author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. SOUTHSIDE NATIONAL BANK et al., Exceptions of Hazelwood Motor Company, et al., Defendants-Appellants.
    No. 40432.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    J. B. Carter, Carter & Becker, Clayton, for defendants-appellants.
    Richard E. Baker, Missouri State Highway Commission, Kirkwood, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant, Hazelwood Motor Company, appeals from the entry of summary judgment dismissing its exceptions filed to the commissioners’ award in a condemnation proceeding. On appeal Hazelwood maintains that there remains a genuine issue of material fact, i. e., damages, and, therefore, that plaintiff was not entitled to summary judgment as a matter of law.

Plaintiff filed a petition for condemnation of certain property owned by Baris Furniture Rental Company. Hazelwood Motor Company had a ten year lease, with option to renew or purchase, a portion of said property. Baris, Hazelwood Motor Company, and others, were named as defendants and served with process. Commissioners filed a report awarding $36,000 in damages for the property.

Defendant Hazelwood filed written exceptions to the commissioners’ award on April 14, 1976. No other exceptions were filed. On April 21, 1977, a stipulation was filed in the circuit court signed by Baris’ president, the president of Hazelwood Motor Company, and attorneys for both parties. The stipulation provided:

1. Heretofore a judgment of condemnation has been entered by the court in favor of the State of Missouri, ex rel. State Highway Commission of Missouri, said judgment affecting the property designated as Parcel No. 18, paragraph 16, page 11 in the Petition filed by the State of Missouri, ex rel., State Highway Commission herein.
2. Heretofore, commissioners duly appointed and acting upon Order of the Court have awarded the sum of Thirty-Six Thousand Dollars ($36,000.00) as damages by virtue of said condemnation, and said amount has been paid into court by plaintiff.
3. That Hazelwood, a lessee of Baris, has an interest in the property so designated above.
4. That the value of said interest in relationship to the value of the total property acquired by the plaintiff is ten per cent (10%) of the damages allowed by the commissioners for the total taking.
5. That said parties request that the court enter an order for payment of said award to include Baris Furniture Rental Company and Bo-Pipe, Inc., d/b/a Hazel-wood Motors Company.

The circuit court entered an order of distribution of the $36,000 award to defendants, Baris and Hazelwood Motor Company on the same day as the filing of this stipulation.

On March 22, 1978, plaintiff filed a motion for summary judgment as to Hazel-wood’s exception to the award of the commissioners. In its motion, plaintiff claimed that there was no justiciable issue of any material fact remaining to be litigated; that defendant Hazelwood’s exceptions entitled trial only on the issue of damages, but that the stipulation constituted a judicial admission as to the damages.

In response to the motion for summary judgment, defendant Hazelwood filed an affidavit on April 5, 1978, alleging that, subsequent to the commissioners’ award, Baris and Hazelwood had entered into negotiations which culminated in a stipulation agreement asserting distribution of the commissioners’ award. Attached to said affidavit was another stipulation, more detailed than the stipulation filed in court, setting forth agreements of the parties as to distribution in the event of a trial of the exceptions.

On April 24, 1978, following argument on the motion, plaintiff’s motion for summary judgment was “sustained” and Hazelwood’s exception to the award of the commissioners was dismissed with prejudice.

We are presented with one question for appellate review: Was defendant Hazel-wood’s stipulation, filed in court on April 21,1977, a judicial admission as to damages, and, therefore, is the plaintiff entitled to summary judgment as a matter of law?

We said in Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.1978):

In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment was rendered, and to accord to such parties the benefit of every doubt, [citations omitted] A summary judgment may only be rendered where it is made manifest by the pleadings, deposition and admissions on file together with any affidavits, that there is no genuine issue of material fact, [citations omitted]

Summary judgment may be entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. Brummet v. Livingston, 384 S.W.2d 101 (Mo.App.1965).

In the case before us, an issue of fact remains: the fact of the determination by a jury as to assessment of value, or, of actual damages. The court improperly ruled that the stipulation filed in court was a judicial admission of value.

The error of plaintiff’s position can be seen by a review of the law of Eminent Domain. If the tenant has a com-pensable interest, as here, in the land condemned, he has the right to be made a party to, and to be served notice of, condemnation proceedings. Millhouse v. Drainage District No. 48 of Dunklin County, 304 S.W.2d 54[1] (Mo.App.1957). Defendant Hazelwood was properly made a party here. After the commissioners’ award Rule 86.08 provides:

. . .Any party may file written exceptions to the report of the commissioners within ten days after the service or posting of the notice aforesaid. Upon the filing of such exceptions, the issue of the amount of damages sustained by, and benefits accruing to, the defendants’ property, if any, as a result of the appropriations, shall be submitted to a jury, . . ..

Clearly, defendant, Hazelwood had a right to file exceptions. Section 523.053, RSMo 1969 provides for the distribution of condemnation awards among defendants. Paragraph one of that section provides for the filing of an agreement among the parties setting out the manner and percentages by which said award is to be divided among them. Paragraph two provides for a court determination if the parties have made no such agreement. Paragraph three provides that, whether determined by the court or by agreement, the percentage shall extend “to any additional compensation awarded or any reduction of the award thereafter made. . . ”

Frankly, it appears to us that the stipulation on its face, although filed some one year following the commissioners’ award, is in accord with § 523.053. The statutes provide for the clerk to distribute the amount of the commissioners’ award to the parties pending the trial of any exceptions. The purpose of this statute is, of course, to protect the condemnor and various parties claiming an interest in the property. Even though the stipulation in controversy was filed beyond the original thirty day period provided by statute, it complies with the intent and objective of the statute. Late filing of this stipulation does not prejudice the plaintiff. On the date of the filing of the stipulation, the court in its distribution order refers to the commissioners’ award stating that Hazelwood had a 10% interest in the award because of the stipulation, and orders the clerk to issue the check to Baris and Hazelwood. Neither the court nor defendant Hazelwood dismissed the exceptions which had been filed by Ha-zelwood one year prior to the distribution order. Undoubtedly, all parties intended that the exceptions retain vitality. Upon our finding that the trial court erred in granting summary judgment, we remand the case to the trial court for further proceedings.

GUNN and CRIST, JJ., concur.

      . This statute provides: “1. Within thirty days after the commissioners’ award has been paid to the clerk of the court, where there is more than one defendant, those defendants claiming a determinable interest in the proceeds of said award may file with the court an agreement setting out the manner and the percentages in which said award is to be divided among them. If no such agreement is filed during said thirty day period, any defendant claiming such an interest may by motion for distribution petition the court in which said cause is pending for determination of the percentage of the commissioners’ award to which each of said parties is entitled; . . ”
      Paragraph two provides that “[w]ithin thirty days after the filing of such motion, the court having jurisdiction of said cause shall determine the percentage of the award to which each party having an interest therein is entitled
      Paragraph three provides that “[t]he respective interests of all parties in the award made as a result of the condemnation action, whether determined by said agreement or by the court, shall be final and shall extend by percentage to any additional compensation awarded or any reduction of the award thereafter made, together with interest, on the trial of exceptions, and said interest established shall be binding on all parties, plaintiff and defendant; . .

      . The parties in their briefs raise conflicting theories as to how to approach a trial of exceptions where the tenant alone has filed exceptions. This issue was not properly before us in this case. Neither has this case determined the effect, if any, of the second stipulation.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ernest Zep ROBINSON, Appellant.
    No. 40401.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    Robert A. Hampe, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., David Fischer, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction by a jury of burglary in the second degree. He was sentenced under the Second Offender Act by the court to serve a term of ten years in the Department of Corrections.

Alfred Bischoff, a resident of California had come to St. Louis to attend a reunion. He and his wife were staying at Stouffer’s Riverfront Hotel. When he returned to his room for the evening, he closed the door. He woke up around four in the morning and saw a figure standing at the foot of his bed. He heard something jingle like a belt buckle. The person ran out the door. Bis-choff followed and found defendant in the hands of a plain clothes police officer. Defendant had Bischoff’s trousers in his hands. The pants contained his coin purse which held a ten dollar bill.

The officer testified that the door was closed when he passed the room at 2:15 a. m. Later when he passed the room he heard the door open and turned to see defendant inside the room looking at the door. The door then closed. The officer stepped down the hallway a few feet. The defendant came out and was detained by the officer.

The defendant first alleges that the court erred in failing to quash the indictment since the only evidence of the breaking presented to the grand jury was un-sworn testimony.

There was no evidence presented on the motion but we glean from the record and the briefs that someone in the Prosecuting Attorney’s office talked to victim (Bischoff) by phone and recorded the conversation. Respondent states in its brief:

Appellant was indicted twice for the crime. The first indictment was based entirely on the grand jury’s hearing the tape-recorded statement of the victim. However, that indictment was dismissed by the state and a second indictment was obtained with the grand jury hearing both the tape-recorded statement of the victim and the testimony of the police officer who caught the appellant outside the burglarized hotel room.

We are not aware of the full extent of the officer’s testimony before the grand jury since the law in Missouri does not require that a court reporter be present during the grand jury proceedings. Therefore, since there is no record before the court that would lead us to a different conclusion, we find no violation of the Supreme Court requirements dealing with the sufficiency of the indictment.

The Missouri Supreme Court in State v. Tressler, 503 S.W.2d 13 (Mo.1973) held that indictment by grand jury on the sole basis of hearsay evidence does not violate due process. The United States Supreme Court expressly so held in the case of United States v. Costello, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Our Supreme Court has previously stated “. . While an indictment cannot be returned without the hearing of some testimony, the grand jury are themselves the judge of how much testimony is required, and also as to whether the testimony which they hear is competent.” State v. Randolph, 139 Mo.App. 314, 317, 123 S.W. 61, 62 (1909).

