author: COOPER, JUDGE.

text:
    Sam COX, t/d/b/a Northside Electric Company, Appellant, v. RUEFF LIGHTING COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Opinion Rendered Oct. 26, 1979.
    As Modified Nov. 2, 1979.
    H. Wesley Shanks, Louisville, for appellant.
    Robert G. Stallings, Thomas G. Karag-eorge, Stallings & Stallings, Louisville, for appellee.
    Before COOPER, LESTER and VANCE, JJ.
   COOPER, JUDGE.

This is an appeal from a final order refusing to set aside a default judgment. See CR 55.02, 60.02.

Appellant, Sam Cox, makes two contentions in support of his argument that the trial court abused its discretion in refusing to set aside the default judgment in favor of appellee, Rueff Lighting Company. First, he argues that he was never properly served with process and second, he argues that he was not personally liable for the debts of Northside Electric Company, a corporation.

Concerning the second argument, the court found that appellant transacted business with appellee on an individual as opposed to a corporate basis. Since the proceedings before the lower court were not transcribed, we must assume the evidence supports such a finding. Porter v. Harper, Ky., 477 S.W.2d 778 (1972). The circuit court opinion discussed in some detail the corporate versus individual liability question. The circuit judge simply found against appellant on that point. We are given nothing sufficient to form a basis for holding that finding to be clearly erroneous; it must therefore be upheld. CR 52.01.

Directing our attention to the long-arm question, we find that appellant was served in accordance with KRS 454.210 because Northside Electric was located in Indiana. As required by the statute, a registered letter containing a summons and complaint was sent to appellant. It was addressed to Sam Cox t/d/b/a Northside Electric Company. The letter was received and opened by Lee J. Fenton, a business associate of the appellant, and, coincidentally, process agent for Northside Electric, Inc. Fenton testified that he thought the letter and its contents were junk mail so he threw them away. Appellant testified that Fenton was authorized to open his mail and that Fenton told him of receiving the letter and throwing it away.

The authorities generally hold that actual notice is not required to effectuate good service under a long-arm statute insofar as due process considerations are concerned. See 6 West’s Federal Practice Manual § 7369, p. 179 (Supp.1978) and citations therein. Also see Milosavljevic v. Brooks, 55 F.R.D. 543 (N.D.Ind.1972). Service of process by registered mail is sufficient to satisfy requirements of due process if it is accomplished in compliance with pertinent statutes. See Yox v. Durgan, 298 F.Supp. 1365 (E.D.Tenn.1969), and citations therein. There is no contention that the statutory procedure was not followed in this case. In White v. Jayne, 313 Ky. 160, 230 S.W.2d 429 (1950), a case involving service under the nonresident motorist statute, the court, although holding that the service of process was not properly achieved in that case, stated clearly in dictum that if the registered letter had in fact been delivered as addressed (it was not) even though the receipt may have been signed by another person residing at that address, the appellant there could not have been heard to complain of improper service. Although not a decisive ruling on point the opinion in White, supra, supports the view that actual notice is not required to effect personal jurisdiction under the Kentucky long-arm statute.

Accepting that in personam jurisdiction can be acquired without actual notice to a defendant does not a fortiori create a rule that a showing of no actual notice may not constitute good cause sufficient to warrant the setting aside of a default judgment. The facts and circumstances of each individual case should be weighed. We think that in a case such as the instant one which is a simple one-on-one action for debt, a trial judge would be hard pressed to refuse to set aside a default judgment if he were truly convinced that the movant had no actual notice in fact and was possessed of an arguably meritorious defense.

Although the proof fails to establish that appellant actually received a copy of the summons and complaint, it does show that he had notice of the registered letter. The fact that Fenton was a corporate process agent is of no legal significance; it does not make the service operative against appellant personally. It does, however, create a credibility issue in a CR 60.02 proceeding when a corporate process agent admits receiving a registered letter from the Secretary of State containing documents revealing the institution of a lawsuit and later testifies that he told the personal defendant whom he knew and to whom the letter was addressed that he opened the letter and discarded it as junk mail.

We believe there was sufficient evidence to establish to a reasonable probability that appellant did have notice or, at the very least, was furnished sufficient information to place him on a kind of inquiry notice to find out about the letter and its contents. Having failed to take available steps which could have protected his interests, appellant cannot be heard now to complain that the trial court abused its discretion in refusing to grant him postjudgment relief. While the circuit judge could have perhaps been more lenient based on the evidence placed before him and the findings he made, we cannot say his ruling against appellant constituted an abuse of discretion.

The order appealed from is affirmed.

All concur.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. BRENTWOOD SCHOOL DISTRICT et al., Relators-Appellants, v. STATE TAX COMMISSION of Missouri et al., Respondents, and Cheshire Motor Hotel, Inc., et al., Intervenors-Respondents.
    No. 61253.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    George J. Bude, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for relators-appellants.
    John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondents.
    Jerome Wallach, Fenton, for intervenors-respondents.
   SEILER, Judge.

Relator school districts contend they are entitled to intervene as parties respondent in tax assessment cases before the State Tax Commission and sought mandamus in the circuit court accordingly. Their petition was dismissed and they have appealed. Jurisdiction over this appeal is doubtful; appellants assert that the Court’s jurisdiction is based upon the need in this case for a construction of the revenue laws, under Mo. Const. art. V, § 3. Respondents contend that the issue presented is a procedural question and that appellants’ assertion of jurisdiction is misplaced, but nonetheless urge the Court to take jurisdiction because of the general interest and importance of the question, as well as the urgency interposed by a delay in tax assessment and distribution of revenue to the appellant school districts. This case was advanced on the Court’s docket on motion and the tax appeal proceedings below were stayed pending the outcome of this appeal. We therefore will retain and decide the case rather than go through the time-consuming procedure of sending the case to the court of appeals and then transferring it back prior to opinion. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972).

Various property owners instituted proceedings before the State Tax Commission to appeal tax assessments for 1977 and 1978 made by the assessor of St. Louis County. These appeals were filed on August 16,1978 and August 24, 1978. On October 25, 1978, the Brentwood, Clayton, Mehlville R-9, and Ritenour School Districts (“school districts”) filed motions to intervene in the tax appeals. On December 11, 1978, the State Tax Commission ruled that the school districts’ motions to intervene were untimely, citing its rule 12 C.S.R. 30-2.050, which requires that motions to intervene be filed within thirty days of the institution of proceedings to review assessments. On December 19, 1978, appellant school districts filed a petition for alternate and absolute writ of mandamus and the circuit court issued the alternative writ of mandamus against the State Tax Commission. After respondents filed their return and motions to quash, relators filed their reply, and following oral arguments, the court quashed its alternative writ of mandamus on February 15, 1979, based upon a finding that the writ was improvidently issued and dismissed the petition.

The writ of mandamus “will not lie to establish a legal right, but its office is to enforce one which has already been established.” State ex rel. Crites v. Short, 351 Mo. 1013, 174 S.W.2d 821, 823 (1943). Unless the school districts have an established legal right to intervene, the circuit court properly quashed its alternate writ of mandamus as improvidently issued.

The school districts allege that they have an unconditional right to intervene in tax assessment appeals before the State Tax Commission because they are “persons affected” under the language in § 138.470.1, RSMo 1978, which states in part:

“The commission, or any member thereof; or any duly authorized agent thereof, as the case may be, shall then and there hear and determine as to the proper assessment of all property and persons mentioned in said notice, and a/7 persons affected, or liable to be affected by review of said assessments thus provided for, may appear and be heard at said hearing. . . ” (emphasis added).

The school districts concede that there is no case law authority to support this reading of the above provision.

In State ex rel. St. Francois County School District R-III v. Lalumondier, 518 S.W.2d 638 (Mo.1975), and again in City of Richmond Heights v. Board of Equalization, 586 S.W.2d 338 (Mo. banc 1979), we held that a school district did not have standing to appeal decisions of the county board of equalization. The Court reasoned in St. Francois County School District R-III:

“We have the view that if the General Assembly had intended to provide a review of alleged underassessments at the request of a governmental subdivision it would have so provided . No doubt such was originally omitted on a theory that public officials would adequately protect the interests of the state and its subdivisions . . . ”

518 S.W.2d at 643. The same reasoning applies in this case. If the General Assembly had intended to grant the school districts the right to intervene in tax assessment appeals, it would have so provided. No d.oubt the General Assembly did not so provide because the school boards’ interests are adequately represented by the county assessor, who is the party respondent under § 138.470.1, RSMo 1978. Moreover, it follows that because a school district does not have sufficient standing to appeal a tax assessment, under St. Francois County School District R-III, it does not have sufficient interests, not otherwise adequately represented, to intervene as of right.

Appellants cite In re St. Joseph Lead Co., 352 S.W.2d 656 (Mo.1961), as authority for their contention that they have an unconditional right to intervene, because the Court referred to “public bodies” in that case. In St. Joseph Lead Co., the Court addressed the question of whether a county may seek judicial review of State Tax Commission findings through the administrative procedure and review statutes. Although the case came before the Court on a petition filed by the county and several school districts, the Court noted that “the county represents whatever interests or rights the several school districts may have had . . ” 352 S.W.2d at 658. The Court recognized that counties properly represent “the state at large and in some measure themselves and other local units of government . . ” and that a contested case before the State Tax Commission is between the taxpayer and the county. Id. at 661.

In the instant case, St. Louis County represents whatever interest or rights the several school districts may have. The case before the State Tax Commission is between the taxpayers and St. Louis County, represented by the county assessor. Had the school districts filed timely motions before the State Tax Commission, the Court would be presented with a different case. For the purposes of this appeal, however, the Court need only consider the claim of the school districts that they have an unconditional right to intervene in cases before the State Tax Commission. We hold that school districts do not have an unconditional right to intervene in such cases.

