” The engineer’s answer was “yes.” Plaintiffs also offered a repair “proposal” which indicated the cost of repair would be $12,260.36. There is a controversy between the parties whether the engineer’s testimony touching this repair proposal amounted to a statement that the residence could be restored for $10,000. We do not agree that the engineer’s testimony amounted to an admission that the cost of restoration was $10,000, but it is unnecessary to set forth the testimony word for word. If $10,000 was the cost of repair, the diminution in value greatly exceeded that figure. By the most cheerful of plaintiffs’ estimates, the diminution in value was $24,-950.

Defendant’s tendered Instruction “B” would have advised the jury that if it found for the plaintiffs’ then it would award plaintiffs the reasonable cost of repair of any damage to the residence. Tendered Instruction “C” advised the jury that if it found the issues for the plaintiffs, then it would award plaintiffs the reasonable cost of repair of any damage to plaintiffs’ residence, contents and automobile. Tendered Instruction “D” advised the jury that if it found for the plaintiffs, it would award them: (a) the reasonable cost of repair of the residence plus (b) the diminution in market value of the contents of the residence and the automobile sustained as a result of the explosion.

Instruction “C” was properly refused because there was no evidence of the cost of repair of the contents of the residence or the automobile. As authority for the proposition that Instructions “A” or “C” should have been given, defendant relies on Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158 (1952); Donnell v. Vigus Quarries, Inc., 526 S.W.2d 314, 316-317[5] (Mo.App.1975); and Decker v. J. E. Sieben Const. Co., 492 S.W.2d 155, 157[1] (Mo.App.1973). These authorities, defendant says, “mandate submission of one of defendant’s tendered damage instructions.”

Curtis v. Fruin-Colnon Contracting Co., supra, 363 Mo. at 686, 253 S.W.2d at 164[12], stated the general rule to be that the measure of damages for tortious injury to real property is the difference in fair market value of the property before and after the injury or the cost of restoring the property, whichever is the lesser amount. Such is undoubtedly the general law. D. Dobbs, Remedies § 5.1 (1976). The two other cases cited do indeed repeat what was held in Curtis v. Fruin-Colnon Contracting Co., supra, but they are not controlling here. The language in which the measure of damages is put to a jury is controlled by Rule 70.01(b), which requires giving an applicable Missouri Approved Instruction to the exclusion of any other, if the formulary contains an appropriate instruction. Since September 1,1969, the instruction approved for use in cases involving property damage only has been MAI 4.02, which was given here. True enough, the “Committee’s Comment” to MAI 4.02 notes that in some “rare” cases the cost of repair is the appropriate measure of damages, but the cost of repair is not appropriately stated as the measure of damages when the diminution in value greatly exceeds the cost of restoration. This limitation applies to tortious injury to structures affixed to the plaintiffs’ land, City of Kennett v. Akers, 564 S.W.2d 41, 50[12] (Mo. banc 1978); Gulf, M. & O. R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 104-105 (Mo.App.1949), or to items of personalty. Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39, 43[5] (Mo. banc 1976). Because the diminution in value greatly exceeded the cost of repair in this case, the cost of repair was not plaintiffs’ measure of damages, and the trial court did not err in refusing tendered Instructions “B” and “D”.

The defendant’s final point is that the trial court erred in denying defendant’s motion for new trial because the jury’s award of damages was wholly unsupported by the evidence, was contrary to the evidence, was against the weight of the evidence and was grossly excessive under the evidence. This point is based on the assumption that plaintiffs’ own testimony concerning the reasonable value of their property before and after the explosion cannot be accepted as substantial. That assumption, as we have held, is unwarranted, and we find no merit in the assignment of error. What was said of the plaintiffs’ contention that the verdict was wholly inadequate in Kirst v. Clarkson Const. Co., supra, 395 S.W.2d at 494-495[10, 11][12], is true with respect to the defendant’s contention that the verdict is excessive. The credibility of the witnesses and the weight to be accorded their testimony were matters for the jury. Kirst v. Clarkson Const. Co., supra, 395 S.W.2d at 495[12]. All the evidence considered, the verdict was within the range of values testified to, and we cannot say, in light of the controlling principles, that it was excessive. See DeArmon v. City of St. Louis, 525 S.W.2d 795, 801[10-12][13][14] (Mo.App.1975). For the reasons indicated, the judgment is affirmed.

