author: LOWENSTEIN, Judge.

text:
    Richard BALKE, Appellant, v. Harold REAM, Respondent.
    No. WD 58175.
    Missouri Court of Appeals, Western District.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      George S. Miller, Gladstone, for Appellant.
    Mark T. Kempton, Sedaba, for Respondent.
    Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LOWENSTEIN, Judge.

This appeal followed the grant of summary judgment in favor of the defendant Ream on Balke’s petition for damages, which was premised on Ream’s violation of Section 542.400-.424, Missouri’s wiretap statute (creating a class D felony for certain recordings of telephone conversations). This opinion is the fourth appellate decision stemming from a long-standing controversy between Richard Balke, a dairy farmer his electrical supplier, Central Missouri Electric Cooperative (CMEC). Harold Ream, the respondent, is the general manager of CMEC. A background of the prior and pending lawsuits is necessary to understand the genesis of this action for damages resulting from Ream’s recording of telephone conversations he had with Balke.

A distillation of the facts in Central Missouri Elec. Coop. v. Balke, 18 S.W.3d 46 (Mo.App.2000), shows that in 1982 CMEC attempted to upgrade service to the Balke farm, but the changes were later found to have resulted in severe damage to the dairy herd. Ream, the manager of CMEC, negotiated with Balke about continued service, charges for service, and the settlement of damages sustained by Balke. CMEC agreed not to bill Balke for electricity, but rather to wait for payment until resolution of Balke’s damage claim. Because the damage claim was not settled by 1992, Balke filed suit for damages. After a trial, a verdict for Balke was returned in excess of $783,000. CMEC appealed. The verdict on that judgment was reversed in Balke v. Central Missouri Elec. Coop., 966 S.W.2d 15 (Mo.App.1997). However, during the pendency of that appeal, CMEC requested a preference over Balke’s creditors for electric services owed to it by Balke. Balke refused, and electricity to the farm was cut off for more than a year. In July of 1997, CMEC filed suit for $20,000 in back charges. Balke counterclaimed for damages for wrongful termination of electrical service. After summary judgment and a directed verdict were both entered in favor of CMEC, Balke appealed. This court reversed both judgments and remanded the collection and wrongful termination actions for trial. Central Missouri Elec. Coop., 18 S.W.3d at 53.

It is against this backdrop that the current action emerged. In the summer of 1997, around the time the CMEC collection suit was filed, Balke attempted to call Ream who was not at home. Ream returned the call and, without telling Balke, tape-recorded the lengthy and somewhat spirited conversation. The conversation covered the pending disputes and centered on Balke’s concerns with his treatment by CMEC, its staff, and the lawyers involved.

Balke filed a petition in May of 1998 seeking damages arising from actions in violation of the Missouri Wiretap Law, specifically § 542.402, which states in pertinent part:

1. Except as otherwise specifically provided in sections 542.400 to 542.424, a person is guilty of a class D felony and upon conviction shall be punished as provided by law, if such person:
(1) Knowingly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire communication;
(3) Knowingly discloses, or endeavors to disclose, to any other person the contents of any wire communication, when he knows or has reason to know that the information was obtained through the interception of a wire communication in violation of this subsection; or
2. It is not unlawful under the provisions of sections 542.400 to 542.424:
(3) For a person not acting under law to intercept a wire communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act. (Emphasis added.)

See Phillips v. American Motorist Ins., Co., 996 S.W.2d 584 (Mo.App.1999).

Balke’s petition alleged that phone communications between Balke and Ream, in early June of 1997, were recorded by Ream without Ream having obtained Balke’s consent and without Balke’s knowledge. The petition further alleged that the recordings were willful and that the contents were disclosed to third persons. Ream sought and was granted a judgment of dismissal. The trial court did not specify whether the dismissal was with or without prejudice. In Balke v. Ream, 983 S.W.2d 579 (Mo.App.1998), the initial issue addressed was jurisdiction because generally, if a dismissal is truly without prejudice it is not a final and appealable judgment. Id. at 580 (citing Wilson v. Unistrut Service Co., 858 S.W.2d 729, 731 (Mo.App.1993)). The opinion noted that the exception to this general rule is if the dismissal had the practical effect of terminating the suit in the form pleaded in the petition. Id. This court stated that the dismissed petition raised no allegation that Ream had a criminal or tortious purpose for recording the conversations ..., but left open the question whether Balke may be entitled to relief if he can supplement his petition with allegations, and prove facts, establishing that [Ream] had the requisite criminal or tortious purpose. Id. at 581. This court held that the dismissal was without prejudice and allowed Balke to return to circuit court to cure the reason for the dismissal and to plead and prove Ream had a criminal or tortious purpose for his acts. Id. at 582. After remand, Balke amended his petition and summary judgment was granted to Ream. It is the grant of summary judgment in favor of Ream that comprises the appeal now before this court.

The latest Balke petition, filed in September 1999, did not recount the conversation(s), but did assert that Ream intercepted and recorded the communications with a tortious purpose and constituted: a) an invasion of privacy, b) interference with Balke’s attorney client relationship in pending litigation, c) an attempt to obtain information in violation of the attorney-client privilege, d) a willful attempt to injure Balke, e) an attempt to interfere with a contractual and business relationship with his attorney, f) an intentional infliction of emotional distress, and g) interference with [Balke’s] pending causes of action which constitutes a trespass on [Balke’s] personal property.,

A synopsis of the facts submitted to the court for the summary judgment determination is in order. In June or July 1997, while the collection and wrongful termination actions were active in circuit court (the appeal of which is contained in Central Missouri Elec. Coop., 18 S.W.3d 46), Balke called Ream at CMEC headquarters and left messages. Ream returned the calls, the most notable of which took place after 10 p.m. on a Saturday night. Balke dominated the conversation. He discussed the strained relations between the parties and spoke about trying to work around the attorneys to resolve the effects of the recent discontinuation by CMEC of electrical service to his farm. Ream recorded this call, unbeknownst to Balke. Before Ream’s scheduled deposition in the collection and termination suit was to be taken in September of 1997, Ream told CMEC’s counsel of his actions. Ream’s actions in recording the calls were reported to Balke’s counsel who questioned Ream at the deposition, and was later provided transcripts of the extensive conversation. Ream’s affidavit in this action stated that the tape never left his home, nor was it played for anyone until he gave it to his lawyer. In his affidavit attached to CMEC’s motion for summary judgment, Ream stated that he thought it was legal for him to record the conversations and that his only purpose in making the recordings was to ensure an accurate record was made of those conversations. In his deposition in this case, Ream said he was aware the tape might have some use later.

Review of the grant of summary judgment is governed by ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376-78 (Mo. banc 1993); therefore the record will be viewed in a light most favorable to Balke to determine whether there are genuine issues of material fact and whether the judgment was correct as a matter of law.

I.

