author: MAUGHMER, Commissioner.

text:
    ALL PRODUCTS COMPANY, Inc., Plaintiff-Respondent, v. Richard CARNEY, d/b/a Peerless Products Company, Defendant-Appellant.
    No. 24096.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application for Transfer Denied July 12, 1965.

      Roy F. Carter, Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for appellant.
    Frank P. Barker, Jr., Don M. Jackson, Kansas City, Jackson, Wade & Barker, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, All Products Company, Inc., sued the defendant Richard Carney, d/b/a Peerless Products Company on an open account. Plaintiff had the verdict and judgment for $10,406.91 ($7,932.10 amount of the account and $2,474.81 interest from September 28, 1958 — date of demand for payment). Defendant has appealed.

The occurrences leading to the present controversy started in 1958. At that time plaintiff corporation, located in Mineral Wells, Texas, was a manufacturing company producing steel and aluminum products, including farm gates and fencing. Defendant, operating as Peerless Products Company, 4319 Independence Avenue, Kansas City, Missouri, was in the “aluminum window and door business”.

Shortly before March 28, 1958, plaintiff’s salesman, Harold McClaine, (who testified by deposition since he was no longer an employee and resided in a different state) called upon defendant Carney at his place of business in Kansas City. All parties agree that McClaine first tried to promote a distributorship. This was not accomplished, but on March 28, 1958, McClaine wrote up and defendant Carney signed six purchase orders or invoices for plaintiff’s products, primarily fence, f. o. b. Mineral Wells, Texas. The total selling price or cost price as noted on these invoices was $7,932.10. The invoices were written on plaintiff’s forms and on at least some of them the price was stated to be 50 percent of the suggested retail price, with further discounts of 10 percent and 5 percent (presumably for prompt payment). In due time the merchandise described in the orders or invoices was shipped f. o. b. Mineral Wells, to defendant in Kansas City. Defendant received the shipment, paid the freighting costs and embarked upon an advertising and sales campaign. The material was exhibited at the Homes Show in Kansas City and for a few weeks at a Sears store. Defendant’s organization was not very successful in marketing the merchandise although two sales were made and apparently completed.

At or near the middle of May, 1958, defendant Carney telephoned plaintiff’s sales manager Charles Turner and explored the possibility of returning the merchandise. Carney said he was about to be hospitalized and this was one of the reasons he sug= gested to Turner for returning the fence. Under date of May 20, 1958, defendant wrote a letter to Mr. Turner which was received in evidence and therein he stated in part: “We ask that you discuss our problem with Mr. Kessler” (president of plaintiff company) “and advise us as soon as possible regarding Mr. Kessler’s decision. It is our desire if at all possible, to return to stock to your company. We might add that we were advised by Mr. McClaine when he was working up what we requested our minimum stocking inventory that should we at any time he overstocked on any panel such as color, size, etc. that this inventory could be transferred to one of your other outlets”.

Under date of July 7, 1958, Mr. Turner replied by letter and stated: “On returning here this information was given to management and they have rendered a decision to accept return of the material with a 25% restocking charge f. o. b. Mineral Wells, Texas.”

Defendant did not accept this offer but shortly thereafter did ship the material by motor freight to plaintiff at Mineral Wells. Plaintiff refused to accept the shipment and defendant finally directed the freighter to return the cargo to him in Kansas City. This was done. The freight charges were in excess of $1,000. Defendant paid the freight both ways and then stored the stock in Kansas City warehouses, where it now rests. Plaintiff demanded payment on September 30, 1958. There was no response.

Carl Kessler, president of All Products Company, testified that the materials described in the invoices were shipped to and received by defendant, that the prices listed on the invoices were only 50 percent of the suggested retail prices, and that the prices to defendant were fair and reasonable.

Mr. McClaine, the salesman who wrote up and received the order, did not remember all the details but testified definitely that he made no agreement or promise to defendant Carney or anyone else that plaintiff would take back the merchandise. For defendant, Harold Haub, an employee, testified, but he was not present when the order was written up and signed. Richard J. Lynch testified as to reasonable warehouse storage charges. Mr. Carney himself was defendant’s only other witness. He admitted signing the order, receiving the shipment and paying the freight charges. He conceded that they advertised and tried to make sales, that he called plaintiff’s sales manager about taking the material back and mentioned his health as one of the reasons. He admitted writing the letter containing the phrase “It is our desire, if at all possible, to return stock to your company”. Mr. Carney, however, insisted that McClaine said plaintiff would “take it off our hands if we did not sell it”, “would transfer it to other places or take it back to the home office”. He said he was not an agent selling for plaintiff but could sell the fence for whatever price he saw fit. He did not testify that the price charged was not fair and reasonable but said rather that he owed plaintiff nothing because they had agreed to “take it back”. Defendant offered no testimony that the prices charged were unreasonable. Mr. Kessler was not even cross-examined relative to his statement that the prices were fair and reasonable.

There was some controversy during the trial and even in the argument before this court as to whether plaintiff’s suit was founded upon a contract or on an open account. Plaintiff’s petition sets forth the sales as shown by the invoices, alleges the prices “were and now are reasonable and proper”, that defendant promised to pay and demand was made on September 30, 1958, but that defendant has “refused and failed to pay”. The answer denied by paragraphical reference the allegations of plaintiff’s petition and then set up a counterclaim. The special defense declared that plaintiff agreed that defendant “should have the option to return same * * * for full credit”, said defendant incurred freight costs, warehouse and storage charges in the sum total of $2,225.76, and prayed for a finding that plaintiff take nothing and defendant have judgment on his counterclaim. The petition is clearly a suit on an open account. Plaintiff’s counsel so stated in the oral argument here.

Although defendant’s answer denies the allegations of plaintiff’s petition, including the assertion that the charges “were reasonable and proper”, the case was not tried on that issue. Defendant’s contention that plaintiff “agreed to accept said merchandise back for full credit if the same was not salable” was the sole issue actually contested during the trial. There was substantial evidence or testimony both ways on this point. The jury passed upon that question and by its verdict for plaintiff and against defendant’s counterclaim, indicated that it was accepting plaintiff’s version.

On appeal two assignments of error are made: (1) the giving of Instruction No. 1 and (2) the giving of Instruction No. 9. Instruction No. 9 is on the burden of proof relative to defendant’s counterclaim. Appellant’s main objection is to the last sentence which tells the jury it cannot find for defendant on the counterclaim “unless the agreement between the parties was for something other than an outright sale”. We do not believe the complained about statement in this particular case is improper or that the giving of the instruction constitutes reversible error.

