author: SNYDER, Judge.

text:
    Milton Vincent GRIFFIN, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 47901.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Lew A. Kollias, Jefferson City, for defendant-appellant.

      John Ashcroft, Atty. Gen., Richard Baugh, Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Milton Vincent Griffin appeals from a judgment denying his Rule 27.26 motion to vacate his conviction and sentence on a charge of stealing a motor vehicle in violation of § 570.030 RSMo.1978 to which he pleaded guilty. The judgment is affirmed.

His principal complaint is that the trial court did not comply with Rule 24.02 which requires the court to inform a defendant who wants to plead guilty of the defendant’s rights and the maximum and minimum penalties as well as other facts applicable to the offense.

Movant also contends that the trial court erred in denying his Rule 27.26 motion without an evidentiary hearing because (1) movant received ineffective assistance of counsel; and (2) the Rule 27.26 motion alleged facts sufficient to show that his guilty plea was not knowing and voluntary, thus requiring a hearing to determine mov-ant’s understanding of the guilty plea process.

Movant argues further that it was plain error for the trial court to assess a twenty-six dollar judgment pursuant to “The Aid to Victims of Crime Bill,” § 595.045 RSMo. 1983 Cum.Supp., because the offense to which he pleaded guilty occurred on a date prior to the effective date of the statute.

Movant on November 2, 1981 first attempted to plead guilty to first degree robbery. During the plea proceeding the trial court questioned movant extensively about his willingness to plead guilty and his rights, but ascertained finally that movant denied robbing the victim of anything. The court then suggested that movant talk further with counsel. No mention was made of maximum and minimum penalties on November 2.

On November 3,1981 movant again came to court with counsel and, after the state filed an amended information, changed his plea to guilty of the offense of stealing a motor vehicle. The trial court, not speaking directly to movant, but in a discussion with counsel, stated that the “maximum punishment for a Class C felony without any enhancement is two to seven years.”

The plea bargain sentence had been ten years based on movant’s being a prior offender. At the sentencing the court again mentioned the maximum and minimum sentences for the Class C felony and the bargained sentence of ten years after enhancement.

The state then informed the trial court that the penalty could not be enhanced on the basis of movant being a prior offender, only if he were a persistent or dangerous offender. By agreement of the parties the state’s amended information pleaded mov-ant as a persistent offender. They also agreed to reduce the bargained sentence from ten to nine years.

On appeal this court must determine whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). Moore v. State, 637 S.W.2d 275, 276[1, 2] (Mo.App.1982). If they are not clearly erroneous, the judgment must be affirmed.

Rule 24.02(b) V.A.M.R. provides in part that:

“... [Bjefore accepting a plea of guilty, the court must address the defendant personally in open court, and inform him of, and determine that he understands, the following:
1. ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law

Although the trial court did not directly inform the movant of the maximum and minimum penalties for stealing a motor vehicle, the penalties were specifically mentioned in discussion with counsel in the presence of movant. The record shows that movant understood the two to seven years penalty and that it would be enhanced because he was a persistent offender. A portion of the record reads:

(The Court)
Q Do you remember the plea bargain when you pled guilty?
A Yes, sir.
Q All right. It was supposed to be a ten year sentence, do you remember that?
A Yes, sir.
Q You’re now being offered a nine year sentence because of what we’ve just discussed, namely that I couldn’t sentence you to ten years under a conviction of stealing as a prior offender. I could only do it if you were a persistent or dangerous offender.
I’m giving you the chance to take back your plea of guilty completely and to have a trial if you want it. Do you understand what I’m saying?
A Yes, sir, I understand.
Q Do you want to do that?
A No, sir.

Rule 24.02 became effective on January 1, 1980, replacing prior Rule 25.04. Rule 24.02 differs from Rule 24.04 in part because Rule 24.02 requires the trial court to advise the defendant of the mandatory minimum and maximum possible penalties before accepting a guilty plea. Rule 24.-02(b)l.

Research disclosed no Missouri cases which interpret Rule 24.02(b)l. The cases under Rule 25.04 only required that the trial court determine that the plea was made voluntarily and with understanding. Blade v. State, 558 S.W.2d 352, 354-55[5] (Mo.App.1977).

After a thorough consideration of the record, this court finds that there was substantial compliance with Rule 24.02. The transcript of the hearing shows that movant knew exactly what the sentence was. He had agreed to ten years, which was reduced to nine years in exchange for the agreement by his counsel that no objection would be raised to the amendment of the information to charge that movant was a persistent offender. Movant twice heard the trial court state the minimum and maximum punishment for the Class C felony offense of stealing a motor vehicle, once at the hearing on his Rule 27.26 motion and once at the sentencing. Movant obviously understood the nature of the charge. Giles v. State, 562 S.W.2d 106, 109[2] (Mo.App.1977).

Movant also understood and waived all of his other rights. This is shown by the record of the court proceedings on November 2 and November 3, 1981. To say that the proceedings on November 2, 1981, when he said he would plead guilty to robbery first degree did not carry over to November 3,1981, the very next day, when the trial court accepted his plea of guilty to the charge of stealing a motor vehicle, would be to elevate form over substance and deny the irrefutable evidence of the record.

At no time does movant argue that he did not understand the applicable punishment. On the contrary, he clearly understood and agreed to the nine year sentence which the trial court ultimately imposed. This court holds there was sufficient compliance with Rule 24.02 based on the record in this case.

The appellant is correct when he asserts that Missouri Rule 24.02 is an adoption of Rule 11(c) of the Federal Rules of Criminal Procedure. When Missouri adopts a statute from another state it also adopts that state’s construction of the law. General Box Co. v. Missouri Utilities, Co., 331 Mo. 845, 55 S.W.2d 442, 447[6] (1932). When Missouri adopts a federal statute the executive and judicial interpretations are strong persuasive authority. Mid-Continent Aerial Sprayers v. Industrial Com’n., 420 S.W.2d 354, 360[7] (Mo.App.1967). There is no reason to distinguish an adoption of procedural rules from adoptions of statutes.

Missouri cannot have adopted the federal construction of Rule 11(c) because there are conflicting constructions among the federal circuits. Appellant cites cases which indicate that failure to comply with the technical requirements of Rule 11(c) mandates reversal, e.g., Yothers v. United States, 572 F.2d 1326 (9th Cir.1978). There are also cases in other circuits which hold defendants may not withdraw guilty pleas without proving that failure to comply with Rule 11(c) caused prejudice. See, e.g., Keel v. United States, 585 F.2d 110 (5th Cir.1978). U.S. v. White, 572 F.2d 1007, 1009[1] (4th Cir.1978).

The conflicting constructions of Rule 11(c) existed when Missouri adopted the Rule 11(c) language. Contemporaneous inconsistent constructions do not shed light on which interpretation, if any, was intended. This court holds that when Missouri courts adopt a federal rule of procedure which various circuits construe in conflicting ways, the conflicting constructions have no weight. The courts of Missouri are free to select among conflicting constructions or disregard them entirely.

Movant raises a constitutional issue in his appellate brief for the first time. It relates to what movant describes as the ex post facto application of the law under which the trial court imposed a $26.00 judgment. § 595.045 RSMo.Cum.Supp.1983. Movant failed to object to the rendering of the judgment at the time he was sentenced in the trial court.

A Rule 27.26 motion is an independent civil action governed by the rules of civil procedure. State v. Gilmore, 617 S.W.2d 581, 583[2] (Mo.App.1981). Constitutional issues must be raised at the earliest opportunity or they are waived. State v. Thompson, 627 S.W.2d 298, 303[4,5] (Mo.banc 1982); Meadowbrook Country Club v. Davis, 384 S.W.2d 611 (Mo.1964). Because movant did not raise the constitutional issue at the first opportunity, his point is denied.

