text:
    Charles Oliff WREN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.
    No. 30383.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.

      V. James Ruddy, St. Louis, for appellant.
    Gray & Jeans, Charles E. Gray, St. Louis, for respondent.
   BRADY, Commissioner.

This appeal arises out of a suit for damages for personal injuries which resulted in a verdict for the respondent in the amount of $9,000. We will hereinafter refer to the parties by their designation at the trial. The defendant here contends: (1) that the trial court abused its discretion in overruling defendant’s objection and motions for mistrial based upon plaintiff counsel’s interjection of insurance into the case; (2) that the trial court prejudicially erred in refusing defendant’s offered Instruction “D”; (3) that the trial court prejudicially erred in allowing plaintiff to read into evidence, over the defendant’s objection, plaintiff’s interrogatories No. 2 and No. 2A and the answers thereto; (4) that the trial court abused its discretion when it allowed plaintiff’s attorney to pass plaintiff’s Exhibit 7 to the jury as supposed rebuttal evidence; (5) that in giving Instruction IX the trial court prejudicially erred; and (6) that the verdict and judgment was so grossly excessive as to shock the conscience of the court, to be conclusive proof of passion and prejudice on the part of the jury, and to require a new trial or a substantial remittitur.

This appeal results from the second trial of this case. See Wren v. St. Louis Public Service Co., Mo., 333 S.W.2d 92. The factual situation disclosed by the evidence with reference to the accident itself shows that the plaintiff was driving his employer’s truck in a line of traffic proceeding northwardly on Euclid in the City of St. Louis, and would alternately stop and proceed as traffic required; that there are two lanes for traffic in each direction on that street; that he brought the truck to a normal stop in the lane next to the center line of the street and was at the end of a line of vehicles so stopped; that the plaintiff was stopped in this position for a few minutes when struck from the rear by one of the defendant’s buses; that the truck was equipped with a hydraulic lift on the tailgate which was in a down position at the time of impact placing the lift level with the truck bed; and that after the impact plaintiff alighted and saw a slit across the front of the bus where it had contacted this tailgate. It further appeared that the collision caused the plaintiff to be “thrown around in the cab” of the truck, and he experienced pain in his right shoulder, neck and back. The testimony dealing with his injuries will be later detailed herein.

The defendant’s defense was sudden brake failure. The bus was following the truck in the same lane about 60 feet back when the truck made a normal stop. At a distance of about 45 feet from the truck the driver of defendant’s bus began to apply the brakes. The bus was then proceeding at 15 m. p. h. It was then the driver discovered the brakes of the bus to be slack, and at a distance of 18 to 20 feet from the rear of the truck the driver pulled on the hand brake. The bus was-going 8 to 9 m. p. h. when the hand brake was applied, and the combination of brakes slowed the bus to 3 to 5 m. p. h. at impact. Prior to this time there was no sign of brake defect and with normal brakes the bus could have been stopped, at the speed it was traveling, within 40 to 45 feet, on direct examination, and 45 to 50 feet, on cross-examination. The steel edge of the tailgate came through the front of the bus and pinned the driver’s foot to the foot-brake.

The defendant’s first contention of prejudicial error as stated earlier herein is based on the continual interjection, as defendant states in its brief, “ * * * into the case the irrelevant fact that the defendant was protected by insurance by so telling the jury during cross-examination of defendant’s witness Norman Atkins, and by repeating the name of the insuror, the Transit Casualty Company * * * ” nine times in his closing argument. Defendant asks, “What possible legitimate purpose could it have served to constantly advise the jury that the Transit Casualty Company, by whom Mr. Atkins was employed, was ‘an insurance carrier’.” The answer arises from the evidence Mr. Atkins was to give, and gave. An important issue in this case was the extent of the plaintiff’s injuries and just how disabled plaintiff was. On this issue, the defendant introduced movies of the plaintiff taken on five different occasions. Defendant’s counsel had stated, in his opening statement, “Now, my last witness, ladies and gentlemen, will be Mr. Norman Atkins. Mr. Atkins is a special investigator from our office, and I anticipate Mr. Atkins will testify that on approximately five occasions he has taken movies of Mr. Wren. * * * ” (Emphasis supplied.) These films were taken a distance of about 100 yards or more from the plaintiff, and in some of them other people were shown. When Atkins was called, he was asked by defendant’s counsel, “By whom are you employed?” and his answer was, “Transit Casualty Company.” The plaintiff’s cross-examination of Atkins went extensively into how the plaintiff could be identified in these films and sought to cast doubt on Atkins’ testimony that the person shown was the plaintiff. While testifying, Atkins was asked, “By the way, who is, what is Transit Casualty?” and thereupon defendant’s counsel objected that it “ * * * would be overemphasis of the insurance, and would prejudice the defendant in the eyes of this jury by overemphasizing the fact that there is insurance in this case.” The plaintiff’s theory was that while Atkins was shown to have been working for Transit Casualty Company, there was no connection of that company with this case, and that to show the interest Atkins had in the outcome of the trial, the interest of his employer, Transit, had to be shown. The trial court overruled the objection, stating that in doing so it relied upon Clayton v. St. Louis Public Service Company, Mo.App., 276 S.W.2d 621. The plaintiff’s counsel then restated his question: “Sir, the question is what interest does Transit Casualty Company have in this lawsuit”, and Atkins answered, “The insurance carrier, I assume.”

The authenticity and accuracy of the movies taken by Atkins were material to the issue of the extent and nature of the plaintiff’s injuries and the damages to be awarded. They had a definite bearing upon the weight to be given by the jury to the plaintiff’s medical testimony and constituted an attack upon and refutation of the testimony of plaintiff’s fellow workers. The defendant urged the films upon the jury without any qualifications. Under these circumstances the plaintiff was entitled to show that Atkins, who took the films, was an employee of Transit Casualty, who was financially interested in the outcome of this litigation. Those who are interested can find a learned and complete examination of the authorities in Leavitt v. St. Louis Public Service Company, Mo.App., 340 S.W.2d 131 at loc. cit. [9], page 138 and [10], pp. 138-139. See also Clayton v. St. Louis Public Service Company, Mo.App., 276 S.W.2d 621 at loc. cit. [1, 2], page 624.

The plaintiff also contends that the reference to Transit Casualty Company by plaintiff’s counsel in argument constituted reversible error. In ruling this point, we call attention to Instruction No. VII, given by the court at the request of defendant. This so-called credibility of the witness instruction states in its part pertinent to this inquiry:

“The Court instructs the jury that you are the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight, you may take into consideration the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the parties to the suit, the probability or improbability of his or her statements, as well as all the other facts and circumstances given in evidence. * * * ”

The defendant commented on this instruction at some length in its closing argument. Counsel read the instruction to the jury and stated, “Now, that is an important instruction, Ladies and Gentlemen, and please read it when you go upstairs, and study it.” Counsel then proceeded to comment in detail upon the testimony given by certain of plaintiff’s medical witnesses, and also upon the fact that one doctor who examined plaintiff was not called; and then stated:

“Now, that is his testimony, Ladies and Gentlemen. That is the testimony of almost all the witnesses. And on that testimony they are asking you to bring in a verdict for the plaintiff. Again, that big word ‘credibility.’ ”

Moreover, defendant went on to argue that the plaintiff’s fellow employees might be reluctant to testify against the plaintiff’s interests.

It is clear that defendant relied upon Instruction No. VII, and it was certainly within his rights to do so. But Instruction No. VII does not mean that the jury is entitled to take into consideration the interests of only the plaintiff’s witnesses. It also had equal force when the jury was considering the credibility of the defendant’s witnesses and so was available for argumentative purposes to plaintiff’s counsel. Moreover, the trial court is allowed large discretion in permitting or restraining argument of counsel, and the rulings of the trial court are generally deferred to on appeal, Satterfield v. Southern Railway Company, Mo.App., 287 S.W.2d 395. The wisdom of the rule is obvious, for inflections of voice do not appear from the printed pages of the transcript, nor do many other circumstances that surround the making of such a statement as here involved, but all of these matters are directly within the knowledge of the trial court who heard the statements made in context. Under the facts of this record, we cannot hold that the trial court abused its discretion. It follows that this assignment of error must be ruled adversely to defendant.

There are several reasons why defendant’s second allegation of prejudicial error is without merit. Defendant urges that its offered Instruction “D” was a true converse of an essential element of plaintiff’s verdict directing instruction. Of course, if it was, the defendant is entitled to have had Instruction “D” given. Frazier v. Ford Motor Company, 365 Mo. 62, 276 S.W.2d 95; Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479 at l.c. [1, 2] p. 480. It is not necessary to set out either instruction in full herein to illustrate that Instruction “D” is not a converse of the essential element submitted by plaintiff’s verdict directing instruction. The verdict directing instruction read, in its part pertinent to this inquiry, “ * * * that a bus of the St. Louis Public Service Company, being operated by one of its employees, traveling northwardly on Euclid Avenue, overtook the plaintiff’s truck, if you so find, and that the bus operator negligently and carelessly allowed it to run into and collide with the rear end of plaintiff’s truck, if you so find * * Defendant’s offered Instruction “D” in this respect read, “ * * * if you find and believe from all the credible evidence that the defendant did not negligently run into and collide with the rear end of the truck mentioned in the evidence * * It is obvious that Instruction No. I limited the negligence to defendant’s bus operator, while defendant’s offered Instruction “D” was much broader and, keeping in mind that the defendant’s alleged defense was a sudden brake failure, would have allowed the jury to find that the defendant was not negligent in the maintenance of its brakes. Under this factual situation, defendant’s offered Instruction “D” was not a converse of Instruction No. I.

Another answer is that the defendant was allowed to submit its defense of sudden brake failure, and did so in full in its Instruction No. II. That instruction, although more detailed than the offered Instruction “D”, submitted the same defense and since that defense was once submitted, defendant cannot now complain that it was not submitted in another manner.