Further in State v. Pierson, 337 Mo. 475, 85 S.W.2d 48, 50 (1935) the Supreme Court said “. . . [T]he question is not as to the sufficiency of the evidence before the grand jurors, for of that they are the judges, but it is whether they had before them any evidence at all. If it were otherwise, it would result that the court would become the tribunal to indict as well as the tribunal to try the case.” However, it is important to note that the court in Tressler expressed in their acceptance of an indictment based on hearsay, some limitations on prosecutors as to the evidence presented to a grand jury.

. We adhere to the rule that an indictment may be based on hearsay. The defendant has not contended that the grand jury was totally without evidence or that they viewed, heard and accepted illegal evidence.

503 S.W.2d at 16 (Emphasis added.)

Defendant next contends that the court erred in admitting prior court testimony of Bischoff since the state failed to prove his death or unavailability.

Bischoff testified at the first trial of this case. That case resulted in a hung jury. According to the state, Bischoff died before the second trial while in France. Prior to the introduction of his transcribed testimony at the first trial the state offered Exhibit 8 into evidence, a Form FS-192, entitled “Report of the Death of an American Citizen” from the United States Security office. The court received the exhibit in evidence and found it was sufficient to establish the death of Bischoff for the purpose of admitting his prior recorded testimony. The exhibit was properly authenticated under the Acts of Congress.

Testimony of a witness who is deceased or otherwise unavailable is admissible against a defendant if the former testimony was given under oath in a prior judicial proceeding at which the defendant was present and afforded the opportunity to cross-examine witness. State v. Brooks, 551 S.W.2d 634 (Mo.App.1977). We believe that the state sufficiently satisfied its burden as to proof of death of the witness for the purpose of using the prior testimony. Death may be shown by many types of evidence, circumstantial or direct. State v. Morrow, 541 S.W.2d 738 (Mo.App.1976).

Section 490.220 RSMo 1969 provides:

All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said records or books, and the seal of his office, if there be a seal.

In 22 U.S.C. Sec. 2657, it is provided that the Secretary of State is in charge of all records of the Department of State. In 22 U.S.C. See. 1176, it is provided that the consular office should notify the Secretary of State of the deaths of an American citizen in his district. 22 C.F.R. 72.1 provides that the consular office is responsible for reporting to the State Department the death of all American citizens occurring in his consular district. The means of providing the information to the State Department is set out in 22 C.F.R. 72.4 where it is stated:

(a) Purpose and Use of Form FS-192. Form FS-192 ‘Report of the Death of an American Citizen,’ is an administrative report established for the purpose of providing essential facts concerning the death of a United States citizen and should be used to report the death officially to the Department, to the legal representative, and to the closest known relative of the deceased. Notification of death by telegraph does not eliminate the necessity for reporting the death on Form FS-192.

Exhibit 8 was Form FS-192.

This point is also without merit.

Affirmed.

GUNN and CRIST, JJ., concur.


author: GREENE, Judge. FLANIGAN, Chief Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald PHILLIPS, Defendant-Appellant.
    No. 11011.
    Missouri Court of Appeals, Southern District, Division One.
    July 16, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 6, 1979.

      John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    A. L. Shortridge, Joplin, for defendant-appellant.
   GREENE, Judge.

Defendant Ronald Phillips was convicted in the Circuit Court of Jasper County of the crime of forcible rape in violation of § 559.-260, RSMo 1969, V.A.M.S. His punishment was fixed at 5 years’ imprisonment by the jury. His motion for new trial was overruled. The trial court, after consideration of the pre-sentence report, reduced the sentence to the minimum prescribed by law for the offense in question, which was two years. Defendant appeals the judgment and sentence.

Defendant raises two points on appeal, which are 1) that the trial court erred in overruling defendant’s motion for judgment of acquittal made at the close of all of the evidence for the reason that the evidence was legally insufficient to prove that defendant, a) inserted his sexual organ into the sexual organ of Nola Elmore, or b) threatened Nola with physical violence causing her to submit to sexual intercourse by reason of fear for her safety if she did not do so, and 2) that the court erred in submitting Instruction No. 4 (verdict director) for the reason that there was no evidence from which the jury could find that defendant had sexual intercourse with Nola Elmore or, if so, that she submitted to such by reason of threats made by defendant causing her to fear physical violence to herself if she did not submit. Since both of defendant’s complaints are bottomed on the claim of insufficient evidence, we review the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly drawn therefrom, which tend to support the verdict, and reject all contrary or contradictory evidence. State v. Petrechko, 486 S.W.2d 217, 218 (Mo.1972).

Viewed in a light most favorable to the state, the evidence at trial was as follows. Nola Elmore (prosecutrix) testified that she was a cab driver for the Terminal Cab Company of Carthage, Missouri. On October 31, 1977, at about 10 p. m., she was dispatched to the Fast Trip Super Market to pick up a passenger, the 17 year old defendant. Defendant asked her to take him to the Red Rock Apartments. As pros-ecutrix was driving along the river road near Kellog Lake, defendant suddenly grabbed the steering wheel. She put her foot on the brake and stopped the ear. She thought that defendant was either acting silly or wanted the car. She put the car in park gear.

Somehow the door on the driver’s side of the cab came open. She fell out, and defendant slid out after her. Defendant seemed to think it was funny. Defendant wound up partially under the cab while she was hanging on the car door. Her mind was “kind of blank” on what happened next. She then stated defendant took her by the arm and started to lead her to a boat ramp. She tried to reason with him, told him she was old enough to be his mother and if he would let her take him home, nothing would be said. He told her that he knew she was wanting him or needing him, or words to that effect. She said the car would be seen, as the lights were on and the motor was running.

He tried to pull her trousers down but, because she was wearing knee-high boots and socks, as well as pantyhose, her trousers would not come down past her boots. He “tried to do what he wanted to do there, but he couldn’t get in position for it right”. Defendant “backed off a little ways”. She picked up an empty beer can and hit him 2 or 3 times. He “just quit”. The couple walked back to the car. She said defendant turned off the lights and the motor. The dispatcher called over the radio and said, “If you can hear me you have a call at Gale’s”. Defendant grabbed for the radio wires and prosecutrix started running.

Defendant ran after her and caught her, picked her up and carried her to a spot near the river. She “hollered something” like “you are going to fall in the river”, and they both fell to the ground. He said, “Take your boots off”, showed her his fist and said, “If you don’t, I’ll throw you in the river”. He did not hit her but she was afraid he might. She took her boots off and, even though not asked, took her pants down. She then helped him take them off and “that is when he penetrated. There was times when he was in, and he wasn’t in and he thought he was, and then he seemed to lose his erection.” He wanted her to fool with him to help him “get it back”, so, “I started to help him with it, and about that time I heard Mr. Nichols (her employer) holler my name and I showed him and said, they are coming.” She didn’t think he had a climax.

On cross-examination, she said she imagined that she had turned the car motor off, as you had to pull the shift over in order to get the key in the right position for off, which contradicted the testimony that she had given on direct-examination. She admitted that she had not told the police about the struggle for the car radio, as she had not remembered it until after she gave a statement to the police. She said he was “stradling” (sic) her when he told her to take her boots off. She said she kept telling him that “he would be caught, we would be caught down there and this and that”. She went to the hospital for an examination after the police came. The examination did not reveal any evidence of sexual assault.

On redirect-examination, she said she was frightened when he told her he would throw her in the river if she did not take her boots off, and when asked if that was the reason she took them off said, “partly, yes, it was if he was going to throw me in the river, I can swim, but I don’t know if I could with them on or not”. She testified, in answer to a question asking if she was frightened, “Yes. Like I said I wasn’t so worried about the rape part as I was about what he was going to do afterwards”. There was no testimony as to what he was going to do in the future. Defendant never struck her, never threatened to kill her, never threatened to hurt her, and never threatened to do anything to her except throw her in the river if she did not take her boots off.

Burt Nichols, the manager of the cab company, then testified. He said he went to the office of the taxi cab company at about 10:15 p. m. on the evening in question and found that one of the taxi cabs was missing. He drove down by Kellog Lake and saw the cab sitting in the road. Carthage Press newspapers were “strung out” on the driver’s side of the front seat. He radioed his dispatcher and told him to call the Carthage Police to the area. Nichols shouted Nola’s name, and she called back, “I’m over here”. She was in a tall, grassy area some distance to the east. He went to the area where she was. Prosecutrix was sitting on the ground in a “disposed” position, naked from the waist down. He saw defendant running toward the river with his pants down. Defendant then jumped into the river. Nichols fired a shot in the air with his pistol, and defendant stopped swimming and came back to shore. The police came. When Nichols left the scene, defendant was lying on the river bank.

Robert Byrd then testified. He said he was in the Kellog Lake area on the night in question. He got there about 9 p. m. About an hour and a half later, he saw a car stop over at the river and heard a woman yell. He did not know what she said. He later saw the car. It was a cab and it was sitting in the middle of the road. He said the lights of the car had gone out within seconds after it stopped, thereby contradicting the testimony of prosecutrix. The yell that he heard did not sound like a cry for help but sounded like a couple of drunks. He was at the scene when Nichols called for Miss Elmore. All was quiet before he called her. After Nichols called, all that she said was “I’m over here”. This concluded the evidence for the state.

