author: WOLFE, Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. Harold Ralph KUEVER, (Defendant) Appellant.
    No. 31141.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.
    McClintock & Medley, E. L. McClintock, Jr., Flat River, for appellant.
    Raymond R. Roberts, Jr., Pros. Atty., Charles G. Hyler, Asst. Pros. Atty., Farm-ington, for respondent.
   WOLFE, Judge.

The defendant-appellant was convicted of careless and imprudent driving in the Circuit Court of St. Francois County. His punishment was assessed at a fine of $200.-00. After verdict and judgment he filed his motion for a new trial. Upon this motion being overruled, he appealed in due time to this court.

The evidence on behalf of the State consisted of the testimony of two State highway troopers. They were driving a highway patrol car southwardly on Highway 67 in St. Francois County on July 3, 1960. It was 6:30 p. m., the weather was clear, and it was daylight. As the patrol car came to the crest of the hill, the car in front of them swerved to the right and its brake lights came on. The swerve was made to avoid the car of the defendant, which was traveling northwardly up the hill on the wrong side of the highway.

The highway in the vicinity of the defendant’s travel is marked with a yellow line to indicate a no-passing zone, and this line is about 600 feet long. The troopers observed the defendant on the wrong side of this line going uphill and passing traffic for a distance of 400 feet before swinging his car back into its proper lane of travel. They turned their patrol car about, and pursuing the defendant made his arrest.

The defendant testified that he was traveling northwardly and was passed by a car. He said that after the car passed him, it slowed down in front of him. He did not like the manner in which the car in front was being operated, so he decided to pass it. He said that as he tried to pass it the car speeded up, and as there were cars ahead of it, he had to pass the line of cars before he could get back into the right lane. He said that he saw no yellow line on the highway. Upon cross-examination of the defendant he testified that he had three prior traffic violations. This testimony went in without objection.

A friend of the defendant had been driving behind him. The friend testified that the defendant started to pass the car in front of them at a point before they reached the hill, but that the car he sought to pass speeded up, and the defendant passed the line of northbound traffic ahead.

We are not favored with a brief by the appellant, so we look to his motion for a new trial and consider such assignments which are sufficient to present matters for review. We also examine the record to assure ourselves that the essentials of a fair trial were accorded. Rules 27.20 and 28.02, V.A.M.R.; State v. Richardson, Mo.Sup., 343 S.W.2d 51; State v. Bryant, Mo.Sup., 319 S.W.2d 635; State v. Richardson, Mo.Sup., 315 S.W.2d 139.

The defendant raises some objection to the charge against him, but it appears to be in due form upon the suggested uniform traffic ticket set out in Supreme Court Rule 37.1162, V.A.M.R., and it charges the defendant with careless and imprudent driving.

The only other points raised in the motion which are sufficiently set out to preserve any matters for review go to the argument of the prosecutor.

The same jury that sat in this case had previously tried and convicted another defendant charged with burglary. The prosecutor drew a comparison between the charge of burglary and the charge against the defendant herein. It is asserted that this was prejudicial error. While it is true that a prosecutor should confine his argument to the facts at hand, he is allowed considerable latitude in seeking to impress the jury with the seriousness of the offense for which the defendant is standing trial. We do not find the argument erroneous. State v. Feltrop, Mo.Sup., 343 S.W.2d 36; State v. Cox, Mo.Sup., 352 S.W.2d 665.

The other complaint about the argument relates to the prosecutor’s comments about the prior convictions. These comments were directed to the credibility of the defendant. Prior convictions, as stated, were admitted without objection, and the defendant was at all times represented by counsel. Prior convictions for misdemeanors may be inquired into on cross-examination of a defendant ' to effect his credibility. Section 491.050 RSMo 1949, V.A.M.S.; State v. Cox, Mo.Sup., 333 S.W.2d 25; Hoover v. Denton, Mo.Sup., 335 S.W.2d 46.

Since such evidence is properly received, it may certainly be commented upon by the prosecutor, as it relates to the limited purpose for which it is received. The remarks appear to be within those limits, and we hold that the assignment is without merit. We have examined the record and find that all of the essential steps were taken; and it appears to be without error.

The judgment is therefore affirmed.

ANDERSON, P. J., and RUDDY, J., concur.


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Commissioner.

license: Public Domain

text:
    Raymond W. HEAVEN, Plaintiff-Respondent, v. Mary Ann HEAVEN, Defendant-Appellant.
    No. 30992.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.

      George E. Murray, Clayton, for appellant.
    Henry G. Morris, St. Louis, for respondent.
   SAMUEL E. SEMPLE, Special Commissioner.

This is an action for divorce instituted by the plaintiff husband wherein the defendant wife also sought a divorce upon a cross-bill. The trial court after hearing the evidence entered its decree finding against the husband on his petition and awarding a divorce to the defendant wife on her cross-bill. Plaintiff filed a Motion for New Trial and thereafter the trial court entered an order granting plaintiff a new trial from which defendant has duly taken an appeal to this court.

The two-day trial was vigorously contested. Only the gist of the testimony pertinent to the questions raised on this appeal will be set forth herein as no useful purpose will be served in setting out all of the evidence in detail.

The parties were married on January 7, 1948 and separated in August, 1960. They lived in Cedar Hill, Missouri, from the time of their marriage until 1953 and after several moves purchased a home in Meadow Acres, a subdivision in St. Louis County, where they lived together until the time of separation and thereafter have continued to live in the same place, but not as man and wife, up to the time of the trial. Plaintiff, a man 47 years old at time of trial, was and had been for some years employed as a salesman for a brewing company, whose duties required that he call on places where his employer’s products were sold. Defendant was employed at several places during most of the period of the marriage and had worked for the Chrysler Corporation for some two years prior to the time of trial. One child, Timothy, eleven years old in 1961, was born of the marriage.

Plaintiff, in support of his petition for divorce, testified that defendant called him one vile name “innumerable times” and other vile names “always” and frequently cursed and called him vile names in front of their son. He also testified that defendant clawed him with her fingernails “at any time.” That after the separation in August, 1960, defendant came at him with her fingernails to cut him up; that she spat on him, threw a glass of water on him, and when she came at him with her fingernails he got against the kitchen cabinet and kept her away with his feet. None of the foregoing evidence was corroborated. Plaintiff also testified that defendant cut him with scissors in the abdomen during the summer of 1960. On cross-examination plaintiff testified that an argument started in a discussion about insurance and that defendant who was manicuring her nails at the time “swung with the scissors and her nails * * “I grabbed her by the hair and held her like that, away from me, sir, and I got cut.” Plaintiff produced a witness in rebuttal who testified that he was a neighbor of the parties. On one occasion Tim, the son of plaintiff and defendant, came over to get him to come to their home. When he got to the door, plaintiff and defendant were arguing but stopped when he entered. Plaintiff’s T shirt was torn and had blood on the front of it and that defendant “* * * was pretty well messed up herself * * * ”, and she had a pair of cuticle scissors in her hand.

Plaintiff further testified that defendant would go out at night three or four times a week, every week, and would stay out until late hours and sometimes when plaintiff would ask her where she had been defendant would tell him it was none of his business. Plaintiff testified that he had not seen his wife out with another man but that he told her one evening, “I think you have been in every motel in St. Louis County”, and her answer was “I have, so what.”

Defendant in her testimony denied that she ever called plaintiff by the vile name he stated she used innumerable times, and denied that she ever used such language. She further denied clawing plaintiff with her fingernails or that she had ever cut or clawed him; that she did not cut him with scissors and did not throw water at him. Defendant testified that she never went out in the evening without telling plaintiff where she was going and getting his permission to do so. She also stated that when her husband accused her of being in every motel in town or county that she ignored the accusation and made no answer to him. Defendant in support of her cross-bill for divorce, testified that plaintiff started to drink excessively approximately thirteen years ago and came home intoxicated two or three times a week. She detailed an incident of plaintiff being drunk and lying in the front yard in public view of the neighbors and their children in August, 1959. Defendant further testified that plaintiff embarrassed and humiliated her by his intoxicated condition at a church Strawberry Festival in May of 1960. She also related specific incidents of plaintiff becoming intoxicated at a Christmas party in 1958, a party at the Coronado Hotel in 1957, a ravioli dinner on Palm Sunday in 1958, a Christmas party of the city sales department of his employer in December, 1956. Defendant had accompanied her husband to these social affairs, and to her embarrassment he became so intoxicated that he had to be helped home.

Defendant further testified that plaintiff struck her and subjected her to physical violence and that in the summer of 1954 plaintiff came home at 4 a. m. and struck her on the face and body leaving her bruised and unable to work for several days. Defendant related another incident in April of 1958 plaintiff came home about 2:00 or 2:30 a. m. and started yelling and beating defendant and pulled out some of her hair by the roots. That as a result of the beating she received she had to have three teeth extracted. Defendant also testified that on July 8, 1960, plaintiff demanded that she sign some insurance papers which defendant refused to do and plaintiff got up and started beating her. Plaintiff’s version of this incident as previously set out was that defendant cut him with scissors but defendant denied so doing. This altercation was broken up by their neighbor, Mr. Leveque, coming to the door. Defendant also testified that after the separation on September 8, 1960, she and her son returned home about 11 p. m. after visiting plaintiff’s sister and found plaintiff seated in the breezeway. Plaintiff had been drinking. Plaintiff threatened defendant about pulling down the garage door and thereafter came at her kicking, beating and pulling her hair and threatened to kill her. Defendant states she suffered bruises and a cut lip as a result of this incident.

