text:
    Robert Wade PAGE, Jr., Claimant-Appellant, v. L.A. GREEN, d/b/a L.A. Green Seed Company, Employer-Respondent.
    No. 13615.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 31, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 19, 1985.
    Application to Transfer Denied April 2, 1985.

      James K. Journey, Kelso Journey, Clinton, for claimant-appellant.
    Kenneth H. Reid, Michael J. Patton, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for employer-respondent.
   PREWITT, Chief Judge.

The Labor and Industrial Relations Commission affirmed the award of an administrative law judge which denied appellant’s claim for workers’ compensation benefits.

Commissioner William F. Ringer wrote the principal opinion for the Commission. It was concurred in by Commission Chairman Terry C. Allen who also wrote a concurring opinion. Commissioner Herbert L. Ford filed a dissenting opinion. These opinions reflect, as did the findings of Administrative Law Judge Winton G. Tracy, Jr., commendable dedication and meticulous consideration of the law and facts presented. That we reach a contrary result is certainly no indication that the prior decisions were not carefully considered and reasoned.

Appellant suffered permanent total disability when he was injured on respondent’s premises at approximately 2:45 a.m. on August 14, 1980. He was alone in one of respondent’s buildings at the time. Appellant was regularly employed on those premises from 8:00 a.m. to 5:00 p.m. That he was injured by “accident” as that term is defined in the workers’ compensation law is not questioned. The Commission found that it was not an accident “arising out of and in the course of his employment”, see § 287.120.1, RSMo 1978, and apparently, by reference to the administrative law judge’s findings, adopted his conclusion that appellant was too intoxicated “to perform duties if those duties had arisen out of and in the course of his employment.”

The scope of our review is stated in Mo. Const. Art. Y, § 18, and § 287.495, RSMo Supp.1982. From them and their predecessors certain well-established principles have developed. Appellate courts review workers’ compensation cases in the light most favorable to the award of the Commission and uphold the decision of the Commission if it is supported by competent and substantial evidence. Blissenbach v. General Motors Assembly Div., 650 S.W.2d 8, 11 (Mo.App.1983).

Only when the Commission’s award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence do we disturb it. Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 392 (Mo.App.1983). However, where the facts on which the decision should turn are not in dispute the award that should be entered becomes a matter of law. Iker-man v. Koch, 580 S.W.2d 273, 278 (Mo. banc 1979).

The Commission is charged with the responsibility of passing upon the credibility of witnesses, and it may disbelieve testimony of a witness though no contradictory or impeaching evidence is introduced. Blissenbach, supra, 650 S.W.2d at 11. A Commission’s acceptance or rejection of part of a witness’s testimony cannot be disturbed upon review, unless its acceptance or rejection is against the overwhelming weight of the evidence. Id.

Other principles are also applicable in our review. One of the purposes of the Workers’ Compensation Act is to relieve the burden of workers incapacitated by injuries from the public and place the burden upon industry. Cox v. Copeland Bros. Constr. Co., 589 S.W.2d 55, 61 (Mo. App.1979). In interpreting the workers’ compensation law we resolve all doubts in favor of the employee. Barr v. Vickers, Inc., 648 S.W.2d 577, 580 (Mo.App.1983).

The mandate for liberal construction of the Workers’ Compensation Act (§ 287.800, RSMo 1978), means that benefits should be extended to the largest possible class of workers and the denial of those benefits should be decreed to the smallest possible class. Cox, supra, 589 S.W.2d at 61.

Appellant worked as a “warehouse laborer” at respondent’s Lockwood, Missouri facility. He said that 90% of his work was hauling raw seed “to the cleaners”, apparently referring to respondent’s seed cleaning machines. Respondent had two of these machines at its Lockwood location, each in a separate building. Respondent has several buildings at this location and operates its seed cleaning machines 24 hours a day.

Appellant testified that on August 13, 1980, following the end of his regular work at 5:00 p.m., he left respondent’s premises and went to his apartment in Lockwood. He ate, then slept until awakened by his roommate and another person. He stated he drank two beers with them and then because it was hot, went to sleep on a cot in a yard outside his apartment. Early that morning he was awakened by thunder and lightening. There were large doors on one of respondent’s buildings, where appellant had deposited seed earlier that day, and he thought the doors might be open. Because he believed it was going to rain and the seed could get wet, appellant said he decided to cheek on the doors.

Appellant took his roommate’s van and drove approximately a mile to respondent’s premises. When he arrived, at least two employees of respondent, both “cleaner operators”, were working. One cleaner operator was at the building appellant went to and the other operator was in the building where the other cleaning machine was. Closing the doors when necessary was the cleaner operator’s responsibility. One of the doors had been left open, and after closing it, appellant moved some empty burlap sacks “out of the way”. After he did this he saw “seed running off the cleaner off the top screen.” This could cause seed to be wasted. The cleaner operator had left the building and appellant was alone in it.

Appellant said he went up a ladder to the top of the cleaning machine to sweep the seed “back and forth to make it go down through the screens.” A broom is kept up there for this purpose. Appellant said doing this would “unelog the machine”. Normally, this is the cleaner operator’s responsibility. Appellant said as he neared the end of the ladder he reached for a board so he could pull further up. The board was unfastened, and when he grabbed it he fell backwards, approximately 14 feet, to the floor. When the operator returned, he found appellant lying on the floor. Appellant was taken to a hospital by ambulance. The hospital’s records show his “[b]lood alcohol level was 232 mg.%.”

On at least two occasions appellant had worked for respondent after his regular hours without compensation. One occasion was authorized in advance. On the other, when seen working by a supervisor, he was instructed to punch the time clock.

The appellant and his roommate testified that appellant had several drinks of whiskey following his injury, perhaps trying to account for appellant’s blood alcohol content as found at the hospital. The Commission rejected their testimony, stating that it “finds that the claimant’s ludicrous explanation for his acute intoxication which explanation was clearly refuted by all the believable evidence causes the claimant’s entire testimony to be incredible and unbelievable.” It found that it “is only speculation and conjecture as to why the claimant was at the plant when he was injured at approximately 2:45 a.m.” Such a determination could be decisive on review, but it is not here.

Appellant’s evidence as to his drinking whiskey following the accident was highly suspect and appeared to be manufactured, but even when the appellant’s and his witnesses’ testimony is removed, the evidence establishes that appellant was seeking to benefit respondent at the time he was injured by doing a chore necessary and usual in its operation.

There was no dispute that appellant was a conscientious employee. After he was found, a loose board which had been on top of the cleaning machine was no longer there, and the broom kept above the machine had fallen down to the catwalk. Appellant was found lying next to the seed cleaning machine and his injuries indicate that he fell a considerable distance.

Respondent’s witness, the warehouse manager at the premises, stated that it was in the furtherance of the company’s interest to keep the cleaning machine unclogged. Unclogging the machine was the cleaner operator’s duty, but if there was no operator “immediately available”, the manager said appellant “would have been permitted to do it, but it was not his responsibility.” We believe it is inescapeable that at the time he was injured, appellant was intending, perhaps misguidedly, to benefit respondent by unclogging the seed cleaning machine, and any other conclusion is against the overwhelming weight of the evidence.

For intoxication to bar appellant’s recovery, there must be evidence that at the time he was injured, appellant was “intoxicated to such an extent that it was impossible for him to physically and mentally engage in his employment.” Brown v. Mid-Central Fish Co., 641 S.W.2d 785, 787 (Mo.App.1982). See also Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551 (1935); McCue v. Studebaker Automotive Sales, 389 S.W.2d 408 (Mo. App.1965); Coonce v. Farmers Ins. Exch., 228 S.W.2d 825 (Mo.App.1950); O’Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775 (Mo.App.1942). We do not find such evidence in the record.

The person appellant and his roommate were drinking beer with said that appellant was “intoxicated that night”. She left them at midnight. Appellant and the cleaner operator who saw him just before the accident testified that he was not intoxicated and there is no evidence that he was to the extent required, unless his blood alcohol content establishes that as a matter of law. We believe it does not. The effect of blood alcohol content can vary widely from person to person and from time to time. That it was well over the amount that constitutes prima facie evidence of intoxication when operating motor vehicles does not establish that it would have been impossible for appellant to physically and mentally engage in his employment. His ability to perform normally might have been affected, but not necessarily to the extent required to make intoxication a defense. Appellant was able to drive to the premises, perform some acts, and talk to the man on duty. Nothing indicates that it was impossible for him to work. We next discuss whether the accident arose “out of and in the course of” appellant’s employment.

The Commission determined that appellant was never to work after hours unless specifically authorized to do so by his foreman or superintendent. It found that the evidence did not support his contention that there was an established practice that appellant could work at the plant whenever he desired. It determined that the “credible and believable evidence” was that respondent specifically limited appellant’s hours in his employment to between 8:00 a.m. and 5:00 p.m. Monday through Friday, except when he received special permission in advance. There is no contention that he received express permission on this occasion.

The terms “out of” and “in the course of” employment are separate tests for compensability. Blatter v. Missouri Dept. of Social Services, 655 S.W.2d 819, 823 (Mo.App.1983). An injury arises “out of” employment if it is a natural and reasonable incident of the employment and is the rational consequence of some hazard connected with the employment. Id. An injury is “in the course of” the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment. Id.

Although each case involving whether an accident arose out of and in the course of employment must be decided on its own facts and circumstances, by applying the relevant principles and not by reference to some formula, Blatter, supra, 655 S.W.2d at 823, or by “attempting to group compensation problems by fact categories”, Kunce v. Junge Baking Co., 432 S.W.2d 602, 607 (Mo.App.1968), prior decisions are helpful in showing how these principles have been applied.