Defendant’s evidence was as follows. Carthage Police Officer Kenneth W. Thompson was one of the police officers called to the scene. He saw the taxi cab sitting in the middle of the road. The defendant was laying in the water and was either in shock or a coma. He was taken to the jail and then to the hospital. The pros-ecutrix did not give a statement at the scene, but gave one later at the police station. She was nervous and upset. She did not have any bruises or any other marks on her.

Dr. Gil B. Manalo then testified. He examined the prosecutrix after the incident in question. He did not find any evidence of male sperm. He said that she was nervous, distressed and frightened. He did not find any evidence of bruises. After conclusion of all the evidence, defendant moved for a judgment of acquittal on the grounds that the state had not made a submissible ease. The motion was overruled.

A conviction for rape may be sustained upon the uncorroborated testimony of the prosecutrix alone, unless her testimony is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful, in which case corroboration is required to sustain the verdict. State v. Lee, 404 S.W.2d 740, 747 (Mo.1966). Where the prosecutrix is a mature woman, where the alleged rapist is only one year removed from being classified as a child under Missouri law, and where the case, as here, is extremely weak, corroboration should be required. Neither the state nor defendant have cited any cases in their briefs, and we find none where the words “he penetrated me” have been held to be proof of sexual intercourse, of and by themselves. Even when you add her words “there was times when he was in and he wasn’t and thought he was”, her testimony on the issue of sexual penetration was vague and conclusionary.

Further, on the issue of whether prosecutrix sexually submitted to a 17 year old boy out of fear of violence to her person if she did not do so, the state’s case comes a cropper. It is true that actual physical force need not be proven, if the woman who submits to sexual intercourse does so through fear of violence that overpowers her mind to resist. State v. Garrett, 494 S.W.2d 336, 339 (Mo.1973); State v. Hamm, 577 S.W.2d 936, 939 (Mo.App.1979), but there is no such evidence in this case. A meticulous review of the evidence shows, at the very least, that the testimony of prose-cutrix regarding the fear issue is contradictory and in conflict with surrounding circumstances, common experience and common sense. There was no violence done to her person, and the only alleged threat of violence was her testimony that he showed her his fist and said that he would throw her in the river if she did not take her boots off. There was no testimony that he said he would hit her, throw her in the river, or anything else if she did not submit to his sexual advances. She said, “I wasn’t so much afraid of the act of rape itself as I was of what he was going to do afterward”, but there was no testimony of what he was going to do afterwards. After she took her boots off, there is no testimony that he threatened her in any way, or that she submitted out of fear. She helped him take her pants off and, after he lost his erection, was in the process of voluntarily helping him to “get it back” when her employer arrived at the scene. There was no evidence that she made a prompt outcry to him, or to the police, that she had been raped. There was no evidence that she was crying or hysterical. There was no medical evidence that she had been sexually abused.

There was absolutely no corroboration by any witness of her testimony alleging rape by force, or fear of force, even if we could consider her testimony as probative on that issue. Witnesses did testify that she was nervous and upset after the incident, but such testimony is not necessarily corroborative of her being raped by force or fear. We are of the opinion that the uncorroborated testimony of the prosecutrix, where some of such testimony was contradictory and much of it contrary to common experience and common sense, was legally insufficient to take the case to the jury on the issue of force and lack of consent. This being so, the trial court should have sustained the motion for a directed verdict of acquittal at the close of all of the evidence on the grounds that the state had not made a submissible case. The failure to do so was prejudicial error.

While we are loath to overturn a jury verdict, as a jury has an opportunity to weigh evidence and determine the credibility of witnesses, we have a duty to do so when the case should never have been submitted to the jury in the first place and where the net result of the jury verdict would result in imprisonment of the defendant on facts as vague, conclusionary and contradictory as these.

The judgment is reversed. The defendant is discharged.

FLANIGAN, C. J., concurs in result and files separate opinion.

TITUS, J., concurs.

FLANIGAN, Chief Judge

(concurring in result).

The state’s verdict-directing instruction (MAI-CR 6.40) required the jury to find the defendant guilty of rape if they found and believed from the evidence beyond a reasonable doubt:

First, that on or about October 31,1977 in the county of Jasper, State of Missouri, the defendant inserted his sexual organ into the sexual organ of Ñola E. El-more, and
Second, that he did so against her will and after he caused her to submit by threats which caused her to fear physical violence to herself.

In my opinion the state’s evidence was sufficient to support the jury’s finding that the defendant inserted his sexual organ into the sexual organ of the prosecutrix.

I concur in the result of the principal opinion for the reason that, in my opinion, the state’s evidence was insufficient to support the finding by the jury that “he did so against her will and after he caused her to submit by threats which caused her to fear physical violence to herself.”


author: CRIST, Judge.

text:
    Kenneth SECREASE, Appellant, v. STATE of Missouri, Respondent.
    No. 41120.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.

      Huck & Kasten, Inc., Thomas C. Mum-mert, III, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Denial of Rule 27.26 motion to vacate judgment.

Movant pled guilty to the following: (1) two charges of first degree robbery with a dangerous and deadly weapon; (2) assault with intent to kill with malice; and (3) carrying a concealed weapon. He was given concurrent sentences of twenty-two years for each of the robbery charges and the assault charge and five years for the charge of carrying a concealed weapon. His Rule 27.26 motion to vacate these convictions was denied by the court below. He appeals. We affirm.

Movant complains he is entitled to an evidentiary hearing because his guilty pleas were induced by his attorney’s unfulfilled promise that he would receive a sentence of fifteen years. We disagree. Whatever promises his counsel may have given him is of little moment. He was fully informed on four separate pleas that the trial court would set the punishment. James v. State, 571 S.W.2d 127, 128[1] (Mo.App.1978).

The transcript of the proceedings show affirmatively that movant was not misled. His complaint is refuted by the record. Lindner v. State, 571 S.W.2d 441, 442-43[3, 4] (Mo.App.1978).

We hold that the judgment of the trial court is based on findings of fact which are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value.

Judgment affirmed in accordance with Rule 84.16(b).

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


author: SATZ, Judge.

text:
    Robert D. TODD and Gary E. Stopke, Respondents, v. ST. ANN’S SCHOOL MUSIC SERVICE, INC., a corporation, Appellant.
    No. 39399.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 17, 1979.

      Thomas C. Boyle, Clayton, for appellant.
    Maniscalco, Clancy, Pittman & Bagot by Cyril J. Clancy, Clayton, for respondents.
   SATZ, Judge.

Defendant, St. Ann’s School Music Service, Inc., appeals from separate judgments entered in favor of plaintiffs, Robert D. Todd and Gary E. Stopke, after a trial by jury. As one of its points of error, defendant argues the failure of the jury to return verdicts on defendant’s separate counterclaims against plaintiff. We address only this issue and the facts relevant to it, for we find the failure of the jury to return verdicts on defendant’s counterclaims renders this appeal premature, which requires dismissal of the appeal.

In two separate counts of a two-count petition, plaintiffs Todd and Stopke each allege that he was a former employee of defendant and each plaintiff claims that defendant refused to pay money due to each of them under an alleged Profit Sharing Plan. Defendant filed its answer, specifically denying each of these claims and, in addition, defendant filed a counterclaim against each plaintiff.

In its counterclaim against plaintiff Todd, defendant alleges that Todd breached his “employment duties” by failing to make and preserve the necessary records of eus-tomer transactions, by failing to follow defendant’s rules of business procedure and by exceeding the limitation of his authority in allowing merchandise to be taken from defendant’s premises, all of which allegedly caused defendant damage in the amount of $6,024.00. In its counterclaim against plaintiff Stopke, defendant alleges that Stopke “over claimed” money to be paid out of earned commissions in the amount of $2,458.54, which defendant claims is due and owing.

Plaintiffs introduced evidence concerning their respective claims, and a verdict directing instruction was given on each of their claims requiring the jury to return a verdict for each plaintiff if defendant promised a profit sharing plan and defendant breached this promise.

Defendant introduced evidence concerning both counterclaims and a verdict directing instruction was given on each of these counterclaims. As to the counterclaim against Todd, the jury was required to return a verdict for the defendant on its counterclaim if it found that Todd breached his contract of employment by failing to follow the rules of defendant’s business and to preserve defendant’s “goods and contracts” and that defendant was damaged by this breach. As to the counterclaim against plaintiff Stopke, the jury was required to return a verdict for defendant if it found that Stopke worked for defendant on a commission basis, that he overdrew his commission and, as a result, Stopke owed defendant money. In addition, a separate damage instruction was given to the jury for each of defendant’s counterclaims.

The jury returned a verdict in favor of each plaintiff on their respective claims, but the jury failed to return a verdict on either of defendant’s counterclaims. At that time, neither party called this defect to the trial court’s attention. However, defendant did raise this defect as an issue in its motion for a new trial.

Understandably, on the facts, plaintiffs do not contend that defendant abandoned its counterclaims. However, plaintiffs do contend defendant’s counterclaims were so interrelated with plaintiffs’ claims that the jury’s verdicts for plaintiffs necessarily imply the jury found against defendant and, thus, the verdicts for plaintiffs, in effect, were also verdicts against defendant on its counterclaims. We do not agree.

Since the right of appeal is purely statutory; e. g., Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821, 823 (1953), defendant’s right to maintain the present appeal depends upon that provision of § 512.020, RSMo which permits an appeal “from any final judgment in the case”. Case law interpreting this provision has firmly established the principle that, in order for a judgment to be final and appealable, it must dispose of all parties and issues in the cause. Bennett v. Wood, 239 S.W.2d 325, 327-328 (Mo.1951); Deeds v. Foster, 235 S.W.2d 262, 265 (Mo.1951). Equally well established is the corollary to this principle: if a counterclaim is pleaded and submitted, a finding must be made disposing of the counterclaim, otherwise, the subsequent judgment is not final and appealable. Jack Brandt, Ltd. v. Morris, 400 S.W.2d 417 (Mo. 1966); Deeds v. Foster, supra; L. & L. Leasing v. Asher, 440 S.W.2d 181 (Mo.App. 1969).

