text:
    Thelma McGUIRE, Plaintiff-Respondent, v. Grover C. WILCHER, and John E. Robertson, Defendants-Appellants.
    No. WD 34960.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    Rehearing Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      William J. Hill, Kansas City, for defendants-appellants.
    H. George Lafferty, Jr., Kansas City, for plaintiff-respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

This is an action for defendants’ alleged malicious prosecution of an earlier civil proceeding. The jury returned a verdict in favor of the plaintiff, and judgment was entered accordingly. Defendants appeal, and we reverse and enter judgment for them.

As the parties state in their briefs, the facts of this case are not in dispute. This malicious prosecution action results from an earlier civil proceeding brought by these defendants, Grover Wilcher and John Robertson, which was finally laid to rest by this court in Wilcher v. McGuire, 537 S.W.2d 844 (Mo.App.1976). That first civil proceeding arose from the attempted auction sale of farm property owned by the plaintiff Thelma McGuire, defendant in the first action.

Before the day of sale, the auctioneer, Dick Dewees, circulated a sale bill describing the property and advising bidders that “land sells subject to confirmation of owner. Announcements made sale day take precedence.” Before the auction day, Mrs. McGuire had contracted in writing with Mr. Dewees that the selling prices for separate tracts of the property and the property as a whole were to be determined by competitive bidding and that any proposed sale was subject to a twenty-four hour acceptance and confirmation by the owner.

Mr. Wilcher, a licensed and practicing attorney, and Mr. Robertson were high bidders at the auction sale on both the property as a whole and on tract three of the property.

Mrs. McGuire, her attorney, and the auctioneer conferred at the conclusion of the auction to consider the bids. In the first civil proceeding, Mr. Dewees testified that Mrs. McGuire agreed to accept the Wilcher and Robertson bid for tract three, but she testified to the contrary, alleging only that she said she would reach a decision the next day.

At the conclusion of this first conference, Messrs. Wilcher and Robertson were invited in and advised by Mrs. McGuire’s attorney that their bid on tract three was accepted. Thereupon, the attorney partially filled out a previously prepared land sale agreement by inserting the purchase price, the description of the subject property, and the names of Wilcher and Robertson as buyers. Mrs. McGuire’s name had already been typed in as seller. Wilcher and Robertson signed the contract and tendered a ten per cent down payment on the property. At that point, Mrs. McGuire left the meeting without signing the contract or accepting the down payment. The next day the buyers learned that she had rejected their bid.

Upon hearing that, Mr. Wilcher for three evenings researched the law pertaining to auction sales and the Statute of Frauds. He discovered a lack of authority in Missouri pertaining to the circumstances of the aborted auction sale. After his research, Wilcher and Robertson filed suit against Mrs. McGuire for specific performance of the alleged agreement to sell tract three. Mr. Wilcher represented himself and Mr. Robertson in the early stages of the suit, but they later retained another attorney who conducted the action from that point.

Wilcher and Robertson principally relied upon two theories in their action for specific performance. First, they argued that the statement in the sale bill that “announcements made sale day take precedence” nullified the sale bill provision that “land sells subject to confirmation of owner.” The argument was essentially that the sale was without reserve and thus not subject to owner acceptance. They also asserted that Mrs. McGuire by remaining silent when they signed the land contract accepted their bid, and that the typing in of Mrs. McGuire’s name in the contract as seller constituted her signature and thus satisfied the Statute of Frauds.

In the first proceeding defendant McGuire filed a number of motions seeking summary judgment and dismissal on the pleadings and on the evidence. All were ruled against her. A full bench trial was conducted, the parties submitted briefs on the law, and the court found in favor of the defendant Mrs. McGuire. This court affirmed the judgment.

Thereafter, Mrs. McGuire brought this action for malicious prosecution, naming Wilcher and Robertson as defendants. The case was tried to the jury, and defendants’ motions for a directed verdict at the close of plaintiff’s case and at the close of all the evidence were overruled. The jury found in favor of plaintiff McGuire. Defendants’ motion for judgment notwithstanding the verdict was overruled, and they filed a timely notice of appeal.

Defendants raise two points on appeal. First, they contend that the court erred in rejecting their various motions challenging plaintiff’s petition because it fails to state a claim in that it does not sufficiently allege their lack of probable cause for bringing the earlier action. Second, defendants assert that, since the facts concerning probable cause for initiation of the earlier suit are not in dispute, the question of probable cause was one of law for the court and the court erred in submitting the issue to the jury. Defendants conclude that as a matter of law they did not lack probable cause for the bringing of their specific performance action.

In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, we must examine the evidence in a light most favorable to the party against whom the judgment is sought. Amish v. Walnut Creek Development, Inc., 631 S.W.2d 866, 870 (Mo.App.1982). We must give the party against whom judgment is sought the benefit of all reasonable inferences from the evidence, disregarding evidence to the contrary. Id. In applying the preceding standard, we hold that as a matter of law defendants had probable cause to initiate their earlier civil action.

We need not address defendants’ first point, because we agree with their second point on appeal and find it controlling. As the parties correctly conclude in their briefs, the facts surrounding the issue of probable cause are. not in dispute. Where the facts concerning the issue of want of probable cause in a suit for malicious prosecution are not in dispute the issue becomes one of law to be decided by the court. Dodson v. MFA Insurance Co., 509 S.W.2d 461, 467-68 (Mo.1974). The trial court in its order denying defendants’ motion for judgment notwithstanding the verdict suggests that even though the facts are not disputed it could not rule as a matter of law on the issue of want of probable cause. The rule in Missouri is clear that where no factual dispute exists on the issue it becomes a matter of law for the court to decide. Id. The role of the jury in a malicious prosecution action is more limited than in the usual civil proceeding. See, Annot., 87 A.L.R.2d 183, 188 (1963).

The question is, therefore, whether the defendants lacked probable cause to bring their earlier action. Defendants concede that the other elements of malicious prosecution are present and they recognize that the jury may infer malice from the facts showing a lack of probable cause. Haswell v. Liberty Mut. Ins. Co., 557 S.W.2d 628 (Mo.1977) (en banc). In Has-well the court defined probable cause for the initiation of a civil action to consist of (1) the plaintiff’s belief in the alleged facts (2) based on circumstances sufficient reasonably to induce such belief by a person of ordinary prudence in the same situation, plus (3) a reasonable belief by that person that under such facts the claim may be valid under the applicable law. Id. at 633.

The facts of this case are not disputed so the issue of probable cause turns on the third part of the above definition. The defendants here made a mistake of law in deciding to bring their earlier action, and we must now decide whether it was reasonable for them to believe that their claim may have been valid under the applicable law. They need not have been correct in determining the validity of their claim, but their belief in its validity must have been reasonable. Id.

The determination of reasonable belief will always depend upon the particular facts of the case. One distinguishing characteristic of this action is that Mr. Wilcher is an attorney and he decided to bring the earlier suit after personally researching the law. Therefore, we must look at the facts of this case from the standpoint of what the reasonable belief of the ordinary, prudent attorney would be in the circumstances.

Missouri case authority provides us with little guidance because no Missouri case is that factually similar to our case. In the earlier suit brought by the defendants in this case current authority was lacking on the issues, and we may fairly conclude that the legal validity of their claim was uncertain. Restatement (Second) of Torts § 675, Comment f, provides us with some direction in determining reasonable belief in the validity of a claim where that validity is uncertain. It states as follows:

If the legal validity of a claim is uncertain, the person who initiates the civil proceeding may believe that his claim is meritorious, but he can have no more than an opinion that the chances are good that the court might decide to uphold it. The question is not whether he is correct in believing that the court would sustain the claim, but whether his opinion that there was a sound chance that the claim might be sustained was a reasonable one. To hold that the person initiating civil proceedings is liable unless the claim proves to be valid, would throw an undesirable burden upon those who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions. There are many instances in which a line of authority has been modified or rejected. To subject those who challenge this authority to liability for wrongful use of civil proceedings might prove a deterrent to the overturning of archaic decisions. The law of deceit might be quite different if the plaintiff in Palsey v. Freeman, (1789) 3 T.R. 51, 100 Eng.Rep. 450, had been subjected to the risk not only of an adverse decision, but also of an action for wrongful civil proceedings in the event of failure.