All of the Judges concur.

      . Defendant’s employee Stewart explained that each charge consisted of a quantity of ammonium nitrate, one capped stick of dynamite, and a “light charge ... to help crack the top.”


author: TITUS, Judge.

text:
    Afton R. MOORE and Alice Moore, Plaintiffs-Appellants, v. ROLLMO CORPORATION, Defendant-Respondent.
    No. 10457.
    Missouri Court of Appeals, Springfield District, Division One.
    Dec. 27, 1978.

      Sherwood R. Volkman, St. Louis, for plaintiffs-appellants.
    Tweedie Fisher, Jefferson City, for defendant-respondent.
   TITUS, Judge.

A husband and wife sued for damages arising from injuries sustained by the husband at defendant’s motel swimming pool on November 14, 1971. Plaintiffs alleged the husband had stepped into a negligently uncovered skimmer hole next to the pool, fallen sideways and struck his head on underwater steps. In reliance on an ambulance attendant’s recastings of the husband’s statements following the incident, defendant asseverated the injuries resulted from the husband’s negligent dive into the shallow end of the pool. The jury’s verdict and the judgment entered thereon were for defendant and plaintiffs appealed.

Initially we note that by plaintiffs’ notice of appeal, they have appealed from the circuit court’s order denying their motion for a new trial which is a nonappeala-ble order. This was error because the appeal should have been from the judgment entered on the verdict. Rule 81.04; §§ 512.020 and 512.050. However, as we attribute to plaintiffs a good faith effort to appeal from the judgment, the notice of appeal shall be so considered. Cox v. Lee, 530 S.W.2d 273, 274[1] (Mo.App.1975); Matter of Estate of Langford, 529 S.W.2d 31, 32[1, 2] (Mo.App.1975); Dors v. Wulff, 522 S.W.2d 325, 326[1] (Mo.App.1975).

Apropos of plaintiffs’ brief on appeal, we observe, sua sponte, that the “Statement of Facts section is written in disregard of the mandate of Rule 84.04(c) which requires: “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a résumé of the testimony of each witness relevant to the points presented." In plaintiffs’ brief the statement of facts does not contain a fair and concise statement relevant to the points relied on but, in chronological order, it simply and erroneously states a summarization of the pleadings and the testimony in the cause. Moreover, included in the statement of facts is a recasting of testimony with no pertinence to any points proffered for appellate determination. This disregard of the rule would warrant an immediate and summary dispatch of the appeal. Graff v. Montileone, 523 S.W.2d 131-132[1, 2] (Mo.App.1975); Bryan v. Bryan, 435 S.W.2d 745, 747-748[2] (Mo.App.1968). Nevertheless, to quiet the cry of “Technicality! ” oft heard of appellate courts, we will consider plaintiffs’ points on their merits where warranted.

Plaintiffs’ first point relates to the trial court’s denial of their “Motion in Li-mine.” In the trial court the motion was to suppress “all evidence by defendant of alleged beer cans and whiskey cans [sic] in the [husband’s motel] room prior to the accident.” However, on appeal plaintiffs describe the motion as being one “to suppress any evidence relating to drinking” which is an obvious expansion of the motion actually made and overruled by the court. A party will not be permitted to successfully claim trial court error on ruling a motion which he amends and dilates only after appeal. State ex rel. State Highway Commission v. DeLisle, 425 S.W.2d 938, 941 (Mo.1968). Furthermore, in the argument section of their brief under this point, plaintiffs assert that defendant’s counsel asked the husband “if he had any alcoholic beverage including beer in any containers, on his person before the accident happened. Objection was made that such question was prejudicial to the plaintiffs’ cause, but was overruled . . . .” The trouble with this argument is that it is not truthful. When the question was asked, albeit plaintiff husband answered, “No, sir”, the court sustained the objection and instructed the jury “to disregard that question and any inference it might have.” Courts do not appreciate nor condone false and misleading arguments whether made deliberately or inadvertently.