In preparation for the trial, the plaintiff served interrogatories on the defendant and when the plaintiff, at the close of its evidence in chief, attempted to read at the trial two of the questions therein propounded and the answers given, defendant objected on the grounds of privilege. The plaintiff’s position as stated to the court was that the defendant had waived the privilege by answering the interrogatories, and-that, as plaintiff’s counsel stated to the court, “ * * * The photographs themselves may be privileged, but if the evidence shows that the pictures were taken and the defendant failed to produce these pictures, they have evidence which they are withholding, and I am entitled to make a comment on that.” At another point during the discussion held out of hearing of the jury, the plaintiff’s counsel stated, “ * * * If they have some relevant document which they withhold out of the courtroom, we are entitled to comment on their failure to produce it.” The interrogatories and answers were as follows:

“Q. State whether or not photographs were made of the bus referred to in the Interrogatory No. 1 following this accident.”
“A. Yes, one photograph of bus made.”
“Q. (a) If the answer to Interrogatory 2 is yes, state when and by whom the photographs were made.”
“A. G. E. Palfrey, Sr., 741 Eastgate, March 8, 1956.”

The defendant rejoined that “ * * * the reading of this interrogatory and the reading of the answer, this will force the defendant in the eyes of this jury to have to introduce this picture into evidence, which picture shows substantial damage to the bus, and which would be prejudicial to the defendant in the trial of this lawsuit. We will be forced to introduce this picture.” The trial court overruled the objection on the ground that the defendant did not object at the time the interrogatories were filed, or file a motion to strike the answers after this attorney came into the case for this second trial. The questions and answers above set out were then read to the jury by plaintiff’s counsel. During the defendant’s evidence, the defendant introduced the photograph referred to in the interrogatory, defendant’s Exhibit H, and had it identified by the defendant’s driver. The defendant requested that this photograph, along with its other exhibits, be passed to the jury, and this was done. The photograph was certainly material as it showed extensive damage to the front of the bus. The whole front end was shown as caved inward and this was important evidence on the severity of the impact.

In State ex rel. Uregas Service Co., Inc. v. Adams, 364 Mo. 389, 262 S.W.2d 9 at loc. cit. [4] page 12, the rule of State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, Mo., 257 S.W.2d 69, was extended to interrogatories seeking information as to whether any pictures were taken, how many, and by whom. Accordingly, the interrogatories need not have been answered, but they were answered. We have heretofore held that photographs are not privileged per se, State ex rel. St. Louis County Transit Company v. Walsh, Mo.App., 327 S.W.2d 713, and the question is whether the defendant waived its privilege.

Section 510.020 RSMo 1959, subsection 3, V.A.M.S., provides a method whereby the defendant could have avoided answering interrogatories 2 and 2A. This action was first tried prior to the effective date of the new Rules of Civil Procedure, but see Civil Rule 56.01, V.A.M.R., which supplements § 510.020, supra. In any event, the provisions of that section of our statutes were in force at the time the interrogatories were served prior to the first trial. That section was enacted in 1943, (see Laws of Missouri, 1943, p. 353, § 85) and this accident took place in March, 1956. Accordingly, the provisions of § 510.020, subsection 3, supra, were available to the defendant so that it could have thereby objected to these two interrogatories on the grounds of privilege as held in State ex rel. Uregas Service Co. v. Adams, supra, a 1953 decision. Defendant did not do so, and thereby waived its privilege. Insofar as the defendant’s contention that this would force it to introduce such evidence is concerned, the simple answer is that had defendant availed itself of the provisions of § 510.020, subsection 3, supra, it would not have found itself in such a position, and cannot now be heard to complain because it did not do all that it could have done. Another answer is that the reading of these interrogatories did not force the defendant to introduce the photograph. Defendant thereafter had a choice. It could introduce the photograph, or it could refuse to do so and thereby make its failure a matter for comment by opposing counsel, State ex rel. St. Louis County Transit Company v. Walsh, supra. Admittedly its choice was difficult as viewed from the defendant’s own interest, but that difficulty finds its origins in defendant’s own conduct with respect to its earlier inaction as to these interrogatories. It follows that the trial court correctly ruled the objection, and defendant’s contention of prejudicial error is without merit.

The defendant’s fourth allegation of prejudicial error arises from the trial court’s action in allowing the plaintiff’s attorney to pass plaintiff’s Exhibit 7 to the jury at the close of defendant’s evidence. This exhibit was an X-ray taken by the plaintiff’s doctor, which was introduced into evidence during the plaintiff’s case. The plaintiff’s medical witness, Schaerer, testified that plaintiff’s first rib was abnormal and that the space between the collarbone and the ribcage was narrowed by this abnormality with the result that there was not as much room for the nerves to pass by on that side of the body as there was on the other side. It was his opinion that the accident caused a nerve to be pushed or pinched against the bony prominence, as he described the abnormality, with the resulting irritation to and discomfort of the plaintiff. During the defendant’s case, it called its medical witness Weir, a radiologist, who used the same X-ray Schaerer had used and testified that he saw no evidence of abnormality. On cross-examination Weir was requested by plaintiff’s attorney to outline on the X-ray with a black pencil the first set of ribs. The witness did so. After defendant closed its case, plaintiff’s counsel requested permission to pass this marked X-ray to the jury, and the defendant’s counsel stated, “Defendant will object to the passing of this Plaintiff’s Exhibit No. 7, which is an X-ray taken by plaintiff’s doctor, on the ground that it is not proper rebuttal. It is not rebuttal to anything that the defendant has offered, and it would certainly be prejudicial for this last item to be passed to this jury, being an X-ray taken by the plaintiff’s doctor, and marked by the defendant’s doctor. I can’t see where it is rebuttal to any witness.” The trial court overruled the objection on the ground that this was the first opportunity the plaintiff had to show the marked X-ray to the jury after it had been marked by defendant’s medical witness, Weir, and after that witness had contradicted the plaintiff’s medical witness, Schaerer, to the effect that the plaintiff had an abnormal rib. Whether or not this exhibit should have been passed to the jury under the circumstances above related was within the proper exercise of judicial discretion of the trial judge. Where, as here, the exhibit would allow the jury to form its own conclusion as to which of the doctors it would believe as to the testimony concerning whether or not plaintiff had an abnormal rib, we cannot say that discretion has been abused so as to require our interference.

The defendant, in its statement of this point in its brief, also contends: “The X-ray itself was not evidence for it is the expert’s interpretation of the X-ray that is the evidence.” The objection made by the defendant at the trial did not contain any such contention. We can consider only the objection made at trial. In re Stein’s Estate, Mo.App., 177 S.W.2d 678 at l. c. [10], page 683; Johnson v. St. Louis Public Service Co., Mo.App., 256 S.W.2d 308, at l. c. [4], p. 313; Ragsdale v. Tom-Boy, Inc., Mo.App., 317 S.W.2d 679 at l. c. [14] p. 689, and express no opinion on the contention which the defendant now attempts to raise, ruling only that the trial court did not abuse its discretion in allowing plaintiff’s attorney to pass this X-ray exhibit to the jury under the facts disclosed by this transcript and considering the objection of the defendant made at the trial.

The defendant attacks the giving of Instruction IX, and in its statement of this point in its brief alleges: “ * * * that there was no substantial evidence to support subparagraph 4 thereof, which permitted the jury to consider plaintiff’s loss of earnings when there was no substantial evidence that plaintiff had suffered any loss of earnings.” Subparagraph 4 of Instruction IX reads as follows:

“ ‘FOURTH: Such loss of earnings, if any, which plaintiff has suffered as a direct result of such injuries.’ ”

The transcript discloses that the defendant made a general objection to the giving of Instruction IX at the trial, and therefore made his specific objections to the giving of that instruction in his motion for new trial as required by Civil Rule 70.02, V.A.M.R. The specific objections to Instruction IX which were contained in Paragraph 22b of the motion for new trial do not contain the specific assignment of error which the defendant now attempts to raise. Accordingly, it is not preserved for our review. Civil Rule 70.02, supra.

The defendant’s last allegation of prejudicial error is that the verdict and judgment was so grossly excessive as to shock the conscience of the court, to be conclusive proof of passion and prejudice on the part of the jury, and to require a new trial or a substantial remittitur. This contention requires a review of the evidence concerning plaintiff’s injuries. In doing so, we are to view that evidence in the light most favorable to plaintiff, Appelhans v. Goldman, Mo., 349 S.W.2d 204. Taken in such light, the evidence shows that the plaintiff was 43 years of age at the time of the second trial in October, 1960, and that the accident in question occurred in March, 1956. Immediately following the accident, plaintiff testified that he started having pains in his right shoulder, neck area, and down the back; that after he completed the delivery he was on when the accident occurred, he went back to his shop, reported to his supervisor, went home, and then went directly to Dr. Ott; at that time he was having severe pain in his neck area and right shoulder; that the next morning his entire arm was completely paralyzed and he went back to the doctor and had X-rays taken; that he was off work ten days following the accident and had severe pain in his right arm with the arm completely paralyzed for a portion of that time; that upon returning to work he discovered that if he did any heavy lifting, it resulted in severe pain which required the use of a heat pad and a traction device or a return visit to the doctor to alleviate," that this traction device consisted of a halter and pulley fastened on his bed which he uses when the pain in his neck gets severe, hut that sometimes this will not relieve the pain and it is necessary to go back to the doctor for relief. The testimony from the plaintiff’s fellow employees was that prior to the accident plaintiff would assist them in their work, but that since the accident he has not done so and on occasions has complained of pain. Dr. Schaerer, a neurosurgeon, testified that when he first examined the plaintiff, plaintiff complained of pain in his neck on the right side and in the right shoulder; that his examination disclosed an area extending from the middle and ring fingers of the right hand, up the right arm in a strip-like fashion to the neck including the lower part of the neck in which the plaintiff had some loss of sensation; that there was also weakness of the grip of the right hand; that his impression at that time was that the plaintiff had a cervical ¿isc injury and he recommended hospitalization and myelogra-phy ; that the plaintiff went to the hospital and the myelogram showed nojibnormality; that this witness saw the plaintiff again in February, 19S8, when he was complaining of headaches and treated him by injection of a local anesthetic in the back of the neck. It was Dr. Schaerer’s opinion that the plain- S tiff had sustained a cervical nerve root ir- I ritation which is persistent and chronic, and I since it had been so for a period of two| years it was the witness’s further opinion •that the irritation was the result of scar tissue formation following injury to the nerve root. This witness again examined the plaintiff in October, 1960, and it was his opinion that the plaintiff’s condition allowed him to work, but with a continuous degree of pain, and that on the basis of his examinations and treatment the witness concluded that the plaintiff’s condition would continue to be painful and was permanent.

