author: NUGENT, Judge.

text:
    STATE of Missouri, ex rel., John COATS, Relator, v. Honorable Kenneth R. LEWIS, Judge of the Circuit Court for the County of Livingston, Respondent.
    No. WD 36066.
    Missouri Court of Appeals, Western District.
    April 9, 1985.

      John Coats, pro se.
    Robert B. Paden, Maysville, R. Brent Elliott, Chillicothe, for respondent.
    Before MANFORD, P.J., and KENNEDY and NUGENT, JJ.
   NUGENT, Judge.

PROCEEDING IN MANDAMUS

This mandamus action arises out of relator John Coats’ attempt to file an action in the circuit court of Livingston County for declaratory and injunctive relief against Donald Camper, Superintendent of the Women’s Correctional Center at Chilli-cothe. Relator claims that Camper is improperly denying him visitation rights with his wife, Carol Coats, a prisoner at the Chillicothe facility. Coats is an inmate at the Missouri State Penitentiary at Jefferson City.

Relator Coats forwarded to the clerk of the court a letter requesting that his motion and affidavit as a poor person included in his enclosed complaint against Donald Camper be brought to the court’s attention, citing Rule 77.04 and § 514.040. The affidavit attached to the motion avers that relator is confined in the penitentiary, that he has no money or property with which to pay or secure the payment of the costs of the action and that he verily believes that he has a just cause of action. The clerk brought Mr. Coats’ motion for leave to proceed in forma pauperis to the attention of respondent, Judge Lewis, who shortly thereafter summarily denied the motion without hearing, explanation or comment and apparently without inquiry into Coats’ financial state.

Relator then filed his petition for a writ of mandamus in this court. We issued our alternative writ directing the respondent to set aside his order denying petitioner leave to proceed as a poor person and to grant him an evidentiary hearing upon his motion and rule the motion on the basis of the evidence adduced or, in the alternative, to show cause why he should not do so.

Respondent Lewis answered that, first, relator’s petition fails to state sufficient facts upon which to issue the writ, second, relator has no clear, positive and specific legal right upon which mandamus will issue because the grant of leave to proceed in forma pauperis is discretionary, and, third, relator made no demand for and the court did not refuse an evidentiary hearing, both indispensable to the grant of a writ of mandamus, which will not issue to enforce an anticipated omission.

In his later brief, however, respondent’s counsel takes a different tack. He acknowledges that the trial court must first find the plaintiff to be a poor person and, if it does, then exercise its discretion, which is exactly what § 514.040 provides. That should end the dispute, but respondent goes on to argue that motions and affidavits do not prove themselves and the court had no duty to act because the plaintiff made no request for an evidentiary hearing on the issue of plaintiff's indigency. Respondent’s counsel also contends that the court could and did properly reject plaintiff’s affidavit “as not being all inclusive” and not proving that plaintiff was indigent.

The cases counsel relies upon for those propositions are not in point. They do not deal with the question of the sufficiency of the affidavit or motion filed by a person at the commencement of the action seeking leave to proceed as a poor person. Nor do those cases discuss the issues of the need to prove or the method of proving plaintiff’s indigency at the time a case commences.

Respondent’s brief cites Carrell v. Carrell, 503 S.W.2d 48 (Mo.App.1973). There the plaintiff at trial failed to adduce evidence of her indigency. The question whether she could appeal in forma pauper-is was decided on the basis of that eviden-tiary deficiency at trial, not upon the sufficiency of plaintiff’s affidavit. Jackson v. Hartford Accident and Indemnity Co., 484 S.W.2d 315 (Mo.1972), also cited, is of no help because, like Carrell, it deals with a motion to appeal as a poor person which was denied because “there was no showing of indigency as of the time of this appeal.” Id. at 322. No mention is made of the sufficiency of or need for an affidavit to support a motion to proceed as a poor person. Williams v. Williams, 497 S.W.2d 415 (Mo.App.1973), which respondent’s brief cites, is also inapposite. It does not discuss in forma pauperis affidavits but merely holds that motions do not prove themselves. In Stanfill v. Stanfill, 505 S.W.2d 438 (Mo.App.1974), which respondent’s brief relies on to show that affidavits may not be treated as evidence, the court does not address the question of suits by poor persons or the use of affidavits in support of motions. The issue there was whether, absent a stipulation by the parties or any supporting testimony, verified statements of the wife’s income and expense were admissible in lieu of trial evidence to show that she had no means to pay her attorney. Of course, affidavits may not be used at a trial on the merits in lieu of evidence because they could not be subjected to the usual tests of trial evidence the opposing party is entitled to apply to such evidence, such as cross-examination. But affidavits are used as prima facie evidentia-ry support for motions. See, for example, Rules 44.01, 54.20, 55.28, and 65.05.

Respondent’s brief also relies upon this court’s holding on direct appeal in Standley v. Western Auto Supply Co., 319 S.W.2d 924 (Mo.App.1959), that the trial court committed no error in denying plaintiff’s post-trial motion for leave to appeal in forma pauperis. In that case, however, plaintiff’s trial testimony showed him to be regularly employed, and nothing in the record showed an abuse of discretion by the trial court in denying plaintiff’s application. No mention is made of the sufficiency of the affidavit or the need to prove its averments.

The court in Standley notes that State ex rel. Miller v. Smith, 120 S.W.2d 184 (Mo.App.1938), holds that disposition of a motion to proceed as a poor person rests within the sound discretion of the trial court and is not subject to control by mandamus. Respondent also relies upon the latter ease, but fails to mention that in fact the court permitted relator Miller to proceed in the underlying action without a deposit for fees and without giving bond for costs, although it denied her motion to proceed as a poor person. No mention is made of the sufficiency of relator’s affidavit nor of proof of its allegations. Neither case discusses whether the court may deny leave to proceed in forma pauperis on any ground other than plaintiff’s poverty.

As respondent correctly contends, however, State ex rel. Miller v. Smith and Standley do hold that the statute gives the trial court discretion to grant or deny a plaintiff’s motion for leave to proceed in forma pauperis. But the crucial issue in this case is not, as respondent contends, whether or not the trial court properly exercised its discretion in denying relator’s motion to proceed in forma pauperis; rather, the crucial issue is whether the motion can be denied before the trial court first makes a determination of indigency as required by § 514.040. “If any court shall, before or after the commencement of any suit pending before it, be satisfied that plaintiff is a poor person ... such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person_” (Emphasis added.) Under the explicit wording of the statute, a trial court may not exercise its discretion to grant or to deny a plaintiff leave to proceed in forma pauperis unless the court is first “satisfied” that the plaintiff is a “poor person.” The statutory scheme quite clearly provides that, if the court is satisfied that the plaintiff is a poor person, it may permit the plaintiff to proceed in forma pauperis, but if the court is not satisfied that the plaintiff is a poor person, the court may not, that is, it has no discretion to permit the plaintiff to commence or prosecute the action as a poor person. That is so simply because the statute does not grant the court the authority to permit just anyone to sue as a poor person. The plaintiff must be one the court is “satisfied ... is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof....” When the court does make that determination, its statutory discretion comes into play, but not before.

The scheme of the statute is to set up a two-stage inquiry. In the first stage, the court must determine the plaintiffs eligibility for the benefit of the statute based upon plaintiffs poverty. The second stage, given the plaintiffs indigency, is a consideration of those factors which invoke the court’s discretion bearing on whether the plaintiff ought to be allowed to commence and prosecute the particular action as a poor person.

On these questions Missouri case law is as yet arid. For that reason, we turn to other authorities for guidance.

Under a similar statute, the Supreme Court of Colorado held that since the legislature put in the statute only one explicit criterion of eligibility, that is, the poverty of the plaintiff, it must have intended to limit the judge’s discretion in such cases to consideration of the plaintiff’s financial resources. Cook v. District Court, 670 P.2d 758 (Colo.1983) (en banc). In saying so, however, the Colorado court added a proviso not included in the statute: “at least in the absence of factors such as bad faith or a plainly frivolous claim” as in the federal statute discussed infra. Id. at 760.

The trial court in Cook, believing it had discretion under § 13-16-103 to do so, had denied the plaintiff’s petition for leave to proceed in the district court on the ground that the case should appropriately be litigated in the county court which would provide plaintiff an adequate forum. The Supreme Court held, however, that the test of whether a plaintiff may commence an action without payment of costs is whether the judge is satisfied that the plaintiff is a poor person unable to pay the costs and expenses. It remanded the case for reconsideration of plaintiff’s in forma pauperis petition based upon an evaluation of his current financial condition. Id. at 761.

In Hadley v. Ramah, 134 Mich.App. 380, 351 N.W.2d 305 (1984), the plaintiff attempted to file his complaint for legal malpractice together with ex parte affidavits of indigency and motions for waiver of fees under the Michigan Supreme Court rule. Despite the mandatory “shall” of the rule, the court held that, where the circuit court knows or has reason to believe that the averments of the affidavit are untrue, it has discretion to deny the waiver of fees. The court concluded, therefore, that the trial court may hold an evidentiary hearing to determine the affiant’s financial status. It also held that the lower court was wrong in assuming that the plaintiff had no need for the five dollars in his prison account and the twenty dollars he earned each month as prison wages and could use those funds to pay court costs — contrary to the averments of the plaintiff’s affidavits. The court remanded the case with the direction that, in its discretion, the trial court conduct an evidentiary hearing or require a new affidavit from the plaintiff or an affidavit from prison officials, or adopt some similar procedure to discover plaintiff’s true financial state, but that it not refuse to waive fees on an assumption which is unsupported by any record evidence.

The federal courts have frequently dealt with the question of the eligibility for the benefit of the federal statute authorizing actions in forma pauperis, 28 U.S.C. § 1915.