Balke asserts in his first point that the trial court should have granted his motion to strike the portions of the Ream affidavit which contained legal conclusions rather than facts. He cites First Community Bank v. Western Surety Co., 878 S.W.2d 887, 890 (Mo.App.1994), which states that [a]n affidavit in support of a motion for summary judgment is to state facts and not conclusions. This reasoning was premised on Bakewell v. Missouri State Employees’ Retirement, 668 S.W.2d 224, 227 (Mo.App.1984), which held that language in an affidavit that the denial of the plaintiffs claim for medical insurance was not arbitrary and capricious, was insufficient for purposes of an affidavit in support of summary judgment. Balke recognizes Ream’s testimony — that Ream did not feel recording the conversations was illegal and that he did not make the recordings for the purpose of committing tortious acts — was made to counteract the Balke petition which, to find a violation of the wiretap statute, required Ream to have recorded the telephone call for a tortious purpose.

This court need not make a determination of whether the testimony was conclusory or otherwise inadmissible for the purposes of determining the propriety of granting summary judgment. Here, there is no showing by Balke that the trial court relied on these contested portions of the Ream affidavit in its final decision. See Mullenix-St. Charles Properties, L.P., v. City of St. Charles, 983 S.W.2d 550, 557 (Mo.App.1999). As will be discussed in the second point, infra, it appears that the ruling was based on other portions of the affidavit which stated there was no use or display of the tapes and that no one listened to the tapes prior to the time they were turned over to the CMEC attorney, pursuant to the Balke request for discovery. Balke presented no evidence in his response to the motion for summary judgment of any other publication by Ream of the tapes. This point is denied.

II.

This court now turns to the issue of whether summary judgment in favor of Ream was proper under Rule 74.04. It must first be noted that there has been no assertion in this case that the wiretap law, § 542.400 et. seq., a criminal statute, may not serve as the basis for a tort action. Likewise, there has been no assertion by the plaintiff that Ream had a criminal purpose in making the recordings. Based upon the language in § 542.402.2(3) and the earlier dismissal for failure to specify the tortious purpose of the recordings, it must be determined whether the plaintiff has shown sufficient evidence to withstand a motion for summary judgment based on the assertion that there has been no evidence to show that the defendant intercepted the communication for the purpose of committing a tortious act. An examination of the facts and the torts alleged in the Balke petition is necessary to determine whether Balke produced sufficient evidence to present a jury with a fact question as to whether any tortious purpose can be attributed to Ream.

A. Invasion of Privacy

Balke’s petition merely uses the caption of right of privacy for the first of the torts he claims were committed by Ream. As set out in The Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 497-99 (Mo.App. 1990), a common-law action for an invasion of privacy encompasses four distinct torts. Those actions are, generally, a) unreasonable intrusion upon the seclusion of another, b) appropriation of the other’s name or likeness, c) unreasonable publicity of the other’s private life, and d) publicity that unreasonably places the other in a false light. Id. at 498. The Balke petition asserts Ream disclosed the information obtained from a private telephone conversation ... to individuals who were not parties to the conversation ... with the result that plaintiff suffered humiliation ... In his brief, Balke characterizes the conversations as attempts by Ream to be like a wolf in sheep’s clothing to gain Balke’s confidence and elicit information to be used in the pending lawsuit, thereby invading Balke’s privacy.

In order to rule on this point, this court will assume the specific action envisioned by the privacy cause of action is the tort described above in c) the public disclosure of private facts. This tort contains the following elements: 1) publication or publicity, 2) absent any waiver or privilege, 3) of private matters in which the public has no legitimate interests, 4) so as to bring shame or humiliation to a person of ordinary sensibilities. Childs v. Williams, 825 S.W.2d 4, 7 (Mo.App.1992). A summary judgment movant need not controvert all elements of a non-movant’s claim to establish a right to summary judgment. Chancellor Dev. Co. v. Brand, 896 S.W.2d 672, 675 (Mo.App.1995). In other words, to be successful, Ream may controvert any one of the elements of this tort action.

The element of publication means a communication to the public in general or to a large number of persons. St. Anthony’s Medical Center v. H.S.H., 974 S.W.2d 606, 610 (Mo.App.1998). The critical aspect of the publication requirement is a public disclosure, i.e. communications that are available to the general public or have a likelihood of becoming public knowledge. Id. In St. Anthony’s, the hospital released a patient’s psychiatric records pursuant to a court order in a dissolution proceeding. The court upheld summary judgment for the hospital on the basis of a failure of the patient to show the element of publication. Id. at 611. Similarly, in Childs, the Eastern District upheld a judgment which denied a plaintiff a privacy invasion claim against a psychologist who had sent a report of an examination of the employee to his employer. 825 S.W.2d at 11. The examination had been made as part of an Employee Assistance Program. Id. The court in Childs held that the letter to the employee’s division supervisor, having been reviewed only by the supervisor and others with a legitimate and direct interest in the employment in question, did not constitute a publication. Id. at 9. Balke’s reliance on Boyd v. Schwan’s Sales Enterprises, Inc., 23 S.W.3d 261 (Mo.App.2000), is misplaced. In Boyd, the employer, after the time of discharge of the employee, told several prospective employers Boyd had been convicted of raping a fourteen-year-old girl. Boyd is not applicable to the question of publication by Ream. Here, there was no publication to uphold an invasion of privacy claim.

B. Interference With Attorney-Client Relationship

Balke also alleges the recording constituted an improper interference with his attorney-client relationship. Without going through the entire transcript of the primary conversation intercepted here, suffice it to say that Balke was the one who railed against attorneys on both sides of this case. Balke even suggested that CMEC fire its attorney. These facts would not support any claim that Ream interfered with Balke’s attorney-client relationship at all, much less that he used the recording to do so.

C. Prima Facie Tort

The elements of prima facie tort are: 1) an intentional lawful act by the defendant, 2) an intent to cause injury to the plaintiff, 3) injury to the plaintiff, and 4) an absence of or insufficient justification for the defendant’s act. Porter v. Crawford & Co., 611 S.W.2d 265, 268 (Mo.App.1980). Balke has contended from the very beginning of this action that the recordings by Ream were unlawful under the wiretap law. The first element of prima facie tort requires the act of the defendant to be lawful. Balke indirectly asserts this element is satisfied because the defendant contends the recordings were lawful. However, at oral argument Balke admitted there was little chance of success in pleading this tort. This tort action is not available to Balke.

D. Intention Infliction of Emotional Distress

The elements plaintiff must show are that: 1) the defendant’s conduct was extreme and outrageous, 2) the defendant acted in an intentional or reckless manner, and 3) those acts caused plaintiff severe emotional distress resulting in bodily harm. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993). It is not enough that the defendant may have acted with tortious or even criminal intent; liability under this cause of action will lie only where the conduct has been so outrageous in character and extreme in degree as to be beyond the bounds of decency and be regarded as atrocious, and intolerable in a civilized society. St. Anthony’s, 974 S.W.2d at 611. Balke points to evidence that the call was after 10 p.m. at night and that when he found out about the recording he went to the V.A. Hospital. The record also discloses, however, that it was Balke who made the late-night call, not Ream, and that Ream kept the tape recording private until it became relevant to discovery in the parties’ related litigation. Standing alone, with no other evidence, this court concludes that the trial court was correct in granting the summary judgment motion.