Apparently, in following the principle favoring the employee, recovery was available where an employee was regularly working on the premises, but violated an order in doing an act, Smith v. Hussmann Refrigerator Co., 658 S.W.2d 948 (Mo.App. 1983), where the employee was on the premises, but performing outside his normal duties, Leone v. American Can Co., 413 S.W.2d 558 (Mo.App.1967); Conyers v. Krey Packing Co., 194 S.W.2d 749 (Mo. App.1946), where the activity, after normal working hours, was of only slight benefit to the employer, Blatter, supra, and Yaffe v. St. Louis Children’s Hosp., 648 S.W.2d 549 (Mo.App.1982), where an injury occurred on the premises, but the employee was not expressly acting for the employer at the time, Daniels v. Krey Packing Co., 346 S.W.2d 78 (Mo.1961); Jones v. Bendix Corp., 407 S.W.2d 650 (Mo.App.1966); Conklin v. Kansas City Pub. Serv. Co., 226 Mo.App. 309, 41 S.W.2d 608 (1931), or where an employer knew of or authorized work beneficial to it outside regular working hours, Coy v. Sears, Roebuck & Co., 363 Mo. 810, 253 S.W.2d 816 (1953); Blair v. Armour and Co., 306 S.W.2d 84 (Mo. App.1957).

Other jurisdictions reflect a similar tendency to allow recovery if the employee was hurt during activity of benefit to the employer. See Lizama v. Workmen’s Compensation Appeals Bd., 40 Cal.App.3d 363, 115 Cal.Rptr., 267 (1974); Department of Water and Power v. Workmen’s Compensation Appeals Bd., 252 Cal.App.2d 744, 60 Cal.Rptr. 829 (1967); Laing v. Occidental Life Ins. Co., 244 Cal.App.2d 811, 53 Cal. Rptr. 681 (1966); Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 294 P.2d 1039 (1956); Indiana Bell Tel. Co. v. Ernst, 444 N.E.2d 1258 (Ind.App.1983); Wilson v. Wizor, 544 S.W.2d 231 (Ky.1976); Turner Elkhorn Mining Co. v. Goble, 506 S.W.2d 521 (Ky.App.1974); In re Canaan’s Case, 364 Mass. 762, 308 N.E.2d 534 (1974); Employers Mutual Liab. Ins. Co. v. Department of Indus., Labor & Human Relations, 52 Wis.2d 515, 190 N.W.2d 907 (1971).

The Commission primarily based its decision on Fowler v. Baalmann, 234 S.W.2d 11 (Mo. banc 1950). That opinion states that an employer “has the unqualified right to determine when an employee shall do a certain thing.” 234 S.W.2d at 17. In Baal-mann, the employee, a pilot, was specifically told not to fly during a storm, but did so anyway. Here, appellant was not violating a specific order not to work at the time of his injury. That case can also be distinguished on a basis not considered by the Commission. Larson states it thusly:

It is too obvious for discussion that emergency efforts to save the employer’s property from fire, theft, runaway horses, destruction by strikers, or other hazards are within the course of employment. The fact that the rescue effort takes place outside of working hours does not detract from its work-connected status.

1A Larson, Workmen’s Compensation Law, § 28.11, pp. 5-324 — 5-326, (1982).

Cases applying this principle in allowing recovery to off-duty employees include Martinez v. Workers’ Compensation Appeals Bd., 15 Cal.3d 982, 127 Cal.Rptr. 150, 544 P.2d 1350 (1976); Cook v. Bangor Hydro-Elec. Co., 402 A.2d 64 (Me.1979) and Meaney v. Keating, 200 Misc. 308, 102 N.Y.S.2d 514 (1951), affd., 279 App.Div. 1030, 113 N.Y.S.2d 240 (1952). See also O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951) (recovery allowed where act in emergency of no benefit to employer); Fondulac Nursing Home v. Industrial Comm’n., 99 Ill.2d 519, 77 Ill.Dec. 447, 460 N.E.2d 751, 753-754 (1984) (employee on duty but scope of employment impliedly expanded in emergency situation despite express prohibition). Other “on duty” cases allowing recovery in “emergency” situations include Food Products Corp. v. Industrial Comm’n., 129 Ariz. 208, 630 P.2d 31 (1981) (act not of benefit to employer); Green v. DeFuria, 19 N.J. 290, 116 A.2d 19 (1955) (slight, if any benefit to employer); Hiers v. Brunson Const. Co., 221 S.C. 212, 70 S.E.2d 211 (1952) (employee went beyond normal duties in repairing roof to protect property).

It was unquestioned, and respondent’s witnesses so stated, that appellant was a good, enthusiastic employee, “one of the best”, to such an extent that he had been criticized by other employees. Without being asked, at least twice he had worked after-hours to preserve and protect respondent’s property. Both times his efforts were accepted and although he had been told not to work without punching the time clock, he had never been expressly told not to come to the premises outside his normal hours. Respondent had a policy to restrict overtime, but it was not always prohibited.

Perhaps appellant’s judgment was clouded by alcohol, but he had an intent to help respondent’s interest. Should recovery be denied if his belief that he should unclog the cleaning machine was wrong? 1A Larson, supra, § 28.13 at p. 5-333, indicates it should not be. It states:

It is a well-established principle, even at common law, that the actor’s judgment about the existence of an emergency and how to meet it should not be too severely judged in retrospect. He may get the benefit of the emergency doctrine even if the only emergency was in his imagination, if he acted in good faith.

There is no indication that appellant acted otherwise than in good faith, and that he was genuinely, if perhaps misguidedly, trying to protect his employer’s property. Perhaps his acts were unnecessary or he could be reprimanded for doing so when he had been drinking intoxicants. That he appropriately could be reprimanded for his actions does not mean he was not in good faith doing them for his employer. Cf. Smith, supra, 658 S.W.2d at 951; (disobedience of order may be grounds for discharge, but that does not mandate denial of workers’ compensation); Indiana Bell Tel. Co., supra, 444 N.E.2d at 1260 (same).

Appellant displayed an interest in his employer’s business that is always desired but too seldom received. While the emergency might have been greater in Young v. Mississippi River Power Co., 191 Iowa 650, 180 N.W. 986 (1921), appellant’s attitude here was no less desirable. There the court stated, 180 N.W. at 987:

Generally speaking, the employer of labor rightfully expects from his employé something of a spirit of loyalty and a reasonable degree of care for the protection of the employer’s property in or about which his services are engaged. The hired servant is something more than a mere machine or automation, and he brings to the service of the hirer not merely a pair of hands, but hands plus brains and conscience which will forbid an honest employé to stand idly by refusing to interpose the slightest effort to save his employer from irreparable injury or loss for no better reason than that the strict letter of his contract does not require such action on his part. Such terms are rarely, if ever, expressed in the words of the agreement between employer and employé; but it is at least what, for want of a better term, we may call a moral implication in every contract of hire, and the employé, no matter what may be his rank or station or what may be the prescribed limit or range of his ordinary duties, who discovers imminent peril or calamity threatening his employer in person or property, and without stopping to debate with himself whether he will respond to the emergent call upon his manhood, at once hastens to avert the damages as best he may, is not a mere intermeddler or volunteer, and the injury to which he thus exposes himself arises out of and in the course of his employment within the meaning of the statute, and that, too, even though in the stress of the emergency he disregards some of the general rules prescribed for the control of his conduct under normal conditions.

It might appear that assessing workers’ compensation benefits against respondent is too severe in that an employer should not be responsible for injuries to a somewhat intoxicated employee, who voluntarily comes on the premises and performs work which may not be absolutely necessary. However, we believe it is fairer, and intended under the law, to require the employer to pay workers’ compensation benefits in the situation presented here. The loss should be borne by respondent for whose benefit appellant was acting at the time of his injury, and not by some other person or entity.

Obviously, if appellant had not been employed by respondent, he would have had no occasion to have been concerned about the seed. Perhaps his judgment was affected, but respondent got the benefit of appellant as a good employee, and it should also stand the burden that a proper attitude and a mistake in judgment may have caused.

Appellant’s attitude toward his job and his attempting to unclog the cleaning machine, for whatever reason he went to respondent’s premises, is confirmed by the evidence. There is no evidence inconsistent with those facts. Liberally construing § 287.120.1 in favor of appellant, his accident arose out of his employment and in the course of it. As an employee he was attempting to protect respondent’s seed by unclogging the cleaning machine. Unclogging it was a natural and reasonable incident of his employment and his injury the rational consequence of the hazards of doing so. Thus, his accident arose “out of” his employment. Giving appellant the benefit of the doubt in an “emergency” situation, the accident arose “in the course of” his employment. The period that he would be in the course of his employment was expanded due to his desire to protect the seed and because of that he was at a place where he might reasonably be and was reasonably fulfilling the duties of his employment at the time of his injury.

The award is reversed and the matter remanded to the Labor and Industrial Commission with directions that it enter an award in favor of appellant for the benefits provided by the workers’ compensation law due to his injury.

TITUS, P.J., and FLANIGAN, J., concur.

GREENE, J., recused.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Lee WHITNEY, Defendant-Appellant.
    No. 13844.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 7, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 26, 1985.
    Application to Transfer Denied April 2, 1985.

      John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Nancy Hentig Narrow, Public Defender, Daniel A. Beatty, Asst. Public Defender, Benton, for defendant-appellant.
   GREENE, Judge.

Defendant, Jerry Lee Whitney, was charged by information with the class D felony of escape from confinement, § 575.-210.1, .2(2)(a). A jury convicted him of the charge, for which he was sentenced, under the extended term provisions of the persistent offender statutes, §§ 557.036.4 and 558.016, to 10 years’ imprisonment, the trial court having determined, after hearing evidence, that Whitney had been convicted of three prior felonies.

On appeal, Whitney, although not raising the issue at trial, or in his motion for new trial, contends that the trial court committed plain error in accepting the jury verdict because the evidence was insufficient to sustain the verdict.

If the evidence was insufficient to sustain the verdict of guilty, then plain error resulting in a miscarriage of justice is clearly mandated, and' the conviction must be reversed. State v. Payne, 654 S.W.2d 139, 141 (Mo.App.1983). In our review, our function is not to weigh the evidence, but rather to determine whether there was sufficient proof from which the jury could reasonably have found Whitney guilty as charged. In this determination, we accept as true all evidence, direct and circumstantial, and all reasonable inferences therefrom that are supportive of the verdict, and disregard all evidence and inferences to the contrary. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982).