Defendant stated that plaintiff had been gone from home for periods of as long as a day and a half without explanation and that his clothing would smell of perfume and defendant had seen lipstick on the collar of his shirt when he arrived home.

Defendant further testified that plaintiff called her vile and obscene names over a period of years and that plaintiff humiliated and embarrassed her by accusing her in front of others of associating with other men and committing adultery with them. Defendant denied that she associated with other men in any way and on cross-examination specifically denied going to a motel with a man on the night of July 26, 1960, or at any other time. Defendant further testified on cross-examination that on the night of July 26, 1960, she had her hair fixed at the Clairol Center on Delmar and left there about 9:30 p. m. and proceeded to Hampton and Gravois and picked up a Mrs. Dover, a friend, and took her to her home in Cedar Hill.

Plaintiff’s sister, a Mrs. Kerwin, testified on behalf of defendant that she had been a .frequent visitor in the home of plaintiff and defendant. That she had observed defendant was a good mother and kept a very, clean home. She further stated that the conduct of her brother, the plaintiff, toward his son was that “ * * * at times he would be very kind; when he would have a level head * * * ”, “when he was sober.” She further testified she observed him on occasions when he wasn’t sober. Mrs. Kerwin also testified that plaintiff on more than one occasion when they were together accused defendant of running around with other men.

Walter Kerwin, plaintiff’s brother-in-law, testified that he saw plaintiff at the church Strawberry Festival in May of 1960 when plaintiff stumbled quite a bit, talked inco- ■ herently and smelled of alcohol.

Plaintiff in rebuttal called John Wilkerson, a private detective hired by plaintiff, and Viola Wilkerson, his wife, who testified in substance that on the night of July 26, 1960, at request of plaintiff, they parked their car near the Clairol Center on Delmar; that they observed a woman answering a description of defendant (furnished by plaintiff) come out of the Clairol Center shortly after 10 p. m. and get in a Dodge automobile bearing a license number issued to defendant. The woman was observed sitting in the Dodge for a few minutes when a Ford station wagon driven by a man pulled up beside the Dodge. A few moments later the Dodge drove off followed by the station wagon and both vehicles were followed by the witnesses and were seen entering a motel. A few moments later the Dodge car and the Ford station wagon were observed in the parking lot of the motel parked near the motel units and the man and woman were observed leaving their cars but the witnesses did not see either the man or woman enter any motel room or unit. About an hour and fifteen minutes later the Dodge car driven by a woman was observed driving away from the motel. Defendant thereafter offered Gertrude Dover as an alibi witness, who testified that on the 26th of July, 1960, she was shopping in St. Louis and in the afternoon called defendant who was a friend and former neighbor and asked if defendant would pick her up that evening and drive her home. That between 9:30 and 10 p. m. defendant picked her up at Hampton and Gravois and drove her to her home in Dittmer, Missouri some 28 miles away. That they arrived at her home about 10:30 p. m. Defendant stayed about 45 minutes at her home before leaving.

Plaintiff testified further in rebuttal and denied that he drank excessively or that he had ever been drunk. He stated that in 1957 he had virus encephalitis which resulted in his sense of balance being impaired and caused him to stumble. He also testified that he did drink as it was required in his work, but that he did not drink to excess. Plaintiff also denied that he had ever struck -his wife but stated that he had held her away from him when she came at him.

A great deal of evidence was offered as to the financial condition of the parties which will be omitted as not being necessary in determining the questions raised by this appeal.

The foregoing constitutes all of the evidence of any consequence on which the trial court entered its decree on February 9, 1961, finding against plaintiff and denied him the relief requested in his petition. The decree further found for defendant on her cross-bill, granting her a divorce awarding her custody of the minor child subject to reasonable visitation by plaintiff and ■ right of plaintiff to temporary custody every other weekend and for two weeks during the summer vacation. The decree also granted defendant specified amounts for alimony, child support and attorney fees. Thereafter on February 20, 1961, the plaintiff filed a Motion for New Trial setting out thirteen specifications of error.

On May 17, 1961, plaintiff filed a motion to cite defendant for contempt of court on the ground that defendant denied to plaintiff temporary custody of the child at the times specified in the decree of divorce. There is nothing in the record to show this motion was ever ruled on by the court. However, on the following day, May 18, 1961, the court granted plaintiff a new trial by a signed order which read as follows :

“The Court after due and careful consideration of plaintiff’s motion for new trial heretofore argued and submitted, and by a further review of all the evidence and proof adduced in the trial of said cause does grant plaintiff a new trial and further holds the former order granting defendant relief is void and of no effect.”

Thereafter on May 23, 1961, defendant duly filed her Notice of Appeal to this court.

On July 19, 1961 after withdrawal of plaintiff’s trial counsel and the entry of appearance of new counsel for plaintiff, the court made an order, by consent of the parties, making temporary allowances to defendant for alimony, suit money, child support and attorney fees pending the appeal. Thereafter on August 11, 1961, the court entered of record the following signed order:

“The Court on its own motion makes the following order nunc pro tunc as •to the order of 18 May 1961 wherein plaintiff’s motion for a new trial was sustained, inserting after the words ‘new trial’ in line 7 the following, to-wit:
“ ‘on the grounds set forth in plaintiff’s motion for a new trial, numbered 1, 2, 6 and 12, and further finds that defendant did not sustain the burden of proof to support a decree of divorce in her favor.’ ”

This order was apparently made by the court of its own motion and without notice to the parties as there is nothing in-'the record to indicate any application -or request for the order or any prior notice given that the court contemplated such action.

The first question to be .considered is whether the so called “Order, nunc pro tunc” of August 11, 1961 was- a- valid order. A determination of this question is of importance in ascertaining the approach to be taken by the court in considering the other questions raised in this appeal.

Defendant contends that the order nunc tunc of August 11, 1961 was an attempt to substitute a new annd different Order than the order of May 18, 1961 from which this appeal was taken and was not baséd on any previous written entry or record in the case. The rule governing the 'authority of a court to correct its records by a nunc pro tunc order was stated in Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, 681, as follows:

“The important principle to remember in detemining the court’s authority to correct its records is that it can only correct the record so as to reflect the action actually taken by the court at the.time it entered its order or judgment. A nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. Such an entry cannot be invoked to correct a mistake or oversight of the judge, nor be used tp. correct judicial errors, nor to render a judgment different from that actually rendered-, even though the judgment actually rendered was not the judgment the judge intended to render. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 126 A.L.R. 949; Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986; Clancy v. Herman C. G. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914; Burnside v. Wand, 170 Mo. 531, 71 S.W. 337, 62 L.R.A. 427; Arkansas-Missouri Power Company v. Hamlin, Mo.App., 288 S.W.2d 14; Schenberg v. Schenberg, [Mo.App.] 307 S.W.2d 697.”

It has also been held that to authorize a correction by nunc pro tunc order there must be some record either in the minutes of the judge, the clerk’s entries or in some other paper in the case authorizing such correction, Wegman v. Fendelman, Mo.App., 333 S.W.2d 290, 297; Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62.

In the instant case, the order of May 18th granted plaintiff a new trial and nothing more. The court did not specify of record the ground or grounds on which the new trial was granted as required by Supreme Court Rule 78.01, V.A.M.S. The “order nunc pro tunc” made by the court on August 11th obviously was made to supply the ground or grounds omitted from the order of May 18th, but there is nothing from the record in this case such as minutes made by the court, clerk’s entries or other writings to indicate what ground or grounds, if any, were the basis for the order granting a new trial. It is therefore concluded that the trial court had no authority to make the “order nunc pro tunc” of August 11, 1961, and that this appeal is taken from the original order granting a new trial of May 18th, which did not specify any ground or grounds on which the new trial was granted.

Supreme Court Rule 83.06(b) supplements Supreme Court Rule 78.01 by declaring that when a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. Subparagraph (c) of Rule 83.06 also provides that if the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on discretionary grounds.

In applying these rules to the instant case it is apparent that as no grounds were specified of record in granting plaintiff a new trial the presumption shall be that the motion for new trial was erroneously granted and the burden here is upon plaintiff to justify the action of the trial court.

Plaintiff makes only two contentions in support of the order granting a new trial, (1) that the trial court has discretion to grant at least one new trial which is conclusive unless abused and (2) the court being the trier of the facts and having determined the issues of fact presented, can subsequently in its discretion grant a new trial, if upon reconsideration it finds from the evidence that the defendant was guilty of such misconduct as to preclude her from being an innocent and injured party entitled to a divorce.

It is true that trial courts have wide discretion in passing on motions for new trial where there is error in the record, but the power of a trial court to grant a new trial is discretionary only as to questions of fact. Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 995, 125 A.L.R. 674; Cooper v. 804 Grand Bldg. Corp. Mo., 257 S.W.2d 649, 655; McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918, 921. The trial court in the instant case had the power to grant a new trial on discretionary grounds, limited to questions of fact and matters affecting the determination of issues of fact, but in exercising such discretionary power the court was required to observe the prescribed method required by Rule 78.01 of specifying of record the ground or grounds on which the order granting a new trial was based. It would thus logically follow that the plaintiff has • not carried the burden of supporting the order granting a new trial; that this action of the trial court was erroneous under Rule 83.-06(b) ; and that the order granting a new trial should be set aside. However, this is an action for divorce with which the state is concerned and in which the conscience of the court must protect the public interest, Willis v. Willis, Mo.App., 274 S.W.2d 621, 626. A case of this kind is tried de novo and it is the duty and responsibility of this court to review the evidence and if possible reach its own conclusions therefrom. Oliver v. Oliver, Mo.App., 325 S.W.2d 33, 38; Clemens v. Clemens, Mo., 235 S.W.2d 342.