We set forth Instruction No. 1 in full:

“INSTRUCTION NO. 1
“The Court instructs the jury that if you find and believe from the evidence that defendant purchased from plaintiff All Products Company the steel fencing mentioned in evidence according to the purchase order and invoices mentioned in evidence at the price and sum of $7,932.10, and if you further find from the evidence that plaintiff delivered said fencing to defendant in accordance with said purchase orders and invoices, and if you further find and believe from the evidence that defendant accepted delivery of said fencing, F.O.B. Mineral Wells, Texas, and refused to pay plaintiff in accordance with said purchase order and invoices, then your verdict shall be against the defendant and for the plaintiff on plaintiff’s petition.
“You are further instructed that if you find for the plaintiff on his petition you may award plaintiff damages in the sum of $7,932.10 plus interest at the rate of 6% per annum since September 30, 1958.”

Defendant says that if the suit is upon an open account, the instruction is incomplete and erroneous because it does not require the jury to find the sum of $7,932.10 “to be a fair and reasonable value or price of the fencing.” Nor is the jury told if it finds for plaintiff to allow the “fair and reasonable value” of the merchandise. As a general proposition the criticism is well taken. In a suit on an open account it is incumbent on plaintiff to allege, prove and receive a fact finding, that the charges made and recovery received are “fair and reasonable”. 1 C.J.S. Account, Action on, § 15, page 603. Plaintiff so alleged and produced evidence in conformity but its Instruction No. 1 does not squarely require such a jury finding. The instruction should have done so. We do not approve the instruction as drawn, without such requirement, as a good and proper instruction for -use in an open account suit. However, we have concluded to affirm the judgment, in spite of the instruction, for the reasons presented immediately hereafter.

We have already stated and shown by a review of the evidence that only one issue was contested during the trial — namely did plaintiff agree to accept a return of the merchandise? Plaintiff alleged the prices charged were “reasonable and proper”. The president of plaintiff company testified that these prices were “fair and reasonable”. Defendant offered no evidence to the contrary and did not even question by cross-examination plaintiff’s assertion in this respect. Defendant, during the trial conceded, insofar as concession can arise through nolo contendere, this particular element of plaintiff’s case. Since defendant did not dispute, debate or refute this particular point, can it reasonably be said he was prejudiced on a point materially affecting the merits of the case, by the jury’s action in accepting the adversary version or even by the failure to require the jury to determine this particular issue specially?

It has long been the considered belief of the bench and bar that too many Missouri judgments have been reversed, or remanded, or both, because of technical defects in instructions. Our new simplified instructions effective January 1, 1965, were created, approved and adopted in the hope of improving this unhappy situation.

Section 512.160(2), V.A.M.S. provides:

“2. No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action.”

In Banks v. Koogler, Mo., 291 S.W.2d 883, 891, a part of plaintiff’s claim was for damages to his truck. The instruction did not require the jury to find that plaintiff was owner of the truck. We quote from the opinion:

“Defendant’s next contention is that all of plaintiff’s instructions were erroneous because they improperly assumed that plaintiff was the owner of the truck he was operating. Plaintiff testified that he had purchased the truck new and that he was the sole owner. There was no evidence to the contrary. The case was tried and submitted to the jury by both parties on the theory that plaintiff was the owner of the truck. Instructions should not assume controverted facts, George v. Allen, 362 Mo. 971, 245 S.W.2d 848, but there was no controversy in this case concerning the ownership of the truck, and it is not reversible error to assume in an instruction that which is conceded, undisputed or uncontradicted by the evidence. Morris v. Equitable Assur. Soc. of United States, 340 Mo. 709, 102 S.W.2d 569; Hill v. St. Louis Public Service Co., Mo.Sup., 64 S.W.2d 633.”

We set forth the following from George v. Kansas City American Ass’n Baseball Co., Mo.App., 219 S.W. 134, 136:

“It is urged that plaintiff’s instruction No. 2 is erroneous. This instruction is as follows:
‘The court instructs the jury that the burden of proof is upon the defendant to prove that the contract introduced in evidence was canceled by the plaintiff.’
“The objection to this instruction is that it does not say that the burden was upon defendant to prove ‘by the preponderance of the evidence,’ etc. The instruction by using the words quoted, which defendant insists should have been used, would have, perhaps, been made clearer, but no case is cited by the defendant to sustain its claim that it was reversible error to exclude these words, and we are not prepared to say that it was such error.”

The syllabus (12) in Fantin v. L. W. Hays, Inc., Mo., 242 S.W.2d 509, states:

“In motor vehicle collision case where plaintiff sought to recover under humanitarian doctrine, and court through inadvertence failed to submit instructions offered by both parties defining terms ‘negligence’ and ‘highest degree of care’, and terms were used in both parties’ hypothesized instructions, the omission was not so erroneous as to compel granting of new trial in absence of showing of prejudice. RSMo 1949, § 512.160, subd. 2.”

Judge Conkling, for the Supreme Court in Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 145, described the rule generally:

“In any event we are prohibited by statute to reverse the judgment unless we believe that the above noted omission of instruction 1 was error, ‘materially affecting the merits of the action.’ Mo.R.S.A., Sec. 847.123, and Sec. 847.-140(b). We do not believe that omission did affect the merits of this case. Where, as here, there was no issue in the evidence respecting it, where the case was tried upon that theory and where defendant’s brief so unequivocally and so many times concedes that fact, that such finding was omitted from the instruction could not possibly materially affect the merits of this case: The contention must be denied. Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456. Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10.”

It is our opinion that the defect in Instruction No. 1, that is failure to require a finding that the charges or allowances made by the jury, were “fair and reasonable”, did not concern a contested or disputed issue. We do not believe that such defect resulted in prejudice to defendant on a point materially affecting the merits of his defense. There has been no showing of any such prejudice. That the trial court reached the same conclusion, seems to be indicated by its action in overruling the motion for new trial. Section 512.160(2) supra, forbids reversal of any judgment unless the appellate court believes that error was committed by the trial court against the appellant and materially affecting the merits of the action.

We find no reversible error. The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    D. J. MAHN and Gerald J. Mahn, d/b/a Mahn Funeral Home, Plaintiffs-Respondents, v. AMERICAN LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellant.
    No. 31901.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 14, 1965.
    Application to Transfer Denied June 14, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendant-appellant.
    Earl R. Blackwell, Hillsboro, for plaintiff s-respondents.
   BRADY, Commissioner.

This is an action on a life insurance policy whereby the defendant insured the life of Annie Fowler in the sum of $500.00. The named beneficiary was her husband who assigned all of his interest in the policy to the plaintiffs. Jury trial resulted in a verdict for the plaintiffs and the defendant has perfected this appeal.

The petition alleged that in consideration of the payment of the premium the defendant had executed, issued and delivered a policy of insurance on the life of the deceased; that the assured’s death took place while the policy was in force and effect; and that the defendant was indebted to the plaintiffs in the amount of the policy but refused to pay the same. In its answer the defendant pleaded “ * * * that said applicated (sic), dated June 11, 1962, states that Annie Fowler was in good health on that date and that Annie Fowler had had no illness, injury or accident within the past five years; that said Annie Fowler had never had any heart disease or any other illness or disorders of the nervous system, all of which statements the said Annie Fowler knew were untrue and that Annie Fowler knew that she had been in a hospital within the last five years suffering from an acute heart attack, that she was not in good health at the time the policy was delivered * * Mrs. Fowler died in December of 1962. The policy was dated June 18, 1962.