In the action brought by Wilcher and Robertson, they argued that the language “announcements made sale day take precedence” in the sale bill turned the auction into one without reserve. This argument was eventually rejected by this court in Wilcher v. McGuire, supra, but the court relied upon the fact that Mrs. McGuire had a written agreement with the auctioneer in which she retained the right to accept and confirm sales for a twenty-four hour period after the completion of the auction. Id. at 846-47. The court of appeals held that this agreement controlled the terms of the auction sale, but the court cited no authority for this proposition. Nowhere in the Wilcher v. McGuire opinion does the court state that the bidders were aware of the terms of the agreement between the seller and the auctioneer. What the result of plaintiffs argument on this point would have been without the agreement between the seller and the auctioneer we cannot say, but we do conclude that enough doubt clouded this point that Wilcher and Robertson might reasonably have believed that they had a valid claim.

In their action for specific performance, Wilcher and Robertson also alleged that the auctioneer’s oral statement on the day of the sale to the effect that the property would be sold that day resulted in the auction «being without reserve. The court also rejected that contention on the ground that the printed conditions under which an auction is conducted cannot be varied by parole evidence. Id. at 846. As we have already noted, Wilcher and Robertson apparently were not aware of the agreement between. Mrs. McGuire and Mr. Dewees. The court relied upon Chouteau v. Goddin, 39 Mo. 229, 249 (1866), as authority for its ruling. Id. 537 S.W.2d at 847. Chouteau is an 1866 decision, and Wilcher and Robertson could have reasonably concluded that the rule of that case was subject to change or modification in light of the developments in the law of contracts over the past one hundred years.

Even if one could conclude that the auction sale was clearly with reserve, the auctioneer did testify at trial that Mrs. McGuire had accepted the buyers’ bid on tract three. Mrs. McGuire denied the auctioneer’s statement, but Wilcher and Robertson could have reasonably concluded that a trier of fact might believe the auctioneer and disbelieve Mrs. McGuire. If the jury believed the auctioneer’s testimony, then, even though the sale was with reserve, Mrs. McGuire had exercised her option in favor of the potential buyers, and the buyers would have been entitled to relief.

In the first action, Mrs. McGuire asserted that the agreement signed by the buyers did not comply with the Statute of Frauds. § 432.010 R.S.Mo.1978. The court in Wilcher v. McGuire, supra, held that the Statute of Frauds applies to auction land sales and that because Mrs. McGuire had not signed the agreement relied upon by the buyers it did not comply with the statute. Wilcher and Robertson claimed that the typing in of Mrs. McGuire’s name as seller constituted her signature on the contract. The court of appeals was not persuaded by the argument and held that the Statute of Frauds requires an agent to have written authorization from his principal in order to sign a land sale contract for his principal. The court relied upon Dunham v. Hartman, 153 Mo. 625, 55 S.W. 233 (1900), for its holding. The sellers were unable to produce any written authorization.

Our purpose here is not to re-decide Wilcher v. McGuire but to decide whether Wilcher and Robertson could have had a reasonable belief in the validity of their claim for specific performance. Dunham v. Hartman is a 1900 decision which involved an auction foreclosure sale of realty conducted by a local sheriff. The bulk of the decision discusses the issue of whether the sheriff was acting in his official capacity or as the agent of a party in the case. The Dunham court concluded that he was an agent and, therefore, that to bind his principal he needed written authorization, which he lacked. No showing of any authorization at all was made in the Dunham case. The circumstances of Wilcher v. McGuire are distinguishable in that the issue in Wilcher concerned the auctioneer’s authority to sign an agreement for Mrs. McGuire. Some form of written authority was given by Mrs. McGuire to the auctioneer. The factual circumstances of the cases are sufficiently distinguishable so that Wilcher and Robertson could have reasonably concluded that the 1900 Dunham case would not preclude their claim.

The Dunham decision also addresses the issue whether the memorandum “sold to W.H. Hartman” in the sheriffs sales book was a sufficient writing to satisfy the Statute of Frauds. The court decided that it did not satisfy the statute. But the writing relied upon by Wilcher and Robertson is much more complete since it describes the property to be sold, names the seller and contains the buyers’ signatures. Once again, we must conclude that Wilcher’s and Robertson’s assessment of the validity of their writing was reasonable in the face of a distinguishable 1900 Missouri decision.

To hold that Wilcher and Robertson lacked probable cause to bring their suit for specific performance would conflict with the policy set forth in Restatement (Second) of Torts, § 675, Comment f. Perhaps judged by hindsight the defendants here may not have pursued the soundest course in bringing their specific performance action, but the dearth of authority current and directly applicable to their circumstances was such that they reasonably could have believed “that under such facts their claim may be valid under the applicable law.” Haswell v. Liberty Mutual Ins. Co., supra, 557 S.W.2d at 633.

Respondent has filed a motion for damages for frivolous appeal. Obviously, since we find in favor of appellants in this case, respondent’s motion must be denied.

For the foregoing reasons, we reverse the judgment of the circuit court and enter judgment in favor of the defendants.

All concur.

      . See, Sanders v. Daniel International Corp., 682 S.W.2d 803 (Mo.1984) for an exhaustive discussion of the element of malice in a malicious prosecution action arising from a criminal prosecution.

      . In Haswell v. Liberty Mutual Ins. Co., supra, the supreme court relied in part upon § 675 in formulating the current Missouri definition of probable cause for bringing a civil proceeding.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Charles G. FAYGAL, et al., Respondents, v. SHELTER INSURANCE COMPANY, Appellant.
    No. 47469.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Denis C. Burns, Private Atty., St. Louis, for appellant.
    John B. Kistner, Private Atty., St. Louis, for respondents.
   PER CURIAM:

This case is before the division after we granted a motion for rehearing. Defendant appeals from a judgment in favor of its insured, Charles Faygal. Faygal made a claim under the comprehensive coverage of his auto insurance policy for a 1979 Chevrolet pick-up truck which was stolen. Defendant denied liability. A jury awarded plaintiff $10,500.00 for the value of the vehicle and an additional $4,800.00 as damages for vexatious refusal to pay, as authorized in § 375.420, RSMo.Supp.1983.

On appeal, defendant contends that it was entitled to a directed verdict because plaintiff did not have an insurable interest in the motor vehicle. We reverse.

In January, 1979, plaintiff’s father-in-law, John Mitzel, purchased and titled the 1979 Chevrolet pick-up truck in question in his name. He financed the purchase with a one year balloon note. Mitzel was an employee of General Motors, and as a company benefit, was able to purchase the truck at a reduced rate on the condition that he remain the title owner of the vehicle for one year. Mitzel purchased the truck with the understanding that it was to be his son-in-law’s truck. Their agreement was that although the truck was to be titled in Mitzel’s name, plaintiff was to have exclusive possession of it and be responsible for taxes, maintenance and insurance. After one year, Mitzel was to transfer the legal title to plaintiff, who would pay off the balloon note.

Pursuant to their agreement, plaintiff ordered comprehensive insurance coverage on the truck from James O’Leary, an agent for defendant. According to plaintiff, he told O’Leary that he did not have title to the truck. The agent testified and denied plaintiff told him that. He testified that he made no inquiry of plaintiff as to who was the title owner of the vehicle. He also acknowledged that there was no question on the insurance application form designed to determine who had title to the vehicle. Defendant issued a policy on the truck to plaintiff as the named insured.

In December, 1979, the truck was stolen while parked in plaintiff’s driveway. It was never recovered. Plaintiff filed a claim under the comprehensive coverage of his policy. During the course of the claim investigation, defendant determined that plaintiff was not the title owner of the vehicle. Defendant denied coverage because plaintiff lacked an insurable interest in the truck and returned that portion of the insurance premium for property loss coverage.