The judgment of the trial court is affirmed.

All concur.

      . All statutory references are to the 1994 Revised Statutes of Missouri unless otherwise indicated.

      . There were actually two calls involved, but only one is significant for purposes of this opinion.

      . Balke's appeal does not include the tort of trespass on personal property.

      . The references to pending litigation and the relationship between Balke and his attorney are presumed to be in the suit for collection of electric bills and for wrongful termination of service. Central Missouri Elec. Coop., 18 S.W.3d 46.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Belinda WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 77254.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, Jr., P.J., MARY RHODES RUSSELL, J„ and RICHARD B. TEITELMAN, J.
   ORDER

PER CURIAM.

Belinda Williams (Movant) files this appeal challenging the denial of her Rule 29.15 motion without a hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    David SKAGGS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 77283.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MOONEY, P.J., SIMON, J„ and SULLIVAN, J.
   ORDER

PER CURIAM.

David Skaggs (“Movant”) appeals from a judgment denying without an evidentiary hearing his motion for post-conviction relief filed under Rule 29.15. Movant claims ineffective assistance of trial and appellate counsel. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s judgment is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo.R.Crim.P. 2000, unless otherwise indicated.


text:
    Alonzo MARTIN, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 76300.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 31, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, P.J., and MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

Alonzo Martin (“Movant”) appeals the denial of his Rule 24.035 motion for post-conviction relief, without an evidentiary hearing. Movant contends the motion court erred in denying his motion without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s judgment is based on findings of fact and conclusions of law that are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum of law, for their information only, setting forth the reasons for this order. We affirm the judgment pursuant to Rule 84.16(b).


text:
    In the INTEREST OF A.M.S.
    Nos. ED 77002, ED 77003.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 31, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    William P. Grant, Diane M. Monahan, Allan F. Stewart, St. Louis, for appellants.
    Nancy L. Sido, for respondent.
    Before LAWRENCE E. MOONEY, P.J., PAUL J. SIMON and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

George Sloan (“Father”) and Sonja De-Vivo (“Mother”) appeal the trial court’s Order terminating their parental rights as to their minor child. We grant Mother’s Motion for Leave to File Exhibit 1, and, upon review of the record, find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply, the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


author: CRANE, Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Leroy CRAIG, Defendant/Appellant.
    No. ED 77054.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 31, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Daniel L. Mohs, The Stokely Group, L.L.P., St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorneys General, Jefferson City, MO, for respondent.
   CRANE, Judge.

Defendant, Leroy Craig, appeals from a judgment entered after a jury verdict finding him guilty of murder in the second degree, in violation of Section 565.021 RSMo (1994); armed criminal action, in violation of Section 571.015 RSMo (1994); and assault in the second degree, in violation of Section 565.060 RSMo (1994), arising out of the murder of one person and assault of another person. On appeal defendant asserts that the state failed to make a submissible case for second degree murder. He further claims that the trial court erred in refusing to instruct the jury on voluntary and involuntary manslaughter and made erroneous rulings during closing argument. As a result of the trial court’s failure to instruct on voluntary and involuntary manslaughter, we reverse and remand for a new trial.

Because the first point challenges the sufficiency of the evidence of second degree murder, we recite the facts in the light most favorable to the verdict on that count. Defendant lived with his girlfriend, Marion Thompson, in her apartment. In the early morning hours of July 5, 1998, defendant and Thompson had an argument and Thompson asked her friend, Debra Melvin, the assault victim, to pick her up.

Melvin drove to Thompson’s apartment with her friend, Eddie Potts, the murder victim, and her two year-old daughter. After they arrived, Potts waited in the car, and Melvin went to the door to get Thompson. Melvin looked through the door and saw Thompson and defendant arguing. Thompson told Melvin to wait because she was coming with Melvin. Melvin returned to her car with her daughter, while Potts got out of the car and stood near it.

Defendant ran out of the apartment carrying a three-foot long iron bar. Potts and Melvin ran from the car. Defendant and Potts never exchanged words. Defendant ran toward Potts and struck him across the back. Potts fell to his knees but was able to get up and run around his car as defendant chased him. While chasing Potts, defendant struck Potts’s car with, the iron bar several times and shattered the rear window and a taillight. As Potts attempted to enter his car, he pulled out a three or four inch pocketknife. Defendant struck Potts on his left side, under his arm and across the chest.

Meanwhile, Thompson left her apartment and yelled at defendant to stop. Defendant subsequently chased Thompson and beat her ten to fifteen times with the iron bar. He then threw the iron bar at Melvin, who was carrying her two year-old daughter. The bar came within three inches of the child’s head.

Potts was hospitalized and died on July 18, 1998. The medical examiner who conducted the autopsy testified that the cause of Potts’s death was blunt trauma which caused multisystem organ failure.

In his first point defendant argues that the trial court erred in denying his two motions for acquittal of second degree murder because there was insufficient evidence from which a reasonable juror could have found him guilty of knowingly and intentionally causing Potts’s death because defendant could not have been aware that striking Potts with an iron bar would be practically certain to cause Potts’s death because Potts had pre-existing medical conditions.

A person commits the crime of murder in the second degree if he knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person. Section 565.021.1(1) RSMo (1994).

A person “acts knowingly,” or with knowledge,
(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or
(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.

Section 562.016.3 RSMo (1994).

A killing by the use of a deadly weapon on a vital part of the victim’s body is sufficient to permit a finding of intent to kill. State v. Deckard, 18 S.W.3d 495, 503 (Mo.App.2000). In this case, defendant concedes that the iron bar with which he struck Potts was a deadly weapon, but argues that the blows to Potts’s chest and back were not to a vital part of the body and thus he could not have intended Potts’s death. We disagree. The chest, which contains the majority of a person’s vital organs, is a vital area. See State v. Mallett, 732 S.W.2d 527, 533 (Mo. banc 1987); see also State v. Light, 835 S.W.2d 933, 936 (Mo.App.1992). Evidence that defendant struck a vital part of Potts’s body with a deadly weapon is sufficient to show intent. The fact that Potts had other conditions that contributed to the cause of death is irrelevant in light of the evidence establishing this intent. Point one is denied.

In his second point defendant asserts that the trial court erred in refusing to submit his requested jury instructions on voluntary and involuntary manslaughter because there was a basis for a reasonable jury to find defendant guilty of those lesser included offenses and to acquit him of second degree murder.

“A person commits the crime of voluntary manslaughter if he: (1) causes the death of another person under circumstances that would constitute murder in the second degree ..., except that he caused the death under the influence of sudden passion arising from adequate cause.” Section 565.023.1(1) RSMo (1994). “Sudden passion” means “passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.” Section 565.002(7) RSMo (1994). “Adequate cause” means “cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair his capacity for self-control.” Section 565.002(1) RSMo (1994).