Movant’s claim of ineffective assistance of counsel and his assertion that his plea was not voluntarily and knowingly made are refuted by the record. An extended discussion of these points would have no precedential value and they are denied in compliance with Rule 84.16(b).

The judgment was not clearly erroneous. It is affirmed.

SMITH and SATZ, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the Marriage of Lynn Rex COLLOM, Appellant, v. Charleen Amelia COLLOM, Respondent.
    No. 48069.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Patrick J. Healey, Festus, for appellant.
    Joseph P. Cunningham, Festus, for respondent.
   ORDER

PER CURIAM.

Husband appealed from an order granting the wife’s motion to modify a dissolution decree by transferring to her primary custody of the two minor children of the marriage, and from a dismissal of his motion for contempt. The judgment is affirmed in accordance with Rule 84.16(b).


author: DOWD, Presiding Judge.

text:
    Donald FOWLER, Appellant-Employee, v. MONARCH PLASTICS, Respondent-Employer.
    No. 48276.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Morris B. Kessler, St. Louis, for appellant-employee.
    Adrian DeYoung, Luke & Cunliff, St. Louis, for respondent-employer.
   DOWD, Presiding Judge.

Appellant-employee Donald Fowler appeals from an adverse judgment of the Circuit Court of Franklin County affirming the award of the Labor and Industrial Relations Commission (hereinafter referred to as commission). The commission reversed the award of the Administrative Law Judge (hereinafter referred to as AU) who granted Fowler workmen compensation benefits under Chapter 287 RSMo 1969.

Appellant seeks benefits as compensation for a personal injury to his lower back sustained in the course of his employment with respondents Monarch Plastics. The injury supposedly occurred in January, 1969. Appellant initiated this claim in November, 1978. During this period, he has received numerous treatments for his back pain by a variety of doctors. He defends his nearly ten (10) years of inaction by positing lack of knowledge that such compensatory relief existed. He only became aware that benefits might still be obtainable upon mentioning his back problems to an attorney-friend.

On May 27, 1982, the Division of Workmen’s Compensation held a hearing to determine the validity of Fowler’s claim. Before the hearing, the AU had granted Fowler’s motion to compel Monarch Plastics to file an injury report as required by § 287.380 RSMo 1969. Such a filing enabled Fowler to submit his claim pursuant to § 287.430.

The undisputed facts adduced at the hearing indicates that Fowler was employed at Monarch Plastics when the injury supposedly occurred and that Fowler does have a permanent partial disability of his lower back. The dispute focuses on whether Fowler’s injury arose out of and in the course of his employment with the Monarch Plastics, and whether he gave 30 days notice of his injury to his employer as required by § 287.420. As a result of this hearing, the AU found for Fowler’s on these issues. On appeal to the commission, the AU’s findings on both issues were reversed. The commission was affirmed by the circuit court.

On appeal, Fowler raises three points of contention. First, the determination by the commission that the employee failed to notify his employer as required by § 287.420 was totally unsupported by the sufficiency and weight of the evidence. Second, the filing of the injury report by the employer with the Division of Workmen’s Compensation as ordered by the AU ten years after the alleged accident tolled the statute of limitations, § 287.380. Lastly, Fowler contends that the AU did have the authority to order the employer to file the before-mentioned report.

Concerning Fowler’s first point, this court may not substitute its own judgment on the evidence for that of the commission’s. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 141 (Mo. banc 1952). The commission is the judge of the credibility of witnesses. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 296 (Mo.1965). The commission may disbelieve the testimony of a witness even though no contradictory or impeaching testimony appears. Vogel v. Hall Implement Co., 551 S.W.2d 922, 923 (Mo.App.1977). Our ultimate obligation is to determine whether the commission could reasonably have made its findings and reached its result upon consideration of all the evidence. It is only where the commission’s finding and award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence, viewed in a light most favorable to the commission’s award, that this court should disturb the award. Kite v. Polsky Motors, Inc., 614 S.W.2d 294, 299-300 (Mo.App.1981). Being cognizant of these general principles governing our review of workmen’s compensation cases, we now turn our attention to the evidence in the record on which the commission made its award.

At the hearing, Fowler testified that he was the Chief of Police in Union, Missouri. He has held this position since April, 1974. He originally joined the Union Police Department in September, 1970, after leaving his employment at Hillerman Nursery. Between 1968 and September 1970, Fowler alternated jobs with Hillerman Nursery and Monarch Plastics. During this period, he worked for Monarch Plastics twice and for Hillerman Nursery three times. Prior to this period he held jobs in a filling station and as a permaneer. From 1963 to 1966, Fowler spent three years in the military as a paratrooper who made sixteen parachute jumps.

While at Monarch Plastics, Fowler was employed as a relief man and hopper filler. As a hopper filler, his job entailed lifting a heavy drawer of a grinder over his head. This drawer contained reusuable material which must be lifted off the ground and emptied into the hopper. Fowler claims that one particular night in January, 1969, while lifting an unusually heavy drawer, he started to slip forward. In an effort to return the drawer to the floor, he hurt his lower back. Since Fowler worked the night shift, no one witnessed the incident. He does claim that he mentioned the pain in his back to his shift-foreman, Charles Angelí, within a half-hour of the injury. At the time, Fowler was a social acquaintance of Roy Holthaus, a manager at the plant. Fowler did not recall ever mentioning the injury to Holthaus. No report of this incident was ever filed by Monarch Plastics with the Division of Workmen’s Compensation. The first doctor from whom Fowler sought treatment was a Dr. Greenstreet, D.C.; Fowler did not know whether this doctor still maintained a practice. Consequently, Dr. Greenstreet was never called to testify.

To corroborate his testimony Dr. Clark, D.C. testified for Fowler. Dr. Clark has been treating Fowler’s symptoms since December, 1969. From January, 1969, to December, 1969, Dr. Greenstreet was the treating physician. Dr. Clark also testified that Dr. Greenstreet still maintains a limited practice in Union, Missouri.

Charles Angelí, the shift foreman and a resident of Union, testified for Monarch Plastics. Basically, his testimony contradicted Chief Fowler’s in that he never received notice of the injury, as required by § 287.420. Had notice been given, Angelí was required to file an accident report with Roy Holthaus. No such report exists in the record. On cross examination, Angelí refused to say that he thought Chief Fowler was lying. This refusal does not serve to negate his earlier testimony contradicting the employee.

Upon review of the whole record, we believe that the commission could have reasonably made its findings and reached its result after considering all the evidence before it. From 1968 through September, 1970, Fowler worked intermittently with Monarch Plastics and Hillerman Nursery. Fowler produced a corroborating witness, Dr. Clark, to prove the existence of his back injury. He did not produce the witness, Dr. Greenstreet, who could substantiate when the injury occurred. Dr. Clark commenced treating him when Fowler worked at Hillerman Nursery not Monarch Plastics. The employee who is police chief of Union, Missouri, claimed ignorance of Dr. Greenstreet’s whereabouts. Yet Dr. Clark knew that Dr. Greenstreet still maintained a limited practice in Union, Missouri. Certainly, a police officer with years of field experience could utilize his investigative skills to locate a practicing doctor in a town where that police officer was also the chief of police.

We do not say that we disbelieve Chief Fowler; the commission judges the credibility of a witness. We review the record to determine whether sufficient competent evidence exists on which the commission could have reached its award. As we find the commission did reach its award based upon competent evidence supporting its disbelief as to the issues of notice and situs of injury, we are required to affirm it. Since the commission found against Fowler on these issues, the two remaining contentions lack ripeness for review. Without timely notice to the employer of an injury to an employee, the wheels of process involving workmen’s compensation do not grind. See § 287.420.

Judgment affirmed.

CRIST and CRANDALL, JJ., concur.