The first section of plaintiffs’ second point relied on concerns a jocular remark made by the trial judge to prospective jurors before voir dire examination concerning, in general, the necessity of their sobriety as required by § 494.010. While we perceive no possible error in the remark, it suffices to note that as no mention of the matter was contained in plaintiffs’ new trial motion, it is not available to them on appeal. In re Marriage of Hanners, 549 S.W.2d 941, 942[3] (Mo.App.1977); Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 605-606[5] (Mo.App.1970).

The second part of plaintiffs’ point II and their point III on appeal will be considered together. In substance and in these two points, plaintiffs charge that they were deprived of a fair trial because the trial judge, during a recess and in the absence of counsel, stated to the jury that “plaintiffs’ counsel was not prepared, did not know the rules of the court, and did not know what he was doing,” and because a juror, on voir dire, failed to disclose that she had once (or twice) swam in defendant’s pool and subsequent to verdict declared she could not have voted for a verdict against defendant as she had never “seen the skimmer plate off from the skimmer hole.”

With respect to these grounds for a new trial, the trial judge was vested with the function of the trier of the facts [Donati v. Gualdoni, 358 Mo. 667, 673, 216 S.W.2d 519, 522[11] (1948)], and he was not obliged to accept at face value either the affidavits which accompanied the new trial motion nor the testimony proffered in support thereof. State v. Harris, 428 S.W.2d 497, 501 (Mo.1968).

As regards the alleged statements made by the judge to the jury during a recess on the first day of trial: Plaintiff husband testified that he did not tell his lawyer of this supposed happening until “after the trial” or the “next day” after the occurrence, whereas plaintiff wife testified she related the information to her attorney on the evening of the occurrence at the end of the first day of trial. Aside from the denial of the trial judge and a juror that such statements were made by the court, if the husband’s account was true, it appears exceedingly strange that he would wait until after the trial was completed to report such a grave matter to his lawyer. On the other hand, if the wife’s testimony was accurate, it is inconceivable that counsel would not have entered immediate objections to the judge’s averred remarks rather than waiting to make the accusations in a motion for a new trial. We perceive no error in not granting a new trial on this portion of the motion.

With respect to that part of point III that the juror in question failed to disclose that she had once gone swimming in defendant’s pool, it is enough to observe that no prospective juror was asked that or a similar question on voir dire examination by plaintiffs’ counsel. No such question having been asked, there was no failure of disclosure and plaintiffs cannot now successfully complain of the matter because counsel failed to make proper inquiry. State v. Murray, 316 Mo. 31, 36, 37, 292 S.W. 434, 437[3 and 5] (1926); 50 C.J.S. Juries § 252, pp. 1014-1015.

Plaintiffs’ testimony on the statement attributed by them to the juror are as irreconcilable as their testimony concerning the court’s alleged remarks to the jury, supra. Plaintiff wife swore she overheard the jur- or’s remarks as she was leaving the courtroom with her counsel’s wife “directly behind me and my husband was directly behind her.” To the contrary, plaintiff husband testified the juror’s statement was made when plaintiffs were outside the courtroom—“I was smoking and we were standing around waiting for [our lawyer] to come out.” With such disparities to consider on one hand and the juror’s absolute denial that the remarks attributed to her were ever made, it is not surprising that the trial judge, as the trier of the facts, accepted the juror’s testimony over that of the plaintiffs.

Point IV in plaintiffs’ brief concerns the alleged error of the trial court in sustaining defendant’s objection to the attempt of plaintiffs’ counsel in closing argument to state his opinion concerning the lump sum in damages to which plaintiff husband was entitled. The merits vel non of this point relied on need not be decided. This for the reason that since the matter complained of would bear only on the extent of damages, the verdict for defendant demonstrates the jury never reached the issue of damages and plaintiffs cannot, therefore, be prejudiced by the court’s ruling. Beesley v. Howe, 478 S.W.2d 649, 653[9] (Mo.1972); Merritt v. Mantony, 353 S.W.2d 768, 769 (Mo.1962).

