author: WELLIYER, Judge.

text:
    CITY OF RICHMOND HEIGHTS, Missouri and Clayton School District, Appellants, v. BOARD OF EQUALIZATION OF ST. LOUIS COUNTY et al., Respondents. CITY OF RICHMOND HEIGHTS, Missouri, Appellant, v. STATE TAX COMMISSION of Missouri, Respondent.
    No. 61240.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 10, 1979.

      William J. Travis, Donald U. Beimdiek, St. Louis, for appellants City of Richmond Heights, et al.
    Theodore D. Ponfil, Louis F. Bonacorsi, Clayton, for appellant Clayton School Dist.
    Karen Weinhaus Levy, Asst. County Counselor, Thomas W. Wehrle, George Lang, II, Clayton, for respondent Board of Equalization of St. Louis Co., et al., State Tax Comm.
    Samuel C. Ebling, Gregory F. Hoffmann, Millar, Schaeffer & Ebling, St. Louis, for respondent Clayton Road Dev. Co.
   WELLIYER, Judge.

Appellants seek to obtain judicial review of action taken by the St. Louis County Board of Equalization in reducing the assessed valuation of certain property within the city limits of appellant City of Richmond Heights and within the boundaries of appellant Clayton School District. This court has appellate jurisdiction in the case because it involves a construction of the revenue laws of Missouri.

The real estate in question comprises the Westroads Shopping Center and is owned by respondents Clayton Road Development Co., Westroad Development Co., Westroad Realty Co., Andrew Sansone and Jane A. Moore. Respondent Frank J. Antonio, the St. Louis County Assessor, set the combined value of the Westroads Shopping Center properties at $2,703,560.00 for the year of 1974. The property owners filed a combined appeal of the 1974 assessment to the St. Louis County Board of Equalization (hereinafter referred to as the “Board”), which reduced the assessed value of the Westroads Shopping Center properties to $1,851,390.00. As a consequence of this reassessment appellant City of Richmond Heights lost $6,817.37 and appellant Clayton School District lost $31,445.07 in 1974 property tax revenues.

The City of Richmond Heights then filed a petition with the Circuit Court of the County of St. Louis, Division 6 to review the decision of the Board pursuant to § 536.100, RSMo 1978 (Rule 100.03). Appellant Clayton School District was later added as a party plaintiff, and the petition was amended to include an alternative count for certiorari pursuant to § 536.150, RSMo 1978 (Rule 100.08). Upon the trial court’s order, the property owners paid their 1974 taxes, based upon the reduced assessment, into the court registry, and the court stayed all interest and penalties upon any additional taxes ultimately found to be due. The trial court sustained respondents’ motion to dismiss, citing State ex rel. St. Francois County School District R—III v. Lalumondier, 518 S.W.2d 638 (Mo.1975) as its authority. The City and Clayton School District brought this appeal.

In addition to the petition for review and for certiorari, the City also filed an appeal of the Board’s decision with the State Tax Commission. Upon receipt of a written offer of proof submitted by the City, the Commission dismissed the appeal on the ground that the City had no right to appeal. The City appealed the Commission’s action to the Circuit Court of the County of St. Louis, Division 14. The circuit court sustained the Commission’s action. The City appealed. These appeals were consolidated in the court of appeals.

The Missouri Court of Appeals, Eastern District, initially filed an opinion dated November 21, 1978, in which it affirmed the judgment of the circuit court dismissing the proceedings for review filed by appellants, also relying on Lalumondier. This initial opinion reasoned that § 536.100 provides no standing in appellant to seek judicial review of the Board’s assessment because the proceeding before the Board was not a “contested case” within the meaning of § 536.-010(2). The court of appeals withdrew its initial opinion on January 12, 1979, after appellants had filed a motion for rehearing. On January 30, 1979, the court of appeals ordered the case transferred to this court, stating that resolution of the ease requires construction of the revenue laws of Missouri. The transfer order further suggested that the case requires resolution of an apparent conflict in the court’s construction of Mo.Const. art. Y, § 18. We decide the case the same as on original appeal.

The appeal before us raises three questions: (1) does a city have standing under § 138.430 to appeal an assessment by the board of equalization to the State Tax Commission; (2) does a city or school district have standing under § 536.150 to seek review in circuit court of a board of equalization’s assessment of property within its boundaries; and (3) does a city or school district have standing under § 536.100 to seek review in circuit court of a board of equalization’s assessment of property within its boundaries. We answer each of these questions in the negative and the trial court will be affirmed.

I.

Appellant city sought review of the board of equalization’s reduction in the assessment of Westroads Shopping Center properties before the State Tax Commission. The city argued before the Commission and the trial court that § 138.430 gives the city standing to appeal to the commission the Board’s reassessment and that if § 138.430 does not provide such standing, the statute violates Mo.Const. art. X, § 14. We hold that the city has no standing to appeal to the State Tax Commission.

In Lalumondier, the court adopted the rule that “in the absence of express statutory authorization no appeal or other review is provided for political subdivisions of the state in regard to alleged underassess-ments.” 518 S.W.2d at 642. Section 138.-430, RSMo 1978 provides:

Every owner of real property or tangible personal property and every merchant and manufacturer shall have the right of appeal from the local boards of equalization under rules prescribed by the state tax commission. Said commission shall investigate all such appeals and shall correct any assessment which is shown to be unlawful, unfair, improper, arbitrary or capricious.

This provision expressly grants the right of appeal only to owners, merchants and manufacturers. It does not extend the right of appeal to a city or any other political subdivision of the state. The City of Richmond Heights is not an owner of property. The absence of statutory authorization for a city to appeal to the State Tax Commission does not conflict with Mo.Const. art. X, § 14, which provides:

The General Assembly shall establish a commission ... to equalize assessments as between counties and, under such rules as may be prescribed by law, to hear appeals from local boards in individual cases and, upon such appeal, to correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.

This section does not require that the Generally Assembly prescribe any rule permitting a political subdivision of the state to appeal to the State Tax Commission. “[T]he legislature may grant the right of appeal or review of tax assessments to either the taxpayer or the state (or one of its political units), and it may also limit or deny the right to either the taxpayer or the state.” Lalumondier, 518 S.W.2d at 641; In re St. Joseph Lead Company, 352 S.W.2d 656, 659 (Mo.1961). The State Tax Commission correctly dismissed the city’s appeal in this case, and the circuit court correctly upheld the action of the commission.

II.

Appellants amended the original petition to add an alternative count for review by certiorari of the board of equalization’s reassessment directly in circuit court pursuant to § 536.150 RSMo 1978 and Rule 100.08. Our decision in Lalumondier is authority for the denial of this claim.

In Lalumondier, the St. Francois County School District sought review by certiorari under § 536.150 and Rule 100.08 of the failure of the St. Francois County Board of Equalization to increase the assessed valuation of real property which was located within the school district. The owner had not appealed the board of equalization’s assessment. The court examined the language of § 536.150 and concluded that it contained no express authorization for a school district to secure judicial review of the board of equalization’s determination by certiorari. Consequently, the court held that relator did not have standing to seek such review. This reasoning applies with equal force to the city and school district in the present case.

III.

Appellants’ contend that they are entitled to seek judicial review of the board of equalization’s reassessment under § 536.-100 and Rule 100.03. The right to seek judicial review depends upon its express authorization by either a statute or rule. Section 536.100 provides that “[a]ny person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case . shall be entitled to judicial review thereof.” Rule 100.03 contains identical language. There is no dispute concerning appellants’ contentions that they are persons within the meaning of § 536.100, that they are aggrieved by the Board’s decision, and that they have exhausted all administrative remedies. The issue is whether the proceeding before the board of equalization constituted a “contested case” within the meaning of Missouri’s Administrative Procedure Act. Appellants argue that the board of equalization proceeding was a “contested case” “because the Westroads property owners’ interest in lowering their tax assessment was directly opposed to the interest of the County, the City of Richmond Heights and the Clayton School District.” The existence of opposing interests alone fall short of meeting the statutory definition of a “contested case”. The term “contested case” is defined for this purpose at § 536.010(2) to mean “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” In State ex rel. Leggett v. Jensen, 318 S.W.2d 353 (Mo. banc 1958), the court considered this definition of “contested case” in connection with the denial of attorney’s fees by the Superintendent of Insurance. The court stated that “ ‘contested case’ within the meaning of the Act does not mean every case in which there may be a contest about ‘rights, duties or privileges.’ ” Id. at 536; Hunter v. Madden, 565 S.W.2d 456, 459 (Mo.App.1978).

Appellants call attention to the fact that § 138.100.2 requires the St. Louis County Board of Equalization to meet monthly “for the purpose of hearing allegations of erroneous assessments.” Appellants stress the use of the word “hearing” in § 138.100.2 and contend that its use brings board of equalization proceedings within the definition of “contested case” found in § 536.-010(3). We cannot agree. “[T]he meaning of [the term hearing] in a particular case is to be determined by the character of its use either as a participle or a noun.” 39A C.J.S. Hear, p. 632, citing State ex rel. Case v. Seehorn, 283 Mo. 508, 528-29, 223 S.W. 664, 670 (banc 1920). It is apparent that the term “hearing” is used in § 536.010 as a noun, but that it is used in § 138.100.2 as a participle (“hearing allegations”). The grammatical difference suggests a difference of substance. When the term “hearing” is used as a noun, as it is in the definition of “contested case” in § 536.-010(3) the term carries a sense which

presupposes a proceeding before a competent tribunal for the trial of issues between adversary parties, the presentation and consideration of proofs and arguments, and determinative action by the tribunal with respect to the issues; it also requires that the parties be apprised of all evidence offered or considered, with the opportunity to test, examine, explain, or refute such evidence; it contemplates an opportunity to be heard, not only the privilege to be present when the matter is being considered, but the right to present one’s contentions and to support the same by proof and argument. . . . Thus, there is no “hearing” when the party does not know what evidence is offered or considered, and is not given an opportunity to test, explain, or refute.

