author: NUGENT, Judge.

text:
    Stephen H. DRYSDALE, and Helen L. Drysdale, Plaintiffs/Respondents, v. ESTATE OF Mabel J. DRYSDALE, Deceased, Marcella D. Harris, Executrix, Defendants/Appellants.
    No. WD 35778.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.

      Kenneth 0. McCutcheon, Jr., Versailles, for defendants/appellants.
    Marvin W. Opie, Versailles, Richard M. Stout, Chesterfield, for plaintiffs/respondents.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   NUGENT, Judge.

The defendant executrix of the estate of Mabel Drysdale appeals from a judgment directing specific performance by the executrix of decedent’s contract for the sale of a farm to plaintiffs Stephen and Helen Drysdale. We affirm the judgment.

The defendant complains that the trial court erred in finding that the plaintiffs had performed their part of the contract because, she asserts, plaintiffs’ own uncon-troverted evidence at best established that they had refused to pay nearly one-fourth of the contract price.

On November 12, 1970, Leonard and Mabel Drysdale agreed to sell a 328.5 acre farm to their son, Stephen, and his wife, Helen, for $32,850. The written contract provides for payment in eight annual installments as follows: $4,850 on December 28, 1970, $5,000 on December 28, 1971, and $4,000 each succeeding December 28 through 1976, plus a final $3,000 installment due on December 28, 1977. The terms of the contract also require the plaintiffs to pay interest at 6% per year on the unpaid balance, and it permits plaintiffs to make additional principal payments in $1,000 increments up to a total of $4,000 with payment of any annual installment. Plaintiffs are to have possession and to pay all taxes and farm expenses incurred after January 1, 1970, but all agricultural program (ASC) payments due the sellers as title holders of the farm after that date were to be assigned upon receipt by the sellers to the purchasers.

The contract was received in evidence over defendant’s objection, but on appeal defendant does not complain of that ruling. Defendant filed an inventory of the estate which acknowledged the existence and terms of the contract and “payments of principal and interest ... through December 28, 1974....”

Leonard Drysdale died in January, 1975; Mabel Drysdale died on August 30, 1975. Defendant Marcella Drysdale Harris, the deceased’s daughter, was appointed executrix of the estate on September 12, 1975.

At trial plaintiff Stephen Drysdale testified to the payment on December 19, 1975, of $1,686.54 by cashier’s check to the Drys-dale estate and to the payment of the 1975 real estate taxes. He also testified that he prepared and gave to the attorney for the estate plaintiffs’ Exhibit 7, including a statement rendered to the estate to support the December payment. The statement was intended to show that plaintiffs were remitting to the estate a principal payment of $4,000 plus $540 interest on the $9,000 balance due on the contract at 6% for one year. It also showed plaintiffs taking $2,853.46 credit due them for ASC payments collected by sellers on November 6, 1975, including $24.18 in interest thereon. According to plaintiffs’ statement of the account, the net due the estate was $1,686.54.

The defendant objected to the exhibit and to plaintiff's testimony that he had delivered a copy of it to the estate’s attorney. The stated grounds for the objections were that the exhibit and the testimony were “self-serving, irrelevant, and hearsay.” The court sustained the objection.

Mr. Drysdale testified that in December, 1976, he made an additional payment of $2,432.58, and to show “how much the payment would be”, prepared and gave another statement of the account to the estate, plaintiffs’ Exhibit 17. The statement shows the principal balance due as $5,000, interest of $300 (6% on $5,000), and an offsetting item of $2,867.42 due buyers for agricultural program payments received by the estate on October 7, 1976, including $38.14 interest, leaving a net due the estate of $2,432.58. Attached to the statement is a recapitulation of the account from its beginning in 1970 showing payment of $32,850 on the principal amount due, plus interest in the total amount of $7,654.80, plus $790.19 in miscellaneous credits due sellers, less $20,060.03, plus $286.29 interest thereon, and $157.87 in miscellaneous credits due buyer. The net result shown is full payment under the contract. Mr. Drysdale also testified that he paid the 1976 taxes. Upon defendant’s objection that Exhibit 17 was self-serving, irrelevant, hearsay, not the best evidence, and violated the Dead Man’s Statute, the court excluded the exhibit.

Plaintiffs called William G. Johnson, who had previously served as attorney for the executrix. He identified plaintiffs’ Exhibit 9 as a receipt he signed for a $2,432.58 cashier’s check. He stated that he delivered the check to the defendant. The receipt, admitted over defendant’s objection, reads as follows:

I hereby acknowledge receipt of Mercantile Bank’s Cashier check # 306639 in the amount of $2,432.58 said cheek representing the final payment due on the Leonard I. and Mabel J. Drysdale and Stephen H. and Helen L. Drysdale contract for sale dated November 12, 1970.
/s/ William G. Johnson
Attorney for the Estate of
Mabel J. Drysdale, Dec.

At the bottom of the receipt is a photo copy of the cashier’s check showing the plaintiffs as the remitters and the Estate of Mabel J. Drysdale as the payee.

Defendant objected to Mr. Johnson’s testimony and to Exhibit 9 on the grounds that plaintiffs had not shown that the attorney had authority to execute or give such a receipt and that any information he would have obtained from the executrix or the deceased Drysdales before their deaths would be subject to the attorney-client privilege. For good measure, counsel added a Dead Man’s Statute objection, that is, that the testimony about the exhibit was an attempt to elicit testimony that the Drysdales would have been incompetent to give themselves. Finally, defendant objected that plaintiff had not shown that Mr. Johnson was the attorney for the estate or for the executrix at the time.

The defendant did not cross-examine Mr. Johnson and rested her case without offering evidence. The record contains no hint of any attempt by the executrix to regain possession of the farm from the plaintiffs despite defendant’s assertion that the plaintiffs have been in default under the contract since 1975 and as of 1977 owed $12,-260 in principal and interest on the contract. The defendant executrix filed no counterclaim for either damages or possession based upon plaintiffs’ alleged default.

At the conclusion of the evidence, the trial court announced that it would give no weight to the part of plaintiffs’ Exhibit 9 reciting that the $2,432.58 was the final payment because it had sustained defendant’s objection to that part of the receipt. The record reflects no such ruling. In fact, the transcript shows that defendant’s two trial attorneys jointly made their last objections to the admission of Exhibit 9 as follows:

MR. OPIE: ....
There’s no showing of authority here, no foundation in an attempt to show that authority and we would also — the best evidence of the check would be the check itself. And so, therefore, we would— and again we believe this is attempting to elicit evidence of the Drysdales themselves that they are incompetent to testify to under the dead man’s statute.
THE COURT: Mr. Stout, did you have something you wanted to add?
MR. STOUT: No, I didn’t, Your Honor, except that there is some language in the document that purports to go beyond the act which Mr. Johnson said that he performed or was authorized to perform; and that is the actual acceptance of the check itself. And we’d direct the court’s attention in particular to that language.

Thereupon, the court overruled defendant’s objection without reservation and admitted the exhibit in toto.

Despite its decision to disregard the receipt’s recital that the $2,432.58 cashier’s check represented the final payment on the contract, the court found that, whether or not Mr. Johnson had the authority to accept the $2,432.58 in 1976, that payment at least reflected a tender by the Drysdales sufficient to require the court to order specific performance. The court further found that plaintiffs had made all the payments required and had otherwise fully performed under the contract.

In any specific performance case, the plaintiff must prove by clear and convincing evidence that he has performed (or tendered performance of) his portion of the contract. Higgins v. Rachford, 307 S.W.2d 411, 418 (Mo.1957). Under Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976) (en banc), upon review of the decree of a trial court in suits of an equitable nature we will sustain the decree unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron further constrains us to “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.” Id. Moreover, “[w]hen the trial court reaches the correct result for reasons other than those adopted or perceived by the appellate court, the judgment will be affirmed.” Guild Management Co. v. Oxenhandler, 541 S.W.2d 687, 691 (Mo.App.1976).

Plaintiffs had the burden to show by clear and convincing evidence that they had fully performed or tendered full performance. Domyan v. Dorin, 356 S.W.2d 70, 72 (Mo.1962); Lancaster v. Simmons, 621 S.W.2d 935, 942 (Mo.App.1981); Higgins, supra. Therefore, the decree of specific performance in this case cannot be sustained on appeal unless the evidence which was admitted or which should have been admitted shows plaintiffs’ performance or tender of full performance.

Looking only at the evidence which the court admitted and considered, plaintiffs failed to prove their performance. The defendants’ admissions and the evidence which the court received showed only payment of the amounts due under the contract from 1970 through 1974 and the payment of $1,686.54 in 1975 and $2,432.58 in 1976. No specific evidence of the payments of the full amounts of $4,000 plus interest due in each of years 1975 and 1976 was admitted, nor does the admitted evidence explicitly show that plaintiffs paid the final $3,000 plus interest due in 1977. The only evidence admitted bearing on those payments was plaintiffs’ Exhibit 9, the receipt showing payment in full, but the trial court declined to consider the language of the receipt that the $2,432.58 cashier’s check represented the final payment on the contract.

The first question we must decide is whether the trial court should have considered the full text of the receipt that Mr. Johnson, attorney for the estate, gave to plaintiffs upon receipt of the 1976 payment. The answer to that question depends upon whether the attorney had authority to receive the payment and give a receipt stating that the payment represented the final payment due.

Defendant contends that plaintiffs failed to establish Mr. Johnson’s “express authority” to give such a receipt, citing Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo.App.1965), Couch v. Landers, 316 S.W.2d 588, 593 (Mo.1958), and Sudekum v. Fasnacht’s Estate, 236 Mo.App. 455, 157 S.W.2d 264, 266 (1942). All are distinguishable on their facts, although they stand for the general proposition that an attorney must have express authority to bind a client to a surrender of a substantial right. No doubt that is so. Moreover, the mere fact of the attorney’s employment does not give the attorney authority to settle a client’s case. Leffler v. Bi-State Development Agency, 612 S.W.2d 835, 836-37 (Mo.App.1981). But the authority of an attorney of record to perform an act for a client is presumed, prima facie at least, and the burden of showing the attorney’s want of authority rests on the party who questions it unless such authority is denied by the client. Kahn v. Brunswick-Balke-Collender Co., 156 S.W.2d 40, 43 (Mo.App.1941).