      . Today, Monarch Plastics is known as Jim Walters Plastics.

      . All statutory reference are made to RSMo 1969 unless otherwise noted.


author: PUDLOWSKI, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ghemelle THOMAS, Defendant-Appellant.
    No. 48333.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Dave Hemenway, Special Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Defendant was convicted of two counts of robbery in the first degree, violations of § 569.020 RSMo 1978; three counts of attempted robbery, violations of § 564.011 RSMo 1978; one count of assault first degree, a violation of § 565.050 RSMo 1978; and three counts of armed criminal action, violations of § 571.015 RSMo 1978. He was sentenced to serve a term of thirty years imprisonment; ten years for one count of robbery; a concurrent term of 10 years for the second count of robbery; a consecutive term of 5 years on one count of attempted robbery; two concurrent terms of 5 years on the remaining two counts of attempted robbery; a consecutive term of 15 years for first degree assault; and three concurrent terms of 5 years for armed criminal action. He appeals. We affirm.

Defendant does not challenge the sufficiency of the evidence. There was strong evidence from which the jury could have found that on the evening of February 24, 1983, Gregory Ivory and Dennis McDan-iels, both armed, invaded an apartment at 5616 Vernon in the City of St. Louis. The two terrorized the eight occupants, ransacked the apartment and shot Vernon Taylor in the arm during the course of the robbery. The two men took two television sets and left the building. They took the sets to an automobile parked adjacent to the house where defendant helped load the televisions into the back seat and trunk of the car. Defendant, Ivory and McDaniels drove off. They were stopped a short time later by the police with defendant driving. The trio was arrested and both television sets were recovered.

Defendant contends that the trial court erred in denying his motion for a mistrial made during the second day of trial based on the fact that a juror and an alternate juror were observed drinking during a lunch recess the previous day.

The following transpired:

[Defendant’s Attorney]: I ... request a mistrial at this time based on information the court received from a juror, Number 83, James Doyle, wherein he informed the court and attorneys for both parties that he was aware of Juror Number 243, Robert Nehring, had consumed some alcoholic beverages, and alternate juror Number 150, John Hogan, had also consumed some alcoholic beverages, and based on that it’s our feeling that the defendant may be deprived of equal protection and due process.
MR. FORSYTHE: I observed the men yesterday afternoon and they seemed attentive and paying attention to the proceedings.
THE COURT: I agree. I would deny the request for a mistrial unless something were brought in that their ability to understand the case had been impaired

The determination of whether misconduct by a juror tending to prevent a fair and due consideration of the case and requiring a mistrial rests with the discretion of the trial court. State v. Johnson, 586 S.W.2d 437, 442 (Mo.App.1979). Proof that a juror has consumed alcohol does not in and of itself entitle defendant to a mistrial. It is incumbent upon the defendant to establish that the mind of a juror was affected by alcohol or that he suffered from some degree of intoxication. State v. Johnson, 586 S.W.2d 437, 442 (Mo.App.1979); State v. Taylor, 134 Mo. 109, 35 S.W. 92, 105 (Mo.1896). There was no evidence adduced either during trial or at the hearing on the motion for new trial as to how much the jurors imbibed or that the jurors were affected in any way by the consumption of alcohol. Defendant’s attorney made no request of the trial court that it interrogate the jurors either on the afternoon that it received the information or the morning counsel made the motion for a mistrial. Certainly the better practice, anytime a court receives evidence that jurors have consumed alcohol is to interrogate the jurors. However, on the record before us there is no evidence of intoxication or impairment. Consequently we find no abuse of the trial judge’s discretion.

Affirmed.

GAERTNER and KAROHL, JJ., concur.

      . Before the lunch recess on the second day of trial, though, the court did admonish Jurors Nehring and Hogan that it took a “dim view" of drinking, instructed them not to drink during the lunch hour, and ordered a Sheriffs Deputy to accompany them to ensure abstention.


author: KAROHL, Judge.

text:
    Mildred HANTEN, et al., Plaintiffs-Respondents, v. R.E. JACOBS, et al., Defendants-Appellants.
    Nos. 48337, 48318.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Ernest L. Keathley, St. Louis, for defendants-appellants.

      John Gerard Enright, St. Louis, for plaintiffs-respondents.
   KAROHL, Judge.

Plaintiff-respondent Mildred Hanten, a business invitee, sued defendants as owners and operators of a shopping mall for personal injuries sustained in a fall on defendants’ property. Co-plaintiff John Han-ten made a derivative loss of consortium claim in Count II. After a verdict for defendants the trial court granted plaintiffs a new trial on the ground that defendants’ contributory negligence instructions were a prejudicial deviation from MAI 32.-01(1). Defendants appeal that order.

Plaintiffs’ cross-appeal contests a pretrial dismissal of Count III for failure to state a cause of action. Count III attempts to state a civil cause of action by alleging that the individual defendants intentionally, illegally and maliciously did business in the ownership and operation of the shopping mall without registering their true identity and location as required by the registration of fictitious name statutes. See §§ 417.-200-.230, RSMo.1978.

DEFENDANTS’ APPEAL FROM ORDER GRANTING NEW TRIAL

The trial court submitted the following verdict director instruction for plaintiff and contributory negligence instructions for defendant:

INSTRUCTION NO. 8 [MAI 22.03]
Your verdict must be for plaintiff Mildred Hanten if you believe:
First, there was a part of the base of the fountain which projected outwardly from the fountain on the floor of the defendants’ shopping center, and as a result the floor was not reasonably safe for customers, and
Second, Plaintiff Mildred Hanten did not know and by using ordinary care could not have known of this condition, and
Third, defendants knew or by using ordinary care could have known of this condition, and
Fourth, defendants failed to use ordinary care to remove it, barricade it, or warn of it, and
Fifth, as a direct result of such failure, plaintiff was injured, unless you believe Plaintiff Mildred Hanten is not entitled to recover by reason of Instruction No. 9.
INSTRUCTION NO. 9 [See MAI 32.01(1)]
Your verdict must be for Defendants on Plaintiff Mildred Hanten’s claim for damages if you believe:
First, Plaintiff Mildred Hanten failed to keep a careful lookout, and
Second, Plaintiff Mildred Hanten thereby failed to use ordinary care, and
Third, such failure of Plaintiff Mildred Hanten directly caused or directly contributed to cause any damage Plaintiff Mildred Hanten may have sustained,

(emphasis added). Instructions 12 and 13 relating to the husband’s claims are similar. Plaintiffs offered Instructions 8 and 12 raising the issue of defendants’ “ordinary care.” Defendants-appellants submitted Instructions 9 and 13 adopting in the second paragraph the same language. The court submitted Instruction 4, MAI 11.05, the MAI definition of “ordinary care.” Negligence was not mentioned in any instructions and was not defined by separate instruction.

Defendants contend that there is no MAI contributory negligence instruction for landowner-business invitee cases and cite Helfrick v. Taylor, 440 S.W.2d 940, 944 (Mo.1969). That was a landlord-tenant case and the court there said the contributory negligence instruction should be a modification of the general contributory negligence instruction which is now MAI 32.-01(1)(2)(3).

At issue here is whether a new trial should have been granted when “ordinary care” was used in the contributory negligence instructions instead of the approved language of MAI 32.01(1), “was thereby negligent.”

The trial court ruled that MAI 32.01(1) is applicable and is a mandatory instruction in a landowner-business invitee case. If so, any deviation is presumed prejudicial. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 786 (Mo.banc 1977).