The school districts also allege that the State Tax Commission’s rule on intervention violates their due process rights to notice and an opportunity to be heard. The school districts cite no cases which establish that political subdivisions are protected by the due process clause. The United States Supreme Court has held that political subdivisions and municipal corporations are creatures of the state and are subject to the state’s will unrestrained by the United States Constitution. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1932). The state supreme courts addressing the issue have held that school districts, as governmental agencies, are not “persons” within the protections of the due process clause. Cronin v. Lindberg, 66 Ill.2d 47, 4 Ill.Dec. 424, 360 N.E.2d 360 (1976); Village of Blaine v. Independent School District No. 12, 272 Minn. 343, 138 N.W.2d 32 (1965); and, Lincoln Township School District v. Redfield Consolidated School District, 226 Iowa 298, 283 N.W. 881 (1939). But see School District No. 23 v. School Planning Committee, 146 Colo. 241, 361 P.2d 360 (1961) (school district property cannot be taken without due process of law). We hold that school districts, as creatures of the state established to perform governmental functions, are not persons within the protections of the due process clause and cannot charge the state with violations of due process.

Because the school districts did not have an unconditional right to intervene, the circuit court properly quashed its alternate writ of mandamus as improvidently granted. The judgment of the circuit court is affirmed.

BARDGETT, C. J., DONNELLY, REND-LEN and WELLIVER, 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.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Michael Steven BRADLEY, Appellant.
    No. 40467.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Robert C. Babione, Public Defender, James Porter, Asst. Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean R. Hoag, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of the offense of stealing from a dwelling. Sections 560.156, 560.161 RSMo Supp.1975. He was sentenced by the court under the Second Offender Act to serve a term of eight years in the Department of Corrections.

The amended information charged in Count I that defendant “did feloniously and burglariously, forcibly break and enter a dwelling house and building located at 5577 Lindell Boulevard, the property of . contrary to Sections 560.045, 560.095, RSMo. . . . ” In Count II it was alleged that defendant did “unlawfully and feloniously then and there steal, take and carry away personal property; to-wit, various art objects and antiques, . . . then and there being in a certain dwelling house occupied by the said . . . contrary to the form of the statutes in such case made and provided . . . to-wit: §§ 560.156, 560.161. ...”

The state presented evidence that certain personal property was stolen from the house of one Theresa Vollmer. At the close of the evidence the court refused to submit an instruction to the jury on Count I, the burglary charge.

On appeal, defendant contends that the court erred in dismissing the burglary charge without dismissing the stealing charge. He makes no complaint as to the sufficiency of the evidence. He bases his complaint on Section 560.110, RSMo 1969 which provides that if a person in committing a burglary shall also steal, he may be prosecuted for both offenses either in the same count or in separate counts. A defendant charged with burglary and stealing under this statute can only be convicted of stealing if he is also found guilty of a burglary. State v. Cline, 447 S.W.2d 538 (Mo. banc 1969) cert. denied 398 U.S. 910, 90 S.Ct. 1706, 26 L.Ed.2d 71 (1970). The defendant contends that the judge’s action in failing to submit the issue to the jury on the burglary in effect acquitted him on that charge. He then relies on State v. Cline, supra, and other authority contending that the court also should have dismissed the stealing charge. However, defendant’s point is refuted by State v. Cline, supra. The Supreme Court therein said that a prosecutor may, in his discretion, prosecute the stealing offense separately under the appropriate statutes. The amended information charged the defendant with stealing from a dwelling house, under Sections 560.-156 and 560.161. Not only did it specify a separate crime by alleging that defendant stole from a dwelling house, it specified the statute by number. Under the information, the court properly submitted to the jury the charge of stealing.

Defendant’s contention that the sentence is excessive is without merit. Under Sections 560.156 and 560.161, stealing from a dwelling house is punishable by a maximum sentence of ten years. Defendant’s sentence of eight years is therefore, not excessive.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: CLARK, Judge.

text:
    STATE of Missouri, Respondent, v. Gerald W. SIVILS, Appellant.
    No. KCD 30068.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.

      Lee M. Nation, Asst. Public Defender, Charles A. Gallipeau, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

Gerald W. Sivils was tried before a jury which found him guilty of manslaughter and assessed his punishment at a term of ten years. Judgment and sentence were entered by the trial court in accordance with the verdict.

On this appeal, Sivils contends that the trial court erred in failing to instruct the jury on the elements of justifiable homicide and excusable homicide which constituted Sivils’ defense and which, he asserts, were appropriately supported by the evidence. Affirmed.

The tragedy giving rise to the homicide charge against Sivils originated in a domestic dispute. Sivils’ wife, Peggy Ann, had left their home after a quarrel and was staying with her daughter, Linda Mitchell. The victim, Danny Mitchell, was Linda’s husband. Prior to the Saturday evening when Mitchell was slain, Sivils had spoken by telephone several times with his wife and also with Linda and Danny, but had failed to persuade his wife to return. Determined to confront his wife regarding their problem, Sivils set out for the Mitchell residence and took with him a .22 caliber pistol which he placed in a jacket pocket.

Upon arrival at about 10:00 p. m., Sivils went to the back door of the Mitchell home and was met by Danny, who refused him entry. A struggle ensued, Sivils drew his pistol and in the melee Mitchell was fatally wounded.

Appellant’s first point, the absence of an instruction to the jury on the issue of self-defense, was not raised by Siv-ils in his motion for new trial. Generally, where no objection is made to the instructions and no assignment of error regarding instructions is contained in the motion for new trial, nothing pertaining to the instruction is preserved for appellate review. State v. Cook, 491 S.W.2d 324 (Mo.1973). Self-defense, however, is a subject upon which the court is required to instruct, whether requested or not, and it is error for the court to fail to do so if that defense is raised by the evidence in the case. State v. Lacy, 573 S.W.2d 137 (Mo.App.1978).

While consideration here of appellant’s first point, the failure of the trial court to instruct the jury on self-defense, would further require a conclusion that such failure to instruct caused manifest injustice, thus invoking review under plain error, Rule 27.20, State v. Johnson, 546 S.W.2d 725 (Mo.App.1977), it is unnecessary to address that question in disposition of the issue. Failure to instruct on self-defense was not error for the reason that self-defense was never an element of the case.

While some testimony was in conflict regarding prior threats made by Sivils on the life of the victim, no evidence was offered to indicate that Sivils ever was placed in fear of death or serious bodily harm at the hands of the victim or that he believed himself to be in any danger or was obliged to protect his person. More importantly, however, Sivils consistently maintained that the discharge of his weapon was accidental, that he never had any intent to shoot the victim and that the unfortunate event resulted from the struggle when the victim grabbed Sivils’ arm.

The defenses of self-defense and accident are inconsistent. If the shot was fired in self-defense, it was a voluntary act, but if accidental, it was involuntary. State v. Peal, 463 S.W.2d 840 (Mo.1971); State v. Baker, 277 S.W.2d 627 (Mo.1955). In a factually similar case, State v. Harkins, 535 S.W.2d 462 (Mo.App.1976), the court notes that defendant’s testimony alone may not provide the basis for submitting the inconsistent defenses of accident and self-defense to the jury. By his testimony, either that there was no intent to fire at the victim or that he deliberately did so under fear for his life or safety, the defendant commits himself to one alternative or the other. In some limited circumstances, a defendant may be entitled to instructions on both accident and self-defense, but only if the inconsistent alternative is raised and supported by evidence other than that of the defendant. State v. Harkins, supra, and cases there cited.

In this case, Sivils was not entitled to an instruction on self-defense by reason of any evidence in the record. Defendant himself denied any recollection of cocking the gun or placing his finger on the trigger and was unable to explain how the weapon came to be discharged. Other evidence leads inescapably to the conclusion that defendant was the aggressor and was attempting to force his way into the victim’s home, resulting in the struggle and the discharge of the gun. Sivils’ first point is without merit.

In his second point, Sivils contends that it was error to deny him an instruction on excusable homicide. Neither the content of the motion for new trial nor the point relied on and argument as briefed here state in detail and with particularity wherein and why it was error not to give an instruction on excusable homicide and, hence, do not comply with Rules 27.20,28.18 and 84.04. As Sivils did, however, submit to the trial court an instruction on excusable homicide, noted in his new trial motion the alleged instruction error and again refers to the subject on this appeal, the issue will be reviewed on the precept that an appropriate instruction is mandatory, whether requested or not, if excusable homicide is in the case. State v. Watson, 364 S.W.2d 519 (Mo.1963).

As we perceive Sivils’ point, he contends that because his evidence, if believed, required the conclusion that discharge of the weapon was accidental and that he had no intention to wound, let alone slay Mitchell, an instruction on excusable homicide was required. The instruction offered at trial and refused, employing MAI-CR 2.28, used the following language in paragraph 2:

“You will acquit the defendant on the ground of excusable homicide and return a verdict of not guilty if the death of Danny Mitchell was the result of accident or misfortune, in the heat of passion, upon sudden or sufficient provocation, and not done in a cruel and unusual manner.”

On this appeal, Sivils suggests that a better form, and presumably one which incorporates the theory of this point on appeal, would adopt the following language:

“You will acquit the defendant on the ground of excusable homicide and return a verdict of not guilty if the death of Danny L. Mitchell was the result of accident or misfortune in while (sic) acting in lawful self-defense by producing a hand gun to protect himself from assault without unlawful intent and without reckless disregard for human life and safety.”

Excusable homicide was, at the time applicable to this case, defined by Section 559.050, RSMo 1969. Those portions of the statute controlling here include only accidental. homicide committed while doing a lawful act by lawful means and without unlawful intent. The additional provision of the statute, to which Sivils’ proffered instruction at trial apparently was addressed, is inapplicable to this case because it excludes by its terms the use of any dangerous weapon. State v. Merritt, 540 S.W.2d 183 (Mo.App.1976).

As was earlier noted, Sivils was attempting to force his way into the Mitchell home and when the victim resisted and struggled to remove Sivils from the threshold and close the door, Sivils drew the weapon. As to these events, the evidence was undisputed. While Sivils contends that he produced the gun because the victim raised his hand to strike a blow and that such action was reasonable to dissuade the attacker, the fact yet remains that Sivils was in the process of committing an unlawful act by unlawful means, i. e., entering Mitchell’s residence by force, and it was Mitchell who was acting lawfully to resist the intrusion. An accidental killing does not constitute excusable homicide under the statute when perpetrated in the commission of an unlawful act. State v. Browning, 442 S.W.2d 55 (Mo. banc 1969); State v. Smith, 539 S.W.2d 571 (Mo.App.1976).

