text:
    Richard A. ERICKSON, Appellant, v. CIVIC PLAZA NATIONAL BANK OF KANSAS CITY, a Banking Corporation, Alexander J. Barket and Charles A. Truitt, Respondents.
    No. 24774.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Charles V. Garnett, Kansas City, for appellant.
    Levy & Craig, Bernard D. Craig, Paul Margolis, Jr., Kansas City, for respondents.
   CHARLES SHANGLER, Special Judge.

Plaintiff Richard A. Erickson brings suit in equity against the Civic Plaza National Bank, Alexander J. Barket and Charles A. Truitt, as principal officers of that bank, for specific performance to compel delivery to plaintiff of 100 shares of the capital stock of defendant Civic Plaza National Bank. The issues were tried to the court, which duly entered its findings of fact, conclusions of law and denied plaintiff that relief. On this appeal, the court will review the entire record, make its own determination as to the facts, decide the weight and value to be given the evidence, deferring, however, to the findings of the trial court whenever appropriate. Tinnon v. Tanksley, Mo.Sup., 408 S.W.2d 98.

The basic legal issue presented to the trial court and to be determined de novo on this appeal is whether one Philip J. Close was authorized to enter into a contract for the sale to plaintiff of 100 shares of the capital stock of defendant Civic Plaza National Bank, then in the process of organizing. As the determination of that question involves the priority of events, we shall describe them chronologically rather than in the sequence in which they were presented at the trial.

Plaintiff’s evidence consisted of certain deposition testimony of defendants Bar-ket and Truitt and answers to interrogatories made by defendant Barket, all of which were received as admissions against interest. Defendant Truitt was examined as an adverse witness and plaintiff Erickson testified on his own behalf. Defendants offered the testimony of defendant Barket and Paul Ross, Regional Administrator of National Banks, Tenth National Bank Region.

Defendant Barket, having conceived the idea of organizing a national bank, employed Philip J. Close on about February 20, 1962. Close, a lawyer with banking experience, was employed, according to Bar-ket, to perform legal work in connection with obtaining a charter for the proposed Civic Plaza National Bank. During that month, Close visited defendant Truitt on a different matter and mentioned to him the proposal to organize the new bank. Thereafter, Truitt, in the company of Close, visited Barket. Truitt became an organizer of the bank, eventually becoming the owner of 70 shares of its capital stock. From April 29, 1963 to April, 1965, Truitt served as President of the bank.

On March 30, 1962, Application to Organize a National Bank was filed with the Comptroller of the Currency of the United States. Mr. Paul Ross was the Regional Administrator for National Banks and his Kansas City office received the actual filing of the application and processed it. It was signeo by eight persons as organizers, among them the defendants Barket and Truitt. Mr. Erickson was not a signatory. The application recited that the proposed bank was to have a capital of 50,000 shares of the par value of $20.00 per share, a surplus of $350,000.00 and undivided profits of $150,000.00, for a total capitalization of $1,500,000.00. Thus, the gross value of each share was $30.00. Barket and his family became owners of 46,000 of the shares. By March 30, 1962, the date the application was filed, all of the 50,000 shares as authorized had been fully subscribed.

On April 9, 1962, a news article appeared in the Kansas City Star, titled “Seek Charter for New Bank” (Plaintiff’s Exhibit 1). It contained a description of the proposed location, capitalization and organization of the defendant bank. The names of the organizers and members of the board of directors were listed, among whom were defendants Barket and Truitt. Also listed as organizers and members of the board were Dan T. McKeever and Alfred C. McWhirter, both of whom were personally known to plaintiff Erickson. The article had been prepared by Close and discussed with defendant Truitt prior to its publication. It described Close as “attorney for the group of incorporators.” All of the significant events which we re-' late hereafter had their genesis in this publication.

Plaintiff Erickson read the article. As it happened, plaintiff, a practicing lawyer, and Close, also a lawyer, were acquaintances of long standing and occupied offices in the same building. Within two days after the article appeared, Erickson encountered Close in the lobby of their office building, made inquiry of him as to whether he was acting for the organizing group and manifested interest in purchasing some bank stock as an investment.

On May 7, 1962,. plaintiff Erickson executed his check in the sum of $3150.00 payable to “Phil J. Close, Attorney” (Plaintiff’s Exhibit 3). The endorsement on its reverse side reads: “Phil J. Close, Attorney, for deposit.” It was identified by plaintiff as Close’s signature.

Later, plaintiff received from Close a “Receipt & Agreement” (Plaintiff’s Exhibit 4), dated May 14,1962, which acknowledged the $3150.00 as payment for 100 shares of the capital stock of Civic Plaza National Bank, to be delivered “when issuance thereof is authorized by the Comptroller of the Currency.” It was “approved” by plaintiff’s signature.

On July 24, 1962, the preliminary application submitted by the organizers was approved. The significance of this approval does not appear in the record.

As best as we are able to discern from the record, on September 7, 1962, Close and Barket were in New York in the office of a Mr. Emmet. Emmet’s role in this affair was not fully drawn. Defendant Barket described him as “a man of substance,” “a free lance individual,” “not an investment banker”; otherwise, Emmet remains a shadowy figure in this narrative. On September 20, 1962, Barket returned to Emmet’s office with his attorney, Mr. Craig. According to Barket, these trips to Emmet’s office in New York were prompted by information having come to his attention; “rumors were coming back to me and I wanted to quash them and straighten them out” * * * “people asked me if he (Close) was authorized and I said ‘no’ ”. Barket denied that his dispute with Close concerned fees as he had been paid $9500.00 in fees and was advanced an additional $2500.00 as a personal loan. Barket gave Close “preliminary notice” of his discharge on September 7, 1962, while both were in New York, but the actual discharge occurred on September 13, 1962 and was confirmed by letter of October 10, 1962 (Plaintiff’s Exhibits 5 and 6). Truitt advanced as the reason for Close’s discharge that the organizers were not content with the manner in which he was conducting the continuation of the charter after the preliminary application was approved.

Sometime after Close’s discharge, either during September or October of 1962, he consulted with plaintiff Erickson who is, it is to be recalled, a practicing attorney. Erickson telephoned Barket about the alleged attorney’s fee owing Close. Bar-ket denies that Erickson, during that telephone conversation, mentioned the 100 shares of stock for which he now makes claim. Barket insists he and the bank first learned of this claim for the first time when plaintiff’s attorney’s letter under date of February 25, 1964 was received by the defendants. As the result of that telephone call, Erickson, Close and Barket met in the office of Barket’s attorneys.

At this meeting, Erickson testified he became aware of the Manuel affair when he saw a receipt and check substantially in the form of the check and receipt involved in his transaction with Close. He observed: “It looked exactly like the deal I had with Close.”

The attorneys for George B. Manuel, by letter of November 5, 1962 (Plaintiff’s Exhibit 7), had made demand upon the Civic Plaza National Bank for reimbursement to him of $3150 which Close had received in payment for 100 shares of the bank’s stock. This stock subscription was taken from Manuel by Close on August 20 or 21, 1962. Barket acknowledged having made full restitution to Manuel and gave as his reason he was advised to do so by Mr. Ross, Regional Administrator of National Banks, so that the issuance of the bank charter would not be impaired. Mr. Ross confirmed having made that recommendation.

On April 27, 1963, the final charter was issued to the defendant bank. Prior to its issue, the total of $1,500,000.00 had been paid in by the organizers and deposited in the First National Bank of Boston. Also, each .subscriber and organizer had been interviewed by Mr. Ross to determine the extent of ownership by each of the bank’s stock and to inquire into their financial responsibility. Plaintiff Erickson was not one of them. Close died on November 5, 1963. On February 25, 1964, plaintiff Erickson, by his attorney, made demand on defendant bank to issue him the 100 shares of stock which is the subject of this suit.

Was Close authorized by any of the defendants to contract with plaintiff for the sale to him of 100 shares of the capital stock of the defendant bank? The answer to that basic question necessarily requires a definition of the relationship which subsisted between Close and the organizers, and particularly defendants Barket and Truitt. Was that relationship attorney and client, or something more? Or was Close the agent for the organizers for such purposes and under such circumstances as would have led a person of ordinary prudence to believe Close possessed authority to contract for stock subscriptions ? These questions are more than simply didactic.