39A C.J.S. Hear, p. 632-33 (emphasis supplied). That the element of adversity is essential to the meaning of “hearing” as it is used in § 536.010 is underscored by the fact that the word occurs in the definition of “contested case.” Certainly, the term “contest” denotes an adversary proceeding. We conclude that in using the term “hearing” in § 536.010, and in using the term “contested case” in § 536.100, the General Assembly contemplated an adversary proceeding.

The proceeding before the board of equalization is not a hearing in this sense. The Board hears only the evidence of owners as required by § 138.100. There is no provision for notice to the various governmental entities that may benefit from the imposition of taxes calculated on the assessed valuation of property under consideration. There was no notice given the appellants in the instant case, and appellants did not participate in the proceedings before the board of equalization. A board of equalization proceeding thus presents none of the indicia of a contested case. Appellants are in the anomalous position of urging that they have standing to appeal the determination of the Board in a proceeding of which they were not entitled to notice, in which they were not in fact parties or contestants, in which they could not intervene, within which they had no right to present evidence or to be apprised of the evidence presented, and which was not an adversary proceeding. We do not believe that the General Assembly intended the term “hearing” as used in the definition of “contested case” to include a nonadversary proceeding such as that before a county board of equalization.

In Lalumondier, this court said that a county board of equalization acts to represent the interests of a city that delegates to the board the performance of assessment functions. The court noted the failure of the General Assembly to provide for review of alleged underassessments at the request of a governmental subdivision, and explained: “No doubt such was originally omitted on the theory that public officials would adequately protect the interests of the state and its subdivisions and hence it was only necessary to provide an appeal for property owners who considered the valuation of their property to be excessive.” 518 S.W.2d at 643. Provision for review by other political subdivisions would seriously hinder the smooth functioning of an otherwise streamlined procedure for tax assessments. The taxpayer would be subjected to an extended period of uncertainty as to the amount of his tax liability while any entity that might benefit from a higher assessment squabbles with the board over the valuation of the taxpayer’s property. The 1974 assessment of respondent owners’ property in the instant case has been stalled in litigation for over five years, despite the owners’ satisfaction with the Board’s assessment. It is exactly this sort of disruption in the assessment process that the General Assembly sought to avoid. Appellants attempt to distinguish Lalumondier on the ground that the petitioner in that case did not seek review under § 536.100, but proceeded under § 536.150, and that in Lalu-mondier the board of equalization refused to increase an assessment whereas here the Board affirmatively reduced the assessment. We find neither ground persuasive. The reasons moving judgment in Lalumon-dier were independent of which avenue of review was pursued, but rested on the absence of any specific statutory authority giving relator standing: “We have the view that if the General Assembly had intended to provide a review of alleged underassess-ments at the request of a governmental subdivision it would have so provided in Section 138.430(2) which provides for an appeal by property owners.” 518 S.W.2d at 643.

In re St. Joseph Lead, 352 S.W.2d 656 (Mo.1961), is inapposite. In St. Joseph Lead, the property owner appealed the assessment of its property by the county board of equalization to the State Tax Commission. After the State Tax Commission reduced the assessment, the county appealed. This court held that the county was authorized to seek review in circuit court of the findings of the State Tax Commission under § 536.100. Central to the determination that a proceeding before the State Tax Commission constitutes a contested case is the fact that § 138.470.4 expressly states that actions of the State Tax Commission shall be “subject ... to review in the manner provided in sections 536.100 to 536.-140, RSMo.” There is no comparable statute providing that actions of a local board of equalization shall be reviewed as provided in §§ 536.100 to 536.140. Appellants draw two analogies between St. Joseph Lead and the instant case: that there was an affirmative reduction in the assessment by the administrative body and that the county in St. Joseph Lead sought review under § 536.100. Neither analogy is relevant to the question whether appellants have standing in the present case. The distinction of overriding importance between St. Joseph Lead and the instant case is that St. Joseph Lead represented an attempt by the county to appeal from the level of the State Tax Commission and not from the level of the board of equalization. It was the property owner, not the county, that initially appealed the assessment of the board of equalization to the State Tax Commission. The statutory definition of “contested case” must be applied to the specific type of administrative proceeding sought to be reviewed. A hearing before the State Tax Commission is an adversary “hearing” within the definition of “contested case” in § 536.010 because “all persons affected, or liable to be affected by review of said assessments thus provided for, may appear and be heard at said hearing.” § 138.470.1 RSMo (1978).

Appellants question whether it is sensible to construe the relevant statutes to make the board of equalization but not the State Tax Commission a court of last resort when the Board is a “less sophisticated body” than the commission. The answer lies in the fact that a board of equalization represents the interests of taxing jurisdictions such as appellants in proceedings before it. A local board of equalization, unlike the State Tax Commission, has an interest in maintaining the local tax base. Lalumondier, 518 S.W.2d at 643. However, once a case comes before the State Tax Commission, the interests of local taxing jurisdictions are no longer represented by the decision-making body. “[I]n this proceeding the [State Tax Commission] acted in its appellate quasi-judicial capacity . and the contest is between the St. Joseph Lead Company and St. Francois County.” St. Joseph Lead, 352 S.W.2d at 661. This difference justifies the General Assembly’s provision for appeal by political subdivisions from the State Tax Commission but not from a county board of equalization.

IV.

The court of appeals in its order to transfer suggested that there is a conflict between the interpretation given Mo.Const. art. V, § 18 in Lalumondier and in St. Joseph Lead. Article V, § 18 of the Missouri Constitution provides in relevant part: determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.

All final decisions, findings, rules and orders on [sic] any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the

In St. Joseph Lead the court said that the use of the words “private rights” in art. V, § 18 “was not necessarily intended as a limitation or restriction on the legislative power to provide for judicial review of ‘public rights’ upon the initiative of an appropriate ‘public body.’ ” 352 S.W.2d at 661. In Lalumondier the court considered the language of both art. V, § 18, and § 536.150, and concluded: “We do not think that the right, if any, of relator [school district to seek review by certiorari of an alleged un-derassessment by the county board of equalization] in this case is encompassed within either of the quoted provisions.” 518 S.W.2d at 643. The court in Lalumondier recognized that the legislature could provide for review of public rights as well as of private rights. If the court had read art. V, § 18 to preclude judicial review of public rights, it would have been unnecessary to consider whether § 536.150 purported to permit such review. Moreover, Lalumondier cited St. Joseph Lead for the proposition that the legislature may grant or deny the right of review of tax assessments to either the taxpayer or the state. Id. at 641. Finally, Lalumondier acknowledged the power of the legislature to provide for review of public rights in suggesting “it may be that the legislature should review the matter and give consideration to an appropriate amendment of the section [536.-150].” Id. at 643. We find no incompatibility in the holdings of Lalumondier and St. Joseph Lead.

We find no express statutory authorization for a city or school district to obtain review of a decision of the county board of equalization reducing an assessment of the real estate of a taxpayer. We affirm the judgment of the trial court.

BARDGETT, C. J., DONNELLY, REND-LEN, SEILER, JJ., WELBORN, Special Judge, and FINCH, Senior Judge, concur.

MORGAN, J., not sitting.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . In Lalumondier, the school district abandoned a similar claim. The court noted:
      It appears in the transcript that relator appealed this decision to the state tax commission but that the commission dismissed the appeal for the reason that the statute only provides a right of appeal to a property owner. While the correctness of that action is only incidentally before us we think it is appropriate to say that we agree therewith because such was in accord with the express statutory provision.
      518 S.W.2d at 641.

      . Appellants appear to have abandoned this claim in their briefs on appeal in favor of pressing their count for review under § 536.100 at Rule 100.03. Appellants recognized that if the board of equalization proceeding were a contested case under § 536.100, then “[t]he certio-rari provisions of § 536.150 cannot apply because the two statutes are mutually exclusive.”

      . In the Board’s initial notice to owner Clayton Road Development Co. denying its appeal from the county assessor’s valuation, the Board referred to its upcoming session as a “hearing,” and advised the owner that it should present additional evidence then. This reference does not satisfy the requirement of a hearing within the definition of contested case in § 536.010(2) because .010 contemplates an adversary hearing whereas in reassessment proceedings before a county board of equalization, it is the board itself that represents the interests of local governmental entities. Lalumondier, 518 S.W.2d at 643.

      . The court in St. Joseph Lead found that the county’s right of appeal from the state tax commission under § 536.100 was “indubitably established” by the fact that 1957 amendments to § 138.470.4 substituted the quoted language for the words “subject ... to the provisions of section 22, article V of the Constitution of Missouri and laws enacted thereunder.” St. Joseph Lead, 352 S.W.2d at 660.

      . Prior to amendments in 1976, this section of the Missouri Constitution was section 22 of Article V.


source: Caselaw Access Project

author: MORGAN, Judge. BARDGETT, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Wilbert HUNTER, Appellant.
    No. 61207.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 10, 1979.

      Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for respondent.
   MORGAN, Judge.