We recognize there are exceptions to the corollary. For example, as presently argued by plaintiffs, a finding for a plaintiff which necessarily carries with it a finding against a defendant, on the defendant’s counterclaim, will sustain the finality of a judgment even though no mention has been made of the counterclaim, Commercial Nat. Bank of Kansas City, Kan. v. White, 254 S.W.2d 605, 609 (Mo.1953); Staples v. Dent, 220 S.W.2d 791, 792 (Mo.App.1949); and even though no specific finding is made on a counterclaim, a verdict will be considered as being responsive to all issues raised, if a review of the whole record irresistibly compels the conclusion that the fact finder did consider and determine the issues presented by the counterclaim. United Iron Works v. Twin City Ice & Creamery Co., 317 Mo. 125, 295 S.W. 109, 115-116 (1927); North Cty. Sch. Dist. v. Fidelity & Deposit Co., 539 S.W.2d 469, 476-477 (Mo.App.1976).

The instant ease does not fall within either of these two exceptions. Each of plaintiffs’ claims was based on defendant’s alleged breach of its Profit Sharing Plan, and each of defendant’s counterclaims was based upon an alleged breach of duty apparently derived from the general employment contract between defendant and plaintiffs. Plaintiffs have not shown and the record does not indicate that the correlative rights and duties in issue under the Profit Sharing Plan were clearly and specifically connected to and interrelated with the correlative rights and duties in issue under the general employment contract. To the contrary, plaintiffs’ claims and defendant’s counterclaims were separate, distinct and not necessarily related causes of action. Thus, the jury’s verdicts on plaintiffs’ claims do not necessarily carry with them a finding against defendant on its counterclaims. Furthermore, plaintiffs do not point out and a careful review of the record does not disclose any fact or facts which compel an inference that the jury did consider and determine the issues raised by defendant’s counterclaims. Thus, the defective judgment in this cause is not cured by the record.

Plaintiffs also contend that defendant waived its right to complain about the defective judgment because defendant failed to call the absence of verdicts on its counterclaims to the trial court’s attention at the time the other verdicts were returned. Again, we do not agree.

It is the responsibility of the trial court to require the jury to return a verdict on each claim submitted, Thorne v. Thorne, 350 S.W.2d 754 (Mo.1961); see Jenkins v. McShane, 539 S.W.2d 752, 754 (Mo.App. 1976); and, although counsel’s inaction may waive defects in verdicts which have minor irregularities or ambiguities, e. g., Bunch v. Crader, 369 S.W.2d 768, 794 (Mo.App.1963), counsel’s inaction cannot create a verdict where none exists, e. g., Thorne v. Thorne, supra, at 759; see Bunch v. Crader, supra, at 774. Here, there were no verdicts on defendant’s counterclaims, and the inaction of defendant’s counsel could not and did not create these verdicts. Thus, defendant’s inaction does not cure the defective judgment now before this Court.

Since the defects in the present judgment have not been cured, no final and appeala-ble judgment is now before the Court. It follows that defendant’s appeal is premature, and, for this reason, we dismiss this appeal.

DOWD, P. J., and CRIST, J., concur.

      . In the White case, a finding for plaintiff of an amount claimed to be due and owing on a note necessarily disposed of defendant’s counterclaim which sought restitution of the amounts paid by defendant on the note. In the Dent case, each party claimed the other’s negligence caused the accident in issue.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Sylvester Sterling KENNON, Defendant-Appellant.
    No. 39095.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.

      William J. Shaw, Public Defender, Patrick M. Sanders, Asst. Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Prosecuting Atty., Ann Frances Carpini, Clayton, for plaintiff-respondent.
   CRIST, Judge.

A jury convicted defendant of manslaughter upon a submission of murder second degree or manslaughter. Defendant was sentenced to ten years in the penitentiary. We affirm.

A friendly evening between defendant, the victim, and Ernestine Tate developed into a quarrel which resulted in the stabbing death of the victim at the home of Ernestine Tate. Testimony for the state was given by one adult witness and defendant’s daughter and son, aged 14 and 13, who were eyewitnesses and also residents of the Tate home. The controversy upon appeal pertains to comments by the prosecutor during the opening portion of her summation concerning the failure of two younger children, also eyewitnesses and living in the same home, to testify. She said the children were young and had nothing to add to the case.

The evidence at trial was copious and confusing, replete with inconsistencies and contradictions. Defendant testified and denied stabbing the victim.

The relevant portion of the prosecutor’s argument is as follows:

“MISS CARPINI: .... I didn’t call these children. I hope you don’t hold it against me. There was the defendant too, he could have called them. I think it is some credit to Mr. Rodemyer that he didn’t force these children to go through this either. They had nothing to add to the case. He would have brought them in, you know that.
MR. RODEMYER: I object to that. That’s highly improper statement. She’s testifying to what these children would have testified to.
MISS CARPINI: Why didn’t you bring them in?
MR. RODEMYER: The burden of proof is on the State.
THE COURT: I didn’t hear her testifying nor what they would say; you may proceed. Objection overruled.
MISS CARPINI: Jurors, my point is only that these small children are available to both of us. If they had anything to add, they would have been called, but it is just too much to put a nine year old and ten year old through. You saw how it affected the teenagers and I hope, I pray that you don’t take into consideration, you don’t think we are trying to hide anything from you. I brought in the only witnesses I could to show you what happened that day.”

Defendant correctly contends that the prosecutor made an improper reference to the supposed testimony of two absent witnesses by stating that the two young children had nothing to add to the case. Further, the prosecutor should have remained silent concerning her failure to call witnesses in the opening portion of her closing argument. Such comments should have been reserved for the final portion of her closing argument, but only in retaliation.

It is improper for counsel to refer to what an absent witness would have testified. 23A. C.J.S. Criminal Law § 1094, p. 155 (1961); see, State v. Cuckovich, 485 S.W.2d 16, 27 (Mo. banc 1972) (Counsel should refrain from arguing matters not in evidence during closing argument.); accord, State v. Bailey, 526 S.W.2d 40, 43 (Mo.App. 1975). However, a reference to facts not in evidence does not constitute reversible error per se. State v. Bailey, supra (Trial court did not abuse its discretion in overruling an objection to the prosecutor’s argument the victim, had he lived, would have testified the defendant did not act in self-defense.) Rather, the court must consider the whole record to determine whether or not the defendant received a fair trial. State v. Bailey, supra. The trial court has wide latitude in the control of oral argument; and, absent abuse of its discretion and prejudice to defendant, an appellate court must sustain the trial court’s ruling. State v. Treadway, 558 S.W.2d 646, 650 (Mo. banc 1977).

In the instant case, the prosecutor did not affirmatively disclose what the testimony of the children would be had they been called as witnesses. The reference to the content of any testimony they might have given was merely implicit. The children were of a young and tender age, and the prosecutor’s comments, when read in their entirety, emphasize the avoidance of possible emotional upset rather than the avoidance of duplication as the motive in not calling the children as witnesses.

Deferring to the opportunity of the trial judge to judge the effect of the prosecutor’s argument upon the jury, we cannot say that defendant was prejudiced. On the whole record, we must agree with the trial court that the defendant received a fair trial.

The judgment is affirmed.

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


author: TURNAGE, Judge.

text:
    Bernard Christopher DUREN, Plaintiff-Respondent, v. George Albert DOUGHERTY, Defendant-Appellant.
    No. KCD 29965.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      William A. Atkinson, Welliver, Atkinson & Eng, Columbia, for defendant-appellant.
    Hamp Ford, Knight & Ford, Columbia, Michael L. Midyett, Midyett & Shea, Keytesville, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Bernard Duren filed suit against George Dougherty for personal injuries and property damages resulting from an automobile accident. Dougherty and his wife, Dee, filed a counterclaim for personal injuries. The jury returned a verdict in favor of Duren for $18,000 personal injuries and $675 property damage and found in favor of Duren on the counterclaims. On this appeal Dougherty raises the decisive issue of error in giving Instruction No. 9 because it failed to follow the Notes on Use of MAI 4.01. Reversed and remanded.

From the evidence presented by Duren the jury could have found that Duren was driving north on Highway 5 on the outskirts of Fayette and Dougherty was southbound. Duren stated the Dougherty vehicle suddenly crossed the centerline in front of him and struck the left front of his automobile. Dougherty’s version was that he was driving south when he “blacked out” and he has no memory of crossing the cen-terline. Duren’s case was submitted on Dougherty driving on the wrong side of the road. Dougherty submitted contributory negligence and the counterclaims on Du-ren’s excessive speed.

The court gave Instruction No. 9 in the form of MAI 4.01. The Notes on Use following MAI 4.01 direct the phrase “on plaintiff’s claim for damages” be added after the word “plaintiff” in the first clause of the instruction if there is a counterclaim. Instruction No. 9 omitted “on plaintiff’s claim for damages” even though there was a counterclaim by Dougherty and his wife. Dougherty asserts Instruction No. 9 as given was erroneous because the Notes on Use were not followed and argues that by omitting “on plaintiff’s claim for damages” the jury was not informed as to the identity of the issues required to be found before it could award Duren damages. Dougherty points out the language of this instruction would allow the jury to award Duren damages even though the jury only found the issues in favor of Duren on the counterclaim filed by Dougherty but did not find the issues in favor of Duren on Duren’s claim for damages.