That statute provides in subsection (a) that the federal court

may authorize the commencement, prosecution or defense of any suit, action or proceeding ... without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action ... and affiant’s belief that he is entitled to redress.

28 U.S.C. § 1915(a).

Unlike § 514.040, the federal statute explicitly provides that the court “may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d).

Although its form is different and § 1915(d) is more explicit in providing for dismissal of frivolous and malicious petitions, the federal statute is much like the Missouri statute. It imposes on the trial judge a duty to entertain an application to proceed in forma pauperis, Steffler v. United States, 319 U.S. 38, 40, 63 S.Ct. 948, 949, 87 L.Ed. 1197 (1943), and it provides a two-step process for consideration of such applications. First, the court must determine that plaintiff is qualified under § 1915(a) by reason of his economic state and, if so, permit him to file his complaint. Second, the court may then determine under § 1915(d) whether the complaint is frivolous or malicious and, if so, dismiss it. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982). The federal courts hold that, in the exercise of the trial court’s wide discretion in making such determinations, plaintiffs’ complaints must be construed liberally and that no complaint should be dismissed as frivolous unless under it the plaintiff can prove no set of facts entitling him to relief. Cameron v. Fogarty, 705 F.2d 676, 678 (2nd Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2nd Cir.1983); Hogan v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir.1982). A complaint is frivolous only if it is without arguable merit both in law and in fact; despite its wide discretion, a trial court must not act arbitrarily and may not deny an application on erroneous grounds. Id. Moreover, a pro se prisoner’s complaint is governed by less stringent standards than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).

In granting leave to proceed in forma pauperis, the federal courts have also concluded that the preferable procedure in such cases is, rather than summarily denying leave to proceed, to authorize commencement of an action if the court is satisfied from the averments on the face of the pleadings that the plaintiff is a poor person. If later the court discovers that the allegations of poverty are untrue or if it determines that the petition is frivolous or malicious, the court may dismiss the action. In the process, however, a complete record will thus be made in an orderly fashion for the benefit of the plaintiff, the trial court and the appellate court. Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir.1972); Cole v. Smith, 344 F.2d 721, 723 (8th Cir.1965). “Untimely dismissal may prove wasteful of the court’s limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts.” Bayron v. Trudeau, supra, 702 F.2d at 46.

In adopting § 514.040, the Missouri legislature must have contemplated that individuals would seek leave of court in several different situations. Many will seek leave who are not eligible poor persons. Others who are eligible poor persons will have unassailably valid claims. Still other eligible poor persons will seek leave although their claims are patently frivolous or malicious. Finally, some poor persons will appear whose claims will not withstand a motion to dismiss but are not clearly facially invalid.

For these reasons, we conclude that the legislature gave the trial judge authority to entertain, that is, to permit the plaintiff to file an in forma pauperis motion and affidavit together with plaintiffs proposed petition and to make a determination of the financial eligibility of the plaintiff for the privilege of commencing and prosecuting his action as a poor person. Section 514.-040 clearly contemplates a filing of such pleadings with the court. It provides for the court’s action in “any suit pending before it.” Suit cannot be “pending” until filed. State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391, 393-94 (Mo.1975) (en banc).

The appropriate procedure, therefore, is to permit the filing of the suit papers subject to summary dismissal if the court is not “satisfied that the plaintiff is a poor person and unable to prosecute his or her suit, and pay the costs and expenses thereof .... ” Even though the court is satisfied of plaintiffs indigency, however, before additional time and money are spent in obtaining service upon the defendant (or sometimes numerous defendants), the court may and should in its discretion examine the plaintiffs petition to see if it is patently and irreparably frivolous or malicious on its face so that, as pleaded, the plaintiff could prove no set of facts entitling him to relief. For this additional reason, the court should require a plaintiff to file with his motion to proceed in forma pauperis his petition subject to the court’s later dismissal if it proves to be patently and irreparably frivolous or to be malicious. If a plaintiff’s petition is neither frivolous to that degree nor malicious, the trial court regularly should permit the case to proceed and be subjected to the usual tests of sufficiency (by motion to dismiss, for example), with the usual chances for the plaintiff to correct any defect in his petition.

The question remains, however, how the trial court may “satisfy” itself that the plaintiff is an eligible poor person. The Michigan court in Hadley v. Ramah, supra, 351 N.W.2d at 309-10, concluded that under its similar rule the trial court had the discretion to hold an evidentiary hearing to determine plaintiff’s status as an indigent or to require affidavits of the plaintiff setting out the particulars of his current financial condition or to request affidavits of the prison authorities or to “adopt some similar procedure to discover plaintiff’s true financial state.” Missouri’s rules are broad enough to permit similar treatment of a plaintiff’s in forma pauperis motion. Rule 55.28, provides as follows:

When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

So long as any such procedure permits the making of the “complete record” in an “orderly fashion” as suggested by the federal decisions, Cole v. Smith, supra, 344 F.2d at 723, we believe that in following such a procedure the trial court will conform to the command of § 514.040 to satisfy itself that the plaintiff is a poor person before it permits the plaintiff to proceed as a poor person. Some cases, perhaps most cases, will not require an evidentiary hearing. That is a matter for the trial court to decide. So long as the procedure the judge adopts is fair to the plaintiff and permits the judge to make a determination based upon material in the record and subject to review, we believe that the court will have done its duty under § 514.040.

The statute does not require proof beyond satisfying the trial court and it does not preclude the court’s basing its determination on the traditional in forma pauperis affidavit. Difficulty will arise, however, where the trial judge, as in this case, summarily denies leave to proceed as a poor person despite the plaintiffs perfectly adequate affidavit and without further inquiry of any kind on the record. Until the record reflects such an inquiry by the court to which the application has been made, the court has not completed performance of the duty § 514.040 imposes on it. The plaintiff need not ask for an evidentiary hearing on pain of denial of leave. A hearing may never be required because in one case the plaintiffs indigency may be self-evident and in another his ineligibility may be revealed by the slightest inquiry, for example, of prison authorities. The court may or may not need an evidentiary hearing to make adequate inquiry and render a fair decision on plaintiffs motion.

In this case plaintiffs affidavit of poverty is sufficient. It avers that he has no money or other property to pay the costs of this action, that he is confined in prison, and that he “verily believes that he has a just cause of action and that he is entitled to the relief sought.” Absent the court’s order for a more particularized affidavit, this affidavit in the traditional form is adequate under § 514.040, which requires no affidavit at all.

Respondent has made no attack on the sufficiency of plaintiff’s petition. Although it is by no means a model, it is an adequate pro se statement of a cause of action and does not on its face appear to be frivolous or malicious.

Finally, respondent asserts that mandamus will not lie to require a court to do a discretionary act, but what relator seeks here is not mandamus to require the court to exercise its discretion. Relator seeks and we have heretofore directed the trial court to take action to comply with the duty § 514.040 imposes on it: to determine whether or not plaintiff is a poor person entitled to the benefit of that statute. The statute requires the trial court to do that and grants the court no discretion to do otherwise. Discretion does not come into play until plaintiff’s indigency has been determined to the trial court’s satisfaction.

For the foregoing reasons, we now issue our peremptory writ of mandamus, directing the respondent (1) to cause to be filed relator’s “Motion for Leave to Proceed in Forma Pauperis, for the Issuance of Summons without cost, for Declaratory and In-junctive Relief,” which we take to include the petition stating his cause of action, if it has not yet been filed, and (2) to determine by means of evidentiary hearing or such other means on the record as are consistent with this decision whether relator is a poor person entitled to the privilege of commencing and prosecuting his action under the provisions of § 514.040.

All concur.

      . Rule 77.03, Missouri Rules of Civil Procedure, effective Jan. 1, 1981, now is substantially the same as the first part of former Rule 77.04. It provides as follows:
      If the plaintiff is a poor person, the court may permit the plaintiff to commence and prosecute the civil action without making a cost deposit or furnishing security for costs.

      . All sectional references are to the Revised Statutes of Missouri, 1978, unless otherwise indicated.
      In its pertinent part, § 514.040 reads as follows:
      If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.

      . The Colorado statute, § 13-16-103, C.R.S. 1973 (1982 Supp.), authorizes the waiver of costs for impecunious litigants. That section provides in part as follows:
      "If the judge ... of any court ... is at any time satisfied that any person is unable to prosecute or defend any civil action or special proceeding because he is a poor person and unable to pay the costs and expenses thereof, the judge ..., in his discretion, may permit such person to commence and prosecute or defend an action or proceeding without the payment of costs....”

      . The rule, designated GCR 1963, 120.3, reads in its relevant parts as follows:
      "In instances where the person is not receiving public assistance, the court shall order waiver of the payment of all fees and costs as to a person in the action ... upon that person submitting ... an ex parte affidavit stating facts showing that person’s inability to pay those fees and costs because of indigency.”

      . The United States Supreme Court has held that a plaintiff need not be absolutely destitute to enjoy the benefit of § 1915(a). Adkins v. E.I. DuPont De Nemours & Co., Inc., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948). See also In re Smith, 600 F.2d 714, 716 (8th Cir.1979) (a plaintiffs ability to pay for small comforts should not prohibit a prisoner’s eligibility to sue as a poor person).


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Morris Edison CRAVEN, Petitioner-Appellant, and Barbara Faye Craven, Respondent.
    No. 13743.
    Missouri Court of Appeals, Southern District, Division One.
    April 12, 1985.

      David L. Wieland, Poole, Croessmann & Stevens, P.C., Springfield, for petitioner-appellant.
    Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for respondent.
   GREENE, Judge.

Petitioner, Morris Edison Craven, brought suit against his wife, Barbara Fay Craven, to dissolve their marriage, to decide the question of custody of their two sons, and to divide the marital property.

