text:
    Kenneth L. HARPER, Appellant, and Keith Leimkuehler, Defendant, v. Gerald W. CALVERT and Ann M. Calvert, Respondents.
    No. WD 35767.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Rehearing Denied March 5, 1985.

      James A. Rahm, Carrollton, for appellant.
    James J. Wheeler, Keytesville, for respondent.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   MANFORD, Judge.

This is a civil action seeking damages for breach of implied warranty and fraud based upon concealment. The judgment is reversed.

Five points are presented, but due to the disposition of this appeal, only one point is taken up as it is dispositive of the matter. In summary, appellant alleges that the trial court erred in its failure to sustain appellant’s motions for directed verdict (first at the close of respondents’ case and second, at the close of all the evidence) and in failing to sustain appellant’s motion for judgment N.O.V., because respondents failed to make a submissible case under the theory of fraud and respondents waived any claim for implied warranty.

The record discloses the following pertinent facts.

On October 4, 1982, respondents purchased a 1979 G.M.C. pickup truck from D & K Auto Sales. Defendant, Leimkuehler, was the owner of D & K Auto Sales. Le-imkuehler was the son-in-law of appellant Harper and agreed to sell the truck for Harper. Respondents testified to have “test-driven” the truck several times prior to purchase. As part of the sales transaction, a “Used Vehicle Order” was executed. This “order” contained a declaration, which stated, “Sold as is, no inspection.” In addition, a “box” next to the above declaration was marked with an “X”. There was also included a declaration, “I hereby make this purchase knowingly without any guarantee, expressed or implied, by this dealer, or his agent.” This latter declaration was acknowledged by the signature of respondents.

The evidence failed to reveal that either respondent talked to appellant Harper at any time prior to the purchase. In addition, the evidence regarding any representation made about the truck came from Leimkuehler, and that was to the effect that the truck used no more oil than normal for a diesel truck with over 46,000 miles.

On October 16, 1982, there was a major breakdown of the truck. This breakdown was allegedly due to a faulty repair to the engine when the engine had allegedly failed, and the earlier failure had been corrected by “brazing” the engine, “webbing” and reinforcing the “webbing”.

Respondents initiated this action on two counts. Count I was upon fraudulent concealment. Count II was upon implied warranty. The case was submitted to a jury which returned a verdict of $8,000.00 in favor of respondents. This appeal followed.

As noted above, appellant contends that the trial court erred in failing to sustain his motion for directed verdict and for judgment N.O.V., because respondents failed to make a submissible case under Count I of their petition for fraud and that respondents waived their rights to implied warranty by signing the used vehicle order containing the term “as is”.

Appellant’s point (1) is sustained upon both grounds. In the first instance, respondents failed to make a submissible case of fraud by concealment. “Concealment of an existing fact may amount to actionable fraud, the same as an actionable misrepresentation of a fact.” Metropolitan Paving Co. v. Brown-Crummer Investment Co., 309 Mo. 638, 274 S.W. 815, 823 (1925). “Willful and conscious suppression of the truth under such circumstances is as blameworthy as the willful and conscious expression of an untruth.” Metropolitan, supra, citing to Wann v. Scullin, 210 Mo. 429, 109 S.W. 688 (1908).

When fraud is alleged, the burden of proof as to each element thereof falls upon the party asserting the fraud. Fraud is never presumed. Gibson v. Smith, 422 S.W.2d 321, 327 (Mo.1968). Failure to prove any one of the requisite elements is fatal to a claim for fraud. Schnuck v. Kriegshauser, 371 S.W.2d 242 (Mo.1963).

There is absolutely no evidence upon the record herein that appellant willfully and consciously suppressed the truth surrounding the truck purchased by respondents. In addition, there is absolutely no evidence that appellant intended to deceive respondents by not disclosing the fact that the truck had been previously repaired. There is absolutely no evidence that appellant had knowledge that the truck would be rendered inoperable as a result of the previous “brazing” of and reinforcement of the “engine webbing”.

The only evidence regarding the condition of the truck was the comment by Le-imkuehler to the effect that the truck used no more oil than any other diesel with more than 46,000 miles. The oil usage was not related to the “brazing” or reinforcement of the “engine webbing”.

The evidence shows that appellant Harper did not talk with respondents prior to the purchase.

What respondents present to this court as “evidence” of fraud by concealment are statements by appellant’s trial counsel in his opening statement as to what the evidence would reveal. Neither Leim-kuehler nor Harper testified and respondents presented absolutely no evidence to establish the requisite elements of fraud by concealment. Where an attorney, in his opening statement, merely outlines anticipated proof, as was done herein, such statements are not evidence and no binding admission results. Rawlings v. Young, 591 S.W.2d 34, 38 (Mo.App.1979).

A further contention presented by appellant is that respondents failed to make a submissible case for their claim of breach of implied warranty, because the evidence revealed that respondents waived such claim by signing the “as is” statement contained within the “used vehicle order”.

Both parties herein refer this court to § 400.2-316, RSMo 1978, which states that all implied warranties are excluded by expressions like “as is”. Specifically, § 400.-2-316(3)(a) reads as follows:

400.2-316 Exclusion or modification of warranties-livestock warranties of fitness to be in writing ...
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty;

Over objection, respondents were permitted to introduce testimony to explain why they signed the “as is” statement. The Used Vehicle Order was introduced as an exhibit by respondents. It is part of the record before this court and has been reviewed. A fair reading of that exhibit leads to the conclusion that by its terms, it is unambiguous and is complete. There is no showing of any fraud, mistake, accident, or omission in either the terms of the used vehicle order or in its execution. It was error for the trial court to have permitted introduction of parol evidence relative to the Used Vehicle Order because such parol evidence in effect varied and contradicted the terms thereof. This is prohibited. State Bank of Fisk v. Omega Electronics, 634 S.W.2d 234, 237 (Mo.App.1982).

Furthermore, parol evidence may not be introduced to create an ambiguity in an otherwise unambiguous contract or to show that an obligation is something other than that expressed in the written document. Fisk, supra.

The parol evidence rule is a rule of law, not a rule of evidence, and evidence offered in violation of it must be ignored even if received without objection (which is not the case herein), and a decision must be rendered upon the writing alone. Fisk, supra.

The evidence herein reveals that testimony, over objection, was allowed during which respondents were permitted to give their interpretation of the “Sold as is, no inspection” provision.

The term “sold as is”, as a matter of law, means that all implied warranties are excluded. Section 400.2-316(3)(a). The term “as is” is not ambiguous and parol evidence contradicting its meaning is not to be permitted under § 400.2-202, RSMo 1978. Therefore, testimony by respondents should not have been allowed, and the trial court erred in admitting such evidence.

In conclusion, appellant’s charges that respondents failed to make a submissible case regarding their claim of fraud by concealment is supported by the record and respondents did fail to make a submissible case on that claim. In addition, the record reveals as a matter of law there was no implied warranty issue in this case. Thus, appellant’s position is sustained.

The judgment is in all respects reversed.

All concur.

      . Acetylene-welding


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Dwayne Richard HEDRICK, Appellant.
    No. WD 35597.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    J. Armin Rust, Regional Public Defender, Lexington, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM.

Appeal from conviction and sentence for the offense of escape from confinement, § 575.210, RSMo.1978.

Judgment affirmed. Rule 30.25(b).

All concur.


author: CLARK, Judge.

text:
    Marvin L. SHELBY, Plaintiff/Respondent, v. John Joseph SLEPEKIS, Defendant, and Commerce Bank of Blue Hills, N.A., Defendant/Appellant.
    No. WD34713.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.
    Rehearing Denied March 5, 1985.

      James Borthwick, Benjamin F. Mann, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant/appellant.
    Michael L. Gatrost, Bernard, Gatrost, Rice & Dicavalcante, Kansas City, for plaintiff/respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   CLARK, Judge.

Commerce Bank of Blue Hills, one of three defendants in this case, has appealed from the judgment entered by the court after a bench trial. Appellant contends the judgment is erroneous as a matter of law and should be reversed outright. We agree, but because the judgment did not dispose of all issues and all parties, it is not a final judgment and the appeal must be dismissed.