There is no doubt the Notes on Use contained in MAI are to be followed. Royal Indemnity Company v. Schneider, 485 S.W.2d 452, 458[4] (Mo.App.1972). Nor is there any doubt that prejudicial error is presumed when there is a deviation from an applicable MAI instruction, “unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259[3] (Mo. banc 1967). Beyond question Instruction No. 9 deviated from the MAI form mandated to be used in this case when it omitted the phrase “on plaintiff’s claim for damages” which was required by the Notes on Use. This is presumed to be prejudicial error unless Duren can show that no prejudice could have resulted.

Duren argues that no prejudice resulted because the jury, consisting of reasonable people, would not have been misled and for the further reason that if Dougherty felt the instruction was too general because the required phrase was omitted, he had the obligation to offer an instruction to correct the mistake. It is apparent from Brown and Royal Indemnity that Dougherty had no responsibility to offer an instruction to cure the mistake. MAI required Instruction No. 9 to contain the phrase “on plaintiff’s claim for damages” and in that situation Dougherty was not required to offer an instruction to correct the omission. In fact, the court could not have given any instruction on the measure of damages other than 4.01 in proper form.

Duren’s argument that reasonable people on the jury could not have been misled by the instruction is not persuasive. The bare allegation that the jury could not have been misled does not satisfy the burden placed upon Duren to make it perfectly clear that no prejudice could have resulted from the deviation. On the contrary, it is apparent that the omission of the required phrase created a conflict within the instructions because under Instruction No. 9 the jury could have found the issues on the counterclaim in favor of Duren but not have found the issues on Duren’s claim in his favor. Yet under Instruction No. 9 all that was required in the absence of the required phrase “on plaintiff’s claim for damages” was that the issues on any claim be found in favor of Duren and he was then entitled to recover damages. The Notes on Use require in this case the insertion of “on plaintiff’s claim for damages” for good reason to pinpoint the claim on which the jury must find the issues in favor of the plaintiff before they can award the plaintiff damages. By reason of the deviation from MAI the error is presumed prejudicial and since it is not shown that prejudice could not have resulted from the deviation the judgment must be reversed and the cause remanded.

Dougherty complains also of Instructions 2 and 6 because in both of these the old form of MAI 17.13 which was used which submitted “defendant George Albert Dougherty drove on the wrong side of the road” instead of the required form “defendant’s automobile was on the wrong side of the road.” Duren concedes this mistake but claims it was non-prejudicial. It is not necessary to decide that question because the case is being remanded. On retrial, of course, the correct form should be used.

Dougherty also complains of Instruction No. 7 which was MAI 3.01 modified. That instruction contained the sentence: “The burden is upon defendant George Albert Dougherty and Dee C. Dougherty to cause you to believe the propositions necessary to support their counterclaims against plaintiff Bernard Christopher Duren and the defense of George Albert Dougherty that plaintiff Bernard Christopher Duren was contributorily negligent as submitted in Instruction No. 3.” Dougherty contends this instruction erroneously placed the burden of proof upon Dee to prove the defense of contributory negligence. This objection is well taken and on retrial the instruction can easily be drafted so that the burden of proving contributory negligence is not placed on Dee.

Dougherty also complains about Instruction No. 13, the form of verdict, which was MAI 36.04 modified. The principal complaint concerns the inclusion of Dee in the introductory paragraph of the form of verdict for finding in favor of Duren. This paragraph read: “If all of you agree upon a verdict in favor of the plaintiff Bernard Christopher Duren and against defendant George Albert Dougherty, and against Dee C. Dougherty, it may be in the following form: . . . .” Dougherty complains that Duren did not sue Dee and it was confusing to the jury to have her name listed in this paragraph. On retrial Dee’s name should be stricken from that paragraph. This instruction also fails to follow 36.04 so far as possible. The form requires modification to include a form of verdict on Dee’s counterclaim, but with that exception it should follow the prescribed form.

The remaining questions need not arise on a retrial.

For the error in giving Instruction No. 9, the judgment is reversed and the cause is remanded.

All concur.

      . If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.


author: MANFORD, Judge.

text:
    Leroy HOLOMAN, a Minor, By and Through his Father and Next Friend, Luther Holoman, Appellant, v. Marvin HARRIS, Respondent.
    No. 30061.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Martin M. Gorin, Kansas City, for appellant.
    Thomas J. Conway, William J. Burrell and Duane J. Fox, Kansas City (Burrell & Fox, for amicus curiae American Family Mut. Ins. Co.), for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from granting of motion for summary judgment. Trial court designated its judgment as a final and appealable order pursuant to Rule 81.06. Review is made herein pursuant to Rule 73.01.

The facts of this case are quite simple. Leroy Holoman, while riding his bicycle, was involved in a collision with two motor vehicles. At the time of the collision, he was 16 years of age. The collision occurred in May of 1974. On February 16, 1976, Leroy Holoman and his father executed a covenant not to sue to the favor of Marvin Harris, receiving $7,000.00 in exchange therefor. Leroy Holoman was 18 years of age at the time of the execution of the covenant not to sue. In July, 1976, this present action was filed against Veronica and Luke Long. Subsequent to the initial filing, the pleadings were amended, joining as defendants James Parker and Marvin Harris.

Separate defendant Marvin Harris pled the covenant not to sue as part of his answer. Defendant Marvin Harris then moved for summary judgment and the trial court sustained said motion, concluding the covenant not to sue was fully effective and hence a bar to recovery by Leroy Holoman as against defendant Marvin Harris.

On appeal, Leroy Holoman contends the trial court erred in holding the covenant not to sue as valid, because of the age of Leroy Holoman. His allegations contend the settlement supported by the covenant was ineffective because it lacked approval as required by §§ 475.135, 475.010 and 507.184, RSMo 1978; that the release of tort claims is not within the meaning and intent of the Legislature in that § 431.055 did not impliedly repeal § 475.135, and finding that if § 431.055 is to be construed broadly as covering contractual transactions, that such construction of § 431.055 is not applicable to the facts herein because § 475.135 is a special law covering settlements and is an exception to the general law.

Although presented separately, those points raised by appellant herein are taken up and disposed of collectively because each bears the same relationship to certain and specific questions.

The questions provoked by this appeal, and in turn related by appellant’s points of error, are as follows:

(a) Is a covenant not to sue a contract?
(b) Is a covenant not to sue a contract within the meaning of § 431.055?
(c) Is § 475.135 a special law not within the meaning of § 431.055 as contended herein?
(d) What was the intent of the legislature relative to the legal capacity of 18 year olds and their execution of covenants not to sue?
(e) Does enactment of § 431.055, by virtue of its being enacted subsequent to § 475.135, supercede § 475.135, or is there an existing conflict between these statutory sections which necessitates judicial clarification?

The first of these questions can be disposed of by a brief reference to 4 COR-BIN, CONTRACTS § 932, p. 745 (1951), wherein the following is found:

“. . .a covenant not to sue one joint obligor is merely a valid contract for breach of which an action for damages will lie.”

Following the determination of the status of a covenant not to sue being a contract, does it follow that such is a contract within § 431.055? § 431.055 reads as follows:

“431.055. PERSONS COMPETENT TO CONTRACT WHEN EIGHTEEN YEARS OF AGE. — The legal age at which a person becomes competent to contract in Missouri is eighteen years and any rule or provision of the common law to the contrary is hereby abrogated.”

The language contained within § 431.055 is unequivocal and it is concluded herein that such language contains the intent of the legislature to include covenants not to sue as a contract within the meaning of the term “contract” as expressed therein.

Proceeding a step further, even if such conclusion be reached relative to § 431.055, is § 475.135 a special law not within the meaning of § 431.055? § 475.135 states the following:

“475.135. CONTRACTS BIND ESTATE, WHEN. — No contract shall bind the estate of any minor, except as provided for in sections 507.182 and 507.184, RSMo, or incompetent unless the same is made by the guardian with the approval of the court or made by the ward with the consent of the guardian and approval of the court.”

This statute uses the term minor without specification to numerical age. This court is faced with the interrelation of §§ 431.055 and 475.135 where on the one hand, specific physical age serves the basis for a definitive legal age and on the other, the mere legal term minor is employed.

If it be concluded that § 475.135 is a special statute outside the purview of the general law, then greater weight by mere judicial inference is ascribed to the term “minor” and the effect would be to nullify the specific physical age set forth in § 431.-055. Such certainty was not the intent of the legislature. The better interpretation appears to be that minor, as used in § 475.135, be construed to mean persons who have not attained the age of 18 years.

For further support for such interpretation, consideration of § 507.115, RSMo 1978 should be undertaken. This section reads as follows:

“507.115. INFANT DEFINED FOR CIVIL SUIT PURPOSES. — As used in sections 507.110 to 507.220, the term ‘infant’ means any person who has not attained the age of eighteen years. All persons of the age of eighteen years or older, not otherwise disqualified, may commence, prosecute, or defend any action in his own name as the real party in interest.”

Further, § 507.184, enacted in 1959, again fails to supply any physical age to the term minor and, the better construction appears to be that the term minor as expressed in § 507.184, is that person who has not attained the age of 18 years. It must follow that §§ 475.135 and 507.184 fall within §§ 431.055 and 507.115 and are not special laws excluding the execution of a covenant not to sue by any legally competent person who has attained the age of 18 years.

Such discussion of legal age necessarily involves the determination of legislative intent.