Finally, it is appropriate to note that a homicide may be excusable under the common law, apart from the circumstances as delineated by statute, and that an appropriate instruction of exculpation would thereby be required. Section 559.060, RSMo 1969. Under common law doctrine, however, in order for the homicide to be excusable, the act must have been without wrongful purpose while engaged in a lawful enterprise. Stat0e v. Simpson, 471 S.W.2d 173 (Mo.1971). Under neither theory applicable to the facts of this case was Sivils entitled to an instruction on excusable homicide.

The judgment is affirmed.

All concur.


text:
    Herbert KOELLER, Respondent, v. Mary Ann KOELLER, Appellant.
    No. 40916.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.

      Earle B. Leadlove, James C. Brandenburg, St. Louis, for appellant.
    Dana Hockensmith, Joseph P. Cunningham, III, Richard W. French, Hillsboro, for respondent.
   REINHARD, Presiding Judge.

Appeal from the denial of wife’s motion for writ of error coram nobis attacking a dissolution decree obtained by her former spouse upon service by publication and her subsequent default. We affirm.

The record of the hearing on the wife’s motion discloses the following factual background. The parties, married in 1955, separated in November, 1975, when the husband left for California to find work. The husband returned to Missouri during May, 1976, at which time the last communication between the parties prior to the granting of the divorce decree took place. Both parties testified that they then spoke by telephone, that the husband (hereinafter, “respondent”) was aware movant was then residing with her mother at 6814 Salzburger in the City of St. Louis, and that he was in possession of her telephone number at this address. In April, 1977, respondent filed a petition for dissolution of marriage alleging that his wife resided at 6814 Salzburger, St. Louis, Missouri. The sheriff of the City of St. Louis was directed to serve movant with a summons and a copy of the petition at this address. The sheriff’s return, received in evidence, stated thereon “After due and diligent search the within named defendant Mary Ann Koeller cannot be found in the City of St. Louis, Missouri.”

Respondent testified that upon learning of the failure of the attempted service, he made some additional inquiry at the post office, but was unsuccessful in obtaining a true current address for movant. Subsequently, application for service by publication pursuant to Rule 54.17 was made and granted. Movant defaulted, and a decree of dissolution in which respondent was awarded certain realty purchased by the parties was entered April 5, 1978. Shortly thereafter, respondent obtained movant’s current telephone number from the bank at which the parties had maintained a joint safe deposit box. This contact with the bank was occasioned by his receipt of a letter from the bank threatening to break into the box for non-payment of rent. There was evidence that an identical letter directed to movant at her mother’s address, sent certified mail, was returned to the bank unclaimed. Movant, however, did contact the bank subsequently, in response to an identical letter sent her at that address by regular, first-class mail, and left a telephone number with the bank corresponding to that address. Upon calling movant on or about April 29, 1978, at the number supplied by the bank, respondent discovered that the number corresponded to the mother’s address. At the hearing below, movant maintained that she continually resided at that address at all times material to the case and that this fact was known to respondent.

Movant was told of the dissolution and the real property award during the April 29 conversation, and filed a motion to set the decree aside on May 16, 1978. Upon denial of that motion, the instant proceedings for a writ of error coram nobis were instituted.

At the hearing below, both parties appeared and fully tried the matter, principally upon the issues of the alleged fraud practiced by respondent both in obtaining service by publication and in obtaining the award of the real property through false testimony at the dissolution hearing as to his contribution to, and his wife’s abandonment of, that property.

In its order denying the relief sought, the trial court found that movant failed to support her claim that she continually resided at the address in question with sufficient evidence to show a want or abuse of jurisdiction. Although the trial court also pointed out that the issue of fraud is not properly the subject of coram nobis proceedings, it nevertheless observed that movant had demonstrated no fraud on the part of respondent in procuring the decree of dissolution.

We begin our discussion of the issues by noting that the court below is essentially correct in its treatment of the fraud issue. The early Missouri cases held that relief from a judgment procured by fraud can only be granted in an independent suit in equity to set the objectionable judgment aside, and that the issue of fraud is not properly raised nor treated under a motion for writ of error coram nobis, Vorhauer v. Sweeney, 217 S.W.2d 985, 987 (Mo.App.1949). The proper issue in coram nobis has commonly been held to be only whether there has been an erroneous assumption of fact or other mistake, extrinsic to the record, and on which the court’s jurisdiction or right to proceed depends, and which, if known, would have prevented the entry of the judgment, Sigwerth v. Sigwerth, 299 S.W.2d 581, 585 (Mo.App.1957). However, in the later cases, the courts have been more liberal, and such formal distinctions have recently been blurred in Missouri sub silentio. See Martin v. Martin, 549 S.W.2d 542 (Mo.App.1977), where fraud issues were treated in a coram nobis proceeding without comment. In any event, we adopt the principle announced by certain federal courts, to the effect that “the name or the form of proceeding is not of controlling importance; provided, it affords adequate opportunity for interested parties to support and to contest the relief sought— This opportunity includes the necessary elements of due process such as sufficient notice, production of evidence and proper hearing in other respects,” American Insurance Co. v. Lucas, 38 F.Supp. 926 (W.D.Mo. 1941). Here the requirements of due process have been met and, indeed, the parties proceeded under the assumption that fraud was the crucial issue. Accordingly, we will consider this issue on the merits as if raised in an independent proceeding in equity.

Relief can only be granted here for extrinsic fraud leading to procurement of the judgment and cannot be granted for intrinsic fraud touching the merits of the action. Martin v. Martin, supra. Any contention as to fraud and false testimony touching the award of marital property in this action could not be considered. Therefore, we do not consider movant’s contention that respondent lied in his testimony at the dissolution hearing regarding the real estate. This involves a matter either tried or concluded in the original action, and, as such, is an allegation of intrinsic fraud. Venegoni v. Giudicy, 238 S.W.2d 17 (Mo.App.1951). A court of equity will, however, grant relief when fraud goes to the manner in which a judgment was obtained. Jones v. Jones, 254 S.W.2d 260 (Mo.App.1953). Movant contends that plaintiff fraudulently obtained service by publication because plaintiff was aware of her address. In order to obtain service by publication the plaintiff was required to make an affidavit attesting to the fact that his wife’s address was unknown. Rule 54.17.

Movant relies on Coleman v. Coleman, 277 S.W.2d 866 (Mo.App.1955), wherein the plaintiff obtained service by publication based upon defendant’s alleged non-residency. In that case, the trial court set aside the decree of divorce on the ground of fraud. There was substantial evidence of contact between the parties and that the plaintiff knew of defendant’s whereabouts. Here, there was no direct contact for approximately one year prior to the filing of the suit. Respondent initially alleged that movant lived at the address she now claims as hers. Service was attempted at that address with a non est return. Furthermore, respondent produced evidence of nonacceptance of certified mail sent to movant at her mother’s address. This evidence is consistent with an intention by movant to conceal her whereabouts until it no longer served her purpose to do so.

The burden of proof is on the mov-ant to establish that service by publication, and hence jurisdiction to proceed, was fraudulently procured. She must prove the same “by clear, strong, cogent and convincing evidence leaving no room for reasonable doubt of its existence”, Coleman v. Coleman, 277 S.W.2d 866, 869 (Mo.App.1955).

Movant has not fulfilled that burden, and applying the standard of review set out in Murphy v. Carron, 536 S.W.2d 30 (Mo.App.1976) we decline to disturb the trial court’s conclusion that no fraud was involved in the procurement of the decree.

Finally, we note that respondent has included in his brief on appeal a paragraph seeking relief in the nature of a motion for damages for frivolous appeal. While we question the procedural sufficiency of this means of raising the issue, we take cognizance of the matter so far as to note that no suggestions or authority are presented in support of the motion, if motion it be, and it is hereby denied.

The order entered below denying the motion for writ of error coram nobis is affirmed.

GUNN and CRIST, JJ., concur.

      . The deputy also noted on the return: “Does not reside at this address per mother.” Mov-ant’s objection to these comments as hearsay was sustained.

      . Movant makes no challenge as to the sufficiency of the publication or its effect on the dissolution or the distribution of the marital property.


author: GUNN, Judge.

text:
    PAYLESS PHARMACY, INC., et al., Plaintiffs-Appellants, v. Dennis K. HOFFERT, Defendant-Respondent.
    No. 41365.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.

      Irl B. Baris, St. Louis, for plaintiffs-appellants; Robert W. Saitz, St. Louis, of counsel.
    John Ashcroft, Atty. Gen., Arnold R. Day, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   GUNN, Judge.

Appellants are corporations charged by the State of Missouri with a civil tax liability. They filed a.petition for writ of prohibition in the St. Louis circuit court seeking to prohibit respondent Dennis K. Hoffert as a hearing officer for the department of revenue from conducting a formal hearing on the reassessment of appellants’ tax liability. The writ was preliminarily granted by the circuit court. Motions to dismiss the petition and quash the writ were filed asserting the failure to join the director of revenue as an indispensable party and attacking the venue alleged to be in Cole County, rather than the City of St. Louis. The motions to dismiss the petition were granted and the preliminary writ of prohibition was quashed with this appeal following. We affirm.

Appellants argue that the director of revenue is not an indispensable party to the prohibition proceedings as, they postulate, it is Hoffert who is to conduct the hearing which they seek to prohibit. But appellants’ support for their contention is too frail to stand the wind of reason as they overlook the fact that Hoffert wears his costume of authority as an authorized agent of the director of revenue with no independent source or vestment of authority for any purpose dealing with the tax reassessment proceedings.

Section 144.240, RSMo 1978, in effect at the time of appellants’ petition and relating to reassessment petitions, provides that a petition for reassessment be directed to the director of revenue:

Any person against whom an additional assessment is made by the director of revenue, under the provisions of sections 144.010 to 144.510, may petition the director of revenue for a reassessment thereof, (emphasis added)

It is manifest from the foregoing statute that the director of revenue is essential to the reassessment proceedings which appellants seek to halt. Consequently, as properly determined by the trial court, the director of revenue as an indispensable party must be joined in the prohibition proceedings with the writ directed to him — not the hearing officer. Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976); Rule 52.04. See also: Morgan v. Wartenbee, 569 S.W.2d 391 (Mo.App.1978).