Plaintiff filed a five count petition against defendant. The jury returned a verdict in favor of plaintiff and assessed damages for defendant’s refusal to pay on the policy.

Defendant contends as a matter of law, it was entitled to judgment. Section 301.-200.2, RSMo.1978, controls title to new vehicles. It provides that the purchaser of a new vehicle shall present a bill of sale from the dealer to the Department of Revenue which thereupon shall issue an original certificate of ownership. Section 301.210, RSMo.1978, controls the sale of motor vehicles, once an initial title has been issued. The statute explicitly states the necessary steps for assigning title and the presentment of the title to the Department of Revenue for the issuance of a new certificate of ownership. Subsection (4) provides:

It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.

Section 301.210.4, RSMo.1978.

The mandatory requirements of § 301.210, are an attempt to prevent fraud and deceit in the sale of cars and to hamper traffic in stolen vehicles. This is a police regulation of the highest order and must be construed to accomplish the legislative purpose. Greer v. Zurich Insurance Co., 441 S.W.2d 15, 26 (Mo.1969).

Missouri courts have consistently held by reason of § 301.210, that even if accompanied by full payment or physical delivery of possession, the attempted sale of an automobile is fraudulent and void, passing neither legal nor equitable title, unless as a reasonably contemporaneous part of the transaction, the previously issued certificate of ownership with a properly completed and acknowledged assignment by the seller delivered to the buyer. This rule applies equally to sales between individuals or between a dealer to an individual. State Farm Mutual Automobile Insurance Co. v. MFA Mutual Insurance Co., 485 S.W.2d 397, 400-401 (Mo. banc 1972).

Under Missouri law, an insurance policy which insures property against loss or destruction may not be enforced unless the insured has an insurable interest in the property at the time of the insurance policy and at the time of loss. Prewitt v. Continental Insurance Co., 538 S.W.2d 902, 905 (Mo.App.1976). Generally any title or interest in property legal or equitable will support an insurable interest. Hayward v. Fidelity-Phoenix Fire Insurance Co., 285 S.W. 144, 146 (Mo.App.1926). However, the question of an “insurable interest” as it relates to loss coverage of an automobile is not controlled by the general principles or cases relating to other forms of property. Horton v. State Farm Fire & Casualty Co., 550 S.W.2d 806, 810 (Mo.App.1977). A purchaser of a vehicle who does not comply with the strict requirement of § 301.210, has no insurable interest in the vehicle. Horton v. State Farm Fire & Casualty Co., 550 S.W.2d 806 (Mo.App.1977); Personal Finance Co. of Missouri v. Lewis Investment Co., 138 S.W.2d 655, 656 (Mo.App.1940).

Plaintiff contends that § 301.210 has no application to this case since this is a “new” vehicle and § 301.210 only applies to “used” vehicle sales. We disagree. Once John Mitzel presented the dealer’s bill of sale to the Department of Revenue, and received the original certificate of ownership in his name, pursuant to § 301.200, any assertion of ownership in the vehicle by plaintiff thereafter runs afoul of the requirements of § 301.210. “Painful as it may be,” without a valid certificate of title plaintiff had no insurable interest in the truck. Horton v. State Farm Casualty Co., 550 S.W.2d 806, 810 (Mo.App.1977). See Meier v. Eureka-Security Fire & Marine Insurance Co., 168 S.W.2d 127, 133-34 (Mo.App.1943).

Plaintiff contends that defendant is estopped from denying this claim by either its failure to inquire as to who was the title owner or by issuing the insurance policy with the knowledge that plaintiff was not the title owner. However, any actions or omissions by defendant cannot waive a public policy requirement that an insurable interest exist. Galati v. New Amsterdam Casualty Co., 381 S.W.2d 5, 9 (Mo.App.1964); Hirsch v. City of New York Insurance Co., 267 S.W. 51 (Mo.App.1924). A valid and enforceable contract may not arise out of a transaction prohibited by state law. Greer v. Zurich Insurance Co., 441 S.W.2d 15, 26 (Mo.1969).

Defendant’s second point on appeal concerns damages for vexatious refusal to pay. Defendant was justified in its denial of coverage under the insurance policy, its refusal to pay was a fortiori not vexatious. Hanson v. Continental Insurance Co., 573 S.W.2d 150, 152 (Mo.App.1978).

Ordinarily, we would reverse and remand for a new trial if there were a pleaded theory on which plaintiff could make a submissible case with the witnesses and evidence available. Graham v. Conner, 412 S.W.2d 193, 205 (Mo.App.1967); See Pittock v. Gardner, 530 S.W.2d 217, 221 (Mo. banc 1975). Here, one of the theories pleaded and separately submitted to the jury was the negligence of defendant in issuing an invalid policy without inquiring as to who was the title owner of the vehicle. The evidence fully justified such a submission. Unfortunately, after the jury returned a verdict on this claim for plaintiff (but assessed no damages), plaintiff consented to the entry of a directed verdict on this claim for defendant. Thus, there is no ground upon which to remand for a new trial.

Judgment reversed.


author: SMITH, Presiding Judge.

text:
    John J. PILLA, Respondent, v. ESTATE OF Maria PILLA, Nicholas Pilla, et al., Appellants.
    No. 48404.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      William H. Wyne, St. Louis, for appellants.
    Daniel W. Brown, St. Louis, Mark Belz, Clayton, for respondent.
   SMITH, Presiding Judge.

Two co-executors of the estate of Maria Pilla appeal from the action of the trial court ordering specific performance of an option contract given by Maria Pilla to her son John.

The option contract was contained in a lease executed between Maria, John, and another son Michael in 1974. It provided for a ten year lease of a 484 acre farm in Montgomery County, Missouri. The lease was to commence on January 5, 1975, with rent of $20,300 payable at the end of each lease year. The option allowed purchase of the. farm by lessees for $390,000 at any time during the term of the lease “upon giving Lessor a 60 day written notice of intent to exercise the option.” The entire agreement was to be binding upon the executors, administrators, heirs and assigns of all parties to the agreement. On June 23, 1976, Michael assigned all his interests in the lease and option to John Pilla. Maria consented to this assignment. Maria died on November 28, 1979.

Two sons, Nicholas Pilla and Michael Pil-la, and Pasqualina Polizzi Sexton, a daughter, were named in the will as executors and appointed to that position by the Probate Court. On August 11, 1980, the Probate Court entered an order authorizing the co-executors to take charge of the farm property to preserve the assets of the estate. John remained in possession of the farm pursuant to the lease. By that date John Pilla had orally advised the attorney for the estate of his desire to exercise the option “so the estate would have money to pay on the Federal Estate Tax.” Oral expressions of intent to exercise the option continued to be made by John until January of 1983.

In 1982 John entered into a contract for sale of the property with a closing date of December 1,1982. On November 23,1982, the attorney for the estate mailed to the Internal Revenue Service a form 4422 applying for a certificate discharging the farm property from the estate tax lien. That document was signed by Nicholas Pil-la as co-executor under a legend stating, “[u]nder penalties of penury, I declare that I have examined this application, including accompanying schedules and statements, and to the best of my knowledge and belief it is true, correct and complete.” That form listed John as the purchaser of the property for a consideration of $390,000. An accompanying statement contained the following sentence: “[a]s the option is being exercised as of December 1, 1982, it will be necessary for the estate to deliver a Warranty Deed conveying said property free and clear of all liens ...” The lien release for the property was not received from Internal Revenue Service prior to December 1, 1982. The absence of the lien release prevented the December 1 closing. Under the lease it was lessor’s obligation to provide clear title.