Plaintiff contends that there was prejudice from the deviation from MAI. First because the use of the term “ordinary care” in the contributory negligence instruction after use of the same term in plaintiffs’ verdict instruction confused the jury and constituted an impermissible double contributory negligence instruction. Plaintiff argues that this double instruction shifted defendants’ burden of proof on the affirmative defense of contributory negligence to plaintiff forcing her to prove she was not contributorily negligent. See Arnel v. Roettgen, 530 S.W.2d 20, 23 (Mo.App.1975). Second, plaintiff argues that while both parties shared the burden of proof on the issue of lookout the duty was not the same for both parties. The plaintiff must prove her ordinary care in failing to discover the danger where defendants have a greater burden on the affirmative defense of contributory negligence, to-wit, to prove plaintiffs failed to use ordinary care to discover and to appreciate the danger. Plaintiff cites Dorrin v. Union Electric Company, 581 S.W.2d 852, 858 (Mo.App.1979) as authority.

Defendants-respondents respond that MAI 32.01(1) is not applicable to landlord-business invitee cases, and even if it is there was no prejudice. First, if the term “plaintiff was thereby negligent” prescribed by MAI 32.01(1) was used in the contributory negligence instructions then negligence must be defined in a separate instruction in terms of ordinary care, (see MAI 11.02, 11.05), and the result would have been the same. Second, because plaintiff Mildred Hanten was an adult her ordinary care duty to see is the same as her duty to see and appreciate the danger. See Dorrin v. Union Electric Company, 581 S.W.2d 852, 856 (Mo.App.1979) where the plaintiff was a child. Finally, defendant distinguishes Arnel v. Roettgen, 530 S.W.2d 20 (Mo.App.1975) where the court failed to give any burden of proof instruction.

The trial court adopted plaintiffs’ view that MAI 32.01(1) applied, that the deviation was impermissible, presumptively erroneous, Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 786 (Mo. banc 1977), and prejudicial and granted a new trial.

Whether the instruction was erroneous and/or prejudicial is a question of law to be determined from the record. Highfill v. Brown, 340 S.W.2d 656, 664 (Mo. banc 1960). A trial court has the discretion to grant a new trial only as to the questions of fact. There is no discretion in ruling on the law of the case. Spalding v. Monat, 650 S.W.2d 629, 631 (Mo.App.1981). We must determine whether as a matter of law the deviation from the MAI was prejudicial and warranted a mistrial.

Deviations from applicable MAI instructions are presumed erroneous and a mistrial is appropriate when the error is prejudicial. Keifer v. St. Jude’s Children’s Research Hospital, 654 S.W.2d 236 (Mo.App.1983). We find that MAI 32.01(1), the general negligence instruction is applicable in a landowner-business invitee case. Although defendant argues that MAI 32.01 is not applicable, the instruction he offered is obviously patterned after it being identical in all but four words. When modifications to an MAI instruction are necessary the new instruction should be simple and free from argument. Rule 70.02(e). Here the alterations were slight and merely technical not substantive.

None of plaintiffs’ allegations rise to the level of prejudicial error which as a matter of law require a new trial. “The test is whether the challenged instruction placed a greater burden on the party submitting it than would the applicable instruction.” Keifer v. St. Jude’s Children’s Research Hospital, 654 S.W.2d 236, 238 (Mo.App.1983). Assuming plaintiffs’ contention is true that the similarity of language in the instructions shifted the burden of proof on the affirmative defense of contributory negligence to the plaintiff, the result is that for plaintiff to prevail on the verdict she must prove that by using ordinary care she could not have known of the danger. To prevail against the affirmative defense she must show that she did not fail to use ordinary care. Although a plaintiff does not carry the burden of proof on affirmative defenses, even if she was forced to in this case there is no prejudice because both elements that she would have to prove are the same. If the burden shifted she would be required to prove both use of ordinary care and that there was no failure to use ordinary care. Once use of ordinary care has been proved the issue of no failure to use ordinary care must also have been proved. Plaintiffs burden was not enlarged.

Plaintiff further claims that shifting the burden of proof on lookout to her was unfair because defendants’ burden was greater than hers in that defendant had to prove failure of plaintiff to use ordinary care and appreciate the danger while plaintiff need only prove the use of ordinary care. As respondent noted use of ordinary care for adults includes an appreciation of danger. See Dorrin v. Union Electric Co., 581 S.W.2d 852 (Mo.App.1979). Even if the burden shifted a higher duty was not thrust on plaintiff.

However, there is no reason to believe the jury shifted the burden of proof here. The deviation in the MAI in effect placed the definition of the word negligence in place of the word negligence in the instruction. There was no alteration in what either party needed to prove.

Since as a matter of law the deviation from the MAI was not prejudicially erroneous the trial court should not have granted the motion for a new trial. The original verdict in favor of defendant should be reinstated.

PLAINTIFFS’ APPEAL ON DISMISSAL OF COUNT III

Plaintiffs’ cross-appeal alleges that Count III should have been dismissed because it stated an actionable civil cause of action for breach of an affirmative statutory duty enforcible by a criminal penalty. Count III alleged that because defendants failed to register their fictitious names as required by § 417.200, RSMo.1978 plaintiffs suffered injuries, specifically increased litigation expenses including attorney’s fees for the time spent ascertaining the identity of the actual owners of the shopping mall in order to bring the claim for personal injuries.

Plaintiffs cite Hartenbach v. Johnson, 628 S.W.2d 684 (Mo.App.1982) for the elements of a cause of action from the violation of a state statute. Hartenbach recites the standard for a cause of action in negligence, 628 S.W.2d at 687, and Count III does not allege negligence. Assuming without deciding that, as plaintiffs contend, Hartenbach sets forth the proper requirements, plaintiffs’ Count III failed to allege an actionable cause of action.

In Hartenbach we stated that [i]n order for the violation of a statute ... to constitute actionable negligence, it must appear that there was in fact a violation of the statute .... that the injured party was within the class of persons intended to be protected by the statute or ordinance, that the injury was of such character as the statute, ... was designed to prevent, and that the violation of the statute ... was the proximate cause of the injury.

628 S.W.2d at 687. The class of persons the fictitious name statute is designed to protect are parties to business transactions. Plaintiffs’ underlying cause of action for personal injuries was not dependent upon the identity of the landowner. Fair dealing, fraud, enforcement of business agreements, and credit were not relevant considerations in the existence of the cause of action for personal injuries. That cause of action existed independently of identity of the tortfeasor. In addition the only injury associated with the failure to register the name is the increased litigation expenses. This is not the type of injury that the statute was intended to prevent. See Williams v. Nuckolls, 644 S.W.2d 670, 672 (Mo.App.1982).

We affirm the dismissal of Count III for failure to state a cause of action. We reverse the grant of new trial on Counts I and II.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: RONALD M. BELT, Special Judge.

text:
    SULLIVAN & WATKINS, INC., Plaintiff-Respondent, v. David J. RAUSCHER, Defendant-Appellant.
    No. 46725.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Rexford H. Caruthers, St. Louis, for defendant-appellant.
    Henry D. Menghini, Gerre S. Langton, St. Louis, for plaintiff-respondent.
   RONALD M. BELT, Special Judge.

Plaintiff law firm sued defendant attorney to recover fees received after his separation from the law firm. The trial court found for plaintiff and rendered judgment against defendant in the amount of $106,-581.93. Defendant now appeals. The judgment is affirmed.

In August, 1973, appellant David Rauscher joined respondent law firm of Sullivan & Watkins, Inc., as an associate. The firm agreed to pay Rauscher $10,000 a year and other fringe benefits. Appellant was to pay the firm one-half of all fees generated by business he brought into the firm. From 1973 to 1980, appellant divided all fees in accordance with that agreement.

On February 9, 1980, defendant announced his intention to leave the firm. He did so on February 15, 1980. Thereafter, defendant received fees on various contingent fee arrangements existing at the time of his departure. The largest fee was from a case on which a verdict had been obtained a week before he announced his intention to leave. All post trial and appeal effort followed his termination.

