author: RUDDY, Acting Presiding Judge.

text:
    BLACK AND WHITE CABS OF ST. LOUIS, INC., a Corporation, (Plaintiff) Respondent, v. Thomas Donald SMITH, Administrator of Estate of George W. Smith, Deceased, (Defendant) Appellant.
    No. 31132.
    St. Louis Court of Appeals. Missouri.
    Sept. 20,1963.

      Mehan & Sanders, Richard J. Mehan, St. Louis, for appellant.
    Max Sigoloff, St. Louis, for respondent.
   RUDDY, Acting Presiding Judge.

This is an action in equity brought by plaintiff, a Missouri corporation, for specific performance of an agreement entered into by and between George W. Smith during his lifetime and all other shareholders of plaintiff corporation. The defendant, son of decedent, is the administrator of the Estate of George W. Smith, Deceased. The court entered its judgment and decree in favor of the plaintiff and ordered the defendant to specifically perform the agreement entered into by the decedent, George W. Smith, and to deliver to the plaintiff corporation, properly and duly endorsed, as administrator of the Estate of George W. Smith, Deceased, twenty shares of capital stock of the plaintiff corporation upon payment to him by plaintiff of the sum of $8000.00. The court further ordered that the defendant be restrained from disposing of said stock or making application to the Probate Court for distribution of said stock as administrator of his father’s estate. From this judgment and decree, defendant appeals.

The defendant presents two points for our consideration. He contends (1) that the court erred in overruling his Motion to Dismiss filed prior to the commencement of the trial because plaintiff was not a party to the agreement on which the equity action is founded and is only an incidental beneficiary under said agreement and, therefore, is not entitled to enforce it; (2) that the trial court erred in denying defendant’s motion to inspect the books and records of the plaintiff corporation.

It is alleged in the petition and the evidence in support thereof shows that the decedent, George W. Smith, for a number of years prior to his death, was one of the six principal shareholders of the plaintiff corporation. Each of the shareholders of said corporation owned an equal number of shares of the capital stock of said plaintiff corporation. The six shareholders owned all of the capital stock issued by the plaintiff corporation and outstanding at the time of the execution of the agreement hereinafter referred to and at the time of the death of George W. Smith. The six shareholders comprised the Board of Directors of said corporation.

At the time of the execution of the agreement and at the time of his death, George W. Smith was the owner of 20 shares of $100 par value per share of the capital stock of plaintiff corporation which ownership was represented by a stock certificate issued by the corporation under date of June 2nd, 1955, with an endorsement thereon stating that “the sale or transfer of this stock is subject to the terms and conditions of a contract between Myron C. Redman, Oscar G. Heintzmann, John J. Smith, Frank Foley, George W. Smith and Harry Lander dated 24 day of July, 1957.”

On the 28th day of February, 1958, Myron C. Redman, Oscar G. Heintzmann, John J. Smith, Frank Foley, George W. Smith, and Harry Lander, comprising all of the shareholders of plaintiff corporation, entered into an agreement, the pertinent parts of which we set out.

“(2) Each of said parties acknowledges that by reason of the confidence reposed by each in the other, they are desirous of not having strangers acquire any of the shares of stock held by any of the parties in the event of the happenings hereinafter stated. Therefore, said parties do hereby mutually agree with each other with reference to the disposition of their shares of stock in the aforesaid corporation as follows:
“(3) In the event any of the shareholders hereof should desire to dispose of any of his shares of stock in any or all of the companies aforesaid during his lifetime, then he shall first offer to sell all of his shares of stock to each of the aforesaid corporations at the price herein set forth: * * * Black and White Cabs of St. Louis, Inc., $300.00 per share.
“(4) The price to be paid for the shares of stock as herein mentioned in the event a shareholder desires to sell his stock in said corporation has been mutually agreed upon by and between said parties as of the date of this agreement. It is further mutually agreed that each successive year from the date of this agreement the parties shall discuss the price to be paid for the stock for the succeeding year. If said parties are unable to agree upon the amount to be paid for the stock in case of sale during the next succeeding year, then the amount provided herein for each share of stock shall be the same for and during the next succeeding year. * * * ”

The agreement then provides that if the company would fail to buy the shares of stock so offered, then the shareholder shall have the right to offer to sell his stock to the other shareholders in proportion to their respective holdings and if the corporation and the shareholders to whom said stock is offered shall decline to buy such stock in proportion to their holdings in said company, then the shareholder desiring to sell shall have the right to sell his stock to any one or more of the other shareholders of said corporation and if none of the shareholders agree to buy all of the stock, then said shareholder shall have the right to sell his stock to any other person not a shareholder of said corporation.

Thereafter the agreement provided:
“(8) None of the parties shall during his lifetime assign, encumber or dispose of any portion of his respective stock interest in the aforesaid companies by sale or otherwise without the written consent of the other shareholders of the corporation in which they hold such stock.
“(9) In the event of the death of any of the shareholders, then and in that event, the Executor, Administrator or personal representative of the deceased shall offer the stock of the deceased to the respective corporations above mentioned under the same terms and conditions hereinbefore provided, and if any of said companies shall fail or refuse to buy the same within the time mentioned aforesaid, then such stock shall be offered to the survivors of said parties under the same terms and conditions as hereinbefore agreed by all of the respective parties with each other, on the same terms as here-inbefore provided, in the event any of them desire to sell his stock during his lifetime.
“(10) Payment for said stock shall be made in cash by the party purchasing the same.
“(11) Each certificate of stock owned by the parties shall bear a notation of the existence of this contract between said parties, so that all who are not parties to this contract shall have notice thereof.
* * * * * *
“(14) The parties hereto for themselves, their successors, assigns and administrators, hereby agree to the full performance of the covenants and agreements herein contained which shall be binding upon them individually and their personal representatives.”

This agreement covered the stock in three other corporations which stock was held by the same shareholders holding the stock of plaintiff corporation. Thus the reference in the agreement to “corporations.” In January of 1960 the six shareholders pursuant to the terms of the aforesaid agreement agreed that the value of and the amount to be paid for the stock of plaintiff corporation in the event of any of the happenings mentioned in said agreement during the year 1960 shall be $400 per share.

George W. Smith died on the 5th day of September, 1960, and his son, the defendant herein, was appointed administrator of his estate. After the defendant took charge of the estate of his father, he did not offer the stock of the Black and White Cabs of St. Louis, Inc., inventoried in said estate, for sale to the plaintiff corporation pursuant to the terms of the aforesaid contract. On November 30, 1960, the plaintiff, in a letter addressed to the defendant, administrator, called the defendant’s attention to the terms of the agreement as set out herein and then stated:

“ * * * Mr. George W. Smith owned twenty (20) shares of stock in the company. Accordingly, Black and White Cabs of St. Louis, Inc. is ready, able and willing to purchase said shares of stock at the price of $400.00 per share.
“Upon application of the administrator and an order of the Probate Court to sell said stock the corporation will immediately pay in cash the sum of Eight Thousand Dollars ($8000.00). Will you kindly inform either Mr. John J. Smith at his office, or our attorney, Mr. Sigoloff, 706 Chestnut St. when the sale of the stock to the company, as agreed under the terms of the written contract, will be consummated, following authority of the Probate Court pursuant to such application.”

This offer to purchase the shares of stock held in the Estate of George W. Smith, deceased, was made pursuant to a resolution adopted at a special meeting of the Board of Directors of plaintiff corporation held at the office of the corporation on the 19th day of October, 1960. Defendant refused to accept the offer and continued to refuse to sell the stock, giving as his reason that he did not think the price offered represented a fair value. Also stating that he was unwilling to file an application for an order of the Probate Court to sell said stock.

Myron C. Redman, president of plaintiff corporation, testified that the plaintiff was willing and ready to pay the administrator $8000 for the 20 shares of stock.

The decedent, when living, was present at all meetings of the shareholders and directors and was present at the meeting held in January 1960, when the value of $400 per share was placed on the stock. No evidence was offered by the defendant.

Defendant filed his answer to plaintiff’s petition on May 18, 1961, and in it he alleged that he was without sufficient knowledge to form a belief as to the allegations contained in the petition and called upon plaintiff to make proof on each item alleged in said petition.

For further answer defendant alleged that “if there was an agreement as mentioned in plaintiff’s petition, it is unenforceable because of a failure of consideration.”

On the 5th day of September, 1961, defendant filed a “Motion to Inspect” wherein he asked the trial court for an order requiring the plaintiff to produce the following described documents and books for the years 1956 through 1960. The records sought by defendant were the corporate stock books, minutes of stockholders and directors meetings, annual financial statements as prepared by auditors of the company, federal income tax returns, franchise tax returns, anti-trust affidavits, reports of examinations, if any, by the United States Internal Revenue Service, general ledger account books, receipts, disbursements and general journals, all cancelled checks for the years indicated, bank statements from all banks in which plaintiff had deposits, and insurance register and policies for the years indicated. In addition, defendant sought an order to have plaintiff produce “contracts, agreements and other pertinent supporting documents in connection with activities of said company.” These books and documents were sought on the ground that they had a material bearing upon the validity of the alleged contract and were necessary to the defendant in the preparation and presentation of his defense.