The creation of the attorney-client relationship “is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession.” 7 Am.Jur.2d, Attorneys at Law, page IOS. The relationship, “in a limited and dignified sense” is essentially that of principal and agent. Schwarze v. May Department Stores, Mo.App., 360 S.W.2d 336; Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332. Two concomitants of the agency arising from the attorney-client relationship distinguish it from many other types of agency. Firstly, is the limit of its scope and particularly where an attorney is employed for a definite purpose not involving litigation in court, as in the case before us.

“Hence the employment of an attorney at law to advise a client in regard to questions of law which may arise in a business transaction, or to handle legal matters, gives the attorney no authority to transact the business of the client generally, or his business in the particular transaction, except as the attorney is specifically authorized to act.” 7 C.J.S., Attorney and Client § 101, page 923. (Emphasis supplied.)

Secondly, a privilege attends the attorney-client relationship, distinguishing it from many other forms of agency. When the client has committed his affairs to an attorney for his advice thereon, communications between them made in confidence, are privileged against disclosure. Section 491.060(3), R.S.Mo., 1959; Bussen v. Del Commune, Mo.App., 239 Mo.App. 859, 199 S.W.2d 13.

The record evidence convinces us that the relationship of attorney and client was established between Close, Barket, Truitt and the organizers. Close, who was both a lawyer and a banker, was hired by defendant Barket to perform legal services necessary to obtain a national bank charter. There is nothing in the record to indicate that Close was not hired for at least that purpose. His period of actual employment was from February 20, 1962 until September, 1962 and he was paid $9500.00 for his services. The preliminary application for the charter was approved on July 24, 1962. The news item of April 9, 1962, which appeared in the Kansas City Star, authored by Close, himself, and approved by defendant Trait described Close as “attorney for the group of incorporators.” His duties included that of correspondent between the organizers and Comptroller of the Currency ; as liaison between the two, he was required to maintain the documentation supporting the application for the new bank. Close’s duties, manifestly, required some knowledge of the Federal laws pertaining to chartering national banks. The relationship between Close and the organizers contemplated the continuing need and use of Close’s legal services. The chartering of the bank, therefore, was committed to Close, an attorney. “A matter committed to a professional legal adviser is prima facie so committed for the sake of legal advice which may be more or less desirable for some aspect of the matter. * * * ” (Emphasis supplied.) Wigmore, On Evidence, Volume VIII, McNaughton Revision, Sec. 2296, page 567.

Did Close, in his capacity as attorney for defendants Barket, Truitt and other organizers, have authority to enter into the subscription contract in issue? We believe he did not. There was no evidence which warrants the inference or conclusion that Close was authorized to contract on behalf of his clients. It was not contemplated as among his legal duties, nor was it within the scope of his authority. “The mere existence of the relationship of attorney and client is not sufficient proof to establish the authority of the attorney to act for his client in the making of a contract.” Dyer v. Union Electric Company, Mo.App., 318 S.W.2d 401. Nor does an attorney have any implied power “to bind his client by an agreement collateral to and independent of the subject matter of his employment,” 7 C.J.S. Attorney and Client § 103, page 925. A very instructive discussion of this subject is found in Robinson v. DeWeese, Mo.App., 379 S.W.2d 831, dealing, as well, with the powers of an attorney in the conduct of litigation.

If plaintiffs contention that Close was authorized to contract for the stock subscription on behalf of the organizers is to be established, therefore, it must be premised on something other than the attorney-client relationship. Plaintiff complains, however, that the trial court denied him the right to probe into the purpose of Close’s employment. If allowed, he maintains, such inquiry would have permitted him to determine whether services other than purely legal were contemplated as part of Close’s employment. During the course of the trial, plaintiff undertook to question defendants Barket and Truitt concerning transactions and communications between them and Close. Defendants objected to many of these questions on the ground that they called for information not subject to disclosure under the attorney-client privilege. Of course, confidential communications between attorney and client, in the discharge of his duty to his client are privileged, Ex parte Schneider, Mo.App., 294 S.W. 736. The privilege belongs to the client, Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Ex parte Schneider, supra. Whether a communication is privileged, of course, is one for the court. Heald v. Erganian, Mo.Sup., 377 S.W.2d 431. It is also clear that the mere relation of attorney and client does not raise a presumption of confidentiality; Wigmore, op. cit., Volume VIII, pages 599, 600.

We do not undertake to review all of the trial chancellor’s rulings on the evidence as they relate to the attorney-client privilege or other areas. We have the whole record of this equity trial before us and we will consider only such evidence as we deem admissible and reach our judgment on the competent evidence offered without regard to the trial court’s rulings. Middleton v. Reece et al., Mo.Sup., 236 S.W.2d 335; Hussey v. Robinson, Mo.Sup., 285 S.W.2d 603; Louis v. Andrea, Mo.Sup., 338 S.W.2d 96.

Plaintiff’s most pointed and insistent complaint is that the trial court refused to permit him to question Barket concerning Close’s employment. Plaintiff contends Close was actually and primarily employed to promote the budding bank, and that his employment as an attorney was merely incidental to that larger purpose. With respect to this contention, we have scrutinized the record with scrupulous care and it discloses as follows: Prior to trial, plaintiff took the depositions of defendants Barket and Truitt. During those examinations, certain questions were asked which defendants, upon advice of counsel, declined to answer on the basis that they were privileged communications between attorney and client. Among those questions is the one of which plaintiff particularly complains: “Wasn’t he (Close) also employed to assist you in promoting this enterprise?” These questions were thereupon certified to the trial court for ruling, and among them was the question noted. That question appeared on page 19 of the deposition transcript. On the morning cf the trial the court took up plaintiff’s Motion to Require Answer to Certified Questions. With respect to the question in issue, the record reveals:

“THE COURT: And on page 19, lines 15 to 19, inquiring directly to the purpose of employment of Mr. Close, it is sustained. They should answer the question.”

During the actual trial, and during plaintiff’s reading of portions of the deposition testimony of defendant Barket as admissions against interest, the following colloquy took place (the subject of the deposition excerpts so offered was the nature of Close’s employment) :

“MR. GARNETT: * * * I want to know whether or not Your Honor is permitting me to read at the bottom of page 12 and page 13 down to the 14th line?
“THE COURT: The court ruled in chambers. The purpose of employment may be inquired into and you may continue and the objection will be overruled.”

The trial court’s rulings were clear and unambiguous. Plaintiff, although authorized by the court to do so, simply failed to pursue the subject of the purpose of Close’s employment. As this record stands, therefore, there is no evidence that Close was employed in any other capacity or for any other purpose than that of legal adviser to defendants Barket, Truitt and other organizers.

We have already determined that Close had no actual or express authority as attorney to bind his clients to the stock subscription agreement between Close and Erickson. Had these defendants, however, placed Close in such a position that a person “in the exercise of reasonable prudence” would be led to believe Close possessed the requisite authority to contract for the stock subscription, and would be justified, in good faith, in dealing with Close as defendants’ agent for that purpose? Kuraner v. Columbia National Bank of Kansas City, 230 Mo.App. 358, 90 S.W. 2d 465, at 471. Plaintiff does not seriously contend Close had express or implied authority to do so, rather, as appears from his brief, “plaintiff at all times insisted that the controlling law of this case is whether or not Close had apparent authority, that is whether or not a prudent person would have dealt with Close under the circumstances of this record.”

Although the term “apparent authority” has been variously defined, Me-chem, The Law of Agency, Book II, Section 720, the Missouri rule is stated in Koewing v. Greene County Building & Loan Ass’n of Springfield et al., 327 Mo. 680, 38 S.W.2d 40 at page 43:

“ * * * The rule that a principal is bound by acts of his agent within the apparent scope of the agent’s authority is thus stated in Johnston v. Milwaukee & Wyoming Inv. Co., 46 Neb. 480, 64 N.W. 1100, 1102: ‘That where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perforin on behalf of his principal a particular act, such particular act having been performed, the principal is estopped, as against such innocent third person, from denying the agent’s authority to perform it’.”

See also Kuraner v. Columbia National Bank of Kansas City, 230 Mo.App. 358, 90 S.W.2d 465; Thornhill v. Masucci, 202 Mo.App. 357, 216 S.W. 819; J. A. Fay & Egan Co. v. Brown Machinery Co., Mo.App., 14 S.W.2d 491. Note, also, the somewhat varied emphases in the definitions of apparent authority found in these decisions.