Section 575.210, the statute under which Whitney was charged and convicted, provides “[a] person commits the crime of escape from confinement if, while being held in confinement after arrest for any crime, or while serving a sentence after conviction for any crime, he escapes from confinement.” In this ease, the state introduced the following evidence. Whitney was charged in the circuit court of Mississippi County with the felony crimes of burglary and stealing, and confined in the county jail because of failure to make bond. He was brought to court for the purpose of his preliminary hearing, and was seated on a bench in the courtroom. Whitney was not handcuffed, nor in shackles. Whitney was instructed to remain on the bench while Deputy Sheriff Danny Lafferty, who had Whitney in custody, testified in a hearing then in progress.

When Lafferty returned to the bench, Whitney was gone, and could not be located in the courthouse. While Lafferty was checking with other deputies to see if Whitney had been returned to jail by some other officer, Captain Willis Cox, of the Charleston Police Department, who knew Whitney, and had seen him in court a few minutes before, saw Whitney running across a parking lot near the Charleston Police Station. Whitney was “running fast.” Willis and other officers gave chase. During the pursuit, Whitney scaled a seven foot fence, and travelled about five blocks before he was apprehended by Police Officers Butler and Nolen. As Butler was putting handcuffs on Whitney, the defendant said, “Them son-of-a-bitches lied on me. I had to get out of there.” Whitney was returned to jail, and charged with escape.

Whitney took the stand and said that he thought the associate circuit judge who conducted his preliminary hearing told him, at the conclusion of the hearing, that the case was dismissed, and that he could leave. The judge, called as a state’s witness, denied this, and identified a court record showing Whitney bound over for trial following his preliminary hearing. Whitney admitted he had never posted the $25,000 bond set as a condition for his release from jail. Prior to being sentenced, Whitney told the trial judge, “I will plea my part as far as the escape, and I feel I was part wrong and I admit I was out of custody.”

The evidence related above was more than sufficient to prove the charge beyond a reasonable doubt. Whitney’s claim that the evidence was insufficient to sustain the conviction has no merit.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S.


author: TITUS, Presiding Judge.

text:
    Adra SPENCER, Plaintiff-Respondent, v. Jackie BURNETT, Nell Keeney and Arvel Keeney, Defendants-Appellants.
    No. 13769.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 11, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 27, 1985.
    Application to Transfer Denied April 2, 1985.
    No appearance for plaintiff-respondent.

      Ronald J. Fuller, Rolla, for defendants-appellants.
   TITUS, Presiding Judge.

Defendants appeal from a $562.50 judgment rendered by the Circuit Court of Phelps County in favor of plaintiff following a trial by the court on plaintiff’s claim that she was entitled to vacation pay from her former employers, the defendants. Plaintiff and her fellow employees had worked for the owner of a Rolla beauty shop for many years and, according to length of employment, had annually received vacation pay. Plaintiffs testimony and that of her fellow workers was that when the original owner sold the shop to defendants the spokesman for defendants called a brief meeting of the employees and advised that if they continued in their employment “everything would remain the same.”

Thereafter for nearly a year the commissions paid the employees for salon work and retail sales of beauty supplies, hours of employment, and the Christmas bonus remained the same as they had been under the former owner. When the first anniversary of defendants’ ownership neared, defendants proposed several changes in the conditions of employment which were unacceptable to plaintiff and she so informed the defendants, stated she was quitting and asked for her accrued vacation pay which was refused. Thereafter, plaintiff sued defendants and obtained the aforementioned judgment.

We have reviewed the transcript and defendants’ brief and conclude the judgment nisi is supported by substantial evidence and is not against the weight of the evidence. We also determine that no error of law appears and that an extended opinion would have no precedential value. The judgment of the trial court is affirmed in compliance with Rule 84.16(b), V.A.M.R.

FLANIGAN and GREENE, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth Glenn LIGHT, Defendant-Appellant.
    No. 13328
    Division Two.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 13, 1985.
    Motion for Rehearing or Transfer Denied March 6, 1985.
    Application to Transfer Denied April 2, 1985.

      Ronald J. Kaden, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Robert L. Swearingen, Frank Rubin, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   CONVICTION AFFIRMED: SENTENCE VACATED AND CAUSE REMANDED

HOGAN, Judge.

Defendant Kenneth Glenn Light was convicted of manufacturing marijuana in violation of § 195.020.1, RSMo 1978, and his punishment was assessed at imprisonment for a term of five years. Defendant appeals.

The plantation of marijuana was found on a 40-acre farm in Phelps County. The farm was the property of defendant’s mother, Hazel Rosalee Light. According to his mother, the defendant did not live on the premises. Her testimony was that during the period here involved “... he come in off and on — I [couldn’t] tell you just exactly....”

The defendant questions the sufficiency of the evidence to support the verdict. The State, having had a verdict, is entitled to have this court consider the evidence and the reasonable inferences to be drawn therefrom in that light most favorable to the State, rejecting all evidence and inferences which do not support the judgment of conviction. State v. Netzer, 579 S.W.2d 170, 173 (Mo.App.1979); State v. Evans, 545 S.W.2d 694 (Mo.App.1976). So considered, the evidence is that two members of the State Highway Patrol and a deputy sheriff of Phelps County conducted an aerial search for cultivated marijuana on July 19, 1982, in Phelps County. They discovered marijuana growing on the Light farm. A search warrant was obtained and several officers went back to the farm, which is about eight miles south of Rolla. A deputy read the search warrant to the defendant’s mother. Thereafter a search was conducted. The defendant greeted the officers as they entered upon the premises, advising them that “You’re going to find some marijuana — some plants.” The officers did indeed find some plants — marijuana, planted in the ground, in a washing machine tub and in buckets. Paths to the small plantations had been cut with a lawn mower. Scarecrows had been hung to protect the plants from marauding birds. One plant had been hung upside down. One of the troopers testified that a common method of drying marijuana is to “hang the plant upside down and let it dry.”

The defendant accompanied the officers as they searched the premises. As they approached and came to the place where the scarecrow had been constructed, there were no plants. The defendant remarked “They done beat you to this.” One of the troopers asked who “they” were; the defendant answered “[t]he deer.” As the officers were about to complete their search, one of the deputy sheriffs “stepped in some defecation.” The deputy asked if the defendant had found it necessary to defecate outside the house; defendant replied “It keeps the deer away.”

This same deputy then remarked “You sure are planning to be high.” Light’s response was: “It’s all for my own use. It has to last all winter.” As the officers were preparing to leave the premises, one of the deputies went back to the farm house to contact the defendant’s mother. The defendant asked if his mother “[was] in any trouble.” He was told that his mother was in no trouble “if she didn’t know about the marijuana.” Defendant assured the officer “It’s mine — all mine.”

Certainly, meticulous recital of all the evidentiary detail would show that the jury could have reached another conclusion; counsel has spent a good deal of his time arguing that the defendant’s brother, an unfortunate man who, in his mother’s phrase “took an overdose of pills and he hasn’t been right since,” could have planted the marijuana, because the brother has a penchant for digging up small plants and trees and transplanting them. We can only respond by saying that although we regret the brother’s misfortune, this court does not weigh the evidence, but determines only whether there was proof from which a jury could have found the defendant guilty as charged. State v. Kelly, 539 S.W.2d 106, 109 (Mo. banc 1976).

In State v. Netzer, 579 S.W.2d at 175-76, and more recently in State v. Poole, 683 S.W.2d 326 (1984), this court held that the offense of manufacturing marijuana consists of two elements: 1) causing the marijuana plants to have vege-tal life and to encourage and promote their growth, with 2) an awareness of the character of the controlled substance. We reaffirm those decisions, but they were not intended to include all the acts which might constitute the “manufacture” of marijuana. Section 195.020.1 denounces the manufacture of any controlled substance. Section 195.010(21) defines “manufacture” to include “production” of any controlled substance; production is defined by § 195.-010(30) and “includes the manufacture, planting, cultivation, growing, or harvesting of ... a controlled substance.” (Our emphasis.) Marijuana grows in the wild, to be sure, but what the officers found in this ease were literally potted plants. If we may accept the recitation of the record, marijuana plants were found potted in 1) an old washtub; 2) a washing machine washtub; 3) half an empty oil drum, and 4) a plastic bucket. One plant had been pulled up and hung out to dry. Such facts are sufficient to support a jury’s inference of cultivating and harvesting; defendant’s inculpatory response to the officer’s remark about “planning to be high” is sufficient to warrant an inference that he knew the character of the substance he was cultivating. The evidence amply supports the judgment of conviction.

Defendant’s appellate counsel has briefed and argued four points of error, after a fashion. The “Points Relied On” contain no citation of authority whatever. This is a violation of Rule 84.04(d), of course, but given the quality of criminal briefs we usually receive, counsel’s failure to cite authority is little or no hindrance to a resolution of the appeal on its merits.

We have already answered Point IV, which is that the evidence is insufficient to sustain the judgment of conviction. Closely tied to this point is counsel’s argument that defendant’s pretrial motions to suppress should have been sustained. The point is set out verbatim marginally. The point requires little, if any, discussion. In the first place, the defendant has asserted no ownership nor any possessory interest in the premises searched; the record affirmatively demonstrates that he had none. Therefore, because the disputed governmental intrusion did not impinge upon a constitutionally protected interest of the defendant, he may not challenge the legality of the search on Fourth Amendment grounds. United States v. Bentley, 706 F.2d 1498, 1505[6] (8th Cir.1983), cert. denied — U.S. -, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984). Moreover, as far as the record shows with certainty, the marijuana plantations were found in open fields, to which the protection of the Fourth Amendment does not extend. Oliver v. United States, 466 U.S. -, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984); State v. Simpson, 639 S.W.2d 230, 232 (Mo.App.1982). Finally, although counsel has not chosen to put any of the exhibits before us, the description of the premises to be searched seems to have been sufficient to satisfy the requirements of § 542.-276.6(5). The point is wholly without merit.