The concept of sudden passion arising out of provocation is an objective standard, which is measured by an ordinary person’s capacity for self-control. State v. Fears, 803 S.W.2d 605, 609 (Mo. banc 1991). Passion may be rage or anger, or terror, but it must be so extreme that, for the moment, the action is being directed by passion, not reason. Id. Sudden passion is not established when a reasonable person had time for the passion to cool. Id. To be “adequate” under the voluntary manslaughter standard, the provocation must be of a nature calculated to inflame the passions of the ordinary, reasonable, temperate person and must result from a sudden, unexpected encounter or provocation tending to excite the passion beyond control. Id. Words alone, no matter how opprobrious or insulting, are not sufficient to show adequate provocation. Id. The defendant has the burden of injecting the issue of influence of sudden passion arising from adequate cause. Section 565.023.2 RSMo (1994). [9,10] A trial court is obligated to instruct on a lesser included offense if there is a basis for the jury 1) to acquit defendant of the offense charged, and 2) to convict defendant of the lesser included offense. Section 556.046.2 RSMo (1994); State v. Hibler, 5 S.W.3d 147, 148 (Mo. banc 1999). If in doubt, the trial court should instruct on the lesser included offense. Hibler, 5 S.W.3d at 148. In determining whether a basis existed to support a lesser included offense instruction, we view the evidence in the light most favorable to defendant. State v. Edwards, 980 S.W.2d 75, 76 (Mo.App.1998).

Defendant testified that he told Potts and Melvin to leave the area in front of his residence. Potts, who weighed about 230 or 240 pounds, was angry and intoxicated and began to approach defendant and curse at him. Defendant cursed back and repeatedly asked Potts to leave. Potts pulled out and brandished a twelve inch knife and charged defendant. Defendant felt threatened and scared and could not think. He grabbed the iron bar from the yard, and when Potts got closer, defendant swung the iron bar at Potts’s hand in an attempt to knock the knife away. He missed and struck Potts across the chest. Potts then tried to stab defendant, who in fear hit Potts on the side.

The evidence in this case is similar to that in State v. Redmond, 937 S.W.2d 205 (Mo. banc 1996), and the cases cited therein. In Redmond the parties were engaged in a heated argument, the victim confronted defendant in a threatening manner, and the victim frightened the defendant by displaying a deadly weapon. Id. at 209.

As in Redmond, the threatening confrontation described by defendant, along with the display of a twelve inch knife, is the type of provocation that could cause a reasonable person to lose self-control. This evidence is sufficient to inject the issue of sudden passion arising from adequate cause. Id. The trial court erred in failing to submit a voluntary manslaughter instruction. Id.

A person commits the crime of involuntary manslaughter if he “recklessly causes the death of another person.” Section 565.024.1(1) RSMo (1994). A person acts “recklessly” if he “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes gross deviation from the standard of care which a reasonable person would exercise in the situation.” Section 562.016.4 RSMo (1994). “Recklessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, of a probability less than a substantial certainty.” State v. Beeler, 12 S.W.3d 294, 299 (Mo. banc 2000). “[R]eckless conduct is not inconsistent with the intentional act of defending one’s self, if in doing so one uses unreasonable force.” Id.

The trial court was obliged to instruct on involuntary manslaughter if there was a basis for the jury to acquit defendant of second degree murder and to convict him of involuntary manslaughter. See Section 556.046.2 RSMo (1994). In this case there was a basis for a reasonable jury to have found that defendant was reckless because he responded to the threat of a knife by inflicting ill-aimed blows with an iron bar. Accordingly the trial court erred in failing to submit an involuntary manslaughter instruction.

In his third point defendant makes two separate claims of error. First, defendant asserts that the trial court erred during closing argument when it refused to grant a mistrial after the state described the assault charge and the potential of the iron bar to have injured Melvin or her child. Defendant argues that the mention of the child was an impermissible reference to an uncharged crime. This claim is frivolous. Count III charged defendant with the assault on Melvin and her child and evidence of this assault was in the record.

Second, defendant argues the court erred in overruling an objection to the state’s comment on Thompson’s failure to testify. We do not reach this question because its resolution depends on an analysis of facts and relationships as they existed at the time of this trial, which will likely be different when this case is retried.

Reversed and remanded.

MARY K. HOFF, C.J. and CHARLES B. BLACKMAR, Sr.J., concur.

      . Separate claims of error should be stated in separate points. Shoemaker v. Ekunno, 960 S.W.2d 527, 531 (Mo.App. 1998).


author: CRANDALL, Judge.

text:
    Thomas A. LeCHIEN, Intervenor/Appellant, and A.G. Enterprises, Inc., an Illinois Corporation, Plaintiff, v. ST. LOUIS CONCESSIONS, INC., and Floyd C. Warmann, Defendants/Respondents.
    No. ED 77665.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 31, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    A.J. Bronsky, St. Louis, MO, for Appellant.

      Thomas A. Connelly, St. Louis, MO, for respondents.
   CRANDALL, Judge.

Proposed intervenor, Thomas A. Le-Chien (hereinafter “intervenor”), appeals from the trial court’s denial of his motion to intervene in an action on a promissory note between plaintiff, A.G. Enterprises, Inc., and defendants, St. Louis Concessions, Inc. and Floyd C. Warmann, after the court entered summary judgment in favor of defendants in the underlying action. We affirm.

In 1993, plaintiff brought the underlying action against defendants, seeking to collect on a promissory note executed by defendants in the amount of $2.4 million plus interest. The note provided for defendants to enter into an agreement to develop a casino on the St. Louis riverfront. Plaintiff and defendants also signed a letter of intent providing, in pertinent part, that if the agreement for the casino development did not close within six months, plaintiff would have an “interest in any subsequent riverfront gambling development.” In March 1999, the trial court found that the promissory note and letter of intent (hereinafter collectively referred to as “documents”), when read together, made the parties’ intent ambiguous and ruled that extrinsic evidence would be allowed to show the parties’ intent. In November 1999, defendants moved for summary judgment, on the basis that they were not obligated to pay because their payment was conditioned on the casino development, which had not occurred. In February 2000, the trial court entered summary judgment in favor of defendants. The court based its decision on interve-nor’s testimony in an unrelated federal criminal case that the note was payable only if a casino opened for business and that the note had no value because no Missouri casino license was issued.

Intervenor was the attorney who drafted the documents. He filed a “Petition to Intervene” and alleged in his introductory paragraph that he brought it pursuant to Rule 52.12(b). His petition alleged that the trial court made rulings regarding the promissory note that “could impair and impede [his] interests and defenses in a threatened legal malpractice action”; that plaintiff notified him of its “intent to file suit against [him] for professional negligence”; that the trial court ruled that the documents when read together were ambiguous and granted defendants’ motion for summary judgment; and that the rulings of the trial court were “potentially adverse to [his] ability to defend any professional malpractice action brought by [plaintiff].” He requested intervention on the ground that “the Court’s judicial interpretations potentially can impede the rights and interests ..., in any professional negligence case and due to the apparent unwillingness of plaintiff to protect or fight for theft interests.” He alleged that he could provide additional parole evidence and argument with respect to the court’s determination of ambiguity in the promissory note. The court denied the petition for intervention, finding that intervenor “had no interest in the note or letter of intent.” Intervenor appeals.