In the present case, by merely objecting to the evidence, defendant did not take up her burden to show Mr. Johnson’s want of authority. Objections are not enough. If the attorney for the executrix did not have the authority to give a receipt to the estate’s debtors upon receiving payments due the estate, that would be most unusual and requires some specific showing, preferably from the person who could grant or withhold that authority. If in fact Mr. Johnson truly had such limited authority that he could not give a receipt marked “final payment,” then the executrix had the duty to take the witness stand at the hearing and say so. Samland v. J. White Transportation Co., Inc., 675 S.W.2d 92, 96 (Mo.App.1984). Absent such evidence, the trial court was entitled to admit the receipt into evidence full blown and to draw from it all the inferences its contents justified, including the inference that the attorney for the estate, aware of the exact status of the estate's claim against the plaintiffs under the contract, would know the balance due under that agreement.

Had the trial court considered the full implications of the receipt as it should have, that evidence was sufficient to carry the day for plaintiffs because the receipt reciting that the cashier’s check represented final payment on plaintiffs’ contract established a prima facie case for specific performance. Of course, plaintiffs had the burden of proof to show their full performance. Here plaintiffs’ counsel chose the decidedly chancy route of proving performance by relying only upon the 1976 receipt. But that receipt was enough to establish a prima facie case, shifting the burden to defendant to^ rebut plaintiffs’ evidence. The Supreme Court in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557 (1932) (en banc), (at 563, 46 S.W.2d 557) described the process as follows:

[T]he “burden of evidence” is the burden of “getting by” the judge to the jury, by making a prima facie showing as to each factual ingredient necessary to establish a prima facie case. Having done this, a plaintiff has discharged his burden of evidence, and the burden shifts to the defendant to produce, if he desires, competent controverting evidence which, if believed, will offset the plaintiff’s prima facie case. If this is done the defendant has met the burden of evidence cast upon him, and made a prima facie defense, whereupon the burden swings back to the plaintiff to bring forward evidence in rebuttal, and so on. But during all this time the burden of proof, the risk of nonpersuasion, remains with the plaintiff, except as to affirmative defenses, etc. The burden of evidence is simply the burden of making or meeting a prima facie case. See 5 Wigmore on Evidence (2d Ed.) § 2487, p. 442; Thayer, Preliminary Treatise on Evidence, p. 376 et seq.; Downs v. Horton, 287 Mo. 414, 431, 230 S.W. 103, 108.

Plaintiffs having made a prima facie case with Exhibit 9 and the defendant having failed to rebut either her attorney’s authority to give the receipt or, more importantly, the inference that he knew the status of the estate’s claim under the contract and that plaintiffs’ $2,432.58 ' cashier’s check represented full and final payment, the trial court should have entered its decree for plaintiffs, as it did.

Accordingly, we affirm the decree of specific performance entered by the trial court.

All concur.

      . § 491.010, Revised Statutes of Missouri, 1978, as amended by L.1983, p. 894, S.B. 44 & 45, § 1.

      . The fact that the plaintiffs may have been barred by the Dead Man’s Statute from testifying to the balance due the estate under the contract would not be a bar to persons not a party to the transaction with the deceased parents testifying as to their knowledge of the transaction or to payments made under the contract to the deceased sellers or to the estate. § 491.010, supra.

      . Plaintiffs Exhibit 17 included the original and a copy of plaintiffs’ check to the bank for the $2,432.58 cashier's check and the bank cashier’s check payable to the “Estate of Mabel J. Drys-dale" in that amount. The plaintiffs check (and its photo copy) bore the notation "Final Installment Farm Purch. Contract.”


source: Caselaw Access Project

license: Public Domain

text:
    Don VILELLE, Plaintiff-Appellant, v. REORGANIZED SCHOOL DISTRICT NO. R-1, BENTON COUNTY, Defendant-Respondent.
    No. WD 35619.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Rehearing Denied April 2, 1985.

      John W. Inglish (argued), James W. Riner, Jefferson City, for plaintiff-appellant.
    William F. Brown, Sedalia, for defendant-respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   NUGENT, Judge.

Plaintiff is a certified, permanent-status teacher whose salary has been frozen by the defendant school district since the 1980-81 school year. The case was tried to the court which found that the plaintiff has not been demoted by defendant. We reverse and enter judgment for plaintiff.

Plaintiff is a tenured, certified social studies teacher who has been employed by the defendant school district since 1972 and has completed eight hours of graduate work towards his master’s degree. Until the 1981-82 school year, the defendant district paid plaintiff the same salary it paid other tenured teachers of similar experience and education.

Before the start of the 1981-82 school year, the defendant offered to rehire plaintiff, but only at his 1980-81 salary. All other permanent status teachers were given pay increases in accordance with the 1981-82 salary schedule adopted by the school board. In the following years, the board continued to rehire the plaintiff, but he was paid only the amount he received for the 1980-81 school year. Mr. Vilelle has continued to teach the same grades and subjects during the period of this dispute. All other tenured teachers received pay increases as provided in each of the applicable school year salary schedules. Plaintiff has not signed a contract since the 1979-80 school year. The record does not indicate that he has agreed to accept a salary lower than that paid other teachers of equal experience and degree of education. The record also shows that plaintiff was never given any of the procedural rights afforded under the Teacher Tenure Act, §§ 168.112 to 168.118 to a tenured teacher being demoted or terminated.

The salaries for tenured teachers in the defendant district, except for Mr. Vilelle since 1981, are set forth in a salary schedule which is adopted by a majority vote of the school board. A teacher’s compensation is determined by the number of years of teaching experience plus the teacher’s hours of graduate education or graduate degree. Until the 1982-83 school year, these schedules were entitled “salary schedules.” Starting with the 1982-83 school year, the school board added a disclaimer to the schedules stating that they were only guidelines that did not restrict the board’s discretion in setting salaries.

The record shows that before plaintiff gained tenure complaints were made and questions raised by parents and school administrators about some of his teaching methods and his general competence. The plaintiff was informed of those problems, and the evaluations of his teaching by his principal reflect that his performance improved. Testimony of the president of the school board shows that the board remained unhappy with the plaintiff’s performance and that the board did not raise the plaintiff’s salary in order to express its discontent with his performance. He further testified that the board “hoped” that its action would lead Mr. Vilelle to seek other employment. That is the only explanation found in the record for the board’s failure to give Mr. Vilelle the salary increases given other tenured teachers. The board president further testified that the board believed that it did not have the requisite statutory grounds to terminate Mr. Vilelle’s contract.

In Count I of his petition plaintiff prays for a declaratory judgment that he is a certified teacher with an indefinite contract and is a permanent teacher as defined in § 168.104, that his contract may be modified only in accordance with § 168.110, and that his salary is that set out in the salary schedules adopted by the school district for each of the three years involved.

In Count II he prays for an order directing the defendant to pay him according to the applicable salary schedule and for the amount of back pay that he has not received since his salary was frozen plus interest. The case was tried to the court which rendered judgment in favor of defendant. In its findings of fact and conclusions of law the court apparently found that the salary schedules were only nonbinding guidelines for use in setting a teacher’s salary. The court also concluded that, since Mr. Vilelle’s salary was never decreased but merely was not increased, he was not demoted within the meaning of the Teacher Tenure Act. § 168.104(4). The trial court relied upon Le Galley v. Bronson Community Schools, 127 Mich.App. 482, 339 N.W.2d 223 (1983), in finding that plaintiff had not been constructively demoted in violation of the spirit of the act because the clear language of the act precluded such a finding.

This case was tried to the court, and the scope of our review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976) (en banc). We find that the trial court erred in its construction of the applicable statutes and misapplied the law.

Plaintiff raises two points on appeal. First, that the trial court erred in concluding that the defendant did not adopt salary schedules applicable to all tenured teachers for the school years 1981-82, 1982-83 and 1983-84. Secondly, the court erred in finding that, since plaintiff’s salary was never reduced from its 1980-81 level, he was not demoted as that term is used in the Teacher Tenure Act.

The trial court in its findings of fact and conclusions of law states that the schedules in question here were merely suggestions or guidelines presented by the superintendent of schools to the school board that the board in its discretion could choose to follow or not. The minutes of the school board meetings for the years 1981-84 at which teachers’ salaries were considered show that in each of the years in question the schedules were presented to and adopted by the board. The school board has a legislative duty to fix the amount of annual teacher compensation for the following school year by passing a salary schedule applicable to all teachers. Parkway School Dist. v. Provaznik, 617 S.W.2d 489, 491 (Mo.App.1981). In this case, in compliance with the statute, the board adopted salary schedules applicable to all teachers. No matter what the defendant tried to call its schedules or what disclaimers it added, they were salary schedules under § 168.110.

The board of directors of a school district has broad powers in the management of the district, including the setting of teachers’ salaries, but those powers are subject to all applicable statutory requirements. Id. The plaintiff in this case is a tenured teacher, and the terms of his employment are in part governed by the Teacher Tenure Act, § 168.102 to § 168.-130. A tenured teacher has an indefinite contract with his district which may be modified as provided in § 168.110 and § 168.112, or terminated as provided in § 168.114 to § 168.118. The act has been construed to apply to certain demotions even though that is not specifically provided for in the act. Glanville v. Hickory County Reorganized School Dist. No. 1, 637 S.W.2d 328, 330 (Mo.App.1982). The act applies to demotions that result in a reduction in salary. Id. The question before us, therefore, is whether the board’s action in not raising plaintiffs salary when all other teachers received a raise was a demotion of plaintiff. If it was a demotion, the board’s action was in violation of the act since the plaintiff was not afforded any of the rights provided for in the statutes. § 168.114 to § 168.118.