The deceased could neither read nor write. The questions from the application which are pertinent to this appeal were read to her by the defendant’s agent, and he wrote her answers down on the application. The pertinent questions and answers are as follows: “ * * * ‘Are you in good health?’, and her answer was yes. * * * ‘What illness or accident have you had in the last five years ?’ the answer was ‘None’. * * * ‘Have you ever had heart disease, * * * or any illness or disorder of the brain, lungs, spine, or nervous system?’ answer is ‘No’.” The policy provided that: “12. POLICY EFFECTIVE. This policy shall take effect when the first premium is paid to the Company at its Home Office in St. Louis, Missouri, and when the application is thereafter considered and approved as of the date and time evidenced by the Company’s official receipt for the first premium; provided the Insured shall at that time be alive and in the same condition of insurability as warranted in his application to the Company.” (Emphasis supplied.) Shortly over six months after the issuance of the policy, Annie Fowler died, and this action arises from efforts to recover on the policy.

Certain hospital records were introduced by agreement of the parties and from them it appears that the deceased had been hospitalized from April 24 to May 6, 1959, and from June 18 to July 4 of that same year. It also appears from those records that the diagnosis on each occasion was coronary insufficiency. On the occasion of her first admission the hospital record stated: * * She is taking heart medicine which is reported to be nitroglycerin suppressing ar-teriosclerotic heart disease. * * * ” On the second occasion the hospital record contained the following statements: “ * * * The patient has a history of high blood pressure for a long time and coronary attack several times. Examination of patient reveals a large heart which is regular and pulse is weak and irregular BP** *.”

A Dr. Brennan examined the deceased in September of 1962. He stated that “ * * she had had sometime before a coronary occlusion.” He found her to have cerebral arteriosclerosis. Dr. Brennan stated that lobar pneumonia was the direct cause of death, but he also testified that the condition of arteriosclerosis which he found would contribute to cause her death and explained his statement in the following manner. The development of arteriosclerosis caused a psychotic reaction creating a catatonic state in which the deceased did not eat. As a result of her not eating her resistance was lower, and this caused her to be more susceptible to the lobar pneumonia which caused her death. The doctor also testified that he signed the death certificate noting in Part I thereof the immediate cause of death as lobar pneumonia. Part II of that certificate provided a space for him to note “other significant conditions contributing to death but not relating to the terminal disease condition in Part I.” There the doctor wrote the word “arteriosclerosis.”

The trial court gave Instruction No. 1 at plaintiffs’ request. That instruction requires the jury to find that the defendant issued and delivered the policy in question for a specified premium naming the plaintiffs’assignor as beneficiary; “ * * * and while said policy was in effect, * * * ” the assured came to her demise; that the defendant was duly notified of her death; and that the plaintiffs were assignees of the beneficiary of the policy. Upon these findings the jury was authorized to return the verdict in favor of the plaintiffs and against the defendant.

During closing argument plaintiffs’ counsel stated: “ * * * They get those old people down there on a pension * * *.” The defendant objected that this was outside the evidence. On another occasion the following occurred: “Mr. Blackwell: I said this jury has a right to infer they never do want to pay on any policy. * * * Mr. Roberts: Your Honor, that’s highly prejudicial.” In reply the court instructed this jury: “ * * * ladies and gentlemen you have to be guided by the evidence as you heard it from the stand and the instructions the Court’s given to you.” On another occasion the plaintiffs’ counsel argued that based on the premiums of $40.43 a year that if the assured lived twenty years the company would have collected $800.00 plus interest and that when the assured died, the company might contest the payment under the policy, but if they don’t, they are only paying out $500.00. Defendant objected and asked that the jury be instructed to disregard such argument. Plaintiffs’ counsel also made the following statements during closing argument: “Then she ups and dies well, it turned out it wasn’t such a good deal, I guess, and now they start looking around for reasons why they shouldn’s (sic) have to pay it. * * * And this poor old gal couldn’t even read or write and I’ll venture to say that she was like all the rest of them who were run through that machine down there, probably wasn’t even asked these questions.” On each occasion the defendant objected stating that there was no evidence to warrant such accusations of bad faith on its part.

We must first ascertain the effect and reading to be given paragraph 12 of the policy. “Good health” provisos in life insurance policies are valid and are generally considered conditions precedent to the policy’s becoming effective. 29 Am.Jur., Insurance, Sec. 223, n. 17; 44 C.J.S. Insurance § 271. In the instant case paragraph 12 is somewhat broader than the usual such proviso. It is not limited to the assured’s condition upon delivery of the policy and uses the word “insurability.” In the latter respect paragraph 12 is similar to the proviso found in the policy involved in Minzenberg v. Metropolitan Life Ins. Co., 157 Pa.Super. 557, 43 A.2d 377. In the instant case, by conditioning the effectiveness of the policy upon the assured’s being “ * * * in the same condition of insurability as warranted in his [her] application * * * ” the policy has incorporated the application. The result is that we are here concerned not only with an alleged violation of the “good health” proviso as raised by the question, “Are you in good health?” and the answer “yes” as found in the application. Here all three questions asked the assured as set out earlier herein become pertinent. However, this does not change the essential character of paragraph 12 of the policy. It is still a “good health” or “sound health” proviso albeit an expanded one. That being so, the burden rested upon the defendant to prove its affirmatively pleaded defense under this provision of the policy. Snead v. Union Life Ins. Co., Mo.App., 340 S.W.2d 184, l.c. 187.

The defendant first contends that since compliance with paragraph 12 was a condition precedent to the creation of the contract, any misstatement of the true facts in the application with respect to the deceased’s “insurability” will render the contract void. The plaintiffs contend that the defendant must not only prove the falsity of the statements made in the application but must go further and prove that the insured’s uninsurability was caused by a condition which existed at the time the application was made and was present at the time the policy by its terms became effective as a valid contract and that it caused her death since the so-called “misrepresentation statute” applies, not only to misrepresentations in the application, but also warranties contained in the policy.

It has been said that the almost universal rule in all jurisdictions except Missouri is that the misrepresentations statutes of the various states are not applicable to conditions in the policy itself. See Chorney v. Metropolitan Life Ins. Co., 54 R.I. 261, 172 A. 392, involving a “misrepresentation” statute almost identical to § 377.340, RS Mo 1959, V.A.M.S., and see the Missouri cases collected in 100 A.L.R., beginning at page 367. It follows from a careful reading of those cases that regardless of the rule in other jurisdictions, in Missouri “good health” conditions are subject to our “misrepresentation” statute, § 377.340, supra. We therefore must rule this point in favor of plaintiffs.