In his first point, intervenor contends the trial court erred in denying his petition to intervene on the basis of 52.12(a) when he expressly based the petition on Rule 52.12(b).

Rule 52.12 provides for two types of intervention: intervention of right and permissive intervention. Rule 52.12(a)(2) indicates that the intervenor must establish three requirements to intervene as a matter of right: (1) an interest in the subject matter; (2) a disposition of the action that may impede the ability of the applicant to protect that interest; and (3) the applicant’s interests are not adequately represented by the existing parties. A motion to intervene may be denied if any one of the requirements is not met. Ballmer v. Ballmer, 923 S.W.2d 365, 368 (Mo.App. W.D.1996). The major purpose of the rule is to facilitate the determination of all related disputes in one proceeding, thereby avoiding a multiplicity of actions. Manes County Bank v. Hoertel, 941 S.W.2d 806, 810 (Mo.App. S.D.1997).

Rule 52.12(b)(2) pertains to permissive intervention and gives the trial court discretion to grant intervention “when an applicant's claim or defense and the main action have a question of law or fact in common.” Intervenor claims that the court should have granted permissive intervention under that subsection, the subsection under which he explicitly requested intervention.

Although intervenor specifically referred to Rule 52.12(b) in the opening paragraph of his petition to intervene, we judge a pleading by its substance and content, not just by its heading or title. See Farmers State Bank v. Place-Wiederholt, 747 S.W.2d 170, 172 (Mo.App.1988). Here, the content of intervenor’s petition tracked the language of Rule 52.12(a). The petition alleged that the rulings of the trial court with respect to the documents in the underlying action could “impair and impede” his “interests” in a threatened legal malpractice action and that the plaintiff in the underlying action had an “unwillingness ... to protect or fight for their interests.” These allegations addressed the three requirements of Rule 52.12(a)(2).

In addition, the petition did not allege that there was a “question of law or fact in common” between the underlying action and the threatened legal malpractice action. Thus, the substance and content of his petition did not reflect the language of Rule 52.12(b) and did not invoke that subsection. Despite intervenor’s reference to Rule 52.12(b) in his introduction, his petition to intervene was best construed as one for intervention of right under Rule 52.12(a), not as one for permissive intervention under Rule 52.12(b). The trial court did not err in viewing the petition as one seeking intervention as a matter of right. The trial court merely responded to the petition and adopted language identical to that used therein when it found that intervenor did not have an “interest” in the underlying litigation to justify the grant of intervention. Intervenor’s first point is denied.

In his second point, intervenor contends the trial court erred in denying his petition to intervene because his economic interests and his ability to defend the threatened legal malpractice action could be prejudiced by the trial court’s finding in the underlying action that there was an ambiguity in the documents drafted by him.

The type of “interest” required to intervene as a matter of right in an action must be a direct and immediate claim to, and have its origin in, the demand made or the proceeds sought or prayed by one of the parties to the original action. Augspurger v. MFA Oil Co., 940 S.W.2d 934, 937 (Mo.App. W.D.1997). It must be such an immediate and direct claim upon the very subject matter of the action that the would-be intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein. Id.

Here, intervenor alleged that he would be prejudiced in a “threatened” legal malpractice action. The threat of a malpractice action to possibly be brought against him in the future, however, was merely speculative. In addition, intervenor did not claim an immediate and direct claim upon the promissory note which was the subject of the underlying litigation. This is not a situation where the failure to include the intervenor in the litigation would result in multiple suits over the same subject matter. But see Maries County Bank, 941 S.W.2d at 809 (interest of intervenor sufficient to grant right to intervene where intervenor had an interest in the land by reason of a sheriff’s deed and where party to underlying litigation claimed an interest in the same land by reason of a judgment). Any interest inter-venor had in the underlying litigation was conjectural and did not justify intervention as a matter of right. Intervenor’s second point is denied.

The judgment of the trial court is affirmed.

AHRENS, P.J. and JAMES R. DOWD, J., concur.


author: PER CURIAM:

text:
    Deandre RODDY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57951.
    Missouri Court of Appeals, Western District.
    Submitted Sept. 8, 2000.
    Decided Nov. 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 26, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Susan L. Hogan, Appellate Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM:

Appellant Deandre Roddy appeals the Jackson County Circuit Court’s denial of his Rule 29.15 post-conviction relief motion, which he based on the contention that he was denied effective assistance of counsel because his trial counsel denied him the right to testify in his own defense at trial, The judgment is affirmed. Rule 84.16(b).


author: LAURA DENVIR STITH, Judge.

text:
    Wendi HAGAR, Karla Hagar, Hali Hagar and Staci Ross, by their next friend Carl Hagar, and Carl Hagar and Koni Hagar, Individually and as husband and wife, Respondents, v. WRIGHT TIRE & APPLIANCE, INCORPORATED, A Missouri Corporation, d/b/a Wright Audio, Video & Appliance, et al., Appellant.
    No. WD 58084.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 26, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Duane Edward Schreimann, Jefferson City, for appellant.
    David Allen Masters, Macon, for respondents.
    Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LAURA DENVIR STITH, Judge.

Carl and Koni Hagar and their children were injured when a gas stove purchased from Wright Tire & Appliance caught fire, destroying the Hagars’ home and its contents and causing them personal injuries. They recovered a $51,700 portion of their property damage from their property insurer, Shelter Mutual Insurance Company, and then sued Wright Tire and certain of its employees for their personal injuries and property damages. While that suit was pending, Shelter asked Wright Tire’s insurer to reimburse it for the money it had paid the Hagars on their property damage claim, and the insurer did so without waiting for the underlying suit against its insured (Wright Tire) to be resolved. Once that suit was finally resolved, resulting in a $244,111.69 verdict in favor of the Hagars, Wright Tire requested that it receive a credit on the judgment for the amount its insurer had already paid Shelter, but the trial court refused to allow the credit.

Wright Tire appeals, arguing it is entitled to a credit because it satisfied Shelter’s subrogation interest in the judgment and because if it does not receive a credit, the Hagars may get a double recovery. We affirm the trial court’s denial of a credit. Only the Hagars had the right to bring suit against Wright Tire. Shelter held only a subrogation interest, and that interest only entitled it to reimbursement of amounts it paid the Hagars out of any judgment the Hagars obtained from Wright Tire. Shelter was never entitled to a credit on the judgment, and it never held legal title to any part of the Hagars’ property damage claim. Shelter therefore had no right to try to settle that claim with Wright Tire’s insurer behind the backs of the Hagars, and without their consent, as occurred here. The fact that Shelter did so could not give Wright Tire’s insurer any rights against the Hagars. The burdens caused by Wright Tire’s insurer’s decision to settle a claim brought by Shelter which Shelter had no right to bring should remain on that insurer. Those burdens should not be shifted to the Hagars, who were specifically and purposely excluded from those settlement negotiations.