Just prior to 1974, there existed a fervent national effort to lower the legal or lawful age. Our own state responded through action by the Missouri General Assembly. In 1974, the General Assembly passed SB-438, referred to as ACT 70, which can perhaps be best described as the “shotgun” approach to the affixing of the lawful age in Missouri at age 18. This act provided the following:

“ ‘SECTION 1. The age of majority in this state is eighteen years, and all persons having attained that age are entitled to all the privileges, rights and immunities, and subject to all the obligations, liabilities and responsibilities of adulthood and are not subject to any of the disabilities of infancy.
2. This act does not apply to any written instrument, contract, deed or trust indenture, conveyance, note or bank account made or executed before this Act becomes effective, nor shall it apply to or affect the rule of law known as the Rule Against Perpetuities or any conveyance made under the Missouri Uniform Gifts to Minors Act.
3. After the effective date of this act, a minor is a person who has not attained the age of eighteen years and whenever the term ‘twenty-one years of age’ is used as a limiting or qualifying factor it shall be deemed to mean ‘eighteen years of age’, and the revisor of statutes is hereby authorized to make the appropriate changes in the Revised Statutes of Missouri as they are revised, reenacted or reprinted.
4. The provisions of this act shall not apply so as to affect, change, or modify any laws of this state pertaining to alcoholic beverages.’ ” State ex rel. McNary v. Stussie, 518 S.W.2d 630, 631 (Mo.banc 1974).

In 1974, ACT 70 was held to be unconstitutional in violation of Article III, § 28 of the Missouri Constitution. The decision, State ex rel. McNary v. Stussie, supra, held the failure of SB-438 to express the words to be stricken violated this constitutional restriction. The opinion in State ex rel. McNary v. Stussie, supra, also contains a good discussion of the repugnancy of statutes. That is, when a statute is later passed that appears repugnant or contradictory to a previous act of the legislature, the court will try to reconcile the two legislative sources and upon not being able to achieve such reconciliation, the rule is that “ ‘when two statutes are inconsistent and repugnant, the one last enacted shall be considered in force.’ ” State ex rel. McNary v. Stussie, supra, at 635. See also State ex rel. Maguire v. Draper, 47 Mo. 29 (1870); State ex rel. Speck v. Geiger, 65 Mo. 306 (1877) and State v. Miller, 100 Mo. 439, 13 S.W. 677 (1890).

The case at hand does not fall into the category of two inconsistent or repugnant statutes as appellant would suggest; but rather, the legislature has taken definite steps to declare the lawful age at 18 years in specific statutory sections related to contractual rights and responsibilities and the bringing of civil actions.

It would not only be inconsistent, but would be totally illogical to conclude that any person who, having attained the age of 18 years, could file and prosecute a civil proceeding (§ 507.115) and enter into contractual responsibilities (§ 431.055) and then be declared incapable of settling his or her own claim or lawsuit by way of general release or covenant not to sue.

Although ACT 70 was stricken down as being unconstitutional, it provided the courts with insight into the thinking or intent of the General Assembly. The General Assembly declared the lawful age to be 18 years in all categories, except possession and consumption of intoxicants. Since the act was declared unconstitutional, the General Assembly set about to specifically change the lawful age to 18 years in many categories. This action clearly is demonstrated in § 431.055 and § 507.115 and others.

In this case, it is found that §§ 475.135 and 507.184 use the term minor and hence it is concluded these sections are not, in any manner, special laws as applies to persons who have attained the age of 18 years, but find their application only to persons under that age. There is consistency in such conclusion, and the same is in keeping with the intent of the General Assembly.

For the reasons set forth herein, it is concluded that §§ 475.025, 475.135, 507.182, 507.184, 507.186 and 507.188 are all binding statutes, but applicable to persons who have not attained the age of 18 years or who, because of some disability or infirmity, are under the care of a guardian. In addition, as applied to the facts herein, all persons mentally competent who have attained the age of 18 years are permitted to enter into and are obligated on all contracts executed by them under § 431.055, effective January 1, 1975, and which proceeded the execution of the covenant not to sue herein. This statute, by its very nature, includes covenants not to sue as a partial release for claimed damages.

For the reasons set forth herein, the judgment of the trial court is in all respects affirmed.

All concur.

      . All statutory references are to RSMo, 1978, except as otherwise noted.

      . The pertinent section was not statutory language passed in 1974 by the Missouri General Assembly. It was a new section inserted specifically preceding § 431.060.

      . This court does not pass upon the wisdom c the facts thereof. r lack of wisdom on this issue, but merely recites


text:
    STATE of Missouri, Respondent, v. Curlee WILLIAMS, Jr., Appellant.
    No. 40233.
    Missouri Court of Appeals, Eastern District.
    July 31, 1979.
    Allen I. Harris, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction by a jury of the offense of operating a motor vehicle without the consent of the owner. He was sentenced by the court under the Second Offender Act to serve a term of three years in the Department of Corrections.

The victim testified she was a secretary, and that although she resided in Arkansas, her employment required that she occasionally work in the City of St. Louis. When in St. Louis, she customarily stayed at the Missouri Athletic Club, and it was from the Club parking lot during such a visit to St. Louis that her auto was stolen during the night of November 12, 1976. She had left the keys to the car, a 1976 Oldsmobile, in the car as required by the Club’s parking lot procedure. Upon discovering the auto missing the following morning, she notified the police. She also stated that although the auto was titled in her husband’s name, it was in fact her car, that she enjoyed exclusive use and control over it, and that she had given neither the defendant nor any other person permission to operate the vehicle on November 12 or 13 of 1976.

The investigating officer, Sgt. Brocato, testified that prior to this incident the police learned that one Anthony Busby, a former employee of the Club, had boasted that a car could easily be stolen from the Club parking lot. Acting on this information, Brocato proceeded to what was believed to be Busby’s residence at 2118 Mul-lanphy accompanied by two other plainclothes officers. Discovering an automobile fitting the description of the stolen vehicle parked near the 2118 Mullanphy address, the officers carried out a brief but fruitful surveillance. Shortly after their arrival, the defendant departed from 2118 Mullan-phy, entered the auto and drove off. Upon his apprehension by the officers, defendant claimed that one George “Wilson” or “Watson” had lent him the car for the purpose of picking up Watson/Wilson’s sister, and defendant would be repaid certain funds loaned him by defendant. Although defendant claimed Watson/Wilson lived at the Mullanphy address, no persons at that address or in the immediate neighborhood had any knowledge of a George Wilson or Watson.

Defendant testified that he had been walking through the area in which he was apprehended when he encountered an acquaintance named “George”, and whose last name was “Watson or Wilson, I believe”, working on an auto in the street with certain other persons. “I asked him if he had any money,” defendant stated, because “he owes me.” Defendant claimed that he had loaned Watson/Wilson money on several occasions, but that he was not certain of the exact amount, “maybe around 8 or 9 dollars.” Defendant further stated that Watson/Wilson had no money, and instead gave defendant the keys to the Oldsmobile, saying it was his car, and directing defendant to pick up and bring back Watson/Wilson’s sister who was waiting on a certain street corner in another part of town. Watson/Wilson indicated that the sister would pay defendant the money owed him upon her return. Defendant also claimed that he did not know Anthony Busby. However, Sgt. Brocato returned to the stand for the purpose of rebuttal to testify that defendant had been confronted by Busby at the police station after his arrest and that defendant then admitted knowing Busby, but denied that Busby was the person who had given him the keys to the Oldsmobile.

On appeal, defendant claims that the state failed to make a submissible case by virtue of a failure of proof as to the elements of lack of consent of the owner, and of defendant’s intent to operate the vehicle without such consent.

On the issue of lack of consent, defendant notes that the title owner did not testify at trial by virtue of which omission there was no evidence that the owner did not give his consent to defendant’s operation of the auto. This contention is without merit. The victim testified that she had exclusive use and possession of the car, although titled in her husband’s name. A similar situation was presented in State v. Ward, 571 S.W.2d 773 (Mo.App.1978), where the victim testified that although the title to the auto there in question was in a corporation, the corporation had furnished him the auto for his exclusive use. We there held that “it is not necessary that the owner testify to lack of permission if there is evidence of a lack of permission from another source,” State v. Ward, Id. at 775.

In addition, we may also consider defendant’s own testimony on the issue of lack of consent, State v. Ward, Id. at 775. That testimony, to the effect that only Watson/Wilson had given him permission, itself establishes lack of consent of the true owner.

Regarding the element of defendant’s intent to operate the vehicle without consent, defendant maintains that his claim that he honestly believed the auto belonged to the elusive Wilson/Watson was ineffectively controverted by the state’s circumstantial evidence.

In State v. Ransom, 500 S.W.2d 585 (Mo. App.1973) we noted that direct evidence of intent, a mental state, could seldom if ever be presented, and held at l.c. 588:

“exclusive and unsatisfactorily explained possession of property proven to have been recently stolen permits an inference that the possessor is the thief or that he has knowledge of the theft.”

In State v. Goodman, 531 S.W.2d 777 (Mo.App.1975), the defendant argued that the inference raised by an “unsatisfactorily explained possession” does not apply where he offered his own explanation of his possession. The court there noted at 778, “It has long been settled by the decisions of this State that not every ‘explanation’ given by a defendant serves to defeat the inference mentioned. The jury is privileged to disbelieve the explanation offered by the defendant, and if so disbelieved, then defendant’s possession stands unexplained.”