On its face the policy states that it is issued in accordance with the provisions of § 377.200 through § 377.460, RSMo, 1949, V.A.M.S. § 377.340, supra, is Missouri’s “misrepresentation” statute. In essence and read in the light of the facts of the instant case the effect of that section is that the defendant has the burden not only of showing the falsity of the answers given on the application but also of showing that those diseases from which the assured suffered at that time which she concealed from the company by any one or more false answers given on the application were present at the time the policy would by its terms become effective and actually caused or contributed to cause the assured’s death.

The defendant’s second contention is that its proof was that the assured had cerebral arteriosclerosis at the time she signed the application and also that this condition caused or contributed to cause the assured’s death and that it was therefore entitled to a directed verdict. § 377.-340, supra, provides that the question of whether the misstated matter actually caused or contributed to cause the assured’s death shall be for the jury. Of course, the power remains with the court to determine whether there is evidence which authorizes submission of that issue to the jury. Snead v. Union Life Ins. Co., supra, and cases cited 340 S.W.2d at [4, 5], p. 189.

We must rule against the defendant upon both points raised for the reason that under the evidence the question of whether the assured had cerebral arteriosclerosis at the time she signed the application or at the time the policy would by its terms become effective was for the jury. Dr. Brennan was asked if, from the nature of the cerebral arteriosclerosis he found assured to have upon admission to the hospital in September, he could tell how long she had had it and his answer was, “We could only summarize that from the history given us.” He had earlier testified that the assured could not give a history due to her psychotic reaction. He did state that arteriosclerosis was a disease which would not have come on suddenly being a slow progressive thing that is present for some time. There is no evidence how long “some time” is or how slowly this disease develops either generally or specifically as to the assured. It will be borne in mind that we are to read the evidence in this cause in the light required of us by the fact the jury found in plaintiff’s favor. When we do so, it is obvious that this is not evidence sufficient to authorize a directed verdict. We cannot presume the jury was composed of experts or even of those with experience in such matters. We must presume the jury was composed of men and women without any special training or experience but of average intelligence. We cannot say that upon hearing this evidence, the only reasonable conclusion that could be reached by a jury is that the assured did have cerebral arteriosclerosis at the time the policy would under its terms become effective or when she signed the application whether said statements in the application be regarded as warranties or mere misrepresentations.

Furthermore, it does not clearly appear that arteriosclerosis was a contributing cause of insured’s death. Dr. Brennan, testified that with lowered resistance a person is more prone to contact lobar pneumonia; that in insured’s case her resistance was lowered by arteriosclerosis, but also stated that “anybody can get it,” which of course is common knowledge, since lobar pneumonia is an infection of the lungs which may attack a person in sound health where resistance has not been lowered by other ailments. Whether arteriosclerosis was a contributing factor to insured’s death in the case at bar, was in our judgment, a jury question.

The defendant’s third allegation of prejudicial error concerns the giving of Instruction No. 1. The defendant first contends it was error to give the instruction because, as stated in its brief, “It ignored the entire issue of whether or not the policy ever became effective under its terms * We eannot agree. The instruction required the jury to find that the policy was in effect. After hypothesizing the issuance of the policy naming the plaintiffs assignor as beneficiary, the instruction reads “ * * * and if you further find that thereafter, and while said policy was in effect, the said Annie Fowler came to her demise * * The defendant contends this is not sufficient and that the instruction must contain a specific negation of defendant’s theory as was done in Winger v. General American Life Ins. Co., Mo., 345 S.W.2d 170, l.c. 182. The hypothesization set out above clearly required the jury to find the policy was in effect and so recognized the defendant’s theory, assuming arguendo, that such is necessary in plaintiffs’ verdict-directing instruction. The instruction did require the jury to find the policy was effective when the event its maturity was conditioned upon, i. e., Annie Fowler’s death, occurred.

It is too well settled to require citation that the latitude to be allowed counsel upon closing argument is largely a matter for exercise of the trial court’s sound discretion. In the absence of a clear abuse of that discretion we should not interfere. It is impossible to completely understand all of the comments made by plaintiffs’ counsel to which defendant objects without considering them in context which would unduly extend this opinion. Some of the comments were not subject -to the objection leveled against them. As for example, the comment to the effect that the assured was living on a pension. That was the evidence. Other alleged objectionable comments made by defendant’s counsel were cured by the action of the trial court, at least to the extent that our intervention is not required. For example, the trial court’s admonition to the jury that they are to be guided by the evidence as they heard it and the instructions of the court. The other matters, when read in context in the transcript, are not such that we can say that the trial court s action in refusing the defendant a mistrial was an abuse of its discretion.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

WOLFE, P. J., ANDERSON, J., and WOODSON OLDHAM, Special Judge, concur.

RUDDY, J., not participating.


author: J. P. MORGAN, Special Commissioner.

text:
    Joseph J. SMITH, Plaintiff-Respondent, v. Hobart NICKELS, Defendant-Appellant, and Joseph Johnson, Defendant.
    No. 31558.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 14, 1965.
    Application to Transfer Denied June 14, 1965.

      Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. X. Cleary, F. Douglas O’Leary, St. Louis, for defendant-appellant.
    James F. Koester, St. Louis, for plaintiff-respondent.
   J. P. MORGAN, Special Commissioner.

Plaintiff brought this action against defendants to recover damages resulting from a collision involving three automobiles driven by each of them. Defendant Johnson was in default and did not appear at the trial, and the jury verdict was against him in the amount of $10,000 but in favor of defendant Nickels. This appeal was taken from the trial court’s action in granting plaintiff a new trial based solely on alleged errors during voir dire.

The partial transcript submitted does not include any portion of the evidence and it is agreed that the merits of the appeal must be resolved from the following dialogue. With Mr. Cleary speaking for defendant Nickels and Mr. Koester for plaintiff, the questions and objections were:

“Mr. Cleary: (continuing) Now may I ask — thank you, sir — may I ask all of you members of the panel if you were selected to — as a group, one of the 12 to try this case, would any of you have any hesitancy in holding my client blameless, finding in his favor, if you felt that he was not responsible for this accident?
“Mr. Koester: Your Honor, I’m going to object to that question in that it is an attempt to commit the jury to a type of a verdict without first giying them an opportunity to hear the evidence. I think that it’s asking them to make an opinion — give an opinion committing themselves at this time without hearing the evidence.
“The Court: Overruled.
“Mr. Cleary: (continuing) Would any of you hesitate to find in favor of my client if you felt that my client wasn’t to blame for this accident?
“(Thereupon the following took place at the bench without the hearing of the jury panel:)
“Mr. Koester: At this time I will renew my objection to the additionally given interrogation by Mr. Cleary and ask the Court to sustain my objection, and I’ll ask the Court to instruct the jury to disregard that question because it is an attempt to get a commitment from the jury prior to the time that they have an opportunity to hear the evidence.
“The Court: Overruled.”