When the plaintiff’s salary was not raised in accordance with the applicable salary schedule for that school year, he suffered a de facto demotion. The act requires that tenured teachers be paid according to a salary schedule applicable to all teachers. § 168.110; School District of Kansas City v. Clymer, 654 S.W.2d 483, 486 (Mo.App.1977). A demotion occurs when the teacher suffers a reduction in salary. Glanville v. Hickory County Reorganized School Dist. No. 1, swpra. Obviously, where a board lowers a teacher’s salary relative to all other teachers’ salaries, a demotion occurs, but the same effect is achieved where the salaries of all but one teacher are raised. Whether his salary is lowered or is not raised when all other similarly classified teachers receive an increase, that teacher suffers a loss in salary. The purpose of the act is contravened in either case. In Lopez v. Vance, 509 S.W.2d 197, 202 (Mo.App.1974), the court explained that:

We believe the purpose of our statute, as well as teacher tenure acts, was to attain stability, certainty and permanence of employment on the part of those who have shown by educational attainment and by a probationary period their fitness for the important profession of teaching. “The history behind the act justifies the view that the vicissitudes to which teachers had in the past been subjected were to be done away with or at least minimized. It was enacted for the benefit and advantage of the school system by providing such machinery as would tend to minimize the part that malice, political or partisan trends, or caprice might play. It established merit as the essential basis for the right of permanent employment.” (Citations and emphasis omitted.)

The action of the board here is just the type of action the statute was designed to prevent. The record indicates that the board believed that it did not have the statutory grounds to fire Mr. Vilelle so it sought to force him out of his job by freezing his salary. The act was designed to provide for termination or demotion only upon certain grounds and in accordance with certain procedures. Glanville v. Hickory County Reorganized School Dist. No. 1, supra. The board here sought to avoid these statutory requirements.

A teacher does not achieve permanent status until he has been rehired for the sixth successive year by a district. § 168.-104(4). The board in this case was aware of the alleged problems with Mr. Vilelle’s teaching long before his sixth year. If the board did not believe him to be qualified, it was not obliged to offer him a contract in his sixth year.

The trial court’s reliance on Le Galley v. Bronson Community Schools, 127 Mich.App. 482, 339 N.W.2d 223 (1983), is misplaced. There the school board, in the absence of sufficient cause to fire him but in an effort to be rid of Le Galley, a school principal, told him that he would be given no further salary increases if he refused to step down. He was denied raises for two years, although other school administrators were given raises each year. The Michigan teachers’ tenure act defines “demote” to mean “to reduce compensation or to transfer to a position carrying a lower salary.” The tenure commission found Le Galley to have been “constructively discharged or demoted.” The Michigan Court of Appeals, noting that the principal’s salary had not been reduced and that he had not been transferred, held that within the express statutory definition of “demote” Le Galley had not been demoted and that the commission had exceeded its authority in finding a “constructive demotion.” The court also held that one may not disregard express, unambiguous language in a statute in deference to what one invokes as the spirit of the teachers’ tenure act. Street v. Ferndale Board of Education, 361 Mich. 82, 86-87, 104 N.W.2d 748 (1960).

Le Galley is distinguishable in that the Missouri Teacher Tenure Act, § 168.104(2), defines “demotion” as: “any reduction in salary or transfer to a position carrying a lower salary ... other than any change in salary applicable to all teachers or all teachers in a classification.” The clause in § 168.104(2), beginning with “other than ...” distinguishes it from Michigan’s law and gives the word “demotion” a broader meaning. It ties the definition of “demotion” to the maintenance of the relative salary position of one tenured teacher to that of all other such teachers in the same classification.

The definition of “demotion” in the Missouri act means that if the board reduces the pay of all teachers in one classification, no teacher is demoted by reason of the pay reduction. But it also means that if the board gives an upward “change in salary” which is not applicable to all teachers in one classification, those to whom the change does not apply are demoted by reason of the pay increase of their fellows. Thus, if in a group of ten teachers within one classification the board gives only teacher Jones a $1,000 raise, the remaining nine are thereby demoted because their relative positions to Jones are negatively changed. Conversely, if in that group the board gives nine teachers an upward “change in salary” of $1,000, then the tenth teacher suffers a demotion because his position relative to the nine negatively changes.

The mandate of the Missouri Teacher Tenure Act is that all within one classification be treated the same. The purpose of that mandate, as we have said, is to minimize the exercise of unfair, capricious, and corrupt favoritism in the promotion, demotion, and retention of professional teachers. Lopez v. Vance, supra, 509 S.W.2d at 202.

The wording of the statute indicates that tenured teachers in one classification need not be paid the same salary as teachers in a different classification. In this case, the defendant classified teachers according to years of experience and number of graduate hours, but only the plaintiff was not paid according to this classification scheme. The defendant argues that Mr. Vilelle was in a classification of which he was the only member, but defendant never set forth the common attributes or characteristics of that classification nor did defendant adduce evidence of any salary schedule containing such a separate classification. See Chaffin v. The County of Christian, 359 S.W.2d 730, 734 (Mo.1962) (en banc), for a definition of a class in a different context.

As we have already observed, a school board has wide discretion in its management of a school district, but it cannot act in an arbitrary, capricious, unreasonable or unlawful manner. School District of Kansas City v. Clymer, supra 554 S.W.2d at 486. The statute allows teachers in different classifications to be paid unequal amounts, but when the school board devises a classification scheme applicable to tenured teachers, it must be based on reasonable and lawful criteria. The only criterion we find here for the classification of Mr. Vilelle was that the board wanted to force him out of the district and it did not believe that it had the statutory grounds to dismiss him. Obviously, the board did not create such a separate salary schedule applicable to all teachers or all teachers in a “classification” as § 168.-104(2) and § 168.110(2) authorize and require. The defendant here simply ignored the requirements of the statute, particularly those provisions dealing with modification (§ 168.112) and termination of the indefinite contract of a tenured teacher (§§ 168.114-168.120).

Where no further factual adjudication is required, the appellate court has the power to render the judgment that should have been entered. Rule 84.14; Marks v. Marks, 625 S.W.2d 700, 702 (Mo.App.1981).

Accordingly, for the foregoing reasons, on both Count I and Count II we find the issues in favor of the plaintiff and against the defendant, more particularly finding that plaintiff is a permanent teacher within the meaning of the Teacher Tenure Act, that for each of the school years 1981-82, 1982-83, and 1983-84 defendant demoted plaintiff within the meaning of the Act, § 168.104(2), in that defendant, having duly adopted salary schedules for those years as required by § 168.110(2), failed to follow those schedules in compensating plaintiff, thereby damaging plaintiff for the school year 1981-82 in the amount of $658.90, for the school year 1982-83 in the amount of $1,257.90, and for the school year 1983-84 in the amount of $3,054.90.

Therefore, we order and adjudge that the defendant pay the plaintiff the sum of $658.90 for 1981-82, $1,257.90 for the year 1982-83, and $3,054.90 for the year 1983-84, plus interest at nine percent thereon from the date that each salary payment fell due under plaintiffs indefinite contract during each of those school years. § 408.-020; Denton Construction Co. v. Missouri State Highway Comm’n, 454 S.W.2d 44, 59-60 (Mo.1970); Steppelman v. State Highway Comm’n of Missouri, 650 S.W.2d 343 (Mo.App.1983).

We remand the case to the trial court with directions to enter the foregoing judgment and to tax all costs in this court and in the trial court against the defendant.

All concur.

      . All sectional references are to Revised Statutes of Missouri, 1978.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, ex rel., Donna Sue AMATO, Relator, v. The Honorable Patrick CLIFFORD, Judge of the Associate Circuit Court, St. Louis County, Missouri, Division 39, Respondent.
    No. 49271.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.

      Philip T. Ayers, St. Ann, for relator.
    James M. Daly, P.C., Stephen G. Bell, St. Louis, for respondent.
   DOWD, Presiding Judge.

Prohibition.

On October 18, 1982, relator, filed suit in Division 38 of the Circuit Court of St. Louis County, an associate circuit judge presiding. In Count I, relator sought $4,500 damages for personal injury sustained by her as a result of an automobile collision. Count II of the petition sought damages of $500 on behalf of relator’s mother for property damages.

On August 22, 1983, relator requested trial by jury and in accordance with the mandated procedure of § 517.520.2 RSMo 1978 the case was “certified for assignment” by the associate circuit judge to the presiding circuit judge. The presiding judge of the circuit court, complying with mandated procedure of this statute, entered the following order of assignment: “This case is assigned to Associate Circuit Judge Clifford of Division No. 39 to act as Circuit Judge for purpose of hearing and deciding by use of an electronic recording device.”

On January 20, 1984, relator filed an amended petition increasing the prayer in Count I to $50,000 and the prayer in Count II to $5,000. Case was set for trial October 1, 1984. Before the trial began on October 2, 1984, respondent’s attorney representing the defendant filed an oral motion to require relator to reduce her prayer to $5,000 on the ground that the prayer in excess of $5,000 exceeded the jurisdiction of the associate circuit judge.

Thereafter, respondent judge advised relator of his intention of granting the oral motion to require relator to reduce her prayer to $5,000 but granted relator time to obtain a writ of prohibition. It is obvious that respondent judge did not believe he had jurisdiction to permit the amendment to the prayer that then exceeded his jurisdiction as an associate circuit judge.

We issued our preliminary rule in prohibition. The parties briefed and argued the case.

Respondent’s main contentions are that an associate circuit judge has no jurisdiction to hear a case where the prayer is in excess of $5,000, and prohibition is being used erroneously.

The primary issue here is whether an associate circuit judge who has been properly assigned to hear a case by the presiding judge of the circuit court as a result of a request for a jury trial, has the jurisdiction to permit an amendment to the prayer to an amount in excess of the associate circuit division’s original jurisdiction and next, whether prohibition is the proper remedy. We answer affirmatively on both issues.