In this case both plaintiff in his petition and defendant in her cross-bill sought to obtain a divorce on so-called general indignities. Every divorce case based on indignities must be determined on its own facts, Clark v. Clark, Mo.App., 306 S.W.2d 641, 646. Indignities sufficient to justify the granting of a divorce ordinarily must amount to a continuous course of conduct as distinguished from a single act or occasional acts. In addition, the acts relied upon must amount to a species of mental cruelty, and should demonstrate a course of behavior by one of the parties toward the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relationship. Clark v. Clark, supra; Coleman v. Coleman, Mo.App., 318 S.W.2d 378, 381. It should also be observed that a party to be entitled to a divorce should be an innocent and injured party but the courts of this state have repeatedly held that a party to. a divorce action is not deprived of his státus as an innocent party simply because his conduct has not been perfect at all times. To prevent a person from being adjudged an-innocent and injured party, his or her behavior and conduct must have been such, as to entitle the other spouse to a divorce, Elgin v. Elgin, Mo.App., 301 S.W.2d 869, 872.

Plaintiff’s testimony Tn support of - the indignities that he has charged defend-' ant particularly with use of bad language and calling him vile name.s, staying out late at night, clawing plaintiff with her fingernails, spitting and throwing water on plaintiff is very general and not corroborated to any extent by other evidence. Plaintiff’s evidence as to acts of physical violence by defendant such as the scissors incident when considered in context with all the other evidence does not clearly show an unprovoked attack by defendant on plaintiff but rather a dispute in which’ both parties were actively engaged. Plaintiff’s evidence does not clearly demonstrate with convincing probative force , that he has suffered intolerable indignities at the hands of defendant sufficient to entitle him to a divorce. ' '

On the other hand, even though defendant is not without fault, the incidents and episodes related by her, some of which are corroborated by circumstances and other witnesses, show that for a niimber of years she has been subjected to-a course of conduct and behavior on part of the-plaintiff of such an intolerable nature as to be subversive of the family relationship. It appears from an independent review of the entire record that the trial court reached • the right result in its decree denying plain- • tiff relief and granting defendant a divorce.

For the reasons stated, it is recommended that the order granting a new frial be re-, versed and that the cause be remanded with directions to reinstate the original decree of divorce entered by the trial court.

PER CURIAM.

The foregoing opinion of SEMPLE," Sp. C., is adopted as the opinion of this court. The order granting a new trial is reversed and the cause remanded with directions to reinstate the original decree of divorce.

ANDERSON, P. J., WOLFE, J., and JAMES D CLEMENS, Special Judge, concur.


author: ANDERSON, Presiding Judge.

text:
    Ralph B. HUTCHINGS, (Plaintiff) Respondent, v. Sherman L. TIPSWORD, (Defendant) Appellant.
    No. 31010.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 14, 1963.

      Joseph Nessenfeld, Richard Marx, St. Louis, for appellant.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, and Frank J. Lane, Jr., St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an action brought by plaintiff, Ralph B. Hutchings, against defendant, Sherman L. Tipsword, for damages based upon alleged fraudulent representations by said defendant. There was a verdict and judgment below in favor of plaintiff in the sum of $2,923.10. Defendant has appealed from the judgment.

The case was tried upon a second amended petition. In said petition it was alleged that defendant caused a corporation, King-Nat Company, Inc., to be organized, and solicited plaintiff to purchase shares of said Company. It was further alleged that defendant at said time did falsely and fraudulently represent to plaintiff that such shares were valid, subsisting and authorized by the corporation and registered on the books of the corporation; that in ignorance of the falsity of the .representations and in reliance thereon, plaintiff purchased 14 shares of the stock which were issued in two certificates, one for 12 shares and one for 2 shares; that about August 1, 1956, the corporation retired its capital shares and paid plaintiff $17,538.60 for 12 shares; that thereafter plaintiff requested that the certificate for 2 shares be retired on the same basis; that then defendant acknowledged that said certificate had been issued by him personally, and was not of record on the corporate books of the corporation, and at said time plaintiff learned that said certificate representing 2 shares was not valid, añd not authorized or of record on the corporate books’; that defendant intentionally caused the certificate to be issued, knowing that said shares were not registered on the corporate books and were not authorized and that defendant did so with intent to defraud plaintiff. The prayer of the petition was for actual damages in the sum of $3,023.10, and punitive damages in the sum of $5,000.00.

Defendant’s answer in addition to a general denial alleged that he was one of the incorporators of the corporation; that such corporation was dissolved and that plaintiff was paid $17,538:60 for his stock interest in the corporation pursuant to said dissolution.-

. On December 10, 1952, defendant entered .into a contract with Highway Frontage Corporation to. purchase a parcel of real iestate at Kingshighway and Natural Bridge in St. Louis. The purchase price, according to the terms of the contract, was $375,-000.00 to be paid in the following manner; ’$10,000.00 paid as earnest money, $140,-000.00 in cash to be paid at the consummation of. the sale, and the balance of $225,-000.00 by promissory notes secured by a deed of trust on the premises.

Shortly after -defendant entered into the contract, he and his business partner interested a number of persons in the formation of a corporation to take over the contract of purchase and develop the property. Defendant was a used car dealer, and it appears that the initial plan of the parties was to convert the property into a used car arena, with a finance office and an insurance office on the premises. Plaintiff was an insurance broker and was selling defendant insurance at the time. He was desirous of obtaining the insurance business that would be available if the property was used as planned.

According to plaintiff, at some unspecified time prior to the organization of the corporation, but after defendant had entered into the earnest money contract for the purchase of the property, he had a discussion with defendant concerning this proposed purchase of the land and the proposed corporation. Plaintiff testified defendant told him at the time that there would be 103 shares of stock in the corporation at $1,500.00 a share, and asked him if he was interested, and if so how much he wanted to buy. Plaintiff stated that he agreed to buy 14 shares of stock; that it was his understanding that the corporation was to issue him 14% of the stock for $21,000.00.

The real estate agent who handled the purchase of the property was Leonard O’Brien. O’Brien also became interested in the proposed project and became one of the incorporators. He employed an attorney, Oliver Erbs, at his own expense, to prepare the Articles of Incorporation and to organize the corporation in accordance with law. He also employed a certified public accountant to assist Mr. Erbs. Mr. Erbs, according to O’Brien, thereafter prepared the Articles of Incorporation based upon information furnished him by Mr. O’Brien and defendant. Defendant denied talking to Erbs prior to the preparation of the Articles of Incorporation.

The name of the corporation as shown by the Certificate of Incorporation was “King-Nat Company”. The Articles of Incorporation show that there was a total authorized capital stock of 100 shares of no par value, and that all of the shares were subscribed for by the incorporators. They also show $150,000.00 as the amount of capital paid in, and that it was then in the custody of the first Board of Directors. The Articles of Incorporation listed the names of the shareholders and the number of shares subscribed by each. Plaintiff is listed as having subscribed to 12 shares. Defendant subscribed for 43 shares; Earl Tipsword, defendant’s brother, is listed as having subscribed for 8 shares; John Hargis, a business associate of defendant, subscribed for 8 shares; Leonard O’Brien, 6 shares; John Sherman, 6 shares; Norman Spitzer, 7 shares; Raymond Coleman, 6 shares, and Cleve Tipsword, defendant’s father, 4 shares. The Articles were signed and sworn to by all the subscribers. Plaintiff stated he knew they were Articles of Incorporation, and knew what they were for when he signed; that he knew he was a part of the corporation and owned 14% of it. He testified that for his subscription he paid the sum of $21,000.00. The check in payment of this amount was made payable to O’Brien Real Estate Company, as were all payments, made by the subscribers to the stock of the Corporation. This was done pursuant to instructions from defendant. Payments were made some time in January, 1953, and were made for the purpose of completing the payment of $150,000.00 called for under the contract of purchase. The Articles of Incorporation of the King-Nat Company were issued on February 3, 1953, and the sale of the land was completed February 10, 1953. On that date shares of stock were issued to each of the incorporators in the numbers shown to have been subscribed by them in the Articles of Incorporation. The stock certificates were signed by the defendant, who was president of the corporation, and by O’Brien as secretary. Plaintiff did not recall from whom he received the certificate issued to him. However, he testified that immediately after receiving the certificate and finding that it was for only 12 shares, he talked to defendant about it; about the percentage they had agreed upon. This conversation took place on defendant’s used car lot at Fair and Natural Bridge. According to plaintiff this conversation concerned the fact that he got 12 shares when it should have been 14 shares, and that defendant told him he would see he got the other 2 shares of stock. Defendant denied there was any such discussion.