The evidence presented no material fact issues, the question for decision in the claim against appellant being whether it was liable to plaintiff because a fraud was perpetrated on plaintiff by a vice-president of the bank. More particularly, the question was whether a relation of principal and agent between the bank and the vice-president was proved as the essential basis for plaintiffs recovery against the bank.

Plaintiff below, Marvin Shelby, was a business owner and a long time customer of the bank. Since 1975, Shelby had dealt with the bank exclusively through John Slepekis, a vice-president and a defendant in the case. Slepekis also acted as a financial advisor to Shelby and was consulted by Shelby regarding an opportunity to purchase a business property in August, 1979. Slepekis undertook to act for Shelby in negotiations with the seller of the property and also handled Shelby’s application for a loan from the bank in the amount of $30,-000 to be used as a down payment on the purchase.

Shelby’s loan was approved and arranged by Slepekis acting for the bank and the funds were available conditioned on the conclusion of negotiations for the real estate purchase. That transaction, however, was never completed. In January, 1980 Slepekis reported to Shelby that the deal had fallen through and the property had been sold to someone else.

At this point, the events which generated this suit and which were alleged to constitute the fraud practiced on Shelby occurred. Slepekis informed Shelby that despite the failure of the intended real estate purchase, Shelby could still have the loan money to use for some other purpose. Shelby responded that he had no need of the funds, particularly as he was already indebted to the bank on other loans. Sle-pekis then proposed that if Shelby did not need the money, he, Slepekis, did because he wanted to finance a personal business venture of his own. Slepekis suggested that Shelby take the money and then loan it to him on the understanding that Slepekis would repay Shelby in 90 days and Shelby could then repay the bank. Shelby agreed.

Apparently anticipating this turn of events, Slepekis had issued the bank’s cashier’s check for $30,000 made payable to Mid-Continent Bank where Slepekis had an account in the name of “Friday’s Disco” a business entity which operated a tavern. Slepekis was one of the authorized signatories on that account. Slepekis presented Shelby a bank note form to sign for the $30,000 loan. Shelby signed the note but received no money either from the bank or from Slepekis. The form of the cashier’s check made it unnecessary for Shelby to endorse the check. Slepekis promptly deposited the check in the “Friday’s Disco” account and drew on that account to pay one Nelson for the purchase of the business.

At the time Slepekis arranged the $30,-000 loan through Shelby, he told Shelby that he did not want anyone at the bank to know about the loan or that Slepekis had actually received the money himself. As Shelby said he understood the need for secrecy at the time, it was because the bank did not want Slepekis engaging in business other than his work for the bank. Shelby agreed to keep the arrangement confidential between himself and Slepekis. The loan agreement between Slepekis as borrower and Shelby as lender was entirely oral and Shelby received nothing evidencing Slepekis’ debt to him.

No one at the Commerce Bank, other than Slepekis, was aware of the fact that Slepekis had actually received the proceeds of the Shelby loan. The transaction, evidenced only by the cashier’s check and Shelby’s note, was not entered on the bank’s records at the time in accordance with normal procedures. Later, the situation came to the attention of Clark Page, the bank president, another defendant in this case. After questioning Slepekis about his dealings with bank funds, Page requested Slepekis’ resignation. Slepekis left the bank for other employment February 12, 1980.

The bank remained unaware of the loan by Shelby to Slepekis and eventually called upon Shelby for payment of his note. Shelby in turn requested of Slepekis that he pay Shelby as he had promised but Slepekis was unable or unwilling to comply. Shelby then obtained funds through a loan obtained elsewhere and paid Commerce Bank the balance due on the obligation.

Plaintiff’s case against Slepekis was based on the contention that Slepekis had perpetrated a fraud in procuring the loan in that he had no intention of ever repaying plaintiff the sum borrowed. As to Commerce-Bank, plaintiff claimed it was jointly liable for the fraud because Slepekis acted in the transaction as agent for the bank. As plaintiff’s petition alleged: “That in all events and things herein alleged, Defendant John Joseph Slepekis was acting in and on behalf of Defendant Commerce Bank of Blue Hills within the scope of his agency, employment, service and authority, both express and implied * * *.”

Shelby contends the theory of Slepekis’ agency is sustainable because the bank caused Slepekis to be placed in a position of authority to make loans and thereby perpetrate the fraud. He also claims that Sle-pekis had the authority of an implied agent by reason of his activities on behalf of the bank.

The relationship of principal and agent and resultant liability of the principal for the acts of the agent may be created by the express grant of authority by the principal or, absent express agency, the relation may be one of implied or inferred agency or apparent agency. The evidence in this case did not show Slepekis to be the agent of the bank in his transaction with Shelby under any concept of agency.

There was no evidence and Shelby does not contend that Slepekis had any express authority from the bank to arrange loans to bank customers with the object of procuring loan funds for himself. The scheme was entirely for Slepekis’ own benefit and was conducted with the objective of concealing the transaction from the bank. The facts immediately preclude any claim of express agency.

Implied or inferred agency is that relationship which exists by reason of actual authority given implicitly by the principal to the agent and is often inferred from a course of dealing between the alleged principal and his agent. Implied authority depends on the actual relationship between the principal and the agent and not what a third party may have been told or may believe as to that relationship. Agency will not be inferred because a third person assumed it existed. Molasky Enterprises, Inc. v. Carps, Inc., 615 S.W.2d 83 (Mo.App.1981); Dudley v. Dumont, 526 S.W.2d 839 (Mo.App.1975); Dierks and Sons Lumber Co. v. Morris, 404 S.W.2d 229 (Mo.App.1966). Here, the uncontroverted fact that Commerce Bank was entirely ignorant of Slepekis’ dealings with Shelby and knew nothing of his self-serving conduct until after he resigned as a bank officer excludes a finding that an implied or inferred agency existed.

Finally, an apparent agency may be created where the conduct of the principal is such that an appearance of agency is created. When the principal’s acts or conduct lead the public to believe that the agent possesses authority to act in the name of the principal, the principal is bound by the agent for acts within the scope of the agent’s apparent authority, but then, only as to persons who, upon faith in such holding out believe, with reasonable ground to believe, that the agent has such authority and in good faith deals with the agent. To find apparent agency, the appearance of authority must have been created by the principal. Continental-St. Louis Corp. v. Ray Scharf Vending Co., 400 S.W.2d 467 (Mo.App.1966); Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5 (Mo.1970).

This is not a case of apparent agency because Shelby had no ground to believe that Slepekis had authority from the bank to negotiate loans to bank customers and appropriate the funds himself. To the contrary, Shelby had actual knowledge that the bank did not and would not approve Slepekis’ personal ventures with the loan funds. Indeed, Shelby was himself a party to concealing from the bank the fact that Slepekis was the actual beneficiary of a loan intended to finance Shelby’s real estate purchase. Shelby did not in good faith deal with Slepekis under any belief Slepek-is was acting for the bank as to the personal loan which Slepekis solicited, but instead, Shelby fully understood the transaction to be one arranged by and for Slepekis individually.

In sum, plaintiff’s case failed as a matter of law to establish an agency relationship necessary to support recovery against the bank. This determination, however, cannot finally resolve the case because the judgment appealed is not, for the reasons hereafter given, a final appealable judgment and, as a consequence, the discussion of the merits is relegated to the status of dicta. There is no jurisdiction to consider the appeal.

The parties have not raised the question of the finality of the judgment. We address that question sua sponte. It is our duty to do so in every case because jurisdiction is requisite and fundamental to any cause presented. Steinmetz v. Missouri Highway and Transportation Commission, 645 S.W.2d 36 (Mo.App.1982).

As an aid to tracing the history of this case, the circuit court file was procured on our order to supplement the legal file prepared by the parties. From this source, it is disclosed that Shelby filed his first petition on December 22, 1981 naming only Slepekis as a defendant. In two counts, Shelby sought repayment by Slepekis of the $30,000 loan and $2,000 for repairs made to an automobile. Then and thereafter, Slepekis defaulted and he neither answered nor appeared in any subsequent proceedings.

On May 10, 1982, Shelby filed a first amended petition adding Commerce Bank as a defendant. That petition in Count I asserted the claim of fraud against Slepek-is as agent and the bank as principal and contended the two were jointly liable to Shelby for the amount of the loan and interest. Count II repeated the claim against Slepekis alone for the auto repair and Count III sought actual and punitive damages from the bank for injury to Shelby’s credit and reputation. The bank filed its answer May 18, 1982.