In Huffman v. Department of Revenue, 523 S.W.2d 107 (Mo.App.1975), and Shepherd v. Department of Revenue, 377 S.W.2d 525 (Mo.App.1969), the director of revenue in his official capacity was held to be essential to a license revocation appeal as he was directly affected in such capacity. The appeals from the revocation proceedings were dismissed for failure to include the director. Huffman and Shepherd are analogous to and congruent with the situation in this case, as the director in his official capacity is directly affected by the prohibition action instituted by appellants. Their failure to include the director in the prohibition proceedings flaws their action.

As the director of revenue is an indispensable party to the prohibition proceedings seeking to halt the hearing on the tax assessment, it follows that venue for such action is in Cole County where the director’s principal office is maintained. State ex rel. Spradling v. Bondurant, 501 S.W.2d 527 (Mo.App.1973).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . The appellants were forewarned of the necessity of joining the director of revenue in the prohibition action — a warning which they disdained.


author: STEWART, Judge.

text:
    O’FALLON LUMBER & SUPPLY COMPANY, INC., Plaintiff-Respondent, v. Harry T. BENEAR, Defendant-Appellant.
    No. 39529.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 9, 1979.
    David C. Godfrey, Clayton, for defendant-appellant.

      Robert E. Morley, O’Fallon, Kenneth Bini, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

This is an action by O’Fallon Lumber & Supply Company on an open account for the value of building materials and supplies alleged to have been sold to Burton F. Bass, Jr., (Bass), Alice Bass and Harry T. Benear, (Benear), doing business as Bass Construction Company. The action was dismissed as to Alice Bass and judgment was entered upon a jury verdict in favor of plaintiff and against Bass and Benear in the sum of $4,002.03 with interest in the amount of $1,200.60. Only Harry T. Benear has appealed from the judgment and plaintiff, the respondent here, has not favored us with a brief.

Benear primarily contends that the court erred in (1) failing to direct a verdict in his favor, (2) refusing to give his requested instruction on his affirmative defense which would require a verdict in his favor if the jury found that B. F. Bass Construction Company, Inc., a corporation, had incurred the debt, (3) in giving plaintiff’s verdict directing instruction because it omitted reference to his affirmative defense and because it required a finding against both defendants if they found in favor of plaintiff.

The first issue requires us to review the evidence in the light most favorable to the plaintiff. Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613, 616 (Mo.1957). Bass has not appealed so we need not develop the facts respecting his liability.

In August of 1971 Benear went to work for Burton F. Bass, a general contractor, who was doing business as Bass Construction Company. B. F. Bass Construction, Inc. was incorporated in August of 1970 by Mr. Bass and his wife. However, Bass continued to operate the business as a sole proprietorship. In March of 1972 Bass advised Benear that he was going to get out of the residential construction business. There was testimony that they entered into a contract dated March 20, 1972 for sale of the residential business by Bass to Benear. The contract was signed in May of 1972. The contract has not been made part of the record on appeal. We are therefore not apprised of its terms.

On May 5, 1972 Benear and his wife became owners of lot 12 of Burton Bass’s Subdivision, referred to throughout the trial as Project 68. Plaintiff had done business with and extended credit to Mr. Bass as an individual doing business as Bass Construction Company. Commencing on May 9, 1972 material and supplies were ordered from plaintiff and were delivered and used in construction on Project 68 at the direction of Benear. Mr. Benear testified that he directed the ordering of the material as president of B. F. Bass Construction Company, Inc., a corporation. However, Mr. Smith, the president of plaintiff, and Mr. Hogan, the store manager, testified that they did not know of the existence of B. F. Bass Construction Company, a corporation, until the day of trial. Plaintiff’s president testified that his decision to extend credit to Bass Construction was based on the fact that he was doing business with Mr. Bass as an individual.

In late March of 1972 at a meeting between Mr. Smith and Mr. Hogan of O’Fal-lon Lumber Company and Mr. Bass and Mr. Benear, plaintiff was advised that Mr. Be-near had bought out Mr. Bass but there would be no change in the name of the company. All billings for materials on Project 68 were made to Bass Construction Company as they had been when Mr. Bass was doing business as Bass Construction Company.

Mr. Benear admitted that the materials and supplies for Project 68 were ordered at his direction.

The evidence viewed favorably to plaintiff indicates that plaintiff thought Bass Construction Company was a proprietorship that had been transferred from Mr. Bass to Mr. Benear. None of the billings were made to B. F. Bass Construction Company, Inc. An individual acting as agent for a corporation is personally liable for debts incurred if he fails to disclose his agency and the identity of his principal at the time the debt is incurred. Lange v. Baker, 377 S.W.2d 5, 9 (Mo.App.1964). Under the evidence in this case the jury could have found that Benear did not disclose the fact that he was acting as the agent of the corporation because plaintiff did not know of the existence of the corporation at the time the debt was incurred. The trial court thus properly refused to direct a verdict in favor of defendant.

Benear next contends that the court erred in failing to give his requested instruction that would exonerate him if the jury found that plaintiff’s account was with B. F. Bass Construction Company, Inc. and not with Benear. A determination of this issue requires us to view the evidence in the light most favorable to Benear. Samuels v. Klimowicz, 380 S.W.2d 418, 424 (Mo.1964).

Under this standard there was evidence from which the jury could have found that Benear and Bass advised plaintiff’s president and its store manager that Be-near was taking over B. F. Bass Construction Company, Inc. a corporation, and that the corporation would be doing the residential work. Benear also introduced into evidence, as an admission against plaintiff’s interest, the original petition in this action. See Jimenez v. Broadway Motors, Inc., 445 S.W.2d 315, 317 (Mo.1969). In that petition plaintiff sued B. F. Bass Construction Company, Inc., a corporation, for the materials and supplies and Benear and his wife for a mechanics lien upon the real estate. The amended petition dropped the corporation as a party and added Burton Bass and his wife. It alleged that Bass, his wife and Benear were individuals doing business as Bass Construction Company. There was thus sufficient substantial evidence to raise a factual issue which Benear had a right to submit to the jury. The court erred in refusing Benear’s proffered instruction.

The remaining issue will not arise in a new trial.

The judgment is reversed and remanded for new trial.

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


author: KELLY, Judge.

text:
    CITY OF OVERLAND, Plaintiff-Respondent, v. John KEARNEY, Defendant-Appellant.
    No. 39647.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 9, 1979.
    Milton W. Schaeffer, Clayton, for defendant-appellant.
    J. Leonard Walther, Clyde C. Farris, Jr., Clayton, for plaintiff-respondent.
   KELLY, Judge.

John Kearney, appellant was convicted in the Circuit Court of St. Louis County of being in violation of §§ 4-38 and 4-39 of the Municipal Code of the City of Overland and fined $15.00 and costs. These ordinances make it a misdemeanor to maintain a kennel within the city without a license. He has appealed.

Appellant was initially charged in the Municipal Court of the City of Overland with this ordinance violation and after conviction in the Municipal Court he took an appeal to the Circuit Court of St. Louis County pursuant to § 478.070(4) RSMo. 1969.

After this appeal was lodged in the Circuit Court, on June 14, 1977, he filed a motion to dismiss claiming that the ordinances were unconstitutional because (1) they violated the equal protection clause of the United States Constitution and Section 2, Article I of the Constitution of Missouri, 1945, and (2) they violated his right to due process of law because of their arbitrary and capricious classifications and deprived him of his property without just compensation.

On July 11, 1977, appellant filed a memorandum of law in support of his motion to dismiss and on July 18,1977, the respondent City filed a memorandum of law in opposition.

On July 22,1977, while appellant’s motion to dismiss was still pending, the parties filed a “Stipulation of Facts” as follows:

STIPULATION OF FACTS
Comes now the Plaintiff, the City of Overland, by its Prosecuting Attorney, and the Defendant, John Kearney, by his attorney, and stipulate and agree to the following facts in the above-styled cause of action:
1.That on December 28,1976, the Defendant resided at 9806 Lullaby, Overland, Missouri, an area zoned for single family dwellings.
2. That on December 28,1976, the Defendant has (sic) in his possession and control at the aforesaid address six dogs, all over the age of two months.
3. That on December 28,1976, the Defendant was served with a complaint and summons ordering him to appear in the Municipal Court of the City of Overland and charging him with, among other things, having committed the offense of maintaining a kennel, in violation of Sections 4-38 through 4-39 of the Municipal Code of the City of Overland.
4. That the Defendant did not on December 28, 1976, have a license authorizing him to maintain a kennel.
5. That certified copies of the Sections of the Municipal Code of the City of Overland, Missouri, which the Defendant has been charged with violating are attached hereto and made a part of as though fully set out herein and marked as Exhibit No. 1, and certified copies of the penalty provisions of the Code are attached and marked as Exhibit No. 2. FILED: July 22, 1977.

On July 22, 1977, the Circuit Court entered the judgment from which appellant filed a timely notice of appeal.

Appellant does not question the sufficiency of the evidence to support the judgment of the trial court. He contends the trial court erred in not ruling on the validity of the ordinance as requested in his motion to dismiss. The trial court’s entry of judgment was, in effect, a final disposition of his motion to dismiss. Allstate Insurance Co. v. Woepke, 419 S.W.2d 506, 511-512[2] (Mo.App.1967); Capital Stores, Inc. v. Storms-Green Const. Co., 346 S.W.2d 549, 554—555[4] (Mo.App.1961).

Appellant failed to preserve for review any constitutional questions he attempted to present in his motion to dismiss because, so far as we can ascertain from the record on appeal, they were not raised at the earliest opportunity in the Municipal Court of Overland. City of Florissant v. Eller Outdoor Advertising Company of St. Louis, 522 S.W.2d 330, 331[1] (Mo.App.1975).

The other contentions of the appellant have been considered but they either fail to comply with the requirements of Rule 84.-04(d) or rely on evidence not before the trial court and dehors the transcript of the record on appeal.

Judgment affirmed.

STEPHAN, P. J., and STEWART, J., concur.