Appellant’s contentions the inquiry was justified may be generally summarized: (1) “It is a matter of common knowledge (or, at least some of us believe) that a certain number of persons selected for jury duty are of the erroneous opinion that a person who is injured may recover in a case irrespective of the fault of defendant”, (2) With the amount sued for having been mentioned, and in view of the non-appearance of the co-defendant, it became necessary to ascertain the juror’s “feeling toward a case of this kind,” and “to determine whether any juror had a misunderstanding or mistaken belief concerning the liability of the defendant who did appear,” and (3) The questions did not attempt to commit the jury or obtain an assurance they would find in his favor. The debatable opinion expressed in the first point is immaterial and the merit of point two should be conceded; thus, leaving the sole question in point three as to the propriety of the questions as asked.

Certainly the trial of conflicting causes before a fair and impartial jury is essential to justice. As stated in Kendall v. Prudential Life Ins. Co. of America, Mo., 327 S.W.2d 174, 177, “ ‘ * * * The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury * * ” Research has failed to suggest any distinction between civil and criminal cases. Securing such a jury, however, is not a matter of absolutes and the right to a fair trial is deemed satisfied where the jury panel has been properly tested on voir dire and is otherwise legally constituted. Fundamentally, of course, whether a juror is fair and impartial lies peculiarly in the mind and heart of the individual juror. Whatever lurking prejudice he might have in a particular instance may well be exposed only through psychological analysis. Suffice it to say that such a personalized approach is not within the province of the courts and the practical administration of justice.

Such limitations do, however, suggest that voir dire examination not be unduly restricted. National Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21; State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65. However, as with any right it must be curtailed at that point wherein it denies an opponent the same right. In fact, it should be liberally permitted where calculated to expose prejudice; conversely, where it is calculated to create prejudice, it should be denied. In this context, difficulty is frequently experienced in the case of questions having a dual and ambivalent character in that they may, arguably, tend to expose or to create prejudice depending on the subjective viewpoint. An established limitation prevents those questions tending to commit the prospective juror to a course of action, or asking that he speculate what his reaction might be in such manner that he might not feel free to react otherwise. 31 Am.Jur., Jury, Sec. 141.

A late and rather obvious infringement of the rule is found in State v. Katz Drug Company, Mo., 352 S.W.2d 678. The prosecutor outlined facts to be proven and concluded with “ * * if the Court instructs you that that is a violation of the law, will you convict?’ ” The Court said, “This was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel. As we said in State v. Heickert, Mo.Sup., 217 S.W.2d 561, 562: ‘(C)ounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial. State v. Pinkston, supra (336 Mo. 614, 79 S.W.2d 1046); State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949. The qualified and selected and instructed juror, having been attentive to the argument of counsel and to the reasoning of his fellows, should be free to reach a conclusion satisfactory to him upon the evidence introduced.’ ”

In State v. Pinkston, supra, the prosecutor asked: “ * * if you believe and found from the evidence beyond a reasonable doubt that the defendant was guilty, if you believe from that evidence that the death penalty was proper penalty to follow a finding of guilty, would you vote for it?”’ The question was ruled improper as an attempt to commit the panel. The proper question to reveal the same “frame of mind” without a tinge of commitment would be that approved in State v. Swinburne, Mo., En Banc, 324 S.W.2d 746, 751: “* * * ‘Do you have any moral, conscious (conscientious) or religious scruple which would make it impossible for you to bring in a verdict of death if you were convinced, beyond a reasonable doubt, that such a verdict is fair and just?’ * * *” The comparison emphasizing that even though the information sought may be proper the means of asking may make it improper.

Similar problems have arisen in those cases where it was thought that the damages suffered might justify an award larger than some possible preconceived limit of the prospective juror. In Shepard v. Harris, Mo., 329 S.W.2d 1, counsel advised that the action was based on wrongful death and was for $25,000. The Court approved asking if they had any conscientious scruples against awarding such an amount. In the absence of objection no specific ruling was made, but in Pence v. Kansas City Laundry Service Company, 332 Mo. 930, 59 S.W.2d 633, 639, asking if they had in mind any fixed amount beyond that which they would not render a verdict drew the comment the examination was “ * * * in a manner not to be approved * * A question somewhat similar to the instant case arose in Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 21. After suggesting proof of damages in the amount of $300,000, the inquiry was “ ‘ * * * if under the court’s instructions concerning the law it is shown that we are entitled to recover, would you have any hesitancy in bringing back a verdict that large? * * The Court assumed the question to be improper, but affirmed the trial court’s ruling it was not prejudicial because they obviously did not feel committed in that the verdict was for $200,000 plus the fact an instruction was given specifically advising the jury they were not committed to any particular amount mentioned in voir dire. See also Goldstein v. Fendelman, Mo., 336 S.W.2d 661, wherein related questions such as, “ * * * ‘Would you feel that we can’t compensate this lady fully because if we do we will come out with a great big verdict ?’***” or “ * * * ‘Would you refuse to give her the full amount that she was entitled to because it would mean returning a verdict in a big sum of money?’ * * * ” were found “ * * * improper on voir dire because they were argumentative, implying an obligation to return a large verdict for plaintiff before any evidence had been heard. * * * ”

Appellant calls attention to Thornton v. Stewart, Mo.App., 240 S.W. 502. The case is not helpful in that the rather “speculative” question was once asked without objection and the court allowed it to be repeated because one of the jurors had previously manifested a prejudice against the type of ease to be tried (humanitarian). Although not cited, attention should be called to the case of Albert v. St. Louis Electric Terminal Ry. Co., 192 Mo.App. 665; 179 S.W. 955, following what has been considered as an exception to the application of the rule herein considered, 31 Am.Jur., Jury, Sec. 141, allowing inquiry which side the juror might be inclined to favor if the evidence were equally balanced. A decision in the instant case requires no comment as to the merits of the exception.

This opinion need not be extended with further precedents, but a very comprehensive article and collection of cases on this and other related problems arising during voir dire may be found in “Voir Dire— Examination of Jurors” in Volume 29(3), Missouri Law Review.

From the reported cases, it can be concluded, subject to some exceptions not herein pertinent, that counsel is given great latitude in seeking out any bias or prejudice. No difficulty is created by interrogation seeking to reveal a “present state of mind,” or, dependent on the skill of the interrogator, establishing some basis for anticipating the reaction of the prospective juror to the immediate issues involved. However, when the inquiry includes questions phrased or framed in such manner that they require the one answering to speculate on his own reaction to such an extent that he tends to feel obligated to react in that manner, prejudice can be created. The limitation is not as to the information sought but in the manner of asking.

With various types of cases, individuality of counsel and a cross-section of society appearing as veniremen, an area is involved that cannot, nor should it, be standardized. Necessity requires broad discretion in the trial court and should not be interfered with unless clearly abused. State v. Hoffman, 344 Mo. 94, 125 S.W.2d 55; Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802.