In analyzing this issue, we are mindful of the following statement made in City of Kansas City v. Rule, 673 S.W.2d 21, 24, 25 (Mo. banc 1984):

We reject the assertion ... that under our unified court plan the associate circuit division is intended merely to assume the jurisdiction and powers of the former magistrate courts. Both the Constitution and the statutory scheme enacted thereunder reflect a clear intent to enlarge the role of the associate court division in our unified court scheme beyond that of the now abolished magistrate courts in order to better utilize judicial manpower and to expedite the handling of cases.

The proceedings applicable after certification where a jury trial is requested in a case pending before an associate circuit judge are governed by § 517.520.2. This statute provides in part that the presiding judge of the circuit shall assign the case to either a circuit judge or an associate circuit judge “with the case to be heard on the record in accordance with procedures applicable before circuit judges with no right of trial de novo.” And that after assignment to an associate circuit judge, “further proceedings shall be had as if the case was originally commenced under the practice and procedure applicable before circuit judges, but the sufficiency of plaintiff’s petition shall be adjudged according to the procedures under chapter 517.”

After certification and assignment respondent associate circuit judge is hearing the case as a circuit judge. Had the same suit been filed originally before a circuit judge, the petition could have been amended from an amount less than $5,000 to any amount in excess of $5,000. It is clear that the statute expressly provides that a certified case is to be treated in the same manner as cases originally filed before a circuit judge.

The fact that after certification § 517.520.2 (Rule 41.01) requires “the sufficiency of the plaintiff’s petition shall be adjudged according to the procedures under Chapter 517” does not bar the amendment of plaintiff to an amount in excess of an associate circuit judge’s original jurisdiction. Section 517.050 provides that no formal pleadings are necessary in the associate circuit division. This statute requires the plaintiff to file a pleading but does not require the pleading to adhere to any particular form except in certain special cases not applicable here. The test for sufficiency of plaintiff’s petition is whether the pleadings advises defendant of the nature of the action and suffices to bar another action thereon by plaintiff. Kershner v. Hilt Truck Lines, Inc., 637 S.W.2d 769, 771 (Mo.App.1982).

Permitting plaintiff to increase the prayer after certification is consistent with § 517.240.2 which permits defendant to assert a counterclaim with no monetary limitation and then have the entire case certified. Following respondent-attorney’s argument, plaintiff would be constrained by his original prayer with there being no limitation on defendant’s prayer. If the defendant is permitted to avoid the jurisdictional amount of Chapter 517, then after certification the plaintiff should have the same right. This is consistent with the express language of the statute. (§ 517.-520.2)

The respondent has the jurisdiction to permit the amendment and hear the case where the prayer is in an amount in excess of the associate circuit judge’s original jurisdiction. This is in keeping with the practice and procedure applicable before circuit judges.

In determining whether prohibition should issue we are guided by the following principles. The essential function of prohibition is to confine inferior courts to their proper jurisdiction and to prevent them from acting without or in excess of their jurisdiction. State, ex rel. McDonnell Douglas v. Gaertner, 601 S.W.2d 295, 296 (Mo.App.1980). The writ is preventive in nature rather than corrective. It issues to restrain the commission of a future act and not to undo one that has already been committed. It is generally allowed to avoid useless suits and thereby minimize inconvenience and to grant relief when proper under the circumstances at the earliest possible time in the course of the litigation. It should not be granted except when usurpation is clearly evident. State, ex rel. McCarter v. Craig, 328 S.W.2d 589 (Mo. banc 1959).

Since it is clearly evident that after certification the assigned associate circuit judge acts as a circuit judge authorizing him to hear a case without monetary limits, prohibition will lie. Otherwise, the plaintiff would be required to try his case with the limited prayer and raise this issue on appeal. Prohibition is properly used to obviate a useless suit. State, ex rel. McDonnell Douglas v. Gaertner, supra, 296.

Respondent's attorney -raises other points which we find to be without merit. These points include the contention that relator was required to apply to a circuit judge for a writ of prohibition, before applying to this court citing Rule 84.22 and State, ex rel. Bowman v. Block, 620 S.W.2d 69 (Mo.App.1981). Respondent’s attorney misses the point. The respondent associate circuit judge was appointed to hear this case as a circuit judge and hence, Rule 84.22 and State, ex rel. Bowman v. Block, supra, are not applicable.

Next, respondent’s attorney contends that relator is not entitled to a jury trial because relator’s request for a jury trial was not timely made citing local rule 63.5.1 which requires that requests for trial by jury in the associate circuit division shall be made within 20 days of the return date following service of the defendant. However, the statute (§ 517.630) governing demand for jury trial in the associate circuit division provides that a jury trial can be demanded “before the judge shall commence an investigation of the merits of the cause, by an examination of the witnesses or the hearing of any other testimony.” This statute further provides that “in the event a jury trial is requested, the case shall be certified for assignment as provided in § 517.520.” This procedure was followed by respondent judge and the request for a jury trial was timely made. Further there was no objection by respondent’s attorney that the request for a jury was not timely made. The only objection made below was that as a result of the amendment the jurisdiction of the associate division was exceeded. The point is without merit.

For an erudite analysis of the procedures to be followed for matters pending before an associate circuit judge see two works by Judge Robert S. Cohen, Actions Before Association Circuit Judges, Missouri Civil Actions, Volume II, The Missouri Bar (1981), Ch. 24 and Civil Practice Before Associate Circuit Judges Since the Court Reform, 37 J.Mo. Bar 217 (1981).

The preliminary rule of prohibition is made absolute.

PUDLOWSKI and SIMON, JJ., concur.


author: SHANGLER, Judge.

text:
    Kenneth Waldo WISDOM, Appellant, v. Carolyn B. WISDOM, Respondent.
    Nos. WD 36094 & 36098.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.

      James J. Wheeler, Ketesville, for appellant.
    Louis F. Cottey, Oswald & Cottey, P.C., Kirksville, Sheryl B. Etling, Stinson, Mag & Fizzell, Kansas City, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SHANGLER, Judge.

Our preliminary order of prohibition issued against the respondent circuit judge to stay enforcement of a judgment of contempt against the former husband for refusal to transfer to the former wife cash on deposit under the terms of a property settlement agreement approved by the court and incorporated into the dissolution decree. The petition alleged jurisdictional irregularity in the contempt proceeding and judgment. The husband filed a concurrent appeal. Our order consolidated the proceedings. The respondent circuit judge moved to dismiss the prohibition proceeding and to quash our preliminary order on grounds that the remedy by appeal was adequate. We agree that whatever defect in jurisdiction and judgment for contempt the petition for prohibition pleads, is open to redress by appeal. Teefey v. Teefey, 533 S.W.2d 563, 566[4] (Mo. banc 1976). We sustain the motion of the respondent and quash our preliminary order in prohibition.

We review the merits of the appeal.

The marriage was dissolved by a decree of the circuit court. In advance of that court proceeding, the principals, Waldo and Carolyn Wisdom, executed under oath a property settlement agreement. The court approved the contract and integrated the terms into the judgment. The formal agreement set over to each spouse the separate property of each as defined, and then divided the marital property. Paragraph 2.B.(2)e. of the agreement set over to the wife a numbered passbook and two certain certificates of deposit which represented $30,652 cash on deposit at the Macon Building & Loan Association and

“cash in the amount of $25,000 on deposit to HUSBAND’S credit at Callao Community Bank [emphasis added].”

The remainder of the cash on deposit to the credit of the spouses in that bank “after delivery to WIFE of the sum of $25,000” [original emphasis] as provided in Paragraph 2.B.(2)e. was set over to the husband under Paragraph 2.B.(l)k. of the agreement. On the day of the dissolution proceeding, March 6, 1984 [also the date of execution of the property settlement agreement], the husband signed a check to the order of the wife in the sum of $25,000 drawn upon the Callao Bank. That check was dishonored by the drawee bank, and the wife remains without delivery of the funds.

The wife then, on May 25, 1984, brought a Motion for Contempt, and an order to show cause issued against the husband. The motion alleged as the contempt that the husband has refused to transfer to the wife a fund of $25,000 on deposit in the Callao Bank despite the mandate of the dissolution judgment. The order to show cause directed the husband to give reason why the failure to deliver the fund of $25,-000 to the wife as mandated in the dissolution judgment should not be adjudged a contempt of court. The order of contempt rests on the contumacy that the husband “refus[ed] to transfer to [the wife] the fund of $25,000 described in said motion and the [dissolution] decree,” and directs the husband to forthwith compliance — and, “in particular to transfer to [the wife] the fund of $25,000.” [emphasis added]

The contempt of court was adjudged on June 13, 1984. Thereafter, on July 3, 1984, the husband filed with the court to justify the nondelivery of the $25,000 fund, a formal document nominated Transfer of Fund. That document recited that at the time the check for $25,000 to the wife was executed, the husband had a line of credit with the Callao Bank with a balance of more than $25,000 still available, but that the Callao Bank without the authority or knowledge or consent of the husband can-celled the line of credit, and refused to honor the check delivered to the wife on March 6, 1984. The document explained further that at the time the check was made to the order of the wife and delivered to her, the husband acted with the belief that the sum of $25,000 was a credit available to the husband and was tantamount to a deposit. The document asserts that these events show that the execution and delivery of the check was a good faith attempt at compliance with the dissolution order. The husband then tendered, to purge the adjudged contempt, an assignment and delivery to the wife “CASH IN THE AMOUNT OF $25,000 ON DEPOSIT TO KENNETH WALDO WISDOM’S CREDIT AT CALLAO COMMUNITY BANK” with the direction that the transfer and assignment be effective as “to all cash and credits, including all lines of credit” of the husband at the bank “as of March 6, 1984,” and further, instructed the Callao Bank to deliver $25,000 in cash to the wife.