      . Overland Code — DIVISION 2. KENNELS
      Sec. 4-38. “Maintaining” defined.
      The term “maintain a kennel” as used in this division shall mean owning, keeping or harboring at any time, whether at one or more locations in the city, of three (3) or more dogs or cats over the age of two (2) months. (Code 1961, § 6 — 44(a); Ord. No. 1287, § 1, 3-26-73)
      Sec. 4-39. License required.
      Any person who shall maintain a kennel within the city without a license duly issued therefor, as herein provided, shall be deemed guilty of a misdemeanor, and, upon conviction, be guilty of a violation of this Code. (Code 1961, § 6 — 44(e); Ord. No. 1287, § 1, 3-26-73)


author: CRIST, Judge.

text:
    Thomas O’BRIEN, Appellant, v. SUN LIFE ASSURANCE COMPANY OF CANADA, a corporation, Respondent.
    No. 41181.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.

      Lawrence 0. Willbrand, St. Louis, for appellant.
    John P. Emde, St. Louis, for respondent.
   CRIST, Judge.

Claim for benefits under disability insurance policy.

Thomas O’Brien, plaintiff/appellant, suffered a heart attack and was unable to work for ten months. He initiated this suit, claiming benefits under a disability insurance contract he entered into with Sun Life Assurance Company, defendant/respondent. Defendant contested plaintiff’s right to benefits under the policy and filed a counterclaim for declaratory judgment that the policy was void.

Defendant contends the illness first manifested itself when the policy had lapsed and had not yet been reinstated, plaintiff did not comply with the condition of giving defendant notice of the illness within thirty days of its inception, and the policy was void because of misrepresentation by plaintiff in his application for reinstatement.

The trial court dismissed the jury and awarded defendant a directed verdict at the close of plaintiff’s case, finding the illness manifested itself prior to reinstatement and plaintiff had not given the defendant the required notice. The court then heard and sustained defendant’s counterclaim finding the illness had manifested itself prior to reinstatement and plaintiff had misrepresented a material fact. We affirm.

Defendant issued the policy to plaintiff in 1971. The policy provided benefits of $500.00 per month for disability of plaintiff. Premiums were due semi-annually. The policy had previously lapsed for non-payment of the January, 1974 premium, but was thereafter reinstated on application of plaintiff.

The policy again lapsed for non-payment of the January, 1975 premium. On February 7, 1975, plaintiff suffered pains in his left chest, shoulder, and arm. He received emergency treatment at the Jacksonville, Illinois Hospital. Plaintiff mailed his January, 1975 premium on February 13, 1975,— thirteen days late. On February 27, 1975, defendant notified plaintiff that his policy had lapsed, and a certificate of insurability was required for reinstatement.

On March 17, 1975, plaintiff had chest pains. He called his doctor about the chest pains on March 18,1975. He was examined by Drs. Leahy and Kistner on March 27, 1975, at which time plaintiff related that he had had chest pains for four to six weeks. He was on that date admitted to the intensive care unit at St. John’s Mercy Hospital as a heart patient.

On the day he was admitted to the hospital, plaintiff asked his brother to take care of his reinstatement of insurance form. The next day plaintiff signed the form in blank at the hospital. His brother took the form to defendant’s licensed insurance agent. This agent completed the blanks with all negative health answers and mailed the form to defendant.

Plaintiff’s January, 1975 premium check was cashed on April 7, 1975. The record is not clear as to whether or not defendant had received the reinstatement form on, before, or after April 7, 1975.

On June 24,1975, defendant cashed plaintiff’s check for his July, 1975 semi-annual premium. On July 10, 1975, plaintiff received a letter from defendant advising that the policy was in full force and effect.

On July 15, 1975, defendant received plaintiff’s preliminary notice for benefits beginning March 27, 1975, by reason of plaintiff’s heart attack. On July 22, 1975, defendant received plaintiff’s formal claim. This was defendant’s first notice of plaintiff’s history of heart trouble beginning on or about February 7, 1975.

Plaintiff had open-heart surgery on September 11, 1975. He returned to work in February of 1976. Defendant sent plaintiff a check refunding his January and July, 1975 semi-annual premiums. The check was refused by plaintiff and defendant then paid such refund to the circuit clerk. The trial court ordered this refund repaid to plaintiff.

Plaintiff contends: (1) defendant waived its right to require insurability by cashing his check on April 7, 1975; and (2) the trial court should have permitted plaintiff to dismiss without prejudice at the conclusion of plaintiff’s evidence. Neither of such contentions has any merit. If the policy was reinstated, it covered only loss resulting from such sickness which first manifested itself more than ten days after reinstatement. Freedman v. Mutual Benefit Health & Accident Association, 119 S.W.2d 1017, 1020 (Mo.App.1938). Plaintiff’s petition and defendant’s counterclaim were so interwoven that the trial court probably did not abuse its discretion in refusing plaintiff permission to dismiss at the close of his evidence. But even if the trial court should have dismissed plaintiff’s petition, the trial court’s findings on defendant’s counterclaim that plaintiff’s illness commenced prior to reinstatement would prevent any later recovery by plaintiff. Stubblefield v. Seals, 485 S.W.2d 126, 130 (Mo.App.1972).

Finally, plaintiff’s points relied on were not preserved in a motion for new trial. There was nothing preserved for appellate review. An erroneously directed verdict is an error which must be raised in a motion for new trial. McMahon v. Charles Schulze, Inc., 483 S.W.2d 666, 667 (Mo.App.1972). We may, but are not required to do so, review on plain error. Williams v. Southern Pacific Railroad Co., 338 S.W.2d 882, 883 (Mo.1960); Rule 84.13(c). We hold there was no manifest injustice to plaintiff.

Judgment affirmed.

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


author: CLEMENS, Senior Judge.

text:
    Paul D. HICKMAN, et ux., Respondents, v. Melvin UPCHURCH, d/b/a Mueller’s Plumbing & Heating, Appellant.
    No. 41046.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.
    Robert J. Blackwell, Flat River, for appellant.
    Charles G. Hyler, Farmington, for respondents.
   CLEMENS, Senior Judge.

In this court-tried case plaintiff trailer home owners got judgment against defendant appliance dealer for the $1,762 they had paid for an installed combination air-conditioning and heating system.

Plaintiffs pleaded and their expert evidence showed that although the unit was mechanically sound it was not the type designed for a house trailer and utterly failed to either cool or heat. Plaintiffs’ evidence was that defendant made several mechanical adjustments and installed larger duct-work, all to no avail. Finally plaintiffs replaced the original unit with a proper one and sued for refund of their original purchase price.

Defendant now contends the judgment lacks sufficient evidence. He argues that the testimony of plaintiffs’ expert witness showed the unit was mechanically sound, but that misses the point because the witness further testified the unit sold was the wrong type of appliance for a house trailer. Defendant testified the problem could be solved by installing larger ductwork, which he did; plaintiffs testified the unit still would not adequately cool or heat. Defendant also relies on a letter plaintiffs wrote saying the air conditioning unit “has sufficient air circulation.” Plaintiff acknowledged this but explained: “It had the circulation but it brought in hot air.”

Defendant testified that without charge he and his employees made numerous service calls attempting to make the unit effective.

We have reviewed the case in accordance with Rule 73.01 3 and giving due regard to the trial court’s opportunity to judge the credibility of witnesses, we conclude the judgment is supported by substantial evidence. Lickting v. Goins, 458 S.W.2d 596[2] (Mo.App.1970).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: REINHARD, Presiding Justice.

text:
    Marla GASSIRARO et al., Appellants, v. Phillip MERLO, Respondent.
    No. 41160.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.

      Frank N. Carter, Jr., St. Louis, for appellants.
    Henry D. Menghini, St. Louis, for respondent.
   REINHARD, Presiding Justice.

Plaintiffs appeal from an order of the trial court directing a verdict for defendant in their wrongful death case. The plaintiffs are the wife and minor children of the decedent. Decedent stepped from the side of the street directly in front of defendant’s automobile. At the end of plaintiffs’ case, the court sustained defendant’s motion for a directed verdict.

On appeal plaintiffs present one claim: the trial court erred in directing a verdict in this humanitarian doctrine case because “reasonable men could differ as to whether defendant had the present ability with the means at hand to have averted the impending injury to plaintiffs’ decedent without injury to himself or others. . .” We must consider the evidence in the light most favorable to plaintiffs according them the benefit of all supporting inferences deducible from the evidence. Dillon v. Hogue, 381 S.W.2d 599, 600 (Mo.App.1964).

While attempting to cross Marconi Street in the City of St. Louis, plaintiffs’ decedent was struck by defendant’s automobile. Fourteen days later, he died from injuries sustained in this accident. Marconi Street runs north and south and dead-ends to the north at Highway 44. The accident occurred in the middle of the block which dead-ends; the block is a short one, approximately 240 feet long. In this block of Marconi, there are two lanes for travel with two more lanes for parking, one on each side of the street. However, when vehicles are parked on both sides of the street, there is little room for two cars traveling in opposite directions to pass. At the time of the accident, cars were parked on both sides of the street. No street lights stood in the middle of the block and the parked cars cast shadows in the street. A steady rain was falling and had been for a time prior to the accident.

Sometime after 11:00 p. m., defendant drove a 1971 Chevrolet Impala north on Marconi Street with two passengers. Defendant brought his vehicle to a complete stop at Shaw, the last intersecting street south of the point of impact. He proceeded northward. Plaintiffs’ decedent stepped out onto Marconi Street from in front of a pickup truck, which was parked on the east side of the street, and walked in a west-wardly direction. The parked pickup truck had a high back and tool cabinets on both sides, which obstructed northward visibility. According to defendant, he first saw plaintiffs’ decedent when he was one or two steps west of the pickup truck. Defendant stated that plaintiffs’ decedent “couldn’t have been more than ten feet, between five and ten feet” from the front of defendant’s car. Defendant testified that upon seeing plaintiffs’ decedent: “I immediately hit my brakes. . . . [I]t [the car] began to stop but I can’t be sure whether it was stopped before it hit him or right after.” Further defendant testified that his car slid but that he couldn’t tell if it slid before or after it hit plaintiffs’ decedent. He said it happened so fast, “it was like in a split second he was at the front of my car.” He stated he neither swerved nor sounded his horn because he did not have time. There was damage to defendant’s right parking light. Defendant was driving twenty to twenty-five miles per hour in a twenty-five miles per hour zone.