Plaintiff objected to the motion to inspect on the principal ground that the documents and books sought were not relevant or material to the enforcement of the contract of plaintiff with the decedent. That by reason of the terms of the contract which were enforceable against the administrator of the decedent’s estate, defendant had no interest in the affairs of the company. Thereafter, the trial court denied defendant’s motion to inspect and sustained plaintiff’s objection thereto.

Thereafter, on the 18th day of September, 1961, defendant filed his motion to dismiss plaintiff’s petition giving as his grounds (1) that the plaintiff’s petition has failed to state a cause of action against defendant, (2) that the plaintiff’s petition bases its cause of action on the contract and asked for specific performance by this defendant when the plaintiff is not a party to said contract and has no rights thereunder. The motion to dismiss was overruled by the trial court.

Thereafter, defendant filed an amended answer wherein he affirmatively stated:

“ * * * that if there were an agreement as mentioned in plaintiff’s petition, it is unenforceable because of a failure of consideration.
“3. Further answering, the defendant affirmatively states that if there were an agreement as mentioned in plaintiff’s petition, it is unenforceable as to this plaintiff in this action as this plaintiff is not a party to the agreement referred to in plaintiff’s petition and has no rights thereunder to bring this action.”

Our review will be limited to the trial court’s action in overruling plaintiff’s motion to dismiss filed prior to the commencement of the trial and the court’s action in denying defendant’s motion to inspect books and records of the plaintiff corporation. These are the only points presented by defendant’s brief under his points and authorities.

Defendant when discussing the court’s action, in overruling his motion to dismiss filed prior to trial, in his brief makes frequent references to the evidence introduced by plaintiff at the trial. Strictly speaking, the evidence offered and introduced by the plaintiff at the trial should receive no consideration in determining the correctness of the trial court’s action in ruling on defendant’s motion to dismiss which was filed prior to the commencement of the trial and which was directed to the allegations contained in plaintiff’s petition. However, an examination of the record in this case shows that the evidence introduced by plaintiff supports and practically parallels the allegations contained in plaintiff's petition. Thus, we will assume that when defendant refers to the evidence in the case he is also referring to the allegation in plaintiff’s petition supported by the evidence.

It is evident from an examination of the motion to dismiss and the answers filed by the defendant and the position taken in his brief filed in this court that it is the contention of the defendant that plaintiff’s suit for specific performance cannot be enforced by plaintiff because plaintiff was not a party to the contract referred to in the petition and in the evidence and that it was only an incidental beneficiary under the agreement.

There is no doubt that where a person is only collaterally and incidentally benefited by a contract entered into by others he is not entitled to enforce it. Kansas City Life Insurance Co. v. Rainey, 353 Mo. 477, 182 S.W.2d 624, 155 A.L.R. 168; 12 Am.Jur., Contracts, § 279, p. 831, 832, 834. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct, he may sue on the contract; if incidental, he has no right of recovery thereon. Williston on Contracts, Vol. 2, p. 794.

In Uhrich et al. v. Globe Surety Co. of Kansas City, 191 Mo.App. 111, 166 S.W. 845, 1. c. 846, the court, in quoting from an opinion of the Supreme Court, which had quoted an excerpt from another opinion, said:

“It is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person; he being neither privy to the contract nor to the consideration. The contract must be made for his benefit, as its object, and he must be the party intended to be benefited.”

Also see Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S.W. 784, 23 L.R.A. 146.

However, as said in the Howsmon case, supra 1. c. 785 of 24 S.W:

“It is well-established law in this state, by a line of decisions extending from the year 1847 to the present date, ‘that a person for whose benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name.’ ” (Citing cases.)

Under this doctrine the person for whose benefit the contract is made becomes a third party donee beneficiary and such beneficiary is entitled to enforce the contract made for his benefit even though he is a stranger to both the contract and the consideration. Kansas City Life Insurance Co. v. Rainey, supra; Williston on Contracts, § 356, p. 824; 12 Am.Jur., Contracts, § 277, p. 825.

Restatement of the Law of Contracts, Chapter 6, § 133, p. 151, defines a donee beneficiary as follows:

“(1) Where performance of a promise in a contract will benefit a person other than the promisee, that person is, * * (a) a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary.”

Williston on Contracts, Vol. 2, Sec. 357, pp. 842-3.

Several text authorities in discussing the principle permitting recovery by third party beneficiaries have said that the basis of the rule has been stated to be that the law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation upon which the action is founded. This theory is probably more frequently stated than any other. This, however, is merely an indirect way of saying that privity is not necessary to enable the beneficiary to recover. By saying that the law operating upon the acts of the parties establishes the privity, the courts really mean that the law dispenses with the necessity of privity in the strict sense of the term. Williston on Contracts, Vol. II, Sec. 347, p. 797; 12 Am.Jur., Contracts, § 278, p. 830. Put more succinctly, a third party beneficiary under such a contract may enforce his rights thereunder even though as between such beneficiary and the promisee no consideration passed and no obligation existed. Crow v. Kaupp, Mo., 50 S.W.2d 995; Binswanger v. Employers’ Liability Assur. Corp., 224 Mo.App. 1025, 28 S.W.2d 448; Uhrich et al. v. Globe Surety Company, supra.

The third party beneficiary must clearly show that the contract was intended for his benefit, that is, for his direct benefit and the third party beneficiary has the burden of showing that the provisions of the contract were intended for his direct benefit.

Where the contract creates a right in favor of a third person, the law presumes that the party to the contract intended to confer benefits on the third person and the third party beneficiary has the right to enforce the contract although the contract also works to the advantage of the parties thereto and although the actual purpose motivating the parties in making the provisions in favor of the third party was a purely selfish one of benefiting or protecting themselves rather than of benefiting the third person. Am.Jur., Contracts, § 280, p. 832.

Applying the rules we have cited above, we think that the contract which forms the basis of plaintiff’s cause of action as stated in its petition makes plaintiff a donee beneficiary and intended that plaintiff directly benefit by its provisions. This is so even though an additional purpose is served, namely, to help the other shareholders of plaintiff corporation.

The question whether this contract was intended for the direct benefit of the plaintiff corporation is one of construction and the important rule to be observed in construing the contract under review is to ascertain and give effect to the intention of the parties and this may be gleaned from the situation of the parties, the facts and circumstances attending the execution of the contract and the apparent purpose which the parties are undertaking to accomplish. Paulus v. Board of Education, Mo.App., 347 S.W.2d 425; Truck Leasing Corporation v. Esquire Laundry and Dry Cleaning Co., Mo.App., 252 S.W.2d 108. The petition clearly demonstrates that the facts and circumstances present at the time of the execution of the contract show that all of the parties to the contract were shareholders in the plaintiff corporation and that all of the parties to the contract owned all of the capital stock issued by the plaintiff corporation and outstanding at the time of the execution of the agreement. The purpose to be served by the parties executing the contract was to assure all shareholders that if any one of them desired to sell his stock, it would not be sold to strangers and that the corporation and the shareholders would continue in the management and care of the affairs of the corporation without having to adjust themselves or accommodate themselves to a new relationship with a shareholder who would be a stranger to their group. Shareholders in their agreement made it clear that they were desirous of not having strangers acquire any of the shares of stock held by any of the parties in the event of the happenings mentioned in the agreement. Defendant agrees in his brief that the purpose of the contract was to maintain a status quo as to ownership and management “of the closely held respondent corporation.” With this statement we agree. Plaintiff corporation was a small corporation with a few shareholders and it appears that all of the shareholders participated to some degree in the management of the corporation, because all of the shareholders were also directors of the corporation.

In the case of State at Inf. of Huffman et al., v. Sho-Me Power Co-Operative, 356 Mo. 832, 204 S.W.2d 276, 280, the Supreme Court has said a corporation has the right to choose the persons to whom it will issue its own stock. In this case the Supreme Court was discussing the right of a corporation to place restrictions on the issuance and transfer of its stock. In discussing the restrictions under attack the Supreme Court quoted approvingly from Thompson on Corporations, 3rd Ed. Vol. 6, § 4156, p. 21, as follows:

“The rule is well settled that a provision in the charter or articles of incorporation that no stockholder shall sell and transfer his stock either, without the consent of all other stockholders, or that he will first offer it to the stockholders or to the corporation before selling to other persons, is binding on persons who became owners of the stock. These provisions, which really amount to agreements between the stockholders themselves, are not invalid as against public policy nor do they amount to an improper restraint of the power of alienation. There seems to be no objection to a corporation reserving to existing members the right to choose their associates. * * *" (Emphasis ours.) 204 S.W.2d 279.

It will be noted in this quotation that such a provision in the articles of incorporation really amounts to an agreement between the stockholders themselves. If the corporation can do this through its articles of incorporation, which in effect amounts to an agreement between the stockholders themselves, there is no reason why stockholders cannot do it among themselves and make the corporation a third party beneficiary. Such a provision in a contract confers upon the third party beneficiary a direct benefit. It assures to the corporation a continuity in its management, a continued close relationship between ownership and management, a continuation of a “close confidential relationship” which may be disrupted if a stranger is brought into their midst. Likewise, there is a danger of competitors becoming shareholders if the stock is permitted to be sold to strangers. In addition, this right, given to the plaintiff corporation, is very beneficial in that it guarantees a continuation of the harmonious relationship that, no doubt, existed between the shareholders and the corporation in the management of the affairs of the corporation.