Charged as a second offender, appellant was tried to a jury and found guilty of stealing property of a value of $50 or more, § 560.156, RSMo 1969 and § 560.161, RSMo Cum.Supp.1975, and the court assessed punishment at five years imprisonment. On appeal, the Eastern District of the Court of Appeals affirmed in an opinion authored by Stephan, J.; and, although we agreed with the opinion as written and the result reached therein, transfer of the cause to this court was ordered for reasons which hereinafter become readily apparent.

The only contested factual issue before the jury was whether or not the property stolen had a value of less than $50 or $50 or more, /. e., the distinction between a misdemeanor and a felony under those portions of the “stealing” statutes relevant to this case. Note 4 of the “Notes on Use” to MAI-CR 7.70 provided that:

If the offense is submitted as a felony for the stealing of property of the value of at least $50 and if there is any doubt that the value exceeds that amount, the stealing of property of the value of less than $50 can be submitted as a misdemeanor and as a lesser included offense.

In compliance therewith, separate instructions were given with each containing the statutory range of permissible punishments. The jury obviously resolved that the property stolen had a value of at least $50 and found appellant guilty of a felony for which it set punishment at confinement for one year in the St. Louis Medium Security Institution. Thereafter, the trial court, acting under the Second Offender Act, assessed the five year sentence noted — a result not unanticipated by the Committee on Criminal Pattern Instructions or this court as Note 3(d) to MAI-CR 2.04 specifically addresses a situation in which a defendant subject to the Second Offender Act may be found guilty of either a felony or misdemeanor and provides, in part, that:

The verdict directing instructions for the state will include all ranges and types of punishment permitted as to each defendant and each offense. If the jury convicts of any felony and assesses the punishment, its assessment will be considered as surplusage or merely advisory, and the court will proceed to fix the punishment. If the jury convicts of the misdemeanor, its assessment of the punishment will stand.

(Emphasis added.)

Appellant contends that inclusion of the range of punishment in the felony instruction misled the jury to believe he would serve only the time it assessed; and, that such “deception” denied him the right to a trial by jury on the issue of guilt under the sixth and fourteenth amendments to the United States Constitution and Article I, §§ 18(a) and 22(a) of the Missouri Constitution.

The court of appeals, after first observing that the trial court had adhered strictly to the “clear” directive of Note 3(d) to MAI-CR 2.04, rejected appellant’s argument by holding that:

In this case, the jury’s assessment of punishment at one year confinement was, at best, “merely advisory,” and no constitutional right of defendant was violated by the fact that the trial court determined the sentence as mandated by § 556.280. The constitutional right to trial by jury in a felony case does not extend to the issue of punishment. State v. Daugherty, 484 S.W.2d 236 (Mo.1972); State v. Morton, 338 S.W.2d 858 (Mo.1960); Payne v. Nash, 327 F.2d 197 (8th Cir. 1964). However, defendant argues further that the inclusion of the permissible range of punishment in the instruction which submitted the felony somehow misled the jury and prejudiced defendant’s rights. We see no logic in this argument. On the contrary, it would seem far more likely to induce confusion in the minds of jurors to instruct them as to the permissible punishment range for the misdemeanor but fail to mention it in connection with the felony. Furthermore, the question of punishment is, under the terms of MAI-CR 7.70, addressed by the jury only after a determination of guilt is reached. We, therefore, fail to see how a jury’s view of its role in deciding the former question could be said to hinder or bias its determination of the latter. See State v. Wade, [306 Mo. 457,] 268 S.W. 52, 56 (1924), where it was held that, because punishment under the statute in question was at the discretion of the trial court, “It made no difference what the jury was told concerning the range of punishment or what punishment it fixed in its verdict finding defendant guilty.” See also State v. Volz, 269 Mo. 194, 190 S.W. 307 (1916).

Because the appellant, by a supplemental brief filed in this court, has focused his arguments now more on a true “concept of jury nullification,” we consider the same further, even though he concedes that he has no constitutional right to have a jury assess his punishment. He claims that the jury in this case likely believed that it did not need to “stand up to the court” with a verdict contrary to the law since it could control the harshness of the sentence within the range set forth in the instruction. The extension of appellant’s argument is that the jury might have acquitted him on the felony count had the members known the judge could increase the sentence.

Jury nullification is at best a collateral consideration in this case. It is enough to say that while courts recognize that jury nullification may occur from time to time, the practice is not encouraged in either Missouri or federal courts. This state uses pattern instructions in criminal and civil cases. No instruction on jury nullification exists, and no case can be found in Missouri where such an instruction was sanctioned. The issue was settled by the United States Supreme Court in Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), which affirmed the right and duty of the judge to instruct on the law. Moreover, only two states still allow the jury to be told that it can disregard the law as given it by the court. See also United States v. Dougherty, 154 U.S.App. D.C. 76, 473 F.2d 1113 (D.C.Cir.1972); United States v. Spock, 416 F.2d 165 (1st Cir. 1969); and United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). Because no constitutional basis exists for nullification, none can be found in appellant’s claim here that he was denied his right to trial by jury.

That the jury could have been misled by the felony instruction as to its power to assess punishment is difficult to deny. The harmful effect of the instruction, however, is subject to greater debate. Under the facts of this case, no prejudice to appellant is found. The question of guilt was to be determined first, under the terms of MAI-CR 7.70. Punishment was to be determined only if appellant were found guilty beyond a reasonable doubt. While it may be within reason that a jury might consider the punishment concurrently with guilt, such reasoning does not compel the conclusion that a jury would decide to convict on a felony submission, not on the basis of guilt, but on the basis that it could control the assessment of punishment. The jury in the instant case not only had the options of finding appellant guilty or not guilty of two separate crimes, it also had a variety of punishments from which to choose. Had the jury found appellant guilty of the misdemeanor, it could have assessed a punishment identical to the one it assessed for the felony charge. However, a jury is presumed to have followed the court’s instructions, State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65 (1938), and in this case it would appear that the jury did just that. There is no reason to believe other than that the jury was convinced beyond a reasonable doubt that appellant was guilty of stealing property of a value of at least $50. This belief is bolstered by the fact that the jury had the other options which it is presumed to have eliminated in arriving at the verdict. Having reached this verdict, punishment was assessed. This court cannot find prejudice to this appellant on the basis of speculation, as appellant has urged, as to the jury’s inclination toward nullification. To do so would have us believe that the jury not only ignored the instructions but focused on punishment rather than guilt.

In affirming this conviction, it is appropriate to note that an analogous sentencing procedure has been established under the new criminal code, §§ 558.016 and 558.021, RSMo 1978, and the new criminal instructions, tentatively approved by this court on January 1, 1979. See e. g., MAI-CR2d 24.-02.1 Stealing: Without Consent — One Transaction. Under this new scheme, as before, the court decides the duration of the sentence. The jury’s role is to set the maximum sentence within the range statutorily permitted. The only circumstances in which a judge can increase the jury’s sentence are when the term fixed by the jury is less than the lowest authorized term and when the defendant is found to be a persistent or dangerous offender.

Although no prejudice to appellant occurred in this case and no prejudice is easily foreseeable from the giving of this type of instruction in other cases, amendment of the new instructions may be in order to avoid any confusion. The sole argument, suggested by the parties to justify the current wording of instructions which tell a jury that it assesses the punishment when it doesn’t, is the idea that the absence thereof would be distractive. Perhaps the jury should be informed that its role in sentencing, under some circumstances, is merely advisory. The Committee on Pattern Criminal Charges and Instructions is requested hereby to review the applicable instructions in light of the views set forth in this opinion.

The judgment is affirmed.

DONNELLY, RENDLEN and WELLIVER, JJ., and FINCH, Senior Judge, concur.

BARDGETT, C. J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, C. J.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

BARDGETT, Judge,

dissenting.

I respectfully dissent.

As pointed out in the principal opinion, the trial court instructed the jury as required by MAI-CR 2.04, Note 3(d), with reference to the assessment of punishment for the felony of stealing over $50.00. In my opinion this Court erred in causing and allowing an instruction to be given to a jury which tells the jury it “will fix” the defendant’s punishment within certain limits, when such action by the jury is to be treated as mere surplusage if the punishment attends a jury conviction of a felony under the former second offender act.

It is clear that the jury was incorrectly instructed but that, under the instruction given, the jury justifiably believed it had the power to assess punishment whether the conviction was for stealing under $50.00 (a misdemeanor) or over $50.00 (a felony). The assessment of punishment by the jury of one year for the offense of stealing over $50.00 was within the statutory limits and, ordinarily, the court would have no power whatever to increase such a punishment. See sections 546.410-546.450 RSMo 1969. Although the principal opinion states that the jury’s assessment of punishment was, at best, merely advisory, the point is that the jury did not know that and must have believed its assessment of punishment— whether on conviction of stealing over $50.00 or under $50.00 — would have the same efficacy.

So, it cannot be doubted that the jury was incorrectly instructed and, in effect, told it could do something that the law did not permit. We do not know, of course, what was said in the jury room or how they went about arriving at their verdict and punishment. Nevertheless, we know from our experience in the trial of cases as lawyers and judges that the amount of punishment a defendant may receive is often more important to the defendant and the prosecutor than the stigma attached to the conviction itself. And many convictions on pleas of guilty have been set aside for failure to fully apprise a defendant of the range of punishment.