Dr. Ott’s testimony was that he examined the plaintiff on March 7, 1956, and in addition to the plaintiff’s complaints as to severe pain in the right neck and shoulder -which traveled down the right arm and a feeling of numbness and weakness in the right arm, the witness found a marked swelling on the right side of the neck with a very marked muscle spasm and some muscle painfulness in the lower lumbar area; that this spasm in the lower lumbar area cleared up in about two weeks; that the plaintiff continued under his care and was seen on six other occasions in March, on two occasions in April, two in May, one in June, and one in November of 1956; that he recommended that plaintiff obtain a head halter so that he could undergo traction at home and that during this time he also gave plaintiff injections to alleviate pain. The witness further testified that he last examined the plaintiff on October 22, 1960, that at that time the findings he had previously made were repeated except that the muscle spasm seemed to be more acute; that on that occasion the plaintiff was treated by manipulation to relieve the spasm and given a sedative, relaxant-type of drug; that there would be a fluctuation in the amount of pain plaintiff would experience which would vary with many factors, such as the amount of work done; that in his opinion the plaintiff’s condition was now chronic; that it was the witness’s opinion that the plaintiff had sustained soft tissue injury in the neck that gradually produces a chronic thickening or swelling of the fibers of the tissues of the neck or of the supporting tissues in the area; and that this is a permanent condition which is extremely painful on occasion but not constantly.

The hospital records of St. Joseph’s Hospital were introduced and these records also contain a finding of numbness or loss of sensation affecting the third and fourth fingers extending up the dorsal aspect of the forearm and the lateral aspect of that arm about, one to two inches from the widest area affected. The weakness in the right hand was also found.

The defendant cites two cases in which he contends the injuries were analogous and which resulted in verdicts for $3,500 and $4,500. The verdict in each of the cases was affirmed. It is too well recognized to require citation that in determining the ex-cessiveness of a judgment, each case is to stand upon its own facts. We have concluded upon a careful review of the evidence that the verdict and judgment is not so excessive as to so shock the conscience of this court as to require a remittitur or a new trial.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

ANDERSON, P. J., WOLFE, J, and SAM -C. BLAIR, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    CONNERSVILLE CASKET COMPANY, Inc., a Corporation, and Franklin Manufacturing Corporation, a Corporation d/b/a Connersville-Franklin Casket Company, Plaintiffs-Respondents, v. A. C. GIST, Jr., George B. Scott, Jr., and J. E. Strickland, Defendants-Appellants.
    No. 30927.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Kearby & Calvin, Byron Kearby, Edward E. Calvin, Poplar Bluff, for defendants-appellants.
    Powell & Jones, Clarence A. Powell, John ■ W. Ringer, Dexter, for plaintiffs-respondents.
   DOERNER, Commissioner.

This is an action on a note, which was tried before the court without a jury. Judgment below was in favor of plaintiffs for $11,528.31, together with interest thereon from the date of judgment, and in due course the defendants appealed.

The petition is in conventional form, and declared on a promissory note for $9,408.80, dated January 21, 1959, for value received, payable to the order of Connersville-Frank-lin Casket Company 90 days after date, with interest from date at the rate of 6% per annum, containing a provision for an attorney’s collection fee. In their joint answer defendants admitted that they executed the note, and pleaded lack of consideration. Upon trial evidence was introduced that plaintiffs are “practically mutually identical” corporations, engaged in the manufacture and sale of caskets, doing business under the name of Connersville-Franklin Casket Company; that prior to January 1, 1959, plaintiffs had sold merchandise to the Popular Supply Company, a corporation; and that as of that date the latter company owed plaintiffs the sum of $9,908.80 on an account defendants conceded had been owed for several months. Defendants Gist and Scott were the president and secretary-treasurer, respectively, of the Popular Supply Company, defendant Strickland was the manager, and the three of them comprised all of the stockholders of that corporation. It further appeared that on January 21, 1959, one Fisk, a salesman for plaintiffs, conferred with defendants regarding the account owed by Popular Supply Company. On direct examination Dr. Gist testified that Fisk said he wanted the note to give to his company because “ * * * it looked better on the books, it would be better if he had some paper to show.” However, on cross-examination, Dr. Gist testified:

“Q. Now, at that time Mr. Fisk told you that he either wanted the money or he wanted the caskets or he wanted a note, is that right ?
“A. I don’t remember his exact words.
“Q. He was wanting some action wasn’t he?
“A. Yes, sir.
“Q. Did he tell you that you could have a little time if you gave the note?
“A. I think he did.
“Q. That’s what you fellows were wanting at that time, weren’t you, Doctor, you were wanting some time in which to pay them, weren’t you?
“A. Yes.
“Q. And this note shows, I believe, ninety days time was given, is that right ?
“A. I think so.
“Q. And, now, at that time your company was still a going concern, wasn’t it, Doctor?
“A. Yes, sir.”

The upshot of the meeting was that Scott as treasurer gave Fisk a check of Popular Supply Company for $500 to apply on its account, and defendants executed the note in suit for $9,408.80, the balance due on the account. Popular Supply Company ceased to operate in 1960, and became insolvent. Plaintiffs conceded that at the time they executed the note defendants did not individually owe the plaintiffs anything, and their evidence was that upon receipt of defendants’ note they did not mark the account of the Popular Supply Company on their books as paid, but made a notation thereon that they had the notes. The evidence also showed that on June 17, 1960, defendant Scott gave plaintiffs his personal check for $100 and that defendants were given credit for that amount on the note.

In their answer defendants admitted that they had executed the note. Since the instrument was negotiable in form it must be deemed prima facie to have been issued for a valuable consideration. Section 401.- 024 RSMo 1959, V.A.M.S. Cox v. Sloan, 158 Mo. 411, 57 S.W. 1052. To overcome this it was necessary for the defendants, as they did, to affirmatively plead want of consideration, and the burden of proof rested upon them to establish their affirmative defense. Cox v. Sloan, supra; Hess v. Hessel, Mo.App, 102 S.W.2d 729; North Side Finance Co. v. Sparr, Mo.App, 78 S.W.2d 892. They contend on appeal that they sustained their burden, and that the court erred in rendering judgment against them, because the evidence showed that when plaintiffs received the defendants’ note plaintiffs did not extinguish on their books of account the pre-existing debt of Popular Supply Company; and that since the debt of that corporation was not extinguished, the note given by defendants, stockholders of the company, was not based on any consideration.

There can be no dispute about defendants’ first point. Under the authorities in this state it is well settled that the acceptance of a note of either a debtor or a third person does not constitute payment of a contemporaneous or pre-existing debt, unless there is an express agreement to that effect between the parties to the transaction. Scheer v. Brooks, 333 Mo. 1201, 65 S.W.2d 107; Mutual Life of Illinois v. McKinnis, Mo.App, 15 S.W.2d 935.

As to their second point defendants rely heavily on Glassbrenner v. Morgan, Mo.App, 296 S.W. 201. In that case the defendant Morgan purchased stock in a corporation from Glassbrenner and paid for it in full. Glassbrenner had previously loaned $1,000 to the corporation, which was only evidenced by an entry on the company’s books. Subsequent to the sale of stock Glassbrenner proposed that Morgan give him his personal note for the amount of the indebtedness, which Morgan did, notwithstanding the fact that Glassbrenner gave no release relinquishing his claim against the company. The only consideration claimed was the indebtedness of the company to Glassbrenner, and the author of the opinion took pains to point out (296 S.W. 202) that “* * * the record does not disclose any agreement for forbearance on the part of plaintiff, nor does it appear that the indebtedness of the company to plaintiff was extinguished by the giving by defendant of the note in question. In fact,, the only alleged consideration shown was. the bare fact of the indebtedness of the company to plaintiff, from which it follows that the note was nudum pactum and void, inasmuch as a stockholder in a corporation, as defendant had become, is not thereby obligated to pay its debt, and a note given by him therefor is without consideration in the absence of discharge, forbearance, or other new consideration, none of which elements appear in the case at bar. * * * ” (Emphasis supplied.) As was stated by the same author in the later case of Minnesota Mutual Life Insurance Co. v. Manthei, Mo.App, 189 S.W.2d 144, all that was held in the Glassbrenner case was that the only consideration claimed, extinguishment of the corporation’s debt, had not been proven.

But as indicated in the Glassbrenner case, the extinguishment of a .corporation’s debt is not the only consideration which will support a note given by a stockholder to the corporation’s creditor. An agreement of a creditor to forbear or to give a debtor an extension of time within which to pay the debt is a valuable consideration for the note of a third person to the creditor. It was stated many years ago in Cox v. Sloan, 158 Mo. 411, 425, 57 S.W. 1052, 1055, in quoting approvingly from Daniel on Negotiable Instruments : “ * * * ‘There is no doubt that a debt due from a third person, as a debt from A. to B, is a good consideration for a note as from D. to B, provided there were an express agreement for delay, or an implied agreement which would arise if the debt were then due, and the note were made payable at a future day.’ This doctrine applies with full force to the facts of this case.” This principle, that an extension of time to the debtor is a valid consideration for the note of a third party, has been recognized in Rubinic v. Sabados, Mo.App , 264 S.W.2d 935; Hess v. Hessel, Mo.App., 102 S.W.2d 729; North Side Finance Co. v. Sparr, Mo.App., 78 S.W.2d 892; First National Bank of Campbell v. Bristol, Mo.App., 35 S.W.2d 999; Mutual Life of Illinois v. McKinnis, supra; Babel v. Ransdell, Mo.App., 294 S.W. 734; Citizens’ Bank of Pomona v. Oaks, 184 Mo.App. 598, 170 S.W. 679. And it has been held applicable where a note was signed by a stockholder to obtain an extension of time granted to the corporation within which to pay its debt. Globe Indemnity Co. v. McDowell, Mo.App., 159 S.W.2d 822.