The court refused the Transfer of Fund justification and tender as a purgation of the contempt of court. The entry of that judicial action, although peremptory, rests on the implicit term of the property settlement agreement and of the dissolution judgment: that the husband transfer to the wife a fund in being — $25,000 on deposit at the Callao Bank. To requite the dissolution order, and to purge from contempt, the Transfer of Fund document does not tender the $25,000 fund on deposit in esse at the time of the dissolution judgment, and as that order directs, but merely offers in lieu “all cash and credits, including all lines of credit” of the husband at the bank as of March 6, 1984. The dishonored check of that date and the cancellation of credit already exercised by then are self-evident proofs that the tender was empty and that the contempt continued. The tender amounted to nothing more than an assignment to the wife of any claim by the husband against the bank for cancellation of the line of credit, and not to deliver the $25,000 fund in being — as the dissolution judgment and the order of contempt decree.

The evidence attempted by the husband in response to the order to show cause no more than reasserted, albeit more amply, the premises for exculpation and purgation from contempt posited by the Transfer of Fund document. That evidence intended the proof through witness Harris, chief executive officer of the Callao Bank until the end of February 1984, that the bank and the husband had a line of credit agreement for a term from January 1984 to January 1985 in the amount of $200,000 [secured by a promissory note], and that at the time the husband executed the check there remained about $50,000 unused credit. That witness would prove also that in February 1984, Harris was informed by the husband of the imminent need of $25,000 for “a cash settlement” with the wife, and Harris told the husband to write the check and the bank would apply that amount against the line of credit. Harris would also testify that on March 6, 1984, he informed counsel for the wife by telephone that the $25,000 check by the husband would be paid by the bank when presented. The husband offered to prove much the same by his own testimony —including that he was present when counsel telephoned Harris for assurance, and received assurance, that the bank would honor the check of the husband to the wife for $25,000.

The tender of this evidence was rejected by the court as immaterial to the issue: the refusal and failure to deliver to the wife the fund of $25,000 on deposit described in the property settlement agreement term incorporated as a judgment,

The husband argues on appeal that the evidence was tendered to prove compliance with the terms of the agreement and judgment, and hence the rejection by the court prejudiced the attempt to show cause and be free from an adjudication of contempt. That claim of error was not presented by the brief, and so does not engage our review. Gover v. Empire Bank, 574 S.W.2d 464, 468[1] (Mo.App.1979).

The brief on appeal makes a composite attack on the validity of the judgment of contempt, but as a single point.

The husband asserts first that the term of the property settlement agreement incorporated into the judgment — which directs the husband to deliver to the wife cash in the amount of $25,000 on deposit —constitutes a judgment for the payment of money, and so may not be enforced by the contempt power. That argument, as it applies to a decree of dissolution, reverts to the principle which obtained prior to State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976). Stanhope decided that a judgment for money which rests on an obligation of the marital status represents [l.c. 573] “something more than an ordinary debt or judgment for money.” Stanhope dealt with a judgment for alimony. Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976) extended the Stanhope rationale to sustain the contempt power to enforce a judgment for child support. Yeager v. Yeager, 622 S.W.2d 339 (Mo.App.1981), extended the Stanhope rationale to enforce by contempt the payment of any money component of the property division provision of a judgment, and Haley v. Haley, 648 S.W.2d 890 (Mo.App.1982) followed suit. Our own decision in McLerran v. McLerran, 562 S.W.2d 710 (Mo.App.1978) allowed to stand a contempt adjudication for refusal to deliver possession of property-

The judgment was enforceable by contempt if for no other reason than that the subject of the adjudication was a specific fund: cash in the amount of $25,000 on deposit to the credit of the husband at the Callao Bank. The power of the court to enforce such a judgment by contempt rests on the independent principle [Ex Parte Fuller, 330 Mo. 371, 50 S.W.2d 654, 655[1] (banc 1932) ]:

“ ‘[A]n order directing the payment of specific funds adjudged to be in the possession or control of the person at the time of the trial may be enforced by contempt proceeding, and punishment may be inflicted for disobedience of . the order.’ ”

The dissolution decree adjudges that at the time of rendition cash in the sum of $25,000 was on deposit at the Callao Bank to the credit of the husband — that is, a fund — and directs the transfer of that fund to the wife. The fund, therefore, was at that time under the control of the husband. The decree was in evidence, as was the fact of nondelivery — that is, noncompliance with the decree. Thus, a prima facie case of contempt was proven. Hopkins v. Hopkins, 626 S.W.2d 389, 391[1, 2] (Mo.App.1981). In a proceeding for civil contempt for noncompliance with orders in a dissolution of marriage judgment, the contemnor has the more ready access to any facts to excuse the default. Thus, the contemnor bears the burden to prove that noncompliance was not an act of contumacy. In re Marriage of Vanet, 544 S.W.2d 236, 246 (Mo.App.1976). A contempt, in any case, may be adjudged only for disobedience of an order of the court within the power of the contemnor to perform, or for an inability to perform brought on by voluntary conduct of the contemnor. Ex Parte Full er, supra, 50 S.W.2d 1.c. 657; Teefey v. Teefey, supra, 1.c. 566[6, 7].

The fund on deposit to the credit of the husband at the Callao Bank was in existence at the time the dissolution decree was entered. The husband attempted no evidence that the fund no longer existed at the time the contempt for nondelivery was entered, or that control or possession was beyond him. The recitations of the Transfer of Fund document tendered to justify nondelivery of the fund and the evidence offered as proof at the contempt hearing do not dispute that the property settlement agreement incorporated as a judgment directs the transfer of an existent fund. Nor do they propose to explain that the fund no longer exists, and why. They offered only circumlocutions and evasions as to why the fund was not paid. The continued existence of cash on deposit in the sum of $25,000 to the credit of the husband at the Callao Bank was never refuted. The husband continues to resist to perform an order the evidence shows remains within his power to perform. The exercise of contempt to compel the performance was lawful. The point is denied.

The husband next contends that the judgment for contempt is invalid because the dissolution judgment does not direct him to perform the specific act the contempt adjudges he disobeyed. Of course, disobedience of an order by a person the order does not address is not contempt. Ex Parte Le Mond, 295 Mo. 586, 245 S.W. 1057, 1058[1] (banc 1922). The judgment of contempt adjudges that the husband “refus[es] to transfer to [wife] the fund of $25,000 described in said motion [for contempt] and the decree of this Court dated 6 March 1984] and orders forthwith that the husband transfer the fund to the wife” [emphasis added]. The husband argues that neither the property settlement agreement nor the decree of dissolution employs the term transfer, hence the neglect of such an initiative was not a disobedience punishable by the contempt power. A very purpose of a division of the marital property, whether by concurrence of the spouses or by act of the court, is to sever title into separate estates for separate ownership. The means to effectuate that change is usually described as a transfer. See Transfer, Black’s Law Dictionary (Fifth Edition). The property settlement agreement requires the husband to deliver the described fund of $25,000 to the wife. The dissolution judgment incorporates that terminology. The agreement expresses the undertaking of the signatory spouses to “execute all deeds, assignments of title, documents or other papers as may be necessary to enable the other party to deal with his or her property and to carry out the purposes and intents of this contract.” The dissolution judgment incorporates that provision and imposes the further direction: “the parties are ordered to perform each and every term and condition [of the agreement as incorporated]. The point is denied.

The husband next contends that the judgment is invalid for failure to recite the facts and circumstances which constitute the contempt. The husband assigns no specific deficiency. We discern none. The point is denied.

The final point contends that the judgment imposes monetary sanctions unrelated to a civil contempt, and were therefore invalid. The order of contempt directed compliance by June 27,1984, or payment to the wife “a per diem fine or penalty of $100 for each day thereafter that he fails to do so.” The order directed the payment to the wife of a sum as attorney fee incurred to enforce the judgment. The order also directed the husband to pay the wife an additional $1,300 as the damage accrued to her from the deprivation of the use of the fund as the result of the contumacy of the husband.

The purpose of civil contempt, as contradistinguished from criminal contempt, is to remedy, not to punish: it is to enforce obedience to a judgment by a party the judgment intends to benefit. Teefey v. Teefey, 533 S.W.2d 563, 565[1] (Mo. banc 1976). In like manner, the sanctions which follow a judgment of civil contempt are meant to remedy — to coerce compliance— and not as a penalty, as in criminal contempt. Division of Employment Security v. Weaver, 614 S.W.2d 729, 731[4-7] (Mo.App.1981). The civil contemnor retains the power to terminate any sanction, even imprisonment, by the act of compliance — an alternative not open to the criminal con-temnor. Chemical Fireproofing Corporation v. Bronska, 553 S.W.2d 710, 714[5, 6] (Mo.App.1977). Thus also, a money sanction in a civil contempt functions only to remedy the contempt and to coerce the contemnor to perform. For that reason, a peremptory fine per se, unrelated to the performance sought, functions only to punish and not to compel. Redifer v. Redifer, 650 S.W.2d 26, 28[3-5] (Mo.App.1983). A money sanction imposed to enforce a civil contempt adjudication, rather, is per diem, continues only as long as the disobedience continues [Chemical Fireproofing Corporation v. Bronska, supra, 1.c. 715[7] ] and properly bears some relation to damages occasioned by the default in performance [.Division of Employment Security v. Weaver, supra, l.c. 731[4 — 7] ].

The peremptory sanction of $1,300 is unrelated to any performance— and so is beyond the power of the con-temnor to purge — and so coerces no compliance with the order of the court. It punishes the husband, but without remedy to the wife. The sanction of $100 per day as long as noncompliance continues, intends to coerce compliance — and hence a remedy to the wife. The amount imposed, however, bears no relation to any damage incurred to the wife from deprivation of the $25,000 fund, and so smacks of penalty. There was no evidence of damages, nor does any insight of judicial notice supply that deficiency. We remand, however, to allow the court to reconsider the money sanction and to formulate that element of the judgment in a manner consistent with the principles of civil contempt.