Justice Holmes in the case of Barrett v. King, 181 Mass. 476, 63 N.E. 934, said:

“Stock in a corporation is not merely property. It also creates a personal relation analogous otherwise than technically to a partnership.”

This is particularly true of a small corporation and the maintenance of a harmonious personal relationship between the corporation and its shareholders was and is highly important to the plaintiff corporation.

Another reason for our holding that the plaintiff corporation is a donee beneficiary under the contract is that the contract expressly provides that plaintiff is the first party that has a right to acquire the stock sought to be sold by a living shareholder or held in the estate of a deceased shareholder. We think such provisions clearly evidence the intention of the shareholders in executing the agreement, that this right extended to the corporation,, conferred a direct benefit to the corporation and, therefore, plaintiff had a right to sue to enforce its right under the contract. Finn v. Barnes et al., 340 Mo. 445, 101 S.W.2d 718; Schoen v. Lange, Mo.App., 238 S.W.2d 902; Uhrich v. Globe Surety Co., supra; 12 Am.Jur., Contracts, § 280, p. 832.

In view of what we have said we find that the trial court did not err in overruling the defendant’s motion to dismiss made prior to the commencement of the trial and this contention made by the defendant is without merit.

Defendant in his last point contends that the trial court erred in denying his motion to inspect. In his brief defendant states that he had a right to inspect the books under the provisions of § 351.215 RSMo 1959, V.A.M.S., and also under the provisions of Civil Rule 58.01, V.A.M.R.

Defendant, in his motion to inspect wherein he asked the court for an order requiring the plaintiff to produce the records described in his motion states that said records were sought on the ground that they had a material bearing upon the validity of the alleged contract and were necessary to the defendant in the preparation and presentation of his defense. There is nothing in his motion to inspect or in the record before us that indicates he was relying on the provisions of § 351.215, supra, and reliance upon this section of the statute seems to be an afterthought of the defendant which had its birth in the brief filed in this court. The motion filed in the trial court clearly indicates that defendant was asking the trial court for an order requiring the plaintiff to produce the described records for inspection pursuant to Civil Rule 58.01, V.A.M.R. The pertinent parts of this rule are as follows :

“In addition to the right to obtain the production of any document or thing for inspection in connection with an examination under Rule 57 or interrogatories under Rule 56, any party may move the court, subject to the provisions of Rule 57.01(c), for an order upon another party (1) to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, * * * not privileged,, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 57.01(b) and which are in his possession, custody, or control; * * *. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.”

This rule became effective April 1,, 1960, and does not seem to have been discussed extensively in any previous case in this state. This rule incorporates by reference parts of Rule 57, namely, 57.01(b) and 57.01 (c). Rule 57 deals with the taking of a deposition. 57.01(b) indicates the scope of the examination and by reference becomes a part of Rule 58.01. The pertinent parts of Rule 57.01 (b) provide as follows:

“Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, * * * and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * * ”

The pertinent part of subdivision (c) of Rule 57.01 is the following:

“ * * * [T]he court may make any other order which justice requires to protect the party or witnesses] from annoyance, embarrassment, or undue expense, oppression or to compel a witness or party to make discovery.”

The Committee Note appearing under Civil Rule 58.01, V.A.M.R., states that this rule is amended Rule 34 of the Federal Rules of Civil Procedure as redrafted and submitted by the Advisory Committee. The note continues: “The amended rule set out above (1) incorporates the broadened scope of discovery; (2) simplifies the practice by eliminating the showing of ‘good cause’; (3) substitutes for the ‘good cause’ showing the power to protect the respondent from annoyance, undue expense, embarrassment or oppression.” However, the present Rule 34 of Federal Rules of Civil Procedure does not contain the suggestion of the Federal Advisory Committee to eliminate the former requirement that the parties seeking inspection should show “good cause” therefor. The present Federal Rule 34 requires the party seeking inspection to show “good cause” therefor and in that respect differs from our rule 58.01, V.A.M.R.

Discovery is not a matter of right. Barron and Holtzoff, Vol. 2A, Federal Practice and Procedure, § 803,, pp. 471^-72. Despite the liberality with which this rule should be construed, we do not think that the granting of the order requested follows as a matter of course and is a mere automatic procedure; nor was the rule intended to approve indiscriminate inspection of papers and records of the opposing party. As we shall show later, the papers and records sought must be relevant and not privileged. The rule obviously contemplates an exercise of judgment by the court. We think that the movant, before he is entitled to a sweeping discovery, must show in his motion or otherwise reasonable grounds to believe that the records sought are relevant to the subj ect matter involved in the pending action.

Looking to the grounds stated in defendant’s motion to inspect we find them to be mere legal conclusions and under the authorities discussing the old rules covering the right to production of records and inspection thereof mere legal conclusions that the documents sought have a material bearing upon the validity of the alleged contract and are necessary in the preparation of defendant’s defense were held insufficient, because they were mere conclusions. State ex rel. St. Louis Union Trust Co. v. Sartorious, 351 Mo. 111, 171 S.W.2d 569, loc. cit. 573. However, we think there is a more cogent reason for affirming the trial court’s action. It seems quite clear that none of the documents sought were relevant to the subj ect matter involved in this action, namely, the contract. We think that movant (defendant) still has the burden of showing to the court that the records he seeks to examine are relevant to his defense against the contract in this action. In this sense the applicant has the burden. State ex rel. Missouri Broadcasting Co. v. O’Malley, 344 Mo. 639,127 S.W.2d 684, loc. cit. 686; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W. 2d 757,1. c. 761.

The purpose of Civil Rule 58.01 is to make relevant, non-privileged documents, papers and records in possession of one party available to the other, and thus to expedite the trial of cases. Civil Rule 57.01 (b) describes the scope of the examination at the taking of a deposition, and by reference is to be read in conjunction with the provisions of Rule 58.01 and controls the scope of discovery and production of documents, papers and records called for under said Rule 58.01. Therefore, the right of discovery under Rule 58.01 is as broad as the scope of examination permitted by Rule 57.01 (b). The right of discovery, therefore, under Rule 58.01 is limited to matter not privileged which is relevant to the contract involved in the instant action, with the proviso, that the fact that the material sought tó be inspected will be inadmissible at the trial is no ground for objection if the matter sought to be discovered appears reasonably calculated to lead to the discovery of admissible evidence. Therefore, it is encumbent on the trial court to find, before it grants the discovery, that the matter sought to be produced and inspected is relevant to the contract in this action and appears reasonably calculated to lead to the discovery of admissible evidence. Documents and records that would not aid in the discovery of admissible evidence are not within the scope of the examination permitted under subdivision (b) of Rule 57.01.

In the instant action the subject matter is the contract executed by the shareholders of plaintiff corporation. It must be kept in mind that the plaintiff was not a party signatory to the contract in question, but was a mere beneficiary under said contract and through that status it received a direct benefit. The only issue before the court was whether or not plaintiff was a beneficiary who had the right to enforce the provisions of the contract designed to be of direct benefit to it. We see no possibility that the discovery sought by defendant may in any way be relevant to the subject matter of the action, namely, the contract, which is the basis of plaintiff’s action and was executed by the shareholders of plaintiff corporation. While the trial court did not give any reasons for its ruling, wherein it denied the right of defendant to inspect the records described in his motion, it seems reasonable to say that the trial court could have also found that the great variety of records sought for the years 1956 through 1960 constituted an annoyance or oppression to the plaintiff, which is a protective order permitted under subdivision (c) of Rule 57.01. Any of tlie aforesaid findings by the trial court would have formed a reasonable basis for its action. We find no reason to hold that the trial court erred in overruling defendant’s motion to inspect.

In the argument portion of his brief defendant referred to the provisions of § 351.-390 RSMo 1959, V.A.M.S., without stating in what respect he would be injured by a possible violation of this section of the statute. This section of the statute specifically gives authority to corporations to purchase their own stock if such purchase will not impair their stated capital. Burg v. Bonne Terre Foundry Co., Mo.App., 354 S.W.2d 303,1. c. 306. It can be assumed that plaintiff will not violate the statutes in its effort to enforce the provisions of the contract. State at Inf: of Huffman v. Sho-Me Power Co-Operative, 356 Mo. 832, 204 S.W.2d 276, loc. cit. 280. The answer of defendant did not charge any illegality in this respect. However, we are at a loss to understand why the defendant, who has the duty of obtaining the best price possible for the assets of the estate he administers, would seek to show that the capital stock of the plaintiff corporation was worth less than the $400 per share offered by the plaintiff, or that the payment of the sum offered would reduce the net assets of plaintiff below its stated capital. This would be the result achieved if he was successful in showing that plaintiff violated the provisions of § 351.390, supra. At the trial defendant’s testimony indicates that he thought the price offered by the plaintiff was insufficient.

We find no error, therefore, the judgment of the trial court should be affirmed. It is so ordered.

SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Leona B. RIDGLEY, Plaintiff-Respondent, v. Elmer E. RIDGLEY, Defendant-Appellant.
    No. 31405.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Hale W. Brown, Kirkwood, for defendant-appellant.
    Noel F. Delporte, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Defendant appeals from a judgment and decree awarding plaintiff a divorce, alimony in gross of $4,500, and $650 for attorney’s fees.

Plaintiff alleged two grounds in her petition, indignities and desertion. In his first amended answer defendant admitted the marriage and separation, denied the aver-ments concerning the grounds for divorce, and as an affirmative defense pleaded that all the indignities of which plaintiff complained, if they occurred, which defendant denied, had occurred more than five or ten years before plaintiff filed her petition and were therefore barred by the statute of limitations. Plaintiff replied, denying the allegations constituting the affirmative defense.

The record reveals that the parties were married on September 8, 1920, and that five children were born of their union, all of whom were of age in 1958 when plaintiff filed her action. For the first few years following their marriage the parties lived on a farm in St. Louis County which defendant rented from his mother, but in 1929 they purchased from plaintiff’s brother, for $2,000, a tract of about two acres on Wild Horse Creek Road in the same county. The title thereto was taken in both names as an estate by the entirety. No part of the purchase price was paid at that time, and in lieu thereof notes and two deeds of trust for the full amount were given to the seller. In fact, all that was ever paid thereafter by either party was $800 realized, “* * * when the road went through there * * Also in 1929 the plaintiff inherited 22.65 acres of bottom land from her family. The exact location of this acreage was not given, but the evidence indicates that it was probably in the neighborhood of the two acre tract. The following year, in 1930, the parties moved into an old, five room house located on the smaller parcel.

The evidence further shows that in the years which followed this move the defendant neglected his family, and spent an increasing number of the daylight hours, as well as most of his nights, whiling away his time at a tavern or store talking to the boys (as he expressed it), playing cards, and shooting pool. While ostensibly engaged in farming the 22.65 acres, and in raising stock (on pasture furnished rent free by plaintiff’s family), and although able to work, the defendant performed less and less of the labor required, either leaving the necessary tasks to be performed by the parties’ older sons, or letting them remain undone. The result was that the farm pro--duced little in the way of crops, and defendant contributed no money towards the' support of plaintiff and their children. The' evidence further shows that for a considerable number of years before their separation the entire burden of supporting the' family was thereby cast on plaintiff and the two older boys, and that by dint of hard work, aided by gifts of food from plaintiff’s sister, they managed to eke out a meager living. There was also evidence of physical violence sustained by plaintiff at defendant’s hands, of threats made by him to cut her throat with a razor and to strike her with a hammer, and of an attempt by defendant to obtain possession of checks mailed to plaintiff in payment of cream sold by her, which was a major source of her slender and inadequate income.

It is apparent from the record that defendant’s misconduct, his lack of industry, and his neglect of and failure to support his family cast a heavy and abnormal burden on plaintiff, and eventually led to an estrangement. Plaintiff testified that defendant voluntarily stopped having marital relations with her, which defendant did not dispute. Both parties related that for some time before the separation occurred defendant ceased sharing their bedroom, and slept in the room occupied by their sons. Plaintiff stated, and defendant did not deny, that the arrangement was defendant’s idea. Defendant testified that for almost a year before he left home plaintiff refused to cook meals for him, to make his bed, or to launder his clothes. Plaintiff admitted1 on cross-examination that she had not performed such tasks for the five or six months before defendant’s departure, her explanation being that she was overworked and worn out from her efforts to perform her household tasks and also support her family, and that defendant’s conduct caused her to reach the point where, * * * I couldn’t take it any longer. * * *»

Shortly before defendant left home he finally sought and obtained employment, at the TNT plant, but even after that he failed to contribute anything to the support of plaintiff or his family. About the middle of December, 1941, defendant stayed out all night, returned about one o’clock of the following afternoon, packed his belongings, and departed from the family home, never to return. At that time Jordan, the oldest child, was 20, Glenn was 16 or 17; the two daughters were 11 and 9; and Donnie, the youngest son, was 7. During the years which followed the defendant, by his own admission and though gainfully employed until 1959 or 1960, never contributed a cent to the support of his wife or his children. When asked by his own counsel as to how he figured they were going to get by, his explanation was: “They had the income off the 22.65 acres in the bottom, the income off the property where they lived. They didn’t have to pay nothing but the light and tax bill. They raised chickens, had the pasture down below that they run cattle in, they sold milk, eggs, chickens and everything else.”

Defendant first contends that the court erred in awarding plaintiff a divorce on either of the grounds alleged in her petition. As we read his brief, he appears to argue, as to the grounds of indignities, that plaintiff was not an innocent party because she admittedly refused to cook for defendant or otherwise take care of his wants for a period immediately before the separation. It is crystal clear from the evidence that plaintiff patiently endured defendant’s mistreatment, shiftlessness and neglect for years; that she was overburdened with the cares and responsibilities which were cast on her by defendant’s failure and refusal to perform the normal duties of a husband and father; that eventually (and not surprisingly), her forbearance and endurance of defendant’s mistreatment of her came to an end; and that her conduct and feelings toward plaintiff were induced and provoked by his derelictions and delinquencies. The law is not so unreasonable as to demand of an injured and long-suffering wife the patience of a Job, nor does the requirement of innocence contemplate proof of such exemplary and angelic perfection as to exclude any misconduct or unwise acts; all that she need show is that she has not been guilty of conduct constituting a ground or grounds for divorce. Simon v. Simon, Mo., 248 S.W.2d 560; L- v. N-, Mo.App., 326 S.W.2d 751. Plaintiff sustained that burden. We find no merit in defendant’s argument.

On cross-examination, immediately after testifying that she was worn-out from her efforts and had reached the point where “ * * * I couldn’t take it any longer * * plaintiff was asked whether it was her desire that defendant leave home. She replied that she hadn’t cared one way or another, that defendant had been “ * * * no pleasure”; and that she had once told defendant that if he “ * * * didn’t start paying us some money he could get up and go, and he took off as soon as he started making money at the TNT.” Defendant seizes upon these answers and argues that they show that plaintiff consented to the separation. As to plaintiff’s testimony that she didn’t care, there is nothing to indicate that she communicated her feeling to defendant at the time he left. Any undisclosed emotional reaction which she may have experienced, resulting from defendant’s intolerable treatment of her, did not constitute consent or acquiescence to the separation. Redford v. Redford, 162 Mo.App. 127, 144 S.W. 125. Her statement to him that if he did not start contributing to plaintiff’s support and that of their children he could leave was obviously made some time before he left. Considered in the light of plaintiff’s preceding testimony that her situation had become unendurable, we regard her remark as a protest against defendant’s failure to fulfill his duties, not as a consent to his subsequent abandonment of plaintiff.

Defendant next contends that in the light of defendant’s 'ability to pay, and in the absence of any evidence as to plaintiff’s needs or resources, the court erred in ordering defendant to pay plaintiff the sum of $4,500 as alimony in gross. According to the uncontradicted evidence, his only income was his Social Security benefit of $92 a month and what he could earn doing odd jobs. At the time of the trial his total assets amounted to approximately $6,500, consisting of his one-half interest as a tenant in common in the two acre tract (if and when the divorce became final), worth at most $5,000; his automobile, which he valued at different times at $700 or $800, and $1500; about $12 in cash; and a life insurance policy with a face value of $2,000, the cash surrender value of which does not appear in the evidence. On the other hand, as the defendant points out, there is an almost total lack of evidence concerning plaintiff’s circumstances. No testimony as to her age was given, though we may infer that she was no longer in the bloom of youth since the parties were married in 1920 and the trial occurred in 1962. But more importantly, there was no evidence introduced as to her present income, her current need for support, the state of her health, or the extent and value of her own means. All that can be gleaned by an exhaustive search of the record is that she is living in the home on the two acre tract and that she owns in her own name the 22.65 acres of bottom land she inherited in 1929, but neither the exact location nor the approximate value of that property was given. In addition, if and when the divorce becomes final she will also own, as will defendant, an undivided one-half interest in the two acre tract, worth $5,000.