Here, the defendant claimed permission was extended by someone living at the Mul-lanphy address. Nobody at that residence or in the neighborhood had ever heard of Watson/Wilson, nor was he ever located despite the fact defendant claimed he had just encountered him working on a car, immediately prior to his arrest. Defendant maintains that such a person a Missouri resident and unable to repay a few dollars by defendant’s own account, owned an expensive late model Oldsmobile with Arkansas plates. The defendant altogether failed to postulate a reasonable theory of innocence, and the jury was unquestionably entitled to disbelieve him.

Finally, defendant contends: “The court erred in failing to sustain defendant’s objection in closing argument, as to the significance of a possible untruth told by defendant, and said failure to sustain objection allowed for the state to misdirect the jury as to the law of the case.” Although defendant fails to identify in his argument what portion of the state’s closing argument he finds objectionable, we assume he is referring to the prosecutor’s comment on defendant’s disclaimer of knowing Busby and the subsequent proof that the disclaimer was a lie.

We have examined the record carefully and find nothing improper in the prosecutor’s comments. There was no “misdirection” of the jury as to the law of the case. At most, this was a comment by the prosecutor on the credibility of the defendant, which he was entitled to make. There was no prejudicial error in overruling defendant’s objection.

Affirmed.

GUNN and CRIST, JJ., concur.


text:
    James GOFORTH, Appellant, v. STATE of Missouri, Respondent.
    No. 40905.
    Missouri Court of Appeals, Eastern District.
    July 31, 1979.

      Ronald E. Pedigo, Farmington, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Gary E. Stevenson, Pros. Atty., Farmington, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from an order of the circuit court dismissing his Rule 27.26 motion without an evidentiary hearing. Mov-ant was convicted by a jury of murder in the second degree and after the jury was unable to agree upon the punishment, he was sentenced by the court to serve a term of 30 years. His conviction was affirmed by this court in State v. Goforth, 535 S.W.2d 464 (Mo.App.1976).

Movant contends that the court erred in (1) failing to grant him an evidentiary hearing and (2) failing to make findings of fact and conclusions of law.

First, the state contends that movant’s brief fails to comply with Rule 84.04(d) in that there are no arguments presented as to the specific allegations set forth in the motion to vacate judgment and sentence and also because there are no authorities cited specifically relating to whether or not these allegations are sufficient to require an evi-dentiary hearing. We agree. However, using our discretion, we have reviewed mov-ant’s allegations in his motions and find that the trial court did not err in denying movant an evidentiary hearing.

In order to be entitled to an evi-dentiary hearing, movant must have pleaded facts, not conclusions, which if true, would afford the basis for relief and, further, must have shown that the factual allegations contained in his motion were not refuted by the record. Winston v. State, 533 S.W.2d 709 (Mo.App.1976). However, if no evidentiary hearing was required, a summary denial of a Rule 27.26 motion is equivalent to findings of fact and conclusions of law in opposition to the grounds stated in the motion. Tillman v. State, 570 S.W.2d 844 (Mo.App.1978). Movant’s motion alleges that his attorney was ineffective in several respects. In order to show ineffectiveness of counsel, movant had the burden of showing that counsel breached a duty to his client, and that such breach resulted in prejudice which deprived the party of a fair trial. Thomas v. State, 516 S.W.2d 761 (Mo.App.1974).

First, movant charges that counsel failed to object to the verdict directing instruction. He contends that it shifted the burden of proof to defendant when defendant was not required to give testimony. The identical instruction has been upheld against similar attacks by our Supreme Court. State v. Aikens, 507 S.W.2d 386, 387 (Mo.1974). There was no legal basis for an objection, therefore, counsel could not be ineffective. State v. Evans, 559 S.W.2d 641, 642 (Mo.App.1977).

Secondly, movant alleges that his attorney was ineffective because he failed to object to various statements by the prosecuting attorney. We have reviewed the record and find that his allegations are refuted by it. In certain instances complained of, the attorney did object, and in others we find no basis for an objection. However, to say that an attorney was ineffective because he should have made objections that might or might not have been sustained borders on absurdity. There are many reasons why lawyers deliberately do not object knowing that an objection might be sustained. It is doubtful that close scrutiny of any transcript by another lawyer or judge would not show instances where the lawyer should have objected. ’ In this area the courts have been quite liberal in their assessments of whether or not the attorney acted with propriety. This generally has fallen within the area of trial tactics.

Thirdly, movant argues that his counsel “failed to tender instructions” defining the words malice, deliberately, feloniously, malice aforethought. The instruction given at trial contained none of these words and therefore no further definitions needed to be given. State v. Smart, 485 S.W.2d 90, 93 (Mo.1972). Instructions given were modeled on verdict directors promulgated in the MAI-CR 6.02 and 6.06. Wo find no merit in this contention.

Movant next alleges that witness Dale Bader’s competence was questionable and that his attorney should have known of that fact and therefore, contested his ability to testify. This contention fails to allege in what manner the witness was incompetent, or that movant requested his counsel to investigate witness, or what the facts were, by which counsel should have been on notice of the witness’ questionable competence. Lacking such allegations, this contention must fail. Fight v. State, 558 S.W.2d 372, 374 (Mo.App.1977); Morris v. State, 547 S.W.2d 827, 829 (Mo.App.1977).

Finally movant claims that his counsel was ineffective because his attorney failed to object to the sentencing judge having ex parte conversations with the probation officers. At the time of the hearing on the motion for new trial the court advised the parties of its conversation with the probation officers. The movant had been on probation. The court was aware of the two previous convictions, both having been brought out by the defense during the trial. Both probation officers made recommendations as to the sentence the movant should receive. The court voluntarily disclosed to the parties that it had hold these conversations. Movant was sentenced two days later. Movant now claims that his attorney was ineffective because he did not object to the ox parte communication. Movant on direct appeal attempted to raise this issue but we said that it was not properly before us because defendant had not raised it at the first opportunity, not having complained before sentencing. The court’s request of the probation officers was in the nature of a limited presentence investigation. Section 549.285 RSMo 1969, which was in effect at the time of the sentencing of the defendant, denied access of such report except in the discretion of the court. State v. Task, 528 S.W.2d 775, 778 (Mo.App. 1974). Objection by the counsel would have been unavailing. Movant does not allege in his motion what information received by the court from the probation officers was inaccurate nor does he now complain that his counsel should have asked the court what information received from the probation officers was relied on. This allegation could only affect the sentencing and not the determination as to the guilt or innocence of the defendant. As this matter comes to us in the motion, we cannot find that movant’s attorney was ineffective in failing to “object to the ex parte communication.”

The court properly dismissed the motion without an evidentiary hearing and since no evidentiary hearing was required, summary denial was equivalent to findings of fact and conclusions of law, Tillman v. State, 570 S.W.2d 844 (Mo.App.1978).

Affirmed.

GUNN and GRIST, JJ., concur.

      . See however, Seals v. State, 580 S.W.2d 733 (Mo. banc) 1979 wherein the court adopts a different standard. This standard is to be effective prospectively only. In order for a claim of ineffectiveness of assistance of counsel to prevail, the movant must now show that his attorney failed to exercise the care and skill of a reasonably competent attorney rendering similar services under the existing circumstances and that he was prejudiced thereby.

      , This procedure has changed under the new criminal code, § 337.026 RSMo 1978 , . ,” (2) The presentence investigation report shall be prepared, presented and utilized as provided by the court except that no court shall prevent the defendant or the attorney for the defendant from having access to the complete presen-tence investigation report and recommendations before any authorized disposition under Section 557.011."


text:
    STATE of Missouri, Respondent, v. Robert SMITH, Appellant.
    No. 40369.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    Robert C. Babione, Public Defender, James Porter, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction of possession of a Schedule I controlled substance (heroin) and carrying a concealed weapon. The court sentenced defendant under the Second Offender Act to serve a term in the Department of Corrections of 15 years on the drug charge and 3 years on the concealed weapon charge, to run concurrently.

Defendant does not challenge the sufficiency of the evidence; only one point is raised on appeal. He contends that “[t]he trial court abused its discretion in limiting cross-examination of the State’s witnesses by denying defense counsel the right to ask whether or not they were the subjects of an investigation into the filing of false affidavits or whether they knew if any Tactical Anti-Crime Team members had been involved in the filing of false police reports as such information was vital to the defense of this case in that the single major issue was the credibility of these witnesses. [T]he defendant was denied his right to cross-examine the witnesses against him contrary to RSMo. Section 491.070”.

Police officers, members of the Tactical Anti-Crime Team (TACT), were the principal witnesses against defendant. It appears that a newspaper article had appeared the day before Smith’s trial reporting investigation of alleged false reports or affidavits by members of TACT. Therefore, the assistant prosecuting attorney in this case requested a protective order to prohibit defense counsel from “asking questions, any questions relative to this [TACT investigation], absent a showing of good faith on his part”. The assistant prosecuting attorney argued that he knew of no connection of these witnesses with the alleged violation or investigation. Defense counsel admitted that he had no evidence to show that the witnesses were involved in any way.

Defense counsel stated: “I plan to ask the officers about their knowledge of other persons . . .”. The court, following discussion with both attorneys, said: “. . . [T]here is no evidence they are involved, and you are merely asking them do they understand or know that in the past police officers have been [involved], and . that’s not relative to the credibility of [these] witnesses, and, for that reason, I sustain the objection.”

Although the statute gives the parties a right to cross-examine, the scope and extent of cross-examination is not unlimited. “The extent of cross-examination is largely within the discretion of the trial court. This is particularly true as to collateral matters, [citations omitted.] Absent a clear showing of abuse of discretion, appellate courts will not interfere, [citations omitted.]” State v. Howard, 564 S.W.2d 71, 75[6] (Mo.App.1978).