In her answer and cross-petition, Barbara asked for custody of the children, child support, maintenance, and a division of the marital property and debts.

After hearing evidence, the trial court dissolved the marriage, awarded Barbara custody of the two boys, $250 a month for support of the youngest child and $100 a month for support of the older boy, and $250 a month maintenance. The court awarded each party certain marital personal property, awarded Barbara an unimproved 10 acre tract of land owned by the parties valued at $13,000, subject to an indebtedness of $8,817.84, ordered Morris to pay the debts of the parties in the sum of $13,763.89 and gave Barbara a judgment against Morris in that amount to be satisfied by payment of the debts. The trial court also ordered Morris to pay Barbara’s attorney fees in the amount of $985.

On appeal, Morris contests the division of marital property, the order directing him to pay the debts of the parties, the action of the trial court in considering his earnings since the separation of the parties as marital property, the award of maintenance, and the order directing him to pay Barbara’s attorney fees, claiming insufficient evidence and erroneous application of law. While his legal arguments in support of these contentions cover 16 pages, they are not persuasive.

Viewing the record in a light most favorable to the prevailing party, and giving her the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, the evidence before the trial court was as follows.

Morris and Barbara were married for approximately 20 years. Two children were born of the marriage, Glen, who was 19 years old at time of trial, and James who was 16. Morris was 41 years old at time of trial and Barbara was 40. She was a high school graduate, with no particular career job skills, and was unemployed at the time of trial. Morris had completed a year and one-half of college and was employed as a truck driver, making coast-to-coast runs between California and Buffalo, New York. He projected that he would make between $18,000 and $21,000 per year. The parties had a limited amount of non-marital personal property, consisting primarily of personal effects, which was not valued by either party. Marital personal property, consisting primarily of furniture, appliances and a 1973 Chevrolet automobile valued at $5,225, was awarded to Barbara. Marital personal property awarded to Morris totalled $9,234, and included $6,000 in wages he had received since the parties separated on September 22, 1983. Barbara’s monthly expenses for herself and the two boys were $1,325 a month.

Barbara had been faithful to Morris during the marriage and had worked primarily as a homemaker, but had occasional short term jobs, the income from which went to the family. Morris commenced an affair with Cynthia Hayden in April of 1983, and began having sexual intercourse with her before he and Barbara separated on September 22, 1983. At time of trial, Morris was living with Cynthia, and they were planning to marry as soon as he was divorced. Cynthia was employed by the same company as Morris, rode in the truck with him, and was paid about $300 a month less than Morris, who at the time of trial was making $950 a month. A reasonable inference is that they were pooling income and paying expenses incidental to their living together.

During the period from the date of separation to the date of trial, which was about five and one-half months, Morris had only given Barbara $450 to support herself and the boys, during which time period she was forced to resort to charity and the sale of personal property to feed herself and the children. Morris acknowledged he had no good reasons for failing to support Barbara and the boys during this period.

This evidence more than justified the trial court’s action in this case. It is evident that even if Morris complies with the trial court’s judgment, Barbara must find employment outside the home in order to make ends meet. The trial court’s awards were not punitive, regardless of the blatant misconduct of Morris during the marriage, but were merely recognition of what he should contribute to the support of his wife and two children, considering he was the one who wanted out of the marriage so that he could marry another woman.

The trial court’s judgment is supported by substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. This being so, the judgment of the trial court should be, and is, affirmed. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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


author: HOGAN, Judge. CROW, Presiding Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard D. WAKEFIELD, Defendant-Appellant.
    No. 13246.
    Missouri Court of Appeals, Southern District, Division Three.
    April 16, 1985.

      Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

This case is a companion to State v. Wakefield, 682 S.W.2d 136 (Mo.App.1984). The same order of criminal activity is involved. The two records before us indicate that at least nine distinct criminal charges were filed against the defendant as a result of the Missouri State Highway Patrol’s investigation of the defendant’s trafficking in stolen motor vehicles and parts thereof during the period from November 20, 1980, to April 27, 1981. By order dated November 3, 1982, the Circuit Court of Reynolds County consolidated all the pending prosecutions into two distinct cases, “for trial and for dll actions from this point forward.” (Emphasis ours.)

In this case, which was tried before the reported companion case, the State filed a six-count information charging defendant with: 1) disposing of parts of a stolen 1979 GMC pickup truck in violation of § 570.080, RSMo 1978; 2) removing or defacing the manufacturer’s identification numbers on a 1979 GMC pickup in violation of § 301.400; 3) disposing of parts of a 1979 Jeep CJ7 in violation of § 570.080; 4) commission of forgery in violation of § 570.090.1(3) by altering the vehicle identification number on the body of a 1979 Jeep CJ7 so that the vehicle purported to have an ownership it did not possess; 5) receiving or retaining a stolen 1979 Ford Thunderbird in violation of § 570.080, and 6) removing or defacing the manufacturer’s identification number on a 1979 Ford Thunderbird in violation of § 301.400.

The cause came on for hearing on November 16, 1982. A jury panel appeared and the trial court read MAI-Cr.2d 1.02, omitting any reference to the offense charged in Count VI of the information. The voir dire examination was conducted. The panel was admonished, challenges for cause were considered and ruled on by the court, and the following proceeding then took place:

THE COURT: Now, once again, out of the hearing and presence of the jury, there being no one else in the courtroom, as the Court has already indicated ... when the Court read Instruction 1.02 it did not mention the offense set out in Count VI. You are precluded from offering any evidence, Mr. MacFarlane, with respect to Count VI. The Court wants to go on record as showing that the State of Missouri did not provide the Court with a prepared Instruction 1.02 and it was the Court’s oversight, of course, not to advise the jury of that count. However, the Court regrets it.
MR. MacFARLANE: Your Honor, by that, do you mean we cannot present evidence to ... the jury.
THE COURT: It will not be submitted to the jury. Evidence as it pertains to the other counts may be presented, but it will not be submitted to the jury.
MR. MacFARLANE: What I wanted to clarify, Your Honor, was that we do have evidence going to, which relates to the receipt of stolen property.
THE COURT: I understand that. You are not prevented from presenting evidence for that purpose. However, you will not be permitted to—
MR. MacFARLANE: Submit it?
THE COURT: That’s correct. The court regrets that, but once again, and I am sure you are not familiar with this Court’s procedure, we do expect the attorneys to provide MAI-CR 2nd 1.02. That wasn’t done. The Court read from the volume itself, Volume I, and omitted to call that to the attention of the jury. Anything else?
MR. MacFARLANE: Nothing from the State, Your Honor.
MR. SHAW: Nothing from the defendant.
THE COURT: The Court at this time, Mr. MacFarlane, hands you the official jury list, indicating that jurors 4 and 15 have been challenged for cause, leaving a panel of 24....

The trial proceeded to completion on five of the six counts pled in the information. The jury found defendant guilty upon all counts submitted. In accordance with the verdict and after considering defendant’s motion for new trial, the court pronounced sentence as follows: 1) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count I; 2) that defendant be confined for a period of 2 months for removing or defacing a manufacturer’s number on an automobile as charged in Count II; 3) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count III; 4) that defendant be confined for a period of 3 months for commission of forgery as charged in Count IV; 5) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count V, and that the said sentences run consecutively and not concurrently. Defendant was ordered confined to the Reynolds County Jail. We find no record disposition of Count VI. None of the counts disposed of by trial in the other Wakefield case dealt with a Ford Thunderbird.

In criminal cases, as in civil cases, an appellate court is bound to inquire into its jurisdiction of the appeal, whether or not the parties raise that issue, and the sufficiency of the judgment and sentence are matters of jurisdictional import. State v. Garrett, 642 S.W.2d 378-379[1][2] (Mo.App.1982). We have the opinion that in this case no final, appealable judgment has been entered.

In this case, the State joined separate and distinct offenses constituting several acts which were part of a common scheme or plan, as authorized by Mo.R.Crim.P. 23.-05. The kindred nature of Mo.R.Crim.P. 23.05 and Fed.R.Crim.P. 8(a) is such that federal precedents bearing on failure to dispose finally of one count of a multi-count information — as it affects appealability — are persuasive here. Generally, our courts have indicated that a criminal judgment is final both for the purposes of exhausting the trial court’s judgment and of triggering the defendant’s right of appeal when the sentence and judgment finally disposes of all issues in the criminal proceeding, leaves no questions to the future judgment of the court and is neither interlocutory nor conditional in any respect. Such, as we read the case, is the holding and substance of State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979).

The federal cases are more explicit. Those authorities hold without equivocation that unless a sentence or other authorized punishment has been imposed upon every count of a multi-count indictment, the criminal judgment is not final and appealable. United States v. Wilson, 440 F.2d 1103, 1104-1105[2-4][5] (5th Cir.1971), cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1972), and 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1976); United States v. Bronson, 145 F.2d 939, 944[10] (2d Cir.1944). See, generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction § 3918 (1976).

On the record before us, the appeal is premature because no disposition was made of Count VI of the information. The submission must be set aside. We are hesitant, however, to dismiss the appeal and require the defendant to take all the procedural steps required to appeal anew. Having consolidated the various charges, the trial court may again sever the crime charged in Count VI if it is so moved and the court considers it desirable. The State may still enter a nolle prosequi, subject to any objection defendant may make upon the grounds of double jeopardy if the State seeks to try Count VI at a later date, or the State may dismiss Count VI if it is so advised.