On appeal, five points of error are raised. For various reasons the first four points are premised on the assumption that the following findings by the trial court are in error:

“... the defendant agreed to pay to plaintiff one-half of all fees resulting from business brought into plaintiff’s firm by defendant ...
"... defendant is indebted to plaintiff and should account to plaintiff for business brought into the firm by defendant during defendant’s period of employment by plaintiff, including fees received on the Ramsey vs. Oakite Products case ...and
“defendant account to plaintiff for all monies received by defendant as a result of the Ramsey vs. Oakite Products case and all other cases brought into the plaintiff’s firm by defendant during the said period of defendant’s employment with said firm ...”

These findings are challenged for the following reasons: (1) There was no substantial evidence to support the court’s ruling and that said ruling erroneously declares and applies the law; (2) respondent failed to plead and prove any consideration to support a contract for post-employment divisions of fees; (3) respondent is es-topped from asserting any contract rights because it demanded and accepted reimbursement for all expenses advanced by respondent on appellant’s separate business during his association with the firm; and (4) accord and satisfaction occurred when respondent accepted and cashed a check for advanced expenses.

The issues of “estoppel” and “accord and satisfaction” were specifically considered by the trial court and found against appellant. The trial court held that the fees at issue were covered by this contract. No additional contract was required if that ruling was correct. Where there is no ambiguity in the contract, the interests of the parties are to be gathered from it and it alone, and it becomes a duty of the court to state its clear meaning. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 265 (Mo.1973).

This court has reviewed the transcript and there was substantial evidence to support the court’s ruling on each of the first four points, and the court did not erroneously declare or apply the law. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The first four points are denied.

Appellant cites us to McLean v. Michaelowsky, 117 Misc.2d 699, 458 N.Y.S.2d 1005 (1983). The case dealt with attorney fees of a former employee on a case she took with her when she left the firm. Unlike this case, there was no agreement as to distribution of fees after she left the firm. The court there pointed out that the parties could have in their original agreement protected their legitimate interests.

Appellant’s final point claims he was improperly denied the right to a jury trial. He argues that because respondent did not plead and prove any basis for equity jurisdiction or an action on account, the grant of equity jurisdiction deprived him of his right to a jury trial. The point is denied.

There is no evidence appellant ever requested a jury trial. By entering into trial without objection, any error that occurred was waived. Rule 69.01; State ex rel. State Highway Commission v. Tighe, 386 S.W.2d 115, 116 (Mo.1964).

The judgment is affirmed.

SNYDER, P.J., and STEWART, J., concur.


author: SMITH, Presiding Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Edward F. MERKEL, et al., Exceptions of Inland Container Corporation, Defendant-Respondent.
    No. 47159.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Donald L. Spry, St. Louis, for plaintiff-appellant.
    Joe Bill Carter, Clayton, for defendant-respondent.
   SMITH, Presiding Judge.

The Missouri Highway and Transportation Commission appeals from a $53,000 jury verdict and resultant judgment in a condemnation action. On appeal it complains (1) of the trial court’s failure to strike defendant’s expert testimony on damages because it was based in part on loss of access and (2) to the trial court’s action in allowing the defendant to reopen its case to allow its expert to correct his previous testimony and testify to a lower amount of damages.

The “loss of access” testimony was' presented as a factor in determining the fair market value of the property before and after the taking. Under State ex rel. State Highway Commission v. Nickerson, 578 S.W.2d 916 (Mo. banc 1979) it may be so utilized by the expert. See also State ex rel. State Highway Commission v. Texaco, Inc., 502 S.W.2d 284 (Mo.1973) [3]. Allowing the defendant to reopen its case was clearly within the discretion of the trial court. The additional testimony lowered the expert's estimate of damages and contained an admission by him of a serious error in his investigation of the property preliminary to forming his expert opinion. The testimony could only inhere to the Commission’s benefit This is evident from the fact that the verdict was $30,000 higher than plaintiff’s highest expert and $121,000 lower than defendant’s expert. The verdict was also almost exactly the amount testified to by defendant’s expert solely as the value of the land permanently taken without regard to residual damage. In condemnation cases errors in admission or exclusion of evidence will not result in reversal unless there is substantial and glaring injustice. State ex rel. State Highway Commission v. Texaco, Inc., supra, [3]. We find neither error nor injustice.

An extended opinion would have no prec-edential value. We affirm under the provisions of Rule 84.16(b).

SNYDER and SATZ, JJ., concur.


author: R. KENNETH ELLIOTT, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary PARRY, a/k/a Thomas Lacey, Defendant-Appellant.
    No. 47797.
    Missouri Court of Appeals, Eastern District, Division Nine.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Henry J. Rieke, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   R. KENNETH ELLIOTT, Special Judge.

Defendant appeals from a conviction of robbery in the first degree, § 558.011.1(1), RSMo.1978, and armed criminal action, § 571.015.1, RSMo.1978, for which the defendant was sentenced to a total of thirty years. We affirm.

On March 28, 1983, at about 10:50 p.m., Otha Douglas was in the Pleasure Seeker Lounge in the City of St. Louis. While he was drinking a beer and talking to the manager, two women came in and joined in the conversation. Douglas expressed his wish to secure a “joint of marijuana.” One of the women responded that she knew where some marijuana was located and that she would go with Douglas to get some if he wanted.

Leaving the lounge with the women, Douglas saw one of the women talking with a man later identified as Napoleon Caruthers, whom Douglas had never seen before that night. Douglas, along with the two women, drove in Douglas’ car to Burd Avenue, between Cote Brilliante and Waba-da Streets in the City of St. Louis. The women got out of the car and Douglas gave one of them named “Jackie” $20.00. After waiting in his car for ten to fifteen minutes, Douglas got out of the car to look for the women, and as he was returning to his car Douglas saw two individuals approaching. After Douglas got back into his car, one of the men, who Douglas recognized as Caruthers, came around to the driver’s side of Douglas’ Pinto automobile and pointed a shotgun at him. Caruthers ordered Douglas to roll down his window and asked Douglas for money. After Douglas replied that he didn’t have any, Caruthers struck him in the head while he was still sitting in the car. Douglas later testified that he saw the defendant (appellant) after being struck, and that he was pulled out of the car by Caruthers and defendant and led to a nearby fence. At the fence while Caruthers kept the gun on Douglas defendant went through Douglas’ pockets. Caruthers and the defendant then drove off in Douglas’ Pinto, whereupon Douglas returned to the Pleasure Seeker Lounge, where he tried to call his brother, rather than the police. Having some difficulty with the telephone, he left the lounge to use one across the street. While outside he flagged a passing police car and gave the officers descriptions of his assailants.

Officer Daniel Crain arrived and Douglas told him about the robbery, although he did not mention the marijuana. Officer Crain, who was in uniform and driving a marked police car, drove Douglas to the scene of the crime. At the corner of Wabada and Burd, Douglas saw Caruthers and the defendant walking south on Burd toward the police car. Both Caruthers and defendant were carrying tools and other items which Douglas recognized as his property.

After Douglas pointed out the two men, Officer Crain stopped and arrested them, and they were identified as Caruthers and the defendant. Conducting a pat-down search of Caruthers and the defendant at the scene, Officer Crain recovered some eight-track tapes from the defendant’s pockets. A later search of the defendant at the police station recovered $46.87 in cash.

Defendant testified in his own defense that he had been visiting a friend near the scene of the crime and was on his way to catch a bus home when he encountered Napoleon Caruthers, who was dragging some items including two tool boxes and some eight-track tapes, down Burd Avenue. Defendant testified that Caruthers asked him to help him carry these to a nearby house where Caruthers was staying, and defendant agreed to do so. Not far from where the defendant began to help Caruth-ers, they were both stopped by the police. Defendant maintained he had nothing to do with the robbery, that he thought the tapes belonged to Caruthers, that he never saw a shotgun, and further, that the $46.87 found on him belonged to him.