In their brief defendants argue that there was no evidence that an extension of time was granted. They emphasize the testimony of Dr. Gist on direct examination that Fisk said he wanted the note because it would look better on the plaintiffs’ books if it had some paper to show, and point to .a letter sent to Popular Supply Company by a clerk in the credit department of one ■of the plaintiffs, which was dated March 23, 1959. The substance of the letter was .a complaint that the Popular Supply Company had not replied to the plaintiff’s letters regarding its past due account. There is nothing in the evidence to indicate that plaintiffs ever took any other steps prior to the maturity of the note to collect the indebtedness owed by Popular Supply Company. Defendants seek to ignore or minimize the testimony of Dr. Gist on cross-examination that at the time the note was executed plaintiffs were “wanting some action” on the over-due account of Popular Supply Company, that defendants, who were all of the stockholders of that corporation, desired additional time in which to pay that company’s account, and that Fisk told defendants they could have an extension of time in which to pay the indebtedness if they gave the note. By its terms the note was due in ninety days. This evidence clearly established that the consideration for the note executed by defendants was the extension of time granted by plaintiffs for the payment of the indebtedness of Popular Supply Company, and as the cases cited hold, this was a valid and valuable consideration.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

RUDDY, Acting P. J., WOLFE, J., and SAM C. BLAIR, Special Judge, concur.


author: SAM C. BLAIR, Special Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. Everett STACY, (Defendant) Appellant.
    No. 30844.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.

      Robert A. Mcllrath, Flat River, for appellant.
    Roy G. Cooper, Pros. Atty., Madison County, Fredericktown,' for respondent.
   SAM C. BLAIR, Special Judge.

Misdemeanor. Everett Stacy was found guilty by a jury of wilfully and maliciously killing a dumb animal, Janie, a Seeing-Eye dog owned by John J. Hess, a sightless man. (Section 563.670, V.A.M.S.) Stacy has always admitted, out of court and in court on the stand, that he shot and killed the dog.

.Various assignments exist in the motion for a new trial, but only two are presented by the points relied on and by the brief. Questioned by Stacy are (1) the sufficiency of the evidence to warrant the verdict and judgment and (2) the propriety of the argument of the prosecuting attorney to the jury.

During oral argument in this court, we expressed some doubt that the evidence was sufficient to establish the corpus delicti of this offense independently of Stacy’s admissions and statements. Study of this record dispels this doubt. The corpus delicti in this instance requires some substantial independent evidence that the dog “[was] found dead or fatally wounded, with evidence of having been shot, and not shot for any lawful purpose.” State v. Schyhart, Mo.Sup., 199 S.W. 205-211.

Viewing the entire record we have concluded that there was adequate evidence of the corpus delicti and that Stacy shot the dog for no lawful purpose.

John J. Hess, the dog’s owner, testified "that he obtained the dog from the International Guiding Eye School, Inc., Bur-hank, California, and that he had owned the dog from May 6, 1958, until December .26, 1959, the day Stacy killed it. He had brought the dog home with him in a commercial airplane, unmuzzled and among the passengers, from Burbank, California, to St. Louis, Missouri, without incident. He had never had any trouble controlling the dog. It was a “gentle” female, approximately three and one-half years of age, a 'German Shepherd. Certainly this was some substantial evidence of the character •and tendency of the dog from which the jury could conclude, on the whole record, as will appear, that it was not a dog likely to exhibit hostility that would convince Stacy he had to kill it in self-defense. For Stacy’s claim was that he killed the dog in .■self-defense.

On the question of the adequacy of the proof to establish the corpus delicti the applicable precedents are clear. Full proof of the corpus delicti, independent of ■confessions, or statements made by a defendant, is not required, and if there is evidence of corroborating circumstances, direct or circumstantial, even though slight, tending to prove the corpus delicti, which correspond with circumstances related in the confession or statements, all of the circumstances, taken together, including the confession or statements, may be considered in determining whether the corpus delicti was sufficiently established and, in the final analysis, whether the offense charged is supported by substantial evidence. City of St. Louis v. Washington, Mo.App., 223 S.W.2d 858; City of St. Louis v. Simon, Mo.App., 223 S.W.2d 864; State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396; State v. Hardy, 365 Mo. 107, 276 S.W.2d 90; State v. Kollenborn, Mo., 304 S.W.2d 855. We look to Stacy’s relevant and incriminating statements to ascertain whether there is corroboration of the independent proof of the corpus delicti and substantial evidence of the offense itself. In substance the incriminating statements of Stacy were:

Stacy had been hunting. He met the dog on a country road. He thought it was a wolf at first. He “just kept walking toward it.” The dog turned and went back up the road about seventy-five or a hundred yards, over a rise and out of sight. Stacy had not done anything to make the dog turn and go away. By this time he had recognized the animal to be a dog and not a wolf. He then walked to the top of the rise and saw the dog again. It turned and came toward him. It had its head down and its ears back. He “stomped” his foot, but did not shout, and the dog stopped. It laid down, ears back, and wagged its tail. It did not bark or growl or snarl or bristle its hair. He shot it with a 12-gauge shotgun and dragged it off the road, over a hill, through the brush, about ten steps. On the day of the shooting, he stated the dog was twenty-five steps from him when he shot it. A few days later, he claimed it was only twenty-five feet.

On this record we have a “gentle,” Seeing-Eye dog. It had remained, from Burbank, California, to St. Louis, Missouri, unmuzzled among the passengers, without incident. No trouble had ever been experienced in controlling it. On both encounters with Stacy, according to his own statements, it is clear that the dog exhibited no slightest sign of hostility, only what all humans recognize as dog friendliness and dog curiosity, which menaces no one. And while it was doing so, Stacy shot it.

We have not overlooked noticing that Stacy made other and different statements, on and off the stand, of an'exculpatory nature and that he claimed he shot the dog because he was afraid of it and only in self-defense. On this appeal it is now not of consequence that he did so. This cause must be ruled on the evidence favorable to the State. All of the circumstances surrounding the shooting, together with Stacy’s exculpatory statements, were before the jury to be evaluated. The jury was fully instructed on his defense. The jury rejected this defense. The jury had the right to believe or disbelieve, and to reject, those parts of Stacy’s statements which tended to exculpate him, including his assertion that he killed the dog in self-defense, just as a jury is always privileged to believe or to disbelieve any or all parts of an accused’s statements, after it has, of course, considered all of his statements in their entirety and the probability of their truth or falsity, and has taken into account always all of the circumstances and facts in the case. This is elementary. State v. Tourville, Mo.Sup., 295 S.W.2d 1, certiorari denied 352 U.S. 1018, 77 S.Ct. 575, 1 L.Ed.2d 554; Bower v. State, 5 Mo. 364, 32 Am.Dec. 325; State v. Hollenscheit, 61 Mo. 302.

We are of the opinion, and so hold, that the corpus delicti of this offense, that the dog was shot for no lawful purpose, was adequately established by evidence independent of Stacy’s statements, aided by his consistent corroborating statements, and that there was, furthermore, adequate substantial evidence to undergird the verdict of guilty.

Stacy argues that the prosecuting attorney told the jury in argument that the officers, the sheriff and the highway patrolman, were not “satisfied” with Stacy’s answers to questions they put to him. The contention is made that this argument told the jury it ought to find Stacy guilty because the officers disbelieved his exculpatory statements and claim of self-defense. We have examined all the prosecuting attorney said and the record wholly fails to-support Stacy’s theory.

On the other hand, in arguing the case to the jury, the prosecuting attorney went outside the record and quoted portions of the now historic “Eulogy to a Dog” by Senator George Graham Vest. It is noteworthy that the propriety of the argument made by Senator Vest in Burden v. Horns-by, 50 Mo. 238, was not questioned when the case went to the Supreme Court of Missouri, and the cause was ruled on entirely unrelated grounds.

We think the argument of the prosecuting attorney exceeded proper bounds, for there was no slightest evidence in the record that Janie possessed the attributes of the dog described in Senator Vest’s eulogy. We acknowledge that literary allusions are permissible in arguments to juries. “The largest and most liberal freedom of speech is allowed an attorney in the conduct of his client’s cause. ‘The range of discussion is wide. * * * In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; * * *. His illustrations may be as various as the resources of his genius ; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. * * So, too, what a counsel says or does in the argument of a case must be pertinent to the matter on trial before the jury, and he takes the hazard of its not being so. Now, statements of facts not proved, and comments thereon, are outside of the case. They stand legally irrelevant to the matter in question, and are therefore not pertinent. If not pertinent, they are not within the privilege of counsel.’ * * * Attorneys sometimes, with a persistency worthy of a better cause, press, during the trial, into the record, much that is objectionable; and, as soon as they get verdicts, they seem to awake to a realization of the fact that they have performed works of supererogation, and have done more to win their causes than was required of them, or more than was necessary, and, as an excuse for this excess of energy, insist that it had no prejudicial effect, and no harm resulted from it.” Evans v. Town of Trenton, 112 Mo. 390, 20 S.W. 614, l. c. 616. (Emphasis supplied.) The argument put forward by the state here is to the same effect, but we are convinced we must reject it.

“Nothing should be done in trying a person upon a criminal charge that will have the effect of inflaming the minds of the jurors on trying the question of guilt or the punishment to be assessed. All persons, the guilty as well as the innocent, have an equal standing before the law and must receive the same fair treatment at the hands of the court and the prosecuting officers provided for the enforcement of the law.” State v. Nicholson, Mo.App., 7 S.W.2d 375, l.c. 379. Certainly this is true in the instant case where such potentialities for prejudice and passion are inherent in the charge that the accused killed a “gentle” Seeing-Eye dog belonging to a sightless man. One has only to read the long quotation from Senator Vest’s eulogy and to compare it ivith the actual record in this case to realize vividly that no one claimed for Janie the Attributes ascr’bed to Old Drum in Senator Vest’s eulogy. When there is added to this the final peroration of the prosecuting attorney, “I merely request that you judge this matter with your hearts as well as your heads,” we believe that what he quoted and finally said created an atmosphere designed to lead the jury to decide the case on its emotions rather than by reason and with objectivity, a course at war with unbiased justice, and that the argument, therefore, was unquestionably prejudicial and requires reversal and a new trial. 9 Mo.Dig., Criminal Law, ®=719; 27 Mo.Dig., Trial, «=120.

It is so ordered.

RUDDY, Acting P. J., and WOLFE, J., concur.