On January 11, 1983, at a meeting with all executors and most devisees present John Pilla signed a handwritten statement “confirming that I am exercising my option to purchase the 484 acre farm in Montgomery County, Missouri.” The statement also said, “This is pursuant to our prior understanding.” On January 11, 1983, the rent payment due January 5 had not been made. A check bearing date of January 12, 1983, made payable to the “Maria Pilla Est.” for $20,300 was given by John to Michael at some time after January 11, 1983. That check bears a statement in lieu of endorsement “Credited to the account of the within named payee in accordance with payee’s instructions. Absence of endorsement guaranteed First Missouri Bank of Warren County Warrenton, Missouri.” The record does not establish the disposition of the proceeds of the check other than they did not go to the estate account at Landmark Bank. There was some inference they may have gone to a separate estate account opened by Michael. On January 25, 1983, the attorney wrote each of the three co-executors mentioning the due date of the rental payment and inquiring whether any co-executor had received payment. On January 27, Michael responded that he had received payment, identifying the January 12 check. On February 1, in response to that letter the attorney for the estate recommended that the funds be immediately deposited to the estate account. The same suggestion was repeated in the attorney’s letter of February 9 in response to Michael’s letter that he didn’t know where to deposit the money. At no time was any forfeiture of the lease suggested to or by any co-executor or to John Pilla.

Some reference needs to be made concerning Michael Pilla’s status as a co-executor. Sometime prior to February 8, 1982, Michael tendered his resignation as co-executor. On February 8 the probate division of the Circuit Court entered an order as follows:

“A settlement to date of resignation having been ordered to be filed herein by Michael Pilla, Co-executor of the above estate, on or before March 2, 1982, the Court APPROVES said resignation and AUTHORIZES and DIRECTS Nicholas Pilla and Pasqualina F. Polizzi remaining Co-Executors to discharge all duties required by law respecting the estate of the above decedent ... as sole executors.”

No settlement was filed by Michael.

On March 1, 1983, the Missouri Title Company advised each devisee that it was holding $390,000 as proceeds of sale of the farm land to be paid in equal shares to the heirs of Maria Pilla upon receipt of deeds either from all devisees or from the personal representatives. That money is still in escrow.

John Pilla brought this action to compel the three personal representatives to convey the farmland to him. The trial court ordered Nicolas Pilla and Pasqualina Poliz-zi Sexton as the remaining co-executors to so convey.

The defendants have raised several points on appeal. The main thrust of their argument, however, is that the failure of John Pilla to pay the rent due on January 5, 1983, prior to the written exercise of the option caused the option to be without consideration and therefore it could not be exercised on January 11, 1983. The trial court found as a fact that the rent had never been paid but concluded that the lease and option were severable and failure to pay the rent did not vitiate the right to exercise the option.

Neither party has addressed the issue of the need for a written exercise of the option so we will not base our decision on that issue. It is clear, however, that parties to an agreement may by their oral agreement or their conduct waive the provisions of a contract between them. This doctrine applies equally to provisions requiring written communications. Julian v. Kiefer, 382 S.W.2d 723 (Mo.App.1964) [9, 10]; Brown v. George, 260 S.W.2d 836 (Mo.App.1953) [2], Here from 1980 on it is clear that all parties were aware of John’s intention to exercise the option. By November of 1982 the parties had committed themselves to such exercise. John had entered into a contract of sale; the estate had sought a waiver under oath of the estate tax lien on the farm on the basis of an exercise of the option. The conduct of both parties at that time established their waiver of the written notice of exercise. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783 (1931) [2-4], We believe the judgment of the trial court is supported by that conduct alone.

However, we also find the judgment correct for an additional reason. While the trial court found no payment of the rent ever occurred, that finding was based solely upon the court’s expressed legal conclusion that Michael was not a co-executor at the time of the tender of the check. Section 473.540.2(3) RSMo.1978, requires that an executor file a settlement “[ujpon his application to resign and before his resignation is accepted.” Section 473.139 RSMo. 1978 allows the court to permit an executor to resign “after the filing of his final settlement as required by subdivision (3) of subsection 2 of section 473.540.” Upon accepting the resignation the court “shall revoke his letters.” Here no final settlement was ever filed by Michael and no order was issued revoking his letters. The language of Section 473.139 is mandatory and the court lacked the authority to accept the resignation in the absence of compliance with that section. Michael was still a co-executor on January 12, 1983, when he received John’s check. The court’s factual finding was erroneous because of the Court’s erroneous conclusion of law concerning Michael’s status as a co-executor.

It has been stated that the payment of rent in a lease containing an option to purchase is the consideration for the option. Hathaway v. Nevitt, 358 Mo. 202, 213 S.W.2d 938 (1948) [1-3]. It is also true that forfeitures are not favored in the law and acceptance of rent after its due date and before declaration of forfeiture is a waiver of that forfeiture. Lucas Hunt Village Co. v. Klein, 358 Mo. 1054, 218 S.W.2d 595 (banc 1949) [4, 5]; Brazeal v. Bokelman, 270 F.2d 943 (8th Cir.1959) [4]. Here the check was accepted by a co-executor before any forfeiture was declared and the attorney for the estate specifically requested that it be deposited into the estate account. Any forfeiture which might have occurred as a result of the failure to pay the rent on January 5, 1983, was waived and the provisions of the option were in full force and effect.

Defendants’ remaining points deal either with matters in which the trial court’s findings are supported by the evidence or by the law. We find no precedential value in reviewing them.

The trial court issued its order only to two of the three co-executors because of its erroneous conclusion of the status of Michael. All three executors participated at the hearing through counsel. We are authorized “to give such judgment as the court ought to give” and admonished to finally dispose of the case. Rule 84.14. We therefore direct that the order of the trial court be amended to add the name of Michael Pilla as a personal representative ordered to convey and as amended the judgment is affirmed.

SNYDER and SATZ, JJ., concur.

      . The record is not clear when a release was received but it was sometime after January 11, 1983.

        . What has been done with the proceeds is a matter between the co-executor and the estate. It does not affect the validity of the payment made by John Pilla or the effect of acceptance of that payment by Michael.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Van BEDFORD, Defendant-Appellant.
    No. 48420.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

By indictment the state charged defendant Van Bedford had knowingly resisted arrest by using physical force against a uniformed policeman. § 575.150.1, RSMo 1978. The jury found defendant guilty of resisting arrest and fixed punishment at four months in jail. After judgment the defendant appealed.

Here defendant challenges the sufficiency of the state’s evidence.

The state’s evidence: Following an armed robbery the victim identified defendant as one of the robbers to police officer Donald Smith who then sought to arrest defendant. Defendant avoided this by withdrawing a few feet and taking an offensive-defensive posture described as a “karate stance”. When the officer tried to apply handcuffs defendant kicked him and took his police flashlight, then withdrew a few feet and struck the officer with it. Defendant repeated this offensive-defensive activity as two other policemen arrived and assisted in finally arresting him. He continued kicking the officers even after he had been handcuffed.

This evidence refutes defendant’s conclusive contention here that he was attempting to prevent officer Smith from making an improper arrest.

Instead as declared in State v. Thomas, 625 S.W.2d 115[1, 2] (Mo.1981) under the cited statute an arrestee no longer has the right to resist even an unlawful arrest by a known police officer. See also State v. Maxey, 661 S.W.2d 641[1, 2] (Mo.App.1984).

Affirmed.

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


author: SHANGLER, Judge. PRITCHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Steven Leon MAY, Appellant.
    No. WD 35214.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      Robert F. Pyatt, Chillicothe, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before PRITCHARD, P.J., SHANGLER and BERREY, JJ.
   SHANGLER, Judge.

The defendant May was convicted by a jury of the manslaughter of the eleven- ' month old infant Toshua Meeker and was sentenced to a term of imprisonment for six years. The defendant contends the evidence does not support conviction. We sustain the contention, and reverse the conviction and discharge the defendant.