On September 16, 1982, Shelby caused the case to be set for trial, but he proceeded only against Slepekis. The court on that date entered judgment against Slepek-is by default on Counts I and II and awarded Shelby actual and punitive damages.

Shelby next filed a second amended petition on November 16, 1982. That petition duplicated the allegations against Slepekis and the bank and added a fourth count naming Clark Page, president of the bank as a defendant. Answers to the second amended petition were timely filed by the bank and Page.

The present judgment appealed by the bank was entered February 17, 1983 after a trial in three interrupted sessions. The judgment awarded Shelby a recovery of $30,000 plus $13,000 interest against the bank on Count I and found the issues for the bank and Page on Counts III and IV. No mention was made of Slepekis or Count II in the judgment. As a consequence, the judgment did not dispose of all issues and all parties because the claims against Sle-pekis are unresolved.

The absence of any judgment in this case against Slepekis is the direct consequence of the court’s failure to render judgment against Slepekis in its entry of February 17, 1983 and the indirect consequence of the filing of the second amended petition.

It is first to be noted that in the two pleadings which named Slepekis and the bank as defendants under Count I, the allegation was that they were jointly liable for the fraud committed by Slepekis. Where two defendants are jointly liable and one defaults, a verdict of liability against the defaulting defendant may not include an assessment of damages. The judgment of liability is interlocutory only and stands in abeyance pending trial on the merits as to liability of the non-defaulting defendant and an assessment of damages if both be found liable. Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049 (1931); State ex rel. Landmark KCI Bank v. Stuckey, 661 S.W.2d 58 (Mo.App.1983). Even were it to be assumed that the interlocutory judgment as to liability of Slepekis entered September 16, 1982 survived, that judgment has never matured to finality by assessment of damages. The damages awarded September 16 were premature and the subject was ignored in the judgment rendered after trial.

The September 16, 1982 judgment against Slepekis, however, did not survive, even as an interlocutory judgment because it was rendered a nullity by the subsequent filing of Shelby’s amended petition. The interlocutory judgment was based on the petition filed May 10, 1982 and necessarily depended on the process and allegations of that petition. When Shelby filed his second amended petition, the former petition became an abandoned pleading and is not to be considered for any purpose in the case. An abandoned petition becomes a mere “scrap of paper” insofar as the case is concerned. Welch v. Continental Placement, Inc., 627 S.W.2d 319 (Mo.App.1982).

An interlocutory judgment cannot rest on an abandoned petition. The interlocutory judgment is by definition tentative requiring final action in the assessment of damages. When the petition under which liability has been determined is abandoned before the judgment matures to finality and a new petition is interposed, the issue of liability is reopened and the prior adjudication lapses.

There is no judgment in this case against Slepekis, either on the issue of liability or damages. There is likewise no judgment against appellant Commerce Bank because its liability for the alleged acts of its agent Slepekis is derivative and could only follow upon a determination that the agent Slepekis was liable. For want of a final judgment, this court is without jurisdiction to consider the appeal.

The appeal is dismissed.

All concur.

      . A sidelight of interest is the circumstance concerning Nelson. Through Slepekis, an irregular loan had been made by the bank to Nelson in the amount of $17,500. The loan was described as "unbooked.” Later investigation disclosed that when Nelson was paid by Slepekis from the Friday’s Disco account, Nelson then retired his debt to the bank. Whether this was prearranged as part of the Shelby transaction does not appear.


author: TURNAGE, Chief Judge.

text:
    Darrell R. PORTER, Plaintiff-Respondent, v. LAKE WAUKOMIS ASSOCIATION, Defendant-Appellant.
    No. WD 35589.
    Missouri Court of Appeals, Western District.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    James H. Ensz and Lowell C. Gard, Ensz & Jester, Kansas City, for defendant-appellant.
    Daniel M. Czamanske, Riverside, for plaintiff-respondent.
    Before TURNAGE, C.J., MANFORD, J., and MESSINA, Special Judge.
   TURNAGE, Chief Judge.

Darrell Porter brought suit to enjoin the Lake Waukomis Association from seizing a dock he owned and used in conjunction with his home at the lake. The court granted the injunction and the Association appealed.

The Association contends that the court erred in failing to find that Porter’s dock violated the restrictive agreement concerning docks at the lake and also erred in failing to award the Association its attorney fees. Affirmed.

Porter owns property at Lake Waukomis, and his lot is subject to the Association’s restrictions of record. The Association owns the property between Porter’s lot and the lake. It is this area or strip of land to which boat docks are attached. The restrictions require that each year the dock owners obtain a placement permit for their docks.

In 1981 the co-chairman of the Association’s dock committee attached a red tag to Porter’s dock, and sent Porter a letter which stated that a placement permit had not been issued for his dock because it needed to be painted. Porter had recently installed new siding on his house and so decided to put the same siding on his dock. The co-chairman of the dock committee was notified that Porter proposed to repair his dock and install new siding. The co-chairman informed Porter that this was fine, and did not mention that a permit would be ..required to do the work.

In the spring of 1982, a contractor employed by Porter towed the dock to the spillway and removed the sides and the deck boards. The contractor incorporated new floor and side boards with the styro-foam flotation and at least three of the old stringers. The dock was 12' x 18' after the repairs; it was 12' x 20' prior to the work.

After the dock repairs were completed and the dock was returned to its original location, someone noticed that the dock had been changed, and brought the matter to the attention of the Association’s board of directors. The minutes of the July 13, 1982, board meeting stated: “It was brought to the attention that Mr. Porter had replaced his dock and that also is oversized. [The] [mjotion [was] made that both Dave Smith and Darrell Porter be notified by registered letter that these docks do not comply with dock regulations and that they be cut down to required size of 10 x 12.”

Pursuant to this action, the secretary of the Association wrote Porter on July 24, 1982, to inform him that it had been brought to the board’s attention that Porter had placed a new dock on the lake without obtaining a building permit and that it exceeded the maximum size of 10' x 12'. The letter stated that the dock was to be reconstructed within 30 days or else the dock would be removed and the dock location forfeited.

Thereafter, Porter’s wife attended a board meeting and explained to them that the dock was not new and that the Porters did not believe they were required to cut their dock down to the size of 10' x 12'. The board maintained its original position but did agree to delay removal of the dock until the spring of 1983.

Darrell Porter filed this lawsuit to prevent the Association from carrying out its threat to remove his dock.

The heart of this controversy involves paragraph 4(h) of the restrictions applicable to the Porter property. That provision states:

Docks (excluding boarding ramps) shall be a minimum size of 8' x 10' and a maximum size of 12' x 20', except after March 1, 1975, the maximum size of any new or replacement dock shall not exceed 10' x 12'....

In several of its points, the Association asserts that Porter placed a new or replacement dock on the lake and therefore the maximum size of such dock was limited to 10' x 12'. Porter contends his dock was not a new or replacement dock, but that he had simply repaired his existing dock.

The court found that the dock was not a new or replacement dock, but that Porter’s old dock had been repaired.

Black’s Law Dictionary 940 (rev. 5th ed. 1979) defines “new”:

As an element in numerous compound terms and phrases of the law, this word may denote novelty, or the condition of being previously unknown or of recent or fresh origin, but ordinarily it is a purely relative term and is employed in contrasting the date, origin, or character of one thing with the corresponding attributes of another thing of the same kind or class.

Webster’s Third New International Dictionary 1522 (1971) defines “new”:

[H]aving existed or having been made but a short time: having originated or occurred lately: not early or long in being.
66 C.J.S. New 20 (1950) defines “new”: A relative term defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation, the opposite of the term “old.”

In Kawin v. Chrysler Corp., 636 S.W.2d 40, 43 (Mo. banc 1982), the court stated:

The term “replace”, [with new parts] given its plain and ordinary construction, means to supplant with a substitute or equivalent.

Black’s Law Dictionary 1167 (rev. 5th ed. 1979) defines “repair”:

To mend, remedy, restore, renovate. To restore to a sound or good state after decay, injury, dilapidation, or partial destruction. The word “repair” contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. (citations omitted)

Webster’s Third New International Dictionary 1923 (1971) defines “repair”: “[T]o restore by replacing a part or putting together what is torn or broken.” <

Prior to the repair work, Porter’s dock needed paint and several of the boards had rotted. The dock was never removed from the water and the repairs were made while the dock remained floating. The evidence supports the trial court’s finding that at least three of the stringers which hold the styrofoam flotation together remained in the dock.