      . “The best friend a man has in the world may turn against him and become his enemy. His son and daughter that he has reared with loving care may prove ungrateful. The money a man has he may lose. It flies away from him, perhaps, when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog. A man’s dog stands by him in prospex-ity and poverty, in health and in sickness. He will Mss the hand that has no food to offer; he will lick the wounds and sores that come in encounter with the roughness of the world. When all other friends desert, he remains. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him, to guard against danger, to fight his enemies; and when the last scene of all comes, and death takes the master in its embrace, and his body is laid away, no matter if all other friends pursue their way, there by the graveside will the noble dog be found, his head between his paws, his eyes sad, but open in watchfulness, faithful and true even in death.”


author: ANDERSON, Presiding Judge.

text:
    Verdie Hazel FUDGE, (Plaintiff) Appellant, v. Robert Lincoln FUDGE, (Defendant) Respondent.
    No. 30670.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Motion for Rehearing or Revision of Opinion Denied April 12, 1962.

      James P. Hayes, John F. White and Hayes & Hayes, St. Louis, for appellant.
    Paul Taub, Overland, for respondent.
   ANDERSON, Presiding Judge.

This is a divorce suit brought by Verdie Hazel Fudge against Robert L. Fudge. Defendant filed a crossbill wherein he sought a divorce from plaintiff on the grounds of general indignities. A reply was filed by plaintiff which admitted the marriage, the separation of the parties, the residences of the parties, and that no children were born of the marriage. It also contained a general denial of all allegations except those admitted. When the cause came on for hearing plaintiff dismissed her petition, and the cause then proceeded on defendant’s crossbill and plaintiff’s reply thereto. The hearing resulted in a finding and judgment in favor of defendant. Plaintiff has appealed from the judgment.

In this court plaintiff concedes that defendant’s evidence shows her to be guilty of conduct which would entitle defendant, if he were an innocent party, to a decree of ■divorce. But plaintiff contends that defendant’s own evidence shows that he is not an innocent party, and for that reason the judgment should be reversed.

The testimony shows that these parties were married April 26, 1946. During the time of the marriage these parties, for several years, owned and operated a tavern in Ballwin, Missouri, where 3.2 beer and food was sold. Defendant worked at his trade as a plumber during the day and at the tavern during the evening hours.

The defendant’s evidence tended to prove a sufficient number of the charges in the crossbill to warrant the granting of a divorce to him on the grounds of indignities. It would serve no useful purpose to detail the sordid story told by defendant and his witnesses concerning the conduct of his wife, in view of the admission made in this court on her behalf. Suffice it to say that defendant, and seven witnesses produced by him, gave extensive testimony in support of the allegations made against plaintiff. In general this testimony was to the effect that plaintiff was drunk on many occasions, cursed her husband frequently in the presence of others, falsely accused him of associating with other women, performed disgusting acts while intoxicated in the presence of others, to the great embarrassment of defendant, and struck and beat defendant on several occasions. Plaintiff did not take the witness stand to deny any of this evidence, nor did she present any witnesses to testify in her behalf. We are convinced by the evidence that plaintiff was guilty of conduct which would have entitled defendant to a divorce if defendant was an innocent, as well as an injured, party.

The burden was on the defendant not only to prove marital misconduct on the part of plaintiff, but also to show affirmatively that he was an innocent party. Ellebrecht v. Ellebrecht, Mo.App., 243 S.W. 209; Simon v. Simon, Mo., 248 S.W.2d 560. Where both parties are guilty of misconduct constituting grounds for divorce, neither should be granted a divorce. Freebairn v. Freebairn, Mo.App., 349 S.W.2d 486; Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659; Harris v. Harris, Mo.App., 223 S.W. 771; Coons v. Coons, Mo.App., 236 S.W. 358; Miles v. Miles, 137 Mo.App. 38, 119 S.W. 456; Wallner v. Wallner, 167 Mo. App. 677, 150 S.W. 1082; Collett v. Collett, 170 Mo.App. 590, 157 S.W. 90; Wells v. Wells, 108 Mo.App. 88, 82 S.W. 1103.

Plaintiff urges that in the instant case, defendant, by his own testimony, gave evidence of conduct so reprehensible as to provide plaintiff with ample grounds for divorce, and proved beyond doubt that he was not an innocent party. This testimony was elicited on cross-examination of defendant. We will briefly review this testimony.

During 1958 Mrs. Minnie Rucker assisted defendant in the operation of the tavern. Mrs. Rucker was an unmarried woman and lived alone in a cottage at a place called Dreamland. It was the practice of defendant to work at his calling as a plumber during the daytime, and in the evenings he would take over the bar at the tavern. After closing the tavern for the night defendant would take Mrs. Rucker home. Upon arriving at Mrs. Rucker’s home, defendant would go into the cottage and spend several hours alone with her during which time, according to defendant, he and Mrs. Rucker would drink coffee, relax, talk and go over the tavern books. Defendant denied he ever had sexual intercourse with Mrs. Ruck-er while there. The time spent with Mrs. Rucker varied. It would be from 2:00 A. M. to 4:00 A.M. or 6:00 A.M. He stated there might have been several occasions when he stayed until six o’clock in the morning. This continued over a period of several months, and during two months when defendant’s wife was confined to the hospital. His visits to Dreamland occurred four or five days a week. Defendant testified he had seen Minnie Rucker during the last two weeks prior to the trial, but denied that he was staying with her.

From the transcript it appears that the only thing that gave the trial court pause in deciding the case was whether there was proof of adultery on the part of defendant, which would bar his action for divorce. The court evidently decided there was no such proof, for defendant prevailed, notwithstanding his admissions in regard to his associations with Mrs. Rucker. It is urged here that the evidence at least showed indignities which would have been sufficient grounds for granting plaintiff a divorce had she herself been an innocent party. To this we are compelled to agree. In our view of the case defendant failed to meet the burden placed upon him to prove that he was such an innocent and injured party as was entitled to a divorce.

The judgment of the Circuit Court is accordingly reversed.

RUDDY and WOLFE, JJ., concur.


author: STONE, Judge.

text:
    Barbara Lynn TAYLOR, a minor, by her mother and next friend, Pearl J. Lee, Plaintiff-Respondent, v. Gerald Douglas TAYLOR, a minor, by his father and guardian ad litem, Ben Taylor, Defendant-Appellant.
    No. 8012.
    Springfield Court of Appeals. Missouri.
    March 23, 1962.

      Emerson Foulke, Joplin, for defendant-appellant.
    Myers & Birk, Webb City, for plaintiff-respondent.
   STONE, Judge.

This is an appeal by defendant, Gerald Douglas Taylor, from the judgment of the •circuit court awarding plaintiff, Barbara Lynn Taylor, $150 as attorneys’ fees in her suit for divorce. At the outset of his brief, defendant tells us that “the issue tried below and the issue here is whether or not the purported marriage of the plaintiff and the defendant was void,” and that his theory of the case is that, “if void, since the court only had jurisdiction to allow attorney fees in divorce cases where there is a valid marriage, the judgment for attorney fees was invalid because of lack of jurisdiction.” We approach the facts with this statement of “the issue” and of defendant’s theory before us.

In the first numbered paragraph of her “Petition for Divorce” filed on February 23, 1961, plaintiff alleged “that on the 22nd day of August, 1960, at Miami, Oklahoma, she was lawfully married to defendant and continued to live with defendant as his wife until on or about the 19th day of February, 1961, at which date they separated and have since live separate and apart.” Charging that various indignities, as detailed in her petition, had rendered her condition in life intolerable [V.A.M.S. § 452.010], plaintiff prayed for a decree of divorce, restoration of her maiden name, and reasonable allowances for alimony and attorneys’ fees. In the first numbered paragraph of his “Answer” filed on March 9, 1961, “the defendant admits Paragraph 1 of the petition.” The prayer of the answer was “that plaintiff’s petition be dismissed and that the costs of this action be assessed against her.” On March 13, 1961, plaintiff filed her “Motion for Suit Money, Attorney Fees and Alimony Pendente Lite” which was in conventional form; and, when that motion came on for hearing on March 16, 1961, both parties were present and testified.

After preliminary questions had developed that plaintiff lived in Webb City, Missouri, and was seventeen years of age, her counsel inquired “when were you married?” and plaintiff answered “August 22, 1960.” During plaintiff’s direct examination, counsel referred several times to “your marriage” and to “your husband”; and, in connection with her testimony concerning a' used Ford automobile being driven by defendant, plaintiff was interrogated as to whether this automobile was purchased “while you were married,” to which she responded in the affirmative. Not a single objection or motion to strike was interposed in the course of plaintiff’s direct examination. On cross-examination, the second question by defendant’s counsel was “were you pregnant when you got married?” which prompted the emphatic reply “no, sir, I was not.”

When defendant took the stand for the obvious purpose of demonstrating his impecunious circumstances, one of the preliminary “questions” put by his counsel was the casual, matter-of-fact statement “you were married last August?” with which defendant readily agreed “yes, sir.” After it was shown that defendant was eighteen years of age at the time of trial and that he had been home on leave from Fort Knox at the time of his marriage, counsel asked “after you got married did you and your wife live together any?” which elicited the information that defendant had been discharged from military service on December 3, 1960, and thereafter had lived with plaintiff about five weeks.

Thus when the trial court awarded plaintiff $150 as attorneys’ fees at the conclusion of the hearing upon her motion (and at the same time denied alimony), the marriage stood unqualifiedly admitted by defendant’s answer, openly confirmed by the testimony of both parties, and blandly taken for granted by the parties and counsel alike. Four days later, towit, on March 20, 1961, the alleged invalidity of the marriage was suggested for the first time in defendant’s “Motion for New Trial or in the Alternative to Set Aside Judgment for Attorney Fees” and in an “Amended Answer” which recited that it was filed “with leave of court first had and obtained” although nothing in the transcript aliunde the quoted recital confirms it. V.A.M.R. Rule 55.53; V.A.M.S. § 509.490. Regardless of that, both pleadings tracked the same line. Both averred that “said marriage was performed in the State of Oklahoma on the 22nd day of August, 1960 and the validity of said marriage was at all times governed by the statutes of the State of Oklahoma then in force and effect”; both pleaded m haec verba 43 Okl.Stat.Ann. § 3 (as amended Laws of 1959, p. 183), the pertinent portions of which are set forth marginally; and both contained allegations to the effect that on August 22, 1960, defendant was seventeen years of age, that under the cited statute “his marriage was expressly forbidden, prohibited and void,” that no court had authorized the marriage in settlement of any suit for seduction or bastardy or because plaintiff was pregnant, and that the license for said marriage had been issued without the consent and authority of a parent or guardian (of defendant), “for which reason said license was illegally and invalidly issued and said marriage is absolutely void and of no effect.” In his motion for new trial, defendant moved “the court to set aside the judgment for attorney fees * * * and to grant him a new trial, or, in the alternative, to modify said judgment by overruling said motion for attorney fees.” The prayer of the amended answer was the same as that of the original answer. Neither sought any affirmative relief as to the marriage.