Plaintiff further testified that defendant subsequently gave him a certificate for 2 additional shares of stock. This certificate is dated January 22, 1954. He stated that prior thereto he had, on numerous occasions, unsuccessfully sought to obtain these 2 shares of stock from the defendant. Plaintiff testified with reference to the issuance of this certificate as follows: “I had asked Tippy (defendant) for this certificate on many occasions, and finally on this particular date — we didn’t exactly get into a hassle over it, but I just became insistent upon it, and he said ‘Come on into the office, I will get you out of my hair’,, so to speak, and that’s how it happened.”

Plaintiff further testified that the incident occurred in the small office on the used car lot operated by defendant and his partners at Fair and Natural Bridge. No one but plaintiff and defendant were present. Defendant took the stock book out of a drawer, filled out a certificate for 2 shares in the name of plaintiff, dated it January 22, 1954, and signed it as President. Plaintiff said he receipted for the certificate on the stub, of the stock book and thereupon left the office.

When defendant handed plaintiff the certificate, it lacked the corporate seal, and was not signed by the Secretary of the cor-' poration. After leaving defendant’s office, plaintiff telephoned Mr. O’Brien, the Secretary, and told him about receiving these 2 shares of stock from defendant, and asked O’Brien if he would sign the certificate as Secretary. Mr. O’Brien assured plaintiff" that he would do so. Plaintiff then went to O’Brien’s office and the latter signed the certificate as Secretary, and put the corpo-. rate seal on it. O’Brien testified that when plaintiff arrived at his office, plaintiff did not relate the circumstances under which he received the certificate but did say “I finally got my 2 shares of stock.” O’Brien stated that he looked at the certificate and recognized defendant’s signature, and knowing both plaintiff and defendant, and the in-' tegrity of each, signed it. Mr. O’Brien further testified that after the original certificate for 12 shares was issued there was a discussion in regard to the number of shares plaintiff should get — whether 12 or 14 — and to the best of his knowledge plaintiff was claiming 14 shares instead of 12. According to O’Brien it did not come as a surprise to him when plaintiff brought in the certificate for two shares.

Defendant’s position has always been that plaintiff subscribed for only 12 shares of stock, and that the amount paid by him in excess of $1,500.00 per share was plaintiff’s contribution toward a promotional fee for defendant, which was agreed to by all the incorporators including plaintiff. According to defendant’s evidence a meeting of the incorporators was held on January 20, 1953, prior to the actual organization of the corporation, at which time it was agreed that for defendant’s assigning the contract of purchase to the corporation to be formed, and for his work in promoting the corporation, éach • of the other incorporators would pay, in addition to $1,500.00 for each share -of stock, a further sum of $250.00 per share to the corporation to be used in payment of stock to be issued to defendant. Defendant testified that plaintiff agreed to this, saying it was “Fine with me, Tippy”. Spitzer, Earl Tipsword and John Thurman gave testimony with respect to this meeting, and all stated that plaintiff was' there and agreed to' the fee arrangement. O’Brien testified he did not know if there was any meeting prior to the formation of the corporation, at which plaintiff was present, where this' fee was discussed, but it had been discussed between plaintiff and defendant. He did not remember whether this was before or after January 20, 1953. Defendant testified he had never discussed this matter privately with plaintiff prior, to this meeting, but claimed that his partner, Hargis, had spoken to plaintiff about it. The other incorporators did not testify. Defendant testified that each of the other incorporators paid the $250.00 fee plus $1,500.00 for each share of-stock. Defendant, admitted there was no reference to this fee in any of the corporate records or. papers. Plaintiff testified that he was never present with other stockholders when such a matter was brought up, nor did he ever have any discussions with defendant about it. He did not know of his own knowledge whether or not other stockholders paid such a fee.

About the time when the land purchase was to be closed, the incorporators were informed by O’Brien and defendant that the property could be sold at an immediate profit of $50,000.00. This offer was unanimously rejected.

It further appears from the evidence that the plans for the used car arena were abandoned, and thereafter an attempt was made to secure a contract to build a post office on the property and lease it to the government. For a time, it appeared that the corporation would obtain the proposed contract, but not long before February 10, 1954, it was learned that the corporation’s bid for the post office had been rejected.

It is defendant’s position that the certificate for the two additional, shares of stock is not valid. Defendant’s version of the incident is that in January 1954, when it appeared likely that the corporation would obtain the post office contract, plaintiff came to his office and asked him if he would be willing to sell for $1,500.00 a share, 2' shares of stock owned by him, and defendant, who was in need of money at the time, agreed to make the sale. He testified that after plaintiff left his office he filled out and dated the certificate but left it in the stock book, which was then in his possession. He further testified he did not thereafter see the’ stock book or the certificate until his deposition was taken after the present suit was filed. He stated that until that time'he was not aware that the stock' book or certificate had been removed from his office and was in plaintiff’s possession. Defendant further testified that he never asked plaintiff for his check for the purchase price when he prepared the certificate; that none of this stock could be transferred without the" consent of all the stockholders; that the secretary had to sign the certificate and attach the corporate seal to it. He stated that plaintiff never made any payment to him for this stock. Defendant at no time submitted the matter to the shareholders for their consideration, nor did he again discuss it with plaintiff. He stated that no one else knew about the transaction.

The evidence discloses that at the time the corporation was organized, the shareholders entered into an agreement restricting their right to sell their stock. It was provided by this agreement that any stockholder desiring to sell stock should first give notice to the Corporation and other stockholders of his intention to sell, and that the corporation for 30 days thereafter would have the right to purchase said stock at its book value. In the event the corporation should fail or refuse to buy the stock offered within said time, the other stockholders were given the right to buy on the same terms within 60 days thereafter. It was also provided that the 90-day period might be waived in writing, in which event sale of the stock might be sooner made. There is no evidence in the record that there was any waiver of the 90-day period by either the corporation or the stockholders with respect to the alleged sale of stock by defendant to plaintiff. Defendant testified he was going to submit this matter at a stockholders’ meeting which was set for January 22, 1954, but the meeting was not held. Defendant testified he never did submit the transaction to the stockholders for their approval because plaintiff never brought in the money for it and for the further reason that the corporation lost the post office deal.

There was evidence on behalf of defendant that plaintiff could not have obtained the certificate on January 22, the date thereof, because on that date defendant’s used car office was closed and not open for business.

The first installment of $29,500.00 on the deed of trust note became due on February 10, 1954. The stockholders held a meeting to discuss the payment of this note. Plaintiff and other shareholders refused to advance money to meet the payment due. The money was raised by defendant.

Thereafter, the assets of the corporation were liquidated, and in August, 1956, a resolution was adopted to dissolve the corporation and directing the proper officers to distribute the proceeds to the shareholders, each shareholder to receive $1,461.55 for each share of stock as shown on the stock transfer records on surrender of certificates representing said share. Plaintiff received $17,538.60 as payment for 12 shares. He testified that, after receiving this payment, he talked to defendant and requested he be paid for the 2 additional shares on the same basis, and that defendant refused to do so. He further stated that he believed those 2 shares to be good and valid shares of the corporation when they were delivered to him by defendant; that he had no reason to think otherwise.

Appellant contends that the trial court erred in overruling defendant’s motion for a directed verdict in his favor. In support of this contention it is urged there was no fraud shown for the reason that there was no evidence of defendant inducing plaintiff to purchase 14 shares of stock by falsely representing that said shares were valid, subsisting, authorized and registered: on the books of the Company, as alleged in plaintiff’s petition.

It has been held that a misrepresentation may be accomplished not only by the use of language, but also by acts and conduct, or a combination of conduct and concealment, or by conduct and language. Stout v. Carruthersville Hardware Co., 131 Mo.App. 520, 110 S.W. 619; Western Cattle Brokerage Co. v. Gates, 190 Mo. 396, 89 S.W. 382; 37 C.J.S. Fraud § 9, page 226.

Under certain circumstances the mere act of contracting may constitute an implied representation of' the existence or nonexistence of facts, and expose the maker thereof to liability for fraud for its falsity. Stern v. National City Co., D.C., 25 F.Supp. 948, affirmed 8 Cir., 110 F.2d 601; 37 C.J.S. Fraud § 9, page 226. It has also been held that to cause the issuance of stock of a corporation amounts substantially to a representation that the certificates therefor are regular and valid. MacDonald v. Reich & Lievre, Inc., 100 Cal.App. 736, 281 P. 106. Also misrepresentation by conduct may consist in delivery under contract of an article not bargained for. Handy v. Roberts (Tex.Civ.App.) 165 S.W. 37; Schaffner et al., v. National Supply Co., 80 W.Va. 111, 92 S.E. 580.

The evidence in the case at bar shows that defendant was the principal promoter of the corporation. Plaintiff testified that he entered into an oral agreement with defendant to purchase 14% of the capital stock of the company at $1,500.00 per share; that pursuant to this agreement he paid in $21,000.00, with the understanding that he was then purchasing 14 shares of stock. He was issued only 12 shares and, when he complained to defendant about not receiving the amount he had bargained for, defendant, who was President of the corporation, filled out, signed and delivered to plaintiff a certificate for 2 shares of stock. Plaintiff stated that at the time of the delivery of this certificate he receipted for it in the stock book of the corporation which was then in defendant’s possession. All that remained to be done to make it appear that the certificate was valid, was to secure the signature of the Secretary to it, and have the corporate seal affixed, both acts being purely ministerial in nature. This the plaintiff did, but it was defendant’s own act that made it possible for a completed certificate to be issued.