Our statute on divorce, Section 452.070, RSMo 1959, V.A.M.S., provides:

“When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable * * ⅜ »

In construing this statute the Supreme Court, has said that under the laws of this state marriage is a contract, not a sacrament; that the marriage contract obligates the husband to support his wife as long as they shall live; but that by a decree of absolute divorce the marriage is dissolved and both parties are released and discharged from the mutual obligations imposed by the marriage — including that of the erring husband to support his aggrieved wife. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921. In Nelson v. Nelson, supra, 1. c. 1069, it was said that the permanent alimony allowed the wife by Section 452.070, * * * is the allowance of such a sum of money in gross or in installments as will fairly and reasonably compensate her for the loss of her support by the annulment of the marriage contract * * * ” and that “ * * * In this limited sense at least it may be deemed an assessment of damages in her favor for breach of the contract by the husband. * * * ” But in the subsequent case of Smith v. Smith, supra, 1. c. 923, the basis of an award was put on the broader sociological ground that, “ * * * in the interest of social welfare and justice the law has created a purely statutory liability incidental to divorce. Such is the alimony of today. When a divorce is decreed because of the husband’s fault the statutes authorize the court to’ impose liability on the husband, if it would be reasonable to do so, for the future maintenance of the wife. * ⅜ *»

It has long been the law of this state that Section 452.070 does not place a mandatory duty upon the court to award alimony to a prevailing wife, but leaves that issue to his discretion. Smith v. Smith, supra; Knebel v. Knebel, Mo.App., 189 S.W.2d 464. In determining whether alimony should be awarded, and if so, in what amount, numerous factors almost invariably enter into consideration, such as the financial status of the respective parties, including the character and extent of their individual estates; their incomes, obligations, and necessities; the contributions of each to the property accumulated during the marriage; the probable future prospects of each; their respective ages, health, and ability to engage in gainful occupations; their children, if any, and the disposition made with respect to their custody; the duration of the marriage, and whether it was one of affection or convenience; and the conduct ■of the parties, with particular regard to the cause of the divorce, and the relative or comparative responsibility of each therefor. Simon v. Simon, Mo., 248 S.W. 2d 560; Carr v. Carr, Mo., 232 S.W.2d 488; Knebel v. Knebel, supra. A wide latitude of discretion must of necessity be accorded the trial court in deciding the issues, but such discretion must be exercised with reference to established principles and upon a consideration of all of the circumstances of the particular case. Simon v. Simon, supra; Carr v. Carr, supra. In the instant case it is obvious that the court could not have considered all of the facts and circumstances, nor may we, for there is no evidence in the' record as to plaintiff’s financial condition or the value of her individual estate; her income, obligations and needs; her exact age; or the condition of her health. In this state of the record we have no alternative but to hold that the award of alimony was improperly made and amounted to an abuse of judicial discretion. Simon v. Simon, supra; Landreth v. Landreth, Mo.App., 326 S.W.2d 128; Harriman v. Harriman, Mo. App., 281 S.W.2d 566.

Defendant also complains about the allowance of $650 to plaintiff for attorney’s fees. "What we have said regarding the alimony award is likewise applicable to that allowance, for the same considerations govern the payment of both. Simon v. Simon, supra; Arnold v. Arnold, Mo., 222 S.W. 996; Graves v. Wooden, Mo.App., 291 S.W.2d 665.

Defendant’s final point is that the court erred in permitting the plaintiff to testify, over defendant’s objections, to indignities committed more than five years prior to the filing of plaintiff’s petition because they were barred by the statute of limitations. In his printed argument, however, defendant also refers to the ten year statute, and seems to rely on both, without citing a single pertinent case. Defendant admits that there is nothing in our laws on divorce, Chapter 452, which supports his theory, and likewise concedes that there is no express reference to an action for divorce in the statutes of limitations governing personal actions, Sections 516.-100 through 516.370. What he ultimately contends, as best we understand him, is that since Section 516.100 states that all “civil actions” can only be commenced within the periods prescribed, and Section 516.-110(3) provides that there shall be commenced within ten years, “Actions for relief, not herein otherwise provided for,” plaintiff’s action was barred by the ten year statute.

Our examination of the authorities has disclosed no Missouri case on the subject, and but few elsewhere. Bishop, in his work on Marriage, Divorce and Separation, Vol. 2, Ch. XII, states that the ecclesiastical courts of England did not recognize the statutes of limitations as an absolute bar to a tardy action for divorce, but reserved the right to withhold the decree when the applicant had been guilty of unreasonable delay in presenting or prosecuting his petition; and that this reservation was carried forward into the English Divorce Act which took effect in 1858. And see Garris v. Garris, 188 N.C. 321, 124 S.E. 314. Bishop also states the general rule to be that statutes of limitations in this country, “in the mere ordinary words common in our States, are not extended by interpretation to suits for divorce. * * *” (Bishop, Sec. 426). Some of the states have adopted statutes which expressly limit the time within which a suit for divorce or separation must be brought after the matrimonial offense is committed or discovered. Smedley v. Smedley, 30 Ala. 714; Berkley v. Berkley, Sup., 142 N.Y.S.2d 273; Wickliff v. Wickliff, 191 Ark. 411, 86 S.W.2d 553. We find a division of opinion among the remainder of those courts which have passed upon the issue of whether a general or residual statute of limitations, such as Section 516-110(3), is applicable to an action for divorce. For those holding that such a statute is not a bar see Mosely v. Mosely, 67 Ga. 92; Tufts v. Tufts, 8 Utah 142, 30 P. 309, 16 L.R.A. 482; Flynn v. Flynn, 149 Ga. 693, 101 S.E. 806; Johnson v. Johnson, 50 Mich. 293, 15 N.W. 462; Kittle v. Kittle, 86 W.Va. 46, 102 S.E. 799. For cases to the contrary see Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123; Garris v. Garris, 188 N.C. 321, 124 S.E. 314.

However, even in states having a statute of limitations expressly applicable to divorce, as well as in those holding that their general statutes apply, it is held that a continuing offense is not barred. Wick-liff v. Wickliff, supra; Franzetti v. Franz-etti, supra. In the instant case the indignities shown by plaintiff included those of defendant’s failure to support her, Lowe v. Lowe, Mo.App., 229 S.W.2d 7; Becker v. Becker, Mo.App., 155 S.W.2d 904; and abandonment, which has been held to be an indignity, Smiley v. Smiley, Mo.App., 207 S.W.2d 862. Both continued until the filing of the petition. Furthermore, plaintiff alleged and proved defendant’s desertion as a second and independent ground for divorce. Defendant tacitly concedes that desertion is a continuing marital offense, but argues that the desertion was “stopped,” after about 16 or 17 years, because defendant testified that four or five years before the trial he “said something” to plaintiff about returning and plaintiff “* * * said it would be just like it was before so that was it.” Of course, the statutory period of one year had long since expired. Furthermore, if made at all, defendant’s casual and cursory reference to the possibility of his return, without any effort to convince plaintiff of his repentance, of the sincerity of his intentions, or of any promise to mend his ways, can scarcely be considered a bona fide and good faith attempt to effect a reconciliation. Creasey v. Creasey, 168 Mo.App. 68, 151 S.W. 219.

For the reasons stated, the Commissioner recommends that the judgment awarding plaintiff a divorce be affirmed; that those portions ordering defendant to pay to plaintiff $4,500 as alimony in gross and $650 as attorney’s fees be reversed; and that the cause be remanded for such further action as to such allowances as the plaintiff may desire to take.

PER CURIAM.

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

Accordingly, judgment awarding plaintiff a divorce is affirmed; those portions ordering defendant to pay to plaintiff $4,-500 as alimony in gross and $650 as attorney’s fees are reversed; and the cause is remanded for such further action as to such allowances as the plaintiff may desire to take.

WOLFE, Acting P. J., ANDERSON, J., and JACK P. PRITCHARD, Special Judge, concur.


author: RUDDY, Presiding Judge.

text:
    Harold D. MORGAN, (Plaintiff) Appellant, v. Dr. Henry ROSENBERG (Defendant) Respondent.
    No. 31106.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Hal B. Coleman, Coleman, Ross & Cekov-sky, Clayton, William L. Mason, Jr., St. Louis, for appellant.
    Guilfoil, Caruthers, Symington & Mon-trey, John P. Montrey, Koenig, Dietz & Sie-bels, Paul H. Koenig, St. Louis, for respondent.
   RUDDY, Presiding Judge.

This is an action to recover damages resulting from the alleged malpractice of defendant, a physician and surgeon. The jury returned a verdict for $9000. Defendant’s motion for a new trial was sustained on the ground that the trial court erred in giving plaintiff’s Instructions No. 1 and No. 4 and plaintiff appealed.

Defendant contends that plaintiff did not make a submissible case for the jury and, therefore, plaintiff’s claims of error are moot. This contention of defendant requires a full summation of the evidence. Before stating the evidence, we set out the pertinent allegations of the petition.

Plaintiff alleged that he consulted the defendant and was told by defendant “that it was necessary in the opinion of the defendant to remove plaintiff’s gallbladder; * * and that in fact did operate on this plaintiff on the 4th day of June, 1958.” It is further alleged by plaintiff in said petition that defendant “did cut open his abdomen and at said time removed plaintiff’s appendix but carelessly and negligently failed to remove plaintiff’s gallbladder, thereafter sewing up the opening in plaintiff’s abdomen.”

It is then alleged that defendant told plaintiff that he had removed plaintiff’s gallbladder and appendix. It was further alleged in said petition, “that thereafter on or about the 22nd day of July, 1958, this plaintiff ascertained that the defendant had not removed his gallbladder and thereupon said plaintiff took prompt action to alleviate his pain, suffering, weakness and disability and was obliged to undergo additional major surgery and have his abdomen opened for a second time to have his gallbladder removed.”

In specifying the negligence charged, among other items, plaintiff alleged, “that the defendant did carelessly and negligently fail and omit to remove the gallbladder ■of the plaintiff.”