When called by his counsel as a witness in support of his motion for new trial, defendant testified on direct examination that he was born on September 22, 1942, that he was still seventeen years of age at the time of the marriage ceremony on August 22, 1960, and that his mother was not present on that occasion. Over plaintiff’s objection, the court admitted in evidence a “Notification of Birth Registration” from the Department of Commerce, Bureau of the Census, showing that Gerauld Douglas Taylor was born in Webb City, Missouri, on September 22, 1942. In the course of defendant’s cross-examination, plaintiff offered and the court admitted in evidence a certified copy of the “Marriage Record” (pertaining to the marriage under discussion) in the office of the Clerk of the County Court of Ottawa County, Oklahoma. This “Marriage Record,” all portions of which were dated August 22, 1960, was comprised of: (1) the “Application for Marriage License” in which plaintiff and defendant, over their admittedly genuine signatures subscribed and sworn to before the clerk, certified that Gerald Taylor (defendant) was “Age 21” and Barbara Benson (plaintiff) was “Age 18”; (2) an appended “Consent Affidavit” bearing the signature “Mrs. Ben Taylor,” in which it was stated “that I am the mother of Gerald Taylor named in the above application as being of the age of 21 years, and in the presence of the issuing official, I do hereby consent to his marriage to Barbara Benson”; (3) another appended “Consent Affidavit” bearing the signature “Pearl J. Lee” and, in like language, identifying her as the mother of Barbara Benson “of the age of 18 years” and consenting to Barbara’s marriage to Gerald; (4) a copy of the “Marriage License” issued to Gerald Taylor, “age 21 years,” and Barbara Benson, "age 18 years”; and (S) the “Certificate of Marriage” by J. J. Swetnam, Justice of the Peace, that. he had married Gerald and Barbara “in the presence of Mrs. Ben Taylor of Webb City, Missouri, and Pearl J. Lee of Webb City, Missouri.”

Confronted with this “Marriage Record,” defendant immediately assumed a posture of personal innocence and undertook to shift onto others the responsibility for the sworn representations as to age now branded by him as false and fraudulent. Defendant’s version was that he first gave his correct age to the deputy clerk to whom application for a marriage license was made but that “he said I couldn’t get one if I was that age, and if my mother said I was 21 I could get one.” Whereupon (so testified defendant), a member of the wedding party, Mrs. Florine White, otherwise unidentified and not a witness at the hearing, told the deputy clerk that she was the mother of (defendant) Gerald and, posing as such, signed the “Consent Affidavit” certifying that he was twenty-one years of age and consenting to his marriage. We note parenthetically that, since Gerald needed no parental consent if he was twenty-one years of age [43 Okl.Stat.Ann. § 3], the primary purpose in taking the “Consent Affidavit” must have been to obtain and record parental confirmation of his age. Mrs. Ben Taylor, defendant’s mother, followed her son to the witness stand. She admitted prior knowledge that he “wanted” to marry Barbara and that they “were going down to Miami and get married”; but, insisting that “we didn’t approve,” Mrs. Taylor said that she did not go to Miami and did not sign the “Consent Affidavit” which bore her purported signature.

Passing preliminary questions which suggest themselves on the record before us, we proceed directly to the sole issue upon which defendant rests his appellate complaint, i. e., that the marriage of August 22, 1960, at Miami, Oklahoma, was void. We agree with defendant that the validity of this marriage must be determined substantively (although not procedurally) by the lex loci contractus, i. e., by the law of the State of Oklahoma. But, we cannot agree that “any marriage prohibited by law in Oklahoma is void” or that, under Oklahoma law, the marriage under scrutiny was void even if defendant was, at the time of such marriage, one month short of eighteen years of age. On the contrary, it has been the settled law of Oklahoma since 1909, only two years after her admission as a sovereign state of the union, that a marriage of persons prohibited from marrying under 43 Okl.Stat.Ann. § 3 may be voidable but is not void. This was established beyond reasonable room for argument in the leading case of Hunt v. Hunt, 23 Okl. 490, 100 P. 541, 22 L.R.A., N.S., 1202, where the court firmly rejected the contention that the marriage of a sixteen-year old boy and a fourteen-year old girl was void under the then governing Oklahoma statute (differing from 43 Okl. Stat.Ann. § 3 in no particular here material or important) and clearly formulated the applicable rule [100 P. loe. cit. 543] “that, notwithstanding the statute may penalize those who solemnize or those who enter into marriage contrary to statutory authority, the marriage itself is not void unless the statute itself so makes it, and hence in the case at bar, although the marriage was expressly forbidden and prohibited, it was voidable, and not void.” Subsequent Oklahoma cases have, without dissent or criticism, followed the Hunt case, supra. We are convinced beyond doubt that the marriage under consideration was not void, but that it must be treated as valid for all civil purposes unless and until annulled by judicial decree.

That our last statement may not be misconstrued as a veiled suggestion or implied invitation to seek annulment, it may not be inappropriate to interpolate that, on the transcript presented, we entertain grave doubt as to whether defendant now might obtain a decree of annulment, even if he should undertake to do so. Annulment is fundamentally a creature of equity [Nelson, Divorce and Annulment (2nd Ed.), Vol. 3, § 31.02, p. 277] ; a suit seeking annulment is a proceeding in equity; and, as in all equitable actions in which application for relief is addressed to a court of conscience, the clean hands maxim, i. e., “he who comes into equity must come with clean hands,” is applicable in a proceeding brought for the purpose of annulling a voidable marriage. Furthermore, when a party to a voidable marriage contracted within nonage reaches the age of consent (i. e., marriageable age as distinguished from the age of competency to contract), such party may elect to ratify or repudiate the contract. Annotation 159 A.L.R. 104. As a general rule, an election to affirm will be inferred from continued cohabitation [55 C.J.S. Marriage § 11, loc. cit. 825; 35 Am.Jur., Marriage, § 106, p. 247]; and, having elected to affirm, a party thereafter may not disaffirm. Long v. Long, 15 Ill.App.2d 276, 145 N.E.2d 509, 513(2). Persuasive authority supports the statement, particularly pertinent in the case at bar, that “(t)he operation of the general rule that the marriage of a person of nonage may be ratified by the spouses living together as husband and wife subsequent to arrival at marriageable age is not affected by the fact that the consent of the parents of such a person was not obtained, under a statute allowing marriages between persons otherwise incapacitated to marry because of nonage in the event such consent is obtained.” Annotation 159 A.L.R. 104, 105. With annulment of marriage not a favorite of the law, it is settled judicial policy to grant a decree of nullity “only under circumstances and for causes clearly warranting such relief.” 3 Nelson, op. cit. supra, § 31.05, p. 279. See also Worthington v. Worthington, 234 Ark. 216, 352 S.W.2d 80, 82-83, and 55 C.J.S. Marriage § 58c, p. 938.

Returning from this short excursion into the field of annulment to the specific point of controversy, towit, the judgment awarding plaintiff $150 as attorneys’ fees, we observe that, where the marriage ⅛ not admitted by defendant husband, a motion for temporary alimony or attorneys’ fees must be supported by a prima facie showing of the marriage [Hill v. Hill, 241 Mo.App. 243, 253, 236 S.W.2d 394, 400], hut that ordinarily the wife’s motion for temporary allowances, if otherwise meritorious, will be sustained upon such prima facie showing, even though the husband tenders an issue of the validity of the marriage. Franklin v. Franklin, 365 Mo. 442, 445, 283 S.W.2d 483, 485(3). Otherwise stated, “(n)otwithstanding the fact that the matter offered by the defendant in defense might make out a prima facie case against the wife, going to the validity of the marriage of the parties, yet the wife (is) entitled to be heard in court, to be allowed the assistance of counsel and a reasonable counsel fee as well as alimony pendente lite in such sum as the court might deem proper.” Ascher v. Ascher, 202 Mo.App. 622, 630, 216 S.W. 576, 578(1); Bradley v. Bradley, Mo.App., 295 S.W.2d 592, 596. Certainly instant plaintiff, asserting the validity of her marriage, has made a prima facie showing thereof, and defendant has done no more than tender an issue as to validity. Contrast Preston v. Preston, Mo.App., 342 S.W.2d 956, where plaintiff not only failed to make a prima facie showing of marriage but also, by her sworn pleadings and proof, demonstrated that there had been no marriage. In the detailed circumstances of the situation under review, the trial court did not err in allowing attorneys’ fees to plaintiff. In addition to the Franklin, Ascher and.Bradley cases, supra, see also Kruse v. Kruse, 231 Mo.App. 1171, 85 S.W.2d 214; Hunt v. Hunt, supra, 100 P. loc. cit. 543-544(3); Whitehird v. Luckey, 180 Okl. 1, 67 P.2d 775(2), 110 A.L.R. 1279; Stone v. Stone, 193 Okl. 458, 145 P.2d 212, 214(6), 215(8); Portwood v. Portwood, Tex.Civ.App., 109 S.W.2d 515, 524-525(26, 27); Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 381, 5 L.R.A., N.S., 767; State ex rel. Wooten v. District Court of Silver Bow County, 57 Mont. 517, 189 P. 233, 238, 9 A.L.R. 1212; annotation 110 A.L.R. 1283; annotation 4 A.L.R. 926.

The judgment should be and is affirmed.

RUARK, P. J., and McDOWELL, J., concurs.