The passenger in the front seat was looking to the rear of the car and did not see the plaintiffs’ decedent. The passenger in the back seat testified substantially to the same facts as the defendant.

The elements in such a humanitarian case are: (1) plaintiffs’ decedent was in a position of immediate danger; (2) defendant had actual or constructive notice thereof; (3) defendant, after receiving such notice, had the means at hand to have averted the impending injury without injury to himself or others; (4) defendant failed to exercise due care to avert the impending injury; and (5) by reason thereof, plaintiffs’ decedent was killed. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 540 (Mo.1977). Each element must be supported by substantial evidence of probative value or by inferences reasonably dedueible therefrom. Vietmeier v. Voss, 246 S.W.2d 785, 787 (Mo.1952).

On appeal, plaintiffs do not claim that defendant had the ability to stop, but contend the evidence shows that he should have been able to swerve. They claim defendant’s testimony: “I immediately hit my brakes. . . . [I]t [the car] began to stop, but I can’t be sure whether it was stopped before it hit him or right after.” sufficiently shows that defendant was able to apply his brakes before he struck plaintiffs’ decedent. Therefore, argue plaintiffs, if defendant could apply his brakes, he could have swerved to the left. We believe the plaintiffs have misinterpreted defendant’s testimony. They have overlooked the responses to the questions which followed the above testimony. Defendant said his car slid but he could not tell if that was before or after he hit plaintiffs’ decedent. We interpret defendant’s response to be that he could not tell whether his brakes took effect before or after contact with plaintiffs’ decedent.

In any event, the record fails to support plaintiffs’ contention. The plaintiffs’ decedent was in a position of immediate danger when he appeared from behind the parked pickup and moved forward. At that time, defendant was ten feet from plaintiffs’ decedent and was traveling at approximately 20 to 25 miles per hour. Courts can take judicial notice of the normal reaction time, this being three-quarters of a second, Vietmeier v. Voss, supra. At twenty miles per hour, a car travels twenty-nine and one-third feet per second. Therefore, under this evidence the vehicle would have traveled twenty-two feet (distance traveled in three-quarters of a second) before defendant could have reacted, let alone avoided the accident by swerving or stopping.

At best, defendant’s testimony to the effect that he was not sure if his brakes grabbed before, at the time, or after he struck plaintiffs’ decedent would indicate that he was traveling slower than twenty miles per hour or first saw defendant at a distance greater than ten feet. This does not provide substantial evidence that the defendant could have swerved and avoided the accident. Assuming this testimony is sufficient for a jury to find that defendant was able to react prior to the impact, we believe that it would require guesswork and speculation for them to find that defendant would have been able to avoid the accident by swerving to the left. A possibility that defendant might have avoided the accident is not sufficient under the humanitarian doctrine to make a submissible case. Kirks v. Waller, 341 S.W.2d 860, 865 (Mo.1961). The burden was on the plaintiffs and where, as here, they leave one or more of the essential elements in a humanitarian case to guesswork, speculation or conjecture, the case is not for a jury. Corbett v. Snitzer, 558 S.W.2d 392, 394 (Mo.App.1977).

Judgment of the trial court affirmed.

GUNN and CRIST, JJ., concur.


author: STEPHAN, Presiding Judge.

text:
    Barbara SLINKARD, Plaintiff-Respondent, v. Norman E. SLINKARD, Defendant-Appellant.
    No. 40332.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 16, 1979.
    John William Ringer, Powell, Ringer & Ringer, Dexter, for defendant-appellant.
    Walter S. Drusch, Jr., Spradling, Drusch, Dillard & Spradling, Cape Girardeau, for plaintiff-respondent.
   STEPHAN, Presiding Judge.

On August 19, 1976, defendant Norman E. Slinkard filed a motion to modify the divorce decree that had, on September 8, 1967, dissolved his marriage to plaintiff Barbara Slinkard. Through a property settlement agreement incorporated in the decree, custody of the parties’ two minor children had been established in plaintiff, with “reasonable visitation rights” held by defendant; in addition defendant was thereby obligated to make monthly support payments to plaintiff of $50.00 per child. Defendant’s motion sought termination of his obligation to make those payments; and transfer of custody of the children to defendant (subject to plaintiff’s visitation rights) or, in the alternative, the establishment of certain specified periods of partial custody in defendant. At the time the motion was filed, the children, Cheryl and Roger, were respectively sixteen and nine years of age. On March 6, 1978, following a series of hearings on defendant’s motion, the court issued an order which provided, inter alia, for the continuation of support payments, plaintiff’s retention of major custody of both children, and specified visitation rights in defendant with the parties’ son, Roger. The order also gave defendant temporary custody of Roger for two months each summer.

Defendant appeals that portion of the decree ordering plaintiff’s continued major custody of Roger, contending that, since the time of plaintiff’s remarriage in 1969, plaintiff and her husband, Danny Lynn, have interfered with defendant’s visitation rights with his son, and that plaintiff, Lynn and Cheryl have attempted to alienate Roger from him. Defendant also appeals the order of continued support payments for Cheryl, who was of the age of eighteen at the time the order issued. Defendant requests that this court declare the age of majority to be eighteen for the purpose of support payments and his obligation to plaintiff in that regard therefore terminated. We affirm.

We believe that the record contains ample evidence to support the ruling of the trial court concerning custody of Roger, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); and as we believe that a detailed discussion of that evidence would be of no precedential value, we affirm in accordance with Rule 84.16(b). We simply note that, although alienation of a child’s affections from his natural parent and interference with visitation rights may be grounds for change of major custody, they do not compel such a result. Hahn v. Hahn, 569 S.W.2d 775 (Mo.App.1978); In re Marriage of Agne, 565 S.W.2d 799 (Mo.App. 1978); In re Marriage of B_ A_ S_, 541 S.W.2d 762 (Mo.App.1976). The welfare of the child remains the paramount consideration. J.L.W. v. D.C.W., 519 S.W.2d 724, 729 (Mo.App.1975). In that light, our consideration of the record in its entirety does not engender a firm belief that the issue was wrongly decided. Murphy v. Carron, supra.

Defendant’s second argument must fail for the reason that, in the property settlement agreement under which he incurred the support obligation, defendant agreed to pay support for each child, not until his or her majority, but “until said child becomes self-supporting, marries, dies, or attains the age of twenty-one.” This express agreement controls the duration of defendant’s obligation.

Plaintiff requests that this court assess damages, pursuant to Rule 84.19, for frivolous appeal. As we do not believe that it can be said that defendant’s position regarding the custody of his son is “so readily recognizable as devoid of merit on the face of the record that there is little prospect for success,” Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 789 (Mo. banc 1977), we deny that request.

The judgment is affirmed.

STEWART and KELLY, JJ., concur.

      . Both parties remarried following the divorce, plaintiff now appearing under the name Barbara Lynn.

      . By our holding herein, we do not wish to minimize the seriousness of the seeming indifference of plaintiff and her family to defendant’s rights with his son and feel constrained to caution the parties in that regard. We simply do not feel that their apparent transgressions in that connection mandate reversal of the court’s ruling at this time.

      . The court’s order of March 6, 1978, modifying the original divorce decree, provided that those portions of the decree not superseded by the order were to remain in full force and effect.


text:
    Leroy MAYES, Movant-Appellant, v. STATE of Missouri, Respondent.
    Nos. 41100, 41101.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Dec. 6, 1979.
    Cynthia S. Holms, Sp. Asst. Public Defender, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant Leroy Mayes, hereafter “defendant,” has appealed the denial of his Rule 27.26 motion after an evidentiary hearing. Six years after trial defendant sought to vacate his conviction for murder which had been affirmed on appeal. See State v. McKinney and Mayes, 475 S.W.2d 51 (Mo.1971).

By his amended motion defendant pleaded his retained trial counsel, Mr. Curtis Crawford, had failed to give him effective assistance. At trial co-defendant McKinney was represented by Mr. Robert Dierker.

Defendant first complains his counsel failed to adequately interview him. As to that complaint defendant testified Mr. Crawford interviewed him only twice, a few minutes each time. Defendant did not call Mr. Crawford to testify, but co-counsel Robert Dierker testified he and Mr. Crawford worked closely in preparing for trial; that they interviewed prospective witnesses; that he had spent from 150 to 200 hours in preparation and “Mr. Crawford about half that.” Thus, the record refutes defendant’s contention of inadequate assistance of counsel in failing to adequately interview him. Compare Jones v. State, 556 S.W.2d 209 (Mo.App.1977).

The core of defendant’s complaint is that counsel failed “to produce and call [named] witnesses at trial.” At his evidentiary hearing defendant called none of these witnesses, nor his trial counsel Curtis Crawford. We have, however, the detailed testimony of co-counsel Robert Dierker.

Defendant contends four witnesses should have been called, including witness Tom Croce. Croce, a restaurant customer at the time of the robbery-murder, identified four other men who entered the restaurant. His testimony would not have helped defendant who remained outside as a lookout.

Defendant argues that counsel should have called a man named “Lefty” as an alibi witness. Mr. Dierker testified he had found this testimony would have conflicted with the alibi testimony of another witness, Willie McMiller, who did testify; both Mr. Dierker and Mr. Crawford believed McMiller was the more credible witness.

Defendant contends trial counsel should have called Walter Berry, who had already pleaded guilty to the robbery-murder, and who, defendant testified, would have testified defendant was “not involved in this incident.” Trial counsel considered calling this tarnished witness, but found they could not do so without delaying trial and thereby losing their best alibi witness, Willie McMiller.

Last, defendant challenges trial counsel in failing to call a witness named Jack as a character witness. Defendant pleaded that Jack was a potential alibi witness, but at the hearing testified Jack “was going to be somewhat of a character witness.” On neither direct nor cross examination was Mr. Dierker questioned about Jack.