There is no doubt that this court may remand for the limited purpose of correcting the record. See: State v. Phroper, 619 S.W.2d 83 (Mo.App.1981) [re-sentencing only]; State v. Jackson, 599 S.W.2d 527 (Mo.App.1980); State v. Shipman, 560 S.W.2d 603 (Mo.App.1978). Therefore rather than dismiss the appeal, we shall hold the appeal in abeyance and remand the cause to the trial court for the limited purpose of disposing of Count VI. Upon receipt of a judgment or docket entry showing disposition of Count VI, the appeal will be reinstated. Cf. State v. Wilke, 560 S.W.2d 601 (Mo.App.1978). It is so ordered.

MAUS, J., concurs in dissent.

GREENE, C.J., and PREWITT, J., concur.

CROW, P.J., dissents.

CROW, Presiding Judge,

dissenting.

I respectfully dissent.

Assuming the six counts were properly joined in the single information per Rule 23.05 — defendant does not argue otherwise — the trial judge had discretion under Rule 24.07 whether to order the counts tried jointly or separately. State v. McCrary, 621 S.W.2d 266, 272[7] (Mo. banc 1981); State v. Jackson, 645 S.W.2d 725, 728[9] (Mo.App.1982).

It is clear that the trial judge, after realizing he had overlooked Count VI during the reading of MAI-CR 2d 1.02, decided that Count VI would not be tried with the other five. Perhaps, in the interest of maintaining a tidy record, he should have made a formal written entry spelling out that Count VI was being severed from the other five for purpose of trial. The fact remains, however, that Counts I through V were tried and Count VI was not. There was, consequently, a de facto severance of Count VI from the other five, which severance occurred before the jury was selected and sworn to try those five.

In these circumstances, I see no reason why appellate review of the five counts which were tried and reduced to judgment should not proceed. Each of those counts charged a separate crime, completely independent of each other. The outcome of each did not hinge on the outcome of any other.

The majority opinion holds, however, that the appeal is premature because no “disposition” was made of Count VI. Does this mean that if, on remand, the trial judge enters a formal order severing Count VI from the other five, appellate review of the judgment on Counts I through V will then proceed forthwith, utilizing the transcript, legal file and briefs already before us? If that is all the majority opinion holds, I am not deeply troubled, even though I see no need for such an order at this juncture, as a severance has in fact taken place by the trial, and resultant judgment, on Counts I through V.

The aspect of the majority opinion that most alarms me is the implication that a formal severance of Count VI from the other five may not be enough to make the judgment on those five appealable. The majority opinion appears, at least to me, to hint that after the trial judge severs Count VI, the prosecutor must dispose of that count by a nolle prosequi or a dismissal, and only then will the judgment on Counts I through V be appealable. If that is what the majority opinion intends to say, I believe it plants the seed for a bitter harvest.

Situations can easily arise where multiple counts against one defendant are properly joined in one information, and yet it would be an abuse of judicial discretion to order all counts tried jointly. Other situations (the instant case being an example) can occur where one or more counts of a multiple-count information against one defendant are, for sundry reasons, not tried with the other counts. In such situations, must the prosecutor nolle or dismiss all untried counts before there can be appellate review of those that were tried and reduced to judgment? If not, must appellate review be kept in limbo until the remaining counts are reduced to judgment? Would the latter procedure be fair to an incarcerated defendant?

It is conceivable that in a multiple-count case against one defendant, one count could be severed and tried, with the trial receiving great notoriety. If the defendant were convicted on that count, and if the State pursued the remaining count or counts, the publicity surrounding the first trial might require a change of venue for the trial of the remaining count or counts. Should that occur, and should that trial also result in a conviction, it would obviously be impossible for one court to enter one judgment disposing of all of the tried counts.

A situation could also arise where two defendants were properly charged, in separate counts in a single information, and tried together. If the jury returned a verdict of guilty on one defendant, but was unable to reach a verdict on the other defendant, must the first defendant await appellate review until there is a “disposition” as to the second defendant?

All of these vexing problems can be avoided by recognizing that the judgment on Counts I through V in the instant case is ready for appellate review and that no good reason exists for postponing it. If, in the future, the State undertakes to try defendant on Count VI, and if defendant believes the State, by reason of the trial judge’s handling of Count VI below, is barred from pursuing that count, defendant can raise the issue and it can be addressed. We note, however, that defendant voiced no objection when the trial judge announced that Count VI would not be submitted to the jury with the other five.

The only Missouri case relied on by the majority, State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979), is inappo-site. There, a trial judge, after imposing sentence and rendering judgment in a criminal case, undertook to set the judgment and sentence aside for the purpose of obtaining a supplementary presentence investigation report. On application by the defendant, the Supreme Court of Missouri prohibited the judge from resentencing the defendant, ruling that the judge had exhausted his jurisdiction upon entry of the original judgment and sentence and that the judge had exceeded his jurisdiction in purporting to set the same aside. Nothing like that occurred here.

This Court once reviewed, in separate appeals, three judgments arising from separate trials of different individual counts of a multiple-count information against the same defendant. State v. Kimball, 613 S.W.2d 932 (Mo.App.1981); State v. Kimball, 620 S.W.2d 29 (Mo.App.1981); State v. Kimball, 624 S.W.2d 168 (Mo.App.1981). The lack of a “disposition” as to all counts was obviously no bar to appellate review there.

I would consider the instant appeal on the merits and leave the State and the trial judge to decide, in due course, what to do about Count VI.

      . References to statutes and rules are to RSMo 1978 and Missouri Rules of Court (13th ed. 1982), except where otherwise specifically noted.

      . Rule references are to Missouri Rules of Criminal Procedure (13th ed. 1982).


text:
    In re the MARRIAGE OF Donley E. WEST, Petitioner-Respondent, and Kathy Jo West, Respondent-Appellant.
    No. 13787.
    Missouri Court of Appeals, Southern District, Division One.
    April 16, 1985.
    Wayne Gifford, Waynesville, for petitioner-respondent.
    Scott B. Tinsley, P.C., Springfield, for respondent-appellant.
   GREENE, Judge.

Petitioner, Donley E. West, filed suit seeking to dissolve his marriage to Kathy Jo West. He requested that the marital property be divided, and that he be granted custody of the two minor children of the parties. In her cross-petition, Kathy also sought custody of the children.

Trial by court was held, after which a decree was entered dissolving the marriage and dividing the marital property. Kathy was awarded temporary custody of the children, and Donley was to pay temporary child support and have visitation rights. The trial court further ordered that a home study be made by the Division of Family Services and stated that after it was received, a final custody order would be entered. Neither party objected to this procedure.

A “home assessment” report was subsequently filed with the court. The social worker later filed an amended report which specified the source of several hearsay statements made in the original report. The trial court then entered a final order, placing custody of the children in Donley, with certain specified visitation rights being granted to Kathy.

On appeal, Kathy contends that the final custody order was not supported by substantial evidence, was against the weight of the evidence, and that the home assessment study was inadmissible, and should not have been considered as evidence by the trial court.

Our review is limited by the dictates of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), which holds that a final order or judgment in a court-tried case will be upheld if it is based on substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. We exercise great caution in setting aside a judgment in such cases on the ground that it was against the weight of the evidence, and only then with a firm belief that the trial court’s judgment was wrong, realizing that the trial court is in a much better position than we to judge the credibility of the witnesses and to determine the weight to be given to their testimony. Therefore, we give the prevailing party the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, disregarding all evidence to the contrary.

The evidence in this case is not exactly overwhelming in favor of either party. Donley is steadily employed as a lineman for the Laclede Electric Co-op. His base gross pay is $424.80 for a 40 hour week. While he is working, the children are taken care of by Cindy Dykes, Donley’s girl friend. Donley and Cindy have taken care of the children 75% of the time during the separation of the parties, after Donley filed his petition. The children are neatly dressed, clean, well fed, and healthy.

Kathy was 27 years old at time of trial, and was unemployed. Before the divorce, Kathy developed a liaison with Tom Lindly, a cook for K.P. Services at Fort Leonard Wood, and was living with him at the time of trial. Tom had lived with Angie Morin before moving in with Kathy. At about midnight, two weeks before trial, Angie and Kathy had a fight at the Star Lounge at St. Robert, Missouri, presumably over Tom’s affections. About “6 or 8” months before trial, Tom had “produced a firearm” and pointed it at Angie. There is nothing in the record to indicate what kind of firearm it was, or what precipitated the incident.

Kathy was not a high school graduate and had no career job skills. She previously worked as a bar maid in a tavern at Devil’s Elbow, as a waitress in various restaurants and as a distributor for “Goodies Galore ‘N’ More,” a company specializing in the sale of various and sundry sexual stimulants and other erotica. Kathy, as a “consultant” for Goodies Galore, peddled the items at house parties, in her words, “like Tupperware.” She was fired from her last job as a waitress because of an altercation with another waitress. Kathy planned either to go to beauty school or learn to become a secretary. No specific plans were in evidence as to how the children would be taken care of while she was engaged in these pursuits. When Kathy had the children, she and Tom slept in one bedroom, her daughter in another, and her son on a couch. In addition to Lindly, Kathy admitted having had another lover during her marriage to Donley.

The record indicates that the marriage between Donley and Kathy was a stormy one, with frequent arguments and fights in the presence of the children. Kathy gave as well as she got and, on one occasion, gave Donley a black eye and, on another, scratched his face during an altercation. The little boy had told Kathy, on several occasions, that he wanted to live with his father. Kathy married Lindly after the dissolution decree was final.

The after-trial home study which was filed on April 11, 1984, revealed that Kathy, who had temporary custody of the children, had again taken a job as a waitress. In connection with child rearing practices, the report stated:

Ms. West disciplines her children by spanking them or occasionally having them sit on a chair. This discipline appears to be rather ineffective as the children don’t usually respond to this and continue their inappropriate behaviors. This was observed by this worker. Ms. West drops them off at her ex-husband’s when she goes to work in the evenings. He feeds them supper and keeps them in the evenings and usually all night. Many times she intends to pick them up at 10:00 p.m. but calls and asks if they can be kept all night. Donley feeds them breakfast and drops them off at her house on his way to work. There are indications that this is quite upsetting to the children, especially Brian.