The motion of the respondent judge to set aside our preliminary order in prohibition [case No. WD 36,094] is sustained, and the order is hereby quashed.

The judgment on appeal [Case No. WD 36,098] is affirmed as to the adjudication of contempt, but is reversed as to the money sanction of $1,300, and is reversed and remanded for reconsideration as to the money sanction of $100 per day.

All concur.


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Edward FAULKENBERRY, Defendant-Appellant.
    No. 48129.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.

      Robert B. Ramsey, St. Louis, for defendant-appellant.
    Gordon Ankney, St. Louis, for plaintiff-respondent.
   SNYDER, Judge.

Appellant Robert Edward Faulkenberry was found guilty by a jury of assault third-degree in violation of § 565.070.1 RSMo 1978. The complaining witness was his ex-wife. The judge assessed a $750.00 fine as punishment.

Appellant raises twelve lengthy points on appeal, but it will- be unnecessary to discuss all of them. The cause is reversed and remanded for a new trial because of the erroneous admission of evidence which occurred during the cross-examination of appellant.

One of appellant’s points alleges error in the denial of his motion for judgment of acquittal at the close of the state’s case because the state failed to make a submissive case. Reviewing the evidence in the light most favorable to the verdict, this court finds that there was sufficient evidence for submission of the charge to the jury. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981).

The jury could have found that around midnight on January 17, 1983 appellant telephoned his ex-wife from the Sunset Hills police station where he was being held on a charge of driving while intoxicated. Elizabeth Faulkenberry, the ex-wife and the complaining witness, and David Faulkenberry, son of appellant and Elizabeth, went to the Sunset Hills police station and arranged for the release of appellant.

They left the police station in two different vehicles and drove to appellant’s house. Appellant and Elizabeth went to the bedroom where Elizabeth suggested that appellant remove his clothes and get into bed. Appellant, according to Elizabeth’s testimony, physically restrained her from leaving the bedroom for about an hour and after she escaped, knocked her all the way across the room.

David testified that appellant then picked up a metal rod, which David thought was a poker, and threw it at the door frame and wall. There was no testimony that appellant hit either Elizabeth or David with the poker.

There was also testimony that Elizabeth and appellant struggled in the backyard after leaving the house and that appellant was restraining Elizabeth physically when two deputy sheriffs arrived. Appellant released Elizabeth when one of the deputies told him to do so. The deputies had been notified of the situation by David who had driven to an establishment at High Ridge where he said he knew he would find law officers.

David had requested that the officers come to the Faulkenberry residence. When the deputies first saw Elizabeth, she had dried blood on her lips and mouth and minor abrasions or contusions on her arms.

There was conflicting evidence from the appellant, but a thorough review of the transcript shows that there was sufficient evidence to take the case to the jury. State v. Simmons, 494 S.W.2d 302 (Mo.1973).

In appellant’s second point he asserts the trial court erred in allowing the introduction of certain evidence. This court finds that it was error to allow the state to question appellant about being a professional gambler. The error was not harmless. Therefore, the cause must be reversed and remanded for a new trial.

On cross-examination the prosecutor asked appellant what he did for a living. He then asked whether appellant had ever put another occupation down on an income tax return. Appellant objected to the question because it was beyond the scope of direct examination, and the court sustained the objection.

The prosecutor then asked, “Did you put down you were a professional gambler?” Appellant answered, “I do not recall.”

In a side bar conference at which defense counsel objected to the professional gambler question, the court said it was the state’s right to question the witness’s credibility and denied the mistrial which defense counsel had requested. The state then asked another question about appellant’s being a professional gambler to which appellant replied that he had never had a profession in gambling.

“The extent of cross-examination rests largely at the discretion of the trial court and an appellate court will not interfere unless the discretion is abused. State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492 (1948).” State v. Dunn, 577 S.W.2d 649, 653[3,4] (Mo. banc 1979). In the case under review the trial court abused its discretion.

A question asking whether a defendant had stolen property from an automobile in St. Louis County was held to be prejudicial error by the Supreme Court in State v. Dunn, supra. The prosecutor’s question about appellant’s being a professional gambler was similarly erroneous.

The Supreme Court said:

Thus, it is seen that although a defendant testifying in his own defense may, as a general proposition, be impeached the same as any other witness, nevertheless, a court should, on objection being made, limit certain cross-examination of a defendant where the cross-examination is technically purely collateral as to general credibility and the nature is such as to impair the defendant’s right to a fair trial on the charge brought against him. This does not apply to prior convictions of criminal offenses.

State v. Dunn, supra at page 653[1].

The cross-examination concerning being a professional gambler was purely collateral to appellant’s credibility. It impaired appellant’s right to a fair trial on the assault charge.

Appellant’s occupation was not relevant to the case. The question was obviously intended to show that appellant was a man of low moral character. It impaired appellant’s right to a fair trial. His character was not at issue. Gambling is illegal in Missouri. Appellant’s answer, if it had been in the affirmative, might have exposed him to a criminal investigation. The cause is reversed and remanded on this point.

In his second point relied on appellant also refers to other evidentiary rulings which were arguably erroneous and prejudicial to appellant. It will be unnecessary to discuss the other rulings in detail because upon retrial the evidence may not be presented in exactly the same manner. It is likewise unnecessary to speak to the other points advanced by appellant except for his speedy trial complaint.

Appellant argues the trial court erred in not dismissing the charge because he was not brought to trial within 180 days after arraignment as required by § 545.780 RSMo.1978 (Repealed 1984). The delay which resulted from hearings on defendant’s pretrial motions is excludable in calculating the 180 day period. State v. Britt, 651 S.W.2d 566 (Mo.App.1983). That delay brought the time within which the defendant was tried well within the 180 day requirement.

The judgment is reversed and the cause remanded.

SMITH, P.J., and SATZ, J., concur.


author: SMITH, Presiding Judge.

text:
    Nancy VAN ZANT, Plaintiff-Respondent, v. HUMAN DEVELOPMENT CORP., Defendant-Appellant.
    No. 48429.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Louis Gilden, St. Louis, for defendant-appellant.
    Raymond Howard, St. Louis, for plaintiff-respondent.
   SMITH, Presiding Judge.

Human Development Corporation (HDC) appeals from a judgment against it for $5075 for breach of an oral contract. We reverse.

Plaintiff was an employee of defendant in its Head Start program. The program is funded by the United States Government and was established by 42 U.S.C. § 9831 et seq. Local agencies receive grant money for operation of the program. 42 U.S.C. 9836-37. The Department of Health and Human Services (HHS) shall prescribe rules and impose conditions governing the award and use of grant money. 42 U.S.C. 9839(c). The HHS terms and conditions of the grant award to HDC provide “... expenditures may not exceed the maximum limits set in the approved budget, subject to allowable flexibility guidelines published by HHS.” Requests for amendments in the grant as approved must be requested in writing.

Ms. Van Zant was hired as Assistant Director of the Head Start program on March 16, 1981. At that time she was officially informed of her new position in writing. That document stated the position, the effective date of March 16, 1981, and the salary of $630.00 bi-weekly. Plaintiff signed that document on March 18, 1981. The budget approved by the HHS Regional Office provided for a salary for Assistant Director of $16,380 annually or $630 bi-weekly. Ms. Van Zant testified that prior to being hired she was told orally by the director of HDC that she would receive a salary of $730 bi-weekly. She was aware that salaries had to be those prescribed by the budget and did not dispute that the budget approved by HHS provided for a salary for her position of $630 bi-weekly.

HDC served as an agent of the Federal Government and was bound by its regulations in the expenditure of public monies. Ms. Van Zant was aware of those regulations. HDC’s director had no authority to waive them. There was no evidence of the “flexibility guidelines” referred to in the grant. Plaintiff accepted employment after being informed in writing of the salary and knew that her salary was determined by the budget which provided for $630 bi-weekly. The defendant’s motion for directed verdict and for judgment in accord with that motion should have been granted.

Judgment reversed.

SNYDER and SATZ, JJ., concur.


author: KAROHL, Judge.

text:
    Carol SEITHEL, et al., Plaintiffs-Appellants, v. Karen CLIFFORD, Defendant-Respondent.
    No. 48519.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 19, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Edward Delworth, Overland, for plaintiffs-appellants.
    F. Douglas O’Leary, St. Louis, for defendant-respondent.
   KAROHL, Judge.

Plaintiff Carol Seithel appeals from a judgment for defendant in an action for personal injuries she sustained in a one car automobile crash. Her parents, plaintiffs Lawrence and Dorothy Seithel appeal from the judgment for defendant on their derivative claim for medical expenses. Carol Seithel was a passenger in a car driven by defendant Karen Clifford.

Plaintiffs’ sole point on appeal is that the trial court erred in submitting a converse instruction on both of the plaintiffs’ verdict directing instructions. They contend that when multiple plaintiffs submit the same theory of recovery (here res ipsa loquitor negligence) only one instruction conversing that theory may be given.

The facts are not in dispute. The automobile collision which gave rise to the lawsuit resulted when the automobile operated by defendant left the roadway and struck a telephone pole. Appellant Carol Seithel sued for her injuries and her parents, appellants Lawrence and Dorothy Seithel, sued on their derivative claim for medical expenditures and loss of services. The jury returned its verdict for the driver.

Plaintiff Carol submitted the following instruction:

INSTRUCTION NO. 8
Your verdict must be for plaintiff Carol Seithel if you believe:
First, defendant Karen Clifford was the driver of the automobile, and
Second, the automobile left the street and struck a telephone pole, and
Third, from the facts in evidence and the reasonable inferences therefrom, you find such occurrence was the direct result of defendant’s negligence, and
Fourth, as a direct result of such negligence plaintiff Carol Seithel sustained damage. [MAI 31.02(2) ].