Plaintiffs’ point V asserts: “The totality of errors set forth in Points I through 4 [sic] constitute reversible error.” However, as we have found no error in any point, it necessarily follows there cannot be a totality of errors.

Judgment affirmed.

FLANIGAN, P. J., STONE, J., and CAMPBELL, MOORE and KENNEDY, Special Judges, concur.

      . A skimmer hole was described as an opening affording access to a water surface drainage system of the pool which allows, via a screen, the collection and removal of floating debris.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to Revised Statutes of Missouri, V.A.M.S.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jewell WILLIAMS, Defendant-Appellant.
    No. KCD 29548.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Jeffery L. Alena, Gepford & Sears, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jill Whitley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals her conviction for possession of a Schedule II controlled substance. Defendant raises a narrowly circumscribed issue concerning the seizure of the controlled substance and a claim of plain error in the failure of the prosecutor to make an opening statement in the bench trial.

The first issue, the claim of error with respect to the denial of defendant’s motion to suppress, is upon a very narrow ground. The defendant concedes that the police officers who arrested her were in possession of reliable information that she was carrying a weapon in her purse, and that the officers had probable cause to search the defendant's purse, and that the intrusion of the officers into her purse was lawful. Defendant also concedes that the discovery of the pill bottles by the officers during that search was inadvertent.

The defendant’s claim is that the police seizure of the controlled substances was invalid because they did not have a sufficient factual basis to determine that the substances seized were contraband. The defendant cites Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for the proposition that the incriminating nature of the evidence seized under the plain view doctrine must be immediately apparent. The case law, however, has made it clear that the “immediately apparent” requirement of Coolidge requires only a reasonable basis for the officer’s belief or suspicion that the object is contraband. United States v. Wilson, 524 F.2d 595 (8 Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976); State v. Collett, 542 S.W.2d 783 (Mo. banc 1976); State v. Dayton, 535 S.W.2d 479 (Mo.App.1976).

In this case, at the time of the defendant’s arrest and the search of her purse, the following circumstances existed: when the officer looked into the defendant’s purse, he saw an unusually large bottle, approximately 2 inches by 4 inches. The bottle was transparent and obviously contained a large number of a variety of pills and capsules. Four other containers of pills were also visible, as well as numerous other pills lying loose in the purse. The officer specifically recognized mini-whites, a narcotic with which he had had previous experience, among the pills. The argument of the defendant is that the police must know that the substance is narcotic before they can seize it under plain view doctrine. That position is untenable. Only chemical analysis could give certain knowledge of the nature of the substance.

On the second issue, defendant asserts that the failure of the State to make an opening statement is plain error pursuant to Rule 27.20(c). There is no question that in this bench trial the prosecutor did not make an opening statement. Rule 26.02 and § 546.070 RSMo 1969, provide that the State has the duty of making an opening statement. The purpose of such a statement is to inform the defendant of the nature of the prosecution’s case and to enable the defendant to fairly meet the charges preferred against him. However, when the defendant asserts that error has been committed but not preserved and, therefore, can only be reviewed under Rule 27.20(c), there must be a demonstration of prejudice arising from the error sufficient to result in a manifest injustice or miscarriage of justice. Such a claim of manifest injustice must be supported by some kind of a factual showing. State v. Graham, 527 S.W.2d 936 (Mo.App.1975).

The only prejudice asserted by the defendant under the facts of this case is that she was unable to know the evidence to be presented against her. That conclusion is not supported by the facts of this case. The two officers who testified at the pretrial hearing on the suppression of evidence did not testify in the bench trial which immediately followed the motion, it having been stipulated that the evidence considered on the motion could be considered by the court in connection with the trial. The only significant additional evidence the State introduced was a lab report showing the nature of some of the capsules found in the defendant’s purse. Defendant does not suggest in any fashion that the lack of an opening statement prejudiced the defense she offered, which was lack of knowing possession, nor inhibited any other defense she might have offered. State of Missouri v. David Little, 572 S.W.2d 871 (Mo.App.1978), on analogous facts, finds no prejudice and supports the holding in this ease. There is simply no basis to find manifest injustice justifying reversal under Rule 27.20(c).

Judgment and conviction are affirmed.