On April 24, the social worker wrote the judge the following letter:

This letter is in reference to the paragraph ‘Child Rearing Practices.’ It should be noted that the statements, ‘He feeds them supper and keeps them in the evenings and usually all night’ and ‘Many times she intends to pick them up at 10:00 p.m., but calls and asks if they can be kept all night’, were made by Donely [sic] West, not Kathy Jo West, and she states they are incorrect. She stated he does not feed them supper except occasionally. If they are kept all night, it is because Brian wants to stay with his father, not because she does not want them. She added she usually gives in to keep Brian happy. She added Don-ley does not feed them breakfast, as they are hungry when she gets them. She admitted this was upsetting to Brian, but plans to start counseling for him and herself in May.

The home study report indicated the children were well treated and clean while in Kathy’s custody, and that the house where Kathy, Lindly and the children were living was “well kept up, clean, and nicely furnished.”

In its order of final custody, the trial court, while granting primary custody of the children to Donley, gave Kathy six weeks of visitation during the summer, commencing June 15, every other weekend from Friday evening until Sunday evening, plus alternate Thanksgiving, Christmas and Easter holidays. The order also provided that Donley pay Kathy $60 for each week she has the children during the summer.

From this evidence, we conclude that the trial court’s final order of custody is supported by substantial evidence and is not against the weight of the evidence. While portions of the home study report were hearsay, no objection was made at time of trial to the judge’s announced intention of procuring a home study and considering its contents as evidence before making the decision of who should have custody of the children.

Claims of error concerning reception of evidence that are raised here for the first time are waived. Even if we were to hold that the report was inadmissible, there was ample evidence in the record, aside from the home study, to uphold the final custody order.

Judgment affirmed.

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


text:
    In re the MARRIAGE OF Olen L. TATE, Petitioner-Respondent, and Peggy Tate, Respondent-Appellant.
    No. 13765.
    Missouri Court of Appeals, Southern District, Division One.
    April 16, 1985.

      Peter H. Rea, Branson, Connie L. Wible, Springfield, for petitioner-respondent.
    Gary W. Allman, Cantwell, Allman and Smith, Branson, for respondent-appellant.
   GREENE, Judge.

In this dissolution action filed by Olen Tate against his wife, Peggy, the trial court, after hearing evidence, made written findings of fact, conclusions of law, and judgment. The trial court dissolved the marriage, awarded custody of the minor adoptive child of the parties to Peggy, and granted Peggy $100 a month for support of the child. No maintenance was awarded to either party.

In its division of the couple’s marital property, the trial court awarded Peggy real and personal property, including the family farm. The farm was free and clear of all encumbrances, and valued at $30,000. The trial court awarded Olen certain items of personal property, including hunting and fishing equipment, tools, a 1979 Ford pickup, and a mobile home acquired by Olen after the parties separated. In an apparent effort to make an equitable division of the couple’s assets, the trial court ordered Peggy to pay Olen $8,000. Since Peggy had no cash, and was not awarded anything in the property distribution that could be converted to cash without seriously hampering her ability to maintain a home for herself and the child, Jenna, the trial court ordered her to execute a note for $8,000 payable to Olen and secured by a deed of trust on the farm. The note was to be paid at the rate of $100 a month, and was to be paid in full within 15 years. The decree provided that instead of exchanging $100 child support and note payment checks, Olen would merely credit Peggy with the $100 note payment each month until Jenna was emancipated, rather than make the child support payment. It also provided that in the event the farm was sold, any balance remaining unpaid on the note would be paid from the sale proceeds.

In her appeal, the sole point relied on by Peggy is that the $8,000 awarded to Olen, and the manner in which it is to be paid, is not supported by substantial evidence, is against the weight of the evidence, and is based on an erroneous application of law. While we do not agree with her contention in its entirety, part of her argument has merit.

The statutory law of our state requires that the trial court make a just division of the marital property, taking into consideration all relevant factors, including those specifically set out in the statute. § 452.-380, RSMo 1978. Those enumerated factors are:

1) the contribution of each spouse to the acquisition of marital property, including the contribution of a spouse as a homemaker;

2) the value of the property set apart to each spouse;

3) the economic circumstances of each spouse, including the desirability of awarding the family home to the spouse having custody of any children; and

4) The conduct of the parties during the marriage.

In each case, balancing the equities, in an effort to fairly divide marital property, is the primary responsibility of the trial court. We should refrain from second-guessing trial courts in their exercise of this important judicial function, and should intervene only when we are firmly convinced they have abused their discretion. Budzinski v. Budzinski, 632 S.W.2d 527, 529-530 (Mo.App.1982).

A review of the record indicates that there is substantial evidence to support a finding that Peggy not only needed the family, farm as a place to live for herself and Jenna, but that she had paid a substantial part of its purchase price of $25,000 with over $20,000 in cash she had received from the sale of her solely owned Kansas property. In addition, after the couple moved to Missouri from Kansas, where they had been living in Peggy’s house, she received a settlement of $19,500, after attorney fees, for a job related injury, which was spent for the benefit of the family, including three children of Olen’s by a previous marriage who were living at the farm. Peggy has no job skills, is permanently disabled as the result of her back injury, and her only income, in the sum of $496 a month, is obtained by taking care of an elderly couple who live in the neighborhood. This work is not constant, and she is paid $124 a week take home pay when she does work. She also sells milk from two cows, and sells some eggs in season, but the amount of this income was unspecified and is not constant.

Her monthly expenses, totaling $562, obviously were miscalculated since they contain only $40 a month for food and nothing for clothing, medical and dental care, and other related family expenses. Assuming she worked full time, and even if she received the $100 a month child support ordered by the court, her monthly income would be $596 a month, which would only leave her $34 a month to supply the omitted necessities mentioned above.

Forcing Peggy to give up the $100 a month child support payment and allowing Olen to “credit” that amount on Peggy’s $8,000 “debt,” to which the trial court said he was entitled as a portion of his share of the property division, is not only unsupported by any competent evidence, but is also destructive of the obvious intent of the trial court, which was to let Peggy and Jenna live on the farm during Jenna’s minority. Where such is the result of a property division, that result should not be approved by an appellate court. In re Marriage of Parrett, 668 S.W.2d 654, 655 (Mo.App.1984).

That part of the judgment awarding Olen $8,000 as his share of the marital property is supported by substantial evidence, as he fixed up Peggy’s Kansas home before it was sold, built a barn and improved the house on the farm, and contributed his wages, plus $15,000 he received as a settlement in a job related accident, to the support of the family during the marriage. Under the facts, the payment of the $8,000 from Peggy to Olen should have been deferred until 1) Jenna reaches her majority, or becomes emancipated, or 2) the farm is sold by Peggy, or 3) Peggy, at her option, obtains the funds from some source, such as a loan secured by the farm, to pay Olen the $8,000.

That portion of the trial court’s judgment ordering Peggy to execute a note secured by a deed of trust on the farm, in the sum of $8,000, payable to Olen at the rate of $100 a month, and all references thereto, is reversed and set aside. All other aspects of the trial court’s judgment are affirmed, and the cause is remanded to the trial court for entry of an amended judgment awarding Olen $8,000 as his share of the marital property in addition to the other items awarded him in the trial court’s original judgment, that such award bear no interest, and that it is collectable only when one of the three events mentioned above transpires.

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


author: SWOFFORD, Judge.

text:
    Larry DURFEY, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Respondent.
    No. WD 34205.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    Larry E. Scott, Brown, Douglas & Brown, St. Joseph, for appellant.

      Charles S. Wilcox, Wilcox, Houts & Douglass, St. Joseph, for respondent.
    Before TURNAGE, C.J., and KENNEDY, and SWOFFORD, JJ.
   SWOFFORD, Judge.

This case had its origin as a result of a collision of a tractor-trailer truck owned and being operated by Larry Durfey, appellant (hereinafter referred to as plaintiff), in an eastbound direction on a gravel street commonly known as Florence Road in St. Joseph, Missouri, and a switch engine owned and operated by the defendant northbound on switch tracks. Florence Road crosses the switch tracks at approximately right angles. This collision occurred on September 16, 1980, in an industrial area largely devoted to grain elevators and allied activities.

The plaintiff filed an action for damages based upon the cost of repairs to his trucking equipment, the rental cost for substitute equipment and resulting loss of hauling profits. No personal injuries are involved.

This action was filed in the Associate Circuit Court of Buchanan County by petition in two counts. Count I charged defendant with specific negligence in violation of both the terms of Missouri’s statutes and ordinances of the city of St. Joseph governing use of unmarked public railroad crossings. Count II charged the defendant under Missouri’s humanitarian negligence doctrine.

The case was tried before an associate circuit judge and resulted in a judgment in favor of the plaintiff and against the defendant in the amount of $4,318.35. Thereupon, the defendant filed an application for a trial de novo in the circuit court, §§ 512.180, 512.190 and 512.310, RSMo 1978, effective January 2, 1979.

The plaintiff in that court filed his first amended petition abandoning all allegations of specific negligence and choosing to rely solely upon humanitarian negligence charged in Count II upon which the case was submitted. The trial was court-tried without a jury on June 8, 1982, and judgment was entered in favor of the defendant on June 24, 1982, and this appeal followed.