Porter’s dock is not a new dock because it is not of recent or fresh origin, nor has it existed for only a short time. Porter simply had his original dock repaired. Neither does Porter’s dock constitute a replacement dock. His 12' x 18' dock does not “supplant with a substitute or equivalent” the 12' x 20' dock. The contractor incorporated new siding and deck boards with the existing stringers and styrofoam in order to repair the dock.

Substantial evidence exists to support the court’s finding that Porter did not place a new or replacement dock on the lake, and therefore his dock need not be cut down to the size required of any new or replacement dock after March 1, 1975.

The Association contends that Porter performed the repairs without obtaining a repair permit. However, this is directly contrary to the position taken by the Association that Porter did not repair his dock, but in fact placed a new or replacement dock on the lake. It is apparent the Association would not have granted a permit for Porter’s dock because of its position that the dock would have to be cut down to 10' x 12'. Further, the evidence showed that the Association had permitted repairs to be done without permits.

In response to Porter’s lawsuit, the Association sought a declaratory judgment that Porter’s dock violated the maximum size restrictions and was thus subject to removal. The court found against the Association. The Association now seeks to recover its attorney fees based on a restriction provision which provides that the owner must pay the Association’s attorney fees if the board determines that it is necessary to commence any suit for the enforcement of the restrictions. The board lost its attempt to enforce its interpretation of its restrictions against Porter. It is settled that attorney fees in such circumstances may be awarded only when the suit is successful. Porter v. Hawks Nest, Inc., 659 S.W.2d 786, 789[6, 7] (Mo.App.1983). The Association was unsuccessful in its suit and thus was not entitled to an award of attorney fees.

The judgment is supported by substantial and competent evidence and is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Appellant, v. Leslie Wayne PENNINGTON, Respondent.
    No. WD35965.
    Missouri Court of Appeals, Western District.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Michael D. Arnold, Pros. Atty., Gallatin, for appellant.
    Syd Weybrew, Jr., Gallatin, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   DIXON, Judge.

Pennington was charged with capital murder. Prior to trial, there was a hearing on Pennington’s motion to suppress evidence obtained from the car he was driving and to suppress statements he made to the police while in custody. The court overruled the motion with respect to the seized evidence and sustained it with respect to Pennington’s statements. The state appeals from the order sustaining the motion as to Pennington’s statements. Affirmed.

A brief statement of facts is necessary to the disposition of the issues. Deputy Sheriff Huskey responded to a call and found Clarence Wright, Pennington’s grandfather, dead in a Ford Falcon beside a county road. Based on information received from bystanders placing Pennington at the scene, the police found the Dodge he was reported to have been driving and Pennington, age 19, and his brother were taken into custody. Huskey read Pennington the Miranda warnings and Pennington later specifically stated he wished to talk to a court-appointed attorney. Pennington and his brother were then taken to the Cameron police station where Pennington was held downstairs in the 18 X 30 foot officers’ squad room and his brother was taken upstairs. Pennington was in the constant company of between three and eight officers. Officer Jones read Pennington the Miranda warnings again and Pennington stated he might want to contact an attorney. Because he did not believe Pennington fully understood the warnings, Jones repeated them, specifically asking if he understood each warning. Pennington indicated he understood and, when again asked if he wished to make a statement, said nothing. Jones then told Huskey that the Chief of Police’s office was available to him if it was needed. It is a fair inference that the defendant heard that statement. None of the officers attempted to contact an attorney pursuant to Pennington’s request.

After waiting in the squad room for approximately 20 minutes, Pennington began to speak with Jones and asked what was going to happen to him. Jones later testified, “I told the defendant that I’d seen cases before where if the guy didn’t talk that they could pin the whole rap on him, and if he wanted to make a statement don’t let the guy upstairs bury you.” The “guy upstairs” was Pennington’s brother. Officer Huskey, who was also present, told Pennington he would remain in custody for approximately 24 hours and his clothes and other evidence would be analyzed by the lab. Pennington then left the squad room, accompanied by Huskey, to use the rest room. On the way back to the desk where he had been sitting, the defendant asked Huskey whether Huskey wanted to use the office. Huskey asked the defendant if he wanted to make a statement. They went in the office, and defendant made the first of three statements.

The state has briefed two points. It first alleges the court erred in finding Pennington had standing to challenge the lawfulness of the automobile search. The court so found, but also found the search was incident to an arrest based on probable cause and was valid. It then overruled Pennington’s motion to suppress evidence obtained in the search.

The state may appeal only those orders or judgments that result in quashing an arrest warrant, suppressing evidence, or suppressing a confession or admission. Section 547.200.1 RSMo Supp. 1983; State v. Little River Drainage Dist., 490 S.W.2d 675 (Mo.App.1973). Here, the court’s order was a refusal to suppress evidence. The state is not an aggrieved party and the order does not fall within the statute’s ambit.

The state also asserts the court erred in sustaining Pennington’s motion to suppress statements made while at the station and in police custody. It contends Pennington initiated the discussion and his statements were made after a knowing waiver of his rights. The trial court found that, based on the “totality of the circumstances,” the State had not met its heavy burden to show that Pennington’s statements were voluntarily made or that his question to Officer Jones constituted an “initiation.” “[I]n reviewing the trial court’s determination on the motion to suppress, the weight of the evidence and credibility of witnesses are questions for the trial court’s resolution.” State v. Richter, 647 S.W.2d 513, 519 (Mo. banc 1983). Thus, his rulings on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion. O’Laughlin v. Barstow, 654 S.W.2d 95, 97 (Mo.App.1983).

Deputy Huskey read Pennington the Miranda warnings soon after his arrest and then asked if he wished to make a statement. Pennington did not respond but a short time later specifically requested a court-appointed attorney. At the station, Pennington was again read the Miranda warnings by Jones and he stated that he did not wish to say anything but might “want to contact a lawyer.” Officer Jones, who did not believe Pennington understood the warnings, repeated them and Pennington remained silent. Thus, Pennington twice invoked his right to counsel and remained silent after both warnings.

The 19-year-old Pennington had been in the squad room, surrounded by between three to eight officers, none of whom contacted an attorney pursuant to his request, for approximately 20 minutes, when he asked Jones what was going to happen to him. Jones responded that, “I’d seen cases before where if the guy didn’t talk that they could pin the whole rap on him, and if he wanted to make a statement don’t let the guy upstairs bury you.” Moments later, Officer Huskey told Pennington he would be held for investigation for 20-24 hours and his clothing and other evidence would be sent to the lab for analysis. Then, approximately 15 minutes after his conversation with Jones and 40 minutes after being brought to the police station, Pennington made a statement. He later made yet another statement after being told that his brother, the “guy upstairs,” had talked. A third statement was taken sometime later.

The state’s argument is that Pennington knew the office was available, and that his query of Huskey as to the use of the office was a voluntary waiver of his rights. The state further argues Huskey’s inquiry and the defendant’s subsequent statement adds to the preceding events a knowing waiver of defendant’s right to silence and to counsel.

The trial court found, based on the totality of the circumstances, Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981), that Pennington’s statements were not voluntarily made and that he had not initiated the conversation so as to freely and voluntarily waive his right to counsel. Pennington had twice invoked his right to counsel while in police custody. The officers conceded that no one attempted to contact an attorney, as Pennington had requested. Although Pennington asked what was going to happen to him and thus began further conversation with the officers, “the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983); See, State v. Oldham, 618 S.W.2d 647 (Mo. banc 1981); State v. Gibson, 623 S.W.2d 93 (Mo.App.1981). The trial court correctly found the state did not meet this burden. Officer Jones’ response at the very least clearly suggested that Pennington would be much better off by promptly making a statement and Officer Huskey’s statement was also coercive. Pennington’s free will was thus overborne when he made the statements. State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979); State v. Rickey, 658 S.W.2d 951, 953-54 (Mo.App.1983). Their dialogue can be readily distinguished from that approved in Oregon v. Bradshaw, supra. In Bradshaw, when the defendant asked what would happen to him, the officer immediately reminded him that he did not have to speak with police. Here, in response to Pennington’s query, the officers plainly sought to persuade and coerce a statement.