The defendant May was the live-in consort of Norma Meeker, mother of the decedent, during a liaison of one month. The day before July 24, 1981, the infant Toshua fell from a chair to the lineoleum-covered hardwood floor and struck her head. She cried, but according to the mother and grandmother, there was no evident sequel except that “she had been sleeping a lot.” On July 24, 1981, earlier, May, the mother and child, spent some time at the home of the parents of the defendant, where the child crawled and attempted to amble — all without apparent event.

The critical sequence of events commences with the return to the residence from a stroll uptown by Norma Meeker, mother of the eleven months infant Toshua, and the child, and Steven May the defendant and live-in consort for the past month. That was at about eight o’clock on the evening of July 24,1981. When they arrived home, Toshua was placed in a playpen in the living room, the mother went into the kitchen to wash her hair, and defendant Steven commenced to paint the kitchen door. Steven was in sight of the mother and the mother could hear the infant jabbering. The child fell asleep within ten or fifteen minutes, and Steven carried her to the bedroom upstairs. The mother could hear his movement, and she testified that Steven remained upstairs “long enough to lay her down.” He returned downstairs and resumed painting the kitchen door, and the mother continued to attend to her hair. Fifteen minutes later, Steven returned the child to the playpen. Once again, he was gone just “long enough to bring her down.” The child was placed in the playpen, and she went back to sleep. The mother was still preoccupied with her hair, and the defendant was in a chair to smoke a cigarette. After some undisclosed time, Steven returned the child — still asleep — upstairs. He was upstairs again, “long enough to lay her down and come back down.” The two adults remained in the living room entertained by the radio or television. It was hot, and Steven told her he was going upstairs “to check on her, and get a fan, and he went upstairs to check — he came back downstairs, and said ‘something is wrong with Toshua.’ ” The mother ran up the stairs and found the child unconscious. They sought assistance of a neighbor, but no one was at home, so the mother remained with the child while Steven went for the help of his parents. An ambulance was summoned, and in the course of the transport to the local hospital, the mother of defendant, Mrs. May, attempted to revive the child with mouth-to-mouth resuscitation. The child remained unresponsive, however, as they arrived at the hospital.

Dr. David Ryan was the first physician to attend the infant. He was on duty at the local hospital when called to the emergency room when the child arrived. His examination detected bruises on the buttocks, perineum — the area between the genitalia and rectum — and a bruise between the eye and ear on the right side, extended into the hairline. The back of the head had a “soft mushy appearance.” The bruises around the head as well as to the buttocks and perineum “all appeared to be about the same color, a brownish color”— an indication of healing. It was his opinion that the bruises — on the head and other parts of the body — were all of the same age: “probably at least a couple of days old,” or even older, [emphasis added] He could give no opinion as to the cause of the mushiness on the back of the skull. The witness attempted no opinion as to the cause of death. Thus, the testimony of Dr. Ryan tends to prove neither that the child suffered a blow to the head on that day— July 24, 1981 — nor that the injury was caused other than by accident.

The child was that same evening transported to the Childrens Mercy Hospital in Kansas City in the company of Nurse Dal-rymple. There she was seen by Dr. Julia Elrod. The child was still unresponsive and needed help to respire. Examination disclosed a spongy area from the right temple to above the ear, and also bruises to the buttocks and perineum. There also may have been some very faint discoloration about that particular area of the head, “but nothing real dramatic.” Dr. Elrod diagnosed a possible fracture of the skull [later confirmed by a cat-scan X-ray], and diagnosed the condition of the child on the basis of “unexplained trauma, or even unexplained ongoing trauma.”

The next morning, July 25, 1981, the child was examined by Dr. Julie Fall at the Childrens Mercy Hospital, and attended her until July 30, 1981, when she died. The child was still unresponsive to stimuli. She also noted the multiple bruises over the body of the child and a large swelling on the side of her head. Dr. Fall gave opinion that the death was caused by traumtic damage to the brain, but could not say whether the trauma was a fall or a blow.

The autopsy was performed by Dr. Bonita Peterson, Jackson County Medical Examiner. Her procedures noted brownish bruises around the anus and a spongy area on the right side of the head. There was a fracture ilh inches long on the right side of the head and incision revealed a hemorrhage under the surface of the scalp on that side. The brain was swollen, but there was no contusion. In a fall, the Examiner explained, there is a contrecoup or ricochet effect so that any contusion is widespread. In a blow, on the other hand, the contusion is local to the area of impact. In this case, however, there was no contusion at all, so that “we don’t have that clue as to whether it was a fall, or a blow.” [emphasis added].

The corpus delicti of a homicide consists of two elements: the death of a human being and the criminal agency of another. Those elements are not established unless the proof shows that the death was not self-inflicted, nor from natural cause or accident. The proof of the corpus delicti alone, however, does not suffice for conviction: the prosecution evidence must show an additional element — a criminal act of the defendant as the cause of death. State v. Applegate, 668 S.W.2d 624, 628[3-6] (Mo.App.1984); State v. Meidle, 202 S.W.2d 79, 81[1-6] (Mo.1947). These elements of the substantive offense may be shown by direct or circumstantial evidence, but in either event, the prosecution bears the burden to prove the criminal agency of the defendant — and the subsumed element that the death was not from accident — beyond a reasonable doubt. State v. Morris, 564 S.W.2d 303, 308[2-6] and n. 6 (Mo.App.1978). The prosecution case was wholly circumstantial. In assessment of the sufficiency of circumstantial proof, a court of review considers all the evidence and reasonable inferences in a light most favorable to the verdict, and disregards the unfavorable implications. To sustain conviction, the facts and circumstances must be consistent with each other and with the hypothesis of guilt, and must be inconsistent with innocence and exclude every reasonable hypothesis of innocence. State v. Franco, 544 S.W.2d 533, 534[1-4] (Mo. banc 1976).

There was no medical evidence as to the cause of death. There was no evidence that the mortal injury was administered by a human and that the defendant was that person. The proofs allow no clue, either to an expert or to a lay person as to the cause of death, except to choose between two equal possibilities — a fall or a blow. Where the evidence allows no more than equal support for either of two inconsistent inferences as to an ultimate and determinative fact, there is a failure of proof beyond a reasonable doubt. United States v. Kelton, 446 F.2d 669, 671 (8th Cir.1971); State v. Prier, 634 S.W.2d 197 (Mo. banc 1982); State v. Black, 611 S.W.2d 236 (Mo.App.1980). In terms of a homicide proceeding: prosecution medical evidence which shows without dispute that the death of the victim could have been caused equally by accident or by the criminal act of the defendant does not suffice to prove the criminal act. Anderson: Wharton’s Criminal Law & Procedure § 324 (1957). In terms of the burden of proof, a submissible case is not made where the evidence is as consistent with innocence as with guilt. City of Kansas City v. Oxley, 579 S.W.2d 113, 115[2, 3] (Mo. banc 1979). In terms of a submission on circumstantial evidence, unless the evidence excludes every other reasonable hypothesis of innocence [as for instance, accident as the cause of death], the case is not submissible. State v. Grey, 525 S.W.2d 367, 369[1, 2] (Mo.App.1975).

This is not a disagreement with how the jury chose, and an insinuation of another inference of choice instead. A court of review must allow all legitimate inferences which the evidence fairly induces to stand. State v. Selle, 367 S.W.2d 522, 528 (Mo.1963). There was simply no basis for the choice that the cause of death was a blow to the head by the defendant rather than by accident, nor even a choice between evidence pro and contra for that inference. There was testimony only that the death was as likely the result of a fall [accident] as of an administered blow [a criminal act]. The inference that death was caused by a criminal act [upon which the conviction rests], however, can stand only if the proof shows “that the death was not self-inflicted, nor due to natural causes, or accident.” State v. Morris, 564 S.W.2d 303, 309 (Mo.App.1978); State v. Meidle, supra, l.c. 81. Thus, the true cause of death remained a speculation, and was not proven by the evidence available to the jury. State v. Prier and State v. Black, supra; Anderson: Wharton’s Criminal Law & Procedure § 324 (1954).