Here the defendant testified that he did steal at least four lengths of pipe. The questions for the jury were how much did he steal and what should the punishment be. Juries have the power to compromise in arriving at a total verdict and a verdict in a criminal case is final whether or not there are compromises in the jury room. That compromise will often involve an adjustment of views on punishment when the jury is told it has a broad range within which to work.

By the verdict in this case we know the jury believed defendant should be punished by one year in jail. Would the jury have found defendant guilty of the felony had it known that the one year was merely advisory when assessed for a felony but final as the maximum that defendant could serve if assessed for the misdemeanor? Of course I do not know the answer but my opinion is that, had it known the truth, the jurors would have adjusted their views so as to return a verdict of guilty of the misdemeanor. That is, admittedly, speculation, but no more speculation than to suppose the incorrect information in the instruction did not cause or allow a miscarriage of justice to occur.

At the behest of trial courts and the bar, this court appointed a committee of knowledgeable lawyers and judges and assigned them the task of formulating criminal instructions and notes as to their use. The court then approved them and mandated their use. We should recognize that when put into practice instructions and notes may be incorrect or bring about unjust situations, as here. When that happens, we should stand ready to correct the injustice and change the instructions and notes.

In my opinion the defendant was prejudiced because the jury was led to believe it had power to sentence for the felony. This gave the jury the impression that it had an alternative which, in law, it did not. The error can be corrected by vacating the five-year sentence and remanding the case to the circuit court for sentencing within that permitted by § 560.161(2), but not to exceed the one year set by the jury.

I would also strike Note 3(d) of MAI-CR 2.04 and require that the jury be informed of the punishments available on the felony conviction and told that the court, not the jury, would assess punishment if the conviction is for the felony.

I would, therefore, affirm the judgment of conviction but vacate the judge-imposed sentence of five years imprisonment and remand the cause to the judge for re-sentencing within the limits set by 560.161(2) RSMo Supp.1975, but not to exceed the jury assessment of one year in jail.

I therefore dissent.

      . The Second Offender Act, § 556.280, RSMo 1969, was repealed as shown at p. 685, Laws of Mo. 1977; but see § 558.016 of the new Criminal Code, which became effective January 1, 1979, reference “Extended terms for dangerous offenders.”

      . Felony:

      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on January 9, 1977, in the City of St. Louis, State of Missouri, the defendant took fifteen pieces of pipe owned by J. Sheehan Plumbing Company, and
      Second, that the property taken was of the combined value of at least $50, and
      Third, that the property was taken by the defendant with the intent to permanently deprive J. Sheehan Plumbing Company of the use of such property and to convert it to the use of the defendant, and
      Fourth, that the property was taken by the defendant without the consent of the owner, then you will find the defendant guilty of stealing property of the value of at least $50.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.
      If you find the defendant guilty of stealing property of the value of at least $50, then you will fix his punishment:
      1. By imprisonment by the Department of Corrections for a term fixed by you, but not less than two nor more than ten years, or
      2. By confinement in the St. Louis Medium Security Institution for a term fixed by you, but not to exceed one year, or
      3. By a fine fixed by you, but not more than $1,000, or
      4. By both such fine and confinement in the St. Louis Medium Security Institution.

        Misdemeanor: To avoid obvious repetition, we note only a portion of the latter, to-wit:
      If you find the defendant guilty of stealing property of the value of under $50, then you will fix his punishment:
      1. By confinement in the St. Louis Medium Security Institution for a term fixed by you, but not to exceed one year, or
      2. By a fine fixed by you, but not more than $1,000, or
      3. By both such fine and confinement in the St. Louis Medium Security Institution.

      . Maryland and Indiana. See, e. g., Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742 (4th Cir. 1967), cert. denied, 389 U.S. 863, 88 S.Ct. 121, 19 L.Ed.2d 131 (1967), and Bridgewater v. State, 153 Ind. 560, 55 N.E. 737 (1889).

      . Historically, cases of jury nullification predominantly involve issues of conscience and morality. Often noted are the acquittal of Peter Zenger of seditious libel and prosecutions under the fugitive slave law. The more recent cases involve acts stemming from protest to the war in Vietnam.


author: FRED L. HENLEY, Senior Judge.

text:
    Marvin L. VAN KIRK, Appellant, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, Missouri, et al., Respondents.
    No. 61170.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 10, 1979.

      Robert L. Shirkey, Kansas City, for appellant.
    Robert B. Thomson, Albert Thomson, Kansas City, for respondents.
   FRED L. HENLEY, Senior Judge.

This case involves an attack by Marvin L. Van Kirk (appellant) on a decision of the Board of Police Commissioners of Kansas City (the board or respondent) by which he was removed from the office of chief of police. Review of that decision by the circuit court of Jackson county resulted in a judgment affirming the board’s action. That judgment was affirmed by the Court of Appeals, Western District, but the case was transferred to this court when a participating judge dissented and certified that the majority opinion is contrary to prior decisions of this court and the court of appeals.

The board appointed appellant chief of police of Kansas City effective January 1, 1977, to serve, as stated in what is now § 84.490, RSMo 1978, “during the pleasure of the board.” The board summarily removed him from office February 7, 1978. He was notified immediately of the board’s action and, upon his request, was given a statement of the reasons for his removal, and a post-decision hearing thereon, all as required by § 84.490, supra. Following this hearing, the board reconfirmed its prior order of removal.

The pleadings filed in circuit court seeking review of the board’s action are (1) appellant’s petition in six counts; (2) respondent’s answer admitting appellant’s appointment to and removal from the office of chief of police, but denying generally all other allegations; (3) appellant’s reply denying all allegations of the answer, except those admitting facts alleged in the petition; and, (4) appellant’s motion for judgment on the pleadings.

Four counts of the petition are in mandamus, seeking review under Rule 100.08. The allegations of these counts are, in general, that the board’s decision should be set aside, because: (1) it failed to exercise its discretion either to remove him as chief of police or demote and thereby continue him in its employment; (2) the board failed to furnish him with the true reasons for its decision and the facts upon which it was based, and should be required to furnish him such reasons and facts; (3) the board failed to produce at its post-decision hearing “any evidence tending to prove any fact * * * relied upon as a reason for the action of the Board * * * and [competent and substantial] evidence of facts tending to show or demonstrate the ‘unfitness’ or ‘lack of merit’ of [appellant]”; (4) the board “acted unlawfully, capriciously and arbitrarily to both remove * * * and * * * demote [him],” and thus failed to exercise its discretion either to remove or demote him.

Another count for review under Rule 100.08 sought certiorari directing the board to certify to the court all records of its proceedings relative to the decision to remove him. We take no further notice of this count, the full record of the proceedings before the board having been filed by agreement of the parties.

The remaining count, seeking review under Rules 100.08 and 100.04 in the event relief was denied on all the other counts, asserts that the board’s order removing him is void and should be set aside for the reason the board, as constituted February 7, 1978, was without power to remove him, because three of its five members previously had forfeited and vacated their respective offices as police commissioners by accepting other places of public trust and the emoluments thereof. See §§ 84.400 and 84.410, RSMo 1978.

As indicated, appellant’s motion for judgment on the pleadings was overruled and, respondent having joined in submission of the case on the pleadings, judgment was entered in favor of respondent. In a memorandum of decision filed with its judgment the court held, in substance, that since appellant held the office of chief of police during the pleasure of the board, he had no contractual or other right to continue to hold the office and could be removed “for any reason or no reason * * *; [that] there is nothing to review as to the [factual] basis for removal * *

We agree with the circuit court. The language of the statute, “The chief of police shall serve during the pleasure of the board,” is susceptible of but one meaning: that any person appointed chief of police of Kansas City serves at the will of the board; that he has no fixed term, nor property right or interest in the office; and that he may be removed by the board with or without cause or reason whenever, in its discretion, it wishes to do so. The only limitation upon this power is that such removal not be in violation of, or in retribution for the exercise of, a constitutionally protected right. Christy v. Petrus, 365 Mo. 1187, 295 5.W.2d 122, 124 (Mo. banc 1956); Williams v. Jones, 562 S.W.2d 391, 395[4, 5] (Mo.App.1978); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578[10], 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Prince v. Bridges, 537 F.2d 1269, 1272[7] (4th Cir. 1976); Patterson v. Ramsey, 413 F.Supp. 523, 531[6, 7] (D.Md.1976), aff’d 552 F.2d 117, 118 (4th Cir. 1977); Ellis v. State Department of Welfare, 285 S.W.2d 634 (Mo. banc 1955). Having determined that appellant’s tenure is committed by law to the sole discretion of the board, our review pursuant to Rule 100.08, is to determine whether, because of the above limitation on the board’s power, its discretion was lawfully exercised. We hold that it was.

Appellant does not contend that his removal was in retribution for the exercise of a constitutionally protected right. He does contend, however, that he has a right to continue in the office of chief of police, a “property right” which, he says, was taken from him without due process of law in violation of Article I, § 10, Missouri Constitution, and § 1 of the Fourteenth Amendment. Because his service is during the pleasure of the board, he has no eonstitu-tionally protected right to the office. The Board of Regents of State Colleges v. Roth, supra; Christy v. Petrus, supra; Bishop v. Wood, 426 U.S. 341, 347[4], 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

Contrary to appellant’s contention, he was removed from the chief’s office in a manner consistent with the procedural provision of § 84.490. Appellant asserts that because this statute requires that he be furnished with the reasons for his removal and a public hearing thereon, he is entitled to have the complete adversarial process, namely: (1) “charges preferred” against him stating “reasons” or grounds for removal; (2) a trial at which the burden would be upon the board to support those reasons with competent and substantial evidence; and (3) a decision based on the evidence heard. He argues from this premise that the statute is converted into one mandating that the chief of police not be removed without “charge” and “proof” of good cause, an untenable argument as well as premise, because appellant serves at the pleasure of the board.