Pennington did not knowingly or intelligently abandon his right to counsel. Edwards, 451 U.S. at 482, 101 S.Ct. at 1883-84. He was 19 years old, in a police station surrounded by as many as eight officers for approximately 40 minutes. He requested counsel but no one was provided him. He had been told he would remain in custody for about 24 hours and his clothes and other evidence would be analyzed by the lab. Finally, Officer Jones used the fear that his brother would implicate him in the crime to suggest to Pennington that he would be in a much better position if he were to make a statement. The court did not abuse its discretion in finding that, under the circumstances, the defendant did not voluntarily waive his right to counsel and that the State did not meet its heavy burden of proving such voluntary waiver. Affirmed.

All concur.

      . The State first appealed to the Supreme Court and the appeal was by order transferred to this court. Section 547.200.3 RSMo Supp.1983 provides for review by the Supreme Court in appeals by the state in capital murder cases. The order explicates no reason for the transfer, except to state that jurisdiction is vested in this court.


author: MANFORD, Judge.

text:
    Frederick N. SPENCER, et al., Respondents, v. James CRAWFORD, Appellant.
    No. WD 35197.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.

      Kenneth 0. Smith, Kansas City, for appellant.
    Phillip Sanford Smith, Kansas City, for respondents.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   MANFORD, Judge.

This is a direct appeal from a jury award for damages for personal injury. The judgment is reversed and the cause remanded.

A sole point is presented, which in summary charges that the trial court erred in excluding evidence of respondent Frederick Spencer’s physical condition with regard to intoxication and impotency as such evidence was relevant and admissible as to respondent’s credibility and in support of appellant’s pleaded defense of contributory negligence.

In summary, the facts describing the events involved in this incident are as follows.

Respondent Frederick Spencer (original plaintiff at trial) testified that on August 13,1979 at about 5:45 a.m., he was walking on the sidewalk, westbound on 47th Street, in Kansas City, Missouri. His destination was the Music Box Tavern, located on 47th Street. He stated that as he proceeded, he stepped with his left foot onto the southwest corner of a “coal hole cover”. As he lifted his right foot to step off the cover, the cover gave way, causing him to fall through the hole into the basement area of the Music Box Tavern. He stated that he was impaled on the cover. He crawled to the upstairs area of the Music Box Tavern where an employee was present who in turn summoned assistance. Injuries to respondent were serious, including an intestinal puncture which required surgery. The surgery initially called for a colostomy which, by later surgery, was closed by reattachment of the intestine. He also suffered lacerations. Respondent offered evidence of the permanency of his injuries, which included a claim of impotency.

Pre-trial discovery included respondent’s deposition. In his deposition, he stated that he had consumed eight or nine vodka and 7-ups during the evening prior to his fall.

Prior to trial, respondent orally requested a motion in limine which was sustained and which prevented appellant from making any inquiry or introducing any evidence regarding respondent’s drinking the night before his fall.

During trial, a witness for respondent, Owen Cawvey, was called. During the cross-examination of Cawvey, he was asked, “[D]id you see Fred Spencer the night before this accident?” This brought a prompt objection from respondent. After a bench conference, the trial court was made aware that the inquiry concerning respondent’s condition bore upon his ability to observe his surrounding conditions. The court sustained the objection as being without foundation and that respondent’s condition prior to his fall was not relevant or material. At this point, appellant was granted permission to make an offer of proof, but those proceedings were not recorded and are not before this court, except for a later recapitulation of the offer subsequently in the transcript.

As the trial progressed, appellant attempted to cross-examine respondent on his condition prior to the fall. This inquiry again was objected to as being irrelevant and immaterial, and the trial court sustained the objection. Again, the trial court was advised that the purpose of the inquiry was to test respondent’s ability to observe and see the condition of the grate or plate. After inquiry, the court was also advised of appellant’s intention to ask respondent as to whether he (respondent) had been drinking the night before and if he (respondent) was intoxicated the morning of his fall. The court was then advised by appellant that appellant had a witness who, if allowed to testify, would state that respondent’s breath and blood contained a strong “acetone” odor indicating the consumption of alcohol by respondent. This tendered witness was the paramedic who cared for respondent at the scene. This paramedic stated that in his judgment respondent was inebriated. He also stated that diabetes and liver ailments would also produce an “acetone” odor, but in his judgment, it was alcohol which produced the odor, both in the blood and breath of respondent. Later, testimony by respondent included his denial of any liver or diabetes condition. The offer of proof of the testimony of the paramedic was denied.

In addition, appellant made an offer of proof that if allowed to testify, an area physician would testify as to how respondent’s senses would have been impaired by the amount of alcohol consumed by respondent as verified in respondent’s deposition.

Further medical records concerning respondent’s admission and treatment were introduced. Contained in those records was information related to respondent’s consumption of alcohol prior to his fall. The trial court denied appellant permission to read that portion of the medical records (although the records were in evidence) concerning the alcohol consumption.

As part of his claim, respondent testified that he suffered from impotency. His estranged wife also testified to his impotency. There was no medical evidence introduced by respondent that his injuries produced impotency. Appellant offered to produce medical testimony by an area physician who, if allowed to testify, would have said that respondent’s daily average consumption of from 6-18 cans of beer, plus the eight or nine vodka and 7-ups, would have a substantial effect upon male potency. The trial court denied this offer of proof.

The jury returned a verdict of $125,-000.00 for respondent and $50,000.00 for his estranged wife. This appeal followed.

Before this court, appellant asserts that he was denied a fair trial because of the repeated refusal of the trial court to allow appellant to ask about and/or introduce evidence regarding respondent’s condition prior to his fall and his continual use of alcohol.

It is appellant’s position that the denial of this effort to secure such evidence prevented appellant from rebutting respondent’s case in chief, because such evidence was relevant to respondent’s “sensory deficits.” Appellant further asserts that the trial court’s action denied appellant the right to support its defense of contributory negligence.

This case was submitted to the jury on a negligence per se theory upon the violation of a city ordinance requiring landlords and tenants to maintain devices such as the coal hole in a safe condition. As the record discloses, the only evidence linking the events giving rise to respondent’s injuries and the violation of the ordinance was provided by respondent. There were no other witnesses to the fall of respondent.

Respondent, both at trial and before this court, argues that the only purpose for the inquiry and admission of evidence related to the consumption of alcohol by respondent was to display before the jury the assertion of respondent’s “bad character”. The record fails to support respondent’s contention, as appellant repeatedly outlined for the trial court the intended purpose of such evidence. Respondent could have been protected by the use of a limiting instruction. Ted W. Greer Construction Co., Inc. v. LaSala, 642 S.W.2d 379 (Mo.App.1982).

Evidence of the intoxication of a witness is relevant and material to his ability to see, hear, perceive, and observe. State v. Caston, 509 S.W.2d 39, 41 (Mo.1974); Sanders v. Armour & Co. of Dela ware, 292 S.W. 443 (Mo.App.1927). Such evidence relates to the credibility of a witness regarding what transpired on the occasion in question. Such evidence is admissible by either cross-examination or by separate and independent testimony. Caston at 41.

The trial court erred in denying appellant the opportunity to cross-examine respondent relative to his condition and more specifically, regarding any intoxication prior to or at the time of his fall, as that evidence, if any, was relevant as to respondent’s sensory ability to observe his surroundings, including the coal hole and plate.

The trial court also erred in denying appellant the opportunity to present the paramedic witness to testify as to his observations. Once again, that testimony was relevant to respondent’s condition, which in turn was related to his sensory abilities. His testimony upon the offer of proof supplied sufficient facts to support his opinion. See Limbaugh v. Forum Lunch Co., 258 S.W. 451 (Mo.App.1924); State v. Edmonds, 468 S.W.2d 685, 688 (Mo.App.1971). The same holds true for the error committed by the trial court in denying appellant the opportunity to introduce testimony of the area physician regarding the influence of eight or nine vodka and 7-ups or sensory ability.

All of this evidence was material and relevant, both in regard to fairness of appellant defending against respondent’s initial claim and support of appellant’s pleaded affirmative defense of contributory negligence. In essence, from a reading of the entire transcript, the trial court, by its error, prevented appellant from offering any evidence upon one of its alleged defenses.