      . “Any unmarried male of the age of twenty-one (21) years or upwards, or any unmarried female of the age of eighteen (18) years or upwards and not otherwise disqualified is capable of contracting and consenting to marriage; but no female under the age of eighteen (18) years and no male under the age of twenty-one (21) years shall enter into the marriage relation, nor shall any license issue therefor, except upon the consent and authority expressly given by the parent or guardian of such underage applicant in the presence of the authority issuing such license; % ⅜ * Provided, however, every male under the age of eighteen (18) years, and every female under the age of fifteen (15) years are expressly forbidden and prohibited from entering into the marriage relation. Provided, that this section shall not be construed to prevent the courts from authorizing the marriage of persons under the ages herein mentioned, in settlement of suits for seduction or bastardy; and the courts may also authorize the marriage of persons under the ages herein mentioned, when the unmarried female is pregnant, or has given birth to an illegitimate child, whether or not any suits for seduction or bastardy have been brought; * *

      . Hartman v. Valier & Spies Milling Co., 356 Mo. 424, 432, 433, 202 S.W.2d 1, 5, 6(1); Henderson v. Ressor, 265 Mo. 718, 730, 178 S.W. 175, 178(5), appeal dismissed 248 U.S. 536, 39 S.Ct. 21, 63 L.Ed. 408; Green v. McDowell, 210 Mo.App. 517, 527, 242 S.W. 168, 171(1); Derrell v. United States, D.C.Mo., 82 F.Supp. 18, 20-21(1); Restatement, Conflict of Laws, § 121, comment e, p. 186; annotation 71 A.L.R.2d 687, 692-693.

      . Hughes v. Kano, 68 Okl. 203, 173 P. 447; White v. McGee, 149 Okl. 65, 299 P. 222, 224; Stone v. Stone, 193 Okl. 458, 145 P.2d 212, 214(2). See also Plummer v. Davis, 169 Okl. 374, 36 P.2d 938, 942, and Portwood v. Portwood, Tex. Civ.App., 109 S.W.2d 515, 519, 522(8, 9), involving an Oklahoma marriage of minors. The cited Oklahoma cases are in accord with the general rule. Consult 35 Am.Jur., Marriage, § 103, p. 245; Nelson, Divorce and Annulment (2nd Ed.), Yol. 3, § 31.07, p. 281; Boehm v. Rohlfs, 224 Iowa 226, 276 N.W. 105, 108(4); Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 380(2), 5 L.R.A..N.S., 767; State ex rel. Scott v. Lowell, 78 Minn. 166, 80 N.W. 877, 46 L.R.A. 440.

      . Jordan v. Missouri & Kansas Tel. Co., 136 Mo.App. 192, 198-199, 116 S.W. 432, 433-434 (2, 3); Portwood v. Portwood, supra, 109 SW.2d loc. cit. 522(10, 11); Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613, 615(3); Cruickshank v. Cruickshank, 193 Misc. 366, 82 N.Y.S.2d 522, 525 (3); Dunphy v. Dunphy, 161 Cal. 87, 118 P. 445, 446(1); State ex rel. Scott v. Lowell, supra, 80 N.W. loc. cit. 878(2); State v. McPherson, 72 Wash. 371, 130 P. 481, 483; 35 Am.Jur., Marriage, § 57, loc. cit. 220 ; 55 C.J.S. Marriage § 11, loe. cit. 823; Speca, The Development of Jurisdiction in Annulment of Marriage Cases, 22 U.Kan.City L.Rev. 109, 111 (1954).

      . Meredith v. Meredith, 79 Mo.App. 636, 640(1); Marre v. Marre, 184 Mo.App. 198, 168 S.W. 636, 640(9); Henderson v. Ressor, supra, 265 Mo. loc. cit. 729, 178 S.W. loc. cit. 177 (4); Worley v. Worley, Mo.App., 176 S.W.2d 74, 77(2) ; Anderson, Annulment of Marriages in Missouri, 21 Mo.L.Rev. 119 (1956); Spe-ca, supra note 4, loe. cit. 139.

      . Meredith v. Meredith, supra; Marre v. Marre, supra, 184 Mo.App. loc. cit. 211-212, 168 S.W. loc. cit. 640(9); Christensen v. Christensen, supra, 14 N.W.2d loc. cit. 616(9-12) ; Blunt v. Blunt, 198 Okl. 138, 176 P.2d 471; 3 Nelson, op. cit. supra note 3, § 31.46, loc. cit. 332; 3 id., § 31.18, pp. 295-297.

      . Matthes v. Matthes, 198 Ill.App. 515, 523(9); Long v. Long, 15 Ill.App.2d 276, 145 N.E.2d 509, 512; Holtz v. Dick, 42 Ohio St. 23, 28-29; Keith v. Pack, 182 Tenn. 420, 187 S.W.2d 618, 159 A.L.R. 101.


text:
    Lana Kathleen BACKY, (Plaintiff) Appellant, v. Andrew J. BACKY, (Defendant) Respondent.
    No. 30950.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.

      James H. Connor, Festus, William L. Mason, Jr., St. Louis, for appellant.
    W. H. S. O’Brien, Festus, William S. Bahn, St. Louis, for respondent.
   SAMUEL A. DEW, Special Commis- * sioner.

On respondent’s motion^o quash a general execution to enforce the part of a divorce decree awarding alimony in gross, the court sustained the motion, stayed execution and modified the decree so as to provide for the payment of the unpaid allowance in monthly installments pending the appellant’s occupancy of real estate jointly owned by the parties. From that order this appeal was perfected. The sole point of error relied on is that the court lacked jurisdiction and authority to modify a decree of alimony in gross so as to provide for its payment in monthly installments.

On October 23, 1959, a divorce was granted to the appellant (hereinafter referred to as the plaintiff). In the decree the court also awarded to her the custody of the nine minor children of the parties, a monthly allowance for child support, and $9500 as alimony in gross. As to the alimony, the decree read that “the defendant pay to the plaintiff the sum of $9500 as Gross alimony in this case. Stay of Execution on the Gross Alimony, for one year upon payment to Plaintiff of the defendant’s part of the equity in the Olive Street property and Defendant’s part of the equity of the 2nd Street property as soon as it can be sold.” No appeal was taken from that decree.

On January 10, 1961, a general execution was issued by the plaintiff to recover the unpaid portion of the said alimony in gross, to-wit: $6,920, inclusive of interest claimed by the plaintiff. The sheriff’s return shows some sort of execution of this writ by “returning all papers and bills on this sale by orders of J. W. Thurman, Attorney.” Meanwhile, however, the respondent (hereinafter referred to as the defendant) filed a motion on February 10, 1961, to quash the above execution on the grounds that the decree as to the alimony was not yet final because certain conditions thereof had not been performed by the plaintiff, having to do with the sale of “the 2nd Street property,” jointly owned by the parties and referred to in the decree, the sale of which had been prevented by the plaintiff. The motion also prayed for a stay of execution until the judgment be declared to have been complied with and had become final. The motion alleged certain expenses and disbursements on defendant’s part for the benefit of the minor children and that he had suffered a loss in the maintenance of the joint real estate. The motion further asked the court, in the alternative, in event it be found that he had performed his part of the provisions of the decree, that the execution be quashed and stayed, and that an order be entered “requiring the balance of gross alimony herein to be paid by defendant in equal monthly payments, without interest, in a definite amount not to exceed one hundred dollars ($100.00) per month.” On February 13, 1961, the foregoing motion to quash is shown “sustained.”

On April 12, 1961, an order was entered described in the record as “A Written Order Confirming Stay of Execution, entered February 13, 1961, and clarifying and modifying the original order.” The ensuing order then recited the appearance of both parties in person and by their attorneys, and the court ruled therein that the “Defendant’s Motion to Quash the Execution is hereby sustained and the payment of Gross Alimony is hereinafter clarified and modified.” The order proceeded to find the facts to be that the defendant had paid the monthly child support as decreed; had continued to pay the mortgage payments on the joint properties on 2nd Street in Festus, Missouri, and in Antonia, Missouri; had voluntarily maintained an insurance program for the benefit of their minor children at a cost of $150 per month; that plaintiff had received $6,000 at the time of the divorce decree of which $3,000 was applicable to the gross alimony and $3,000 was from the sale of real estate; that plaintiff had squandered the entire $6,000 and was now $1,000 in debt; that the plaintiff, with her eight minor children, had on or about April, 1960, moved into and was still occupying the 2nd Street property where, in fact, the court said, it appeared that she could reside more comfortably and economically than elsewhere, which occupancy, the court found, was reasonably worth $100 per month as a fair rental value. The order thereupon proceeded as follows:

“NOW THEREFORE, the Court finds that it would be to the best interest of the parties hereto and the said minor children that the unpaid Gross Alimony theretofore allowed be paid to the Plaintiff at the rate of ONE HUNDRED DOLLARS ($100.00) per month and that the Defendant be given credit for FIFTY DOLLARS ($50.00) per month as his share of rent due and owing by Plaintiff, and it is ordered that Defendant pay the sum of FIFTY DOLLARS ($50.00) per month until the entire unpaid balance of Gross Alimony is satisfied for so long as Plaintiff continues to reside in said Second Street property; and it is further ordered that in the final accounting Defendant shall be given credit for rental of Second Street property by Plaintiff prior to the date of this order, and that the Defendant be given credit for one-half of the total mortgage payments, insurance, taxes, repairs and maintenance on both the Second Street and Antonia, Missouri properties, to the extent that such total exceeds the rents received from the Antonia property; the Court Further finds as a matter of fact that there remains due and unpaid on the Gross Alimony allowance the sum of SIX THOUSAND, FIVE HUNDRED DOLLARS ($6,500.00) less the sum of FIVE HUNDRED DOLLARS ($500.-00) being one-half the rent on the Second Street Property from April 196Q to and including January 31, 1961 inclusive, or SIX THOUSAND DOLLARS ($6,000.00) which is subject to> accounting deductions, if any, of mortgage payments, insurance, taxes, repairs and maintenance as above mentioned, possibly exceeding rental income.
“It is further ordered that Execution will issue on the unpaid balance of Gross Alimony, less credits, upon default of a monthly payment as provided herein.
“So ordered this 12th day of April, 1961.”