Neither party made request for findings of fact or conclusions of law, Rule 73.01(a). The trial court, however, made the findings, a mixture of law and facts, which may be thus summarized:

1. The plaintiff abandoned any claim of primary negligence and submitted his case solely on humanitarian negligence.
2. At all times the switch engine was approaching the crossing, the whistle, horn and bell were being sounded and that it approached at 3-4 miles per hour while the plaintiff’s truck equipment approached at 3-5 miles per hour.
3. The humanitarian negligence doctrine does not come into play until plaintiff has come into a position of imminent peril and it is the then existing factual situation which must be considered and neither prior nor antecedent negligence of either party may be considered.
4. No crewman on defendant’s engine was in a position where he saw or could have seen plaintiff’s truck until it was upon the crossing and in a position of imminent peril and the engineer could not then with the means at hand have avoided the collision by slowing or stopping.
5. Even assuming defendant had a crew member on the left or west side of the engine, there was no evidence that such crewman after seeing plaintiff in a position of imminent peril could have then warned the engineer in time for the engineer thereafter to have stopped or slowed the engine and avoided the collision.

Since the plaintiff in this case elected to submit his case solely on the humanitarian doctrine of negligence, a judicially declared rule of law in Missouri, one of the primary legal considerations on this appeal by this court is what effect the recent decision in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), decided on November 22, 1983, as modified on the court’s own motion on December 20, 1983, had, if any, upon the decision in this appeal. The bench, bar and many sectors of business and industry are acutely aware of the ruling in Gustafson. It is, indeed, a decision with great impact and far-reaching implications in Missouri. By adopting the doctrine of comparative fault in tort cases the Supreme Court, as stated by Billings, J., in his concurring opinion, at 1. c. 28:

“Historically, contributory negligence, last clear chance, and humanitarian negligence, were born by judicial decisions. By judicial decision we bury them.” (emphasis supplied)

The court after declaring the demise of doctrines of contributory negligence, last clear chance and humanitarian negligence, stated at l.c. 15:

“All that remains is for us to find the simplest and most clear, concise, and direct method for adopting a comprehensive system of comparative fault for the trial of tort cases and a procedure for accomplishing the transition to comparative fault.... Except for the instant case and interim cases where the parties can mutually agree, comparative fault shall apply only in cases in which the trial begins after the date of the publication of this opinion in the advance sheets of the Southwestern Reporter. Insofar as possible this and future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act ...” (emphasis supplied)

The collision involved in this case, the first trial in the Associate Circuit Court, the de novo trial in the Circuit Court, the judgment and the resulting appeal to this court all transpired before the decision in Gustafson, so the old rules and decisions dealing with humanitarian negligence will be applied as determinative of this appeal.

This long-standing doctrine was based upon five (5) basic and fundamental requirements of fact, all of which were necessary to be shown before the doctrine became applicable, as stated in the much cited case of Banks v. Morris and Co., 302 Mo. 254, 267, 257 S.W. 482, 484-85[2] (banc 1924), wherein the court defines the essential elements in the following language:

“(1) Plaintiff was in a position of peril;
(2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (emphasis added)
(3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others;
(4) he failed to exercise ordinary care to avert such impending injury; and
(5) by reason thereof plaintiff was injured.”

These principles of humanitarian negligence remained a fundamental and judicially declared part of the negligence law of Missouri until Gustafson, supra. Of course, much controversy arose in both trial and appellate courts revolving around the meaning and applicability of the principles declared in Banks v. Morris & Co., within the factual context of each case. From these emerged judicial refinements of Banks v. Morris & Co., which, in turn, became firmly fixed and binding upon future litigation. One such applicable rule was expressed in Eddings v. Keller, 400 S.W.2d 164, 168[3] (Mo.1966), as follows:

“In a humanitarian case it is only when a position of imminent peril has arisen that the doctrine comes into play and seizes upon the then existing situation, in effect ‘blotting out primary or antecedent negligence. ’ Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930 [(1958)] and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury.” (emphasis the Court’s)

See also Carney v. Stuart, 331 S.W.2d 558, 562[4] (Mo.1960); and Hill v. Barton, 579 S.W.2d 121, 130[21-25] (Mo.App.1979).

In Yarrington v. Lininger, 827 S.W.2d 104, 108 [3-5] (Mo.1959), this principle was stated, l.c. 108, as follows:

“Whatever transpires from the standpoint of either plaintiff or defendant prior to the time that plaintiff enters into a position of imminent peril does not affect the rights of the parties thereafter.” (emphasis supplied)

The authority of this court and the scope of its review of a judgment on a court-tried case under Rule 73 is well-defined and restricted. Some confusion and difference of opinion arose from the meaning of the original terms and subsequent amendments of Rule 73. However, most of these were put to rest by the decision in Murphy v. Carron, 536 S.W.2d 30, 32 [1, 3] (Mo. banc 1976), wherein the court said, l.c. 32:

“Accordingly, appellate ‘review ... as in suits of an equitable nature,’ as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

The subsequent appellate cases in Missouri have strictly adhered to this rule in Murphy v. Carron. See Plank v. Plank, 670 S.W.2d 185, 189 [2, 3] (Mo.App.1984); Busby v. Busby, 669 S.W.2d 597, 599 [3] (Mo.App.1984); Vanderson v. Vanderson, 668 S.W.2d 167, 171 [6,7] (Mo.App.1984); and Missouri Digest, Appeal and Error Keys 846(1), 1009(4), 1010.1(6) and 1012.-1(1).

Further, on an appeal from a court-tried case, “[d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01. See also: Plank v. Plank, supra, at 189 [3]; Sivils v. Sivils, 659 S.W.2d 525, 528 [3] (Mo.App.1983); and R.D.L. v. J.G.S., 659 S.W.2d 324, 324 [1] (Mo.App.1983).

Another firmly established judicial rule which must be considered on this appeal is that “substantial evidence” as used in Murphy v. Carron, supra, is evidence from which the trier of the facts reasonably could find the issues in harmony therewith. Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 335 [2] (Mo.App.1983).

The trial court is clothed with broad discretion in this type of trial and this court should not rule that such discretion was abused except when the court’s ruling runs against the “logic of the circumstances” then before the court. In State ex rel. Missouri Highway and Transportation Commission v. Kersey, 663 S.W.2d 364, 368 [5] (Mo.App.1983), the court states, l.c. 368:

“If reasonable men can differ about the propriety of the action taken by the trial court, then the trial court did not abuse its discretion.”

In Plank v. Plank, supra, at 189 [3-6], citing Ware v. Ware, 647 S.W.2d 582, 583-84 [1, 2] (Mo.App.1983), the court held that where there was a conflict in the evidence in a court-tried case the court was empowered to accept or reject all, part or none of the testimony and stated, at 189:

“Further, we must accept as true the evidence and permissible inferences therefrom favorable to the prevailing party and disregard the contradictory evidence.”

With the above principles of the review powers and obligations of this court in this type of appeal in mind, it is necessary to summarize the evidence in the trial as it bears upon the doctrine of humanitarian negligence.

Larry Durfey, plaintiff, a resident of Farragut, Iowa, was the owner-operator of a tractor-trailer trucking rig engaged in hauling agricultural and milling products in and outside Iowa to mills and business projects, including some located in St. Joseph, Missouri, in the area where the collision occurred. He operated this business as an independent contractor. His rig measured 60 feet in overall length and was the equipment involved here on September 16, 1980, at approximately 9:45 a.m. Prior to the collision, he had delivered a load of grain to a mill south of Florence Road, had proceeded north toward Florence on a driveway running parallel and west of the switch tracks on which the defendant’s engine also was operated north toward Florence. The plaintiff, when reaching Florence, turned east on Florence and because of the exceedingly rough surface of the first (western) switch tracks he was watching through his rearview mirrors to make sure that his trailer followed safely and without complications. He could give no estimate as to the distance separating the west and east track on which the collision occurred.

After he had passed the first switch track and was headed east toward the point of collision on the second (east) track, he did not see the defendant’s switch engine until his front bumper and “perhaps maybe a foot of the nose would have been on the track.” His speed was less than 5 mph (estimates 2-3 mph) and he was in first gear. He braked his truck and then decided to “hit it” and “accelerated as hard as he could to get across.” The trailer was hit on the right side at about the center (Plaintiff’s Exhibit No. 7).

He testified that the crossing was unmarked, there was no flagman, and he heard no whistle or bell. He was familiar with the crossing and had been over it many times.

Gary Hanson testified on behalf of the plaintiff. On the day of the collision he was an employee of the Pillsbury Company in the scale house, Plant B, located about 100 feet north of the Florence Road crossing. He heard no whistle or bell.

James B. McAsey, the defendant’s engineer, was called by the plaintiff as an adverse witness. He had 25 years experience as an engineer and at the time of the collision was servicing the tracks in question. At the time, this job was being done with a four-man crew, engineer and three switchmen. At the time of the occurrence, he was operating the engine, which had no cars attached, in a northerly direction approaching Florence crossing. His engineer’s station was on the right side (east) and at the rear of the engine. From this position he had no visibility to the west for eastbound traffic on Florence because of the engine bulk ahead of his position. The engine had an overall length of 53-55 feet. As the engine approached Florence, one of the switchmen was on the steps toward the rear on the east side, from which position he had no visibility to the west; the other two switchmen were following the engine on foot some distance to the south.

He testified that as he approached the crossing, he was sounding the whistle, the engine bell was ringing and the headlight was on. He approached at a speed of about 5 mph. His first sight of Durfey’s eastbound truck was when the front end was passing “right by the front end” of the engine. He applied the engine brakes but could not avoid the collision by stopping or slowing the engine short of impact. At a speed of 3-5 mph with full application of the air, the engine would stop in about 8-10 feet.