The verdict directing instruction for appellants Lawrence Seithel and Dorothy Seithel was the same as Instruction No. 8 except the following paragraph Fourth, was submitted,

INSTRUCTION NO. 12
Fourth, as a direct result of such negligence plaintiffs Lawrence Seithel and Dorothy Seithel’s child Carol Seithel was injured and plaintiffs Lawrence Seithel and Dorothy Seithel thereby sustained damage. [MAI 31.02(2) and 31.04]

The converse instructions were as follows:

INSTRUCTION NO. 9 [and No. 13]
Your verdict must be for defendant on the claimfs] of Carol Seithel [Lawrence Seithel and Dorothy Seithel] unless you believe that defendant was negligent. [MAI 33.03(2) ]

Appellants contend it is error to give two converse instructions conversing the same theory of liability. The cases cited by appellants are inapposite because they were decided prior to the implementation of the “packaging” concept of instructing juries which was ordered by the Supreme Court, effective January 1, 1982.

The MAI explanation on packaging states:

It will be up to the trial judge to determine the basis for single ‘packaging’ of a complex case so that the overall instructions will present the case to the jury in a manner which will thus allow them to consider all the issues in the case in an organized, understandable, and comprehensible manner. In most instances, the case should be packaged so that the claim for damages of each party asserting a claim for damages will be covered by a separate package. MAI No. 2.00 at 21. (3rd Ed., 1981).

The explanation adds: “ ‘[pjackaging’ is not intended to be a rigid set of rules.” MAI No. 2.00 at 24. (3rd Ed., 1981).

The MAI explanation gives as an example the case where a plaintiff’s wife brings a claim for loss of consortium, along with the husband’s claim in a personal injury case. The explanation states:

... [t]his would be a separate claim and would be included in a second package. Since plaintiff [husband’s] contributory negligence would also bar his wife’s claim for consortium, similar contributory negligence instructions [would] be included in both packages. This is necessary so that each claim will contain all of the instructions, except the general instructions, which are necessary for the complete submission of that particular claim. MAI No. 2.00 at 21-22. (3rd Ed.1981). (emphasis added)

This court recently held, in a wife’s suit for medical malpractice and her husband’s derivative action for loss of consortium, that “the converse given for the wife’s verdict director could be used again in the husband’s package ‘so that each claim will contain all the instructions ... which are necessary for the complete submission of that particular claim.’ ” Stephen v. Lindell Hospital, 681 S.W.2d 503, 508 (Mo.App.1984). This decision is controlling here.

Finding no error in the use of the same converse in both packages of instructions we affirm the trial court judgment.

Judgment affirmed.

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


author: PER CURIAM.

text:
    Reginald JORDAN, Movant, v. STATE of Missouri, Respondent.
    No. 48696.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    William J. Shaw, Public Defender, Clayton, for movant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Movant, Reginald Jordan, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Affirmed. Rule 84.-16(b).


author: CRANDALL, Judge.

text:
    STATE of Missouri, Respondent, v. Norman W. MATTOX, Appellant.
    No. 47284.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.

      Jay R. Burns, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Defendant Norman W. Mattox appeals from a conviction in a jury trial of carrying a concealed weapon. § 571.115, RSMo (1978) (repealed 1981), (now § 571.030, RSMo (Supp.1984)). He was sentenced to six months in jail and fined $2000. Execution of the jail term was suspended and the defendant was placed on three years’ probation.

Defendant alleges five points on appeal: (1) the trial court’s failure to instruct the jury on the intoxication defense; (2) failure of the State to make a submissible case; (3) improper closing argument by the State alluding to an offense not charged; (4) the trial court’s failure to instruct the jury on the exception to the crime of carrying a concealed weapon for those traveling on a continuous journey peaceably through the state; and (5) the admission of State’s evidence of offenses not charged. We affirm.

The record viewed in the light most favorable to the verdict disclosed that on the evening of August 21, 1981, a Bridgeton, Missouri police officer, Michael Push, observed a pickup truck being driven carelessly and at high speed by the defendant. Officer Push used his emergency lights and siren to get the attention of the defendant, who pulled the truck to the shoulder of the road. Another officer, Steven Zellner, arrived on the scene as Officer Push approached the pickup. The defendant appeared intoxicated. His clothes were disheveled, he smelled of alcohol, and was unsteady on his feet. The defendant met Officer Push at the rear of the pickup, and Officer Push asked to see a driver’s license. After fumbling for a time, the defendant walked backward to the driver’s side of the truck and when he got near the seat, lurched forward toward a shirt on the seat. Officer Push grabbed the defendant, and with the help of Officer Zellner, subdued him.

A loaded .44 caliber magnum revolver was found on the seat under the shirt. Officer Push testified he could not see the gun but could see the shirt prior to subduing the defendant.

Prior to assisting in subduing the defendant, Officer Zellner had looked inside the cab of the truck from the passenger side, using a flashlight. He testified that he could only see a shirt on the seat and did not see a gun at that time.

Defendant’s first point alleges error in the trial court’s refusal to instruct the jury on the intoxication defense. MAI-CR2d 3.30.1. “To support an instruction on this defense, evidence must be presented that tends to show defendant was so intoxicated that he did not know what he was doing.... It is not every degree of intoxication that is a defense.” State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). “ ‘[T]he condition of intoxication must be so extreme as to suspend all reason.’ ” State v. Cole, 662 S.W.2d 297, 301 (Mo.App.1983), citing People v. Hayes, 37 Ill.App.3d 772, 347 N.E.2d 327, 329 (1976). There must be substantial evidence of severe intoxication before an instruction can be given to the jury. Bienkowski, 624 S.W.2d at 108; see also State v. Urhahn, 621 S.W.2d 928, 933 (Mo.App.1981).

In two recent cases, this court affirmed trial court decisions refusing to submit voluntary intoxication instructions. In State v. Smith, 684 S.W.2d 519 (Mo.App.1984), this court found that because the defendant was able to testify in detail about his actions at the time of the crime, he was not entitled to submission of the instruction. The defendant had “testified too much,” the court said, citing Bienkowski, 624 S.W.2d at 108.

In State v. Madison, 684 S.W.2d 532 (Mo.App.E.D.1984), this court found the defendant’s confessions indicated he was aware of his actions on the night the crime occurred, and that the trial court did not err in refusing to submit the intoxication defense instruction.

In the present case, the defendant testified in detail about the night he was arrested. He testified as to times and distances. He detailed his actions prior to and during his arrest. The defendant produced no evidence that he was so intoxicated he did not know what he was doing. Defendant’s first point is denied.

Defendant’s second point claims the State failed to make a submissible case of carrying a concealed weapon. ‘A prima facie case [of carrying a concealed weapon] is made when the State’s evidence or reasonable inferences therefrom demonstrate a) the carrying of a dangerous or deadly weapon, b) concealed on or about the person, c) along with an intent to so conceal.’ ” State v. Shaw, 647 S.W.2d 612, 613 (Mo.App.1983), citing State v. Achter, 514 S.W.2d 825, 827 (Mo.App.1974).

Defendant claims the latter two elements were not proven. He claims first that there was a possibility the gun was partially exposed in the truck when the officers approached; and consequently, since a partially covered weapon is not prohibited by § 571.115 (now § 571.030), State v. Payne, 654 S.W.2d 139, 141 (Mo.App.1983), that the State failed to make a submissible case. Defendant relies on testimony by Officer Push that it was possible the handgun may have been partially exposed, and that he did not have a clear view of the seat.

Reviewing the issue of submissibility, we must accept as true the evidence most favorable to the State and all favorable inferences therefrom and disregard all evidence to the contrary. State v. Patterson, 624 S.W.2d 11, 12 (Mo.1981). Even considering Officer Push’s cited testimony on this point, the State met the requirement of demonstrating concealment.

[Generally to meet the test of concealment the gun must not be discernible by ordinary observation.... A weapon is not concealed simply because it cannot be seen from a single vantage point if it is clearly visible from other positions.... If it can only be seen from one particular vantage point, however, it is considered concealed. State v. Cole, 662 S.W.2d at 300.

Here, Officer Zellner had looked into the cab of the truck, using his flashlight, from the passenger side. He could see the shirt but not the gun. Officer Push testified he could see into the cab from the driver’s side, being able to see the “floorboard area and driver’s side, the portion of the bench style seat.” He could not see a gun. He had seen the shirt in the truck prior to the scuffle with the defendant. The first time he could see the gun was after the shirt was moved. While he testified that he did not have a clear view of the entire seat area, this was because the defendant had walked backward to the cab, blocking Officer Push’s view. Portions of the defendant’s body can be considered when determining whether a weapon is concealed. State v. Murphy, 610 S.W.2d 382, 384 (Mo.App.1980). In addition “[a] police officer's testimony that he did not see a pistol despite the opportunity to view the accused under conditions likely to cause a police officer to be particularly observant for weapons is entitled to some consideration both at the trial and appellate levels.” Id. The officers testified that they were fearful of a weapon being present. The State made a submissible case on the concealment issue.

Defendant also claims there was no evidence of the intent to conceal. “When the evidence proves concealment ... an inference of intent to conceal arises from the act of concealment.” State v. Jackson, 645 S.W.2d 725, 727 (Mo.App.1982). The evidence here did prove concealment.

However, the defendant seems to suggest the shirt was covering the gun by accident — that perhaps when the defendant pulled his truck to the shoulder, the truck hit a curb, knocking the gun off the dashboard where he says it was placed, onto the seat, and that the same jolt from hitting the curb knocked the shirt onto the gun. The jury heard evidence to show this was not what happened. The defendant dove for the shirt when he neared the cab of the truck. He knew the gun was there under the shirt. It was reasonable for the jury to infer he had placed the shirt over the gun, with the intent to conceal the weapon. Defendant’s second point is denied.

Defendant’s third and fourth points are not preserved for appellate review. We have reviewed the points for plain error, Rule 30.20, and find no error, plain or otherwise. Defendant’s third and fourth points are denied.