Plaintiff asserts that the only authority for a modification of a decree of alimony must be found in Section 452.070 RSMo 1959, V.A.M.S., and that no authority is found in that statute for the modification of an award of alimony in gross. She further claims that it is uniformly so held by the reviewing courts of this state. That statute, it will be recalled, referring to awards of child custody, child maintenance and alimony, provides that: “The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper * *

The law relative to modification of a judgment for alimony under the above statute is well stated in Landreth v. Landreth, Mo.App., 326 S.W.2d 128, 131, as follows: “A modification of a judgment for alimony is dependent on a change in the circumstances of the parties between the time the judgment is entered and the time the motion for modification is filed (citations) . * * * ‘authority for modification of a judgment for alimony is dependent upon proof of a subsequent change in conditions. * * * ’ ”

Defendant contends that the original decree itself prescribed certain conditions as to when and how the gross alimony could become final and collectible, namely, upon the suggested sale of joint properties from which defendant could pay his equities to apply on the alimony; that the conditions referred to in the decree were ambiguous and unenforceable; that, with the parties before it, upon the motion, the court properly recognized a mandate to clarify its decree and to do so with the facts in mind as they had since transpired and appeared; that the court did not alter the gross amount of alimony awarded, but only supplied the method of its payment; that great deference should be paid the action of the court which had all the parties before it; that this court should review the matter de novo in the light of the record and should approve the order made; that the alimony should be treated separately from the divorce ; that the award remained ambiguous from the date of the decree to the date of the order appealed from resolving the ambiguity; that jurisdiction, in the absence of proof, should be presumed.

It is evident from the order in question that the court was confronted with a perplexing set of facts. It appears from the decree that the court believed that the gross alimony would and could be paid, in whole or in part, out of the defendant’s equities in two tracts of real property jointly owned by the parties and which would be sold; one of these properties was the “Olive Street” property and the other the “2nd Street” property in Festus, Missouri. There seems to be other joint real estate mentioned in the record in Antonia, Missouri. The court, however, having fixed in its decree a definite aggregate amount of alimony as a gross award, it undertook to withhold the finality or the collectibility of the award by providing for a one year stay of execution thereon “upon payment to Plaintiff of Defendant’s part of the equity” in the two properties described, “as soon as it can be sold.” It developed on the motion to quash that the Olive Street property had, in fact, been sold after the decree and defendant had paid to the plaintiff his part of the proceeds, $3,000, to apply on the gross alimony, she receiving her part at the same time in the same amount. But it also appeared upon the hearing on the motion, that defendant, since February, 1960, a little more than six months after the decree, had been prevented from realizing his equity in the 2nd Street property and applying the proceeds therefrom to the gross alimony as referred to in the decree, for the reason that plaintiff, with her eight minor children, had moved into that property and was occupying it at the time of the order of modification, as both tenant-in-common and occupant thereof. It also appeared from the evidence that the fair rental value of that property was $100 per month, to half of which defendant was entitled. The court found, however, that at that time the plaintiff and her children could reside more comfortably and economically in the 2nd Street property than elsewhere, but that defendant was entitled to $50 per month of the rental for which he should receive credit on the alimony.

Aside from the change of conditions shown in the order appealed from, it was evident that the original decree itself was ambiguous; that the finality of the award of the gross amount was deferred for one year by the terms of the award itself, upon the payment of defendant’s equity in the joint real estate named “if it can be sold,” but it is not clear how, when or by whom it was to be determined when such property “can be sold,” nor whether such payments of equity must be made within the year following the decree or at some other time. Under the conditions the court found it necessary to clarify the finality of the award, and further found that the subsequent circumstances affecting the best interests of the minor children and the parties made it proper., in ruling on the motion, to modify the mode of payment of the gross amount of alimony.

Consideration of the finality or modification of an award of alimony does not involve the awards of the decree for divorce, custody of the children or allowance for child support. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 570, 9 A.L.R.2d 428; Poole v. Poole, Mo.App., 287 S.W.2d 372.

The plaintiff takes the firm, unconditional stand that because the award of alimony was for a gross amount, the award cannot be modified in any respect. In support of her position she cities several decisions of the courts of this state. In Nelson v. Nelson, (en banc) 282 Mo. 412, 221 S.W. 1066, it is ruled that a judgment for alimony cannot be modified so as to defeat a wife’s right to installments already accrued. In Arnold v. Arnold, Mo., 222 S.W. 996, an award of $25,000 alimony in gross, to be paid at the expiration of a trust of five years or at the death of a person named was, upon a motion for new trial, modified at a succeeding term to declare such award to be in lieu of all dower and marital rights. It was ruled that a decree awarding alimony in gross is not subject to modification after the term, but that the order in question was made on a motion duly filed in term and continued to the succeeding term. In Carl v. Carl, Mo.App., 284 S.W.2d 41, the decree awarded the wife $2400 alimony in gross. Later, on stipulation, the court modified the alimony allowance to one for monthly payments of $100 each in lieu of the original judgment for alimony in gross. Thereafter, on motion, the modification was set aside and the original award reinstated. No appeal was taken from the original decree and the appellate court ruled that the award of alimony therein was in gross and was a final judgment, and being an allowance in gross, it could not be modified.

In Hughes v. Wagner, Mo.App., 303 S.W.2d 181, it was held that the court has no power in divorce actions to modify a decree for alimony as to installments already accrued. The court had ordered certain past due and unpaid installments of alimony to be paid at certain new dates in the future. In Schaffer v. Security Fire Door Company, et al., Mo., 332 S.W.2d 860, it was ruled that on a motion to quash an execution under a divorce decree, the court should quash the execution to the extent that it exceeded the amount claimed or due, and thus to amend the execution.

Further research discloses similar rulings in other cases in this state. Burtrum v. Burtrum, Mo.App., 210 S.W.2d 364, was a direct appeal from a divorce decree, wherein alimony in gross, payable in monthly installments, was modified to a fixed amount per month without limitation as to the aggregate sum allowed, and the court in that connection at page 372, said: “The chief advantage of such a plan is that it is flexible and subj ect to modification from time to time as changing conditions might require; while an allowance of alimony in gross is-fixed, permanent, and final and is not subject to modification except on direct appeal.” The court in Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, said by way of dictum at page 924: “ * * * an allowance of alimony in gross is held to be not subject to modification, Arnold v. Arnold,. Mo.Sup., 222 S.W. 996, except on direct appeal. Wells v. Wells, Mo.App., 117 S.W.2d 700.” It is stated in 27A C.J.S. Divorce § 238(a), page 1115 : “A decree for alimony alone is ordinarily subject to modification; but this does not apply to lump sum allowances.”

It is our view that the above cases cited by the plaintiff and the other authorities above noted which hold that an award for alimony in gross cannot be modified except on appeal, are applicable to and contemplate only such awards of gross alimony as, by their terms and form, are final, determined, unambiguous and capable of execution. It must be borne in mind that the award here in question, while gross in amount, expressly withheld its finality as. to its enforceability pending the possible-sale of joint real estate out of which the-defendant’s equities, if such properties were-sold within a limited time, might be applied. to the gross award, and the clarification did' not alter the gross amount of the original! award.

It is said that “If anything has been omitted from the judgment which is necessarily or properly a part of it, and which was intended and understood to be a part of it, but failed to be incorporated in it through the negligence * * * of the court or counsel, or the clerk, the omission may be supplied by an amendment, even after the term. If the proposed amendment is a mere afterthought, and formed no part of the judgment as originally intended and pronounced, it may not be brought in by amendment.” 49 C.J.S. Judgments § 240, p. 455 and, § 249, at page 463, “Independently of statute, a judgment may be amended so as to cure it of ambiguity or remove the possibility of confusion.”

It has been ruled by this court that “It is elementary that a judgment must be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. It must be in such form that the clerk is able to issue an execution upon it which an officer will be able to execute.” Bishop v. Bishop, Mo.App., 151 S.W.2d 553, 557. The Supreme Court said in State ex rel. Rosen v. McLaughlin, Mo. (en banc), 318 S.W.2d 181, at page 185, 68 A.L.R.2d 1366, that “We may not hold the court’s order to be an absolute nullity unless it is so absolutely unintelligible and no other construction may be placed upon it.” In 27A C.J.S. Divorce § 238, page 1112, it is stated that “A court may construe and clarify ambiguous decrees for alimony whether or not it has the power to modify them.”

There can be no question of the authority of the court in a divorce action to provide, in its decree for an award of alimony in gross, that it be payable in installments. 17 Am.Jur., page 734, Section 670. The original decree itself, on which the plaintiff relies, provided, although ambiguously, and without disturbing the gross amount of the award, for possible conditional installments in the future, upon the later sales of joint real estate.

We' believe it is clear in the instant case that the court intended to and did fix and determine the aggregate or gross amount of the alimony; that it intended to and did grant a stay of execution thereon to permit of a certain mode of future payment; that in so doing certain ambiguous provisions were made, deemed necessary to carry the judgment into effect; that on the motion to quash and stay execution and to modify, the court, under the changed conditions shown, modified and clarified the decree only as to the manner and mode of its execution.

In State ex rel. Maple v. Mulloy, 322 Mo. 281, 15 S.W.2d 809, the Supreme Court recognized exceptions to the rule prohibiting the amendment of a judgment after term except upon appeal, and said on page 814 that such rule did not apply to instances where statutory authority existed or to exceptions “such as subsequent directions necessary to carry a judgment into effect, but which do not change or modify the judgment with respect to matters put in issue and determined by the judgment (34 C.J. 235), and changes in the directory parts of a judgment looking to the mode of its execution.”

The same exception is noted in 49 C.J.S. Judgments § 238, page 454: “Likewise; directions for carrying a judgment into effect, which do not change or modify the judgment with respect to matters put in issue and determined by the judgment, may be inserted or modified by amendment (citations) .”

The additional fact exists in the instant case that the decree is one in a divorce case including an award of alimony, one of the elements made subject to amendment or modification by the statute. See also 15 R.C.L., Judgments, § 129.

It is our conclusion that the court had the power and authority, upon motion and with the parties present, to quash the execution on the award as decree, and to stay execution thereon, because of the provision of such award granting a stay of execution thereon, and because of the ambiguity of the conditions of such postponement, and, further, because of the authority given under Section 452.070 RSMo 1959, V.A.M.S., upon ample evidence of substantial change of conditions, to make such alterations from time to time as to allowances of alimony as may be proper. For the reasons stated, we conclude that the order of the trial court on the motion to quash the execution and to stay execution and to modify the provisions for carrying the judgment into effect should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DEW, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is, accordingly, affirmed.

ANDERSON, P. J., WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.