A third person dealing with an agent, however, has the duty of ascertaining for himself, the agent’s authority. The law indulges no presumption that agency exists. Rosser v. Standard Mill Company, Mo.Sup., 312 S.W.2d 106. Under this rule,

“ * * * the person dealing with an alleged agent is bound to ascertain * * * (1) that the alleged agent is really such, (2) that he is an agent of the sort he purports to be * * * and (3) that the act done is within the limits of his authority. * * * ” Me-chem, The Law of Agency, Book II, Section 745, page 528.

The Missouri rule is in accord. Wyler Watch Agency v. Hooker Jewelry Co., Mo.App., 280 S.W.2d 849.

We have studied the record faithfully and fail to find any evidentiary basis for making out an apparent authority by Close to bind defendants to the stock subscription contract with plaintiff. We find no facts which would have justified plaintiff to presume that Close had any such authority, according to the criterion enunciated in Koewing, supra, and stated above. Plaintiff made an offer of proof, properly rejected by the trial court, that plaintiff met Close in the elevator of their building in May of 1962 and then conversed with him in Close’s office. Close at that time acknowledged Erickson’s previous expression of interest in purchasing some bank stock and told him there might be some stock available within a few days. Close told him he had met with the organizers and that “they intended to have a meeting to make decisions on these questions.” On May 7, 1962, Close came to plaintiff’s office and “he said that there would be some stock available and that I could write my check for it.” To the extent that this evidence was offered to establish Close’s authority to take the stock subscription from plaintiff, it is incompetent. An agency cannot be created by the mere declarations of the person assuming to act as agent; there must be independent evidence of agency to give such declarations any probative force. Mechanic’s-American National Bank of St. Louis v. Rowell, Mo.Sup., 182 S.W. 989. No independent evidence was adduced that defendants knew of such a declaration by Close of his authority in that respect, nor that such conduct was so often repeated by Close as to warrant us to imply the principals’ knowledge of it. Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751.

There was evidence that George B. Manuel had paid Close $3150.00 for 100 shares of stock in the defendant bank. The transaction, according to the letter of Manuel’s attorney to the bank, occurred in August, 1962. There is no evidence that the defendants had any knowledge of it prior to November 5, 1962, the date the letter issued. The date of plaintiff’s check to Close for the 100 shares was May 7, 1962. The date of the “Receipt and Agreement” between Close and plaintiff was May 14, 1962. Close’s apparent authority with respect to the Erickson transaction cannot be predicated upon the Manuel transaction because it occurred prior and cannot be said to have been induced by it.

“Agency by estoppel, or by claim of apparent authority, can only be predicated on facts known or appearances shown at the time of the transaction, for they cannot otherwise be said to have induced it; knowledge subsequently acquired is irrelevant. (Citation)” Dierks & Sons Lumber Company v. Morris, Mo.App., 404 S.W.2d 229, at p. 232.

The evidence concerning Close’s activities in New York, particularly with respect to Mr. Emmet, was completely inconclusive. That could have had no bearing on the question of apparent authority, as such were not “facts known or appearances shown” at the time of the transaction. The numerous authorities plaintiff cites on the question of apparent authority correctly state the law as we know it. There was simply a failure of proof that defendants Barket and Truitt held Close out as their agent for stock subscriptions or that these defendants’ “habits and course of dealing (had) been such as to reasonably warrant the presumption that (Close) was (their) agent, authorized to act in that capacity * * Haubelt Brothers v. Rea & Page Mill Co., 77 Mo.App. 672, 679. Close’s apparent authority to transact the stock agreement with plaintiff was not proved.

In any event, plaintiff Erickson, although it was his duty to do so, made no effort to ascertain whether Close’s alleged agency was such as plaintiff assumed it to be or that the sale of the stock was within the limits of his authority as agent. Wyler Watch v. Hooker Jewelry Co., supra. The Kansas City Star article of April 9, 1962 mentioned Mr. McKeever and Mr. Mc-Whirter as incorporators of the bank. Plaintiff knew them both personally, knew that they were incorporators, yet admittedly made no attempt to inquire of them as to Close’s status or authority to act in such a manner on behalf of the incor-porators of the proposed bank. Had he done so, he would have learned that all of the stock had been fully subscribed by March 30, 1962, some forty-five days prior to his own stock agreement. When asked why he had not inquired of them, plaintiff replied: “No, I did not see any reason to, and I didn’t because in the thirty years of practicing law I have never questioned the authority of an attorney to represent his client.” We have already discussed the limited scope of the attorney’s agency under these circumstances and will not repeat that discussion. Also, when asked why he waited until February 25, 1964 to make demand upon the bank for the stock, plaintiff replied: “Well, I am very busy * * * and I have a lot of things to do, and I can’t be running around following through on these matters just immediately when they happen.” Erickson’s check for the stock was made payable to Close, endorsed by him and deposited in his own account. All these facts were known to plaintiff, yet they never gave him pause to question Close’s pretended authority. It is not necessary for us to go into all of the evidence on this point. We conclude that had plaintiff made those inquiries required of him by law, he would have discovered that Close had neither apparent nor any other kind of authority to contract with plaintiff for the sale of the corporation stock.

Finally, plaintiff argues that because of defendants’ claim of privilege, plaintiff was denied information concerning Close’s activities relating to his authority. That evidence, he says, was peculiarly within defendants’ possession and their failure to adduce it or permit it to be adduced gives rise to the inference that such evidence would have been unfavorable. Plaintiff’s burden in this suit for specific performance is to have established the agreement as that of the defendants’ by clear, cogent and convincing evidence. Missouri Digest, Specific Performance, ^^l. This plaintiff failed to do even if we consider the inference as validly applicable to this record.

The trial chancellor sought and did equity. Sebree v. Rosen, Mo.Sup., 349 S.W.2d 865. We affirm his ruling.

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the court when the cause is submitted.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Wesley B. YOST, Plaintiff-Appellant, v. HOUSEHOLD FINANCE CORPORATION, Defendant-Respondent.
    No. 24777.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Howard D. Lay of Morris, Lay & Tar-ver, Kansas City, for appellant.
    Bellemere & Bellemere, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for wrongful attachment and garnishment. He had a verdict and judgment for actual damages in the sum of $500.00, and for exemplary damages in the sum of $1,500.00. Defendant counterclaimed for the unpaid balance of a note and chattel mortgage and the verdict was for plaintiff on that issue and defendant did not appeal. After the filing of motion for new trial by defendant the court ordered “that the motion for new trial is overruled if plaintiff makes remittance in the sum of one thousand five hundred ($1,500.00) dollars (being punitive damages awarded by the jury) of the total verdict of two thousand ($2,000.00) dollars. If plaintiff does not make such remittance on or before February 13th, 1967, defendant’s motion for new trial will be sustained on the ground that the verdict is so excessive, in view of the award of punitive damages, as to show bias and prejudice on the part of the jury”. Plaintiff refused to remit and appealed.

The facts necessary to a disposition of this appeal are not in dispute. The question presented here is really one of law. Jones v. Phillips Petroleum Co. (Mo.App.), 186 S.W.2d 868, 875.

Plaintiff was a citizen and resident of Kansas City, Kansas, for many years, prior to 1956. He continued to reside there at the time this law suit was tried. Defendant was engaged in the small loan business in Kansas City, Kansas; Kansas City, Missouri and in other states with general offices at Chicago. It had assets of several million dollars. In 1956 plaintiff and his wife executed a promissory note in the amount of $1,248.00, payable to defendant in installments, and secured it by a chattel mortgage on furniture. Defendant’s evidence established that it considered plaintiff a good customer. Installment payments were made on this obligation until sometime in 1958, when plaintiff became involved financially and filed a bankruptcy petition, which was later dismissed. With the knowledge and consent of defendant, plaintiff voluntarily sold the furniture to a third party for $213.00, which sum was paid to defendant and credited on plaintiff’s note.