All concur.


author: PER CURIAM.

text:
    WM. A. SMITH CONTRACTING CO., INC., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Respondent.
    No. KCD 29554.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Robert A. Babcock, Margolin & Kirwan, Kansas City, for appellant.
    B. Kent Snapp, James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Wm. A. Smith Contracting Co., Inc. (Smith), a Missouri corporation, entered into a written contract with Missouri Pacific Railroad Company (Railroad), also a Mis-soui’i corporation, for the rehabilitation of certain main and auxiliary tracks between Marlin and Waco, Texas. Controversies arising between the parties after Smith completed work on the project have bred a series of litigation.

The first action in this series of litigation commenced on January 21, 1972, when Smith filed a petition for damages for breach of contract against Railroad in the Circuit Court of Jackson County, Missouri. In a motion for summary judgment filed therein Railroad affirmatively alleged that paragraph 24 of the contract constituted an arbitration clause, that the contract was one “evidencing a transaction involving commerce”, and pursuant to the Federal Arbitration Act, Title 9, U.S.C.A., arbitration was Smith’s “sole and exclusive remedy” for resolving all controversies which had arisen between the parties. Prior to any judicial disposition of said breach of contract action filed January 21, 1972, the same was voluntarily dismissed by Smith without prejudice on June 6, 1975.

The second action in this series of litigation commenced on November 21, 1975, when Smith filed a four count petition against Railroad in the Circuit Court of Jackson County, Missouri. By way of Count One Smith sought a declaratory judgment with respect to whether paragraph 24 of the contract was a binding arbitration clause, and, if it was, its “meaning and effect” upon the parties with regard to the controversies which had arisen between them. Counts Two, Three and Four, each pleaded in the alternative, respectively sought a judgment for damages for breach of contract, a judgment for the reasonable value of additional work done and completed pursuant to an oral amendment to the written contract, and a judgment for the amount retained by Railroad under a “1% retention” provision contained in the contract.

Railroad filed a motion for summary judgment on all four counts of the petition in the latest action in the series of litigation, disposition of which resulted in the following judgment being entered: “Judgment is granted in favor of the defendant [Railroad] and against the plaintiff [Smith] on all counts of plaintiff’s petition. Costs against the plaintiff, for which let execution issue.”

Legal requisites of judgments in declaratory judgment actions have been a seldom discussed subject in this state. Those few cases which have done so hold that it is the express duty of a trial court in a declaratory judgment action to make a declaration of the rights of the parties and include such declaration in the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); and Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). Simply put, as applied to this case (assuming for purposes of discussion that the matter was ripe for summary judgment pursuant to Rule 74.04(c)), the trial court was required to declare whether paragraph 24 of the contract constituted an arbitration clause, and, if it did, whether or not it was enforceable in this state as a means of resolving the controversies which had arisen between the parties, and to include such declarations in any judgment purporting to finally dispose of Count One. It is patently clear from the judgment entered in this case that such was not done.

Concomitantly, the above injects the vexing question of whether a final judgment was ever rendered as to Count One (for declaratory judgment), a question which this court is obliged to explore and answer sua sponte in order to determine whether an appeal presently lies. Citizens Ins. Co. of N. J. v. Kansas City, Etc., 543 S.W.2d 532, 534 (Mo.App.1976); and Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo.App.1976). As noted in Citizens Ins. Co. of N. J., 543 S.W.2d at 535, “the circumstances of each case must be considered in determining the finality of the judgment entered below.”