The plaintiff then rested his case and the defendant offered the following testimony:

Randy West was a switchman employed by the defendant and assigned to the switching here involved. On September 16, 1980, just before the collision, he was riding on the engine and was standing on the right (east) rear of the engine at the steps. From this position, he could not see traffic on Florence Road coming from the west. The speed of the engine was about 3-4 mph, the engine bell was ringing, the whistle was being blown, and the headlight was on. He first knew that there was trouble when he saw the cab of the truck come across in front of the engine. At that time, the engineer applied the emergency brake.

Steven Palmer was a switchman employed by defendant and working on the operations here involved on September 16, 1980. At the time of the collision on Florence, he was walking on the track following the engine on the west side about ten car lengths, (about 500 feet to the south). He heard the engine’s horn blowing as the engine approached Florence.

Richard Thompson was the foreman of the switch crew on September 16,1980, and was on the track on foot, 5-7 car lengths (250-350 feet) south of the crossing, looking to the south so that he did not see the collision. He heard the engine’s bell and whistle as the engine proceeded north.

While this evidentiary record is somewhat sparse and, in hindsight, several questions may arise, these facts bearing on the issues for decision emerge as established beyond dispute under Banks v. Morris and Co., supra; they are that when the plaintiff’s truck reached the track or so close thereto as to be unable to stop before reaching the track on which the engine was moving, he and his equipment were in a position of peril. Further, it is beyond dispute that the plaintiff’s equipment sustained damage as a result of the collision. Also, the facts are undisputed that neither the engineer from his position at the rear of the engine on the east side nor the switchman riding the engine on the steps on the east side could see the truck until the front end thereof passed in front of the engine and came into view on the east side. Also, the evidence is undisputed that the moment the engineer saw the plaintiff’s truck, he applied the brakes but could not thereby avoid the collision.

The evidence was conflicting as to whether or not the engineer was sounding warnings as he approached Florence Road by whistle and bell. The trial court found that he was using those appliances to give such warnings and this court holds that such finding of fact was supported by substantial evidence, and this court will not disturb such finding.

Appellant argues in his brief that the engineer had “appliances” that he did not use to avert the collision in that no member of the crew was placed in a position to observe eastbound vehicles on Florence Road so that he could pass verbal warnings to the engineer, and further, that no flagman was placed at the crossing. If by any theory of humanitarian negligence a switchman can be placed in the category of “appliance” or “means”, research has not disclosed such authority. In any event, if such failure on the part of the defendant or its crew was in fact “negligent”, it would certainly be primary or antecedent to the plaintiff’s peril under the authorities cited.

In this connection, this case comes within the principle stated in Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784 (1941). The court stated 148 S.W.2d at 1.c. 791:

“We do not mean that a defendant under a duty and in a position to watch will be excused merely because he refuses to turn his head and look; but if where he is when the peril begins and continues he cannot see, it makes no difference what prior negligence reduced him to that situation. It is a question of present ability.” (emphasis supplied)

The trial court’s judgment, the record on which it was based, and briefs of counsel have been carefully reviewed, and this court concludes that under Rule 73, Murphy v. Carron, supra, and authorities cited, supra, that the trial court did not err nor did it violate the proscriptions upon the scope of review herein.

The judgment is affirmed.

All concur.


author: BERREY, Judge.

text:
    Howard C. ORDO, D.D.S., Respondent, v. MISSOURI DENTAL BOARD, Appellant.
    Nos. WD 35825, WD 36152.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    Dennis K. Hoffert, St. Louis, for appellant.
    Robert Frager, Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   BERREY, Judge.

Howard C. Ordo is a practicing dentist who entered into a contract with Alexus Administrative Services, Inc., a general business corporation. The Missouri Dental Board (hereinafter MDB) filed a complaint against Ordo as a result of his contract with Alexus. The MDB and Ordo entered into a “Joint Stipulation of Facts” and requested the Administrative Hearing Commission of Missouri (hereinafter AHC) to render its Findings of Fact. As a result of the AHC’s Findings of Fact, MDB suspended Dr. Ordo’s license to practice dentistry for one (1) year and placed him on five (5) years probation.

Dr. Ordo subsequently filed a Petition for Judicial Review in the Circuit Court of Jackson County, Missouri. The circuit court reversed the decision of MDB and discharged Dr. Ordo. The timely filed post-trial motions of MDB were overruled.

MDB appealed to this court and subsequently the respondent was granted leave to file his cross-appeal from the decision of MDB.

MDB filed a complaint against Dr. Ordo on March 18, 1982, alleging that on July 8, 1981, Dr. Ordo entered into an agreement to provide general dental services with Alexus Administrative Services, Inc., a general corporation. MDB claimed this was unprofessional conduct in violation of § 332.321.1(2)(f), and that as a result of the agreement with Alexus, Ordo was fee splitting contrary to § 332.321.2(6) and assisting an unlicensed corporate entity to practice dentistry thereby doing violence to § 332.321.l(2)(d).

The parties entered into a “Joint Stipulation of Facts” wherein they stipulated that the agreement Dr. Ordo entered with Alex-us was prepared by a duly licensed Missouri attorney, and that the attorney for Dr. Ordo had consulted with the legal jurisprudence professor at the University of Missouri-Kansas City Dental School as to the legality of said contract, and that the agreement was in compliance with Chapter 332, RSMo.

Despite this stipulated fact the AHC commissioner in his Findings of Fact found that “after said consultation, the attorney advised respondent of the merits of the agreement.” Such a finding is not supported by the stipulation.

The AHC did not address the untimely and unseemly delay between the MDB’s notice of this agreement on August 8,1981, and the filing of the complaint on March 18, 1982. The parties further stipulated that an agreement “essentially identical in material and relevant provisions” with the agreement in question was previously used between Dr. Ordo and Wayne Minor Dental Center and is presently used by said “medical center.”

The fact that the MDB is permitting others to operate under similar agreements suggests condonation of this type of agreement in certain instances by MDB. The Findings of Fact by the AHC acknowledge that this agreement is “Substantially similar to other contracts currently in operation in this state.” The parties further stipulated that prior to the MDB filing its formal complaint Dr. Ordo had altered his business relationship with Alexus so as to conform with Chapter 332, RSMo, a fact overlooked by the AHC.

The execution of the agreement between Alexus and Ordo was not in itself a violation of law, nor can it be inferred that because Ordo later altered his business dealings with Alexus that he had, in fact, performed under the agreement.

The stipulation between Dr. Ordo and the MDB is silent as to any act by Dr. Ordo to perform the agreement. There is no evidence that Dr. Ordo did any dental service under the agreement or that he was paid any salary by Alexus. The Findings of Fact by the AHC are also void of any reference to the performance by Ordo under the agreement or of payment to him for dental services rendered.

It is the performance of the terms of the agreement that makes actionable the conduct. Conclusions unsupported by facts, evidence, or in this case, the Joint Stipulation are not sufficient to justify a determination of wrong doing on the part of Dr. Ordo.

The findings of the AHC and the MDB are not supported by competent and substantial evidence based upon the whole record, as required by the holding in State Board of Registration for Healing Arts v. Finch, 514 S.W.2d 608, 616 (Mo.App.1974).

Furthermore, the failure of the MDB to obtain a stipulation or present evidence that establishes Dr. Ordo’s performance of the agreement is a critical deficiency. In Consumer Contact Co. v. State Dept. of Rev., 592 S.W.2d 782, 786 (Mo. banc 1980), the court noted that the failure of the State to introduce city and county ordinances was fatal as the court could not take judicial notice of them. The department offered no evidence to support the existence of the alleged ordinance and without the alleged ordinance in evidence there was not sufficient evidence in the record to sustain the department’s ruling. The decision of the trial court upholding the Department of Revenue’s ruling was reversed.

In the instant case there is not sufficient evidence in the record to establish that Dr. Ordo ever performed under the terms of the agreement or received monies under the agreement. “In determining whether administrative findings are supported by competent and substantial evidence upon the whole record, this court may consider only the record that was before the administrative body.” Consumer Contact Co., supra, 785; Barnes Hospital v. Missouri Commission on Human Rights, 661 S.W.2d 534, 535-6 (Mo. banc 1983).

The judgment of the circuit court reversing the decision of MDB is sustained. However, the judgment of the circuit court discharging Dr. Ordo is reversed as having been improvidently entered. The entire cause is remanded to the circuit court with directions to remand the cause to the AHC with directions to set aside its ruling and with further instructions to thereafter remand the cause to the MDB to dismiss its complaint against Dr. Ordo.

All concur.

      . All statutory references are to RSMo 1978. Section 332.321 was superceded in 1981 and again in 1983, but those enactments were subsequent to Ordo’s complained of actions and are inapplicable in the instant case. MDB has acknowledged this by filing its complaint with reference to § 332.321 as it existed in 1978.


author: PER CURIAM:

text:
    Robert GONNELLA, Appellant, v. Lewis WALKER, Director of Education, Missouri Division of Education, Respondent.
    No. WD 36330.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    Robert Gonnella, Jefferson City, for appellant.
    John Ashcroft and Melissa Corbin, Jefferson City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM:

Plaintiff appeals from an order of dismissal of his petition on ground of its failure to state claim upon which relief could be granted. Petition alleged that defendant, Director of Education for the Missouri Division of Corrections, had wrongfully withheld the results of plaintiffs general educational development (GED) test and had failed to give him credit therefor and prayed certain relief.

Judgment affirmed. Rule 84.16(b)


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John POWERS, Defendant-Appellant.
    No. 13655.
    Missouri Court of Appeals, Southern District, Division One.
    April 23, 1985.
    William L. Webster, Atty. Gen., T. Chad Farris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Public Defender Comm., Joplin, for defendant-appellant.
   ORDER

PER CURIAM.

A jury was waived and defendant was court-convicted of two counts of sexual abuse in the first degree in violation of § 566.100.1(2), Y.A.M.S. The court sentenced defendant to a three-year term of imprisonment on each count with the sentences to run concurrently. Defendant appealed on the ground that the evidence was insufficient to sustain the conviction.