We view the court’s denial of defendant’s motion in the light of settled principles. The trial court’s conclusion of effective counsel is presumably correct and to be rejected only if we find it is clearly erroneous. Maggard v. State, 471 S.W.2d 161[5] (Mo.1971). Choice of witnesses is a matter of trial strategy. Jackson v. State, 537 S.W.2d 211[6-8] (Mo.App.1976). In challenging counsel for failure to call a witness defendant must show how that testimony would have helped him. Shepperd v. State, 529 S.W.2d 943[3-4] (Mo.App.1975). The trial court has the right to reject a defendant’s testimony even though not contradicted. Skaggs v. State, 476 S.W.2d 524[1-3] (Mo.1972). Viewing the record in the light of these principles we find no reversible error in denying defendant’s motion.

Judgment affirmed.

DOWD, P. J., and CRIST and REIN-HARD, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene Thomas FONTANA, alias Nicholas John Devereux, Defendant-Appellant.
    No. 10834.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 22, 1979.
    Motion for Rehearing or Transfer Denied Nov. 14, 1979.
    Application to Transfer Denied Dec. 6,1979.
    Richard D. Bender, Springfield, for defendant-appellant.
    John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

A jury has found Eugene Thomas Fonta-na guilty of first-degree robbery as defined and denounced by § 560.120, RSMo 1969, now repealed, and kidnapping, as proscribed by § 559.240, RSMo 1969, now repealed. Defendant’s punishment has been assessed at imprisonment for a term of 30 years for first-degree robbery and 10 years for kidnapping. The trial court has ordered that the defendant’s sentences run consecutively. Defendant appeals.

Defendant makes no contention that the evidence is not sufficient to support the convictions, and of course the State is entitled to have the record evidence and the reasonable inferences to be drawn therefrom taken most favorably to the result reached. State v. Franco, 544 S.W.2d 533, 534[1] (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo.1972). So taken, the record warrants the following statement: During the evening of March 2, 1977, defendant went to the bar at the Howard Johnson Motel in Springfield, Missouri. He engaged H., the bartender, in conversation. H. is female; apparently she is a young woman. Defendant and H. conversed at length and during the course of their conversation H. told the defendant “ . . . the bar was slow usually around midnight . . . only one or two people [around] the bar . . .”

The defendant returned to the bar the following evening, sat at the bar and ordered a drink. Having placed his order, he moved to the end of the bar nearest the cash register. He again engaged H. in conversation and requested that he be called at his room between 11:30 and 11:45 p. m. so he could meet a “business acquaintance” in the bar. H. was told to ask for “Nick” when she called.

Defendant left the bar, but returned about 11:30 p. m. and sat in the “same comer seat by the cash register.” Three other customers came in the bar between 11:30 p. m. and midnight, but they left about midnight and defendant was alone in the bar until “legal closing time” while H. performed her “cleanup duties.” H. finally removed the cash drawer (the “till”) from the cash register and set it on the bar. It contained about $350. Defendant then approached H., “ . . . stuck a gun in [her] face and told [her] it was a robbery,” and said “ . . . stay calm.”

The defendant then took “the till” and H. out through a door which opened onto the parking lot. He ordered his victim into his car, saying he was going to “take [H.] a short ways so he could get away.” H. was taken to another motel, identified as the Interstate 8 Motel, a short drive from the Howard Johnson’s. The defendant ordered his victim into one of the rooms, told her to disrobe and attempted to rape her. H. resisted and the defendant did not accomplish his purpose. The defendant then decided to leave. He ordered H. to dress. She did so, and was directed to lie face down on the bed. Defendant then “ . . . tied [H.’s] feet and hands together behind [her] with [her] panty hose and took a pillow case [sic] off of one of the pillows . . . and gagged [her].” The defendant left. H. “laid there long enough to where [she] thought [defendant] wasn’t still outside,” then freed herself sufficiently to call the Springfield Police Department. The defendant was apprehended by Jasper County officers and this prosecution followed.

In this court, the defendant has contented himself with raising a single point on appeal. In the particular circumstances of this case, we find the point to be without merit, but inasmuch as this appeal is defendant’s only appeal of constitutional right, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), we have given the point careful consideration. Defendant’s assignment of error, as stated, is that the trial “court erred in permitting Larry Parrill [sic] to testify ... to the contents of the items of identification found on the defendant at the time of his arrest in lieu of producing those items, because said testimony constituted hearsay and violated the best evidence rule in that it was offered to prove the terms of a writing without production of the items of identification or explanation of their absence.” The defendant has cited a number of cases, including Baker v. Atkins, 258 S.W.2d 16 (Mo.App.1953), which discuss both hearsay evidence and the best evidence rule. The State advances the novel non sequitur that because Parill’s testimony was used only to identify the defendant as Nicholas J. Devereux, the evidence cannot be classified as hearsay.

As just noted, the evidence objected to came from one Larry Parill. Parill was employed as a criminal investigator by the Sheriff of Jasper County, and was on duty in Carthage after the robbery and kidnapping had been committed. He received a radio dispatch from Greene County “ . . to be on the look-out [sic] for a . white male, dark-complected [sic], five-eleven, a hundred and eighty or two hundred pounds,” who was driving “ . . . a yellow, foreign car, out-of-state license, [and who was] wanted in connection with [robbery and] kidnapping.” Before Parill testified it had been established that defendant was a white male of dark complexion, that he was wearing a yellow “leisure suit” and a flowered brown shirt. H. had testified that she described the defendant, his clothing and his general appearance to police officers in Springfield when she reported the crime, and she had noticed and reported that defendant was driving a yellow Datsun automobile. Registration records at the Howard Johnson Motel, where the robbery took place, indicated that one Nicholas J. Devereux was registered there on March 3 and defendant had told H. his name was “Nick.” It is therefore entirely reasonable to suppose that officer Parill would look for and would expect to find objects identifying a Nicholas Devereux if he encountered the defendant. On a pretrial motion to suppress evidence, Parill testified that “[a]t the time I arrested [defendant], his wallet contained credit cards and operator’s license that checked to Nicholas John Devereux, which fit [defendant’s] description . . . .”

Upon trial, the State’s interrogation of officer Parill took him through his apprehension of the defendant, his seizure of clothing, including the yellow “leisure suit,” and the .32 caliber revolver and then continued:

“Q. Now after that, did you have any occasion to look at any pieces of identification? A. Yes, sir.
[Defense counsel’s objection was renewed and overruled]
Q. And what pieces of identification did you—
A. We found in his wallet was [sic] several credit cards and a driver’s license.
Q. Now would you state what name was on those credit cards and driver’s license?
A. The name on these credit cards and driver’s license was Nicholas John Dever-eux.
Q. When you say Devereux, do you know how it’s spelled?
A. No, not right offhand.
* * * * * *
THE WITNESS: If I had my report — if I could look at my report, I could tell you how it’s spelled.
Q. (By the [Prosecuting Attorney]): Did you incorporate that into your report—
A. Yes, sir.
Q. —that you made at the timel A. Yes, sir.” (Our emphasis)

The State thereupon asked the witness to refresh his memory by looking at his report; with permission of the trial court he did so and then answered that defendant’s alias was spelled “D-e-v-e-r-e-u-x.” Officer Pa-rill’s testimony indicated that the driver’s license and credit cards were “turned over” to his chief deputy, who was his “evidence officer.” The fair inference from the record is that the credit cards and the license were simply mislaid.

The objection is that admission of Parill’s evidence concerning the spelling of defendant’s alias violated the “best evidence” rule and constituted hearsay. It is not contended that it was improper to show defendant’s criminal agency under an alias nor that the possession of the bogus documents might constitute evidence of an independent crime. We address only the objection stated and briefed.

It is common knowledge that drivers’ licenses and credit cards are used as a means of identification, and we are in no doubt it was proper to establish defendant’s identity by showing the name inscribed on those objects. As for the contention that non-production of those items violated the “best evidence” rule, that rule means, among other things, that in proving the terms of a writing, where its terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. State v. King, 557 S.W.2d 51, 53-54[1—3] (Mo.App.1977); Padgett v. Brezner, 359 S.W.2d 416, 422-423[3-5] and authorities cited nn. 2, 3 (Mo.App.1962); C. McCormick, Evidence § 230 (2d ed. 1972). The rule is easier to state than to apply. There are innumerable objects bearing inscriptions or legends which cannot logically be considered “writings.” The terms of the legend or inscription may be relevant in a particular case, and questions then arise whether the inscribed object should be considered a writing and whether the original object should be produced or accounted for. Classification as a “writing” or as an “inscribed chattel” is not controlling, there is no inflexible rule, but the modern tendency is to grant to the trial court a considerable measure of discretion in determining whether the original should be produced if the object is an inscribed chattel. United States v. Duffy, 454 F.2d 809, 812[3] (5th Cir. 1972); 4 H. Wigmore, Evidence § 1182 (Chadbourn rev. 1972); McCormick, supra, § 232. And, of course, if the writing is subject to the “best evidence” rule, the trial court may nonetheless receive secondary evidence of its contents if the original is unavailable without serious fault on the proponent’s part and the secondary evidence offered is trustworthy. An officer’s personal recollection based on observation may constitute such evidence. State v. King, supra, 557 S.W.2d at 54[6][7][8].

We suppose a driver’s license is a “writing”; such a document is an official grant of a privilege to a specifically designated person, and when the terms of the license are relevant, the original should be produced or accounted for. Cf. Thurman v. St. Louis Public Service Co., 308 S.W.2d 680, 687 — 688 (Mo.1957); Fayetteville Aviation, Inc. v. Insurance Company of North America, 19 N.C.App. 557, 199 S.E.2d 485, 486-487[1] (1973). It is difficult to conceive of an ordinary plastic credit card as anything other than an inscribed chattel, designed for use in a simple machine.

We are in doubt that the “terms” of the license or the credit cards were in issue; if they were, we consider that non-production of the original driver’s license was satisfactorily accounted for. There certainly is no indication of deliberate affirmative action to destroy the original or to prevent its production in court. Secondary evidence was admissible. In our view, the credit cards could not be considered “writings” in the context of this case. There was no violation of the “best evidence” rule.