Defendant testified that his name was Thomas Lacey, and that he was also known as Gary Parry. When asked why he told the police his name was Gary Parry, the defendant explained he was afraid the police would arrest him because of his prior record. On cross-examination, he claimed he did not tell the police why he gave them a false name because the police never asked him about it. On rebuttal the state called Police Officer Harry Washington, who testified that after the defendant had been given his Miranda rights the defendant was asked why he had given a false name, and that the defendant stated his reason for giving a false name was that he had been harassed and arrested before by police.

Defendant first complains of error in allowing the prosecuting attorney to question defendant as to why defendant did not explain to police why he gave a false name alleging that such questioning violated defendant’s right to keep silent, and was prejudicial.

Appellant complains about the following exchange:

Q. After they found out your correct name, they asked you why you told them the wrong name, right?
A. No, sir, they did not ask.
Q. You deny that?
A. They did not ask me why did I give them a false name.
Q. After they found out your correct name, did they come back and talk to you?
A. Right. They came and called me. They said, “Gary Parry, your name is Thomas Lacey. Gary Parry is not your real name.” But they didn’t question me why I gave them Gary Parry.
Q. They didn’t question you why you gave them the wrong name?
A. No.
Q. And you didn’t tell them why you gave them the wrong name?
A. No, they never asked me.
Q. They never asked you?
A. They never asked me.

Defendant cites State v. Elmore, 467 S.W.2d 915 (Mo.1971); State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970); State v. Vainikos, 366 S.W.2d 423 (Mo. banc 1963); State v. Ward, 571 S.W.2d 773 (Mo.App.1978).

In State v. Stuart, supra, a juror posed a question to a police officer as to whether the defendant and another “claimed” the stolen money. The defendant was never asked to claim the money. Consequently the defendant, by his silence, failed to deny or explain his possession of property by claiming it when he had the opportunity to do so.

In State v. Vainikos, supra, the defendant was asked if he told the police he carried a gun because he had been accosted by several men, and he said no. He was also asked whether the police officer asked him why he carried the gun, and the defendant denied this. A rebuttal witness, Officer Hemm, was called and testified that the defendant refused to make a statement about the gun. The issue was whether the gun had been concealed by the defendant.

In State v. Elmore, supra, the defendant was asked on cross-examination whether he had made any statement to the authorities while he was in jail concerning the defense of self-defense. In State v. Ward, supra, a policeman appearing as a state’s witness was asked whether the defendant said anything after he was informed of what the police had discovered and why he was arrested. The witness was allowed to testify, “He didn’t say anything.”

The common thread running through all of these cases is the defendant’s failure to make an exculpatory statement. It is fundamental that the defendants in these cases were under no duty to speak, and the failure or refusal to do so could not be used as evidence against them.

The state cites State v. Hughes, 548 S.W.2d 270 (Mo.App.1977), which distinguishes the situations above noted from the one at bar. In Hughes, the defendant talked to the police and then attempted to present the substance of his interrogation in a light favorable to himself. The prosecutor attempted to impeach the defendant not by showing silence but by eliciting the true facts of the defendant’s interrogation.

It is noteworthy that the defendant in the case at bar did not remain silent, but in fact offered police a false name. When confronted with his real name the defendant chose to explain the discrepancy and did not remain silent. At trial the defendant attempted to explain the discrepancy, and thus invited the prosecutor’s questioning when he said the police did not ask him why he gave a false name. Following this, the prosecutor presented evidence showing that, the defendant’s testimony was not true. Here the prosecutor was attempting to impeach the defendant’s credibility, and did not raise the issue of defendant’s silence. When the defendant took the witness stand he was subject to be contradiet-ed and impeached as any other witness. State v. Coyne, 452 S.W.2d 227, 229 (Mo.1970); State v. Hurst, 612 S.W.2d 846, 853 (Mo.App.1981).

The prosecutor was justified in attempting to determine the situation that caused defendant to give police a false name. Defendant’s first point on appeal is denied.

Defendant next complains that the trial court erred in allowing rebuttal testimony by Officer Washington on defendant’s statement that he used an alias because of previous police harassment not to avoid arrest because of his prior record. The complaint rests on appellant not receiving such statements prior to trial in violation of Rule 25.03(A)(2), which requires the state to disgorge the substance of any oral statements made by the defendant.

The state argues that the state was under no duty to disclose the statements about which Officer Washington testified, because the statements were made in connection with another charge pending against defendant and therefore were not relevant to the case at bar. Secondly, the state notes that defendant’s counsel was permitted to interview Officer Washington prior to his testimony at trial. Defendant claims surprise since he did not know Officer Washington was going to testify.

Rebuttal witnesses and the scope of their testimony lies within the broad discretion of the trial court. State v. Crain, 638 S.W.2d 761, 762 (Mo.App.1982); State v. Cameron, 604 S.W.2d 653, 658 (Mo.App.1980). The defendant relies upon State v. Harrington, 534 S.W.2d 44 (Mo. banc 1976) and State v. Stapleton, 539 S.W.2d 655 (Mo.App.1976). Both of these cases are distinguishable on the facts inasmuch as they involved the situation where major information bearing on the defendant’s defense posture was not disclosed prior to trial. Here the testimony was offered to impeach appellant’s credibility. In addition, the state cannot be faulted for nondisclosure if the defendant has knowledge of such evidence. State v. Sykes, 628 S.W.2d 653, 657 (Mo.1982); State v. Mitchell, 622 S.W.2d 791, 797 (Mo.App.1981). The defendant knew his statements at trial were inconsistent with those he gave police when he was interrogated. Here the defense counsel was given an opportunity to interview the witness before he testified in rebuttal, and the court limited the scope of the prosecutor’s questions to avoid disclosure of additional evidence of crimes.

Moreover, the nondisclosure did not result in fundamental unfairness, and the trial court did not abuse its discretion in refusing to impose sanctions. See State v. Johnson, 615 S.W.2d 534, 542 (Mo.App.1981); State v. Boyd, 615 S.W.2d 436, 438 (Mo.App.1981). Defendant’s second complaint is without merit.

Lastly, defendant claims that the court erred in failing to strike Juror Schae-fer, who indicated he had a hearing problem. The judge determined that if the jur- or was seated in the front row there would be no problem as to the ability of the juror to hear. In State v. Schleicher, 442 S.W.2d 19, 21 (Mo.1969) the Supreme Court held that an alleged hearing defect is a disqualification which must be raised before a jur- or is sworn. No objection was made to the trial court’s decision to move the juror to the front of the jury box. Furthermore, it was established that the juror could hear the proceedings in the front row. In State v. Christian, 604 S.W.2d 758, 760 (Mo.App.1980) the court noted the wide discretion of the trial court in determining these matters, which decision should not be disturbed except for a clear abuse of discretion. State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978).

The judgment is affirmed.

KAROHL, P.J., and ROBERT LEE CAMPBELL, Special Judge, concur.

      . In Stuart a juror asked the court if he could present a question to the witness. The court permitted it. The case does not discuss the propriety of a juror questioning witnesses.

      . In fact the defendant raised the issue of alleged silence by claiming not to give the police an explanation. The state presented evidence that the defendant did not remain silent.


author: CRANDALL, Judge.

text:
    T. Joyce ERB, Plaintiff-Respondent, v. Fred B. JOHANNES, Defendant, and Robert J. Howard, Defendant-Appellant, and Charles E. Evans, Defendant-Respondent, and Paxton H. Ackerman, Defendant-Respondent.
    No. 47844.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.