Prior to considering the immediate question, it is to be noted the record does not reveal the presence of any particular conditions such as: a cautionary instruction or failure of the jury to follow the verdict suggested, Moore v. Ready Mixed Concrete Company, supra; absence of objections, Pence v. Kansas City Laundry Service Company, supra; or, previous manifestation of prejudice, Thornton v. Stewart, supra. By argument it is suggested the questions as asked may be distinguished from that in the Katz Case because specific facts were not set out. This is true, but the impropriety of seeking a commitment may also be premised on a summarized conclusion as to what the evidence will be. State v. Pinkston, supra.

Do the questions at issue exceed the limits of proper voir dire? They first ask the veniremen to assume defendant Nickels has shown an absence of negligence on his part, and then respond to: “ * * * would any of you hesitate to find in favor of my client?” An elementary thought could be that error is impossible for after the assumption of no negligence, their duty would be to find in his favor. However, from the questions found prejudicial in the cited cases, this fact generally was present, leaving no issue as to the subject matter, but only the propriety of the phrasing of the questions. It is possible the inquiry was made in such manner that no prejudgments were made. In fact no response at all is shown. Conceivably instances may arise when questions are objectionable by reason of considerations divorced from the actual words employed, as for example where by intonation, expression or emphasis, connotations not normally implicit in the words may be inspired. The words here used are susceptible to such abuse by experienced trial counsel. As known to anyone having actually participated in jury trials, the prejudicial effect, if any, may not be reflected in the printed record. Carter v. Rock Island Bus Lines, 345 Mo. 1170; 139 S.W.2d 458. Only the trial court is in a position to deal with such instances. In sustaining the motion for new trial, the trial court in retrospect must necessarily have resolved that the questions as asked were prejudicial and should not have been permitted.

Being mindful of the broad discretion accorded and the possible import of the questions asked, it cannot be said that such discretion was abused. Your Commissioner recommends that the judgment of the trial court be affirmed.

PER CURIAM.

The foregoing opinion by MORGAN, Special Commissioner, is adopted as the opinion of the court.

Accordingly, judgment of the trial court is affirmed.

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


author: FRANK D. CONNETT, Jr., Special Judge.

text:
    Helene M. GORDON, (Plaintiff) Respondent, v. James C. GORDON, (Defendant) Appellant.
    No. 31879.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 14, 1965.

      Charles M. Shaw, Claude Hanks, Clayton, for appellant.
    Fred A. Gossom, Robert G. Ruhland, St. Louis, for respondent.
   FRANK D. CONNETT, Jr., Special Judge.

Plaintiff, Helene M. Gordon, filed suit for divorce in the Circuit Court of St. Louis County on September 13, 1962, against the defendant James C. Gordon. On October 1, 1962, plaintiff filed a Motion for Temporary Alimony, Suit Money, Court Costs and Attorneys Fees. On October 9, 1962, Fred M. Joseph entered his appearance as attorney for defendant. On December 5, 1962, the following court memorandum was filed by agreement:

“Plaintiff and defendant appear in person and by their respective attorneys.
“By agreement of parties and Based on the defendant’s representation that his net earnings are $100 per month, it is agreed that the Court may enter its order, if approved by the Court, sustaining plaintiff’s motion for temporary alimony, etc., and awarding to pi. as and for temporary alimony the sum of $15.00 per week payable on Wednesday and beginning forthwith, and to pay to pi. as and for attorney’s fees on account the sum of $150.00 and to deposit as security for costs the sum of $100.00. Said judgment for atty fees impressed with a lien in favor of Fred A. Gossom with power to levy execution and to collect and satisfy such judgment.”
“7s/ Helene M. Gordon /s/ James C. Gordon
/s/ Fred A. Gossom /s/ Fred M. Joseph
Atty for pi. Atty for deft.”
“FILED .December 5, 1962.”

This memorandum was never signed by the Judge, however, the transcript shows that judgment was entered on the foregoing memorandum as follows:

“Now at this day come plaintiff and defendant, in person and by their respective attorneys; thereupon, the Court having heard and duly considered the plaintiff’s motion for temporary alimony, suit money, Court costs and attorney’s fees on account heretofore filed and this day submitted herein, and being sufficiently advised of and concerning the premises, doth order, the parties hereto consenting, that said motion be and the same is hereby sustained, and doth further order, by agreement of the parties and based on the defendant’s representation that his net earnings are $100.00 per month, that the plaintiff have and recover of the defendant as and for her temporary alimony the sum of $15.00 per week payable on Wednesdays and beginning forthwith. It is further ordered, adjudged and decreed by the Court that the plaintiff also have and recover of the defendant as and for her suit money the sum of $150.00, said judgment for attorney fees impressed with a lien in favor of Fred A. Gossom with power to levy execution and to collect and satisfy such judgment. It is further ordered by the Court that the defendant deposit with the Clerk of this Court the sum of $100.00 to secure the Court costs herein.”

On June 4, 1963, Fred M. Joseph withdrew as attorney of record for defendant, and on November 5, 1963, Charles M. Shaw entered his appearance as attorney for defendant, and a divorce decree was granted to plaintiff on her petition wherein plaintiff was granted inter alia “ * * * the sum of $50.00 as and for additional attorneys fees * *

On January 27, 1964, plaintiff filed an application for an order nunc pro tunc asking the Court to enter its approval of the Memorandum of Judgment as of December 5, 1962. On February 13, 1964, plaintiff’s application was heard and submitted and the Court made the following order:

“Plaintiff’s application for order nunc pro tunc heard and submitted. The Court, having considered the memorandum signed by the parties and their attorneys on December 5, 1962, upon which judgment entry was made in the Court records, and having considered the entries made by the Court in its docket book of Wednesday, December 5, 1962, and the symbols ‘RDY’ customarily used by the Court to indicate a contested matter was ready for trial and the fact that said symbol was crossed out by the Court, and the notation ‘SETT’ entered on said docket page by the Court, being the symbol customarily used by the Court to indicate that the parties had reached an agreement after conference with the Court; the Court finds that the memorandum of agreement of the parties of December 5, 1962, is the memorandum of judgment entered by the Court on that date, and the failure of said memorandum to indicate the approval of the Court thereon was through inadvertency or mistake, and that said memorandum is approved nunc pro tunc as of December 5, 1962.”

On February 21, 1964, defendant filed his Notice of Appeal, and the case was submitted to this Court on the briefs without argument.

The case law of Missouri as to the making of nunc pro tunc orders is well settled. Broadly stated, it is that clerical errors in court records may be corrected by the Court after the end of 30 days from the date of the judgment (formerly after the term in which the judgment was made had expired); provided there is some entry in the Judge’s minutes, the clerk’s entries, or some paper filed in the cause showing facts which authorize a correction. See the case of Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, and the many cases cited therein, cited by both appellant and the respondent in their briefs. The parties are in agreement as to the law. The disagreement comes in the application thereof.