The further contention that hearsay was admitted is obtusely made, and is likewise without merit. As indicated, Parill testified that he seized the driver’s license and the credit cards at the time he apprehended defendant. He further testified that he copied defendant’s alias onto a report which he prepared at that time. Upon trial, the only detail Parill could not remember concerning the alias was the spelling of the surname Devereux. He requested permission to consult his report to refresh his memory. He did not testify by reading the report but from memory, renewed and refreshed. As the State contends, a witness, in court and subject to cross-examination, may testify to what he observed through his four senses. City of Webster Groves v. Quick, 323 S.W.2d 386, 390 (Mo.App.1959). It was within the trial court’s discretion to permit Parill to refresh his memory by consulting his report, and inasmuch as Parill’s reference to his report did refresh his memory, it is of little moment whether the memorandum was prepared by Parill or another, or whether the “report” was an original or a copy. State v. Freeman, 489 S.W.2d 749, 752-753[7—11] (Mo.App.1973); McCormick, supra, § 9 at 16. There was no violation of the hearsay rule. In any event, the spelling of the alias upon the license and the credit cards was not crucial nor critical upon the issue of defendant’s criminal agency. The defendant’s identity was abundantly established by other competent evidence, and the testimony complained of could not have been prejudicial to the defendant.

Finally, it should be noted that the formal entry of judgment, sentence and commitment does not in terms recite the exercise of discretion on the part of the trial court in imposing consecutive sentences. Former § 546.480, RSMo 1969, provided, in basic substance, that if a criminal defendant were convicted of at least two offenses before he was sentenced for either, then the sentences pronounced would run consecutively. In State v. Baker, 524 S.W.2d 122, 129 (Mo. banc 1975), our Supreme Court held that to the extent it mandatorily required consecutive service of sentences solely because the defendant had committed multiple offenses, § 546.480 served no legitimate State interest and denied criminal defendants equal protection of the laws. The court also carefully pointed out that the imposition of consecutive sentences does not of itself deny equal protection; the trial court is vested with discretion to determine whether, in the circumstances, the sentences should run concurrently or consecutively. State v. Baker, supra, 524 S.W.2d at 130-131. From the effective date of that decision our courts have consistently held that when consecutive sentences are imposed after conviction of multiple offenses in a single trial, the record must show that the consecutive sentences were imposed in the exercise of discretion; otherwise remand for the exercise of that discretion will be ordered. See State v. Eldridge, 543 S.W.2d 500, 501[4] (Mo.App.1975); State v. Mullen, 532 S.W.2d 794, 800[11] (Mo.App.1975).

It is doubtless better practice for the trial court to recite in the formal entry of judgment, sentence and commitment that consecutive service of the sentences is ordered in the exercise of discretion. However, the record on appeal shows that the propriety of imposing consecutive sentences was argued in open court upon allocution. The defendant was present with counsel. Defendant’s counsel argued that the sentences should run concurrently; the State argued that because of the gravity of the offenses committed and the existence of a prior conviction, the sentences should run consecutively. The trial court then imposed consecutive sentences. The record shows the exercise of discretion; the cause need not be remanded so the formal entry may recite that fact.

No reversible error appears; therefore the judgment is in all respects affirmed.

All concur.

      . The “gun” was introduced in evidence, together with the defendant’s clothing and jewelry. The exhibits have not been filed here, but the firearm used by the defendant was described as a Harrington and Richardson .32 caliber revolver. When it was recovered, the revolver contained five live rounds.


text:
    Kenneth COOPER, Appellant, v. YELLOW FREIGHT SYSTEM, INC., Respondent.
    No. 41159.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1979.

      Harold L. Whitfield, St. Louis, for appellant.
    John L. Harlan, Jr., Brentwood, for respondent.
   REINHARD, Presiding Judge.

Plaintiff filed this action pursuant to the. Missouri Service Letter Statute, § 290.140 RSMo 1969. The action was brought against Yellow Freight System, Inc., his former employer. The court granted defendant’s motion for summary judgment and entered judgment against plaintiff. Plaintiff appeals from that order.

The record reveals that plaintiff, an over the road truck driver, was dismissed by defendant after he was involved in an accident while driving a tractor trailer owned by the defendant. In a letter of June 30, 1976 to plaintiff, defendant gave as its reason for plaintiff’s discharge, “recklessness resulting in a serious accident while on duty.” In accordance with Articles 45 and 46 of the union contract, plaintiff and the union requested that his termination be reviewed by a joint state grievance committee. After conducting a hearing, the grievance committee denied the claim and sustained the defendant’s discharge of plaintiff.

Plaintiff then requested a service letter from defendant as provided for in § 290.140. A service letter was issued by defendant on March 4, 1977; it gave as the reason for plaintiff’s dismissal the following statement:

You were discharged on June 30,1976 for recklessness resulting in a serious accident while on duty. . . . Your discharge was upheld at the Missouri Kansas Grievance hearing on July 14, 1976.

After receiving the letter, plaintiff instituted this suit under § 290.140. His first amended petition alleges, inter alia, defendant’s corporate status, plaintiff’s employment with defendant, his discharge and request for a service letter, receipt of the service letter and the falseness of the service letter in violation of § 290.140. It then alleges certain damages and prays judgment against defendant for both actual and punitive damages. Defendant’s answer admitted all averments in the petition except the falseness of the service letter and the resulting damages. Defendant subsequently moved for summary judgment asserting as grounds therefore that “[a]ll material issues of fact stated in the plaintiff’s complaint have been determined by a final and binding arbitration between the same parties; these issues are res judicata, and plaintiff is collaterally estopped from reliti-gating the merits as determined by the arbitrator in a subsequent action at law.” Defendant’s motion for summary judgment relied upon the pleadings, admissions on file and various affidavits and exhibits filed with the motion. Plaintiff did not respond to the defendant’s motion. The court sustained the motion on defendant’s theory and plaintiff appeals.

The rules of law governing our review of summary judgment are well-settled. We must examine the record in the light most favorable to the party against whom the judgment was rendered and give to that party the benefit of every doubt. Edwards v. Heidelbaugh, 574 S.W.2d 25, 27 (Mo.App.1978). A summary judgment is appropriate only where the pleadings, depositions, admissions on file, together with any affidavits reveal that there is no genuine issue of material fact. Id. A genuine issue of fact preventing summary judgment exists whenever there is the slightest doubt as to the facts. Ira E. Berry, Inc. v. American States Insurance Co., 563 S.W.2d 514, 516 (Mo.App.1978); Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328, 331 (Mo.App.1977). It is incumbent upon the party moving for summary judgment (in this case the defendant) to demonstrate by unassailable proof that there is no genuine issue of fact. Edwards v. Heidelbaugh, 574 S.W.2d at 27.

On appeal, plaintiff argues that there remains a genuine issue of fact as to the truthfulness of the reason stated in the service letter for terminating his employment. Defendant argues in response that we should affirm the trial court’s ruling because this issue was decided by the arbitration committee and therefore, plaintiff is collaterally estopped from relitigating it here.

The courts have on occasion, used the terms res judicata and collateral estoppel interchangeably. See Ratermann v. Ratermann Realty and Investment Co., 341 S.W.2d 280, 290 (Mo.App.1960). We believe the doctrine involved in this case is that of collateral estoppel. “Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid judgment, that issue cannot again be litigated between the same parties in future litigation.” City of St. Joseph v. Johnson, 539 S.W.2d 784, 785 (Mo.App.1976). Thus, we must determine whether the issue which plaintiff seeks to litigate in his suit under § 290.140 is identical to the issue presented and determined at the grievance hearing.

The service letter provided by defendant stated that plaintiff was discharged for recklessness “resulting in a serious accident while on duty.” Plaintiff’s petition does not challenge the truthfulness of this reason, or allege that he was discharged for some other reason. Instead, it asserts that the letter was false “in that plaintiff did not drive a Yellow Freight vehicle in a reckless manner ‘resulting in a serious accident while on duty.’ ” This issue, whether or not plaintiff was reckless, is the identical issue litigated by the two parties at the grievance committee hearing. Since the grievance committee ruled against the claim, it implicitly found that plaintiff was reckless. Therefore, we conclude that plaintiff was barred by the doctrine of collateral estoppel from relitigating this issue in his suit under § 290.140.

Although this issue was decided by the grievance committee rather than a court of law, this fact should not prevent the bar of collateral estoppel from applying. Local Freight Drivers, Local No. 208 v. Braswell Motor Freight Lines, 422 F.2d 109, 114 (9th Cir. 1970) cert. denied 400 U.S. 827, 97 S.Ct. 53, 27 L.Ed.2d 56 (1970); ACMAT Corp. v. International Union of Operating Engineers, 442 F.Supp. 772, 783 (D.Conn.1977). If the procedure used to settle the dispute is one of the party’s own choosing, as it was here, and was a final and binding arbitration between the parties, the courts may not relitigate facts determined in the arbitration proceeding. Drivers Union v. Riss and Co., 372 U.S. 517, 519, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963). Our Supreme Court recognized in Grubb v. Leroy L. Wade and Son, Inc., 384 S.W.2d 528 (Mo.1964) that a right of action granted by state law may be subject to the estoppel effects of a prior and binding arbitration. In Grubbs, the plaintiffs, five members of the Teamsters Union, had unsuccessfully prosecuted claims before the grievance committee as provided in their contract. They then filed suit in common law conspiracy and for breach of contract. The Supreme Court held that the adverse decision of the grievance committee constituted a final and binding decision preventing their prosecutions in state court of these causes of action.

Here, the contract between the two parties furnished a specific procedure for resolving disputes between the union and employer. As a party to the contract, plaintiff was clearly within his rights to invoke the grievance procedure mechanism. However, having done so, he may not now relitigate that decision simply because it was unfavorable to him.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . Plaintiff was a member of the Teamsters Union, Local 600. At that time, the governing contract between the union and defendant provided for discharge without notice for “recklessness resulting in a serious accident while on duty.”

      . The contract provides in Article 45 as follows:
      Section 1 Disputes shall first be taken up between the employer and the Local Union involved. Failing adjustment by these parties the following procedure shall then apply:
      (a) Where a joint State Committee by a majority vote, settles a dispute, no appeal may be taken to the Joint Area Committee. Such decision shall be final and binding on both parties.