A further point is that the court erred in failing to grant defendant a new trial because two members of the jury concealed disqualifying prejudice on voir dire examination. We have examined this point, but we conclude the defendant’s evidence is far too tenuous to warrant such a conclusion as a matter of law. The determination of the veniremen’s qualifications was a matter for the trial court in the exercise of sound judicial discretion and its determination should be rejected only upon a clear showing of an abuse of discretion. State v. Olinghouse, 605 S.W.2d 58, 69-70[14] (Mo. banc 1980); State v. DeClue, 400 S.W.2d 50, 57[12] (Mo.1966). It may be said that judicial discretion has been abused only if reasonable minds could not differ as to the propriety of the action taken by the trial court. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448-49[2] (Mo. bane 1976). We are thoroughly convinced there was no abuse of discretion here, and the point is without merit.

The defendant’s final verbose point, set out marginally is well taken and, contrary to the State’s argument, is properly preserved for review. The thrust of defendant’s point is the trial court sentenced him as a persistent offender without making the finding required by § 558.021.1(3). In oral argument, the defendant’s counsel suggested there might be further error in the sentencing procedure. There may be, but we decline to allow the defendant to broaden his objection on appeal. We ean-not convict a trial court of error on a ground never presented to that court as such. State v. Stevens, 467 S.W.2d 10, 18[4], 50 A.L.R.3d 96, 106 (Mo.1971), cert. denied 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Quick, 639 S.W.2d 880, 882-83[3] (Mo.App.1982); State v. Lindsey, 630 S.W.2d 191, 195 (Mo. App.1982).

The information filed charged the defendant with feloniously manufacturing marijuana in violation of § 195.200.1(1) and further charged in apt language that the defendant was a persistent offender within the meaning of § 558.016.3. The prior felonies pleaded were second-degree burglary and stealing. The State alleged that defendant was convicted of the first prior felony on December 22, 1976, and was again convicted of the same offense on May 25, 1977. On January 6, 1983, defendant was formally arraigned and pleaded not guilty to the information.

At the close of the State’s case-in-chief, proof of conviction of the prior offenses was made by presenting certified copies of the judgment of conviction to the trial court, out of the presence of the jury. These documents, numbered Exhibits 17 and 18, were handed to defendant’s counsel and to the defendant. Counsel was given time to confer with the defendant. He did so, and proceeded — without comment — to present defendant’s case.

During the course of his testimony, the defendant testified that various inculpatory statements he had made were actually false. He made those statements because he believed his brother had grown the marijuana and he wanted to protect his brother. Defendant’s cross-examination then proceeded thus:

“Q. Why are you telling the jury this at this time?
A. Because I’m under oath now.
Q. What were you in prison for?
A. Burglary and stealing.
Q. And how long ago was that?
A. It was back in ’77 I think — '76— something like that.
Q. Were there two different occasions when ...
A. Yes, they was.
Q. ... you were convicted?
A. Yes, sir.
Q. But you only served one term?
A. Yeah.
Q. Both of them were for burglary and stealing, is that correct?
A. Yes, it was.”

The question of punishment was not submitted to the jury; only his guilt or innocence was submitted. The jury found the defendant guilty. A hearing was had at the time the defendant was sentenced; counsel for the defendant addressed the court as follows:

“I believe that the State adduced evidence at trial sometime before the case was submitted to the jury that the Defendant was a persistent offender in that he had been convicted of two prior felonies. Those two prior felonies being two separate occasions. I think it’s unclear by looking at the docket sheet as to whether or not the Court made a finding of fact that warranted a finding beyond a reasonable doubt by the Court that the Defendant was a persistent offender.”

Counsel went on to read the applicable statutes to the court; the State argued “... And the Court read those and did read into the record that the Court found Mr. Light to have been convicted, etc.” The trial court apparently had no immediate recollection of the matter but believed it had made the requisite finding.

Very little comment on the sentence enhancement statutes is necessary. They have received scholarly attention from our colleagues at Kansas City in State v. Thompson, 629 S.W.2d 361 (Mo.App.1981), approved State v. Thompson, 629 S.W.2d 369 (Mo. banc 1982), and again in State v. Davis, 663 S.W.2d 301 (Mo.App.1983). We cordially agree with the views there expressed. The requirement of a finding imposed by § 558.021.1(1), is a procedural due process requirement. Our colleagues at St. Louis are in agreement. As they pointed out in State v. Arbeiter, 664 S.W.2d 566, 570[12][14] (Mo.App.1983), non-drug related offenses may provide a predicate for an enhanced sentence in a prosecution for violation of the provisions of Chapter 195, but it is the finding that defendant is a persistent offender which empowers the court to impose an enhanced sentence. State v. Arbeiter, 664 S.W.2d at 570[12].

We cannot discover any semblance of a finding in the record. Perhaps the trial court intended to dictate such a finding, but it does not appear. Enhancing a sentence without making the requisite finding that defendant is a persistent offender makes the sentence vulnerable to collateral attack. Buford v. State, 662 S.W.2d 581 (Mo.App.1983). A new trial is not necessary. The judgment of conviction is affirmed; the sentence is vacated and the cause is remanded for findings and for reimposition of sentence.

MAUS, P.J., and PREWITT, J., concur.

      . References to statutes and rules are to RSMo 1978 and to Missouri Rules of Court (14th ed. 1983), except that references to the sentencing provisions of the Criminal Code are to those statutes as they stood amended when RSMo (Supp.1983) was published.

      . "The trial court erred in overruling defendant’s pre-trial motions to suppress evidence based on a search warrant obtained by police officers in this matter. The objections were repeated at trial. The objectionable material was all based on a search warrant which was in fact based on a prior search of the property without search warrant and which search warrant further failed to declare with specificness the place to be searched ‘as nearly as may be.’ The evidence should have been excluded because the items of evidence were illegally seized in violation of defendant's reasonable expectations of privacy and guarantee against unreasonable search and seizure under the Fourth and Fourteenth Amendments to th[e] Constitution of the United States, and Article I, Section 15, of the Missouri Constitution, and Section 542.276 R.S.MO. The court should have rejected such evidence and its failure to do so was prejudicial error.”

      . "The trial court erred in that it sentenced defendant under R.S.Mo. 558.016, extended terms for persistent or dangerous offenders, yet failed to follow the procedure set out under the aforesaid statute under R.S.Mo. 558.021. The court failed to make findings of fact to warrant a finding beyond a reasonable doubt by the court that the defendant was a prior offender or persistent offender. In a jury trial such as this, the factual finding must be made prior to the submission of the matter to the jury. By failing to make this factual finding and by submitting instructions to the jury that deprived the jury of the right to assess punishment in this case, the court deprived the defendant of his constitution right to a fair trial and to have the jury consider not only guilt or innocence, but also the right to assess and declare punishment. The failure of the trial court to so do constitutes prejudicial error, and the matter should be remanded to the trial court for a new trial."


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John William SMITH, a/k/a, John Arthur Maxim, Defendant-Appellant.
    No. 13422.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 19, 1985.

      James D. McNabb, Asst. Public Defender, Springfield, for defendant-appellant.
    John Ashcroft, Atty. Gen., Shelley Woods, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   MAUS, Judge.

The defendant was convicted of burglary and stealing. He presents one point of alleged error. He contends the trial court erred in not dismissing the information because he was not brought to trial within the applicable period of limitation prescribed by the interstate Agreement on De-tainers (the agreement), § 217.490, RSMo Supp. 1984.

The need for and the history of the agreement has been well stated. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); Brown v. Wolff, 706 F.2d 902 (9th Cir.1983). In general, the agreement provides a means for the disposition of criminal charges pending in a receiving state against a prisoner incarcerated in a sending state and against whom a detainer has been lodged. The provisions of the agreement may be invoked by the prisoner or by an appropriate official of the receiving state.

When the agreement is invoked by the prisoner, Article III § 1, thereof declares: “[H]e shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; .... ” The issue presented is whether or not the defendant invoked that article, and, if so, was he brought to trial within the time therein prescribed.

The complaint that initiated this case was filed June 19, 1981. At that time, the defendant was in prison in Indiana. At an undisclosed time, a detainer was lodged against him on the basis of the pending complaint. On July 16, 1982, by Agreement on Detainers Form I, the defendant was given notice of the detainer and his right to invoke the agreement. He did so on that day by executing Agreement on Detainers Form II, “Inmates Notice of Place of Imprisonment and Request for Disposition.” While the record is otherwise silent on the subject, it is established by tacit agreement of counsel that on July 16, 1982, the warden of the Indiana prison mailed the documents specified by the agreement to the prosecuting attorney in Missouri. He did not, as provided by the agreement, mail a copy of those documents to the court in which the complaint was pending. On September 16, 1982, apparently on Agreement on Detainers Form VII, the Missouri prosecuting attorney executed “Prosecutor’s Acceptance of Temporary Custody Offered in Connection with a Prisoner’s Request for Disposition of a De-tainer”, referring to the defendant. The judge of the Missouri court in which the complaint was pending executed the certificate on that form.

On October 27, 1982, under the provisions of the agreement and that acceptance, the defendant was returned to Missouri. Upon a preliminary hearing on November 15, 1982, the defendant was bound over to the circuit court on the charges of burglary and stealing. On November 19, 1982, an appropriate information was filed. The defendant was arraigned and pled not guilty. The case was set for trial on January 10,1983. There is no record of what, if any, action was taken on January 10, 1983. The case was not tried that day.

On January 1, 1983, a new procedure for setting felony criminal cases for trial in that circuit court became effective. The following, in very general terms, is a summary of that procedure. At the beginning of the year, certain weeks were designated for the trial of felony cases by a jury. A list of pending felony cases was maintained by Computer. The cases were listed chronologically, from the earliest to the most recently filed. On the Monday preceding a jury trial week, the assigned judge called the docket from a computer print-out. Counsel were expected to attend the docket call. Following the docket call, a list of cases set for trial during the jury week was posted on the bulletin board. While it is not so provided by rule, it was apparently the practice to terminate the docket call when a point was reached when it was obvious that it was impractical to set additional cases for trial during the subsequent jury week.