Questions on cross-examination regarding the witnesses’ knowledge of the past activities of other officers is clearly questioning on a collateral matter. Questions on cross-examination regarding whether or not the witnesses themselves were subjects of the investigation (apparently not related to this case) would be improper also. The credibility of a witness may not be attacked by showing mere arrests, investigations, or criminal charges which have not resulted in convictions. State v. Coleman, 524 S.W.2d 27 (Mo.App.1975); State v. Taylor, 498 S.W.2d 614 (Mo.App.1973).

We find no abuse of discretion in the court’s ruling denying defendant the right to cross-examine as to either of the above matters. The court afforded defendant wide latitude in cross-examination and he had the right to test fully the credibility of these witnesses.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: KELLY, Judge.

text:
    C. Dean FERGUSON, Plaintiff-Respondent, v. Marian Ferguson STOTT, Defendant-Appellant.
    No. 39942.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 31, 1979.

      J. William Holliday, Kahoka, for defendant-appellant.
    Tom B. Brown, Brown & Phillips, Edina, for plaintiff-respondent.
   KELLY, Judge.

Appellant, Marian Ferguson Stott, defendant in the trial court, brings this appeal from an adverse judgment on her counterclaim whereby she prayed the trial court to set aside a property settlement she and the respondent, C. Dean Ferguson, her former husband, had entered into to dispose of their marital property in a dissolution of marriage proceeding, on the grounds that it had been induced by fraud practiced upon her by respondent.

The facts, briefly stated, were that Marian Ferguson Stott and C. Dean Ferguson were husband and wife for 27 years when their marriage was dissolved in December, 1974. It is uncontradicted that the marital difficulties leading to the dissolution of their marriage were caused by the wife’s falling in love with another man who, at the time, was also married. A very short time after appellant’s divorce became final she married this other man, who, in the interim, had also obtained a divorce from his spouse.

The divorce of the Fergusons was handled by an attorney known to both. In fact, when initially contacted, he had the daughter of the couple in his employ. At that time this counsel suggested they have other attorneys handle the matter for them. After their initial interview with counsel a reconciliation was effected, but it was of short duration and respondent set up an appointment for them with the same attorney, despite the fact he did not desire a divorce. A property settlement — the one in issue — was prepared and executed by the parties and at the dissolution hearing appellant executed a quit-claim deed to the real estate owned by the parties, conveying same to respondent. The property settlement was admitted into evidence at the dissolution hearing and made a part of the decree dissolving the parties’ marriage. The date of the hearing and granting of the dissolution was December 18, 1974. On January 21, 1975, appellant entered into a marriage with Mr. Stott.

Because of a clerical error in the quitclaim deed of December 18, 1974, and the refusal of appellant to execute a second quit-claim deed to the same property curing this defect, respondent instituted this action in January, 1977, seeking an order of the court reforming the original quit-claim deed and compelling appellant to execute a new deed so that a proper description of the property conveyed in the original quit-claim deed should appear.

It was in this action that appellant filed her counterclaim.

The trial court entered a decree for the respondent on his cause of action and ordered, the description of the property in the property settlement in the dissolution of marriage action be corrected; that appellant convey forthwith her right, title and interest in the described land and to execute any and all instruments necessary to effect and carry out properly such conveyance so respondent would enjoy a fee simple title in said property. Appellant has appealed from that portion of the judgment denying her counterclaim.

The scope of review in this case is controlled by the parameters set out in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976), and the judgment of the trial court must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law, and a reviewing court should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree or judgment is wrong.

Appellant’s Points Relied On are that the trial court erred in finding in favor of the plaintiff-respondent on appellant’s counterclaim in that (a) appellant was defrauded of her marital rights in the property accumulated by the parties during the marriage by the fraud and undue influence executed upon her by respondent and his attorney; and (b) the amount of the property received by appellant pursuant to the property agreement is so little compared to the amount received by respondent under the property settlement agreement that it should shock the conscience of the court and said property settlement agreement is not a fair, just and equitable division of the marital rights and is void as being in violation of public policy.

The first allegation of trial error preserves nothing for review because it does not comply with the requirements of Rule 84.04(d), being merely a conclusionary statement.

Appellant’s second Point, despite the fact that it too is in eonclusionary form, presents the question whether the property settlement agreement should shock the conscience of this court because it is not a fair, just and equitable division of the marital property acquired by the parties during their marriage.

Appellant argues that respondent received four times the marital property as that allotted to appellant by the settlement agreement and that she signed it without any explanation of the effect of the “no-fault divorce law" and without any discussion with the attorney handling the divorce proceedings relative to the terms of the agreement other than his advising her that he thought it was a fair settlement.

The evidence on these points is in conflict, appellant presenting one version and respondent and the attorney another.

With respect to the disparity in the property distribution, the statute does not require that the court make an equal division of the marital property, but only a just division. Arp v. Arp, 572 S.W.2d 232, 235[8] (Mo.App.1978). Furthermore, we are not asked here to decide whether the trial court in the dissolution proceedings abused its discretion in approving the settlement agreement arrived at by the parties to that proceeding. We have here an attack on the settlement agreement itself, and the evidence on the grounds for recission are in conflict. We must defer to the trial court on the credibility of the witnesses and we cannot say that there is no substantial evidence to support the findings of the trial court nor that the decree is wrong.

Judgment affirmed.

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

      . We do not apply the principles enunciated in Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978) because the opinion in that case was handed down on September 12, 1978, and the brief of appellant was filed in this court on August 18, 1978.


text:
    Michael McKELVEY, Respondent, v. Beverly Rose McKELVEY, Appellant.
    No. 40178.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    Gregory D. O’Shea, St. Louis, for appellant.
    David L. Mayhugh, Farmington, for respondent.
   CRIST, Judge.

Marriage dissolved after six and one-half years. Custody of two small children awarded to wife. Wife appeals. We affirm.

Wife complains the maintenance and child support awards of the court below were inadequate. While this court is keenly aware that an award for child support in the sum of $20.00 per week per child is lamentably low, we cannot, under the evidence, substitute our judgment for that of the trial court. Nor do we find error in awarding wife $2,000.00 alimony in gross and maintenance in the sum of $20.00 per week for one year. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977).

Wife also contends that farm partnership assets, originally received as a gift to husband from his parents, became marital property because these assets were used to give the parties their sole income. As a gift to husband from his parents, the property was not marital property. Wife cites no case which convinces us to the contrary. Accord, Boyers v. Boyers, 565 S.W.2d 658 (Mo.App.1978).

Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we cannot, under the evidence, disagree with the judgment of the trial court.

We hold the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence; that no error of law appears; and that an extended opinion would have no precedential value.

The judgment is affirmed in accordance with Rule 84.16(b).

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


text:
    William J. LONGMORE, Plaintiff-Appellant, v. William D. MERWIN, D.D.S., Defendant-Respondent.
    No. 39352.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 31, 1979.
    Donald M. Witte, Clayton, for plaintiff-appellant.
    Richard 0. Funsch, Justin C. Cordonnier, St. Louis, for defendant-respondent.
   KELLY, Judge.

Appellant, William Longmore, instituted this malpractice action for the alleged negligence of the respondent, a dentist, in extracting the wrong tooth. In addition to actual damages appellant sought punitive damages, but at the close of appellant’s evidence the trial court sustained respondent’s motion for directed verdict on the issue of punitive damages. The actual damages issue was submitted to the jury and a verdict for the respondent was returned. Appellant then appealed from the judgment entered on the jury verdict contending that the trial court erred in failing to sustain his motion for new trial on the grounds that the verdict was against the weight of the evidence and that the trial court erred in sustaining respondent’s motion for directed verdict at the close of appellant’s case with respect to his claim for punitive damages.

Whether a verdict is against the weight of the evidence is for the trial court to determine, not for the reviewing court. Robbins v. Robbins, 328 S.W.2d 552, 556(7) (Mo.1959). While in a rare case a reviewing court may set aside a verdict on the ground that it is against the weight of the evidence, this is not a case in which we should digress from the general rule. When a case depends on oral evidence, as did this case, the weight and value of the evidence is for the jury and the trial court. Robbins v. Robbins, supra, 1.c. 556(10). We decline appellant’s invitation to reverse and remand the judgment of the trial court on this ground.

As to appellant’s contention that the trial court erred in directing a verdict for the respondent at the close of appellant’s evidence on the punitive damages issue, we find no merit because the verdict reached by the jury on behalf of the respondent renders that issue moot. In Compton v. Williams Bros. Pipeline Company, 499 S.W.2d 795 (Mo.1973) the trial court refused to permit evidence of respondent’s net worth and income and refused to give requested instructions submitting the issue of punitive damages to the jury. In disposing of the appellant’s contention that the action of the trial court in refusing to submit the punitive damages issue to the jury constituted error, the court held that by reason of a trial resulting in a jury verdict in favor of the respondent-defendant on the issue of actual damages, that issue was res judicata, and in no event could the respondent be, entitled to an award of punitive damages, even had a submissible case on the issue of punitive damages been made. 499 S.W.2d l.c. 797-798. This result is dictated by the long accepted rule that actual or nominal damages must be recovered before any punitive damages can be recovered. Coonis v. Rogers, 429 S.W.2d 709, 716[16] (Mo.1968); Adelstein v. Jefferson Bank & Trust Co., 377 S.W.2d 247, 252[4] (Mo.1964); Scheid v. Pinkham, 394 S.W.2d 570, 572[3] (Mo.App. 1965).

Judgment affirmed.

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