      Nancy M. Watkins, St. Louis, for defendant-appellant.
    Donald S. Hilleary, Alan Agathen, Clayton, for Erb. George Owen Suggs, St. Louis, for Johannes.
    Paxton H. Ackerman, St. Louis, for Ack-erman.
    Floyd Schechter, Clayton, for Evans.
   CRANDALL, Judge.

Defendant Robert J. Howard appeals from a judgment entered in an interpleader action. The trial court awarded the fund in question to plaintiff T. Joyce Erb; denied Howard an award of his attorney fees; and awarded Paxton Ackerman, the former attorney for Howard and defendant Charles Evans, a judgment for attorney fees against both of them, personally and as statutory trustees for Second Street North, Ltd.

Howard is the sole appellant. He claims the court erred (1) in holding him liable for Ackerman’s fees because the court lacked subject matter jurisdiction over the cross-claim by Ackerman; (2) in holding him liable for Ackerman’s fees because there was an agreement the fee would be contingent on the creation of a fund; (3) in awarding the fund to Erb because the corporation had not authorized any security agreement with her; (4) in awarding the fund to Erb because her security interest was not perfected and thus her claim was no better than or equal to other creditors; and (5) in denying Howard’s claim on the fund for attorney fees incurred in defending the in-terpleader action. We affirm.

Defendants Robert Howard and Charles Evans were the shareholders and officers of a corporation known as Second Street North, Ltd., a company formed in 1977 to do business as a restaurant. The corporation entered into a real estate lease with another corporation wholly owned by Fred B. Johannes. Johannes terminated the lease in 1979 and sold the equipment of the restaurant to satisfy his security interest. A total of $49,349.64 remained after the debt owed to Johannes was satisfied.

T. Joyce Erb, who also held a security interest in the assets of the corporation, originally brought suit against Johannes for the remaining funds. Johannes then filed an interpleader, naming Howard, Evans and attorney Ackerman as defendants to determine whether Erb should get the money or it should go to Howard and Evans as statutory trustees of the corporation, then in forfeiture under § 351.525, RSMo (1978). Erb followed by filing a cross-claim for the money which had been paid into court. Ackerman filed a cross-claim against Howard and Evans individually and as statutory trustees for legal services performed for them and asked that a priority of lien be declared on the fund for those fees.

Defendant Howard’s first point is directed at the attorney fees awarded to Ackerman. Howard alleges that the trial court lacked subject matter jurisdiction over defendant Ackerman’s cross-claim for attorney fees because the court had jurisdiction only to determine claims of the parties to the fund which was the subject matter of the interpleader action.

This contention is resolved by reference to Tillman v. Deese, 488 S.W.2d 206 (Mo.App.1972), where the court held that despite the holdings of several federal cases, Missouri would allow a cross-claim to be filed in an interpleader action where the cross-claim went beyond the subject matter of the interpleader action. Defendant Howard’s first point is denied.

Defendant Howard next contends the court erred in holding him individually liable to Ackerman for attorney fees on the cross-claim, claiming that an agreement regarding a fee with Ackerman was in the nature of a contingent fee agreement, the contingency being the creation of a fund. A contingent fee agreement must be express, never implied. Craig v. Jo B. Gardner, Inc., 586 S.W.2d 316, 324 (Mo. banc 1979). It is clear from the record that there was no express agreement for a contingent fee. Ackerman’s bill for services rendered was based on a per hour charge rather than a percentage of any judgment that he might recover. Howard does not contest the reasonableness of Ackerman’s fee, and in fact testified that he was personally liable for the fee in addition to the corporation’s liability. There was substantial evidence to support the trial court’s implicit finding that the agreement was for deferred payment rather than a contingent fee contract. Defendant’s second point is denied.

Defendant Howard’s third and fourth points will be considered together. First he claims the fund should not have been awarded to the plaintiff because the board of directors of the corporation never conveyed a security interest to the plaintiff. He also contends plaintiff should not have received the fund because her security interest had not been perfected under the statutory provisions for secured transactions, and that claims of other creditors and the Internal Revenue Service, which held a tax lien, had priority over Erb’s claim. He does not contest the fact that Erb loaned money to the corporation and was never repaid.

We need not reach the substantive issues raised in defendant’s third and fourth points. We find that any action taken by Howard directed at the fund had to be taken with Evans. Howard and Evans are statutory trustees of the corporation. “All trustees must be joined in the suit or adequate reasons given to explain their absence.” Moore v. Matthew’s Book Co., 597 F.2d 645, 647 (8th Cir.1979) (per curiam). In Moore, one statutory trustee was not allowed to bring an action without joining all the other statutory trustees as plaintiffs. The court stated:

A contrary interpretation not only goes against the plain language of the statute, but would also raise the questions of whether the trustees not parties to the lawsuit would be bound by the results in a subsequent action and whether they would be liable for costs if the defendants prevail on the merits. Whatever right of action for damages belonged to the corporation at the time of the forfeiture vested in all of the statutory trustees jointly in their representative capacities and not in Moore as a trustee. Without joinder of the other trustees Moore lacked capacity to sue. (Emphasis added.)

In Camden v. Dodds Truck Line, Inc., 404 S.W.2d 233 (Mo.App.1966), the court cited 19 C.J.S. Corporations § 1744, at 1511 (1940) which states: “The trustees provided for by these statutes should act as a group, not individually....” We hold that the right to defend against the claim by Erb and the right to appeal vested in the statutory trustees jointly and not in Howard as a single trustee.

Defendant Howard filed answers to Erb’s petition and her cross-claim as an individual. The answers begin: “Comes now Defendant Robert J. Howard ... and for his separate answer to ... states_” Evans at trial did not dispute that Erb was entitled to the fund. Howard claims no interest in the fund personally but rather only as a statutory trustee. In addition, Missouri Rule 81.08 states a notice of appeal shall specify the parties taking the appeal. This appeal was taken by defendant Howard alone. In fact, Evans has filed a brief as a respondent, adopting all of Erb’s points. Clearly Howard is acting as an individual statutory trustee contrary to the wishes of Evans and without explanation or excuse. Defendant’s third and fourth points are denied.

Defendant Howard’s fifth point should also not be heard on appeal for the reasons discussed above regarding taking action without joining or explaining the absence of the other statutory trustee, Evans. Howard’s fifth point argues that his attorney fees for defending the interpleader action should be paid out of the fund. We have held that Howard could not defend against Erb’s claim as an individual statutory trustee. It would be anomalous to allow attorney fees for this defense to come out of the fund which Howard could not properly defend alone. Regardless, the point is without merit. “[TJhere can be no allowance of counsel fees from a fund if the interests of the party claiming the allowance are antagonistic to those entitled to the fund.” Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 936 (Mo. banc 1960). Defendant’s fifth point is denied.

The judgment is affirmed.

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

      . Johannes was later dismissed from the suit by Erb after paying the remaining money into court.


text:
    STATE of Missouri, Plaintiff-Respondent, v. David STIDUM, Defendant-Appellant.
    No. 48042.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      David C. Hemenway, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant-appellant was jury convicted of murder in the second degree in violation of § 565.004, RSMo.1978. The jury assessed punishment at thirty years imprisonment and the court sentenced accordingly.

The victim, James Hall, died under anesthesia during surgical procedures necessitated by multiple gunshot wounds he suffered on May 29, 1983. Police were summoned to a motor vehicle at 5:30 in the evening and when they arrived spoke with Mr. Hall. Defendant’s pre-trial motion to suppress challenged the testimony of the three police officers with regard to statements made by James Hall identifying defendant as his assailant on the grounds of hearsay. However, at trial the testimony of the witnesses, three police officers and the attending physician, on this issue of identification was given without objection and was the subject matter of cross-examination by appellant.