The preparing of the certificate by defendant and its delivery could be found by the jury to be an implied representation that it was a valid instrument, which he had bought at the time he delivered the check for $21,000.00, and was a part of a scheme to defraud, which had its inception at the time of the agreement between the parties for the purchase by plaintiff of a 14% interest in the business. That the representation, if made, was false is beyond question for it appears that the entire authorized stock of the corporation was, at that time, fully subscribed for and issued. The certificate in question was a mere scrap of paper, which the jury could reasonably have found was known by the defendant, and it could therefore be inferred that defendant, by his conduct, which we have said amounted to a false representation, was done willfully and knowingly with intent to deceive.

It is also urged that plaintiff failed to make a case for the jury for the reason that there is no evidence that plaintiff was deceived into acting upon any representations by defendant, or that he relied thereon, or had the right to rely thereon. Suffice it to say, that plaintiff’s testimony that he paid $21,000.00 to the corporation pursuant to his agreement with defendant is sufficient to show reliance upon the representations implied by said agreement and payment thereunder. The argument that plaintiff did not have the right to rely upon the defendant’s representations is based on the theory that having signed the Articles of Incorporation, plaintiff will not be heard to say that the understanding between the parties was otherwise than as reflected in the Articles. But under the decisions plaintiff’s action to recover on the ground of fraud will not be defeated because he had the means of discovering the fraud, when there is a positive representation of fact. McGhee v. Bell, 170 Mo. 121, 70 S.W. 493, 496, 59 L.R.A. 761; Burch v. Schmelig, Mo.App., 300 S.W.2d 838. The same rule should apply to implied representations arising from conduct or agreement. Ignorance of the falsity of the representation may be inferred from plaintiff’s conduct in seeking over a period of time to have issued the two additional shares, to which he thought he was entitled, and in accepting Certificate No. 14 without questioning its validity.

It is next urged that there was no evidence that plaintiff sustained any damage as a result of defendant’s false representations. There clearly is no merit to this point. According to plaintiff’s testimony the agreement was for the purchase by him of 14 shares of stock for $21,000.00. He paid this sum, but received only 12 shares of valid stock, the purchase price of which would have been $18,000.00, and thereafter a worthless certificate for 2 shares. At the time of the dissolution of the corporation, he received payment for only 12 shares and was told there was nothing due on the two worthless shares. Clearly there was damage to plaintiff shown by this evidence.

In our judgment, the trial court did not err in refusing to direct a verdict for defendant.

The next assignment of error is directed to Instruction No. 1 which was given at plaintiff’s request. Said instruction is as follows:

“The Court instructs the jury that if you find and believe from the evidence' that the plaintiff and defendant agreed that plaintiff was to receive 14% of the capital common stock of King Nat Company, for a consideration of $21,-000.00, and that the defendant caused said 14% to be issued in two separate stock certificates, one representing 12 shares and one representing 2 shares, if you so find, and if you further find and believe that the defendant caused said Certificate No. 14 representing 2 shares to be issued, knowing that said certificate was not valid, if you so find, then in so doing defendant was guilty of fraud, and if you further find that each share would have had a value of $1461.-55 or a total value of $2923.10 at the time of the dissolution of the corporation, then your verdict shall be in favor of plaintiff and against defendant in the sum of $2923.10 for actual damages.”

It is urged by defendant that the instruction is erroneous because it fails to require a finding that plaintiff relied upon the alleged false representations of defendant. The theory of plaintiff’s case, as we view it, was that plaintiff was solicited to purchase stock in a corporation and by reason thereof was induced to enter into an oral contract for the purchase of 14% of the corporate stock; that he paid $21,-000.00 in reliance on the contract and the implied representation that he was then purchasing a 14% interest in the company; that he received only 12 valid shares and a certificate for 2 shares that were worthless but impliedly represented, when delivered, to be valid stock. Now, in order for a plaintiff to recover for false and fraudulent representations it must be shown, among other things, that the person defrauded relied upon the truth of the representations claimed to be false and suffered damages by reason thereof. This is a fundamental proposition that needs no authority in its support. In the instruction under consideration there is no requirement that the jury find that plaintiff paid the full $21,-000.00 for 14% of the corporate stock or that such payment was in reliance on the implied representation that he was then purchasing a 14% interest in the company. For that reason, we believe, the instruction is erroneous and prejudicial. This for the reason that there was evidence in the case from which it could reasonably be inferred that plaintiff did not pay the full amount for 14% of the stock of the corporation or that he relied upon any of the alleged misrepresentations to his damage. There was evidence that $3,000.00 of the amount which plaintiff paid was not for the purchase of stock, but was intended as a promotional fee to defendant, and that the certificate for the 2 invalid shares was delivered to plaintiff pursuant to an agreement made almost a year later, whereby plaintiff purchased 2 shares then owned by defendant. The evidence further shows that plaintiff signed the articles of incorporation in which plaintiff is listed as subscribing to only 12 shares of stock. The foregoing evidence tends to show that plaintiff did not purchase 14 shares, or rely upon the implied representation that he was purchasing 14% of the corporation at the time he paid his money. If this evidence is true, then there would be no cause of fiction for fraud by reason of the alleged issuance of Certificate No. 14 for the 2 shares of stock for the reason that plaintiff, having paid nothing for it, suffered no damage, which shows the prejudicial nature of the omission heretofore pointed out.

There are complaints directed against the Instruction No. 1, which, we believe, are unnecessary to discuss. Before another trial, plaintiff will have an opportunity to re-examine the instruction and make such corrections as may be considered necessary in view of the attack made upon it.

The judgment is reversed and cause remanded for a new trial.

WOLFE, J., concurs.

RUDDY, J., not participating


author: SPERRY, Commissioner.

text:
    F. M. PULLIAM, Respondent-Appellant, v. HOME BUILDING CONTRACTORS, INC., and Hardware Mutual Insurance Company, Respondents, and Milrey Development Company and Iowa National Mutual Insurance Co., Appellants.
    Nos. 23590, 23597.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 3, 1962.
    Joseph B. Bott, Kansas City, for appellants Milrey Development Co. and Iowa Nat. Mut. Ins. Co.
    David R. Clevenger and William D. Lay, Platte City, for appellant F. M. Pul-liam.

      Tucker, Murphy, Wilson, Lane & Kelly, by Paul Scott Kelly, Jr., Kansas City, for respondents.
   SPERRY, Commissioner.

This appeal is from a judgment of the Circuit Court of Platte County, Missouri, affirming an award of the Industrial Commission of Missouri, in favor of plaintiff in the sum of $894.66, because of accidental injuries received by plaintiff while working as a carpenter.

Plaintiff was a regular employee of Home Building Contractors (whose insurer is Hardware Mutual Insurance Company), hereafter referred to as Building Company. At the time plaintiff received his injuries he was laying floor in a house on property owned by Milrey Development Company (whose insurer is Iowa National Mutual Insurance ' Company) hereafter referred to as Milrey. The referee found that plaintiff worked for Building Company and Milrey interchangeably, and made an award in favor of plaintiff as against Milrey alone, on the theory that plaintiff was, at the time he was injured, July 31, 1959, in its employ. This award was affirmed by the commission and, on appeal, by the circuit court. Plaintiff and Milrey appeal.

Building Company maintained a factory at Sedalia, Missouri, for the production of prefabricated houses which were sold to individuals and to real estate developers. It also maintained two trained construction crews for the transportation and erection of such houses. These field crews were under the supervision of Mr. Cohal-la, who was an hourly employee. Cohalla personally directed one crew, as foreman, and he also generally directed the activities of the other crew which was under the personal supervision of Mr. Thompson, another employee of Building Company.

According to the evidence, Building Company had contracted to sell to Milrey a number of houses, which were to be delivered to it in Platte Ridge, a Milrey subdivision. Plaintiff was an hourly employee of Building Company. He worked in Cohalla’s crew as a carpenter, skilled in the laying of floors.

There was competent testimony to the effect that, as to some houses sold by Building Company, it erected and completed them. However, there was evidence to the effect that, as to those sold to Milrey, including the one upon which plaintiff was working when injured, Mil-rey had the -complete responsibility for erection and did furnish its workmen including its foreman, Cohalla, for whatever services Milrey might require; that, ■in such cases, Cohalla had the immediate direction of such workmen but Milrey’s supervisor, Reeder, directed what houses were to be worked on, what work was to be performed, when to work, and when not to work; that Reeder could order any work to be discontinued at any time; that Reeder could “fire” all of such workmen at any time; that Milrey paid such workmen, including Cohalla and plaintiff, on its own checks from which tax and social security deductions were made; that Co-halla turned in to Reeder time cards on all employees under his supervision, and to Building Company, showing for whom and when each employee worked. There was testimony to the effect that this working agreement benefited Building Company because its employees would have steadier employment and not be laid off temporarily because of lack of work; and Milrey had the benefit of workmen especially trained in constructing the particular houses that it had acquired from Building Company.