I. FACTUAL AND PROCEDURAL BACKGROUND

Carl and Koni Hagar purchased a gas-stove appliance from Appellant Wright Tire & Appliance, Inc. Wright Tire & Appliance agreed to deliver the gas stove and install it in the Hagars’ home as part of the sale. The installation included connecting the stove to the LP gas source.

On August 16, 1994, two Wright Tire & Appliance employees, Appellants Shannon McQuarry and Nikolaus Nieponski, delivered the stove to the Hagars’ residence and installed it. Shortly thereafter, a fire started. This fire destroyed the Hagars’ home and its contents, including property belonging to Respondents Carl and Koni Hagar and their children, Staci Ross, Wendi Hagar, Karla Hagar, and Hali Hagar (hereinafter referred to collectively as “the Hagars”), and caused personal injury to the Hagars. They thereafter filed suit against Wright Tire & Appliance, Shannon McQuarry, and Nikolaus Nieponski (hereinafter referred to collectively as “Wright Tire”), alleging that their negligence caused the fire.

Prior to the August 16, 1994, fire, Mr. and Ms. Hagar had purchased property insurance on their home and its contents from Shelter Mutual Insurance Company. Following the fire, the Hagars filed a claim with Shelter for property damage. Shelter and the Hagars negotiated on issues regarding the damages, and ultimately Shelter paid the Hagars $51,700 in settlement of their claim for property loss resulting from the fire. In exchange for the payment by Shelter, the Hagars released Shelter from any future claims based on their fire loss.

In addition to providing coverage for property loss, page 16 of the insurance contract contained a subrogation clause that stated as follows:

OUR RIGHT TO RECOVER PAYMENT. After making payment under this policy, we will have the right to recover to the extent of our payment from anyone held responsible. This right will not apply ... if you have waived it in writing prior to loss. The Insured will do whatever is required to transfer this right to us.

(emphasis in original). This clause in the contract between the Hagars and Shelter gave the Hagars the right to pursue recovery from a third party, but gave Shelter the right to recover from the Hagars to the extent of its payment to them “from anyone held responsible” for the Hagars’ property losses.

After receiving the $51,700 payment from Shelter for certain of their property damages, the Hagars filed suit against Wright Tire for their entire property loss and for their personal injuries resulting from the fire. On June 20, 1995, Shelter also wrote to counsel for the Hagars, stating:

“We have been informed that you have filed suit on behalf of Mr. and Mrs. Carl Hagar because of their fire loss of August 16, 1994, for damages which exceed their insurance coverage with us. The purpose of this letter is to remind you that we have expended $51,700.00 in behalf of [the Hagars] and intend to recover 100% of this amount from Continental Western when final settlement is made.”

(emphasis added).

Although the emphasized portion of this letter suggests that the Hagars had sued only for that portion of their losses which exceeded the $51,700 paid them by Shelter, their suit in fact sought recovery of all of their property damages as well as all of their personal injury damages. This is the proper procedure under Missouri law, which has adopted the collateral source rule, under which suit may be brought against the wrongdoer for plaintiffs’ entire damages without deduction for the amounts plaintiffs have received from a collateral source, such as property insurance. Washington by Washington v. Barnes Hospital, 897 S.W.2d 611, 619 (Mo. banc 1995); Duckett v. Troester, 996 S.W.2d 641, 647-48 (Mo.App. W.D.1999). The policy behind the rule is that a tort-feasor should not receive any of the benefit arising from the property owner’s foresight in paying for insurance coverage. Id.

A few days after receiving Shelter’s letter, David Masters, the Hagars’ attorney, thus responded:

“I have your letter ... I understand your intentions and to the extent that your company is entitled to subrogation we will honor those subrogation rights. It would of course be expected that you would share in the cost of recovery.”

(emphasis added).

In reply to Hagars’ letter, on June 27, 1995, Shelter wrote a letter to the Hagars’ attorney informing him that it did not intend to seek any part of the Hagars’ recovery in their suit against Wright Tire, but that it expected to be reimbursed by Wright Tire’s insurer, Continental, for the value of its subrogation interest once the Hagars and Wright Tire settled their suit, stating:

“Our intentions are only to advise you of our subrogation rights against Continental Western Insurance Company for the amount paid to our insured [the Ha-gars]. We have been in contact with Continental Western and fully expect to be reimbursed once settlement has been made with our insured [the Hagars]. Therefore, we are not asking you to assist in recovering our payment and we will not share in any cost incurred by you or our insured.”

(emphasis added).

In accordance with its statements in this letter, Shelter provided no assistance to the Hagars in their suit against Wright Tire. Instead, Shelter wrote Continental directly and asserted that Continental was liable to it for the entire $51,700 value of its subrogation interest that arose out of its settlement of the Hagars’ property damage claim. According to the parties’ stipulation, Shelter and Continental had an arbitration agreement requiring the arbitration of this and other “intra-insurance” claims, that is, claims between insurance companies. Shelter did not invite the Ha-gars to be part of this arbitration. To the contrary, as noted above, in its June 27, 1995, letter to the Hagars- Shelter had specifically advised them that it was proceeding on its own and did not want or need their assistance in protecting its sub-rogation interest.

Although Shelter’s June 27, 1995, letter to the Hagars’ attorney had stated that Shelter would seek reimbursement of its subrogation interest from Continental only when the Hagars settled their claim against Wright Tire, Shelter and Continental proceeded to arbitration without waiting for this settlement. On October 2, 1996, in return for a payment from Continental of $46,700, Shelter gave Continental a full release of Shelter’s claim against Wright Tire and Continental for any damages Shelter had sustained as a result of the Hagars’ fire loss of August 16, 1994. The release further provided that:

This release is given in good faith as a voluntary settlement by the undersigned of a disputed claim and shall not discharge any alleged tort-feasor other than mentioned herein for the damages and injuries sustained by the undersigned. The undersigned releases and discharges the released parties ... from any and all subrogation claims which the undersigned currently has or may incur in the future pertaining to the injuries, damage and losses outlined above.

The release was signed by “Tracy Odneal, Representative of Shelter Mutual Ins., as Subrogee of Carl & Koni Hagar.” Following this settlement of Shelter’s purported subrogation claim against Continental, Wright Tire amended its answer in the Hagars’ suit to plead that any recovery by the Hagars should be reduced by any amounts paid by Wright Tire or on its behalf to the Hagars or to Shelter.

At trial, the Hagars continued to seek full recovery for the personal injuries and property damage they sustained in the fire. In accordance with the collateral source rule, Ford v. Gordon, 990 S.W.2d 83, 85 (Mo.App. W.D.1999), no evidence was presented to the jury that the Hagars had received $51,700 in insurance coverage from Shelter. The jury returned a verdict for the Hagars in the aggregate amount of $244,111.69, including $164,111.69 in property damages and $80,000 in personal injury damages.