Having concluded that the judgment entered by the trial court as to Count One did not comport with the required content of a declaratory judgment, supra, simple logic compels the attendant conclusion that in this context no final judgment was rendered on Count One. In short, the skeletal judgment which was rendered failed to meet the legally prescribed requisites for judgments in declaratory judgment actions. The infirmity of the judgment as to Count One is triply compounded by the nature of review imposed by summary judgment, the contingent status of alternative Counts Two, Three and Four, and last, but by no means least, the emaciated transcript filed in this appeal. The transcript filed in this case is noteworthy for its sparsity of facts. For example, the contract which is the hub of this litigation was not included, nor the dates when Smith began and completed the work, although Railroad in its motion for summary judgment raised both Texas and Missouri Statutes of Limitations (?) as bars to all four counts of Smith’s petition. Although Railroad’s position in the first action in this series of litigation was that paragraph 24 of the contract constituted an arbitration clause and was binding upon the parties as the “sole and exclusive remedy” for resolving their controversies, it did a complete turnabout in the present action by alternatively alleging at the trial level that (1) paragraph 24 was not an arbitration clause, but (2) in the event it was construed otherwise, it was “not specifically enforceable in Missouri”, Smith had waived any right to enforce arbitration, and the “Contract pursuant to which plaintiff [Smith] seeks to compel arbitration is barred by applicable statutes of limitation. Title 91, Vernon’s Texas Civil Statutes, Articles 5526, 5527 and 5529; and Sections 516.120 and .190, RSMo. (1969).” Aside from a multitude of questions as to the applicability vel non of the Federal Arbitration Act, Title 9, U.S.C.A., the parties, both below and on appeal, anomalous as it may sound, have studiously avoided confronting the issue of whether Texas or Missouri substantive law is applicable and controlling in all other respects. The lean record presented on appeal conjoined with the diametrically opposite positions taken by Railroad with respect to Count One serves to emphasize the absolute necessity in this case of a declaration at the trial level, and inclusion of such in any judgment rendered, as to whether paragraph 24 of the contract com stituted an arbitration clause, and, if it did, whether or not it was enforceable in this state as a means for resolving the controversies which had arisen between the parties. Absent such specificity the purported judgment entered on Count One by the trial court leaves this court totally in the dark as to how the trial court construed paragraph 24, and if it construed it to be an arbitration agreement, as to the even more crucial ancillary question of whether or not it was enforceable in this state as a remedy for settling the controversies which had arisen between the parties.

In the absence of a final judgment as to Count One, it necessarily follows that the summary judgment as to Counts Two, Three and Four alone did not dispose of all the issues presented at the trial level and therefore no final judgment existed within the meaning of Rule 74.01 for purposes of appeal. Anderson v. Metcalf, 300 S.W.2d 377, 378 (Mo.1957); Weir v. Brune, 256 S.W.2d 810, 811 (Mo.1953); and Thielecke v. Munday, 555 S.W.2d 376, 376 (Mo.App.1977).

The appeal herein, being premature, is dismissed.

All concur.

      . Title 9, U.S.C.A. § 2.

      . In this connection, Smith points out that notwithstanding Missouri’s stance against specific enforcement of arbitration agreements, Sec. 435.010, RSMo 1969, Hill v. Seaboard Fire & Marine Insurance Company, 374 S.W.2d 606, 610 (Mo.App.1963), and State v. Craig, 364 S.W.2d 343, 345 (Mo.App.1963), the particular contract in question was one “evidencing a transaction involving commerce” and therefore appeared to be governed by the Federal Arbitration Act, Title 9, U.S.C.A. and, if so, was not subject to the substantive law of the state of Missouri. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); and Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert, granted 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). For purposes of general elucidation Smith quoted at some length from Robert Lawrence, 271 F.2d at 406-07; “We think it is reasonably clear that the Congress intended by the Arbitration Act to create a new body of federal substantive law affecting the validity and interpretation of arbitration agreements. This indicates a congressional intention to rely on the admiralty power . and the commerce power . . . * * * To be sure much of the Act is purely procedural in character and is intended to be applicable only in the federal courts. But Section 2 declaring that arbitration agreements affecting commerce . . are ‘valid, irrevocable, and enforceable’ goes beyond this point [i. e., mere procedure] and must mean that arbitration agreements of this character, previously held by state law to be invalid, revocable or unenforceable are now made ‘valid, irrevocable, and enforceable.’ This is a declaration of national law equally applicable in state or federal courts.” (Emphasis supplied.) Smith also quotes from Prima Paint, 87 S.Ct. at 1804, where the Supreme Court of the United States, in discussing the Federal Arbitration Act, concurred with the Robert Lawrence court, albeit for different reasons, by noting that “this rule — one of ‘national substantive law’ — governs even in the face of a contrary state rule.”