The procedures appellant refers to are provided in the statute applicable to the discharge or removal of a police officer from the Kansas City police force. That section provides that such officer may be removed “only for cause” after charges are preferred and a hearing held. But it does not apply to the removal of the Kansas City chief of police; the legislature, for reason, provided a different, somewhat less time-consuming summary procedure for his removal. This removal procedure recognizes the close relationship between the board and the chief and the highly discretionary nature of the chief’s job. The board is composed of five civic-minded citizens (four commissioners and the mayor) whose functions are, in general, to oversee the police department, determine its policies, and “appoint a chief of police who shall be responsible to the board for the proper execution of the policies, duties and responsibilities established for the administration of the * * department.” Section 84.420, subsection 2(2). In such a relationship, the pleasure of the board is often the standard by which the chief administrative officer is hired and fired. The statute clearly contemplates that the procedure provided have several purposes: it requires that the board first must decide whether to remove; if it decides to remove, the chief shall be furnished with “the reasons for [his] removal * * and a [public] hearing thereon” so that he may attempt to persuade the board that its decision is in error. It prevents his removal for an illegal reason and, perhaps, informs the citizenry why a change was made in the leader of their police department. The procedures provided by § 84.490 do not offend the state or federal constitutions. Bishop v. Wood, supra (426 U.S. at 345, 346, 347, 96 S.Ct. 2074).

There is no dispute that three of the four members of the board appointed by the governor held other places of public trust at the time of their respective appointments in May and December, 1977. Nor is there any dispute that two of these three resigned their other places of public trust before accepting appointment, qualifying and acting as police commissioners, but that they continued to serve in the offices from which they had resigned until September, 1977; that on February 7,1978, the date the board removed appellant, only one of the members of the board still held and accepted the emoluments of the place of public trust she held at the time of her appointment to the board. There is also no dispute that all three participated in the vote to remove appellant, have continued to serve as members of the police board, and that no action has been taken to remove and declare vacant the office as police commissioner of any one of the three.

Appellant’s contention is, of course, that by reason of the above facts these three violated § 84.400 and thereby forfeited and vacated their respective offices as members of the board with the result that the board’s order removing him is void. There is no merit in the contention. These three were at least de facto, if not de jure, members of the board. As such, the act of each in voting to remove appellant is valid, as is the board’s order of removal. State ex rel. City of Republic v. Smith, 345 Mo. 1158, 139 S.W.2d 929, 933-34[5-10] (Mo. banc 1940).

Appellant also contends that because these three police commissioners forfeited and vacated their offices as members of the board, he was deprived of a fair hearing before a fair board and thereby denied due process of law in violation of Art. I, § 10, Missouri Constitution, and the Fourteenth Amendment. This point was not raised or presented in the circuit court. It is raised in this court for the first time. It was not preserved for review.

The judgment is affirmed.

DONNELLY, RENDLEN, SEILER, WELLIVER and MORGAN, JJ., and FINCH, Senior Judge, concur.

BARDGETT, C. J., not sitting.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . Subsection 1 of § 84.490 is as follows:
      “1. The chief of police shall serve during the pleasure of the board. In case the board determines to remove or demote the chief of police, he shall be notified in writing. Within ten days after receipt of such notice, the chief may, in writing, file with the secretary of the board of police commissioners, demand and he shall receive a written statement of the reasons for such removal or demotion, and a hearing thereon at a public meeting of the board within ten days after the chief files such notice. The chief may be suspended from office pending such hearing. The action of the board in suspending, removing or demoting the chief of police shall be final and not subject to review by any court.”

      .The reasons, stated in a letter dated February 8, 1978 from the board to appellant, are as follows:
      “1. You lack the necessary executive and administrative qualifications to be Chief of Police.
      2. You failed to properly communicate your concern over law enforcement matters with members of the community.
      3. You lacked the aggressive leadership needed for the administration of a large metropolitan police force.
      4. You had difficulty in making decisions and, after making those decisions, you had difficulty in properly following through with the execution of those decisions.
      5. You did not properly respond to Board direction.
      6. You improperly employed personnel in command positions.
      7. You failed to properly supervise the department.” '

      . Missouri Supreme Court Rules. See also § 536.150, RSMo 1978.

      . The record and the briefs indicate that appellant has the permanent rank of major in the police department and that no action was taken by the board to alter that status by removing him from the department or police force as distinguished from the office of chief of police.

      . See also § 536.110, RSMo 1978.

      . Section 84.490, supra.

      . Section 84.600, RSMo 1978.


author: STEWART, Judge.

text:
    STATE of Missouri, Respondent, v. Donald WELLS, Appellant.
    No. 38393.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 12, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      John Wm. Buechner, Manchester (on appeal only), for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
   STEWART, Judge.

Defendant appeals from the judgment entered upon a jury verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon.

Defendant contends that the trial court erred in (1) overruling his motion to suppress identification, (2) overruling his objection to cross-examination of character witnesses with respect to defendant’s alleged involvement in another crime, (8) overruling defendant’s objection to cross-examination of defendant with respect to an alleged theft from an interstate shipment, and (4) failing to give an instruction with respect to good character.

We reverse and remand.

Defendant does not challenge the sufficiency of the evidence therefore a brief statement of the facts will suffice.

On July 1, 1975 defendant and another man came into the Sureway Sandwich Shop at about 9:30 PM. There was one waitress on duty. They purchased cokes and gave the waitress two dollars in bills and asked for a roll of nickels so that they could play the pinball machine. The nickels and the money from purchase of the nickels for the pinball machine were kept in the ice box. The waitress went to the ice box, got out the nickels and deposited the bills in a box. The two men played the pinball machine until they left at about 11:00 PM. At about 2:30 AM on July 2 defendant and his companion returned to the sandwich shop. Defendant pulled a gun from his shirt pocket under the vest he was wearing and pointed it at the waitress who was still on duty. Defendant’s companion told her that they wanted the money, "just ... . bills.” She got the money from the cash register and placed it on the counter for him. He then stated that he wanted the money from the ice box, “just the bills." After complying with the demand she was told to go into the back room and stay there for ten minutes. After a short wait in the back room the waitress emerged when she heard a customer come into the shop.

Defendant’s evidence including his own testimony was that he did not go into the sandwich shop on July 1 or July 2.

Defendant first contends that the line-up from which appellant was identified was impermissibly suggestive because defendant was the only person in the line-up wearing some of the clothing consistent with the description of the clothing given by the victim to the police.

The victim had described the person later identified as defendant as a black male with dark complexion, age twenty to twenty-five, height between five feet six inches and five feet eight inches, weight approximately one hundred and forty pounds, wearing a dark brown suede vest, a light blue shirt and dark-colored jeans. When apprehended about three hours after the robbery defendant fit the description except that he was not wearing a shirt. Defendant was placed in the line-up at about 8:00 AM on July 2. He was wearing the clothing in which he had been arrested. In reviewing a photograph of the line-up it appears that the other four persons in the line-up were selected for their resemblance to the defendant in size and physical characteristics. None of the other four was wearing dark trousers and a vest.

The victim selected defendant out of the line-up as the person who held the gun upon her. She also identified defendant at the preliminary hearing held about one month after the robbery. She also made a positive identification in court at the trial.

The criteria for the determination of the admissibility of identification testimony has been given attention recently in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) where the court concluded that the “linchpin” of the determination is reliability and it reiterated the factors to be considered as “[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

In the case before us the victim had the opportunity to view defendant for over one hour on the evening of July 1 while he was drinking coke and playing the pinball machine. When defendant and his companion returned in the early hours of July 2 she had the opportunity of observing defendant for about five minutes. The robbers not only took the time to get the money from the cash register but insisted upon getting the money that they knew was kept in the ice box. The victim testified that her attention was drawn more to defendant than to his companion because defendant was holding the gun upon her. Her description of the defendant was sufficiently accurate so as to lead to his arrest based on the description within hours of the robbery. The witness viewed the line-up at 8:00 AM on the morning of the robbery just five and one-half hours after the holdup. The police made no suggestions as to the identity of defendant as the suspect. She also testified that her identification was based primarily upon defendant’s physical features. Under the totality of the circumstances we cannot say that the identification procedure was so impermissibly suggestive as to lead to irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). For a case almost identical to the case at bar see State v. Carter, 572 S.W.2d 430, 435 (Mo.1978).

Defendant next complains of the cross-examination of his character witnesses. On cross-examination of these witnesses they were asked if they felt that the persons who formed the basis of defendant’s good reputation would have a different opinion if they had been aware that “he was arrested for a theft of interstate shipment by the Federal Authorities.”

Contrary to defendant’s contention we find no error because “[T]he State may cross-examine a character witness with reference to defendant’s prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness.” State v. Siems, 535 S.W.2d 261, 264 (Mo.App.1976). See also State v. Burr, 542 S.W.2d 527 (Mo.App.1976). In the case at bar there was no abuse such as found in Siems and there is evidence that the record of such encounter with the law was available and the question was asked in good faith. We find no error.