The evidence shows that plaintiff’s wife called the defendant and told him that her husband was having “severe pains in his chest.” Defendant told her he would see her husband at the Park Lane Hospital. Plaintiff appeared at the hospital about the 1st or 2nd of June, 1958. Plaintiff told defendant that he had pains in his chest and under the ribs. Defendant examined plaintiff and told him that his gallbladder would have to be taken out and that the operation would entail “a complete removal of the gallbladder.” Defendant told plaintiff’s wife that her husband’s gallbladder was badly infected and that he recommended surgery as soon as possible. Thereafter, the surgery was performed and after the operation defendant told plaintiff that he had taken out the appendix of plaintiff and that he had taken his “gallbladder out and had clipped the end of the ducts.” After the operation defendant told the wife of plaintiff, “Mrs. Morgan, your husband is doing fine. * * * I operated on him and just as I thought, his gallbladder was bad, * * * but it didn’t have stones, * * * it was quite a tough job, because it was an extra large gallbladder and twisted up into his liver, and it was quite complicated.” Defendant told plaintiff’s wife that he had removed the gallbladder from her husband.

After the operation plaintiff stayed in the hospital on a liquid diet for seven to nine days during which time he had no pain in his chest. Thereafter, he came home. At some time after his return home, his wife prepared some mashed potatoes and after eating some he experienced the same kind of pain he had prior to the surgery. The date of this experience is not given by plaintiff in his testimony. He returned to the Park Lane Hospital and after an examination by the defendant, plaintiff was told by defendant that his tonsils should be removed. Defendant told him that the pain in his chest and behind his right shoulder blade was from his tonsils. Plaintiff submitted to an operation for the removal of his tonsils and adenoids and after four to six days in the hospital he left for home. While in the hospital on this occasion plaintiff was placed on a “gallbladder diet” and experienced no further pain. Some time thereafter plaintiff asked defendant if he could go on a fishing trip and defendant told him that he did not want him to go and that he did not want him to have any exertion and told him to stay at home. Plaintiff disregarded this advice and went fishing at Malden, Missouri, and upon arriving there suffered another attack of pain. He returned from Malden, Missouri, and again entered the Park Lane Hospital. After four days in the hospital on a liquid diet he was permitted to go home. No surgery was performed on this occasion. When plaintiff arrived home after this third visit to the hospital he said that “the wife had cooked a big dinner, a beef roast, I very well remember, and I eat quite a bit. I was pretty hungry, and then that night I began to have another attack.”

Thereafter, plaintiff’s wife contacted Dr. Kellett and was instructed by him to bring plaintiff to the Alexian Brothers Hospital. When he got to the Alexian Brothers Hospital his complaints were the same as they were during the previous two months, namely, the attacks of pain in the chest and behind the right shoulder blade. Examination and tests were made of plaintiff by Dr. Litzow and Dr. Kellett. Thereafter, an operation was performed by Dr. Litzow. Plaintiff remained in the Alexian Brothers Hospital approximately one week and after the surgery at this hospital he never had any more pain such as he had experienced before. Since returning to his. home from the Alexian Brothers Hospital he has eaten any and everything he wanted to and did not experience any pain.

The records of the Alexian Brothers Hospital were introduced in1 evidence by plaintiff. The record was dated July 23, 1958, and showed an admission diagnosis, “Gallbladder colic may be due to stones.” It further showed a pre-operative diagnosis of “cholecystitis and cholelithiasis.” Cholecys-titis is a term which means inflammation of the gallbladder and cholelithiasis means the presence of gallstones. A note in the record under gross findings was the following: “Anesthetic started 10:50 A.M. This patient had had a previous gallbladder operation which supposedly, according to the patient’s statement, entailed the removal of his gallbladder. However, a visualization by means of a radiopaque dye shows a gallbladder with stones.”

Under the heading “Technique” the hospital records showed that “the abdominal cavity was entered. There were multiple and massive adhesions around the gallbladder bed and these were freed.” Dr. Robert Kurth, a witness for plaintiff, explained this entry as follows: “When there is a state of inflammatory pain in a structure such as this, which lies in close proximity to the duodenum, to the stomach, to the transverse colon and other structures in this area, there is a tendency for the inflamed part to become adherent to the surrounding structures, by virtue of the inflammation. These are called adhesions.” Under the heading of “Technique” the hospital record further showed the following, “The portion of the gallbladder that was visualized on X-ray was easily found. The common duct was exposed.” The hospital record further showed that “the gallbladder remnant was removed from its bed with the two stones.”

The only medical witness to testify in behalf of plaintiff was Dr. Robert Kurth who testified that he is a medical doctor and that his work is limited to general surgery, primarily in the abdomen. He described the structure of the gallbladder as a hollow sacular type structure with a duct or tube which communicated with the common bile duct and said the primary function of the gallbladder was to store bile. He further testified that when one has pain associated with the gallbladder it would generally be located in the area of the ribs, in the right high abdomen which he described as the right upper quadrant. He said the eating of fatty foods, fried foods, gas-forming vegetables and certain other foods would tend to precipitate a bout of gallbladder pain if there is a diseased gallbladder. When he was asked what causes the formation of gallstones defendant’s counsel objected to it on the ground that the evidence solicited was outside the scope and issues found in the pleadings and was a purely general question and improper. This objection was overruled. We add here that a similar objection was made numerous times throughout the trial. The witness was asked if the gallbladder or the associated ducts can regenerate themselves after a gallbladder has been removed and the witness answered: “The answer to my knowledge is no.”

He stated that when the term cholecystec-tomy is used it implies a complete removal of the gallbladder. The witness explained that the cystic duct is the duct from the gallbladder communicating with the common duct. He said the cystic artery is the artery that supplies the blood to the gallbladder and is a branch of the hepatic artery.

A hypothetical question was propounded to this medical witness which contained many assumptions, among which were: that a doctor making an examination of a patient tells the patient that his gallbladder is diseased, and that it must come out by surgery and after the operation tells the patient he has removed all of his gallbladder. The question further assumed that the patient has the same pains after the operation as he had before, and that later surgery is performed by another doctor and surgeon who removes the gallbladder remnant with two stones, and it is further assumed that after the operation the pain in the chest and on the right side of the patient has subsided. The witness was then asked: “Now do you have an opinion as to whether or not the doctor, in performing this surgery, in failing to remove all of the gallbladder and stones, exercised the skill and care which would ordinarily be exercised by a general practicing physician who performed surgery of this nature in this community?”

Defendant objected to this question. The substance of his grounds for the objection was that the question assumed facts which were not in evidence and assumed facts which were outside the scope of the pleadings. In support of his ground that the question assumed facts which were not in evidence, defendant stated there was no showing that defendant held himself out as a specialist in surgery; no showing that one month later a second operation was performed and further stated that there was a contradiction in that at one place in the hypothetical question plaintiff mentions taking out a gallbladder and at another place he mentions taking out only a remnant of the gallbladder. There was no enlargement on the ground that the question assumed facts which were outside the scope of the pleadings. The objection as stated was overruled by the court and the witness then answered, “I would have to say that the first surgeon apparently did not remove this intact, and apparently it was not up to the standards of that particular area.” The medical witness further answered: “Well, in this hypothetical case I would say that the ordinary skill and care was not exercised.” He then stated that if one exercises the ordinary skill and care and follows the standard procedure of this particular operation, the entire gallbladder should have been removed.

This witness said he was familiar with the situation in which there is a dilation of the cystic duct stump following a gallbladder removal. When asked if this was an ordinary complication in this type of surgery, he answered, “I would say not a common complication.” He added that it does occur, however, and occurs with the best of surgeons even “where they are in that specialty.” He said that sometimes the surgeon will enter the abdomen and for a good reason will not remove tissue which the surgeon previously thought would be removed. He said that stones could form in the common duct and in the hepatic duct and when asked if these stones, in the matter of 40 or 50 days following surgery, could move into that cystic stump, he answered, “that would be in the realm of possibility. Q. It happens, doesn’t it, Doctor? A. Not in my experience.” Later on he said it can happen. When asked if one in every 3000 persons studied by anatomists have a duplication of the gallbladder in their body, he answered it was true. In the case of the duplicated gallbladder which he referred to as a “pseudo structure” he said that it could be visualized on the cholangiogram or x-ray procedure. He said that gallstones do require some time to form but could not give the time element. However, he said he could not conceive of one of any size forming in four or five weeks. He admitted, however, that stones can migrate from other areas and move down into the dilated cystic duct or the pseudo gallbladder. However, on redirect examination he said that stones would not move into the cystic duct if in the operation the cystic duct had been cut off and clamped of? by a surgeon. This concluded the evidence in plaintiff’s case.

Defendant testified that he examined plaintiff about June 1, 1958, and based on this examination and others made and tests performed and consultations with other medical men, his diagnosis “was acute cholecystitis and appendicitis and myocardial damage.” He said that evidence of the myocardial damage came from the interpretation of Dr. Makada of his electrocardiography. He operated on plaintiff June 4, 1958, at the Park Lane Hospital. He testified to the preliminaries in connection with the operation and identified the various organs in the abdomen and described the relationship of the gallbladder to the cystic duct. He then said, “I saw this gallbladder, large and greenish in col- or, and pretty good size. Now, in addition to what I saw on this particular patient was that the omentum, which is an apron of body tissue that is nature’s defense mechanism or nature’s watchdog, whenever there is any irritation at any place, the omentum goes down and attaches to it and becomes adherent. That is what an adhesion is. And there was on the fundic portion, and also on the lower portion, .attachments of the omentum, which had to be removed before the gallbladder was attempted to be removed.”

