text:
    In re MARRIAGE OF Judy Lee COOK, Petitioner (Appellant), and Jerry Blanton Cook, Respondent (Respondent).
    Nos. 36477, 36675.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 16, 1975.
    Rehearing Denied Jan. 23, 1976.

      Fred Roth, Clayton, for petitioner-appellant.
    Love & Lacks, Chester A. Love, Thomas K. Edelmann, St. Louis, for respondent.
   McMILLIAN, Judge.

This appeal is taken from an order of the Circuit Court on a Motion to Modify a Divorce Decree. The parties were divorced on February 28, 1972 and Petitioner Judy Lee Cook was awarded custody of the couple’s two children, Gina, now age 5, and Jerry, now age 9. Respondent Jerry Blanton Cook was ordered to pay $25 per week as support for each child and $1 per year alimony.

On February 20, 1974, petitioner brought an action against respondent to increase the child support and maintenance payments and to be awarded suit money and attorney’s fees. Respondent filed a cross motion on April 10, 1974, seeking custody of the two children. After a hearing on the motions, the trial court granted respondent’s motion for change of custody and terminated the child support payments. Petitioner was denied an increase in maintenance, suit money and attorney’s fees. The court assessed costs against respondent.

Thereafter, on August 30,1974, petitioner filed a motion for attorney’s fees and costs on appeal. The court sustained the motion in part by ordering respondent to pay for the cost of the transcript on appeal but deferred the awarding of attorney’s fees and cost of printing a brief pending the determination of the appeal.

In the present action petitioner appeals from the determination made by the trial court. She alleges that the evidence presented to the trial court was insufficient to award custody of the children to respondent, that their custody should be returned to her, that the court should have granted her motion to increase child support and alimony payments, and the court should have awarded her suit money and attorney’s fees. For the reasons stated below, we reverse the order to transfer child custody to respondent, affirm the denial of an increase in child support and maintenance, and remand to the trial court the determination of whether to grant petitioner’s motion for suit money and attorney’s fees.

Our scope of review on appeal from this non-jury case is set out in Rule 73.01(3), V.A.M.R., which provides that “[t]he court shall review the case upon both the law and the evidence as in suits of an equitable nature. Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” We have a duty to reach our own conclusions based on the law and evidence, In re The Marriage of Zigler, 529 S.W.2d 909 (Mo.App., St. Louis 1975); Powers v. Powers, 527 S.W.2d 949 (Mo.App., St. Louis 1975) but should give due deference to the trial court’s judgment unless it is clearly erroneous. R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975).

The new Missouri Dissolution of Marriage Statute is applicable here as the proceeding for modification was commenced after January 1, 1974. Section 452.415(3). The statute provides that:

“The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” (Section 452.410)

In his pleadings, respondent alleged that the petitioner had failed to exercise proper care and supervision and had left the children in the care of others for protracted periods of time and that since the decree of divorce the aforesaid children had developed severe emotional problems. He further alleges that he has remarried and is now capable of providing the children with a wholesome and adequate home environment. These alleged changes in circumstances were not sufficiently proven at the hearing to warrant a change in custody.

The evidence set forth demonstrates that petitioner has provided the children with adequate care. The children were given frequent medical and dental examinations. The daughter’s corrective shoes and the son’s eye glasses were regularly adjusted, and the son was being treated by a psychologist. No evidence indicated that proper care was lacking.

Nor was it established that petitioner left the children for such protracted periods of time as to warrant a change of custody. The record reveals that petitioner had a steady “baby sitter” stay with the children while she was at work. When she took an occasional short vacation, she left the children in the care of others. The one time she was gone for more than a week she left the children with their father. For a few months Gina stayed with appellant’s sister, but now she is back with appellant. Thus, under the facts alleged, appellant’s care and supervision of her children was not inappropriate.

Nor did respondent prove that the children had developed severe emotional problems since the divorce. Jerry has a short attention span and on the school’s recommendation, the appellant takes him to a psychologist weekly. Gina needs considerable amounts of attention. No other emotional problems were asserted. This evidence falls short of proving that since the original decree the children have developed “severe emotional problems” which necessitate a transfer of custody.

Respondent’s final allegation was that since the divorce he has remarried and can now provide the children with a wholesome and adequate home environment. However, remarriage is not in itself a sufficient reason for changing custody of a child. I_ v. I_, 482 S.W.2d 523 (Mo.App.1972).