The trial court also erred in denying appellant the opportunity to introduce medical evidence that daily use of 6-18 cans of beer, plus consumption of eight or nine vodka and 7-ups just prior to the respondent’s fall could cause male impotence. The entire evidence upon this matter came from respondent and his estranged wife who stated that pain and discomfort prevent normal sexual relations between them. Evidence of alcoholism is admissible in claims involving permanency of injury. Ford v. Kansas City, 181 Mo. 137, 79 S.W. 923, 925 (1904).

The evidence upon respondent’s condition was admissible and it was for the jury as the trier of fact to weigh that evidence and to either accept or reject it. It was prejudicial error for the court to have excluded it.

When this record is read and considered in its entirety, it is obvious that as a result of the trial court’s rulings appellant herein was denied a fair trial and the judgment must be set aside.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.

      . A coal hole was described upon the record as a loading chute device which opened onto the sidewalk. The coal hole originally had been designed for access to basement areas of buildings along 47th Street. It was used for various purposes, carrying materials to and from the basement areas. Presently, its main use was for trash removal. The cover, also called a plate, measured 29 x 48 inches with an approximate weight of 80 pounds.


author: SNYDER, Judge. SATZ, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clifford ROWLING, Defendant-Appellant.
    No. 47828.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 5, 1985.

      Charles E. Kirksey, Jr., St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Gary L. Gardner, Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

This is an appeal from a conviction for rape, kidnapping, sodomy and attempted robbery in the first degree. Appellant was tried before a jury and sentenced by the judge to 50 years in the custody of the Department of Corrections and Human Resources. The judgment is affirmed.

Appellant contends that the trial court erred by: (1) allowing into evidence for impeachment purposes appellant’s 1967 and 1968 convictions; and (2) giving the “hammer instruction,” MAI-CR 1.10. Appellant also argues that the prosecution’s failure to provide him with allegedly exculpatory information mandates reversal.

Assuming, for argument’s sake, that appellant may allege error when his own counsel offers past convictions into evidence, Missouri law provides that past convictions are admissible. In State v. Morris, 460 S.W.2d 624, 629[3] (Mo.1970), the supreme court held that the prosecution had an absolute right to use prior convictions to impeach a witness’ credibility. The trial court did not err by allowing the prosecution to exercise its absolute right under § 491.050 RSMo.1978 and Morris. See also State v. Rice, 603 S.W.2d 83 (Mo.App.1980).

In appellant’s second point he asserts the trial judge erred by submitting MAI-CR 1.10, the “hammer” instruction, to the jury when a note from the foreman stated that the jury had “an 11 to 1 vote for guilt on all four charges.” The note was voluntary and unsolicited.

Appellant relies entirely on this court’s decision in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977). The supreme court overruled Sanders in State v. Broadux, 618 S.W.2d 649, 653 (Mo. banc 1981), a fact which this court acknowledged. State v. Brockman, 634 S.W.2d 575, 577[1] (Mo.App.1982).

Appellant made no attempt to distinguish Sanders from the later cases. He also failed to state any reason why Sanders applies to the facts at bar more closely than Broadux and Brockman. The point must be denied.

Appellant’s third point is that the state failed to release exculpatory evidence to him as required by Rule 25.03(A)(9). Appellant did not raise this point in the trial court and requests this court to consider it as plain error. Rule 30.20.

The existence of the allegedly exculpatory evidence is not properly before this court because appellant attempted to prove its existence only by affidavits appended to appellant’s brief. The court may not consider affidavits presented in this manner when they were not considered by the trial court. State v. Phillips, 596 S.W.2d 752, 755 (Mo.App.1980) n. 1. The point is denied.

The judgment is affirmed.

SMITH, P.J., concurs.

SATZ, J., concurs in separate concurring opinion.

SATZ, Judge,

concurring.

I am constrained to concur. State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) has been overruled. However, I believe the rationale underpinning the Sanders decision still makes sense.

Forceful argument can be made that the elliptical and qualifying language used in the “hammer instruction,” MAI-CR 2d 1.10, is innocuous and, therefore, does nothing more than tell the jury to keep deliberating as it has been. However, I believe the “hammer instruction” is aptly described, and, given this instruction, a jury can and does infer that the judge wants it to reach a decision. In the present case, as in Sanders, the jury informed the judge how it stood on its vote and, thus, the jury knew the judge knew the vote. Inferring from the “hammer instruction” that a decision should be reached, the jury would make the most sensible further inference that it should follow the line of least resistance; the minority should give way to the majority for the necessary unanimous verdict.

From this, I conclude defendant here was prejudiced.


author: KAROHL, Judge.

text:
    CUSTOM CRAFT TILE, INC., Plaintiff-Respondent, v. BRIDGECREST, INC., et al., Defendants-Appellants.
    No. 48533.
    Missouri Court of Appeals, Eastern District.
    March 5, 1985.

      Alan Agathen, Clayton, for defendants-appellants.
    Paul A. Hennerich, Chesterfield, for plaintiff-respondent.
   KAROHL, Judge.

This is a suit on a promissory note brought by plaintiff payee and holder, against defendant Bridgecrest, Inc. as maker, defendant-appellant Fred A. Chapman as endorser and defendant R. William Bur-meister as endorser. Plaintiff sued for payment of $18,681.95 plus accrued interest allegedly due on a promissory note. This is a second appeal involving the same parties. See Custom Craft Tile, Inc. v. Bridgecrest, Inc., 662 S.W.2d 320 (Mo.App.1983). [Custom Craft /]. Only defendant-appellant Fred A. Chapman and plaintiff Custom Craft Tile, Inc. remain in the case.

This appeal following a trial, raises the same issue as we considered in Custom Craft I which was appealed after summary judgment for plaintiff. We held in Custom Craft I, that there was a disputed material question of fact of timely notice of dishon- or to Chapman and therefore summary judgment was improper. Both appeals involve the liability of defendant in his capacity as an endorser. In Custom Craft I we recognized that § 400.3-508(2) RSMo 1978 requires that notice of dishonor be given before midnight of the third business day after dishonor by the maker and that § 400.3-502(l)(a) RSMo.1978, provides that if notice is not timely the endorser is discharged unless notice is excused. Plaintiff, Custom Craft, argued that notice of dishon- or was not required because of the bankruptcy of Bridgecrest Inc. as the maker of the note and, in the alternative, no notice of dishonor was required under Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1151-1152 (banc 1936), because of Chapman’s status as president of Bridge-crest. Plaintiff argued that endorser Chapman was “Bridgecrest” hence its dishonor was automatically notice to him. Plaintiff did not prevail on the bankruptcy issue because it occurred after October 6, 1977, the date of presentment, and was therefore irrelevant. The alternative argument failed because the summary judgment record failed to support a finding based upon undisputed facts that on the date of presentment defendant Chapman was the president of Bridgecrest. In fact, Chapman’s answers to interrogatories denied he was president of Bridgecrest at the time of presentment. In sum, for purposes of summary judgment there remained a material issue of fact in dispute which excluded the application of the Josephson exception to the requirement of notice.

On remand this case was tried to a court with the jury waived. The decisive issue on this appeal is whether there was substantial evidence presented during the trial to support a finding that plaintiff Custom Craft presented the note to Bridgecrest, Inc.; that Bridgecrest, Inc. dishonored the note; and, that either Chapman received timely notice of dishonor as endorser or notice was excused under the Josephson exception because of his proven “identity for this purpose” with Bridgecrest, Inc. The supreme court said in Josephson, 95 S.W.2d at 1151-1152:

Ordinarily presentment for payment and notice of dishonor of a negotiable instrument are necessary in order to bind an indorser. But there may be circumstances such as to render those steps unnecessary. As to presentment to the maker it is said that presentment and demand are not necessary where the note, at maturity, is held by a bank and by its terms is made payable there, (citations omitted) ... The notes in question are by their terms payable “at the office of the Home Trust Company, Kansas City, Missouri,” which trust company was indorsee and the holder at maturity. Defendant knew that, except for the credits resulting from sale of the security, the notes had not been paid. They could not have been paid except through and by him, because he was president and substantially sole shareholder of the corporation, maker of the notes.... In effect he was the corporation. He alone could have paid on behalf of the corporation. It does not appear that there were then any other officers.... Plaintiffs evidence shows, and it seems to have been tacitly conceded at the trial, that demand of payment was made of defendant. The statute, section 2743, R.S.1929 (Mo.St. Ann. § 2743, p. 700), dispenses with notice to the indorser “where the indorser is the person to whom the instrument is presented for payment.” Defendant could not possibly have been prejudiced by plaintiff’s failure to give him formal notice that the notes had not been paid. He had actual knowledge of that fact. The law did not require the useless formality of notifying him thereof, (citations omitted) Moreover, defendant admitted in his answer that he never intended to pay the notes. Notice to him of their nonpayment would have been useless. “The law does not require the doing of a vain and useless act.” (citations omitted) Under the conceded facts and circumstances of this case there was no issue for the jury on the question of demand and notice, (emphasis ours).