Defendant’s final point claims error in allowing the State to elicit testimony that the defendant had placed the same gun under the seat of the truck earlier in the evening and to present evidence that defendant possessed marijuana at the time he was stopped.

The testimony regarding the defendant placing the gun under the seat earlier that evening was first brought out during direct examination of the defendant. The defendant cannot now claim error. State v. Brown, 607 S.W.2d 881, 886 (Mo.App.1980); State v. Leonard, 606 S.W.2d 403, 410 (Mo.App.1980).

Regarding the marijuana, the defendant cites State v. Cox, 508 S.W.2d 716, 722 (Mo.App.1974), for the proposition that evidence of another crime cannot be admitted to prove the guilt of a defendant unless the evidence has a tendency to directly establish guilt of the charge for which the defendant is on trial. However, here the defendant opened the door for evidence of the marijuana when defense counsel offered a list of items found in the truck in an effort to show defendant was going hunting. The trial court properly held that where a portion of the list was offered by the defendant, the State could offer the remainder of the list to rebut the theory asserted by the defendant. State v. Tallie, 380 S.W.2d 425, 432 (Mo.1964); State v. Odom, 353 S.W.2d 708, 711 (Mo.1962). See also State v. Jackson, 664 S.W.2d 583 (Mo.App.1984), and State v. Jones, 646 S.W.2d 120 (Mo.App.1983). Defendant’s fifth point is denied.

The judgment of the trial court is affirmed.

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

      . As of October 1,1984, the defense of voluntary intoxication may no longer be used to negate a required mental state. § 562.076, RSMo (Supp. 1984).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis STILLIONS, Defendant-Appellant.
    No. 48422.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.

      Douglas L. Levine, Ferguson, for defendant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant appeals conviction for stealing over $150. § 570.030 RSMo 1978. This case was tried jury waived. Defendant’s motions for judgment at the close of the state’s opening statement and at the close of the evidence were denied. In these motions and on appeal defendant complains that the evidence was insufficient to sustain the conviction. We disagree and affirm the finding of guilt based upon cir-eumstantial evidence and the subsequent judgment and sentence.

In September 1982 defendant moved to St. Louis from Florida with his second wife and her child. He left Florida to avoid a former wife who was threatening to have him arrested for non-payment of child support. He rented an apartment in St. Louis under the name of Dennis Simmons so that his ex-wife or Florida authorities could not find him. He paid two months rent in cash. In the middle of October 1982 he began working for Diquie’s Market in Franklin County, Missouri under his true name.

Prior to the present crime, which occurred on December 10, 1982, there was a break-in and theft of merchandise at Diquie’s. All employees including defendant were fingerprinted and gave their birth dates and social security numbers to the police who ran a record check on each. The employees were told the information was needed for that purpose. The check on defendant disclosed no outstanding warrant for defendant. Defendant did not leave his employment to avoid the possibility of local police uncovering an active Florida warrant.

On Friday, December 10, 1982 defendant was the night manager at the market. He closed the store and locked up between 9:20 and 9:30 p.m. At that time the store and its contents were in good order. Particularly there was a price sheet affixed to a bulletin board mounted on a door in the back room which also contained the store safe. The safe and all doors were checked and locked by defendant.

On Saturday, December 11, 1982 at 7:30 a.m. defendant and the day manager, Mr. Brandt, opened the market. They found the bulletin board ripped off the wall, a price sheet on the floor, the safe open and empty, and several thousands of dollars missing. There was no evidence of a break-in.

Detective Horn seized the price sheet because marked upon it was a partial tennis shoe print. He testified that Brandt and defendant told him they had not walked on the price sheet that morning. He also testified that defendant was wearing tennis shoes. Diquie Omer, the owner of the market, said defendant wore such shoes often. After defendant’s arrest his tennis shoes were seized and ink prints made of the soles. A criminologist compared the dust print [approximately one-fifth of the full shoe print] on the price sheet with the ink prints. Utilizing plastic overlays she found a similar configuration between the dust print and the right shoe print in the area of the ball of the right foot. She found no points of dissimilarity. The cleat marks matched as to relative location and “the wear patterns are similar.” The cleats are cone shaped with the wider circle against the sole of the shoe and the smaller circle exposed. As the sole is worn away the holes become larger and farther apart. This results in the wear pattern. She concluded that defendant’s right shoe could have made the dust print. This was based on the configuration and the wear patterns “which would be the uniqueness.” She could not positively say defendant’s shoe made the dust print. In her view comparison of shoe prints is not as exact a science as ballistics or fingerprints.

Defendant left work early on Saturday, December 11, 1982 and never returned. Within a day or two he moved his residence and rented an apartment in the name of Dennis Harris. In so doing he paid $500.00 cash. Police traced the move through his stepchild’s school records.

The sum of defendant’s evidence was his own testimony. He secured the store on Friday evening and left it in good order. He could not say whether he stepped on the price sheet on Saturday morning before the police secured the scene. He used an alias and paid cash for rent both before and after the crime. His suspicious actions were solely motivated by a need to avoid arrest for failure to pay child support in Florida.

In reviewing the sufficiency of the evidence, even where wholly circumstantial, the evidence is viewed in the light most favorable to the state. All contrary evidence and inferences must be disregarded. State v. Ailshire, 664 S.W.2d 630, 632 (Mo.App.1984). It is not the duty of this court to weigh the evidence, but to determine whether there was substantial evidence to support the verdict. State v. Anderson, 663 S.W.2d 412, 414 (Mo.App.1983). Because defendant in his sole point on appeal claims error in failing to sustain a motion at the close of the state’s opening statement we recognize the authority of the trial court to sustain such motion if it affirmatively and clearly appears that the statement of the charge against the defendant cannot be sustained under any view of the evidence. State v. Seddens, 680 S.W.2d 364, 365 (Mo.App.1984). In testing the sufficiency of the opening statement, the facts stated therein and the reasonable inferences therefrom are accepted as true. Seddens, 680 S.W.2d at 365.

We conclude that the opening statement properly recognized the state’s responsibility to inform defendant of the contemplated course of the prosecution in order that he could meet the charges against him. State v. Kirksey, 658 S.W.2d 60, 61 (Mo.App.1983).

The evidence when viewed under the standard of review recognized in Ail-shire supports the judgment of the trial court. Evidence that the safe and doors were locked and no evidence of a break-in creates an inference that the thief possessed keys to the building and knowledge of the safe’s combination. There was evidence that the store, was left in good order and that the bulletin board with the price sheet attached was mounted on the door when the store was closed on Friday evening. There is evidence that defendant did not step on the price sheet at a time when he had an employee’s right to be in the back room of the store. This creates an inference that the partial foot print on the price sheet was made during the stealing. The testimony of the criminologist was evidence from which it may be inferred that defendant’s shoe made the partial dust shoe print on the price sheet found in the vicinity of the safe. This testimony was probative even if it was not represented to be as certain as fingerprint or ballistics comparisons. See State v. Degraffenreid, 477 S.W.2d 57, 60 (Mo. banc 1972). Further, there was evidence that three men and one woman worked at the market but no evidence that anyone other than defendant wore tennis shoes. Moreover the configuration and wear patterns marked on the price sheet were similar to those on the ink prints. This evidence is not only consistent with the hypothesis of defendant’s guilt but inconsistent with every reasonable hypothesis of innocence. State v. Bennett, 560 S.W.2d 310, 312 (Mo.App.1977). It also constitutes evidence of defendant’s affirmative participation in the offense. State v. Reid, 453 S.W.2d 946, 948 (Mo.1970).

In addition there is evidence that defendant took measures to avoid arrest for this stealing. “While something more than mere presence at the scene must be shown to support a conviction and while flight is, of itself, insufficient to support a conviction, State v. Castaldi, 386 S.W.2d 392 (Mo.1965), each of these circumstances may be considered as evidence of guilt by the trier of facts.” State v. Simmons, 494 S.W.2d 302, 305 (Mo.1973). The shoe print in the context in which it was proven was circumstantial evidence of the defendant’s participation in the theft. His subsequent conduct in abruptly moving to a new apartment under a newly assumed name, his failure to keep an appointment with the police to assist in the investigation and the denial of his true identity and identification under the newly assumed name at the time of arrest constitute evidence of flight. Such conduct may be considered as evidence of guilt. State v. Puckett, 611 S.W.2d 242, 245 (Mo.App.1980); Simmons, 494 S.W.2d at 305. The trial court as the trier of fact was free to disbelieve defendant’s explanation that his efforts in this regard were solely motivated by an effort to avoid a warrant for his arrest for non support. Defendant’s knowledge of the investigation of the October burglary and record check did not cause him to flee. This contradicts his present explanation. Investigation of the subject stealing did not represent a substantial hazard to the defendant when compared with the implication of guilt because of his flight after the December 10, 1982 theft.

We affirm.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommie W. OVERSTREET, Defendant-Appellant.
    No. 48524.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    William J. Shaw, Public Defender, Clayton, for defendant-appellant.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

Defendant was convicted by a jury of receiving stolen property, § 570.080, RSMo. 1978. He was sentenced as a persistent offender to fifteen years. From this conviction and sentence he appeals. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


text:
    Sandra Louise WAYNE, Respondent, v. Don Larry WAYNE, Appellant.
    No. 48804.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Don Larry Wayne, Florissant, for appellant.
    Summers, Compton, Wells & Hamburg, Steven M. Hamburg, David H. Rubin, Clayton, for respondent.
   PER CURIAM.

Dissolution proceeding.

The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. Rule 73.01. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

No error of law appears. An opinion would have no precedential value.

Judgment affirmed in accordance with Rule 84.16 (b).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Douglas WASSALL, Defendant-Appellant.
    No. 47529.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Herbert D. Schaeffer, Clayton, for defendant-appellant.
    John Munson Morris, Asst. Atty. Gen., Gary Lee Gardner, Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

Defendant appeals from his conviction of attempted rape for which he was sentenced to one year imprisonment and a fine of four thousand ($4,000) dollars. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).