Testimony or stipulation established the following. There was a docket call on January 3,1983, but the call terminated before the defendant’s case was reached. The docket call scheduled for January 17, 1983 was not held. There was a docket call on February 7, 1983, but the defendant’s case does not appear on the print-out filed as an exhibit. It is conceded it was not called. The defendant’s case was not reached at the docket call held February 27, 1983, or on March 7, 1983.

A docket entry shows that on March' 21, 1983, the defendant’s case was called and set as the fourteenth case for trial for the week of March 28, 1983. The next docket entry is April 4, 1983. That entry reflects the case was called and set for trial on April 11, 1983. On April 7, 1983, the defendant filed a motion to dismiss based upon a violation of the agreement. The motion was overruled. The defendant was tried and convicted on April 28, 1983. The motion was renewed subsequent to that trial, but again overruled.

Under the provisions of § 2 of Article III, a prisoner is to give or send his written notice and request for disposition to the warden or other official having custody of him. Under that section, it was the duty of that official to promptly forward the notice and request, with a certificate of the prisoner’s status, “to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.” As noted, § 1 of Article III, provides that the prisoner shall be brought to trial within 180 days after he has caused that notice and request to be so delivered.

The courts of the states which are parties to the agreement are not uniform concerning what triggers that 180-day limitation. Commonwealth v. Carrillo, 5 Mass.App. 812, 361 N.E.2d 415, 416 (1977). Compare State v. Carroll, 670 P.2d 1290 (Hawaii App.1983); State v. Savage, 522 S.W.2d 144 (Mo.App.1975). It has been held that under extraordinary circumstances, a dismissal may become appropriate when a warden fails to promptly inform a prisoner of a detainer and his right to request a disposition thereof as required by § 3 of Article III. Romans v. Dist. Ct. In & For Eighth Jud. Dist., 633 P.2d 477 (Colo. banc 1981). But see Coit v. State, 440 So.2d 409 (Fla.App.1983); People v. Howell, 119 Ill. App.3d 1, 74 Ill.Dec. 734, 456 N.E.2d 236 (1983); State v. Clark, 222 Kan. 65, 563 P.2d 1028 (1977); Com. v. Gonce, 320 Pa. Super. 19, 466 A.2d 1039 (1983).

Other jurisdictions which have adopted the Agreement on Detainers are divided on the question whether the one hundred eighty day period begins on the date (a) on which the defendant requests the warden of the institution in which he is confined to forward the necessary papers (Beebe v. State, 346 A.2d 169, 171 [Del. 1975]), (b) on which the papers are actually mailed (State v. Wood, 241 N.W.2d 8, 11-13 [Iowa 1976]), or (c) on which the authorities in the other state receive the request for prompt disposition (Commonwealth v. Fisher, 451 Pa. 102, 104-105, 301 A.2d 605 [1973]). See Davidson v. State, 18 Md.App. 61, 67, 305 A.2d 474 (1972), cert. den. 269 Md. 757 (1973).

In this state, it has been uniformly held that this period of limitation is triggered only when the required documents are received by the prosecuting attorney and the appropriate court. State ex rel. Kemp v. Hodge, 629 S.W.2d 353 (Mo. banc 1982); State v. Soloway, 603 S.W.2d 688 (Mo.App.1980); State ex rel. Saxton v. Moore, 598 S.W.2d 586 (Mo.App.1980); State ex rel. Hammett v. McKenzie, 596 S.W.2d 53 (Mo.App.1980). Following that rule, the agreement was not invoked when the defendant’s notice and request was received only by the prosecuting attorney. State v. Soloway, supra. Nevertheless, as noted, on September 16, 1982, the prosecuting attorney executed “Prosecutor’s Acceptance of Temporary Custody Offered in Connection with a Prisoner’s Request for Disposition of a Detainer.” The judge of the court in which the complaint was pending executed a certificate thereon. That certificate read:

I hereby certify that the person whose signature appears above is an appropriate officer within the meaning of Article IV(1) and that the facts recited in this request for temporary custody are correct and that having duly recorded said request I hereby transmit it for action in accordance with its terms and the provisions of the Agreement on Detainers.

Under facts remarkably similar to this ease, it has been held the execution of that acceptance and certification “constituted a waiver of the prisoner’s failure to notify ‘the appropriate court.’ It set the 180-day period running.” State ex rel. Saxton v. Moore, supra, at 592.

As observed in that case, the prisoner intended to invoke the agreement. The irregularity in the compliance with its terms was that of the warden. The prisoner received a copy of the acceptance of custody, which made no reference to any irregularity. The agreement was utilized by Missouri in returning the prisoner. The logic of State ex rel. Saxton v. Moore, supra, is compelling and is followed by this court.

In determining whether or not the defendant was brought to trial within that 180-day period so invoked, it is appropriate to observe certain basic principles applicable to the construction of the agreement. A violation of the agreement is not a mere technical error. Brown v. Wolff, supra. The agreement is to be construed in favor of the prisoner. State ex rel. Hammett v. McKenzie, supra; State v. Quiroz, 94 N.M. 517, 612 P.2d 1328 (1980); Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977). The agreement is to be construed in harmony with the Uniform Mandatory Disposition of Detainers Act, § 217.450 to 217.485 (formerly § 222.080 to 222.150). State ex rel. Kemp v. Hodge, supra. The terms of the agreement cause decisions of other states which are a party to the agreement to be particularly valuable in its construction. Id. When the time limitation under the agreement has expired, the burden is upon the state to produce evidence there was good cause within the meaning of the agreement to delay the trial beyond 180 days. State ex rel. Hammett v. McKenzie, supra.

The 180-day limitation is not absolute. Section 1, Article III expressly provides “that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Section 1 of Article VI provides “the running of the time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”

Further, the extension of the periods of limitation in the agreement has not been limited to the express provisions of those sections. Those periods have been extended under a variety of circumstances and for a variety of reasons. Most often such extensions have been founded upon a prisoner’s express or implied waiver of the applicable period of limitation. In that respect, it has been said that a prisoner’s express waiver of the agreement must meet the test of a knowing and voluntary waiver of a constitutional right as defined in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State ex rel. Hammett v. McKenzie, supra. However, it is generally recognized that a prisoner may, by his actions, otherwise waive or be barred from asserting that limitation. Russell v. State, 624 S.W.2d 176 (Mo.App. 1981). Cf. United States v. Eaddy, 595 F.2d 341 (6th Cir.1979); People v. Sevigny, 679 P.2d 1070 (Colo. banc 1984).

It is generally held that any delay of a prisoner’s trial which results from his affirmative action or agreement is not to be included in the period of limitation. Brown v. Wolff, supra; United States v. Scheer, 729 F.2d 164 (2nd Cir.1984); Russell v. State, supra. Cf. United States v. Eaddy, supra. In many cases the courts have declared the circumstances and prisoner’s conduct toll the period of limitation or bar him from relying upon the same. Other cases declare the provisions of the agreement do not rise to a constitutional level and the doctrine of Johnson v. Zerbst, supra, is not applicable. United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980).

A delay resulting from the following circumstances has been excluded from the period of limitation. When a defendant has asked for additional time to prepare, Simakis v. District Court of Fifth Jud., Etc., 194 Colo. 436, 577 P.2d 3 (bane 1978); when a continuance was granted at the request of a defendant, even though the request for the continuance was oral and not made in open court, State v. Sallee, 624 S.W.2d 184 (Mo.App.1981); when a defendant expressly consented to a continuance beyond the period of limitation, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979); when a trial was delayed by plea bargaining being actively pursued by a defendant, Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971); where a delay results from a continuance granted at the request of the defendant, State v. Armstrong, 624 S.W.2d 36 (Mo.App.1981); People v. Anderson, 649 P.2d 720 (Colo. App.1982); when a delay is actually necessary because of motions filed by the defendant, United States v. Scheer, supra; Commonwealth v. Fasano, 6 Mass.App. 325, 375 N.E.2d 361 (1978); and where the defendant asked for a trial setting beyond the period of limitation, Russell v. State, supra.

In this case, on November 19, 1982, immediately following his arraignment, the defendant filed a motion to dismiss and for a bill of particulars. He also filed a request for disclosure by the state. The docket also shows the contemporaneous filing of a notice of a hearing on those pleadings was filed. There is no further reference to these motions or the request until April 28, 1983, immediately preceding the trial. At that time the motions were overruled. The request was acknowledged to have been satisfied.

In overruling the defendant’s motion to dismiss, based upon violation of the agreement, the trial court found 45 days to be a reasonable time for the disposition of the motions and request. It extended the 180-day period by that length of time.

The motions and requests do not provide a basis for such extension. “The period to be excluded is not, however, a normal time reasonably to be assigned to the disposition of a similar motion. It is the period of delay, if any, which in the individual case may be actually ascribed to consideration and determination of the particular motion _” People v. Torres, 60 N.Y.2d 119, 468 N.Y.S.2d 606, 610, 456 N.E.2d 497, 501 (1983) (emphasis added). That rationale is the underlying basis of cases such as State ex rel. Hammett v. McKenzie, supra, and Commonwealth v. Gregg, supra. The record discloses no reason why those motions could not have been disposed of within a short time after they were filed. There is no evidence the process of discovery did in fact delay the trial. There is no suggestion in the record of how those pleadings could have resulted in delay. The state did not meet its burden to establish that the defendant’s motions and request delayed the trial. Commonwealth v. Wilson, 231 Pa.Super. 451, 331 A.2d 792 (1974); Commonwealth v. Gregg, supra.