Plaintiff testified to the effect that, at the time this last mentioned transaction occurred, in the office of defendant in Kansas City, Kansas, defendant’s agents marked his note “paid” and delivered it to him; and that, thereafter, plaintiff did not owe defendant anything. Defendant’s evidence was to the effect that the old note was delivered to plaintiff but that a new note was executed for the remaining unpaid balance due on the original obligation. It was upon this claimed obligation that defendant based its counterclaim.

Plaintiff pleaded that defendant sued him on the above mentioned note, by attachment, in Jackson County, Missouri, and garnished wages due him from Yellow Cab Company, in Missouri; that he was not permitted to draw $28.45, due him as wages, from May 30, 1964, until the garnishment was released some days later. Plaintiff also pleaded the following provisions of Section 525.290, RSMo 1959, V.A.M.S., to-wit:

“525.290. GARNISHMENT OF WAGES — PERSONAL SERVICE UPON DEFENDANT REQUIRED — EXCEPTION — PETITION AND SUMMONS TO SHOW CAUSE OF ACTION.
“No wages shall be garnished in aid of attachment before personal service is had or obtained upon the defendant, unless the suit be brought in the county where defendant resides, or in the county where the debt is contracted and the cause of action arose or accrued, and in cities over one hundred thousand inhabitants in the city where the defendant resides or the debt is contracted and the cause of action accrued * *

See Rule 90.28.

Defendant concedes the force and effect of the statute. It also admitted that the note it sued on was executed by plaintiff in defendant’s offices, in Kansas City, Kansas, and that Mr. Yost was, at that time, a citizen and resident of that city and state.

Plaintiff testified to the effect that, when his accrued wages were withheld under garnishment, he was without funds; that he had no funds for car fare and that he walked to defendant’s office and requested the release of the garnishment; that defendant’s agents refused to release same unless and until plaintiff should pay defendant $200.00, which he could not do; that he employed counsel at a preliminary charge of $35.00; that defendant still refused to release the garnishment; that he requested the magistrate court, where the suit was pending, to permit him to “file a paper” (enter his appearance) and release the garnishment, but that defendant’s attorney refused to agree to this action and the court could not do it; that employees who overheard plaintiff and Yellow Cab’s manager discuss the matter at the Yellow Cab’s offices, began calling plaintiff “H.F.C”, that plaintiff was humiliated and embarrassed thereby, and severed his employment; that, because he had no funds with which to pay rent, he left his lodgings and moved to the home of his parents; that the neighbors of his parents learned of his predicament, to his humiliation.

He testified at this trial that he did not owe defendant any sum of money at the time the former suit was filed and garnishment was issued. The verdict was for plaintiff on all issues, on the admissions of defendant and on the evidence offered by both parties. There was substantial evidence tending to support that verdict.

The court stated that the motion for new trial is “overuled if plaintiff makes remitti-tur” of the sum awarded as punitive damages. The court also stated that, if such re-mittitur was not made “defendant’s motion for new trial will be sustained on the ground that the verdict is so excessive, * * * as to show bias and prejudice on the part of the jury”. (Emphasis ours). Tn short, we think the court ordered the renrt-titur and granted a new trial because the verdict was so excessive as to indicate (as a matter of law) that it was the result of bias and prejudice.

In this court, defendant, in defense of the action of the trial court in ordering a new trial for the reason stated, contends that no submissible case was made on the issue of punitive damages, which issue was submitted under instruction 9. Defendant, in its motion for new trial, alleged error in the giving of instruction 9 because “the evidence did not show that defendant knew that its act was wrongful and that it did the act intentionally or that it did not act in good faith and intended thereby to injure plaintiff so as to amount to actual malice, and for the reason that there was no evidence to show legal malice on the part of defendant or that it acted wrongfully, willfully, or maliciously”.

While defendant did so state under paragraph 4 of its motion for a new trial, it also stated, in paragraph 5, that the verdict is so excessive, in the light of the evidence as to punitive damages, as to show bias and prejudice on the part of the jury. The language used by the court, in its order would indicate that the court sustained the motion on the grounds stated in paragraph 5.

However that may be, we will rule this appeal on the contention here made by defendant, as stated in its brief. It does not attempt to justify the court’s order on any other ground.

In support of its contention defendant cites Crull v. Gleb (Mo.App.), 382 S.W.2d 17, 23, where the court said:

“[13-15] In order for a plaintiff to recover punitive damages in Missouri, he must prove malice, either actual or legal. In actual malice, the action is motivated by hatred or ill will. Legal malice is the intentional doing of a wrongful act without just cause or excuse in reckless disregard of the rights of others. Zumwalt v. Utilities Insurance Co., 360 Mo. 362, 228 S.W.2d 750, 756; Reel v. Consolidated Investment Co., Mo., 236 S.W. 43, 46; Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 636.
“The chief purpose of punitive damages is punishment to the offender, and a deterrent to similar conduct by others. State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757, 761; Polk v. Missouri-Kansas-Texas Ry. Co., 351 Mo. 865, 174 S.W.2d 176, 180”. (Emphasis ours).

The above is a correct statement of the law.

Defendant also cites the following language, quoted by the court, in Franta v. Hodge, (Mo.App.), 302 S.W.2d 291, 294:

“ * * * ‘ The party must know that the act is wrongful, and must do it intentionally without just cause or excuse. If he acts in good faith and in the honest belief that his act is lawful, he is not liable for punitive damages even though he may be mistaken as to the legality of his act.’ * *
“ * * * (Emphasis ours).

And it cites Davis v. Nash Central Motors (Mo.App.), 332 S.W.2d 475, 480, as follows:

“ * * * ‘There must be, in order to justify punitive damages, some element of wantonness or bad motive, but if one intentionally does a wrongful act and knows at the time that it is wrongful he does it wantonly and with a bad motive.’ * * ”. (Emphasis ours).

The note sued on, whether or not legally made, was made at defendant’s office in Kansas City, Kansas. The files were kept in that office until some time prior to the institution of suit thereon in 1964. The original transaction took place in that office in 1956. Defendant’s files disclosed that plaintiff resided at a given address in Kansas City, Kansas. Defendant’s agents admitted in evidence that defendant had no information or knowledge that plaintiff ever had an address in Jackson County, and that no inquiry was made as to that matter. After the file was transferred to defendant’s office in Jackson County, defendant caused its attorneys to institute suit by attachment and caused garnishment to issue. It made no attempt to personally serve plaintiff with summons. It garnished his wages forthwith. Defendant admitted that it is a “National” small loan or finance company. It maintains one or more offices in Jackson County, Missouri, staffed with a number of employees. How can it be said, under this evidence, that it acted innocently or in ignorance of the law in direct violation of the statute we have quoted? Collecting of delinquent accounts is a part of its business, as the evidence indicated. It is subject to control by the statutory law of Missouri. The issue of punitive damages was properly submitted to the jury.

From substantial evidence in this case the jury could have found that defendant recklessly and wantonly violated the known legal rights of plaintiff and that he was actually damaged thereby. No complaint is made as to the $500.00 actual damages verdict and judgment. We cannot say that $1,500.00 is an excessive verdict as punitive damages, to deter defendant, a seven million dollar nationwide small loan corporation, from wantonly violating the legal rights of other clients who may, otherwise, become victims of such unlawful treatment. Jones v. Phillips Petroleum Co. (Mo.App.), 186 S.W.2d 868, 878.

The verdict is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

HOWARD, P. J., CROSS, J., and CHARLES SHANGLER, Special Judge, concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


text:
    Viola ZIMMERMAN, Appellant, v. Rudolph ZIMMERMAN, Respondent.
    No. 24778.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Henry H. Fox, Jr., Kansas City, for appellant.
    Rodger J. Walsh, Kansas City, for respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an appeal by the plaintiff, Viola Zimmerman, from a decree granting defendant, Rudolph Zimmerman, a divorce and the custody of the parties’ adopted twin girls, born July 30, 1959, but granting plaintiff “reasonable rights of visitation.”

The husband, now 40 years of age, and his wife, now 42, were married on December 11, 1954, and separated on or about December 3, 1965. Plaintiff had been previously married and divorced.

Plaintiff filed her suit on December 20, 1965. She charged in her petition that defendant had rendered indignities to her in that he constantly quarreled and nagged at her without justification or cause; that he was and is possessed with a violent temper and has oftentimes become enraged at plaintiff in the presence of her friends and relatives, embarrassing plaintiff; that defendant drinks to excess, is abusive toward the plaintiff, and has on repeated and frequent occasions absented himself from the home without justification or cause.