“In a court tried case judgment is presumed to be correct. The judgment will be

affirmed unless there was no substantial evidence to support it, unless it is against the weight of the evidence or erroneously declares the law or erroneously applies the law.” St. Louis County, Mo. v. Oakville Development Company, Inc., 676 S.W.2d 919, 921 (Mo.App.1984).

The only testimony relevant to the issue was that of Leo A. Beckmann, president of plaintiff-respondent Custom Craft. He gave the following testimony:

[Direct Examination]
Q So on October the 6th, 1977, the note was due and payable?
A That’s right.
Q And you made demand upon Mr. Chapman at the corporate headquarters at Bridgecrest, Inc., for payment of this note?
A That’s right.
Q Did you make demand upon Mr. Chapman as an individual endorser of this note for payment at that time also?
A Well, he is — Mr. Chapman is both parties, both the note personally and Bridgecrest.
[Cross-examination by pro se defendant]
Q You indicated that on October 6th you made the demand on me as an individual and endorser of the note that is Exhibit 1, and also it’s the property of Bridgecrest, Inc.?
A That’s correct.
Q And this demand was made in the offices, corporate offices of Bridge-crest, Inc., on Fee Fee Road?
A That’s correct.
Q There was no written demand made, it was verbal?
A That’s correct.
Q Do you know whether or not I was the president of Bridgecrest, Inc., at that time?
A Yes.
Q I was?
A Yes.
Q And how do you know that?
A Well, you were the only one I ever had contact with there.
Q You never contacted Dr. Burmeister?
A The only meeting with Mr. Burmeis-ter, or Dr. Burmeister, was at Chicago Title at the time the note was executed.
Q And when was that?
A October of ’76.
Q (By Mr. Chapman) Are you aware that in March 1977 that this Court removed me from control of Bridge-crest, Inc.?
A No, I was not.
Q Are you aware that in May of 1978 that this Court issued an injunction against Burmeister, disposing of any interests in Bridgecrest, Inc.?
A I was advised of that, after the fact.
Q Are you absolutely certain that on October 6th, 1977, that you did visit the Bridgecrest, Inc., corporate offices, Suite 201, 3159 Fee Fee Road, and made the demand on me?
A To the best of my knowledge, yes. You are asking for an eight-year period of time, but I recall making the demand on you.

Defendant-appellant, Chapman, testified that he moved from Bridgecrest, Inc. the first week in September 1977 [before presentment] and that he was not in control of Bridgecrest, Inc. thereafter.

In order to prevail at trial it was encumbent upon the plaintiff to prove presentment of the note to the maker, Brid-gecrest, Inc. § 400.3-503(l)(a) RSMo 1978. The testimony of Beckmann which the trial court was entitled to believe, was that he made demand upon defendant Fred A. Chapman on October 7, 1977 at the offices of Bridgecrest, Inc. If the demand was upon Bridgecrest, Inc. through Chapman as president, the next requirement upon the plaintiff was to prove dishonor by Brid-gecrest, Inc. We find no evidence that Bridgecrest, Inc. refused payment.

Finally in order to prevail against defendant Fred A. Chapman as endorser it fell to plaintiff to prove facts to support application of the Josephson exception or that notice of dishonor by the maker was given by midnight of the third day after dishonor. § 400.3-508(2) RSMo 1978. Without Bridgecrest, Inc.’s dishonor there could be and there was no evidence of notice of dishonor to Chapman. At best the evidence as reproduced here was that on the due date, October 6, 1977, plaintiff through its president made a demand upon Mr. Chapman as an individual endorser, “... both to the note personally and Brid-gecrest.” There is no evidence as to Mr. Chapman’s response to plaintiff’s demand either in his individual capacity as endorser or in the capacity as an officer of Bridge-crest, Inc. if he was still an officer. Finally the only evidence that defendant Chapman was president of Bridgecrest at the time the note was presented for payment was Mr. Beckmann’s testimony that Chapman was the president because, “... [Y]ou [Chapman] were the only one I ever had contact with there.”

In order to invoke the Josephson exception plaintiff had to prove endorser Chapman had the same identity as Bridge-crest, Inc. on the date of presentment, October 6, 1977. On direct examination Beckmann described Chapman as “both parties.” On cross-examination the basis of that testimony was undermined by Beck-mann’s further testimony that he surmised that critical fact on his sole contact theory. Consequently, the original answer is of no probative value. See Keller v. Anderson Motor Service, Inc., 652 S.W.2d 735, 737 (Mo.App.1983). The original answer was nothing but a guess, speculation or conclusion. “Ordinarily one’s understanding about a matter is not competent evidence, and what a witness ‘thought’ or ‘didn’t think’ does not usually constitute substantial evidence justifying or permitting a finding to that effect (citations omitted).” Nutz v. Shepherd, 490 S.W.2d 366, 371 (Mo.App.1973). In Nutz other evidence proved the proposition in question and the judgment for plaintiff was affirmed. In the present case there was no other evidence of Chapman’s relationship with Bridgecrest, Inc. on the critical date. Applying the evidentiary rule noted in Nutz presentment was never proved.

Josephson is not availing for the further reason that there was no evidence that Chapman was the only officer or director, if he was the president, who could have spoken or acted for Bridgecrest, Inc. Josephson, 95 S.W.2d at 1152. Finally there is no evidence that Chapman, if the president of Bridgecrest, Inc. on October 6, 1977, or any other corporate voice of Bridgecrest, Inc. refused payment and dishonored the note, and if so, when the dishonor occurred. We may surmise that the note was not paid but we can not surmise when the dishonor occurred. The notice statute renders the date critical. For these reasons the Josephson exception may not be applied to the present case.

We conclude that the deficiency of evidence on the issue of presentment, dishonor and notice on the first appeal from a summary judgment was not overcome by the testimonial evidence at trial. Absent proof of dishonor and notice of dishonor defendant-appellant stands discharged of liability on the endorsement. § 400.3-502(l)(a) RSMo 1978.

As the judgment misapplies the law and there is a failure of proof it must be reversed. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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

      . Plaintiff dismissed its cause of action against co-defendant, Bridgecrest, Inc. on February 21, 1984.

      . The note was signed on October 6, 1976 "Brid-gecrest, Inc., By F.A. Chapman President".


author: SMITH, Presiding Judge.

text:
    Maurice JANNETT, Appellant, v. Richard KING, Director, Department of Revenue, Respondent.
    No. 48550.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 5, 1985.

      Douglas K. Rush, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for respondent.
   SMITH, Presiding Judge.

Plaintiff appeals from a judgment of the trial court upholding the administrative suspension of his driver’s license pursuant to Section 302.505 RSMo 1984 Cum.Supp. We affirm.

Plaintiff was arrested by an officer of the Missouri State Highway Patrol and was given a breathalyzer test. Plaintiff stipulated at trial that the officer had probable cause to stop the plaintiff and to give the test. The breath test showed a level of 0.14% blood alcohol. Based on this test result defendant suspended plaintiff’s license.