After the jury returned its verdict, Wright Tire moved for a credit of $46,700, the amount of the payment made by its insurer, Continental, to the Hagars’ property insurer, Shelter, in the settlement of the claim Shelter had asserted against it. The parties stipulated to the facts relevant to the credit issue. Following review of the stipulation and the arguments of the parties, the court denied the motion for a credit and entered judgment for the Ha-gars in the full amount of the jury verdict, $244,111.69. Wright Tire now appeals the trial court’s denial of its motion for a $46,700 credit against the judgment.

II. STANDARD OF REVIEW

The parties have stipulated to the relevant facts in this Court, and this appeal solely concerns the legal issue whether Wright Tire was entitled to a $46,700 credit on the Hagars’ judgment against it because its insurer, Continental, had paid that amount to the Hagars’ property insurer, Shelter, in settlement of Shelter’s purported subrogation claim against it. We determine such questions of law de novo. State v. Goodrich, 12 S.W.3d 770, 772 (Mo.App. W.D.2000).

III. Continental has No Right to A Credit in the Amount of Its Settlement with Shelter Because Shelter Had No Authority to Sue Continental Directly Since it Held Only a Subrogation Interest

In its first point on appeal, Wright Tire claims that the trial court erred in entering judgment for the Hagars and against Wright Tire in the amount of $244,111.69. It argues that the trial court should have granted Wright Tire’s motion for a credit against the judgment equal to Continental’s $46,700 payment to Shelter in settlement of the subrogation claim Shelter had asserted against Continental. It further suggests that the trial court’s denial of this credit resulted in a windfall to the Hagars and so cannot be tolerated.

The resolution of this issue lies in Missouri law governing an insurer’s subro-gation rights against its insured, and an insured’s rights to maintain a cause of action against a tortfeasor. Unlike some states, which provide that legal title to a property damage claim passes to the injured party’s insurer once the insurer pays the injured party’s claim, Missouri provides that the legal title to the cause of action remains in the insured, and that the insurer’s only interest is an equitable right to subrogation:

Subrogation ... arises by operation of law (in the casualty insurance context) when the insurance company under its contract obligation pays all or a part of the property damage incurred by its insured. The legal title to the cause of action remains in the insured. The exclusive right to sue for the entire loss remains with the insured, State Farm Mutual Automobile Ins. Co. v. Jessee, 523 S.W.2d 832, 834 (Mo.App.1975), though he will hold the proceeds for the insurer.

Farmers Ins. Co., Inc. v. Effertz, 795 S.W.2d 424, 426 (Mo.App. W.D.1990) (emphasis added).

The only relevant exception to this rule is when the insured assigns his or her property damage claim against the tortfeasor to the insurer. Id. “If a claim has been assigned, there is a complete divestment of all rights from the assignor and the vesting of those rights in the assignee.” Klein v. General Elec. Co., 714 S.W.2d 896, 902 (Mo.App. E.D.1986). An assignment thus gives the insurer full legal title to the claim and permits the insurer to pursue it against the tortfeasor. Effertz, 795 S.W.2d at 426.

By contrast, if there has not been an assignment, and the insurer holds only a subrogation interest, then under Missouri law “an equitable right passes to the subrogee and the legal right to the claim remains in the subrogor.” Klein, 714 S.W.2d at 902. In a subrogation situation, since the insured still holds the legal right to the claim, the insurer cannot sue the tortfeasor directly but must wait and assert its subrogation interest against any recovery the insured makes against the tortfeasor. As Effertz summarized the rule:

The firmly established rule in Missouri ... is that when an insurer pays a property loss, then its right to maintain suit against the tort-feasor depends upon whether it receives from the insured an assignment of the whole claim as compared'with merely rights of subrogation. If- the insurer receives such an assignment, then it has the exclusive right to maintain suit against the tort-feasor for the entire claim including any deductible item. On the other hand, if the insurer’s rights are simply those of subrogation, then legal title remains in the insured and he retains the exclusive right to bring suit.

795 S.W.2d at 426, citing, Jessee, 523 S.W.2d at 834.

These rules are dispositive of Continental’s claim here. The only provision of the Hagars’ contract with Shelter which the parties suggest is relevant to the issue before us is the “right to recover payment” clause. That clause states:

OUR RIGHT TO RECOVER PAYMENT. After making payment under this policy, we will have the right to recover to the extent of our payment from anyone held responsible. This right will not apply ... if you have waived it in writing prior to loss. The Insured will do whatever is required to transfer this right to us.

(emphasis in original). Continental does not contend that this is an assignment clause, and indeed it is not, for, as noted, an assignment occurs only when one party transfers to another “all or part of one’s property, interest, or rights. It is a right in the property itself.” Ford Motor Credit Co. v. Allstate Ins. Co., 2 S.W.3d 810, 812 (Mo.App. W.D.1999). See also Schaffer v. Board of Education of City of St. Louis, 869 S.W.2d 163, 168 (Mo.App. E.D.1993). The clause quoted above does not purport to assign the Hagars’ rights against Wright Tire to Shelter. Rather, it simply constitutes an agreement that Shelter will have the right to recover the money it paid the Hagars “from anyone held responsible.” This clause thus only gives Shelter a right to recover once the tortfeasor has been held responsible for the Hagars’ injuries. Since it does not constitute an assignment, under Missouri law the sole right to sue Wright Tire remained with the Hagars.

Shelter and Continental both recognized below that any claim that Shelter had was in subrogation only. Thus, Continental stipulated below that, “Following the payment by Shelter to plaintiffs, Shelter asserted a subrogation claim against defendants.” Similarly, when Shelter wrote the Hagars’ counsel Shelter asserted only that it would recover its payments to the Ha-gars out of any final settlement clearly referring to the settlement of the Hagars’ suit against Wright Tire. Similarly, in its later letter Shelter stated that the intent of its correspondence with the Hagars’ counsel was to advise counsel “of our sub-rogation rights against Continental,” and Shelter signed the settlement with Continental in its capacity as the Hagars’ subro-gee.

Thus, because no one contends that the Hagars assigned their rights against Wright Tire to Shelter, and because the facts would not support such a claim, Shelter had no right to make a direct claim against either Continental or Wright Tire for reimbursement of the monies it had paid the Hagars. The legal right to sue Wright Tire remained solely in the Ha-gars. Shelter had an equitable right to subrogation from the Hagars out of any recovery the Hagars made against Wright Tire. Shelter had no right to a “credit” on the Hagars’ judgment against Wright Tire, however, and Continental could not acquire the right to such a credit by settling Shelter’s claim against it. Were we to hold otherwise, we would, in effect, be permitting Shelter to prosecute that portion of the Hagars’ claims represented by the $51,700 which Shelter had paid the Hagars under their insurance contract. Yet, Shelter held only an equitable interest in the claim, not legal title to it, and, as just discussed, therefore had no right to prosecute any portion of the Hagars’ claim against Continental or Wright Tire directly. Since Shelter had no right to prosecute this claim directly, it certainly had no right to arbitrate and settle the claim directly, without the Hagars’ consent. This is, however, exactly what it purported to do.