The basis of defendant’s next contention arose during the cross-examination of the defendant:

“Q. Let me ask you this, Mr. Wells: Back in 1965 isn’t it a fact that you admitted to a Judge over in the Federal Court that you had committed a theft for an interstate shipment?
A. No.
MR. WALTON: I object to that. He knows that that is a lie, and he is trying to influence the jury.
THE COURT: The objection will be overruled. You may answer, sir.
MR. SINDEL: Let me ask you again:
Q. You are saying that you never admitted to a Judge that you had committed a theft, an interstate theft, back in 1963, in Federal Court, the St. Louis Eastern District Court.
A. I didn’t admit it.
Q. You never admitted to it?
A. No.
Q. Well, what did you do then?
MR. WALTON: I object, Judge, to the question. It implies that the defendant did something.
THE COURT: The objection is sustained in that form.
MR. SINDEL: Q. Do you recall being over in that courtroom.
A. Yes.
Q. And your testimony today is that you never admitted to doing that; is that right?
A. What do you mean?
Q. Did you admit to the Judge that you had committed a theft, is that right?
MR. WALTON: Judge, I object to that as being repetitious. He has already answered that. He has already stated that he didn’t admit to doing anything.
THE COURT: Very well—
MR. WALTON: He has already stated that he has never been convicted of a crime and the prosecutor is trying to implicate him in a crime, that he had committed a crime and he is trying to prejudice the minds of the jury.
THE COURT: All right. The objection will be sustained.
MR. SINDEL: Your Honor, this is proper cross-examination.
THE COURT: It has been covered. It is repetitious.
MR. SINDEL: Q. I just want to understand that you are saying right now that you never admitted to the Judge—
THE COURT: Mr. Sindel, just a moment, sir. This is the exact same question you are attempting in the face of the Court’s ruling on the objection by the defense of persisting, and you know better.
THE COURT: (sic) Now, Judge—
THE COURT: Just a moment, no ‘Judge’ nothing. The objection is sustained.”

The objection first made to this line of questioning came after the question had been answered and was untimely and preserved nothing for review. State v. Damico, 513 S.W.2d 351 (Mo.1974). In addition the objection while difficult to categorize does not apprise the court of any legal reason for the objection. State v. Lang, 515 S.W.2d 507 (Mo.1974).

That objection was overruled and when another question along the same line was asked no objection was made. When the line of questioning was pursued the only objection made was that it was “repetitious.” This objection was sustained.

We also note that the objection raised in the motion for new trial is not an objection made at the trial and is not the contention now made on appeal. A party may not broaden or change the issues on appeal. State v. Gilbert, 544 S.W.2d 595, 598 (Mo.App.1976). The issue is not before us for review.

Nor do we believe that this matter should be reviewed as plain error because it comes within the realm of discretion, as said in State v. Dunn, 577 S.W.2d 649, 653 (Mo.1979):

“. . .a defendant testifying in his own defense may, as a general proposition, be impeached the same as any other witness, nevertheless, a court should, on objection being made, limit certain cross-examination of a defendant where the cross-examination is technically purely collateral as to general credibility and the nature is such as to impair the defendant’s right to a fair trial on the charge brought against him.”

Defendant next contends that the court erred in failing to give MAI CR 2.50 titled “Character of Defendant Bearing on Guilt or Innocence.”

The State brings to our attention the fact that the instruction has not been set out in full in the argument portion of defendant’s brief in violation of Rule 84.-04(e). This is a violation of the rule but we decline to treat it as a failure to preserve the instruction point for appeal. The requirement of 84.04(e) is to enable the court to determine whether the instruction involved was in proper form and correctly stated the law. Here the instruction involved is a MAI-CR pattern instruction which must be given by the court without request if required. Defendant’s point is determined by the Notes on Use not the wording of the instruction. We do not find our review of the case hampered by the violation.

We also note that the Attorney General with commendable fairness has set out the instruction in full in his brief. This satisfies the purpose of the rule as set out in State v. Abram, 537 S.W.2d 408, 411[5] (Mo.1976). The defendant did not request instruction 2.50. However, the Notes on Use require that this instruction be given whether requested or not “whenever necessary.”

The first paragraph of 2.50 reads as follows:

“Evidence has been introduced concerning the reputation of defendant as to those traits of character which ordinarily would be involved in the commission of an offense such as that charged in this case. This evidence was received because a jury may reason that a person of good character as to such traits would not be likely to commit the offense charged against the defendant. Therefore, you should consider such evidence along with all of the other evidence in the case in determining the guilt or innocence of the defendant.”

The instruction is “necessary” when there is substantial evidence to meet the requirement of the instruction “as to those traits of character which ordinarily would be involved in the commission of an offense such as that charged in this case.” To say that one’s reputation is good or that one has a reputation for truthfulness does not require the court to give MAI-CR 2.50. State v. Woodfin, 559 S.W.2d 273, 277 (Mo.App.1977).

In the case at bar defendant called four character witnesses. One of the witnesses testified solely to his reputation for truthfulness. Betty Zienta when asked defendant’s “reputation for truthfulness and honesty in the community” testified that it was “very good.” Louise Roemer testified that he was reported to be “honest and trustworthy.” The court permitted that part of Lorraine Brown’s testimony as to defendant’s reputation for honesty to stand. Gary Hamilton testified that defendant’s reputation for truthfulness and honesty in the community was “excellent.”

Honesty while encompassing truthfulness has a more comprehensive meaning. “Uprightness” is given as a synonym of “honest.” The trait of “uprightness” is said to be “marked by strong moral rectitude.” Websters Third New International Dictionary.

In State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511 (1939), defendant was accused of the crime of grand larceny. The trial court rejected his offer to show his general reputation for honesty and as being a law abiding citizen. It was held that these two traits were relevant to the crime of grand larceny. Robbery is but an aggravated form of larceny. State v. Lasky, 133 S.W.2d 334 (Mo.1939).

We hold that there was substantial evidence of the trait of character ordinarily involved in the crime of robbery and that it was prejudicial error to fail to give MAI-CR 2.50.

The judgment is reversed and remanded for a new trial.

STEPHAN, P. J., and KELLY, J., concur.

      . The contention in the motion for a new trial read: “Counsel’s delving into a prior arrest of defendant and proceedings collateral thereto was highly prejudicial and intended to play on the prejudices of the jury and as such constituted error.


author: SMITH, Judge.

text:
    Theodis BROWN, Plaintiff-Appellant, v. T. D. McNEAL et al., Defendants-Respondents.
    No. 40184.
    Missouri Court of Appeals, Eastern District, Division One.
    June 26, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      London, Greenberg & Fleming, C. John Pleban, Karen C. Moculeski, St. Louis, for plaintiff-appellant.
    Whalen, O’Connor, Danis & Tobben, David 0. Danis, St. Louis, for defendants-respondents.
   SMITH, Judge.

Appellant police officer appeals from the judgment of the trial court affirming the action of the Board of Police Commissioners of the City of St. Louis in discharging appellant for violation of departmental rules.

The appellant was charged in two separate charge sheets of rules violations occurring on two different occasions. The first set of charges arose from actions by the appellant on July 20,1975, in arresting Ronny Neal for peace disturbance without reasonable cause or sufficient evidence and in making conflicting reports concerning the incident. The second set of charges arose from appellant’s actions on November 9, 1975 in which he is charged with having failed to properly investigate and report an assault upon one Connie Johnson and with having failed to prepare a proper report on a threatening phone call to Paul Anderson. The Board found appellant to have been guilty of all four charges and ordered his dismissal on each set of charges. He attacks the sufficiency of the evidence to support the findings on each charge.

The charges involving the Johnson-Anderson occurrences are clearly supported by the evidence. In each case a violation of the law was reported to the appellant and in each case he failed to prepare a police report of the matter contrary to a departmental rule requiring “reports, in conformity with established procedures, on all matters that come to his attention that require reporting.” In each case the appellant had convinced the victim that a report would be useless since the victim could not identify the offender, and each victim had indicated that in that case they wouldn’t make a report. The obligation to report is that of the police officer, not the victim. The evidence also supported the conclusion that appellant did not adequately investigate the Johnson assault.

The Neal charge concerning improper arrest is also fully supported by the evidence. That evidence warranted a conclusion that appellant, while at home, approached from the outside of his house a man who had come to his front door to inquire about purchasing fencing lying at the rear of appellant’s house, and without justification arrested him, initially for trespass and subsequently for peace disturbance. Appellant’s contention that this conduct occurred while he was off-duty and therefore could not furnish a basis for departmental discipline was ruled contrary to his position in Milani v. Miller, 515 S.W.2d 412 (Mo.1974). The departmental rule that “the power to arrest without warrant should be accompanied with prudence and discretion, with enough reasonable cause and supporting evidence to support the charge” applies whether the officer is off duty or on duty when he makes the arrest.

The second charge in the Neal incident involved reports which appellant made concerning that incident, initially on July 20,1975, and thereafter on August 22,1975. The Board found that the reports were “conflicting” but did not make a finding that either was false. The rule which appellant was charged with violating prohibits “false” reports. “Conflicting” and “false” are obviously not synonymous. The Board did not find that appellant made a false report. Its conclusion that appellant violated the rule is not supported by its finding of fact and cannot stand.

Appellant’s contention that he was improperly denied discovery of the department’s internal investigation file has been ruled adversely to appellant in Cox v. McNeal, 577 S.W.2d 881 (Mo.App.1979); Miller v. Whaley, 581 S.W.2d 916 (Mo.App.E.D.1979). See also National Advertising Co. v. State Highway Commission, 549 S.W.2d 536 (Mo.App.1977). There is no merit in the contention.