The female victims are sisters who were nine and six years old in the summer of 1982. Defendant is their uncle. After being found competent to testify as witnesses, the victims recounted they had lived with defendant for about a month after July 4, 1982, during which time defendant had touched their “private areas” and had placed his finger inside of them between their legs. The girls testified to an occasion when defendant had disrobed in the bathroom and made the children present play with his private parts between his legs. The evidence was more than sufficient to sustain the finding of guilt.

The foregoing brief written statement is presented to demonstrate that no jurisprudential purpose would be served by a written opinion. The judgment nisi is affirmed pursuant to Rule 30.25(b), V.A.M.R., and defendant’s request for oral argument is denied.

All concur.


author: PEEWITT, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Parker ADAMS, Defendant-Appellant.
    No. 13870.
    Missouri Court of Appeals, Southern District, Division Two.
    April 23, 1985.

      Tony E. Swetnam, Pros. Atty., Cedar County, Stockton, for plaintiff-respondent.
    Samuel J. Short, Jr., Stockton, for defendant-appellant.
   PEEWITT, Chief Judge.

Following jury trial defendant was convicted of driving a motor vehicle while intoxicated. § 577.010, ESMo Supp.1984. As a “prior offender”, see § 577.023.1(3), ESMo Supp.1984, he was sentenced to ten days in the county jail. He appeals, presenting three points for consideration.

Defendant’s first point is twofold. He contends the trial court erred in allowing on the day of trial the endorsement of Highway Patrol Sergeant Bill Haver as a witness on the information and in allowing him to testify as to the results of a test he conducted on the breathalyzer machine because the results of the test were not disclosed by the state. Haver did not conduct the breathalyzer test on defendant, but had checked the operation of the machine 53 days afterwards. He found and corrected a defect in the machine.

Defendant was charged with the offense on January 1, 1984. On January 12, 1984, he made a request for discovery under Eule 25.03. The state responded the next day. Among the witnesses it listed was “Sgt. Bill Haver — Missouri State Highway Patrol.” In response to a portion of the request asking for “Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons”, the state responded, “Breathalyzer Operational Check List and Sgt. Haver will testify to testing of breathalyzer machine.” The record does not show that defendant made any objection to the state’s response or a further request for information. Nor does it show that there is any written report of the test Haver made. Trial .was conducted on June 12, 1984.

Due to the disclosure we do not see how defendant was surprised or suffered any disadvantage by the late endorsement. The general nature of the testimony Haver gave could have been contemplated and defendant had time to investigate his testimony. We find no abuse of the trial court’s discretion in allowing the witness. See State v. Stokes, 638 S.W.2d 715, 719 (Mo. banc 1982).

In addition, we see no prejudice to defendant. It is only through a portion of Haver’s testimony that defendant had any basis to contend that the results of the breathalyzer test on him should have been excluded. That testimony is further described in discussing the next point. Absent evidence of a defect, when operated by one certified as competent to use a breathalyzer, and when administered in accordance with the operational regulations promulgated by the Division of Health, a prima facie case for introduction of the test results is made. State v. Bush, 595 S.W.2d 386, 389 (Mo.App.1980).

In his second point defendant contends that the trial court erred in admitting the breathalyzer operational checklist and testimony given of defendant’s blood alcohol concentration reading because the breathalyzer machine was not operating properly when next checked after the test on defendant.

The breathalyzer machine was checked on December 20, 1983 and was operating properly. Defendant was tested on the machine January 1, 1984. It was next checked on February 23, 1984. On that date it was not functioning properly. The piston was not dropping as far as it should and it was not turning on a “red light” that shows that the proper amount of air has gone through the machine.

Sgt. Haver testified that “the piston and the cylinder had to be cleaned and I made those proper corrections and ran three more tests and they all ran okay; the machine was all right after that.” He said that when the defect corrected occurs the red light will not go on. He testified that if it was not operating properly on January 1 because of this defect, it would show less blood alcohol content than actually existed.

The officer operating the breathalyzer machine when defendant was tested was properly certified to administer it. He stated that he “followed the rules set out by the Board of Health and that I thought the machine was operating properly as far as I knew.” That indicates that the red light went on. See 13 Mo.Admin.Code 50-140.-060 (1983). He said that the breathalyzer machine operated normally and there was no indication of any malfunction. The checklist he prepared showed that the red light was functioning.

Defendant relies primarily on State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973). There a defect in the breathalyzer machine was shown to be present twenty days after the test on the defendant. Apparently there was no testimony that the defect found would have been noticed during the operation. Here, there was evidence that the defect found would have prevented the red light from going on and there was evidence here that the red light did go on when defendant was tested. This was sufficient to establish that the defect found on February 23 was not present on January 1. The results of the test were properly admitted. See State v. Bush, supra, 595 S.W.2d at 389. See also State v. Shephard, 639 S.W.2d 258, 260 (Mo.App.1982); City of Cape Girardeau v. Geiser, 598 S.W.2d 151 (Mo.App.1979). This point is denied.

In his remaining point defendant contends that there was no substantial evidence to support the jury’s finding. The point is premised on the contention that the breathalyzer test result was inadmissible. As we found it admissible, the point must necessarily fail. There was, however, other sufficient evidence from the testimony of the arresting officer to support the jury’s finding.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


author: GAERTNER, Judge.

text:
    Curtis L. MANN, Trustee of the Bankruptcy Estate of David E. Goodman, Plaintiff-Appellant, v. UNITED MISSOURI BANK OF KIRKWOOD, Defendant-Respondent.
    No. 48149.
    Missouri Court of Appeals, Eastern District, Division One.
    April 23, 1985.

      Lea W. Clayton, Jr., Clayton, for plaintiff-appellant.
    Gerard F. Hempstead, Allen Kircher, Clayton, for defendant-respondent.
   GAERTNER, Judge.

Curtis Mann (plaintiff) as trustee for the bankruptcy estate of Dr. David E. Goodman appeals from the trial court’s grant of a directed verdict at the conclusion of plaintiff’s case in favor of United Missouri Bank of Kirkwood (defendant) on plaintiff's petition for the conversion and commercially unreasonable sale of Goodman’s van. We affirm.

In June of 1977 defendant loaned Goodman $7,306.03 for the purchase of a 1977 Ford Club van with defendant retaining a security interest in the property as collateral. Defendant repossessed the van on December 5, 1980, when Goodman was two months in arrears, and on December 8, notified him he had ten days to redeem the collateral or it would be offered for sale. Goodman was also informed he could redeem the van anytime prior to the actual disposition. The approximate amount in question was $2,078.77, including car insurance premiums for coverage Goodman failed to secure in violation of the security agreement and the repossession expenses.

Defendant advertised the sale on December 17, 1980, and on December 22, received a written bid for $1,200.00 which was later accepted. Other lower bids were received and rejected. The buyer took possession on either December 22 or January 5 or 6, 1981 and after the first application was denied due to technical deficiencies, a repossession title was issued on January 28.

Goodman also advertised the van for sale at $3,200.00 to which he received some inquiries but no offers. On January 21, 1981, Goodman’s attorney attempted to redeem the collateral but, since the van had already been sold, was refused.

Plaintiff now contends the trial court erred in granting defendant a directed verdict in that 1) defendant converted the van by transferring it to a buyer without assigning the certificate of title and refusing to permit Goodman to redeem his van; 2) there was sufficient evidence defendant’s conversion of said van was malicious; and 3) the sale of the van was commercially unreasonable.

The dispositive issue here is whether the collateral had been lawfully disposed of before defendant’s alleged refusal to allow redemption.

In reviewing the propriety of a directed verdict the evidence and reasonable inferences therefrom are to be considered in the light most favorable to the party against whom the motion was made. National Garment Co. v. City of Paris, Mo., 655 S.W.2d 515 (Mo.1983). A secured party’s refusal to permit a redemption of repossessed collateral by a debtor who has the right to redeem is conversion. See Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26 (Mo.App.1976). Section 400.9-506, however, only provides that the debtor may redeem the collateral at any time before the secured party has either disposed of the collateral or entered into a contract for its disposition.

Even viewing the evidence in the light most favorable to the plaintiff, there is no question the van had been disposed of or at the very least a contract for its disposition entered into prior to January 21, 1981. First, the record reflects buyer took possession either December 22 or January 5 or 6, well before the attempted redemption date. Secondly, although defendant transferred possession without the certificate of title in violation of § 301.210.4, it still created an executory contract to be completed in the future. Strebler v. Hampton Metro Bank, 686 S.W.2d 28 (Mo.App.E.D.1984); Allstate Insurance Co. v. Hartford Accident & Indemnity Co., 311 S.W.2d 41, 47 (Mo.App.1958). In either case, the actual sale or contract for sale occurred before Goodman attempted to redeem the van and defendant’s refusal did not amount to conversion. Plaintiff’s first two points are denied.

In his third and final point, plaintiff argues the sale was commercially unreasonable in violation of § 400.9-504(3). We disagree. The evidence shows defendant was in compliance with statute when he notified Goodman of the sale, advertised it, received several offers and finally sold it to the highest bidder. The sole fact a higher price may have been obtained at a different time or place does not render the sale commercially unreasonable. § 400.9-507(2).

Judgment affirmed.

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

      . Unless otherwise indicated all sectional refer-enees are to Revised Statutes of Missouri, 1978.

      . Section 301.210 was intended to hamper traffic in stolen automobiles and reduce fraud and deceit in the sale of used cars and not to invalidate otherwise legitimate transactions. Case v. Universal Underwriters Co., 534 S.W.2d 635, 638 (Mo.App.1976).