To be sure, the testimony of Dr. Peterson discounted that the fall from the chair the day before could have caused the fracture to the head. That conclusion, however, even if fact, neither eliminates another fall by accident at another time as the cause of death, nor establishes the probative inference that a blow by a human agent — the defendant himself — was the cause of death. That testimony does not meliorate the conclusion by Dr. Peterson that she could not tell from the autopsy examination “whether it was a fall, or whether it was a blow, that caused this injury.” Moreover, the only substantial evidence as to the date of the incurrence of the head injury — by whatever means, accident or criminal agency — was not on July 24,1981, but at least two days earlier. The bruises at the site of the head fracture as well as those at the perineum and buttocks were all faded and of the distinctive discoloration of bruises in the process of healing. They were, Dr. Ryan testified for the prosecution, "basically about the same age ... probably at least a couple of days old.” That opinion of a trauma to the temple area incurred before July 24, 1981, was supported by yet another opinion of a prosecution expert, Dr. Julia Elrod, who diagnosed the condition of the child as observed on that very night, July 24, 1981, as from “unexplained trauma, or even unexplained ongoing trauma” [emphasis added]. The defendant is not charged, however, with death from an event two days, or any day, before July 24, 1981. Nor does the evidence suggest how the perineal and buttock bruises, contemporaneous to the temple bruise — and hence logically explainable as a connected event — came about. There was no attempt to elicit an explanation from the person most likely to know, the mother, a witness at the trial. What remains is simply a death unexplained as to cause, and hence, the corpus delicti and a conviction unproven.

The prosecution argument slights this conspicuous void in the proof of the corpus delicti [that the death was from human agency rather than from accident] and of the substantive offense [that the defendant was the criminal agent]. The prosecution arches over the lack of that essential proof by the single circumstance: presence and opportunity to commit the offense. The prosecution argues that from the time of the return to the residence — at which time Toshua displayed no serious symptom — until the child was found injured, May exercised “sole control” over Toshua. Thus, that circumstance “eliminated the possibility that another committed the act and demonstrated that [defendant May] had the exclusive opportunity to have inflicted the injury.” The law, however, is otherwise and peremptory: circumstantial evidence which shows that the accused had only opportunity, and even motive, to kill the victim does not suffice to support a conviction for homicide. State v. Shaw, 602 S.W.2d 17, 20[6, 7] (Mo.App.1980). That is to say, circumstantial evidence that the accused was at the scene of the crime and so had opportunity does not constitute a sufficient nexus between the defendant and the crime to sustain conviction. State v. Arnold, 566 S.W.2d 185, 189[9, 10] (Mo. banc 1978). That merely gives effect, once again, to the larger principle: “Where two equally valid inferences can be drawn from the same evidence, the evidence does not establish guilt beyond a reasonable doubt.” State v. Prier, 634 S.W.2d 197, 200[3-5] (Mo. banc 1982).

The cases cited by the prosecution brief simply do not sustain the premise that circumstantial evidence of the quantum and quality presented at the trial establishes a nexus of culpability between the defendant May and the death of the child as a homicide. The prosecution cites recurrently State v. Morris, 564 S.W.2d 303 (Mo.App.1978). That conviction for infanticide was sustained on circumstantial evidence that the live-in male sat with the baby during the entire time the mother was at work. It was that “exclusive custody,” in addition to evidence that the defendant had physically abused the child in the presence of others, that the child suffered severe injuries and fractures on other occasions while in his custody. On the day of the death, the mother and consort spent some time in a local pub [with the victim in tow], on return to the residence, the child was laid on the bed, the mother left for an outside toilet, and the defendant was alone with the child for a full five minutes. On her return, she found the child in distress. The cause of death was a subdural hematoma and hemorrhage from an injury to the head. A police search of the premises discovered a large beer bottle near the bed. The pathologist gave opinion that the injury which caused death could have been inflicted by a blow with the bottle. A substance found on the pillow on which the child lay was consistent with dried beer. Strands of hair found on the beer bottle were similar to hair on the head of the infant. The medical evidence indicated that death was from an active cranial hemorrhage — that is, from a recent injury. On these proven circumstances, the court concluded [l.c. 310]: “a jury could quite readily have found beyond a reasonable doubt that the fatal injury was not self-inflicted, nor due to natural causes or accident.”

The evidence against the defendant May, on the other hand, lacked any such cogent circumstances. There was no evidence that May abused the child at. any time [albeit the faded bruises may bespeak human cruelty]; there was no evidence of a weapon; there was no evidence that the injury was inflicted by a person; there was no evidence that the injury was recent; and, above all, there was no evidence as to the cause of death and that the defendant was the criminal agent of that fatality. What is left is merely opportunity, and that single circumstance does not suffice to sustain a criminal conviction. To describe that opportunity, as does the prosecution, in terms of “sole control” of the infant, forces the sense of language. The mother was present throughout the episode. The transport of the child up and down the stairs on each occasion was momentary: “long enough to lay her down and come back down.” These movements by the defendant with the child were uneventful. The mother observed the infant after each displacement — except for the last time the defendant returned the child to the upstairs bed and then when he went to fetch the fan. The child was then either asleep or at play in the pen on the floor of the living room. Thus, the critical intervals of “sole control” were the moments when the defendant returned the child to the bed for the last time and the moments of his return to the upper floor for the fan. It was the testimony of the mother, however, that the defendant on each occasion was gone long enough only to either place the child on the bed or to gather her for return to the playpen. There is no evidence of anything untoward — an outcry, a noise, or other disruption. What was proven was only the circumstance of opportunity to commit the crime, and even that, only a momentary opportunity.

The prosecution invites our especial attention to State v. Sneed, 676 S.W.2d 301 (Mo.App.1984). In that case, the circumstantial evidence that the defendant live-in companion babysat with the child the entire day while the mother was at work. The defendant did not contest that the child was beaten during that day, but that he left the child for an interval with another person, an admitted drunk, and it was in his absence that the child was injured. The drunk disputed that he had ever assumed the duty to sit with the child, then or ever. There was medical evidence that the cause of death was from multiple fractures — arm and skull — and brain damage. The pathologist discounted that the head injury could have resulted from a fall, but gave opinion that they were possibly caused “by striking or flinging her against a wall.” This evidence of the uninterrupted custody of the child throughout the day and that the fatal injury was inflicted by human agency [a proof which altogether lacks against defendant May] sufficed as circumstantial proof that the defendant was the criminal agent.

Yet another case cited in the prosecution brief bears on aspects of the proof essential to circumstantial guilt in an infanticide. State v. Applegate, 668 S.W.2d 624 (Mo.App.1984) affirmed the conviction of the sodomy and homicide of a child by the step-father who attended the child while the mother was at work. On the morning of the crime, the mother noticed bruises on the face and stomach of the child, but the infant acted normally, so she left for her employment. In the early afternoon, an ambulance was dispatched to the residence and the child was on the floor without pulse or breath. The child died within the hour. It was the contention of the defendant that the child was injured by a fall down a flight of stairs. Examination by physicians at the hospital disclosed the child had been dead for some time. Most of the bruises were fresh. There were injuries to the head and severe injuries to the pancreas, intestine, liver and other internal areas. There was medical opinion that these could not have been caused by self-infliction, or by accident — that is, a fall down the stairs. There was medical opinion, rather, that the injury to the brain was inflicted by a human hand or fist and that the internal injuries were probably caused by a blow against the abdomen from an adult fist or foot. The mother gave evidence also that on an earlier occasion she saw the defendant kick the child, and that on another occasion she returned to find the child bruised, and when she asked for an explanation, the defendant responded with a threat to strike her. The court determined that the medical evidence proved the corpus delicti — that death was not from accident by human agency — and that the extended period of control over the child, the prior episodes of abuse and injury to the child, and the medical opinion that the injuries were inflictions but by the agency of another, proved that the defendant was the criminal agent. In the course of opinion [l.c. 631] the court rejected, once again, “the notion that proof that a child was fatally injured while in the custody of an adult is sufficient to create an inference that the adult inflicted those injuries.”