He explained his exploration of the vital areas around the gallbladder and then testified, “So before I attempted to remove the gallbladder, I ascertained myself of the contents as well as I could, and also of the narrow portion down here that is the cystic duct or tubule, and found no evidence by my fingers of stones.” He said that he had anticipated stones and so declared himself on the hospital chart but that he did not find any. In describing the removal of the gallbladder he testified, “I made a little cleavage point there, with a knife, and with a sponge forceps grabbed ahold of it, and with my finger and gauze, shelled it out, not with a knife but just with nature’s cleavage line, down to where I could see the cystic duct begin and down as far as where the cystic artery could be felt by my fingers, and its pulsation.”

He said he placed the ligature or tie close to the union of the cystic duct with the gallbladder but far enough away so there would be no leakage or spillage of bile into the abdomen. Thereafter, he removed the appendix of plaintiff and stated that he put the gallbladder and the appendix in a pan that was taken to the laboratory to be examined by the pathologist.

Plaintiff came under the care of the defendant at a later date, namely, June 24, 1958, and was discharged from the hospital June 28, 1958. On this visit of plaintiff to the Park Lane Hospital defendant said he removed the tonsils and adenoids of the plaintiff. The defendant testified that on this occasion the hospital records showed no complaint of lower or upper abdominal pain.

Defendant maintained that he removed the gallbladder “intact.” When asked about the pain plaintiff said he had after he was discharged from the Park Lane Hospital the first time, defendant answered, “Pain following the operative procedure that I performed on Harold Morgan is many times attended with some post-operative pain. The length of time in which it occurs, and the degree to which it occurs, if it does occur, depends upon the factors of a person’s food and gas formation, and the respect that the person gives his body by freedom from activity * * *. It is very common to have pain following a gallbladder operation. It is very, very often.” In connection with the plaintiff’s third visit to the Park Lane Hospital, defendant read his final diagnosis from the hospital record, which showed, “(1) neurasthenia with neuro-circulatory asthenia, cause not determined. (2) vasomotor instability.” The defendant explained that neurasthenia is a weakness of the nervous system. The hospital record showed that on plaintiff’s third visit he complained of pain in the chest above the nipple line and in the upper abdomen under the ribs.

Drs. Edwin F. Vitt, .Dean Sauer and Falls B. Hershey testified as witnesses in defendant’s case. A composite summary of their testimony shows that surgery was their specialty and that Dr. Hershey in addition to following the specialty of surgery was an associate professor in surgery on the teaching staff of Washington University in their School of Medicine. Their testimony showed that there were probably many procedures followed in an operation for the removal of a gallbladder; that where the cystic duct is short an accepted procedure necessitates tying off part of the gallbladder and that many surgeons still leave a small amount of gallbladder in the area of the cystic duct to safeguard anything that could happen to the common duct. Their testimony further showed that there is always a possibility the cystic duct may dilate and that a dilated cystic duct may give the appearance of a gallbladder on an x-ray. Their testimony further showed that stones may be hidden in the biliary tree and after surgery descend to the area of the cystic duct. They said there was no way that the surgeon could control such a development. All agreed that it was not unusual to have the pain described by plaintiff following the operation. Dr. Hershey stated that pains following the first operation might possibly come from the remainder of the gallbladder within the person or might come from new stones or from an infection. Dr. Vitt testified that the cystic duct is also referred to as gallbladder tissue. Dr. Hershey testified that it is hard to say “exactly where one ends and the other begins,” i. e. where the gallbladder ends and the cystic duct begins. He further testified that he could not distinguish a reformed gallbladder from a so-called remnant, stating “I don’t know any way to tell whether it is formed again or whether it was left before. I don’t know how. If I were operating on such a patient, not knowing exactly what happened before, it could as easily form again as it could have been left. They both look exactly the same. They both would be a sack containing bile attached to the location there.”

Dr. Charles L. Klenk, a pathologist at the Park Lane Hospital, testified that he prepared and signed the report of the pathology contained in the hospital records and that he personally examined the matters referred to in the report. He testified that the gallbladder referred to in the report was that of the plaintiff and that it was intact. He said that if the gallbladder had been cut off somewhere the hospital report would not show this fact and as far as he was concerned he merely had a gallbladder and could not tell at this time what the bladder looked like other than what was shown in the report.

Dr. Sam John Merenda, offered as a witness by defendant, testified that he was a physician specializing in radiology. After an examination of some of the x-ray pictures taken at the Alexian Brothers Hospital prior to the operation performed by Dr. Litzow, he stated he could not identify a gallbladder on any of the pictures and gave it as his opinion that the pictures disclosed the existence of a dilated cystic duct and two gallstones. He testified that if there was a gallbladder present in plaintiff at the time the pictures were taken, it would show up on the x-ray pictures.

Plaintiff’s verdict directing instruction required the jury to find:

“ * * * that the defendant failed to remove all of said gallbladder, and that it was thereby necessary for plaintiff to undergo further surgery for the removal of a remnant of his gallbladder and two stones therein, and to thereby sustain prolongation of his symptoms and injury to his person, if you so find; and if you further find that in so failing to remove all of plaintiff’s gallbladder the defendant did not exercise such skill and care as is ordinarily exercised by medical doctors engaged in general practice and surgery, in good standing and practicing in this community; and that the defendant was negligent, if you so find, and if you further find that the prolongation of plaintiff’s symptoms and injury, if any, caused by the need for additional surgery, occurred as a direct and proximate result of said negligence, then your verdict should be in favor of plaintiff * *

The pleadings, the evidence and the verdict directing instruction present a somewhat confused picture. The pleadings charge that defendant did carelessly and negligently fail and omit to remove the gallbladder of the plaintiff. The evidence shows that the gallbladder was removed except a remnant of same which was removed with two stones in the second operation that took place in Alexian Brothers Hospital. The sole medical witness for the plaintiff testified that defendant did not exercise the required skill and care in performing the surgery in the first operation in failing to remove all of the gallbladder and stones. In this connection we hasten to point out that there is not a scintilla of evidence in the record showing the existence of stones in the area of the gallbladder at the time defendant performed the first operation in the Park Lane Hospital.

Plaintiff’s medical witness did testify that if a surgeon exercises the ordinary skill and care and follows the standard procedure of this particular operation, the entire gallbladder should have been removed. We have no way of telling from this record whether this medical witness in so answering the hypothetical question propounded to him meant to include the stones, which were included in the question calling for his opinion as to whether or not the defendant in performing the surgery exercised the requisite skill and care. Adding to this apparent confusion was the instruction heretofore recited which required the jury to find that it was necessary for plaintiff to undergo further surgery for the removal of a remnant of his gallbladder “and two stones therein.” It is true that -in another part of the instruction the jury was required to find only that defendant failed to remove all of plaintiff’s gallbladder and in so failing did not exercise such skill and care as is ordinarily exercised, yet, in the concluding sentence of the instruction the jury was told, “if you further find that the prolongation of the plaintiff’s symptoms and injury, if any, cawed by the need for additional surgery occurred as a direct and proximate result of said neglect, * * * ” then the jury was instructed that its verdict should be in favor of the plaintiff. We think the confusion created by the evidence, particularly the answer to the hypothetical question propounded to Dr. Kurth, was compounded when the court required the jury to find that it was necessary for plaintiff to undergo further surgery for the removal of a remnant of his gallbladder and two stones therein.

Malpractice may result either from injury to a plaintiff sustained as a result of the physician or surgeon’s want of the requisite knowledge and skill or from injury resulting from the negligent omission or failure to use and exercise the necessary care and skill which is a charge of negligence. Williams v. Chamberlain, Mo., 316 S.W.2d 505, 1. c. 510; Gunter v. Whitener, Mo.App., 75 S.W.2d 588. In the instant case plaintiff charged negligence on the part of the defendant.

The rules relating to burden of proof in negligence actions are applicable in an action against a physician or surgeon for malpractice and plaintiff in this case has the burden to establish every fact necessary to constitute his cause of action. The burden is upon the plaintiff to prove negligence and plaintiff’s burden embraces not only proof of negligence but proof also that the negligent act or acts caused the injury. Williams v. Chamberlain, supra, 1. c. 511 of 316 S.W.2d.

In reviewing the contention of defendant that plaintiff did not make a sub-missible case for the jury, we must view plaintiff’s evidence and all reasonable inferences therefrom favorably to plaintiff and disregard evidence unfavorable to plaintiff.

In the instant case where the •exercise of proper skill and care on the part of the defendant is in issue, expert medical testimony is essential. In the case •before us a submissible case may only be made by expert medical testimony for •otherwise a jury may not know (or guess) whether defendant’s acts did or did not ■conform to the required standards. Williams v. Chamberlain, supra; Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600. The reason for such a rule becomes obvious because the ordinary layman can have no knowledge in such a case whether the proper treatment was given or procedure followed by the physician and surgeon. In defining the rule governing the care required of a physician, the court said in Williams v. Chamberlain, supra:

“While the rule has been stated with slight variations from time to time, it may properly be said that a physician is required to use and exercise that degree of care and skill used and exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances. See generally: (Cases cited) * * *. In stating or approving definitions, however, our courts have often included such additional terms as ‘in * * * similar communities’ * * * or ‘practicing in similar localities’ * * *. We have no quarrel with the inclusion of the element of ‘similar localities’ in the definitive requirement and probably it is properly included. So long as the physician properly exercises his skill and the requisite degree of care, he is not liable for an honest error of judgment.” (316 S.W.2d 1. c. 510).