This court is not unaware or unappreciative of the crushing case load imposed upon trial courts. Extraordinary circumstances of congestion may constitute good cause within the meaning of the agreement for the continuance of a trial beyond the period of limitation. Commonwealth v. Dickson, 386 Mass. 230, 434 N.E.2d 1284 (1982); Commonwealth v. Carrillo, supra. Cf. Brown v. Wolff, supra. However, in general, “[a]n overcrowded docket is not per se good cause to extend the time period.” State ex rel. Hammett v. McKenzie, supra, at 58. That rule is generally recognized and followed. Brown v. Wolff, supra; State v. Gipson, 670 S.W.2d 637 (Tenn.Cr.App.1978). Also see United States v. Mauro, supra.

The state argues that the failure to set the defendant’s case for trial because of the crowded docket should be treated as an informal continuance for good cause. An informal continuance resulting from a crowded docket is not a good cause for extension of the period of limitation prescribed by the agreement. Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). Or stated another way,

To imply a prosecutorial motion for a continuance solely on the basis of a trial setting beyond the speedy trial term, when no request for a continuance has ever been made, would be in clear contravention of the requirements of Article 111(a). Moreover, such a result not only would render the 180 day speedy trial period illusory but also would foster the very uncertainty of disposition that the Interstate Agreement seeks to eliminate.

People v. Sevigny, supra, at 1076.

The state relies upon Pethtel v. State, 427 N.E.2d 891 (Ind.App.1981). In that case, four weeks before the expiration of the period of limitation, with defendant and counsel present, the court set the case for trial after the expiration of that period. The court followed the rule applicable to the speedy trial act of that state. That rule was declared to be “a defendant is not entitled to discharge where he has notice a trial will be set beyond the time period permitted by the Rule and yet does not object ‘at a time when the court could ... grant him a trial date within the proper period.’ ” Pethtel v. State, supra, at 894. Compare People v. Sevigny, supra, in which the record did not establish voluntary acquiescence by the defendant.

It is not necessary for this court to accept or reject the doctrine of Pethtel. The docket call that resulted in the trial setting of April 11, 1983, was not held until well after the 180-day period of limitation had expired.

There is no suggestion in the record the defendant was not ready for trial when the case was set for January 10, 1983, or at any time thereafter. There was no good cause for continuance shown in open court. The case was not again called for a trial setting until after the period of limitation had expired. “A waiver is not ordinarily found from mere silence. The Agreement puts no affirmative obligation on the prisoner to alert the court of his I AD rights. We think it inappropriate to impose such an obligation.” Brown v. Wolff, supra, at 907. No affirmative action of the defendant was shown to have delayed the trial. The judgment must be reversed and Counts I and II of the information dismissed. Compare United States v. Mauro, supra; United States v. Ford, 550 F.2d 732 (2nd Cir.1977), aff'd sub nom United States v. Mauro, supra.

HOGAN, P.J., and PREWITT, C.J., concur.

CROW, J., recused.


author: GAERTNER, Judge.

text:
    Harry McMULLIN, Movant, v. STATE of Missouri, Respondent.
    No. 48768.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 19, 1985.

      Donald J. Hager, Public Defender, Farm-ington, for movant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   GAERTNER, Judge.

On January 13, 1984, movant entered a plea of guilty to the offense of driving while intoxicated, third offense. He was thoroughly questioned by the trial court and, under oath, admitted his conviction of three prior DWI offenses. On allocution he stated he had no reason why sentence should not be pronounced. The transcript of the guilty plea proceedings show the court was advised of plea negotiations which included the dismissal of another DWI, third offense, a persistent offender charge in a stealing case, and an agreement to recommend a four year sentence. Pursuant to this agreement and upon waiver of pre-sentence investigation by movant, the court imposed a four year sentence with the Department of Corrections.

Seventeen days later, on January 30, 1984, movant executed an affidavit, a motion under Rule 27.26 to vacate and set aside his conviction, in which he alleged the invalidity of his prior convictions for the reason that in “at least part of them” he was not represented by counsel.

The trial court appointed counsel to represent movant on the motion. The state filed a motion to dismiss or for summary judgment. At a hearing upon the motion, movant’s attorney admitted that the records of the Magistrate Court of St. Francois County reflected that movant was represented by counsel when convicted of DWI on July 20, 1977 and September 26, 1975. The attorney had not reviewed the record of the third DWI offense pleaded which occurred in Iron County and no admission was made regarding that alleged conviction. The trial court found that mov-ant was represented by counsel at the time of plea and sentence on two of the three alleged prior convictions and concluded that the allegations of the motion were refuted by the record. The court, without further hearing, sustained the motion to dismiss and for summary judgment.

On appeal movant contends this ruling was erroneous in that the magistrate court records considered by the court were not “files and records of the case” and therefore did not support a denial of his motion without an evidentiary hearing. Rule 27.-26(e). Whether the ruling of the trial court be viewed as the sustaining of a motion to dismiss or the granting of a motion for summary judgment, we find no merit to this contention.

Section 577.023(2), prescribes as a Class D felony the third offense of driving while intoxicated. Perhaps out of an abundance of caution, in the underlying case the state pleaded three prior offenses. At the guilty plea hearing, movant, under oath, admitted all three of these convictions. In his motion, movant alleges only that “he did not have counsel at all of the prior DWI convictions.” The only semblance of a specific allegation of fact in the motion is that “movant would testify that if the state represents that John Williams, an attorney, represented him, that would be false; that the lawyer did not represent movant in the DWI case.” The specific denial of counsel at one of the three admitted prior convictions does not suffice to invalidate mov-ant’s conviction under § 577.023(2), requiring only two prior convictions. The motion fails to state facts showing movant entitled to relief, Smith v. State, 652 S.W.2d 134 (Mo.App.1983) and the dismissal of the motion was warranted.

Moreover, the records of the magistrate court showing movant to have been represented by counsel were before the trial court by virtue of the judicial admission of his attorney. A judicial admission waives or dispenses with the production of evidence and concedes for the purpose of litigation that a certain proposition is true. Hewitt v. Masters, 406 S.W.2d 60, 64 (Mo. 1966). Movant’s attorney admitted that the records showed movant to have been represented by counsel at two of three pleaded prior convictions. Movant’s motion does not deny representation at all of his convictions and refers specifically only to one. On this state of the record, the trial court was warranted in granting the state’s motion for summary judgment.

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


author: CLEMENS, Senior Judge.

text:
    William BOLEN, Jr., Respondent, v. Joann M. BOLEN, Appellant.
    No. 48951.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 19, 1985.
    Steven P. Kuenzel, Eckelkamp, Eckel-kamp, Wood & Kuenzel, Washington, for appellant.
    Michael B. Stern, Stern, Pressman & Soule, Clayton, for respondent.
   CLEMENS, Senior Judge.

Just 26 months after the trial court had granted dissolution and child support the defendant-wife moved to increase the support. She has appealed the motion’s denial.

The parties had two children, boys now 10 and 14. Upon uncontested dissolution the parties had agreed the mother was to have primary custody and the father was to have visitation and pay $70 weekly for the boys’ support. The trial court so decreed and the father has complied.

By her motion to modify the mother pleaded the father’s earnings had increased and the cost of child care and education had increased. She moved to increase the weekly child support from $70 to $200 and for her attorney fee and costs.

In response the father testified his increased earnings are less than his increased cost of living; that the mother has repeatedly threatened to turn the boys over to him.

At the end of testimony the trial court made findings of fact. Those now material: The father’s regular net earnings are $1,865 a month; his living expenses have increased substantially and he has no increase in disposable income nor any substantial change therein warranting modification. The court announced its conclusions of law that the mother had not as required by Section 452.370 1, RSMo. met her burden to show “changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable.”

Settled principles govern our review. In Seelig v. Seelig, 540 S.W.2d 142 [6, 11] (Mo.App.1976) we held the above quoted statute is intended to discourage repeated motions to modify and under it the moving party has the burden of proof.

In the parallel case of In re Marriage of Johanson, 569 S.W.2d 337 [5] (Mo.App. 1978) we followed SEELIG, supra, and ruled:

“Since the items testified to are expected and predictable increases, neither we nor the trial court can presume they were not anticipated and considered by the court at the time of the original award.”

In our review we give due regard to the trial court’s opportunity to weigh the credibility of the witnesses. See In re Marriage of Engelhardt, 552 S.W.2d 356[1] (Mo.App.1977). So considered, we uphold its decree denying wife’s motion to modify.

Wife has also appealed from the trial court’s order that each party pay its own attorney fees, finding no contrary extenuating circumstances. As held in Matheus v. Matheus, 612 S.W.2d 907[4, 5] (Mo.App.1981), this was in accord with factors other than the parties’ comparative financial resources.

Affirmed.

DOWD, P.J., concurs.

CRIST, J., concurs in result.


author: CRANDALL, Judge.

text:
    Clarence TAMMONS, Movant, v. STATE of Missouri, Respondent.
    No. 49023.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 19, 1985.
    William J. Shaw, Public Defender, Clayton, for movant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Movant, Clarence Tammons, pled guilty to the charges of sexual abuse in the first degree, robbery in the second degree, and receiving stolen property. He was sentenced as a persistent offender to concurrent terms of imprisonment for ten years, ten years and seven years, respectively. He then filed a Rule 27.26 motion alleging ineffective assistance of counsel. Although not included in the record on appeal, the State apparently filed a motion to dismiss. On August 4, 1984, the following order was entered by the trial court:

State’s Motion to Dismiss called. Defendant appears with counsel Paul Fox. State appears through Assistant Prosecuting Attorney Nancy Smith. Argument heard.
After a review of the underlying files in this cause and the transcript of the plea and sentencing, and the Court being duly advised in the premises, State’s Motion to Dismiss is SUSTAINED.

Movant appeals from that order. We reverse and remand.

Rule 27.26(i) requires that “[t]he court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” Fields v. State, 572 S.W.2d 477, 488 (Mo. banc 1978). The requirement applies to cases where the motion court has sustained a State motion to dismiss the 27.26 motion. Tettamble v. State, 684 S.W.2d 67 (Mo.App.1984); Brauch v. State, 611 S.W.2d 406, 407 (Mo. App.1981); Turnbough v. State, 574 S.W.2d 400, 404 n. 5 (Mo. banc 1978). Appellate review is “limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Rule 27.26(j). Obviously if the trial court does not comply with Rule 27.26(i), there cannot be proper appellate review under 27.26(j). Fields, 572 S.W.2d at 483. We therefore hold that the trial court erred.