On January 20, 1966, defendant filed his cross-petition in which he alleged that plaintiff had rendered indignities to him in that she has repeatedly absented herself from the home without explanation or excuse; that plaintiff had indulged in intoxicating liquor to excess; has associated with other men; has failed to properly take care of the adopted children; that plaintiff’s attitude and disposition have been hostile towards defendant; that plaintiff for many years has continuously engaged in unmerited bick-erings and arguments with defendant.

Plaintiff testified that prior to the separation defendant would stay away from home all night. He would go to work in the morning and she would not see him until the following evening; that when she asked him where he had been he would tell her “it was none of my business, he didn’t have to account to me;” that he stayed out until the bars closed two or three times a week and when he got home he would “be drunk and quite belligerent”; that he struck her on various occasions leaving physical marks and bruises on her body; that she told him many times that she would leave him. She further testified that she had been a good mother to the children and that defendant loves them. She was asked: “Have you ever during the period that you were married up until today associated with other men to the extent that you actually had, we will say a date with a man or went out with a man or something like that, other than your husband? A. No, I haven’t.”

Defendant testified that he treated plaintiff as a husband should treat his wife and worked long hours in order to obtain money to support his family. He denied that he drank to excess and also denied that he ever struck plaintiff. He further testified that plaintiff had been intoxicated prior to filing the suit for divorce; that in the last two years she had been intoxicated a couple of times; that he has seen her dancing with other men in cocktail lounges and saloons; that he has seen her with a man named Meister twice since the filing of the divorce suit, once in a cocktail lounge at the Embers Restaurant, and once at the Holiday Inn on SO Highway.

Defendant offered evidence that Meister owned a 1963 light-blue Ford Thunderbird automobile. Two witnesses testifying for defendant stated that on February 10, 1966, at 3:00 a.m., they were in the parking lot of the King Louie Bowling Alley; that at that time plaintiff and a man in a light-blue Thunderbird drove into the lot; that they sat in the car and appeared to be “kissing and smooching.” There was other evidence offered by defendant showing plaintiff’s association with Meister. It would serve no useful purpose to set it out in detail.

As is to be seen this Is a case in which there' is an irreconcilable conflict in the testimony. The plaintiff testified to a state of facts which if believed by the court, would entitle her to a divorce. The defendant and his witnesses testified to a state of facts which, if the court believed them, would entitle defendant to a divorce. In view of that situation, the rule so well expressed in the case of Eikermann v. Eikermann, Mo.App., 283 S.W.2d 391, 394, should apply here. “When the evidence is conflicting and the truth can be best determined by the conduct and demeanor of the witnesses on the stand, we defer to the trial judge who had the advantage of seeing them.” (Citing cases.)

We defer to the finding of the trial judge that defendant was the innocent and injured party and entitled to a decree of divorce.

Plaintiff also contends that the court erred in awarding defendant the custody of the adopted girls. Defendant testified that he wanted custody of these children because he would give them a religious education; that his 44 year old unmarried sister would be willing to take care of the children in the event he was awarded their custody; that his sister, Viola W. Zimmerman, owns the apartment building in which defendant lives, “and she is in a position where she can retire from her job and she has been contemplating this for several years.”

Defendant’s sister, Viola W. Zimmerman, testified that she is employed at the Or-schelm Bros. Truck Line at Moberly, Missouri ; that she has worked for them for 24 years; that she has never been married, and that she lives with her sister Lucille K. Zimmerman. She further testified that she was acquainted with the children and that she was prepared to take care of them either in Kansas City or at her home in Moberly “whichever is advised.” She belongs to the Coates Street Presbyterian Church in Mo-berly. She was asked: “Do you think these little girls would have a better life if they were living with you and their father than they would living with the mother? A. Yes, I do.” Miss Zimmerman had previously stated that during the first weekend in April, 1966, she was in Kansas City at her brother’s apartment; that on Sunday morning between 3:00 and 3:30 plaintiff appeared at the apartment door and “she was drunk and giggling.”

Defendant testified that prior to the filing of the divorce suit he would come home in the evening and the children would be off with a baby sitter some place and plaintiff would be gone. He would spend an hour or two trying to find out which baby sitter the children were with and whether they were all right. This happened two or three times a week for the last month or so before plaintiff filed suit. On one occasion he found the children at the Giordano residence. When he arrived “there was four boys playing penny ante poker, and they had a fifth of Vodka, they had been drinking.”

There is absolutely no rule by which it can be determined which of the two contending parties is entitled to the custody of the children upon separation, but each case must be judged on its own facts. Usually the custody of the children is awarded to the party who prevails in the divorce action. Wells v. Wells, Mo App., 117 S.W.2d 700; Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776. But the “guiding star” which courts must follow in determining the question of custody is the welfare and best interest of the children. There is an additional well settled rule “that the findings of the trial court in matters involving the custody of a minor child of divorced parents, while not binding upon the appellate court which must review the record for itself, are nevertheless not to be lightly disturbed and will be deferred to unless the appellate court is firmly convinced that the welfare of the child requires some other disposition.” Lutker v. Lutker, Mo.App., 230 S.W.2d 177, 179.

Plaintiff’s present counsel in the oral argument relied heavily upon the holding of this Court in the case of Paxton v. Paxton, 319 S.W.2d 280. In that case the trial court decreed an absolute divorce to the father and awarded him full custody of the four minor children. This Court reversed that part of the judgment awarding the father custody of the children. There are fact differences between that case and the instant case. The oldest of the Paxton children expressed herself openly against her father and in favor of the mother. The child was afraid of her father and said her mother showed more interest in all of the children. Mr. Paxton was away a great deal of the time; he refused to assist and associate with the children; by his own admission he struck his wife; he admitted, but sought to explain away associations with other women. He used vile and profane language and ridiculed religious training. Thus the facts distinguish the Paxton opinion from the instant case.

The findings of the trial court should not be disturbed. Your Special Commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by JAMES W. BROADDUS, Special Commissioner is hereby adopted as the opinion of the Court and the judgment is affirmed.

HOWARD, P. J., CROSS, J., and VARDEMAN, Special Judge, concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: MAUGHMER, Commissioner.

text:
    Avery BROWN, Plaintiff-Respondent, v. BOULEVARD VILLAGE, INCORPORATED, and Firemen’s Fund Insurance Company, Defendants-Appellants.
    No. 24797.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Thad C. McCanse, Houts, James, McCanse & Larison, Kansas City, for appellants.
    C. William Garver, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a claim for workmen’s compensation benefits. The Referee awarded claimant $658.75, based upon a ten percent permanent partial injury to the right ankle. Upon review, the Industrial Commission unanimously reversed the Referee and entered an award allowing no compensation. The circuit court reversed the Commission and held there was “not sufficient competent evidence in the record” to support the award of the Commission. The employer and insurer have appealed.

Respondent complains that the transcript is insufficient. Section 287.490, V.A.M.S. provides that in workmen’s compensation appeals the transcript on appeal shall consist of the original transcript filed in the circuit court by the Commission and a transcript of the proceedings had in the circuit court. The transcript on appeal filed herein is in compliance.

It was admitted that on June 16, 1965, the plaintiff, Avery Brown, was an employee of the defendant Boulevard Village, Inc., whose liability under the Workmen’s Compensation Law was fully inured by Firemen’s Fund Insurance Company.

Mr. Wendell Tolliver, a county courthouse employee, was passing near 31st and Hardesty streets, Kansas City, Missouri, on the date in question, and observed claimant operating a power mower on a steep hill, saw the mower “conked out” and come back on Mr. Brown. He said the mower turned over and went across claimant’s body. The claimant was not cut, was not bleeding, and said he was not hurt.

Plaintiff testified that between 9:00 and 10:00 a. m. on June 16, 1965, he was cutting grass on a hill with a power mower; that he got about half way up the hill when the mower “conked out” and rolled back on him and knocked him down. He said he “laid there a few minutes ’till I come to myself”, that this fellow (Tolliver) ran up and said: “Are you hurt? I said ‘No’”. The witness, however, said that he actually was hurt, but didn’t want his foreman or overseer to know. Mr. Brown then resumed cutting the grass on level ground and continued working until evening. On the following day he went to the Kansas City Medical Hospital, where his back was x-rayed. His only complaints at that time were with reference to his back. Later plaintiff was interviewed by a representative of the insurer and told him that he had no injury other than to his back.