Plaintiff, evidently aware that a submis-sible case could only be made against defendant by expert medical testimony, called Dr. Robert Kurth. However, defendant contends that plaintiff elicited a meaningless expert opinion from this medical witness. He contends the opinion was meaningless because it was based upon assumed facts not supported by the record evidence. He contends that the hypothetical question asked assumed that the defendant failed “to remove all of the gallbladder and the stones.” Defendant points out that upon this assumption and others contained in the hypothetical question Dr. Kurth testified that the first operation “apparently” was not up to standards and finally “that the ordinary skill and care were not exercised.” As we pointed out earlier, there is no evidence in the record that gallstones were present when defendant first performed surgery. As pointed out by the defendant, the only evidence in the record is that there were no gallstones when defendant performed the operation at the Park Lane Hospital.

Dr. Kurth testified that stones can migrate from other areas into the cystic duct area and also testified that it was possible for small stones to form. The only expert medical opinion upon which a sub-missible case could possibly be predicated was that given by Dr. Kurth and his opinion was based on an assumption that the hypothetical surgeon failed to remove all of a gallbladder and existing gallstones. His answer was, “Well, in this hypothetical case, I would say that the ordinary skill and care was not exercised.” It is true that he also said that if one exercises the ordinary skill and care and follows the standard procedure of this particular operation, the entire gallbladder should have been removed. In this part of his testimony he makes no reference to the gallstones. We have no way of knowing, nor did the jury, whether his reference to the entire gallbladder included within it existing stones.

Where, as here, the only expert medical opinion favorable to plaintiff is based on a hypothetical case which assumes that the surgeon failed “to remove all of the gallbladder and stones” coupled with a required finding in plaintiff’s instruction that it was “necessary for plaintiff to un-dcrgo further surgery for the removal of a remnant of his gallbladder and two stones therein,” we think the evidence and the instruction would raise in the minds of the jury the question whether they were to consider defendant as failing to exercise the required care and skill in the failure to remove all of the gallbladder (the remnant) and the stones or want of skill and care on the part of the defendant in failing to remove only “all of the gallbladder.” Such a confused situation presented to lay jurors can only result in a verdict based on conjecture and surmise. We think this is so despite the testimony of Dr. Kurth wherein he said that if one exercises the ordinary skill and care and follows the standard procedure of this particular operation, the entire gallbladder should have been removed. As we said before, we have no way of knowing whether this medical witness in his reference to the entire gallbladder intended to include within it existing stones.

In further support of his point that plaintiff did not make a submissible case for the jury, defendant contends that there is no expert medical evidence showing that plaintiff’s subsequent state of ill health was directly or proximately caused by the alleged failure on defendant’s part to remove all of the plaintiff’s gallbladder. In support of this contention defendant cites Pedigo v. Roseberry, supra. In that case the Supreme Court said:

“The mere fact that injury follows • negligence does not necessarily create liability. The burden of establishing by substantial evidence appellants’ negligence as charged and the necessary causal connection between such negligence and the injury alleged rested upon respondent. And, if the evidence merely established that the injury might have resulted from several causes for some but not all of which appellants were liable, the necessary causal connection remained in the realm of conjecture and speculation and respondent’s case failed.” (102 S.W.2d Í. c. 608.)

The evidence shows that plaintiff suffered the same type of pains and in the same general area after the first operation as he had prior to the first operation and that the pains ceased after the last operation. The only expert medical testimony in behalf of plaintiff in this connection was that contained in the hypothetical question wherein Dr. Kurth was asked to assume that the patient had the same pains after the operation as he had before. This appears to be sufficient evidence to support a submission of defendant’s acts,, if found to be negligence, as a cause of plaintiff’s subsequent ill health. However, here again, we are met with the same confusion we discussed heretofore, because the medical expert’s opinion in answer to the hypothetical question was based on the assumption that in the second operation a remnant of a gallbladder was removed to>-gether with stones.

On numerous occasions throughout the trial defendant objected to questions that called for evidence “outside the scope of the pleadings” and the trial court overruled these objections. Some of the objections specified the evidence sought to be elicited that defendant claimed was outside the scope of the pleadings. As pointed out by us in summarizing the testimony of Dr. Kurth, when he was asked by plaintiff’s, counsel what causes the formation of gallstones, defendant’s objection on the ground the evidence solicited was outside the scope of the pleadings was overruled. It is true-that on other occasions when a similar objection was made, the basis of the objection, was that the question concerned a gallbladder remnant, whereas the petition merely charged defendant with failure to remove-the gallbladder. We think evidence showing-the failure to remove a gallbladder remnant was within the purview and scope of the-pleadings, whereas the evidence on the part, of plaintiff showing the removal of gallstones, in addition to the remnant of the gallbladder, was outside the issues posed by the-pleadings. For this reason the court erred in-overruling the objections that were directed to the effort of plaintiff to bring into the case the failure of defendant to remove gallstones when he performed the first operation. As we have pointed out, there is no evidence showing the existence of gallstones at the time the first operation was performed. We have pointed out that this error in the admission of the evidence was carried into plaintiff’s verdict directing instruction. In the case of State ex rel. Central Coal & Coke Co. v. Ellison et al., 270 Mo. 645, 195 S.W. 722, 1. c. 724, the Supreme Court said:

“When a trial court admits evidence (erroneously) beyond the issues made by the pleadings and then instructs (erroneously) upon such evidence, it is requiring the defendant to meet an issue of which it had no notice by the service of process and the petition. The defendant is entitled to know from the petition just what he is called upon to defend, and we cannot say that it is harmless when he is called upon to defend (without notice) a different negligent act.”

We think the introduction of evidence of the removal of gallstones in the second operation and the inclusion in the hypothetical question propounded to Dr. Kurth of the assumption that defendant failed to remove the two gallstones together with the remnant of the gallbladder when he performed the operation in question was error because evidence of the failure to remove the gallstones was an issue beyond the scope of the pleadings and one which defendant should not have been called upon to meet.

The trial court apparently was aware of its error when it sustained defendant’s motion for a new trial and gave as its ground for such action error in giving plaintiff’s verdict directing instruction. The court gave as one of its reasons for sustaining the motion for new trial the grounds set out in defendant’s motion for new trial under paragraph (p). The court directed particular attention to subparagraph 5 of said paragraph (p) which contended that the instruction was broader than the evidence and that there was no substantial evidence of causation. The court in sustaining defendant’s motion for new trial also included all of the other objections under paragraph (p), some of which charged that the instruction submitted a theory of negligence which was beyond the scope of plaintiff’s petition. We think that because of the erroneous admission of the evidence concerning the gallstones and the inclusion of this erroneous evidence in plaintiff’s instruction No. 1, this case should be remanded for a new trial. We are aware that it was incumbent upon plaintiff to adduce evidence sufficient to make a submis-sible case. We believe that this record shows that upon a retrial of the case if reference to the removal of the gallstones is omitted in the hypothetical question propounded to Dr. Kurth and all evidence concerning the removal of the gallstones is omitted, that plaintiff can make a submis-sible case if Dr. Kurth again gives it as his opinion that the defendant should have removed the entire gallbladder of the plaintiff when the first operation was performed and that failure to do so was a failure to exercise ordinary skill and care under the circumstances.

Significantly absent from this record is the testimony of Dr. Litzow, the surgeon who removed the gallbladder remnant and the stones. The attorney for plaintiff informed the trial court that he had “a subpoena out” for Dr. Litzow but had been unable to contact him. He also informed the court, “I am trying to get ahold of Dr. Litzow, and I can’t get him in, to be right honest about it.” The apparent failure of this doctor to cooperate in this proceeding is a matter of concern to this court. We are aware of the difficulty that lawyers face in procuring the testimony of some medical men in this type of action. We believe that the testimony of Dr. Litzow is very important to the proper administration of justice in this case. According to the record, he performed the second operation and he is the only one, together with Dr. Kellett, who can possibly tell the story about the gallbladder remnant found in plaintiff, its size, its condition, etc. It seems that the testimony of this witness could either exculpate the defendant from the charge of the petition or assist the plaintiff in a proper recovery. We think this doctor’s duty as a citizen and as one who should be interested in the proper administration of justice transcends any feeling, protective or otherwise, he may entertain for a member of his profession. On a retrial of this case his testimony should be made available to the court and jury.

The trial court in ordering a new trial gave as an additional ground its error in giving Instruction No. 4, which was a measure of damage instruction complained of by defendant, on the ground there was no evidence that the expenditures for the special damages were reasonable. There is no need to discuss this instruction. The missing evidence, if available, we are sure will be supplied in the next trial.

The order and judgment of the trial court sustaining defendant’s motion for new trial is affirmed.

WOLFE and ANDERSON, JJ., concur.