The order of the trial court is reversed and the cause is remanded with directions to enter findings of fact, conclusions of law and a judgment. In view of our holding, we do not reach the issue of whether or not movant is entitled to an evidentiary hearing.

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


author: KAROHL, Presiding Judge.

text:
    Shirley WENIGER, Plaintiff-Respondent-Cross-Appellant, v. FAMOUS-BARR COMPANY, Defendant-Appellant-Cross-Respondent.
    Nos. 48050, 48051.
    Missouri Court of Appeals, Eastern District, Division Six.
    Feb. 19, 1985.

      John J. Frank, St. Louis, for defendant-appellant-cross-respondent.
    Larry D. Valentine, St. Louis, for plaintiff-respondent-cross-appellant.
   KAROHL, Presiding Judge.

This opinion follows a retransfer of this cause from the Supreme Court for reconsideration in light of its holding in Sanders v. Daniel International Corporation, 682 S.W.2d 803 (Mo. banc 1984).

Defendant-appellant Famous-Barr appeals a verdict and judgment for plaintiff on her malicious prosecution claim contending there was no evidence to prove Famous-Barr had instigated the prosecution and there was no evidence of malice. Plaintiff-respondent Shirley Weniger cross-appeals claiming instruction error in the use of defendant-appellant’s converse instruction on the malicious prosecution count, alleging that the jury considered it on the false imprisonment charge in which there was a defendant’s verdict.

On December 10, 1979 Mrs. Weniger was shopping at the West County Famous-Barr. She testified that she had with her a sweater she had purchased two days earlier at another Famous-Barr store. After browsing through the Junior Department she went to try on a blouse and two sweaters identical to the one she had purchased. While in the dressing room she decided to try on the sweater she had previously purchased and which she claimed she had with her but the plastic cord affixing the price tag to the garment caught on the sweater. Mrs. Weniger lit a cigarette and burned off the price ticket which she placed in her wallet. All of this was observed by a Famous-Barr security guard who subsequently detained Mrs. Weniger. As she did not have with her the sales receipt for the sweater she had previously purchased the security guard called the City of Des Peres police. The police officer arrested Mrs. Weniger and she was charged under a city ordinance with stealing under $150. Mrs. Weniger was acquitted of the municipal charge and brought suit against Famous-Barr for false imprisonment and malicious prosecution. The jury found in her favor on the malicious prosecution count and awarded $25,000 actual and $50,000 punitive damages and in defendant’s favor on the false imprisonment count.

On appeal Famous-Barr argues that the trial court erred in failing to grant a directed verdict on the malicious prosecution count as there was no evidence to show that Famous-Barr and not the city prosecutor had instituted the suit. In addition appellant argues that there should have been a directed verdict because even if Famous-Barr did institute the suit there was probable cause for prosecution, and there was no evidence of malice to support a malicious prosecution verdict. Mrs. Wen-iger cross-appeals and claims that one of the instructions intended to be a converse instruction was not in the same language as the verdict director for malicious prosecution and was not clearly limited to the malicious prosecution count. She seeks a new trial on the false imprisonment count.

Where there are disputed facts such that finding them in favor of plaintiff would sustain a cause of action it is error for the trial court to direct a verdict for the defendant. Palermo v. Cottom, 525 S.W.2d 758, 762 (Mo.App.1975). The evidence is viewed in the light most favorable to plaintiff, Huffstutler v. Coates, 335 S.W.2d 70, 73 (Mo.1960), with the benefit of all reasonable inferences that may be drawn in his favor, McFarland v. Union Finance Co., 471 S.W.2d 497, 499 (Mo.App. 1971). Any of defendant’s evidence unfavorable to the plaintiff will be disregarded. Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 945 (Mo.1953).

To prevail on a malicious prosecution action plaintiff “... must plead and prove six elements: (1) the commencement of a prosecution against the plaintiff; (2) the instigation by the defendant; (3) the termination of the proceeding in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) the defendant’s conduct was actuated by malice; and, (6) the plaintiff was damaged.” Sanders, at 807. Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 483 (Mo. 1972). Famous-Barr argues that there was no evidence to support the second, fourth and fifth elements.

At trial the Des Peres police officer testified that he arrested Mrs. Weniger based on the statement made by the security guard. The police called the security guard to ask if Famous-Barr would reconsider pressing charges. Only one time in the past had the police asked Famous-Barr to reconsider. Famous-Barr refused to reconsider their position. The security guard testified that there was no reason to reconsider because she believed Mrs. Weniger had stolen the sweater. These facts could have been construed by the jury as a reluctance of the police to prosecute which was overcome by the security guard’s insistence that the crime had occurred. See Lipari v. Volume Shoe Corp., 664 S.W.2d 953, 956 (Mo.App.1983). As there was a question of fact as to who instituted the suit the issue of causation was for the jury and a directed verdict would have been inappropriate on this ground.

On the issue of lack of probable cause Famous-Barr maintains the prosecution was justified because Mrs. Weniger was observed taking clothing into a fitting room and removing the price tag from a sweater for which she had no sales receipt. The security guard testified that when Mrs. Weniger entered the store she was carrying an apparently empty shopping bag. Mrs. Weniger claims the previously purchased sweater was in the bag. There was a sweater in the bag when she was stopped. “If the testimony on any material part of the evidence showing the existence or want of probable cause is in conflict, that becomes a jury issue and a submissi-ble case has been made.” Hoene, 487 S.W.2d at 483-484. In addition it has been noted that since the absence of probable cause is proof of a negative only slight proof is required to make a prima facie case. Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. banc 1977). “While an acquittal on the merits is not in itself prima facie proof of a want of probable cause ... it constitutes some evidence thereof_” Hoene, 478 S.W.2d at 483. Here Mrs. Weniger proved that she had been acquitted of the municipal charge. This fact in addition to the conflict of evidence concerning what she brought into the store indicate that a directed verdict would have been inappropriate on this ground. See Palermo v. Cottom, 525 S.W.2d 758, 764-65 (Mo.App.1975). The jury must have found that plaintiff had her previously purchased garment in the shopping bag.

Famous-Barr’s last point is that as there was no proof of malice there should have been a directed verdict in its favor. Before addressing this issue we must determine the nature of the requisite degree of malice necessary to support a cause of action for malicious prosecution. Prior to Sanders “malice in law” was deemed sufficient. Instruction No. 4A was submitted to the jury in the following form:

The terms ‘malicious’ or ‘maliciously’ as used in these instructions do not mean hatred, spite or ill will, as commonly understood, but mean the doing of a wrongful act intentionally without just cause or excuse. [MAI 16.01]

This instruction comports with “malice in law” but not actual malice or legal malice. Sanders, at 811.

The majority opinion in Sanders recognizes, “[t]he word ‘malice’ connotes a culpable mental state, but the term lacks any uniform definition.” Sanders, at 807. The opinion then recognizes three degrees of malice: actual, legal and malice in law. Actual malice was found to include ill will, spite, personal hatred or vindictive motives, at 807. Legal malice has a broader meaning and embraces any improper or wrongful motive, at 807. Malice in law is “a wrongful act done intentionally without just cause or excuse.” at 808. Sanders concluded that the weight of authority clearly indicates that a malicious prosecution action can be supported only by either actual or legal malice but malice in law is insufficient, at 809. “In short, the conduct [of the defendant] must be such that a jury could infer and find an improper motive.” at 810. In granting a new trial the court concluded that MAI 16.01 should no longer be sanctioned in a malicious prosecution action because it fails to require the jury to find defendant acted with an intent to cause harm, at 813. In lieu thereof the court adopts Restatement of Torts (Second) § 668 (1965) which requires, in substance, that the jury must find that the defendant initiated the prosecution “primarily for a purpose other than that of bringing an offender to justice.” at 814. The plaintiff must plead malice and prove at least legal malice which includes an improper or wrongful motive.

The facts in the Sanders case are significantly different than in the present case. In Sanders the theft of some tools was an undisputed fact. The issue was whether the defendant was the culprit. In the present case whether a theft by shoplifting occurred is the disputed fact. The supreme court granted appellant a new trial permitting plaintiff Sanders the opportunity to submit to a jury evidence to support the requisite improper motive using new jury instructions consistent with that opinion.

The supreme court also found that punitive damages in a malicious prosecution case must be supported by proof of actual malice. The supreme court suggested the following definition: “[a]n act or a failure to act is ‘maliciously’ done, if prompted or accompanied by ill will, or spite, or grudge, either toward the injured person individually, or toward all persons in one or more groups or categories of which the injured person is a member.” at 815.

In the present case Famous-Barr initiated the municipal charge based upon what the security guard believed she saw. While the prosecution may have been wrong (as demonstrated by the acquittal) Famous-Barr did have cause to believe Mrs. Weniger had stolen a sweater. Mrs. Weniger testified that what she had done did look suspicious. In addition there was no proof that Famous-Barr knew it was. initiating a wrongful prosecution when it decided to press the charge. The security guard testified that even though Mrs. Weniger was acquitted she still believed that Mrs. Weniger had stolen a sweater. In Parker v. Color Tile Supermart, Inc., 655 S.W.2d 598 (Mo.App.1983) we affirmed a directed verdict for the defendant and held that “... the focus of our inquiry is not plaintiff’s guilt or innocence, but whether defendant could reasonably believe when it initiated the prosecution that plaintiff was guilty of the offense charged.” Id. at 600. We conclude that the prosecution instigated by defendant may have been supported by a reasonable belief. If so there was no proof of actual or legal malice. But that issue was not submitted to the jury under a proper instruction as approved in Sanders.