Appellant also premises error upon the failure of the board to declare a mistrial following certain remarks by the President of the Board during the testimony of a witness. Appellant contends that the remarks demonstrated bias and denied appellant a fair hearing. Although the President’s remarks were inaccurate and regrettable, we do not find that they rose to the level found in Jones v. State Department of Public Health and Welfare, 354 S.W.2d 37 (Mo.App.1962) to warrant a new hearing. Officer Bonney had been called as a witness by the department attorney and his testimony was in part damaging and in part beneficial to appellant. The testimony he presented was largely cumulative. No questioning occurred after the remarks so there is no indication that the question caused the witness to be intimidated or prevented appellant from obtaining any favorable testimony from the witness. The remarks were an isolated incident and the error of the President’s statement was immediately corrected by appellant’s counsel before the Board. We do not find that the remarks demonstrated hostility or bias toward appellant or that they precluded him from a fair hearing.

Judgment of the trial court is reversed as to that portion of Count II of appellant’s petition covering Charge II of Metropolitan Police Department File No. 75/71. In all other respects the judgment of the trial court is affirmed.

WEIER, C. J., and SNYDER, P. J., concur.

      . The section of the rules in which this provision is found apparently relates to official reports. It specifically provides that an official report shall not be prepared on incidents involving officers, on or off duty, by an officer if he is the “victim or participant in any capacity not related to their performance as a police officer.” The reports which form the basis of the complaints against appellant were (1) essentially a witness’ statement on the day of the occurrence and (2) a report to the department during the investigation by the department of the complaints against appellant. This -latter “report” was predominantly an explanation of the earlier report. While we entertain some doubts that the false reporting rule applies to these reports, we need not reach that issue.

      . "QUESTIONS BY COL. McNEAL:

      Q. I have a question, Officer Bonney. You understand, of course, that you are under oath?
      A. Yes, sir.
      Q. Have you had any occasion to discuss your testimony here today previously with Mr. Pleban? [Appellant’s counsel].
      A. No, sir, other than this morning.
      COL. MEHAN: What district are you in now?
      THE WITNESS: I am assigned to the Mobile Division.
      * * * * * *
      Q. (By Mr. Pleban) And as a matter of fact, Officer, you are not down here today at the request of the Department, are you?
      A. No.
      Q. You are down at my request, aren’t you?
      A. Yes.
      Q. And we sat back in the lunch room there this morning?
      A. Yes.
      Q. And we talked about what your involvement was with Connie Johnson?
      A. Yes.
      Q. Did I ever tell you what to say?
      A. No, sir.
      COL. McNEAL: The Officer has perjured himself already. He said he has not discussed it with you.
      MR. PLEBAN: I would like to qualify on that immediately, please. Mr. Reporter, would you read back the Officer’s testimony?
      (Portion of the testimony read.)
      MR. PLEBAN: I am going to move for a mistrial at this time on the basis of the Colonel’s remarks.
      COL. MEHAN: Overruled.
      MR. DANIS: No further questions.
      COL. McNEAL: Nothing further.
      MR. PLEBAN: That is all.
      COL. MEHAN: You can step down.
      (Witness excused.)”


author: REINHARD, Presiding Judge.

text:
    Thomas M. SMITH, Appellant, v. Carolynn R. SMITH, Respondent.
    No. 40085.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Francis L. Ruppert, Clayton, for appellant.
    C. Clifford Schwartz, Robert F. Summers, Summers & Compton, Clayton, for respondent.
   REINHARD, Presiding Judge.

Dissolution of Marriage case wherein petitioner (husband) appeals from an award of maintenance and attorneys’ fees to respondent (wife).

The parties were married in 1959. At the time of the marriage the wife was 19 years old and was employed as a secretary at Ozark Airlines. Husband was 20 years of age and a student at St. Louis University. She continued her employment until their first child was born some 14 months later. Four children were born of the marriage. At the date of trial in December, 1977, their ages were: girl, 17; boy, 15; girl, 12; anda girl, 10.

After the birth of the first child, the wife generally assumed the duties of homemaker. At the time of trial husband was a marketing representative for a company, earning approximately $36,000 to $40,000 per year.

The parties lived in a five or six bedroom house in West St. Louis County. The husband valued it at $128,000, with a loan of $44,000 remaining unpaid. The husband filed suit for separate maintenance in 1976 and sought a temporary restraining order barring wife from their home. This was granted. The petition was subsequently amended asking for dissolution and custody of the minor children. The wife cross-claimed asking for dissolution, custody of children, child support and maintenance.

After a two day hearing the court granted the husband custody of the children and set off to him the marital home including the furniture remaining in the home. The court also awarded the husband a 1973 Ford Station Wagon and a 1977 Chrysler Newport. He was ordered to hold wife harmless for the $44,000 real estate loan and the indebtedness on the Chrysler.

The wife was awarded some furniture, the personal property she had in her possession, and the 1976 Plymouth. She was also awarded the interest in two life insurance policies and approximately $94,000 in stocks and securities which were found to be marital property. The court found approximately $17,000 securities to be her separate property (having been received by gift and inheritance prior to and during the marriage) and then awarded her $500 per month maintenance and $2,500 attorneys’ fees.

On appeal the husband complains only of the award of maintenance and attorneys’ fees. It is the husband’s burden to demonstrate that the total awards for maintenance constituted an abuse of discretion by the court. Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976).

The husband claims that the “wife was awarded sufficient property to provide for her reasonable needs, has not sought employment, nor shown that she is unable to support herself through employment,” and that under § 452.335 RSMo. 1975 Supp. she is not entitled to an award of maintenance. Further, he claims that there was insufficient evidence of her expenses to justify the award.

Husband contends that since wife did not offer her expense and income statements in evidence, there was no evidence to support the award. It is true that those statements were not offered in evidence and therefore not before the trial court for its consideration. (The mere filing of an expense statement does not put it in evidence.) However, there was other evidence of the wife’s expenses before the court which supports the court’s judgment. The wife testified that she did not have funds for her support and that her husband had not provided her with support money. She further testified that she borrowed approximately $11,000 from her parents for her expenses. Exhibit B which establishes expenses in the amount of $538.42 was received in evidence. At the time of the trial, wife was living in an apartment. She tried her case based on the theory that she would receive the home and custody of the children and when husband offered evidence of home expenses, she adopted the same as hers.

The trial court in its order stated that it considered all factors as set forth in § 452.-335 RSMo. 1975 Supp. in awarding maintenance. Section 452.335 (1) permits a court to award maintenance only if the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

In Beckman v. Beckman, 545 S.W.2d 300, 302 (Mo.App.1976) this court held that maintenance is to be allowed to a wife who does not have custody of a child only when she lacks sufficient property including marital property apportioned to her, to provide for her reasonable needs and where she is unable to support herself through appropriate employment. The husband contends that wife was awarded sufficient property to provide for her needs. She was awarded approximately $94,000 income producing marital property and the court determined that approximately $17,000 be given to her as her separate property. It appears that the court attempted to equalize the marital property with the husband receiving the homé and the wife most of the other property.

The fact that she received income producing property rather than the house, does not preclude the court from considering that the income producing property would be depleted by purchase of non-income producing items which are essential for the wife to continue any type of home operation. Obviously, such purchase will be necessary to replace items of this type given to the husband. The award of $500 maintenance was within the evidence as to wife’s reasonable needs taking into consideration the property awarded her.

Husband’s contention that she can support herself also falls short. Husband in his petition for dissolution alleges that on November 12, 1976, the Probate Court entered an order finding wife mentally ill and of such a condition that she lacks capacity to make decisions with respect to the need for hospitalization. He was the petitioner making the request for the order. Most of husband’s case for receiving custody of the children was based upon wife’s mental and emotional problems. The wife denied that she had any mental problems and produced medical testimony to support her position. The court after hearing the evidence on this issue, obviously believed the evidence offered by the husband and granted him custody of the four children. The court could also take this evidence into consideration when it determined the issue of maintenance and the ability of the wife to support herself.

Under the standard of review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we find that the trial court did not abuse its discretion in the award of $500 per month maintenance.

Finally husband contends that the court erred in awarding wife $2,500 attorneys’ fees and costs. He contends that she had sufficient means to prosecute the suit on her own. The evidence showed that the reasonable value of the legal services received by wife was $2,500. Need is a factor to be considered, but not the only factor in awarding attorneys’ fees. Beckman v. Beckman, 545 S.W.2d at 302. We find no abuse of discretion here.

Affirmed.

GUNN and CRIST, JJ., concur.


text:
    Vincent BERARDINO, Appellant, v. GENERAL MOLDING, INC., P.D. George Company, and Federal Meat Company, Employers-Respondents, and Liberty Mutual Insurance Co., Bituminous Casualty Co., Continental Casualty Co., and Commercial Union Insurance Co., and International Insurance Co., Insurers-Respondents.
    No. 41085.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.
    Morris B. Kessler, St. Louis, for appellant.
    John R. Dixon, Evans & Dixon, Frank Lahey, St. Louis, for respondents.
   REINHARD, Presiding Judge.

Employee appeals from an order of the circuit court sustaining the decision of the Labor and Industrial Relations Commission denying his claim for Workmen’s Compensation benefits.

Employee had worked for employer and its predecessors for over 30 years. Employer is generally engaged in the business of manufacturing such products as tropical helmets, duck decoys, automotive parts, rocket nose cones and various other products. Employee filed his claim for compensation alleging that he had contracted a lung disease which was caused by his inhalation and ingestion of “poisonous, noxious, dangerous, hazardous, and deleterious chemicals, minerals, fumes, dusts, gasses or other substances” while in the course of his usual occupation. He therefore alleged that he was entitled to benefits under the “occupational disease” provisions of the Workmen’s Compensation Act.