Plaintiff testified to the effect that, since 1957, he had been employed by Building Company, as a carpenter, working on its prefabricated houses, “on the road” and elsewhere when so ordered; that he was a member of Cohalla’s crew and went wherever Cohalla told him; that, on July 31, 1959, his thumb was injured while he was laying floor in a house in Milrey’s Platte Ridge addition; that, at Cohalla's direction, he went to the addition and was told by Cohalla to ask Reeder what he was to do; that Reeder told him to lay floor in a certain designated house, where he was injured; that he knew this was Mil-rey’s subdivision; that he was willing to work there; that he had previously worked there; that he had worked for both Building Company and for Milrey, from time to time; that, when he worked for Mil-rey, he was paid with their check, at the hourly union scale, from which income and social security taxes were deducted; that he was so paid for July 31, 1959; that, after recovery from his injuries he worked for Building Company, and for Milrey; that “I worked for both”; that he never formally applied for work from Milrey but that he filled out their “depend- - ents’ form”; that, when he was injured, he was using Budding Company tools; that he reported Milrey as employer, as to wages received from Milrey, for tax purposes.

Mr. Smith, an officer of Building Company, stated that the company had sold a number of houses to Milrey for erection in Platte Ridge; that Building Company agreed to loan to Milrey its erection crew; that Building Company paid no wages to such employees while performing services for Milrey; that no wages were paid to Cohalla or plaintiff on July 30 or 31; that their time cards showed that they worked for Milrey on those dates; that Building Company had no control or right of control over employees loaned to Milrey, including Cohalla and plaintiff; that an officer of Milrey instructed Building Company not to pay workmen for time spent for Milrey.

Frank Cohalla testified to the effect that he had long been employed as a field supervisor and construction foreman by Building Company; that, on July 30 and 31, both witness and plaintiff worked for Milrey, under orders of Reeder; that they were paid by Milrey who deducted standard taxes from their checks; that, for those days, he received no wages from Building Company; that he was not under orders from Reeder; that plaintiff reported his injury to witness, July 31, and witness sent him to the only doctor he knew in that area; that, at the time, Reeder was absent but a report was made to him when he returned to the area, and he also reported the injury to Building Company with the statement that the injury occurred while plaintiff was working for Milrey.

From the facts in evidence the commission could have found that Building Company loaned to Milrey its employee, plaintiff, with his consent (He stated that he had previously worked for Milrey and he was willing to work for Milrey) ; that plaintiff had entered upon the work of and for Milrey, pursuant to an express or implied contract so to do; that Milrey had the power to control the details of the work to be performed and to determine how the work should be done and whether it should stop or continue. It could have found facts from which it could have believed that Milrey was plaintiff’s employer within the meaning of the act, and was entitled to receive compensation from Milrey for his injuries. Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628, 631. In Patton v. Patton, Mo., 308 S.W.2d 739, 746-747, the court considered, discussed and approved that decision.

The commission rested its action in this case on the reasoning and authority of the Ellegood case. The law is as stated in that decision and the commission, under the evidence herein, reasonably could have made the findings that it made and could have reached the result that it reached. Whether or not, under the evidence, it could have made different findings and reached a different result is immaterial. We cannot substitute our opinion for that of the commission, if we had a different opinion. Karch v. Empire District Electric Company, 358 Mo. 1062, 218 S.W.2d 765, 769.

The judgment is affirmed.

MAUGHMER, C., and DEW, Special Commissioner, concur.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.

All concur.


author: BRADY, Commissioner.

text:
    Gerald HARRIS, Plaintiff-Appellant, v. Fleming WILLIAMS, Defendant-Respondent.
    No. 30911.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.
    William P. Byrne, Librach, Heller, Byrne & Weber, St. Louis, for appellant.

      Wilbur C. Schwartz, William L. Mason, Jr., Grove G. Sweet, St. Louis, for respondent.
   BRADY, Commissioner.

This was an action for personal injuries and damages plaintiff allegedly sustained' in an automobile collision occurring on November 10, 1958, at the intersection of Prairie and Page Avenues in the City of St. Louis, Missouri. The case was tried in February of 1961 and resulted in an unanimous jury verdict for the defendant. The" transcript was filed with this Court in September, 1961 and after- resettings upon application of counsel we heard the appeal during our October, 1962 docket. Inasmuch as the issues raised in this appeal do not involve the injuries plaintiff allegedly incurred, the description, thereof and of the medical testimony going thereto will not be stated herein. The parties will be referred to by their designation at the trial.

In his first assignment of error, plaintiff alleges that the trial court erred in allowing the defendant to cross-examine the plaintiff as to addresses he had given to the police on prior occasions, and as the reason therefor he urges that “ * * * by virtue of these questions defendant was allowed to bring before the jury the fact that on numerous occasions plaintiff had been arrested; for the further reason that a mere arrest is not admissible to affect the credibility of a witness.” For a second assignment of error, the plaintiff alleges that the trial court erred in allowing the defendant to cross-examine the plaintiff concerning a statement regarding an address in relation to an arrest. Up to that point, it would seem that his second allegation of error is practically the same as the first, and he even assigns in his second allegation of error “ * * for the reason set forth in Paragraph 1 * * * ” but he goes on to allege “ * * * and the court erred in overruling plaintiff’s motion for mistrial for the reason that the error was before the jury.” The plaintiff sets forth two other allegations of prejudicial error in his brief. A reference to the motion for new trial discloses that such motion does not contain any allegation of error dealing with the trial court’s action in allowing defendant’s counsel to cross-examine the plaintiff with regard to the facts and circumstances of one of his convictions for burglary, which conviction had been admitted by plaintiff’s counsel. Accordingly we will .not review the point. Civil Rule 83.13(a), V.A.M.R. Neither do we deem it a point which should be considered under the provisions of Civil Rule 79.04, V.A.M.R. The plaintiff’s other assignment of error deals with the giving and reading of Instruction No. 7. Under the disposition made herein of this appeal, it is unnecessary to consider this point. Accordingly the evidentiary matters pertaining to these points are not stated herein.

The plaintiff testified that he lived at 4052 Kennerly in St. Louis City; that the accident occurred on a dry, clear day at about six P.M. or * * just after dusk”; that he was a passenger in the car of Mr. Cheatham, who was deceased at date of trial, and who had lived in the same block on Kennerly as his mother and had offered him a ride from his mother’s house at 4052 Kennerly to his room at 3869 Cook; that they proceeded in the Cheatham automobile southwardly on Prairie Avenue and stopped at the intersection of that street and Page Avenue for a stop sign w-hicfi controlled Prairie Avenue traffic; that Cheatham’s automobile had a standard transmission and he brought it to a full stop, • shifting into first gear; that as they pulled “over from the curb” he first saw the defendant’s automobile proceeding east-wardly on Page; that it was the only automobile then in sight coming from that direction; that the defendant’s automobile was then one-half to three-fourths of a block away; that as they got “about center line of Page” he looked again and saw the defendant’s car a “little less than half a block” away; and that when he saw the automobile “continuing to the same effect” he remarked to Cheatham “I think he is going to hit us.” The plaintiff’s further testimony and the evidence from pictures he introduced as marked by witnesses showed the Cheat-ham car to have crossed five of the six lanes of traffic on Page, and the impact to have taken place in the sixth or most southwardly lane of the intersection; that this was the lane in which the defendant was traveling; that the defendant never swerved or sounded his horn or applied his brakes- prior to the impact; that Cheat-ham was proceeding at IS to 18 miles per hour as he crossed the intersection; that with respect to Cheatham’s car, the impact took place at the right front door as shown by Exhibit 4; that the force of the impact turned Cheatham’s car around in a northwesterly direction.

The evidence as given by the defendant was violently contradictory. The credibility of' the parties' was therefore directly ' in issue. Defendant undertook to attack the plaintiff’s' credibility by showing that the address he gave at the trial was different than that he gave at the scene of the accident. While that inquiry was progressing and while making an objection, the plaintiff’s counsel in the presence'of the jury, stated-that the purpose of such inquiry was to bring “ * * *. in matters not admissible — I assume, arrest.” This was the first mention of the word “arrest”. At this point, the .inquiry was confined to plaintiff’s statements with regard to two addresses, 4052 Kennerly and 3686 Cook, and ■ to three occasions;. -at the scene, a week ■ earlier and a week and a day earlier. After plaintiff’s objection was overruled, the defendant’s counsel proceeded to inquire further of plaintiff who stated that his address had always been 4052 Kennerly and that had been his address since 1956. Defendant’s counsel then inquired about two occasions the year before this accident and asked if plaintiff had not “told police” he lived at 4144 Washington in July of 1957. There was no objection and plaintiff answered “Yes sir.” He was then asked if he recalled talking to the police on September 26, 1957. He replied “No, I don’t” and the defendant’s counsel then referred to his arrest by asking “Do you recall a little matter of being arrested?” The occurrence appears in the transcript as follows:

“Q. Do you recall a little matter of being arrested?
“MR. BYRNE: If your honor please, I object to any evidence of arrest. I ask the jury—
“THE COURT: Sustained.
“MR'. BYRNE: I ask the jury be instructed to disregard it. I move for a mistrial and discharge of the jury.
“THE'COURT: You want to join in that.
“MR. SWEET: I wanted to lay a foundation.
“THE COURT: The fact of the arrest, I sustain the objection to that, unless something follows, the arrest alone is not any ground at all. Mr. Byrne is moving for mistrial; he is plaintiff. Are you joining in that motion ?
“MR. SWEET: No, your honor.
“THE COURT: All right. I will deny it. Go ahead."