The distinctions between the circumstantial proofs which sufficed in law to convict in Applegate and the evidence before the jury in the case on review are evident and decisive. There, the medical opinion was that the injury to the infant was not by accident, but by human hands. Here, that proof lacks, and the source of the injury remains a speculation. There, there were episodes of prolonged exclusive control by the adult over the child. Here, the episodes were momentary, and not exclusive. There, the adult kicked and abused the child on other occasions. Here, the mother never saw the defendant [or anyone else] strike or hurt the child. In sum: there, the circumstances proved a nexus between the defendant and the death of the child — evidence indispensible to conviction. Here, the nexus remains a speculation, and guilt remains unproven.

.We share the alarm expressed in State v. Morris, supra, at the pervasiveness of child abuse and the recurrence of that species of human cruelty. We share also the caution of State v. Morris, supra, that “a proper disposition of [such an] appeal requires consideration of the basic elements of any homicide case.” The evidence does not prove beyond a reasonable doubt that the death of the child was caused other than by accident — that is, by the criminal agency of another — and that the defendant was that other.

The judgment is reversed and the defendant is discharged.

BERREY, J., concurs.

PRITCHARD, P.J., dissents in separate dissenting opinion filed.

PRITCHARD, Presiding Judge.

The majority opinion reverses the judgment of the trial court and discharges appellant wherein it says that there is a dearth of circumstantial evidence for the jury to have found, as it did, appellant guilty of manslaughter of the eleven month old victim, Toshua Lynn Meeker. In this I believe the majority errs in that it too narrowly circumscribes the rules governing circumstantial evidence, which a jury is entitled to consider.

There was evidence from the mother of the child that prior to July 24, 1981, when the child was found unconscious lying on her back in an upstairs room, that the general condition of her health was good, she having had normal childhood diseases such as chicken pox. On July 24th, the child was fussy because she was cutting teeth. On the day before, July 23, 1981, to be sure, the child had fallen face forward from an ordinary kitchen chair where she was sitting, striking her head upon a linoleum floor. The mother testified that the child’s reaction to the fall was that “she just kind of cried for a little bit, and I picked her up and was playing with her, trying, you know, to get her to stop crying —.” The mother thought it scared her more than it hurt her. Coupled with the mother’s testimony that she thought the child was not hurt is that of Dr. Bonita Peterson, who performed an autopsy on the child after she died on July 30, 1981. Dr. Peterson first found a fluctuant or spongy area on the right side of the child’s head. On reflection of the scalp after incision, she saw a hemorrhage on the under surface of the scalp on the right side of the head, and also a fracture measuring 4V2 inches in length, extending from the front part of the head towards the back, going slightly downward, at a slight angle. Upon removing the top of the skull, Dr. Peterson observed a layer of hemorrhage (blood) over the right side of the brain, the source of which, in her opinion, was broken blood vessels over the top of the head connecting the brain with the skull, related to trauma. Dr. Peterson also found the abnormality of the entire brain area as being very swollen, probably a reaction to trauma, and secondly, as a result of the child being on a ventilator. As to the severity of the injury, Dr. Peterson testified: “Q. You’re talking about the skull fracture, and the damage, the edema, to the brain, based on your autopsy, and your experience, are you able to place this in a range of mild, moderate, severe, trauma? A. Well, I think I placed it in the category of severe in my final comments. Q. Is that still your opinion? A. Yes. Q. And what do you base that on? A. The extent of the skull fracture. It is not easy, because of an infant’s skull, to fracture it, so there would have to be considerable force.” Although Dr. Peterson could not, on the basis of her autopsy, tell whether it was a fall or a blow which caused the injury, she testified that the cause of death was a severe head injury, with skull fracture, and hemorrhaging, in-tra-cranial hemorrhage.

Dr. Peterson was asked to assume that Toshua Lynn Meeker was eleven months of age, that she took very few steps, basically crawling, that the day before she was taken to the hospital in respiratory distress, she had fallen from a kitchen chair, face forward, and assuming that following that, the child with the exception of some sleepiness, otherwise was her normal self. She was asked if she had an opinion that the type of head injury which she saw on July 30, 1981, could have been caused by such a fall. “A. Well, I would ask for a little bit more information. What was the floor? Q. Linoleum floor. A. And this was the average kitchen chair? Q. Average kitchen chair. A. And your question was? Q. The type of skull fracture that you saw, and its location, could it have been obtained from that type of fall? A. No. Q. Is there any possibility? A. The child on its own? Q. Yes. A. No. Q. Is there a point in time where your opinion would change, depending on the height of the chair? A. Well, it seems very unlikely that the chair could be high enough to cause that type of injury from a fall, unless there was some force behind it. In other words, the child just from a chair, no. Now, if it was from a second floor window, or something like that, yes.”

The events during the day of July 24, 1981, are important. The child’s mother testified that she, the child and appellant had been living at 1307 Gilmore in Trenton, Missouri, for about a month. She was with the child all day on July 24, 1981, and appellant was in and out, and was not with the child all day long. The three of them, Toshua, appellant and Toshua’s mother, went to the home of appellant’s parents, Leon and Daisy May, about noon, and went back there about 4:30 p.m., and stayed outside at a picnic table until about 5:30 p.m., visiting and talking. During this time, To-shua was sitting on Daisy May’s lap when she was not crawling around on the ground. At the time Toshua was learning to walk, taking a few steps with assistance. Leon May took the three of them home about 5:30, and about 6:30, the three walked five or six blocks uptown, where they met appellant’s sister who took them in her vehicle to a liquor store and then drove them home. The three were with the sister for about thirty minutes, driving around for about ten minutes during which time Toshua and the sister’s daughter were playing. Appellant, Toshua and her mother arrived at 1307 Gilmore around 8:00 that evening. Toshua was in the playpen in the living room, appellant was painting the kitchen door, and the mother started washing her hair in the kitchen. The mother heard Toshua in the playpen “just jabbering”.

About 10 or 15 minutes after they arrived home, and while the mother was still washing her hair, she heard appellant go upstairs with the child, which apparently had gone to sleep. Appellant was upstairs just long enough to lay the child down, then come back down, and started painting on the kitchen door. In about 15 minutes, when the mother was in the living room, appellant went back upstairs and brought the child, who was then awake, back down and laid her in the playpen where she went right back to sleep. The mother was then combing her hair, and appellant was then sitting in a chair smoking a cigarette, which he had lit up right after he brought the child downstairs. Appellant eventually took the child, still asleep, back upstairs, being gone long enough to lay her down, and come back down. The mother and appellant then sat in the living room listening to the radio or watching T.Y. According to the mother, the next thing that occurred was: “A. It was hot, and Steve said he was going upstairs to check on her, and get a fan, and he went upstairs to check, and he said something — he come back downstairs, and said ‘something’ was ‘wrong with Toshua’, so I run upstairs, and she was unconscious, so we both ran to the neighbor’s house, but she wasn’t at home, so Steve told me — Huh? Q. There was no one else in the house, at that time? A. But just her. Q. So, you ran next door to the neighbor’s, and no one was home? A. Uh huh, apd he told me to go back upstairs, and stand by her, and he’d go get his mom.” Appellant was gone about 5 minutes to get his parents, during which time Toshua’s mother stayed with her. Toshua was unconscious, white, lying on her back, looking forward with her eyes open, but was not responsive.

Appellant’s mother, Daisy May, had been around Toshua for seven to nine months prior to July 24, 1981, during which time she described her health as “fine”. The child had chicken pox, and a cold a time or two, nothing serious in that time. Daisy saw the child around 3:30 or a quarter to 4 in the afternoon at Daisy’s home, for about one or one and a half hours, along with the child’s mother and appellant, who ate some food and fed Toshua some green beans. Daisy was asked, “Q. Did you notice anything unusual about her on July 24th? A. Yes, I did. Q. What? A. She was sleeping acting, and she just didn’t do that, and I made the remark immediately, I said ‘What’s the matter with Toshua?’, and Norma said ‘She does this a lot of times, sleeps a lot.’ Q. You were not acquainted with that though? A. No, I wasn’t.”