It is interesting to note that in this case petitioner is trying to correct a memorandum to make it correspond with a recorded judgment, rather than trying to correct a recorded judgment so it would correspond with a memorandum or some other entry in a record. Why this is desired or necessary to petitioner does not appear from the briefs and the parties waived argument. Another unusual circumstance is that the error to be corrected is the Judge’s error rather than that of the clerk. The recorded cases in Missouri wherein a correction has been made by a nunc pro tunc order have been those in which the clerk has made an error. This probably occurs because the clerk’s work is clerical in nature, while the Judge’s is generally judicial. It is well settled that judicial errors of the Judge cannot be corrected by a nunc pro tunc order. The Judge cannot change his judgment although he did not make the judgment he intended to make, nor can he supply a judgment he failed to make at all, even one he should have made. As stated in Williams v. Walton, 84 Mo.App. 433, 441: “The power to make an entry nunc pro tunc in a cause after the end of a term does not authorize the entry of an order which ought to have been made, but only those which were actually made, the evidence of which is preserved by some minute made or paper filed at the time.” See also Aronberg v. Aronberg, supra.

Here is where the defendant makes his stand. He contends that “the Court at no time approved this memorandum and order, at no time signed the order, therefore, there was in effect no order actually made on December 5, 1962.” However, the signature of the Judge of the Court is not necessary to the validity of a judgment. If he actually approved the memorandum or rendered a judgment in conformity therewith, whether or not he affixed his signature to the memorandum, would be immaterial to the validity of the judgment. A judgment is valid at the moment it is rendered, although orally made, as in fact it generally is. State v. Haney, Mo.Sup., 277 S.W.2d 632, 55 A.L.R. 2d 717; Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77; Williams v. Luecke, Mo.App., 152 S.W.2d 991, 995; Fontaine v. Hudson, 93 Mo. 62, 5 S.W. 692; Platte County v. Marshall, 10 Mo. 345. See 49 C.J.S. Judgments § 45, p. 107; 30 Am.Jur. 226.

Assuming for the moment that the Judge actually approved the memorandum judgment as is contended by the petitioner, would his failure to indicate his approval of the memorandum by affixing his signature thereto, be a clerical error? Black’s Law Dictionary, Fourth Edition, defines a clerical error as a mistake in writing or copying. Certainly the term “in writing” would include an omission to write. See, also: Cassidy v. City of St. Joseph, 247 Mo. 197, 204, 152 S.W. 306, 309. The fact that an error was made by the Judge rather than the Clerk should not prevent it from being classified as “clerical”. Approval of the memorandum would involve a judicial function or discretion and be a judicial act, but the Judge’s act of evidencing his approval by signing the form would be clerical. The general rule as found in 126 A.L.R. 977, is as follows: “Clerical errors in judgments, orders, or decrees are not, by the majority rule, limited to mistakes of the clerk, but include errors made by judges where of a clerical or ministerial nature.” This A.L.R. note cites the case of Burnside v. Wand, 170 Mo. 531, 71 S.W. 337, 62 L.R.A. 427, as announcing a contrary rule because of the following statement found in the case at page 543 of the Missouri Reports, and page 339 of the Southwestern Reporter: “It (a nunc pro tunc entry) can never correct a mistake or oversight of the judge, (emphasis supplied), nor he used to 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.” None of the cases cited as authority for the emphasized statement, nor any of the later cases which quote this statement, involve a mistake or oversight of the Judge that is not clearly judicial, i. e., attributable to the exercise of judicial discretion or functions. The Burnside case turned on the fact that there was no evidence to support the proposed nunc pro tunc entry. A study of the cases will show that the important question is not who made the error, but whether the error was made in rendering a judgment, or in the entry of it. We can correct any entry of a judgment or an order by a nunc pro tunc entry, but we cannot correct the judgment actually rendered by the Judge no matter how many errors it may contain. Since the rendition and validity of a judgment is not dependent on the signing of a memorandum thereof, the act of signing so as to evidence or indicate approval of the Judge would be a clerical act.

Having established that the failure to sign the memorandum would be a clerical error, we next consider whether there was a sufficient record in this case, based on the Judge’s minutes, the clerk’s entries, or some paper in the cause to show facts authorizing the making of a nunc pro tunc entry correcting a clerical error. Ross v. Kansas City Ft. S. & M. R. Co., 141 Mo. 390, 395, 38 S.W. 926, 927. Is there sufficient record in this case to show that the Judge actually made the judgment recorded but inadvertently forgot to sign the memorandum thereof?

It is obvious from the judgment in this case that Judge Cloyd based his decision that a clerical error had been made in not signing the judgment memorandum on entries found in his docket book. Such is a sufficient record entry upon which the trial Judge might base a nunc pro tunc order. Furthermore, the clerk’s entry into the records of the Court of the judgment itself appears to us to be sufficient evidence of the fact that a mere clerical error was made in the court having failed to sign a memorandum of judgment which was identical to the judgment actually recorded.

Wherefore, the Judgment of the Court below is affirmed..

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

WOLFE, J., not participating.


author: DOERNER, Commissioner.

text:
    Julius A. STEFFAN, (Deceased), Plaintiff, v. Marie M. STEFFAN, Defendant-Respondent, and Samuel Richeson, Guardian Ad Litem for Bruce Steffan, a minor, and also as Amicus Curiae, Appellant.
    No. 31957.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 14, 1965.

      Joseph E. Furtaw, Hillsboro, for plaintiff.
    Dearing, Richeson, Weier & Roberts, Samuel Richeson, Hillsboro, for appellant.
    Thurman, Nixon, Smith & Howald, Jeremiah Nixon, Hillsboro, for defendant-respondent.
   DOERNER, Commissioner.

This appeal arose out of an action for divorce. On March 12, 1964, Julius A. Steffan filed a petition in the Circuit Court of Jefferson County wherein he prayed for a divorce from the defendant, Marie M. Steffan, and for custody of Bruce, the minor child of the parties. On March 20, 1964, defendant filed her entry of appearance in which she acknowledged receipt of a copy of plaintiff’s petition, waived issuance and service of summons, entered her general appearance, and consented to the court taking up and hearing the matter without any further notice to her. Defendant filed no answer or other responsive pleading and did not appear in person or by counsel at the hearing of the cause on April 1, 1964. The court rendered a decree on that date in which it found that plaintiff was the innocent and injured party, granted him a divorce, awarded him custody of the minor child Bruce, and approved and incorporated in the decree a stipulation for a property settlement which plaintiff and defendant had executed on March 28, 1964.

Plaintiff was killed in an accident on April 4, 1964. On April 9, 1964, eight days after the decree had been granted and five days after plaintiff’s death, defendant filed what was titled “Motion to Set Aside Divorce Decree, Or In the Alternative, Motion for a New Trial.” In her motion defendant alleged, among other grounds, that the decree was obtained by fraud practiced before the court by the plaintiff in that the plaintiff and defendant had co-habited together as man and wife on March 29, 30 and 31, 1964, that they had been voluntarily reconciled, that the plaintiff had condoned any alleged acts the defendant might have committed, that plaintiff secretly and without knowledge obtained the decree, that she was unaware of the decree until after plaintiff’s death, and that had she known that plaintiff was going to attempt to get a divorce after they had lived together she would have appeared in opposition and have presented what she stated was a meritorious defense. The record indicates that notice of defendant’s motion was served on Mr. Joseph Furtaw, the attorney who had represented the plaintiff in the proceedings prior to plaintiff’s death, and that Mr. Furtaw advised counsel for defendant either that he was not in the case anymore or that he had not been retained by anyone at that time.