Wright Tire argues that we must nonetheless give it a credit because otherwise we would, in effect, allow the Hagars a double recovery; they would be able to recover their full damages from Wright Tire, yet still retain the proceeds of their insurance settlement with Shelter, while Continental would have paid $46,700 of the Hagars’ damages twice once to them and once to Shelter when it settled Shelter’s claim against it. While it is true that Continental may end up paying $46,700 more than it needed to pay, that is not the fault of the Hagars and it is not their responsibility to voluntarily credit Wright Tire this amount so that its insurer can avoid this extra liability. The cause of Continental’s problems was its decision to settle Shelter’s subrogation claim with Shelter alone, as if Shelter had received an assignment of legal title to that portion of the Hagars’ property damage claim.

In retrospect, it is evident that Continental would have been better served by defending against Shelter’s subrogation claim by noting that, under Missouri law, Shelter had no right to subrogation until its insureds received a judgment against Continental’s insured, and, even then, Shelter’s rights would be a subrogation right as against the Hagars once the judgment was entered. Neither Wright Tire nor Continental would ever be entitled to a credit against the judgment for the amount of the insurer’s subrogation interest. However, when Continental settled Shelter’s claim for $46,700, it recognized that it was settling a disputed claim, and perhaps it was for this reason that Shelter accepted $5,000 less than the $51,700 it had already paid to the Hagars. In settling a disputed claim, Continental took its chances that the courts would ultimately find that Shelter’s claim was without merit. It has no right to now seek to indemnify itself from the effects of an unfavorable settlement by seeking a credit on the Ha-gars’ judgment. For these reasons, we reject Wright Tire’s claim that it was entitled to a credit against the judgment for the amount Wright Tire’s insurer paid to settle Shelter’s subrogation claim against it.

TV. CONTINENTAL DID NOT PAY SHELTER AS AN ACCOMMODATION

In its second point on appeal, Wright Tire argues that the trial court erred in denying Wright Tire’s motion for a credit of $46,700 against the judgment because Continental’s payment to Shelter on behalf of Wright Tire was an “accommodation payment” to the Hagars, or was paid on their behalf, and thus the payment should be deductible from the final judgment against Wright Tire.

Section 490.710 RSMo 1994 states the circumstances under which a payment will be considered an accommodation payment to the plaintiff, which should be a credit on any judgment against the tortfeasor:

1. No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person, of medical expenses, loss of earnings and other actual out-of-pocket expenses, because of an injury, death claim, property loss or potential claim against any person shall be admissible into evidence as an admission against interest or admission of liability by such party or self-insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event.
2. Any payments made as provided in subsection 1 of this section shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be brought to the attention of the jury.

Id. (emphasis added).

In order to qualify for this credit, the person seeking it must show that the payment was, in fact, an accommodation payment to the plaintiff, or was otherwise made on behalf of the plaintiff to others. Clearly, Continental did not make a payment directly to the Hagars. But, it argues, it should be considered to have made a payment “on behalf of’ the Hagars, since in return for Continental’s payment to Shelter, Shelter released all of its subrogation claim. Thus, Continental asserts, Shelter can no longer claim that it has a subrogation interest in part of the Hagars’ judgment against Wright Tire.

A similar situation arose in Weindel v. DeSoto Rural Fire Protection Ass’n, Inc., 765 S.W.2d 712 (Mo.App. E.D.1989). In Weindel, the parties stipulated that: 1) the Weindels’ homeowner’s insurer paid $36,000 to the Weindels due to a fire on their property; and 2) the DeSoto Rural Fire Protection Association paid $20,000 to the Weindels’ insurer as subrogee of the Weindels. Id. at 716. There, as here, the court refused to grant defendant a credit based on Section 490.710 for a payment defendant made to plaintiff Weindels’. insurer because the stipulated facts did not show that the payment by the Association’s insurer was made as an accommodation to the Weindels or in their behalf, in that there was “no showing that the Wein-dels owed money to [their insurer] and, if they did, that they directed the Association’s insurer to make a payment on their behalf.” Id.

Similarly, here, the Hagars did not owe money to Shelter at the time that Continental paid Shelter. Any obligation to Shelter would have arisen only if they won their lawsuit against Wright Tire, a suit that had not, at that point, been tried. Moreover, even had the Hagars owed money to Shelter, they did not direct Continental to pay it for them. The Hagars were, to the contrary, specifically excluded from the arbitration and settlement process. Continental did not contact them at all, and Shelter, in its June 27, 1995, letter, basically told the Hagars to mind their own business and not to get involved in Shelter’s and Continental’s resolution of Shelter’s claim against Continental. The payment may have incidentally benefited the Hagars, but it was not made “on their behalf.”

Wright Tire additionally argues, without citing any relevant support in the case law, that the fact that its acts benefited the Hagars entitles it to a credit, because otherwise the Hagars will receive a windfall. What Wright Tire fails to recognize is that, since its insurer had no legal obligation to make its payment to Shelter and since the payment was not made as an accommodation to the Hagars or on their behalf, Continental in effect simply acted as a volunteer in paying Shelter’s subrogation demand, without either the knowledge or consent of the Hagars. The Hagars may have had defenses to Shelter’s subrogation claim, or Shelter may not have pursued it against them, or may have settled it for a lesser sum. Certainly, the Hagars have made clear they would have argued that Shelter was responsible for paying its ratable share of the costs and attorneys’ fees incurred in bringing suit against Wright Tire before Shelter could recover any of its subrogation interest, and Shelter unequivocally refused to assist in paying those fees and other costs. In any event, the Hagars did not authorize Continental to settle any claim Shelter may have had against them, and the fact that Continental did so without the Hagars’ knowledge or consent does not create a legal basis for Continental to seek reimbursement from the Hagars for that payment in the form of a credit on the judgment.

For all of these reasons, the judgment is affirmed.

Presiding Judge HAROLD L. LOWENSTEIN and Judge THOMAS H. NEWTON, concur.

      . Such a credit would only arise in the case of an accommodation payment by the tortfeasor, a situation not applicable here for the reasons discussed in the remainder of this opinion, or where, for instance, a joint tortfeasor has paid a part of the damages in settlement of a claim. The collateral source doctrine would preclude a tortfeasor from receiving a credit for the amount of an insurance payment received by the insured under the insured's policy because a " 'wrongdoer is not entitled to have the damages to which he is liable ■ reduced by proving that [the] plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him, or ... the wrongdoer may not be benefited by collateral payments made to the person he has wronged.’ " Gaunt v. State Farm Mut. Auto. Ins. Co., 24 S.W.3d 130, 134 (Mo.App. W.D.2000), quoting, Washington, 897 S.W.2d at 619. See also Duckett, 996 S.W.2d at 647-48.