The jury could have found these facts which are supportive of its verdict of guilt: The child had been in previous fine health excepting non-serious childhood diseases. During the day of July 24, the child was in good condition, crawling on the ground, eating and sitting on Mrs. May’s lap, and at about 8:00 that evening, she was sitting in her playpen “just jabbering”. She was just learning to take a few steps at her tender age of eleven months. During all of the time when appellant was carrying the child up and down the stairs he had the exclusive control or custody of her — the mother, the only other person present, was washing and combing her hair and watching T.V. or listening to the radio. Although the mother did not ever see appellant or anyone ever strike the child, the jury could find that the fracture to the right side of the head was inflicted during the time that appellant had charge of her, between 8:00 p.m. and 9:00 p.m., on July 24, 1981, the latter time being about when she was found unconscious, lying on her back, in the upstairs bedroom.

Although the majority opinion makes much of the fact that the doctors who attended the child after medical attention was sought could not attribute a cause of the injury to a fall or a blow [i.e., Dr. Ryan could give no opinion as to the cause of mushiness on the back of the skull; Dr. Elrod, diagnosing a possible skull fracture (later confirmed), testified it was “unexplained trauma, or even unexplained ongoing trauma”; Dr. Fall could not say whether the trauma was a fall or a blow; and Dr. Peterson saying that there was no clue as to whether it was a fall or a blow]. Dr. Peterson testified further that it was not unusual not to have such a clue. She testified further that the cause of death was a severe head injury (trauma), with skull fracture and hemorrhaging, intra-cranial hemorrhage. She placed the trauma as severe based upon the extent of the skull fracture, which in an infant is not easy, but it would have to be with considerable force. Dr. Peterson (and the testimony of the mother) ruled out, for the jury’s consideration, that the severe head injury could have been caused by the fall (accident) from an ordinary kitchen chair the day before the child was found unconscious. Certainly, the jury could have found and believed that this severe and massive head injury could not have been self-inflicted by this toddler. What is important here, also for the jury’s consideration is the fact that the severe head injury would have required considerable force on this infant, and the jury could have reasonably found that during the minutes that appellant had exclusive custody of the child, coupled with the other circumstance that the child was in prior good condition, a blow of “considerable force” was somehow administered to it by a human agency so as to cause its subsequent death. The state was not required to allege and prove the precise manner in which the child was killed, State v. Clark, 546 S.W.2d 455, 463[10] (Mo.App.1976), or to prove the nature of the weapon, or indeed, that any weapon was used, State v. Morris, 564 S.W.2d 303, 311 (Mo.App.1978). Nor was the jury required to have before it medical evidence as to the cause of the infliction of the head injury. The evidence, considering all of the circumstances, and the rule that on review it must be regarded, with all legitimate inferences, in the light most favorable to the verdict, points immutably to appellant’s guilt.

At page 308, footnote 5, of State v. Morris, supra, certain cases from other jurisdictions are cited which the court declined to follow. In State v. Applegate, 668 S.W.2d 624, 631 (Mo.App.1984), the matter is clarified: “The infant victim was in the defendant’s custody when he was fatally injured. In Morris, 564 S.W.2d at 308, n. 5, this court rejected the notion that proof that a child was fatally injured while in the custody of an adult is sufficient to create an inference that the adult inflicted those injuries, and we again reject that notion. The fact that the victim was in the defendant’s custody is only one circumstance to be considered.” [Italics here added.] Of course, in the Morris and Applegate cases, the matter of custody by defendants was not a single circumstance, but others in the cases pointed to defendants’ guilt, but if the Morris and Applegate cases stand for the proposition that where the child is in previous good condition; the evidence rules out a fall (as from an ordinary kitchen chair) as being the cause of the injury; that there is no evidence of accident or self-infliction of the injury as by playing; that the jury may not infer that a defendant inflicted the massive injury during the minutes that he had the sole and exclusive custody, then this writer would disagree with the statements. The probative effect of that circumstantial evidence should be reviewed by the Supreme Court. Although involving the “battered child syndrome” (an increasingly judicially recognized concept), meaning repeated serious injuries by nonaccidental means, these cases stand for the conclusion, based upon logic and reason, that the injuries were occasioned by someone ostensibly caring for the child: People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (1971); State v. Loss, 295 Minn. 271, 204 N.W.2d 404, 409 (1973); Rinehart v. State, 641 P.2d 192, 194 (Wyo.1982) [death of an 11 month old child, in appellant’s custody, caused by shaking her]; Grabill v. State, 621 P.2d 802, 806 (Wyo.1980) [infant’s head injury occurred while appellant had sole and exclusive custody]; Jones v. State, 580 P.2d 1150, 1152 (Wyo.1978) [head injuries not present prior to the time the 19 month old child came under appellant’s exclusive control, and the hemorrhage could not have been caused by a fall from a high chair or other accident in the attending doctor’s opinion]; Goldade v. State, 674 P.2d 721, 727 (Wyo.1983) [“In a series of cases this court has recognized that opportunity, together with injuries consistent with child abuse, is sufficient evidence to support a conviction for homicide.”].

Appellant’s further points that the trial court erred in failing to exclude the testimony of Dr. Ryan, and in failing to require the state to file an adequate bill of particulars (of information it did not have) have been considered and are found to be without merit.

For the foregoing reasons, I dissent from the majority opinion. The judgment should be affirmed.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Danny L. BARNETT, Defendant-Appellant.
    No. 47953.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.
    John Malee, St. Louis, for defendant-appellant.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

Judgments of conviction of robbery first degree and assault first degree and resultant sentences are affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest DAVIS a/k/a Ernest Anderson, Defendant-Appellant.
    No. 48590.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, St. Louis, for defendant-appellant.
    Gary L. Gardner, Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   CLEMENS, Senior Judge.

The issue here: Did defendant Ernest Davis recklessly assault Dolores Isaiah causing a “serious physical injury”? (§ 565.060.1(2)). The quoted phrase was defined by the trial court to include the protracted impairment of a bodily member or organ. (§ 556.061(24)).

The jury found defendant guilty and the trial court sentenced him as a previous offender to ten years in prison. He has appealed, contending the evidence failed to show, as it must, that the charged assault caused protracted bodily impairment. (MAI-CR2d 33.00).

The evidence showed a protracted “lovers’ quarrel” during which defendant beat and kicked the victim about her head. According to investigating police the victim’s head was swollen and bloody. Testimony by the victim and hospital personnel during her ten days there showed: When admitted the doctor found her jaw was- broken and under anesthetic surgery he reduced the fracture and affixed a brace to hold it. While the victim was in the hospital her neck, face and eyes were seen to be cut and bruised. Further, one of the victim’s eyes is blurry and at times she could not see with it.

As said, defendant contends here the evidence did not show, as required by the verdict director and the cited statute, his assault caused serious physical injury, that is, a functual impairment of a bodily member or organ.

Preliminarily, we hold the instruction was justified by the victim’s testimony that her vision in one eye continued to be impaired from time to time.

The challenged verdict director was before us in State v. Teal, 624 S.W.2d 122[1] (Mo.App.1981). There, on a charge of child molestation the evidence showed the child “sustained an injury to her face which resulted in substantial loss of blood and which required stitches on [her] face around her left eye.” We held the quoted evidence warranted an instruction on “serious physical injury”. That ruling warrants the submission here on the basis of this plaintiff’s testimony of her bodily injuries, including her impaired vision.

We hold the verdict director on recklessly causing serious physical injury was justified by the quoted testimony of her prolonged hospital stay for extensive trauma and bone surgery and also her impaired vision. We have no hesitancy in holding the evidence showed the victim suffered serious physical injuries, recklessly caused by defendant.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.