Section 302.505 authorizes such action where the “alcohol concentration in the person’s blood or breath was thirteen-hundredths of one percent or more by weight of alcohol in his blood, based on the definition of alcohol concentration in section 302.-500.” Alcohol concentration is defined in 302.500 as the amount of alcohol in a person’s blood as shown by “chemical analysis of the person’s blood, breath, saliva or urine.” Section 577.020 RSMo 1984 Cum. Supp. provides that a person operating a vehicle on the public highways of the state is deemed to consent to chemical tests of his breath, blood, saliva or urine. That section and Sec. 577.026 provide that such tests to be valid “shall be performed according to methods and devices approved by the state division of health by licensed medical personnel or by a person possessing a valid permit issued by the state division of health for this purpose.” The division of health is required to “approve satisfactory techniques, devices, equipment or methods to conduct” the tests and to establish standards “as to the qualifications and competence of individuals to conduct analy-ses and to issue permits ...” Secs. 577.-020.4 and 577.026.2.

Pursuant to this statutory grant the Division of Health has issued Rules for the Determination of Blood Alcohol by Blood, Breath, Saliva and Urine Analysis. 13 CSR 50-140. Those rules provide for Type III permits which authorize the permittee to operate specific breath analysers for the determination of alcoholic content of blood from a sample of alveolar air. 13 CSR 50-140.020. The officer administering the test to plaintiff held a Type III permit from the Division of Health. 13 CSR 50-140.-040(5) requires such a permittee to adhere strictly to the operating procedures approved by the division, to effect no modifications of any breath analyser or its operating procedure, to certify that there has been no deviation from division procedures and that .to the best of his knowledge the breath analyser was functioning properly. The officer administering the test to plaintiff testified to his compliance with each of those requirements and produced as an exhibit his “checklist” reflecting such compliance.

13 CSR 50-140.050 provides the names of approved breath analysers and approved chemical reagents. The breathalyzer and reagent utilized in testing plaintiff were specified in that section of the rules. The operating procedures for breath analysers are found in 13 CSR 50-140.060. The officer testified that he followed those procedures in testing plaintiff.

Plaintiff challenges the results of the analysis on two main fronts: (1) that no evidence was adduced from a Type II permit holder that the breathalyzer was in good working order; and, (2) that no evidence was adduced that the ampoules had been chemically tested to determine their compliance with division requirements. Type II permit holders are authorized to repair, inspect, and calibrate breathalyzers; Type III permit holders are authorized only to operate the instruments.

The cases which have arisen which have dealt with the sufficiency of the foundation necessary to admit the results of a breathalyzer test into evidence are criminal prosecutions. Those cases recognize that the provisions of Sec. 577.020 et seq. constitute a legislative standard for admission of such evidence superseding the common law requirements. State v. Crowell, 560 S.W.2d 889 (Mo.App.1978) [4, 5]; State v. Kramme, 491 S.W.2d 24 (Mo.App.1973) [1, 2], The provisions of Sections 577.020 and 577.026 deal solely with the testing methods necessary to validate the results of such tests. They have equal applicability whether the proceeding is criminal or civil, as here.

Those provisions require that the tests shall be performed (1) according to the techniques and methods approved by the division of health, (2) by persons possessing a valid permit, and (3) using equipment and devices approved by the division. All three of those requirements were met in this case. The officer testified to the methods and techniques used which followed those prescribed by the division. He produced the permit issued to him by the division authorizing him to conduct the test. It was unnecessary for him to additionally establish his qualifications — the permit established that. The equipment and devices used were those approved by the division. This evidence established a prima facie foundation for the test results. State v. Bush, 595 S.W.2d 386 (Mo.App.1980) [3, 4]; State v. Hanrahan, 523 S.W.2d 619 (Mo.App.1975) [3]; State v. Barker, 490 S.W.2d 263 (Mo.App.1973) [10, 11].

The legislature has not required as part of the statutory foundation that the testing authority establish that the instrument is free from defects or that chemicals received from an authorized source are compounded correctly. Plaintiff has not challenged the validity of the legislative enactment. There is no basis for this court to second guess the legislative determination of the reliability of the instruments or the reagents. State v. Bush, supra, [5]; State v. Hanrahan, supra, [2]. It was not incumbent upon the defendant to establish that the instrument was not malfunctioning or that the ampoules contained the proper chemicals. State v. Bush, supra, [6, 7]; State v. Barker, supra, [10, 11]. There was no evidence adduced to indicate malfunction or improper compounding. State v. Powell, 618 S.W.2d 47 (Mo.App.1981) [2], In contrast see State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973) where the evidence showed malfunction after the test, placing the burden on the state to negate malfunctioning at the time of the test. The test results were properly admitted.

Plaintiff also asserts that the trial court erred in taking judicial notice of the regulations of the division of health without requiring their introduction into evidence. Section 536.031(5) RSMo 1978, requires the court to take judicial notice of the contents of the code of the state regulations without proof. There is no need that the regulations contained in CSR be in evidence in view of this statute. State v. Crowell, supra, [4, 5]. The plaintiff does not contend that the trial court took judicial notice of the wrong regulations. Those which have been previously cited in this opinion are those applicable to this case and fully support the judgment of the trial court.

Judgment affirmed.

SNYDER and SATZ, JJ., concur.


author: CLEMENS, Senior Judge.

text:
    J.T. YOUNG, Appellant, v. Irene Elizabeth YOUNG (Hard), Respondent.
    No. 48568.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 5, 1985.
    Daniel W. Deiter, Montgomery City, for appellant.
    Betty K. Wilson, Columbia, for respondent.
   MEMORANDUM OPINION

CLEMENS, Senior Judge.

Appeal from Audrain County Circuit Court order granting mother’s motion to modify a 1973 dissolution decree by raising father’s original monthly support payments from $50 to $130 per child. Mother’s evidence showed cost of support was even more. Father’s evidence did not clearly show his inability to pay.

The judgment is supported by substantial evidence and is not against the weight of the evidence. A full opinion would have no precedential value. Affirmed under Rule 84.16(b).

DOWD, P.J., and CRANDALL, J., concur.


author: STEPHAN, Judge.

text:
    Wilbert LONG, Petitioner-Respondent, v. J.R., Defendant-Appellant.
    No. 48637.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 5, 1985.

      Judge Lawrence Clark, St. Louis, for defendant-appellant.
    William M. Frain, Public Counsel, St. Louis, for petitioner-respondent.
   STEPHAN, Judge.

By order of January 18, 1983, the Juvenile Division of the Circuit Court of the City of St. Louis placed appellant, a twelve year old male, under its supervision and imposed various “rules of supervision.” Neither that order nor a subsequent order entered on May 11, 1983, required detention. On November 21, 1983, respondent, as Chief Juvenile Officer of the City of St. Louis, filed a motion to modify the previous order in which respondent alleged that appellant had violated the rules of supervision on four separate occasions by violating an ordinance of the City of St. Louis.

At the hearing on the motion, respondent dismissed two of the specifications of the charge, and evidence was heard on the remaining two:

That [J.R.] in the City of St. Louis, State of Missouri, on the 25th day of August, 1983, at 12:33 a.m., did willfully and unlawfully loiter, idle, and wander in or upon the public streets, highways, and roads, contrary to Section 15.110.010 of the Revised Code of the City of St. Louis.
That [J.R.] in the City of St. Louis, State of Missouri, on the 20th day of November, 1983, at 12:15 a.m., did willfully and unlawfully loiter, idle, and wander in or upon the public streets, highways, and roads, contrary to Section 15.-110.010 of the Revised Code of the City of St. Louis.

The Juvenile Division Referee made affirmative findings as to each and recommended that the Custody and control of the child “be given to the Division of Children’s Services for placement at Missouri Hills” detention home. The recommendation w;as “adopted and confirmed” by the Judge of the Juvenile Division, and this appeal followed.

Although a number of points are raised, only one need be noted. The ordinance referred to in the motion to modify, § 15.110.010, was not placed in evidence at the hearing nor was it stipulated to by the parties. Neither trial nor appellate courts in Missouri may take judicial notice of municipal ordinances. Queen of Diamonds, Inc. v. Quinn, 569 S.W.2d 317, 319 (Mo.App.1978). Moreover, the “rules of supervision” which had been imposed upon appellant are not a part of the record before us. Such omission precludes any consideration of whether the factual allegations and evidence adduced would support a finding that the rules had been violated.

Finally, respondent filed no brief but,' with commendable candor, filed a document confessing error with respect to the omission of the ordinance from evidence. Accordingly, the judgment is reversed and the cause is remanded.

SIMON, P.J., and HAMILTON, J., concur.