The new trial motion alleged that this testimony was hearsay. On the day of trial but before the trial began the court heard testimony on defendant’s motion to suppress the testimony as hearsay and ruled that the identification statements would be admitted as res gestae or excited utterance statements, recognized exceptions to the hearsay rule. See State v. White, 621 S.W.2d 287, 294-295 (Mo.1981) for a discussion of the rule, res gestae and excited utterance exceptions, their distinction and constitutional support. Although it appears that the identification statements of the victim were neither res gestae nor excited utterance statements we find this point not preserved for review.

The general rule is that inadmissible hearsay which goes in the record without objection may be considered by the jury. State v. Thomas, 440 S.W.2d 467, 470 (Mo.1969). When defendant raises no objection during trial and cross-examines witnesses there is no preserved error in the admission of the testimony. State v. Howard, 564 S.W.2d 71, 74 (Mo.App.1978). Where, as here, a motion to suppress evidence is denied and the evidence subsequently offered at trial defendant must then object to the admission of the evidence with a proper statement of reasons for the objection in order to preserve it for appellate review. State v. Howard, 564 S.W.2d at 74.

In the present case police officers Adkins, Cranz and Drury and Dr. Lui all testified without objection that the victim identified appellant as his assailant. The same testimony was given on cross-examination by the three officers and the doctor. We find that the point is not preserved and is not plain error under Rule 30.20.

Appellant’s second contention of error relates to the refusal of the trial court to remove a venirewoman from the jury panel for cause where she indicated a friendship with a police officer of the City of St. Louis.

We find no error in the court’s denial of appellant’s challenge of venire-woman Akers. We have consistently upheld the proposition that an accused in a criminal case must be afforded a full panel of qualified jurors before he is required to use his peremptory challenges. State v. Land, 478 S.W.2d 290, 292 (Mo.1972). This tenet was recognized and its constitutional basis discussed in State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976). Application of this rule of law cannot and should not be standardized. Accordingly, the decision whether to discharge a venireman for cause is within the broad discretion of the trial court, each case must be judged on the particular facts of the case and this court reviews for an abuse of discretion. State v. Land, 478 S.W.2d at 292. The responses of a venireman must be viewed in their entirety in determining whether prejudice or bias exists which will prevent him from being an impartial juror and hence deny either party a fair trial. State v. Dickerson, 588 S.W.2d 190, 192-193 (Mo.App.1979). Venirewoman Akers acknowledged friendship with a city police officer who she may see several times a month. There had been conversations about police work in general but no specifics were involved. She had formed no opinions or conclusions and had no ideas that might keep her from being a fair juror. She opined that she could evaluate a police officer’s testimony in the same fashion as any other witness and apply the same standards. She would neither assume that a police officer was telling the truth or that he was lying but would tend to feel that he would tell the truth. The facts distinguish this case from State v. Draper, 675 S.W.2d 863 (Mo. banc 1984) where a reversal was required due to a juror’s inability to fairly evaluate the testimony. On this record we find no clear abuse of discretion or real probability of injury to the defendant. Point denied. State v. Smith, 649 S.W.2d 417, 422-24 (Mo. banc 1983).

Judgment affirmed.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


text:
    In re the Marriage of Kertonnia ARNOLD, Respondent, v. Clarence C. ARNOLD, Appellant.
    No. 48542.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Joel W. Case, Manchester, for appellant.
    David Solomon Fischer, St. Louis, for respondent.
   CRANDALL, Judge.

Husband appeals from the trial court’s reentry of a default decree of dissolution. He alleges (1) the court did not have jurisdiction to reinstate the decree; and (2) the reinstatement of the decree was improper because (a) he received no notice of entry of the judgment as required under Rule 74.78, (b) he did not have an opportunity to be heard as required under Rule 75.01, and (c) the award of one hundred dollars per week maintenance to his wife was excessive. We dismiss the appeal.

We first review the procedural morass of this case. On October 20,1983, an interlocutory default was granted on wife’s petition for dissolution. On December 1, 1983, a default decree of dissolution was granted. Husband had not filed an answer to the petition.

On December 19, 1983, husband’s attorney moved to set aside the default decree. The motion was granted and husband was granted ten days in which to file an answer. Husband again failed to file a responsive pleading. On January 11, 1984, wife filed a motion to reinstate the December 1 decree, and this motion was granted on January 18, 1984, without notice to husband. On April 6, 1984, husband moved to set aside the January 13 judgment, citing Rules 75.01 and 74.78 as the basis for the motion. This motion was overruled on April 25, 1984. Husband filed his notice of appeal of the January 13 order on April 21, 1984, after having been granted leave to file a late notice by this court.

Husband’s appeal is not properly before us. A default judgment is not ap-pealable in the absence of a motion to set aside or vacate the judgment. VonSmith v. VonSmith, 666 S.W.2d 424 (Mo.banc 1984), on retransfer, 666 S.W.2d 426 (Mo.App.1984); Wait v. Wait, 669 S.W.2d 632 (Mo.App.1984). In Chatman v. Civic Center Corp., 682 S.W.2d 31 (Mo.App.1984), this court held that a motion to set aside or vacate had to be filed within fifteen days after the judgment was entered to extend the trial court’s jurisdiction past the thirty-day limit of Rule 75.01.

In the present case, the judgment being appealed is the default judgment entered on January 13, 1984. In Schreier v. Schreier, 625 S.W.2d 644 (Mo.App.1981), the trial court on October 23 had set aside a dissolution decree, then later issued an amended decree. The appeals court stated: “When the trial judge set aside the October 23 decree ‘the case was again under submission, or, as sometime stated, restored to the breast of the court, in the same manner as though the judgment ... had never been entered.’ ” Schreier, 625 S.W.2d at 647, citing Fletcher v. North British and Mercantile Ins. Co., 425 S.W.2d 159, 162 (Mo. banc 1968). In the present case, this rule would require a new timely motion to set aside after the court’s January 13 action reentering the default decree. Husband filed no motion to set aside or vacate that judgment until April 16, 1984. He has not followed the requirements of VonSmith and Chatman, and therefore cannot appeal the January 13 judgment.

We note that husband’s motion to set aside filed April 6 claimed lack of notice under Rule 74.78, which allows a motion attacking a judgment within six months of the judgment. Husband abandoned this method of attack on the judgment when he filed his notice of appeal of the January 13 judgment prior to getting a ruling from the trial court on his Rule 74.78 motion, with the notice of appeal referring only to the January 13 judgment and not the April 25 ruling. Rule 81.08(a); In re Marriage of E.A.W., 573 S.W.2d 689 (Mo.App.1978). Assuming arguendo that the court’s decision overruling this motion is before us, husband’s point is without merit. Rule 74.-78, while requiring notice to parties of the entry of an order or judgment, states clearly that notice is required to a party “who is not in default for failure to appear.” Husband was not only in default for failure to appear prior to the December 1, 1983 decree of dissolution, but more importantly for purposes of this issue was also in default for failing to file an answer to the petition within the ten days given him to do so after the decree was set aside on December 19, 1983. Notice to husband was not required regarding entry of the January 13 judgment.

The appeal is dismissed. Wait, 669 S.W.2d at 632.

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

      . This motion was granted without notice to the wife, but we need not address the propriety of that ruling.


text:
    STATE of Missouri, Respondent, v. Ronald E. NEITCH, Appellant.
    No. WD 35058.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Sean D. O’Brien, Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   ORDER

PER CURIAM.

Appeal from conviction and sentence of Class C felony stealing.

Judgment affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Wesley WILLIAMS, Appellant.
    No. WD 35726.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    James W. Fletcher, Public Defender, Lee M. Nation, Sp. Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM.

Defendant appeals from a conviction for fraudulent use of a credit card, Section 570.130, RSMo 1978, and a sentence to five years’ imprisonment. Affirmed. Rule 30.-25(b).