If the present case had been tried after Sanders a reversal would have been required. However, at the time of trial although it misstated the law MAI 16.01 was approved in malicious prosecution cases as well as in other causes where malice was an issue. Further, some case law supported a finding that malice sufficient to support a cause of action for malicious prosecution could be inferred from lack of probable cause. See e.g. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo.1972). There was evidence in the present case that plaintiff produced an Eagle Stamp stub in support of her position that she previously purchased the sweater in question from another store belonging to defendant; that no attempt was made by defendant to verify her explanation; that defendant failed to investigate her status or reputation; and that defendant acted in haste. These additional facts were deemed significant in Hoene which concluded that defendant’s store was responsible “not only for all facts which [it] knows at the time, but also for all other pertinent facts which [it] could have ascertained by due diligence prior to instituting prosecution, [cases cited]” Hoene, 487 S.W.2d at 483. We conclude that these facts and others which plaintiff may offer may support a cause of action for malicious prosecution under instructions complying with the Supreme Court’s opinion in Sanders. Accordingly, we reverse and remand for a new trial on the malicious prosecution count.

On cross-appeal Mrs. Weniger raises the issue of the propriety of instruction No. 15, defendant’s converse instruction on the malicious prosecution count, which reads:

Your verdict must be for defendant unless you believe that defendant’s employee performed a wrongful act intentionally and that defendant’s employee knew at the time she did it that the act was wrongful.

Mrs. Weniger argues that the instruction was not limited to the malicious prosecution claim and the jury could have also considered it in deciding the false imprisonment claim adverse to plaintiff. She also argues that the language of the instruction was improper as it did not use the same language as the instruction it was directed at and because it attempted to define malice. Finally cross-appellant asserts that the use of the instruction is presumed prejudicial because there was an applicable MAI which should have been used.

We note that the jury was by a separate instruction, No. 13, directed to consider instruction No. 15 only when reviewing the malicious prosecution claim, the claim on which Mrs. Weniger prevailed. The instructions were packaged in three groups, general instructions (1-7), false imprisonment instructions (8-12) and malicious prosecution instructions (13-17). In evaluating whether a jury has been misled by an instruction an appellate court may assume that the jury is composed of reasonably intelligent people with an average understanding of the English language. Affiliated Foods, Inc. v. Strautman, 656 S.W.2d 753, 759 (Mo.App.1983). There is no reason to believe that the jury applied this instruction outside of the malicious prosecution package. We find no error here.

We need not decide if the converse instruction was defective on the remaining grounds asserted by plaintiff-cross-appellant because it related only to the count on which cross-appellant prevailed. No prejudice to Mrs. Weniger has been shown.

We reverse and remand for retrial of plaintiff’s cause of action for malicious prosecution consistent with this opinion. Cross-appellant’s appeal is denied.

CRIST and CRANDALL, JJ., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Kenneth L. COHEN, Appellant.
    No. WD 35432.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    William M. Chapman, Public Defender, Sedalia, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and SHAN-GLER and DIXON, JJ.
   ORDER

PER CURIAM:

This appeal is from the conviction for manufacture of marihuana tried to the court in violation of § 195.020, RSMo 1978, and sentence of five years imprisonment.

The judgment is affirmed. Rule 30.25(b).


author: TURNAGE, Chief Judge.

text:
    Jeannette A. MEADOWS (Tolley), Respondent, v. Darrell H. MEADOWS, Appellant.
    No. WD 35575.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.

      Robert G. Fisher, Independence, for appellant.
    John R. Jack, Blue Springs, for respondent.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   TURNAGE, Chief Judge.

Darrell Meadows filed a motion to modify the amount of child support he had been ordered to pay in a dissolution decree. The court entered judgment reducing the amount of support to $300 per month for a period of one year, at which time the amount would revert to the original $450 per month.

Darrell contends that the court erred in using an escalator clause in the modification judgment; that $300 per month is beyond his ability to pay; that the order failed to implement a stipulation that child support abate during times Darrell had temporary custody; and that the court should have made the modification effective as of the date Darrell filed his motion, rather than the date of the hearing. Reversed and remanded.

The marriage of Jeannette and Darrell was dissolved on February 27, 1981. The court granted Jeannette custody of the two girls, who were about eight and twelve at the time of the dissolution. The court awarded Jeannette the sum of $225 per month per child and granted Darrell certain visitation and temporary custody rights.

At the time of the dissolution, Darrell worked as a nurse in a General Motors plant. He had been earning between $28,-000 and $31,000 per year. In mid-November of 1982, Darrell was informed that General Motors had upgraded the educational requirements for his job and that henceforth his job would require a person with an RN. Darrell had only received military medical corpsman training and did not possess an RN. General Motors gave Darrell the choice of being terminated or being placed on leave without any benefits or salary, and Darrell chose to take a leave.

At the hearing, Darrell testified about his former employment and the circumstances surrounding his loss of that job. Darrell also testified concerning his employment from the time he lost his job until the hearing on May 24,1983. He stated he had earned $93.95 for delivering booklets, and had earned between $4.50 and $4.95 per hour while employed as a clinical research technician. He lost the technician job after a short time, and had since been looking for work and attending school to qualify as a medical assistant. No evidence was presented as to the amount Darrell could earn as a medical assistant. Darrell stated that it would take several years to earn an RN, and at his age he did not plan to undertake that much education.

After the dissolution, Jeannette had remarried and moved to Georgia with the two girls. She did not appear at the hearing on the motion, and the only evidence presented on her behalf was a statement of earnings and expenses prepared by her.

The court found that a substantial and continuing change of circumstance had occurred which made it unreasonable to continue the original decree without modification. The court ordered the amount of child support reduced from $225 per month per child to $150 per month per child, effective May 24, 1983. The court further ordered that effective June 1, 1984, the amount of child support would be restored to $225 per month per child.

Darrell contends that the escalator provision in the judgment which increases the child support in the future without any further motion or hearing is invalid. Darrell asserts several reasons why this was erroneous, but it will suffice to state that the court had received no evidence upon which it could base a finding that on June 1, 1984, Darrell would have the ability to pay $450 per month.

In Lewis v. Lewis, 637 S.W.2d 207 (Mo. App.1982), the court awarded the wife a fixed monthly sum until the husband’s retirement, at which time she was to receive one-third of his benefits. The court struck the modification portion of the judgment because there was no evidence of the amount of either the husband’s or the wife’s retirement benefits, and thus the modification order was based on speculation. Id. at 210[8]. See also Stanaway v. Stanaway, 70 Mich.App. 294, 245 N.W.2d 723, 724[1] (1976).

In this case, there was no evidence as to the availability of a job in the medical assistant field nor as to the salary Darrell could expect in that field. Darrell could not go back to his General Motors job without an RN, and the prospect of that is virtually nil. Thus, his only future job possibility is a medical technician position. On these facts, the modification by way of an escalation on June 1, 1984, was based purely on speculation and therefore cannot stand.

Darrell next contends that the sum of $300 per month in total support was not justified by the evidence. The only evidence concerning Darrell’s earnings after he lost his General Motors’ job was one temporary job and another job which lasted only a short time. At the time of the hearing, he was attending school and not earning any money. He was living at home and being supported by his mother. Darrell had received a house in the dissolution, but he testified that it was in a state of disrepair and unrented. Darrell had been cited for contempt for failure to pay child support, but he had agreed to pay a total of $195 per month in child support. These payments were being made at the time of the hearing.

While the court must determine the reasonable needs of the children and the reasonable ability of the father to meet those needs in setting the amount of child support, the financial resources of the noncustodial parent is the prime factor. Hopkins v. Hopkins, 664 S.W.2d 273, 274[1, 2] (Mo.App.1984).

The evidence concerning Darrell’s lack of income and lack of resources with which to pay child support is not disputed. The trial court found that Darrell was unable to pay a total of $450 per month. There is no evidence that Darrell was able to pay $300 per month, but there was evidence that he was paying $195 per month. Considering all of the factors enumerated in § 452.340, RSMo 1978, the sum of $195 per month, or, $97.50 per month per child, would be reasonable.

Darrell also contends that the court should have incorporated in its judgment a provision that child support would be abated during the two months each summer when Darrell has temporary custody. Darrell testified that he and Jeannette had entered into a stipulation after she moved to Georgia by which he was to have custody of the girls from the middle of June to the middle of August each year, and that for that time Darrell would not be expected to pay child support. There was no motion seeking a modification of the judgment to reflect this temporary custody to Darrell nor any judgment which provided that child support would abate during that time. Absent a judgment relieving Darrell from the obligation to pay child support while he has temporary custody, he is not entitled to deduct a pro rata amount of child support during the time he has temporary custody. Klinge v. Klinge, 663 S.W.2d 418, 419[3] (Mo.App.1983).

Darrell finally contends that the court should have made its modification judgment effective as of December 27, 1982, when the motion was filed, rather than on May 24, 1983, when it was heard. In Stitt v. Stitt, 617 S.W.2d 645, 648[9] (Mo.App.1981), the court held that the effective date of a modification is within the trial court’s sound discretion and will only be amended if a clear abuse of discretion is shown. Here, Darrell had lost his job in November of 1982, and he filed his motion on December 27, 1982. The court found that there had been a change of circumstance which made the terms of the dissolution unreasonable. The record contains no evidence from which it could be found that Darrell had any greater ability to pay on May 24,1983, than he did at the time he filed the motion. Under the circumstances of this case, the effective date of the modification should be the date the motion was filed, and the court abused its discretion in failing to make the change effective as of the date of filing.

The judgment is reversed and this cause is remanded with directions to enter judgment modifying the judgment of February 27, 1981, to provide that Darrell pay $97.50 per month per child in child support, effective December 27, 1982. Such sum is to continue until further order of the court.

All concur.


text:
    STATE of Missouri, Respondent, v. George P. DAVENPORT, Appellant.
    No. WD 35579.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    James W. Fletcher, Public Defender, Barbara Schenkenberg, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., T. Chad Far-ris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from jury trial conviction of robbery in the first degree, § 569.020 RSMo (1978) and sentence to ten years of imprisonment.

Judgment affirmed. Rule 30.25(b).