At common law a convicted felon was not a competent witness. Section 491.050 RSMo 1959, V.A.M.S. provides for the testimony of such a person but also provides his convictions may be proved in an attack upon his credibility by the record or by his own cross-examination. Thus it has been the rule that an arrest may be shown where it is later shown to be the preliminary or to have resulted in a conviction for the matter for which he was arrested. While defendant’s counsel stated he was trying to lay a foundation, he did not make any offer of proof to show that such was indeed his intention and there is no connection shown in the transcript between the arrest inquired into and the admitted conviction. It might well be urged that it cannot be prejudicial to inquire as to the arrest of a defendant who admitted to two convictions and who denied still another conviction in California only to have that third conviction established by uncontro-vertible evidence, because that party had been so discredited by the evidence of his convictions that an arrest could not fairly be said to have prejudiced him with the jury. The answer to that contention is that such is not the law in this state. Our rule is that even where the conviction or convictions are admitted, it is reversible error to inquire into a party’s or a witness’ arrest or arrests. State v. Rumfelt, Mo., 258 S.W.2d 619. In this case, the trial court sustained the objection but specifically overruled the request for a mistrial and by directing counsel to “go ahead” overruled also the request that the jury be instructed to disregard the inquiry regarding the plaintiff’s arrest. Under these circumstances, the plaintiff is entitled to a new trial and the judgment should be reversed and the cause remanded. The Commissioner so recommends.

PER CURIAM.

The opinion of BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded.

RUDDY, Acting P. J., and FRANK W. HAYES and RAY E. WATSON, Special Judges, concur.

ANDERSON, P. J., and WOLFE, J., not participating.


author: RAY E. WATSON, Special Judge.

text:
    Bernadine Lorraine PRATT, (Plaintiff) Appellant, v. Carl PRATT, (Defendant) Respondent.
    No. 31166.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.

      Milton Napier, St. Louis, for appellant.
   RAY E. WATSON, Special Judge.

This is an appeal by plaintiff, Bernadine Lorraine Pratt, from a judgment of the Circuit Court denying plaintiff’s Motion to Modify a Decree of Divorce by granting to plaintiff the exclusive care and custody of the minor child of the parties so as to permit its adoption by plaintiff and her prospective husband, and to eliminate the provision for support of said child by the defendant.

Plaintiff was awarded a decree of divorce from the defendant in the Circuit Court of the City of St. Louis on October 21, 1958, and was granted the custody of the minor child of the parties, Carl Theodore Pratt, then one-year old.

Defendant was granted right of visitation with said child at reasonable times.

Judgment was entered for plaintiff against defendant for the support and maintenance of said minor child in the amount of $15.00 per week.

The Transcript of the record reveals that on March 31, 1959, defendant filed a Motion to Modify the Decree and requested the Court to set out specific times and conditions under which his right of visitation might be exercised, claiming that he had been denied right of visitation on various occasions.

On May 1, 1959, a decree was entered by consent so as to permit defendant to visit said child on every other Sunday from 12:00 noon to 2:00 P.M., and after the child became three years of age the defendant was to have temporary custody every other Sunday from 12:00 noon to 2:00 P.M.

On September 11, 1961, plaintiff, by her attorney, filed the Motion to Modify which is the subject of this appeal. In that Motion plaintiff alleged a change in the condition of the parties, and stated:

“ * * * that defendant no longer desires either to enforce or to have any rights with respect to said child; that defendant is not-only willing to permanently waive all of his rights as natural father, with respect'to said child to the plaintiff herein, but he is willing to give his consent as the natural father of said child for adoption purposes; that said consent of said natural father was simultaneously executed herewith, a copy of which is made a part hereof, by reference as though expressly set out herein.
“Plaintiff further states that she is not only willing, but desirous of having full, sole and exclusive care, custody and control of their said child, aforesaid, but is willing to assume and does hereby assume full responsibility for his support, care and maintenance, from this time henceforth, until said child is either emancipated, reaches his majority or is adopted. That it would be for the best interests of said child if said decree of divorce was modified accordingly.
“WHEREFORE, plaintiff prays that the decree heretofore filed in this cause be modified, granting to plaintiff the sole, absolute and exclusive care, custody and control of Carl Theodore Pratt, born August 11th, 1957, in St.
Louis, Missouri, and that the order adjudged and decreed by this Court relative to payments to be made by defendant as and for support and maintenance of said minor child be vacated, suspended or abated and for naught held, henceforth.”

This Motion to Modify was signed by plaintiff and acknowledged under date of September 5, 1961. . .

Filed with, or as a part of, the Motion to Modify was the defendant’s acknowledgment of receipt of a copy of the Motion to Modify, waiver of notice of service of same, or summons, and request and consent that said Motion be sustained and the Decree of Divorce Modified accordingly. In the same instrument defendant acknowledged his' indebtedness to plaintiff in the-sum 0'f $500.00, being arrearages for child payments which he agreed to pay at the rate of $5.00 per week. This instrument was signed and" acknowledged by defendant before a Notary Public on September 5, 1961.

Thereafter, on September 22, 1961, there was filed a carbon copy of an instrument designated as “Consent of Natural Father.” By this instrument defendant .gave his consent to the adoption, transfer of custody, and change of name of said Carl Theodore Pratt. This instrument was also signed by defendant and acknowledged before a Notary Public on September 5, 1961.

The Motion to Modify the divorce decree was heard on September 22, 1961, with plaintiff present in person and by her attorney, and with defendant present but not represented by counsel.

Plaintiff was the only witness produced. She testified that she was awarded the decree of divorce on October 21, 1958, and was granted custody of the minor child, a boy, and fifteen dollars a week -for the support of the child; that the child was in her custody; that defendant had remarried and his present wife was expecting a child. She further testified that she was contemplating marriage and desired to have her marital association with her. former husband, and the matter of the custody of her child taken care of before making a definite decision concerning her remarriage. She also stated that she wanted the Court to grant her the exclusive care, custody and control of the child, and that she had requested her former husband to sign a Consent for Adoption of the child so that the child could become a part of her new family and that she and her former husband could each have a new family. of their own; that her former husband had agreed to such an arrangement and the Motion was now before the Court for the-Court’s approval.

■Upon being questioned by the Court the ■plaintiff stated that the underlying reason for the Motion to Modify was her. impending-marriage. Upon being further questioned' by the Court the testimony of plaintiff revealed the fact that some difficulty lm^ developed" between plaintiff and her former husband over the fact that he had failed to-pay the-child support awarded and she 'told him if he could not pay to stay away from the child; that was partially the. underlying-reason for the Motion. She. stated that siri<:e-defendant could not afford to pay the child support and she had assumed all the responsibilities and paid for the child she wanted the peace of mind that defendant would not interfere in any way, and the child would be adopted by her husband; that defendant had consented and signed' the-papers:

The Court then raised the question of • public policy and stated that it would be contrary to public policy to deprive the child' of his father’s duty to support the child.

Plaintiff had indicated that she intended' to be married October 22, 1961, and furnished the Court Reporter with the name’ of the man she intended to marry. The Motion . was then taken under advisement.

Thereafter, on November 20, 1961, the Motion to Modify was, by the Court, denied and following the filing of a Motion to Set Aside the Order of November 20, 1961, or in the alternative, for a Rehearing or a New Trial which was denied on December 15,' 1961, plaintiff filed Notice of Appeal to this Court.

Qur.records show that defendant was ad-wised by. our Clerk of the pendency and setting of this Appeal in our Court, and ■defendant wrote a letter to our Clerk to the effect he did consent to plaintiff’s wishes in this ■ matter and would not oppose this Appeal. ■ .

In the Brief of counsel for plaintiff two ■points are relied on: (1) that the Court ■erred in denying the Motion to Modify for the reason it is against public policy to try to .take away from a child the right, of his father to support that child and that the 'Court abused its discretion in refusing to approve the arrangement entered into for the child’s adoption and the manner of payment, of the. arrearage of $500.00 for child support, and (2) the judgment denying the Motion is against the evidence in the case.

With reference to the question of public policy we are quite certain that the Court was referring to the duty imposed upon the father to support his child and the right of the child to such support. In giving consideration to this the Court was taking into consideration the rule laid down in almost ■every decided case that the welfare of the ■child is the paramount issue in any such ■case as this. There was no testimony presented in this case concerning the effect of this Motion, or rather, the arrangement provided for by it, upon the child.

It would appear that the parties were attempting to settle their, personal problems and obligations rather than looking to the welfare of the child. In the first place, how could the trial Court determine that the impending marriage of plaintiff to some person unknown to the Court would result in a stable marriage ? How could the trial Court know whether or not another Court would ■grant an adoption of this child if such a petition were filed.

' Our Courts have'held that “the welfare of the child is so important that a change of condition, should not be found and custody awarded on speculation or experimentation.” S-& G-, 298 S.W.2d 67, l. c. 77.

Here the Court was being requested to approve an arrangement which would deprive the child of his father’s duty to support him in exchange for a possible adoption by a possible future husband of plaintiff who was not even before the Court. If the plaintiff was not receiving the support money due from the defendant, she should have made use of the legal remedies of enforcing payment.