On June 18, Mr. Brown visited Dr. Harry B. Overesch, an orthopedic surgeon. This doctor testified that plaintiff complained of pain “in the flank and in the low back, also pain in the neck and head area”. He said there were no complaints respecting the right leg or ankle. Dr. Overesch again examined plaintiff on July 14, 1965, or four weeks after the accident and found an enlargement of the right ankle. The doctor said he would attribute the ankle swelling to “perhaps phlebitis”. He recommended treatment for phlebitis. He saw claimant on August 18, 1965, at which time plaintiff had no complaints about his ankle, and again on September 10, 1965, with neither complaints concerning nor swelling of the ankle. Dr. Overesch was the only physician who ever treated plaintiff.

Dr. William H. Duncan testified on behalf of the employee. The patient wai referred to this doctor by claimant’s attorney for examination and rating. He saw him on January 5, 1966. He did not know when the ankle condition started or its cause. It was his expressed opinion that if an injury to the ankle had been incurred in the accident of June 16, the pain would have come on immediately.

The records of Holiday Inn, Inc. show that plaintiff worked there as a bellhop for eight days, from June 22 to June 30, 1965. His duties included carrying luggage and cleaning up the premises.

In the claim for compensation dated July 21, 1965, the exact nature of the injuries were set forth as “neck, low back and ankle”. It appears that this employee had earlier been paid compensation or damages for back injury. In any event, his attorney waived any claim in this matter for back injury and the claim therefore rests solely upon the alleged injury to the right ankle.

We quote from the recent opinion in Bauer v. Independent Stave Co., Mo.App., 417 S.W.2d 693, 696, 697, wherein the often declared rules for review in this type of case are again declared:

“The burden of bringing himself within the provisions of the law rests upon the workmen’s compensation claimant. Leone v. American Can Company, Mo.App., 413 S.W.2d 558, 561(1); Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 296(5). To sustain this burden, the employee must not only show he suffered an injury, but additionally must show the injury resulted from an accident arising out of and in the course of his employment within the meaning of the Act. * * * Ray v. Great Western Stage & Equip. Co., Mo.App., 413 S.W.2d 576, 579(1).
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“This court (and the circuit court), upon a judicial review of a workmen’s compensation claim, must determine if the award of the Industrial Commission is ‘supported by competent and substantial evidence upon the whole record’. Art. V, sec. 22, Missouri Constitution of 1945. In so doing all of the evidence and legitimate inferences arising therefrom must he viewed in the light most favorable to the award. We may not substitute our judgment on the evidence for that of the Commission for it is the Commission that passes upon the credibility of witnesses and the weight to be given conflicting testimony, and if conflicting inferences are permissible, the choice rests with the Commission as to which will be accepted”.

In this case it is evident that claimant had an accident with the power mower on June 16, 1965, but did an injury to his right ankle arise from it? Has plaintiff sustained his burden of proving that it did? Is the award of the Commission denying compensation supported by sufficient competent evidence to warrant making the award which was made? If it is, we must affirm, and if conflicting conclusions are possible from the evidence, we must approve the decision of the Commission.

On appeal respondent suggests that there was sufficient evidence presented to authorize the Referee’s award to claimant and the circuit court so held and approved the award of the Referee. It is the award of the Industrial Commission, rather than the award of the Referee, which is reviewed by the appellate courts. In Snethen v. American Compressed Steel, Inc. et al., Mo.App., 272 S.W.2d 850, 853, this court squarely so held and said:

“The fact that the referee, who saw and heard the witnesses found for plaintiff, and that the whole Commission, who only reviewed the record, reversed his findings and award and found for defendant, does not change the above rule, for it is the award of the Commission that we are reviewing. Michler v. Krey Packing Co., supra, 363 Mo. 707, 253 S.W.2d 136, 140; Woodward v. J. J. Grier Co., Mo.App., 270 S.W.2d 155”.

Mr. Brown, immediately after the accident, said he was not cut and was not hurt. He worked the rest of the day. Six days later he was working as a bellhop for Holiday Inn, Inc., carrying luggage. His complaints at the hospital and to his only treating physician, Dr. Overesch, all had to do with pain in his back and neck — none as to his ankle. It was four weeks after the accident that swelling or enlargement of the ankle was first noticed, and then by the doctor — no complaints had even then been registered by the plaintiff. The doctor thought the condition was phlebitis, treated him for that and the condition improved. Dr. Duncan, who examined him in January, 1966, for the purpose of testifying, expressed the opinion that if the ankle had been injured in the accident of June 16, 1965, the pain would have been present almost immediately. In face of this evidence, we cannot say that the award of the Commission, denying compensation on the apparent theory that the ankle disability did not arise out of the accident, is unsupported by sufficient competent evidence to warrant the Commission’s making the award.

The judgment of the circuit court is reversed and the cause remanded with directions to reinstate the award of the Commission denying compensation.

SPERRY, C., concurs.

PER CURIAM:

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

HOWARD, P. J., CROSS, J., and PAUL E. VARDEMAN, Special Judge, concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: CROSS, Judge.

text:
    Edith DENNIS, Appellant, v. Joseph E. JENKINS, Respondent.
    No. 24798.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Donald L. Mason, Kansas City, Mason, Gant & Moran, Kansas City, of counsel, for appellant.
    Thad C. McCanse, Houts, James, Mc-Canse & Larison, Kansas City, for respondent.
   CROSS, Judge.

On December 2, 1966, plaintiff filed her petition seeking damages from defendant for personal injuries allegedly sustained in an automobile collision. Summons and a copy of the petition were thereafter duly served upon defendant. On February 17, 1967, the cause came on for hearing before the trial court. Defendant was in default of any responsive pleading and made no appearance. Plaintiff personally appeared and offered evidence as to defendant’s liability and her injuries. Thereupon a judgment for $4,500.00 was entered in plaintiff’s favor. At the trial court’s direction defendant was promptly notified of the judgment. On March 10, 1967, defendant filed a motion to vacate the judgment, alleging generally that he had a meritorious defense; that the judgment was taken while defendant’s insurance adjusters were actively attempting to negotiate a settlement; and, that although he had mailed the summons and service copy of the petition to his insurance carrier, they were either lost in the mail or inadvertently misplaced and could not be found. On March 16, 1967, 27 days after rendition of the default judgment, the trial court heard the motion, found that defendant had shown good cause for vacating the judgment, and entered an order setting it aside. Plaintiff duly filed her notice of appeal from the order. She now contends that the trial court was not justified in its action because defendant had not shown (1) good reason or excuse to default and (2) that he had a meritorious defense.

Our first concern, however, is whether we have jurisdiction to entertain this appeal. Defendant raises the question by urging that the appeal is premature and must be dismissed since there was no final judgment entered in the case. It is his position that a judgment is not final until 30 days after its rendition and that consequently an order setting aside a default judgment within that period of time is not appealable. It is our duty to examine that question. 2 Mo.Dig., Appeal and Error, '¾=>23.

The right of appeal is purely statutory and exists only as provided by statute. 2 Mo.Dig., Appeal and Error, ^1. Any authority for the present appeal must be found in Section 512.020 which provides, in pertinent part, that “Any party to a suit aggrieved by any judgment of any trial court in any civil cause * * * • may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; * * (Italics supplied.)

There is no basis for this appeal on the ground that it was taken from an order granting a new trial. In the early case of Crossland v. Admire, 118 Mo. 87, 24 S.W. 154, it was held that an order vacating a default judgment during the period of the court’s control over its judgment is not “the granting of a new trial.” That view is still held. See Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, Steffan v. Steffan, Mo.App., 390 S.W.2d 587. Therefore there is no foundation for this appeal unless it appears that the vacated judgment was “a final judgment” within the contemplation of Section 512.020.