The transcript further reveals that a hearing on defendant’s motion was held on April 30, 1964, and that Mr. Samuel Riche-son, an attorney, was present. At the beginning of the proceedings the court inquired of Mr. Richeson for whom he was appearing, and was informed by Mr. Riche-son that he didn’t know for whom he was appearing and that he had been employed by Mrs. Delores Williams, a sister of the deceased plaintiff. Mr. Richeson also advised the court that Mrs. Williams had filed in the Probate Court of Jefferson County an application for appointment as guardian of Bruce but that sufficient time had not elapsed for the appointment to be concluded. A colloquy ensued, during which the court at first indicated that it would appoint Mrs. Williams as guardian ad litem of the minor, to which counsel for defendant objected on several grounds. The court then suggested that it could appoint Mr. Richeson, and expressed the intention of having “both sides” and “the opposition” represented at the hearing. Defendant’s counsel renewed his objections to Mr. Richeson’s appearance, and after further discussion the following occurred:

“The Court: All right, I’m going to overrule your (defendant’s) objection, Go ahead, if your ready we’ll put on your evidence. Who’s your witness? Mrs. Steffan?
“Mr. Richeson: My status is amicus curiae ?
“The Court: Your status is Guardian Ad Litum and Amicus Curiae.
“Mr. Nixon: As I understand for this proceeding alone and no other that Mr. Richeson is both amicus curiae and guardian ad litum for this minor child?
“The Court: Yes.
“Mr. Richeson: There’s not limitations for this proceeding alone, whatever I’m doing here it does not have that status.
“Mr. Nixon: Now is it limited to this hearing? He stated before there’s been an application of some sort filed in the Probate Court, what that is I don’t know.
“The Court: That will be up to the Probate Court down there. As far as this proceeding is concerned that’s his standing in this proceeding.”

In view of the conclusions we have reached regarding this appeal it is not necessary to review the evidence introduced in support of and in opposition to defendant’s motions. It is sufficient to state that at the conclusion of the hearing the court entered an order granting defendant a new trial. Thereafter, on May 9, 1964, there was filed a notice of appeal on the usual printed form, which notice reads and is signed as follows:

“Notice is hereby given that Samuel Richeson, attorney on behalf of the sister of deceased, Julius A. Steffan above-named, hereby appeals to the St. Louis Court of Appeals from the Order entered in this action on the 30th day of April, 1964, granting defendant a new trial.
Dearing, Richeson, Weier & Roberts
By JsJ Samuel Richeson /s/ Samuel Richeson
Samuel Richeson, Guardian Attorney for deceased plaintiff ad Litem for Bruce Steffan
By /s/ Samuel Richeson
Samuel Richeson, Amicus Curiae”

The only brief filed in this court on behalf of any appellant is titled “Statement, Brief and Argument of Appellant, Guardian Ad Litem and Amicus Curiae,” and is signed: “Samuel Richeson, Dearing, Richeson, Weier & Roberts, Attorneys for Appellant, as Guardian Ad Litem and Amicus Curiae.”

At the outset we are confronted with the question of our jurisdiction to entertain this appeal. It has long been the rule that the right of appeal is purely statutory and does not exist except as provided by statute. Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796; Walker v. Thompson, Mo., 338 S.W.2d 114; Harper v. Harper, Mo.App., 379 S.W.2d 889. Section 512.020, RSMo 1959, Y.A.M.S., specifies who may appeal; in brief, only a party to a suit aggrieved by a judgment in a civil cause. Civil Rule 82.04, V.A.M.R., provides when and how an appeal must be taken; by the timely filing of a proper notice of appeal and payment of the docket fee. In view of these provisions there are a number of reasons why we must dismiss this purported appeal. A statement of two will suffice.

The fact is that there is no appellant before us. The only notice of appeal that was filed recites that Mr. Richeson, “ * * * attorney on behalf of the sister of deceased, Julius A. Steffan * * * ” appeals. We regard this as nothing more than a notice of appeal on behalf of Mrs. Williams, the sister of the deceased plaintiff. Assuming that she was allowed to intervene by the trial court (and the record indicates to the contrary) there was no brief filed by or on behalf of Mrs. Williams and her attempted appeal must therefore be treated as abandoned. Civil Rules 83.05, 83.09, V.A.M.R.; Pemberton v. Ladue Rlty. & Const. Co., 362 Mo. 768, 244 S.W.2d 62. While the notice of appeal is also signed by Mr. Richeson as both guardian ad litem and amicus curiae there is no statement therein that he appeals in either of those capacities. The timely filing of a notice of appeal is mandatory and a vital and essential prerequisite to appellate jurisdiction. Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201. Assuming, without deciding, that the guardian ad litem and the amicus curiae was a proper party to the cause and aggrieved by a judgment and therefore entitled to appeal, his failure to file a notice of appeal results in a total failure to establish our jurisdiction. Franklin v. Franklin, Mo.App., 344 S.W.2d 282; In Interest of R—, Mo.App., 362 S.W.2d 642.

Furthermore, even if by a strained construction of the plain language of the notice of appeal we were to regard it as including the guardian ad litem and the amicus curiae, we would nevertheless be required to dismiss his appeal. The decree of divorce in favor of the original plaintiff was entered by default. Despite the name given it by the trial court, an order setting aside a default judgment is not an “order granting a new trial” within the contemplation and meaning of Section 512.020 specifying who may appeal. Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230. And many cases have held that an appeal will not lie from an order setting aside a default judgment. Crossland v. Admire, supra; Bussiere’s Adm’r v. Sayman, supra; Farrell v. DeClue, Mo.App., 365 S.W.2d 68.

Since we are without jurisdiction and must dismiss the purported appeal any comment we might make on the regularity of the proceedings in the trial court following the death of the original plaintiff, or the validity of the order made, would obviously be obiter dictum, to be avoided as the plague. It may not be amiss, however, to suggest that those interested in such questions might with profit examine the cases cited in the footnote.

For the reasons stated the Commissioner recommends that the appeal be dismissed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, appeal is dismissed.

WOLFE, P. J., RUDDY, J., and Mc-GHEE, Special Judge, concur.

      . Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347; Overstreet v. Overstreet, Mo., 319 S.W.2d 49; Caddell v. Caddell, 204 Mo.App. 182, 222 S.W. 873; Matlick v. Matlick, 212 Mo.App. 83, 251 S.W. 462; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841; Heil v. Rogers, Mo.App., 329 S.W.2d 388, 329 S.W.2d 960.