Counsel for plaintiff has cited a number of cases under Point I, most all of which are adoption cases and are not applicable to this case. One of the cases cited is Slaughter v. Slaughter, Mo.App., 313 S.W.2d 193, decided by this Court. Plaintiff points out in that case we said that the obligation of the adopting parent is the same as if he were the. natural parent, but we also call attention to the fact that in another Court in a proper proceeding the adoption had been granted. We further point out that in that case we also said, “If this mother, by depriving the father of the right of visitation or of his right to temporary custody, were guilty of contempt of court (which we do not hold), it could subj ect her, but never the child, to penalties; and, it does not relieve the father of the duty to support the child under circumstances as shown in this case.” This same statement is true in the case now before us.

Another case cited by counsel for plaintiff under Point I is Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, which states that the trial Court in a divorce case does not lose jurisdiction by entry of its original final decree, but retains a limited jurisdiction to modify that decree as subsequent changed conditions may require. And if such modification pertains to the custody or future maintenance of a minor, this limited jurisdiction continues until the majority of the minor, or until the death of one of the parents, whichever first occurs. Appellant then argues that it is doubful if a Juvenile Court could take jurisdiction (apparently referring to an adoption proceeding) in the special circumstances of this case without prior approval of this arrangement by the divorce Court. We have read the Hayes case and the cases cited therein, and we do not think Appellant’s reasoning sound, or sustained by the authorities. The Juvenile Division of the Circuit Court has exclusive and independent jurisdiction of all adoption cases. Sections 453.010-453.170 RSMo 1959, V.A.M.S., and that jurisdiction is in no way limited in a case where a minor child has been the subject of an Order with reference to its custody in connection with a divorce case. Prior approval of an adoption by the Court granting the divorce and providing for the custody of the minor child is not required.

Counsel for plaintiff urges in Point II of Appellant’s Brief that since all of the evidence in the case is in favor of plaintiff’s Motion to Modify and there was no conflict or disputed questions in the evidence, the trial Court abused its discretion in not sustaining the Motion.

It is fundamental that the Appellate Court will review the entire record, with primary regard for the best interests and welfare of the child. This we have done. In this case there was no contest between plaintiff and defendant in the trial Court, and there is none here. It therefore, became the duty of the trial judge to determine whether the arrangement agreed upon was for the best interests and welfare of the child, and it is our duty to determine whether or not the trial Court fulfilled that duty properly or abused its discretion.

After having reviewed the matter fully we are of the opinion that the trial Court did fulfill its duty properly and did not abuse its discretion in denying the Motion to Modify.

It is clear from the information elicited from plaintiff that the arrangement agreed upon was to settle differences which had arisen between plaintiff and defendant over defendant’s right of visitation and his failure to pay the child support, and since defendant had already remarried and plaintiff was contemplating remarriage, defendant was to permit the adoption of his child, and in return would be relieved from the payment of the child support awarded plaintiff by the trial Court. The future welfare of the child was wholly conjectural and dependent upon uncertainties. Courts will not permit a child to be bartered away in any such fashion.

The decision of the trial Court was correct and the judgment is affirmed.

WOLFE, Acting P. J., and FRANK W.

HAYES, Special Judge, concur.

ANDERSON and RUDDY, JJ., not participating.


author: DOERNER, Commissioner.

text:
    GEORGE KROPP & ASSOCIATES, INC., Plaintiff-Appellant, v. William SCHNEIDER, Defendant-Respondent.
    No. 31191.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.
    Motion to Quash and Set Aside Opinion and for Rehearing or to Transfer to Supreme Court Denied Jan. 14, 1963.

      Wyne & Delworth, William H. Wyne, Jr., Clayton, for plaintiff-appellant.
    Gragg, Aubuchon & Walsh, and William R. Schneider, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff appeals from a judgment dismissing its cause of action with prejudice.

The suit originated in -the magistrate court of St. Louis County by the filing of a petition in which the plaintiff alleged that it was a Missouri Corporation, engaged in the business of engineering, land development, surveying, platting and other services in connection therewith; that “on or about the month of July, 1959, * * * ” at the request of the defendant and his agents and servants, plaintiff performed services in connection with defendant’s described property ; that “ * * * Such services included, but are not limited to preparation of preliminary plan for subdivision, surveying for final plat, preparing final plat, presentation of plat for approval, preparing sewer plans and Metropolitan St. Louis Sewer District approval for which services defendant and his agents and servants agreed to pay”; that “the reasonable cost of said services amount to Five Hundred Dollars ($500.00)”; and that plaintiff completed said services on or before February 9, 1960, and on said date made a demand for payment, but defendant failed and .refused to pay. The prayer was for judgment for $500, together with interest from February 9, 1960, and costs. Defendant filed an answer in the nature of a general” denial. After a trial to the court,' judgment was rendered in favor of plaintiff for' $300, and defendant thereupon appealed to the Circuit Court.

About two and a half months after the case reached the Circuit Court defendant was granted leave to withdraw its answer and to file a motion for a more definite statement. In his motion, among other specifications, defendant asked that the plaintiff ■ be required to make • its petition more definite and certain " * * * (1) by requiring plaintiff to state whether the contract for services allegedly made between the plaintiff and defendant referred to in paragraph two of plaintiff’s petition was oral or in writing, (2) by requiring plaintiff to state with more definiteness or furnish a bill of particulars in the nature of an account that will specify: (a) The specific services claimed to have been rendered by the plaintiff, (b) The dates the same are claimed to have been performed.” Defendant’s motion was argued and submitted, and was sustained by the- court on August 16, 1961. Plaintiff elected to stand upon its petition, failed to obey the court’s, order, and defendant filed a motion praying that the court dismiss plaintiff’s cause of action, with prejudice, because of such refusal. Defendant’s motion was argued,, submitted, and sustained, and on January 11, 1961, judgment was. entered dismissing, plaintiff’s cause of action with prejudice, at plaintiff’s costs. This appeal followed.

Plaintiff’s line of argument here is. that the court erred and exceeded its jurisdiction in dismissing plaintiff’s cause of action because, first, this being an appeal from a magistrate court the jurisdiction of the Circuit Court was not original but derivative; second, the sufficiency of plaintiff’s petition was determinable, by- the rules. applicable to pleadings.in magistrate courts; and third, its petition was sufficient when measured by such rules. We agree with the first proposition, Joyce v. Central Surety & Insurance Corp., Mo.App., 321 S.W.2d 272; Newman et al. v. Weinstein et al., 230 Mo.App. 794, 75 S.W.2d 871; as well as with the second, Wood v. John Hancock Mutual Life Insurance Co., Mo.App., 241 S.W.2d 802; Butler v. Missouri Insurance Co., Mo.App., 187 S.W.2d 56. But we do not agree with the third. ■ ' -

Pleadings in the magistrate courts are governed by Section ■ 5-17.050 RSMo 1959, V.A.M.S., which contains the familiar rule that “ * * * No -formal pleading upon the párt of either plaintiff or defendant shall be required -; *- * However, the same statute provides- that before any process shall issue the plaintiff shall file “ * * * a statement- * * % of facts constituting the claim upon which the suit is founded -* * - and-it-is further required that “If the suit is founded on an account, a bill of items of the account shall be filed; in all other cases, a statement of facts constituting the claim * * shall be filed * * Thus while'a plaintiff need not file a formal petition; or comply with the technical rules of pleading, it is apparent from these provisions that he is required to file a sufficient statement of facts. The statement must be “ * * * precise enough to apprise defendant of the cause of action and bar another action,” Schroer v. Brooks, 204 Mo.App. 567, 568, 224 S.W. 53, 56, and sufficiently definite to “ * * * advise the opposite side what is claimed.” Usona Mfg. Co. v. Shubert-Christy Corp., Mo.App., 132 S.W.2d 1101, 1103. It is significant that with the creation of magistrate courts the section was amended to provide that “ * * * none of such suits, where the amount involved is one hundred dollars or less, shall be dismissed or discontinued for want of any such statement or cause of action, or for any defect or insufficiency thereof, if the plaintiff shall file the instrument or account, or ,a sufficient statement, before the trial is commenced, or when required by the magistrate.” Laws 1945, p. 774, Section 19.

In the instant case, while plaintiff enumerated some of the services which it claimed it had rendered it is apparent from its'petition that it did not ñamé all, for it alleged that “Such services included, but are not limited to * * * ” those specified. Thus even when measured by Section 517.050 the petition was not a complete “ * * ■ * statement * * * of facts constituting the claim * * Defendant was entitled to know all of the services which plaintiff claimed it had rendered, and the proper method to obtain such information was by a motion for a more definite statement. Midwest Insurance Corporation v. Schroeder, Mo.App., 185 S.W.2d 660; Walters v. Niederstadt, Mo.App., 194 S.W. 514; Barton Lumber Co. v. Gibson, 178 Mo.App. 699, 161 S.W. 357. The court did not err nor did it exceed its jurisdiction in sustaining defendant’s motion for a more definite statement. It would have been a relatively easy matter for the plaintiff to have supplied the information sought, either by amending its petition or by filing a bill of particulars. When plaintiff, for reasons best known to it,, elected to refuse to obey the court’s order, the court was authorized to dismiss plaintiff’s cause of action, with prejudice. Civil Rule 55.34 V.A.M.R. See Burke v. City of St. Louis, Mo., 349 S.W.2d 930.

For the reasons stated the Commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, judgment is affirmed.

WOLFE, Acting P. J., and JACK P. PRITCHARD- and J. MORGAN DONEL-SON, Special Judges, concur.