The time when a judgment becomes final is prescribed by Civil Rule 82.05 V.A.M.R. which declares that “ * * * (A) judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed.” The trial court is granted extensive control over its judgment for 30 days after entry by Civil Rule 75.01 V.A.M.R. which provides that: “The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.” During this “incubation period” a default judgment is said to be “within the breast of the court.” Diekmann v. Associates Discount Corporation, Mo.App., 410 S.W.2d 695, citing McCormick v. St. John et al., 236 Mo.App. 72, 149 S.W.2d 894, where the court said, “It is the general rule that any judgment rendered by a court is within the breast of the court during the term at which such judgment is rendered, (such being the rule prior to our civil code) and that such judge has full right to set same aside for any reason that may occur to him. * * * If Judge Gideon had the right to set aside his judgment of May 27, 1938, there was no final judgment in the case and the appeal in this case was premature and should be dismissed.”

Considering that the default judgment in the instant case was vacated within the 30 day period of the trial court’s control, it is manifest that it never became a final judgment. It is equally apparent that the order vacating the non-final default judgment was not itself a “final judgment” or a “special order after final judgment” within contemplation of Section 512.020. We therefore conclude that plaintiff never acquired the right to appeal.

This conclusion marks no innovation in the law. For many years it has been consistently ruled by all four appellate courts of this state that there could be no appeal from an order setting aside a default judgment entered during the period of time the trial court retained its right to control the judgment. Such decisions include the previously noted case of Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Holder v. Chidister, 177 Mo.App. 415, 162 S.W. 762, 193 S.W. 568; McCormick v. St. John et al, 236 Mo.App. 72, 149 S.W.2d 894; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467; Steffan v. Steffan, Mo.App., 390 S.W.2d 587; Carter v. Levy, Mo.App., 217 S.W. 549; Owens v. Owens, Mo.App., 280 S.W. 2d 867 and Harper v. Harper, Mo.App., 379 S.W.2d 889. In deciding the last cited case, where the issue was squarely presented, this court stated: “Furthermore, the court set aside this default judgment within thirty days after its entry, during which period the ‘(t)rial court retains control over judgments * * * and may reopen, correct, amend or modify its judgment for good cause.’ Section 410.370 V.A.M.S., Supreme Court Rule 3.25 (present Civil Rule 75.01). From such a discretionary order the plaintiff cannot appeal for want of a final judgment in the case. Kallash v. Kuelker, supra, 347 S.W.2d 471.”

Plaintiff has cited no cases holding that a default judgment vacated during the trial court’s control period is a final judgment or that appeal lies from the order vacating it. Nor by independent research have we found any authority to that effect. Plaintiff directs our attention to Mayo v. Lasater, Mo.App., 312 S.W.2d 601 and Vaughn v. Ripley, Mo.App., 416 S.W.2d 226, as cases wherein appeals from orders vacating default judgments were not dismissed but instead were entertained and decided on their merits. In Mayo the default judgment was set aside after the 30 day control period had expired and the judgment had become final. Obviously the case is not in point. Vaughn v. Ripley is factually anala-gous to the instant case, in that the default judgment was vacated during the 30 day period. Notwithstanding, the appeal from the trial court’s order vacating the judgment was determined on its merits. With commendable candor plaintiff admits that the question of the appeal being premature was not raised by the respondent, and not considered by the court. We therefore reject it as authorty on the question. As stated by Judge Blair in State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, 1. c. 1028: “One of the hornbook rules (Black’s Law of Judicial Precedents, § 11, p. 49) is: ‘The language of a judicial decision is always to be construed with reference to the circumstances of the particular case and the question actually under consideration, and the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.’ ”

In ruling the instant case we have taken into account the Supreme Court’s decision in Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, to the effect that an appeal lies from an order setting aside a final default judgment. In fact this court has twice followed Casper v. Lee (in Fisher v. Mahler, Mo.App., 407 S.W.2d 590 and Robinson v. Clements, Mo.App., 409 S.W.2d 215), holding that if the trial court vacates the plaintiff’s final default judgment, plaintiff has the right of appeal. The judgment now in controversy is not of that nature.

In Robinson v. Clements, supra, we observed that there may have been variance in earlier Missouri decisions to the confusion of courts deciding the instant question. If such confusion in fact existed, we believe it may be attributed to a failure by the courts to take into account the material difference between default judgments that are final and those which are still within the trial court’s control. When that distinction is properly taken into account, no trouble should be encountered in deciding whether appeals from orders vacating default judgments should be heard or rejected.

Since we rule that the attempted appeal is premature, it is unnecessary to consider the points raised by plaintiff. Accordingly, the appeal is dismissed.

HOWARD, P. J., and VARDEMAN, Special Judge, concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.

      . To that extent disapproving Bussiere’s Adm’r. v. Sayman, 257 Mo. 303, 165 S.W. 796, which, as a leading case for 38 years, had held there was no right of appeal from an order vacating a default judgment, on the rationale that such order had “utterly wiped the final judgment off the record and the earth.”

      . See Diekmann v. Associates Discount Corporation, Mo.App., 410 S.W.2d 695, supra, for a comprehensive discussion of and distinction between the two types of default judgments.


author: STONE, Judge.

text:
    Ruth BALLEW, Plaintiff-Respondent, v. Michael AIELLO, Defendant, and Gerald M. Gilmore, Defendant-Appellant.
    No. 8640.
    Springfield Court of Appeals. Missouri.
    Dec. 5, 1967.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, W. Ray Daniel, B. H. Clampett, Springfield, for defendant-appellant.
    No appearance for plaintiff-respondent.
   STONE, Judge.

In this jury-tried damage suit for personal injuries sustained in a vehicular collision, plaintiff Ruth Ballew, a passenger in one vehicle, obtained a judgment for $1,000 against defendants Michael Aiello, the owner and operator of the other vehicle, and Gerald M. Gilmore, a passenger therein. The sole appellant is defendant Gilmore ; the single issue here is as to whether or not plaintiff made a submissible case against him; and the only brief filed in this court is that of appellant. Counsel for plaintiff-respondent advise us that their client “has been fully paid all of her judgment and no longer has any interest in the outcome of this suit.”

The collision under consideration occurred on the afternoon of Sunday, July 11, 1965, a cloudy and pleasant day, on Route A in Stone County, Missouri, at a point approximately one mile east of Hurley. At and near the place of accident, Route A runs in a general east-west direction and has a blacktop roadway about 21 to 22 feet in width, with narrow shoulders only 12 to 18 inches in width on either side. Plaintiff, then “almost 73,” was riding in the center of the back seat as one of four passengers in a 1961 Buick sedan owned and being driven by L. V. Orr in an easterly direction. The five occupants of the Orr automobile, all of whom resided in the Ozark Methodist Manor at Marionville, Missouri, were on a leisurely Sunday afternoon ride. Defendant Aiello was driving a westbound 1954 Chevrolet sedan, defendant Gilmore was on the right side of the front seat, and their wives were riding in the rear, each behind her spouse. We are not informed as to the exact age of any of the occupants of the Aiello automobile other than Mrs. Gilmore, who stated that she was 80 years of age. However, Mrs. Aiello said that her husband had “retired” before they moved near Billings, Missouri, in January 1963; and it is obvious from the record that the other occupants of the Aiello automobile were mature adults, if not “senior citizens.” The Aeillos and their guests, the Gilmores from California, were headed toward the Aiello home after a hearty meal at a dinner house in Christian County, Missouri. Defendant Aiello, westbound at a speed of 30 to 35 miles per hour (so he said) or 35 to 40 miles per hour (so eastbound driver Orr estimated), was occupied with his driving. Defendant Gilmore, as his wife put it, “was dozing as he usually does after a heavy meal at noon”; and defendant Aiello agreed that before the accident “he [Gilmore] was asleep.” In the back seat, Mrs. Gilmore and Mrs. Aiello were engaged in conversation.

This after dinner atmosphere of contentment and tranquility was, in a matter of seconds, transformed into one of confusion and tragedy. As defendant Aiello, traveling downgrade, rounded a curve to his left, the right wheels of his westbound Chevrolet ran off the blacktop pavement onto the right-hand or north shoulder. Aiello’s explanation was that he “had to pull on the shoulder there” because he met an eastbound automobile which “was right in the middle” of the pavement. His wife, obviously mistaken in her recollection that the curve was one to their right, otherwise confirmed her husband’s explanation. Witness Orr, the driver of the eastbound Buick with which Aiello collided, and plaintiff, a passenger in the Orr automobile, did not agree that Aiello had been forced off the pavement by an eastbound automobile. Plaintiff specifically stated that she had seen no such automobile; and witness Orr emphatically asserted that, when he first sighted the Aiello automobile, it was “in the ditch on the south [Aiello’s left-hand] side of the road” and that, after running in that ditch “for about 100 to 125 feet,” it crossed the pavement and “went off into the ditch on the north [Aiello’s right-hand] side of the road [where it] looked like it bounced about three feet off of the ground . . . .” (All emphasis herein is ours.)