Both sides presented medical experts with the testimony in conflict as to the employee’s medical condition and its cause. Employee’s two doctors found that his lung condition was caused by the inhalation of asbestos fibers over a long period of time.

The employer’s four medical experts concluded that the employee suffered from lung conditions caused by excessive smoking throughout his adult life. They found no evidence of asbestosis.

Evidence of employee’s exposure to asbestos was presented by employee and Delbert Chrum. Chrum worked for the employer from 1957 to 1973. He testified that he saw 5 or 6 bags of asbestos on a skid and used asbestos one time while working for employer. Employee testified that he had used asbestos products and experimented with asbestos while working for employer.

The President of the employer was a professional engineer. His father founded the company in 1942. The President had been in charge of the company since 1946, but was familiar with the operations of the company from the time of its founding. He was in control of all formulas used in manufacturing the company’s various products, and was in charge of ordering all materials used in the formulas. He testified that no asbestos in any form was ever used by employer, either in products manufactured by employer or experimentally in the development of any product. He also stated that no asbestos was ever purchased by employer. Several other long time employees also testified that asbestos had not been used by the employer. The employer’s formula cards then in existence were produced and not one of these formulas contained asbestos as an ingredient.

The “referee”, now Administrative Law Judge, denied employee’s claim for relief finding that the employee was not exposed to asbestos fibers. He therefore found that the employee failed to prove that his condition of disability was caused by any “occupational hazard.” The Labor and Industrial Relations Commission affirmed the award of the referee denying compensation. Employee sought judicial review in the circuit court which affirmed the commission.

On appeal in a Workmen’s Compensation case, we review the whole record, including legitimate inferences to be drawn therefrom, in a light most favorable to the award of the Commission. We must uphold the decision of the Commission if it is supported by competent and substantial evidence. Tillman v. Wedges Mobile Serv. Station, 565 S.W.2d 653 (Mo.App.1978). The Commission is charged with the responsibility of passing upon the credibility of all witnesses and may disbelieve testimony of a witness though no contradictory or impeaching evidence appears. Peterson v. Central Pattern Co., 562 S.W.2d 153 (Mo.App.1978). In a compensation proceeding, the testimony of any medical witness should be appraised and weighed in its entirety. The Commission’s acceptance between conflicting medical opinions or conclusions cannot be disturbed on review unless conclusions accepted were against the overwhelming weight of evidence. Vogel v. Hall Implement Co., 551 S.W.2d 922 (Mo.App.1977); Stegall v. St. Joseph Lead Co., 465 S.W.2d 855 (Mo.App.1971).

We have examined the record of over 600 pages and have concluded that based on the above standards the Commission’s order is supported by substantial competent evidence. The judgment of the trial court affirming the Commission order is affirmed.

Affirmed.

GUNN and CRIST, JJ., concur.

      . They testified as to other substances contributing to the condition.


author: CRIST, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Irene M. JOHNSON et al., Respondents.
    No. 40276.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.
    Wuestling & James, William F. James, St. Louis, for appellant.
    George R. Gerhard, St. Louis, Stanley Morris, Public Admr., Jackson County, Kansas City, Ralph E. Pratt, Independence, France Fuchs, Arlington Heights, Ill., Daniel W. Brown, St. Louis, for respondents.
   CRIST, Judge.

Declaratory Judgment Action.

Plaintiff, Government Employees Insurance Company, sought from the court below a declaratory judgment that it was not liable under an insurance policy issued to the late Paul Albert Fuchs. The policy had been issued to Fuchs to cover his privately-owned 1967 Plymouth. The policy also provided coverage to Fuchs when he drove a “non-owned automobile,” i. e. an automobile not owned by or furnished for the regular use of Fuchs. Out of this additional coverage, the present suit arises.

Fuchs’s employer provided him with a leased 1972 Chevrolet. Fuchs, on September 13, 1972, drove this company car into a collision with a train. Fuchs and a co-employee were killed. The wife and children of the co-employee claim coverage under the insurance policy issued on the 1967 Plymouth. The trial court found coverage. We reverse and remand.

We are not unmindful of Rule 73.01 as explained by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Nevertheless, the evidence in the record, when considered in light of State Farm Mutual Automobile Insurance Co. v. Western Casualty and Surety Company, 477 S.W.2d 421 (Mo.banc 1972), compels us to disagree with the court below.

The vice-president in charge of sales of Pinkerton Tobacco Company, a subsidiary of Liggett and Myers, Inc., (employer of Fuchs), deposed that although Fuchs was required to sign an agreement to use the car only for business and to allow only employees of the company to ride in it, that agreement was not enforced. In reality, the company’s policy was to allow the private use of the car by Fuchs or his wife at a rate of 3½ cents per mile when Fuchs was not using it to perform his job duties. The car could be used in the western half of Missouri without special permission and outside of the area with special permission. Mrs. Fuchs’s deposition is generally in accord with the deposition of Mr. Ring. It appears from her deposition that Fuchs had almost exclusive use of the company car for business and private uses. Several memo-randa on Pinkerton’s letterhead circulated to employees also imply that personal use of company cars was commonplace.

The issue in this case is whether the company car was furnished to Fuchs for his regular use. In holding it was, we consider the factors set out in State Farm Mutual Automobile Insurance Co. v. Western Casualty and Surety Co., supra. Fuchs had used the car for two months for both business and pleasure. The company permitted him to do so with few limitations. Fuchs commonly had simultaneous use of his 1967 Plymouth as well; this frequent, simultaneous use of the two cars was not in harmony with the objective of the non-owned automobile clause of the insurance policy. Accord, Farmers Insurance Co. v. Morris, 541 S.W.2d 66 (Mo.App.1976).

The judgment of the trial court is reversed and remanded with directions to enter judgment that the policy issued by plaintiff did not cover the collision of Fuchs’s company car with the train on September 13, 1972.

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


author: PER CURIAM.

text:
    Oliver McCLUNG, Clarence McClung, Clara Cannon, Mary Fields, Irvin Lee McClung, and Joseph Lee McClung, Appellants, v. Robinson J. McCLUNG and Ethel McClung, Respondents.
    No. 10930.
    Missouri Court of Appeals, Southern District, Division Three.
    July 26, 1979.
    Motion for Rehearing or to Transfer Denied Aug. 27, 1979.

      Paul McGhee, Dexter, for appellants.
    C. A. Powell, Powell, Ringer & Ringer, Dexter, for respondents.
   PER CURIAM.

The six plaintiffs sued their brother Robinson J. McClung (“Robinson”) and his wife. The petition sought a judgment declaring that Robinson held title to a described tract of land as constructive trustee, it being the position of plaintiffs that they and Robinson each were entitled to an undivided ¼ interest in the land. The petition sought several types of relief including an order requiring defendants to convey to each plaintiff an undivided ½ interest.

The mother of Robinson and the plaintiffs was Leona McClung (“Leona”) and their grandmother was Annie Laura Browning (“Annie”). The land was owned by Annie, who died testate on March 13, 1967, leaving only one child, Leona, who died in 1973. The will of Annie contained bequests of $1.00 to each of the plaintiffs and to Leona. The residue, including the land, was bequeathed to Robinson.

The petition alleged that immediately following Annie’s funeral a family conference was held during the course of which Robinson promised Leona that if she would not institute an action challenging the validity of Annie’s will, he, Robinson, would “hold the land for the use and benefit of plaintiffs and himself and upon the death of Leona would equally divide the land among the seven children of Leona.” The petition further alleged that Leona “did forbear from prosecuting an action to contest said will and surrendered her right to bring such action”; that after Leona’s death plaintiffs demanded “that defendants perform under said contract”; and that the defendants refused to convey to plaintiffs “their part” of the land.

The trial court, sitting without a jury, entered judgment in favor of the defendants. Plaintiffs appeal.

The main “point relied on” advanced by plaintiffs is, in essence, that the judgment of the trial court “is against the weight of the evidence” and that the “persuasive evidence” was that adduced by plaintiffs.

Plaintiffs presented the testimony of four witnesses (three of them were plaintiffs and the fourth was the husband of a plaintiff) who gave somewhat varying accounts of the contents of the statements allegedly made by Robinson at the family conference. None of those witnesses attributed to Robinson the precise statement which the petition attributed to him.

Robinson, his wife (and co-defendant), and his son testified, in essence, that Robinson made no statement of any kind concerning the matter.

The trial court made no express finding concerning the issues of whether Robinson made any statement and, if he made one, what it was. Neither side availed itself of that portion of Rule 73.01(1) which permits counsel to request the court to make findings “on such controverted fact issues as have been specified by counsel.” The rule also provides: “All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.”

“Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo. banc 1976).. A careful review by this court of the transcript in light of the briefs does not produce such “firm belief.”

This court determines that the following circumstances exist and are disposi-tive of this appeal: The judgment of the trial court is reviewable under Rule 73.01, is supported by substantial evidence and is not against the weight of the evidence, and an opinion would have no precedential value.

After the briefs were filed in this court, defendants filed a “Motion to Assess Additional Damages” under Rule 84.19. The motion is denied.

In compliance with Rule 84.16 the judgment is affirmed.

All of the Judges concur except BILLINGS, J., who did not sit or participate in determination of this cause.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R.