On this appeal by defendant Gilmore, it matters not why or how the Aiello automobile came onto the right-hand or north shoulder or (if so) into the north ditch. All knowledgeable witnesses agreed that the automobile did run onto the north shoulder; that the right wheels traveled along that shoulder for a considerable distance (plaintiff’s witness Stowe, the investigating trooper, said for approximately 52 yards); that the north shoulder was rough (Mrs. Aiello commented that her husband “had gotten over rather far and there were cobblestones”); that Mrs. Gilmore became frightened (“the car was bouncing like it was off of the main road ... I couldn’t imagine what had happened, I was so frightened . . . I was so busy trying to hold my balance from sliding off the seat”); and that she “hollered, ‘Oh, Mike; oh, Mike.’ ” Whereupon defendant Gilmore, slumbering on the right side of the front seat, “kind of woke up [and] saw ... a rock about 12 or 15 inches big” on the shoulder. Immediately (“just that quick” and before Mrs. Aiello could say “don’t”) defendant Gilmore reached to his left, “grabbed hold” of the steering wheel with both hands, “gave it one big jerk to the left,” and thereby sharply turned the Aiello automobile onto the pavement.

Witness Orr, the driver of the eastbound Buick in which plaintiff was riding, testified that, after the Aiello automobile “came back onto the blacktop, [it] was going . in a weaving maneuver” crossing and recrossing the center line of the pavement several times; and that, at the time of collision, the Aiello automobile was headed in a northwesterly direction, turning back from the extreme left-hand or south edge of the pavement toward the right-hand or north side thereof. Defendant Aiello simply said that he “tried awful hard to control” his automobile, but that “we just hit right there in a split second.” Whatever the course of the westbound Aiello automobile may have been, all of the evidence was to the effect that the eastbound Orr automobile had been on its right-hand or south side of the pavement at all times. The impact between the left front of the Aiello Chevrolet and the left front of the Orr Buick was of such severity that the Buick was knocked backward (toward the west) a distance of 31 feet from the point of impact as located by the investigating trooper, without objection, on the basis of “the gouge marks and debris.” The Orr Buick came to rest “at right angles to the highway” with its front end on the south shoulder and its rear end 4]4 feet lower at the bottom of the fill on that side of the road. The Aiello Chevrolet stopped 28 feet west of the point of impact, still “in the eastbound lane” and thus on its left-hand side of the pavement. By reason of the accident, defendant Gilmore sustained a blow on the head and lacerations in that area which required 22 sutures. Upon trial, he insisted that his glimpse of the “rock about 12 or 15 inches big” on the north shoulder as he was roused, was the last thing he remembered prior to the accident. “From there on I don’t know a thing” — “that is the end of the picture as far as I can visualize.”

Defendant Gilmore’s position here is that a submissible case of actionable negligence was not made against him because, in grabbing and jerking the steering wheel, he reacted instinctively and instantaneously to the situation confronting him when roused from sleep and his action was involuntary and not volitional. “ ‘[Fundamentally to create liability for an act alleged to be negligent, it must be shown to have been the conscious act of a person’s volition. He must have done that which he ought not to have done, or omitted that which he ought to have done, as a conscious being endowed with a will. Slattery v. Haley, 52 Ont. Law Rep. 95.’ ” Stokes v. Carlson, 362 Mo. 93, 98, 240 S.W.2d 132, 135(2); Lobert v. Pack, 337 Pa. 103, 9 A.2d 365, 367(1), 7 N.C.C.A.(N.S.) 312, 329-330(2). See Weldon Tool Co. v. Kelley, 81 Ohio App. 427, 76 N.E.2d 629, 631-632 ; 2 Harper and James, Torts, § 16.7, 1.c. 921-922. In short, “[tjhere cannot be an act [imposing liability for negligence] without volition.” 1 Restatement, Second, Torts § 2, comment a, p. 5.

Accordingly, the operator of a motor vehicle is not chargeable with negligence for his inability or failure to control the vehicle when suddenly stricken by a fainting spell or loss of consciousness from an unforeseen cause. Reece v. Reed, Mo., 326 S.W.2d 67, 71(4), 72(6); Holmes v. McNeil, 356 Mo. 846, 848, 204 S.W.2d 303, 305(5); Wells v. Asher, Mo.App., 286 S.W.2d 567, 570; Freeman v. Martin, 116 Ga.App. 237, 156 S.E.2d 511, 513(1), and cases there collected; annotation 28 A.L. R.2d 12, 35, § 15; 8 Am.Jur.2d Automobiles and Highway Traffic § 693, p. 244. Neither may one be held negligent for what he does or fails to do in a motor vehicle after he has, without fault on his part, involuntarily fallen asleep. Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132; Lobert v. Pack, 337 Pa. 103, 9 A.2d 365, 7 N.C.C.A.(N.S.) 312; annotation 28 A.L.R.2d 12, 42, § 20; 8 Am.Jur.2d Automobiles and Highway Traffic § 694, p. 245.

True, defendant Gilmore’s conduct in grabbing and jerking the steering wheel occurred as he was being roused from sleep, rather than while he was still sound asleep. But, as was pointed out in Stokes v. Carlson, supra, 362 Mo. at 100, 240 S.W. 2d at 136-137: “The basis of the rule which regards as non-negligence the involuntary movements of a sleeping person is absence of volition or the utter lack of opportunity to make a choice or to determine a course of action. . . . The same absence of volition exists in the ‘state of mental confusion occurring on waking from sound slumber, in the state ’twixt sleep and wake.’ Wharton & Stilles, Medical Jurisprudence, 3rd Ed., Vol. I, Sec. 1162, p. 906. The ‘mind and will’ are ‘in abeyance’ in either instance, — completely in the case of sound sleep and probably almost completely in the case of dropping off to or awakening from sound sleep. In either instance, there is no conscious or voluntary action or no volition. The reason for the rule is the same in both instances.”

There was not, and could not well have been, any suggestion in the instant case that defendant Gilmore was under the duty to remain awake. Stokes v. Carlson, supra, 362 Mo. at 99, 240 S.W.2d at 136(4); Lobert v. Pack, supra, 9 A.2d at 367(2). In presenting her case, plaintiff called to the witness stand both defendant Aiello and defendant Gilmore, so the material facts bearing upon the determinative issue as to whether or not Gilmore’s “mind and will” were “in abeyance” when he grabbed and jerked the steering wheel were shown as a part of plaintiff’s case in chief [Reece v. Reed, supra, 326 S.W.2d at 71(5)]; and, on that issue, there was no conflict in the testimony adduced in plaintiff’s case in chief and that testimony was not “ ‘contradicted, either expressly or by inference, by other evidence or circumstances, as where the circumstances or the evidence of other witnesses would warrant the trier of facts in disregarding the testimony or drawing a contrary inference.’ ” Holmes v. McNeil, 356 Mo. at 850, 204 S.W.2d at 306(6), and cases there cited. Without again reviewing the evidence pertaining to defendant Gilmore’s conduct, we here record our considered opinion that such evidence affirmatively established that there was no volitional action on his part in grabbing and jerking the steering wheel, and that, therefore, such evidence was insufficient, as a matter of law, to make a submissible case of actionable negligence against him. Hence, the trial court erred in overruling his motion for a directed verdict at the close of all the evidence.

The judgment against defendant Gilmore is reversed.

HOGAN, P. J., and TITUS, J., concur.

      . “Volition” is defined as “[t]he act or power of willing or choosing” [Maloy, Medical Dictionary for Lawyers (1942), p. 444], and as the “[a]ct of willing or choosing; act of deciding, as on a course of action or an end to be striven for; exercise of the will.” Webster’s New International Dictionary, 2nd Ed., p. 2856.