While asserting that his home environment was adequate and wholesome, respondent indicated that petitioner’s sexual conduct made the environment in which she raised the children unwholesome. At the trial, testimony as to petitioner’s sexual conduct was set forth over the objections of her counsel. We hold that this evidence was admissible so that the court could make a determination of the environment in which the children are being reared. While we recognize that a party’s proof must conform to his pleadings, Cory v. Conqueror Trust Co., 86 S.W.2d 611 (Mo.App.1935), technical rules as to pleadings should not prevent a decision on the merits where the welfare of minor children is at stake. McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974). Thus, respondent’s allegations in his pleadings that petitioner had failed to exercise proper care and supervision over the children and that he could provide the children with a wholesome home environment were broad enough to allow proof as to petitioner’s sexual conduct. However, upon consideration of this evidence, we hold that it does not constitute a changed circumstance which warrants a transfer of custody.

Petitioner testified that she had sexual intercourse with a married man in her apartment on four to six occasions when the children were present. But she further testified that she and this man had sexual intercourse in the apartment only behind the locked doors of her bedroom and only after the children had gone to bed. She testified that this man never spent the night and would usually leave before midnight, although he occasionally stayed into the early morning hours. In short, there is no evidence that the children were aware of the type of relationship that their mother had with this man or that the relationship had any influence on them.

While morals of a parent are a proper factor to consider in modifying custody, I_ v. I_, 482 S.W.2d 523 (Mo.App.1972), M_ L_ v. M_ R_, 407 S.W.2d 600 (Mo.App.1966), Hurley v. Hurley, 284 S.W.2d 72 (Mo.App.1955), any immoral behavior must affect the children and their welfare before it would be relevant for purposes of transfer of custody. J_ F_ R_ v. R_ R_, 482 S.W.2d 543 (Mo.App.1972), McPherson v. McPherson, 447 S.W.2d 791 (Mo.App.1969); Stone v. Stone, 378 S.W.2d 824 (Mo.App.1964). Specifically, sexual intercourse such as petitioner had committed is not sufficient to establish that a parent is an unfit custodian, without a showing that the children are adversely affected. Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974); McClarnon v. McClarnon, 528 S.W.2d 795 (Mo.App.1975); Yount v. Yount, 366 S.W.2d 744 (Mo.App.1963). Respondent has set forth no proof that the children were adversely affected by this relationship. On the basis of the facts presented in the record, we conclude that there is insufficient evidence to warrant the change of custody ordered by the trial court.

Having concluded that the children should remain in petitioner’s custody, it becomes necessary to consider the matter of child support. Petitioner argues that the trial court erred in denying her motion to increase the child support and maintenance. We disagree.

The statutory provision which governs modification of support and maintenance is § 452.370, which states, in part:

“1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.”

The facts as to the finances of the parents are as follows: At the time of the original divorce decree, respondent was ordered to pay $25 a week for support of each child and $1 per year alimony. In her motion to modify, petitioner asked for $45 per week for each child and $10 a week for her own maintenance. At the time of the divorce petitioner was earning $450 a month and had monthly expenses of $846. At the hearing she testified she was earning $630 a month and had estimated expenses of $964 per month. However, her statement of income shows that she was earning $730 and had monthly expenses of approximately $825. Using the figures set forth at the hearing, at that time, petitioner’s expenses had increased $118 per month, while her salary had increased $180 per month. However, based on the figures set forth in her financial statement, petitioner’s income had increased by $280 a month and her expenses had decreased by about $21 per month.

Respondent’s financial situation, on the other hand, has worsened since the time of the original decree. When the award was first made, respondent was earning $14,232 by working a second job. He has since been laid off his second job and earns $1050 a month at his regular place of employment. He does not intend to seek a second job now, as he is involved with church work which takes a substantial amount of time. As for his expenses, he has remarried and is paying two notes on the house he shares with his new wife and two stepchildren. There is no evidence that he has acquired any new assets since the time of the divorce.

The changed circumstances which petitioner argues necessitate an increase in support and maintenance are the $3 per week payments to Jerry’s psychologist, and glasses for her son, corrective shoes for her daughter, and the expenses incurred as a result of her attending night school. Respondent testified that the expenses for glasses and corrective shoes existed at the time of the divorce, although the daughter now needs more frequent changes in her shoes.

Petitioner has not carried her burden of proof as defined by § 452.370. The expenses which she has enumerated do not show “changed circumstances so substantial and continuing as to make the [original support and maintenance] terms unreasonable.” This conclusion is further supported by the fact that petitioner’s income has increased, while respondent’s has decreased. Thus, the ruling of the trial court denying petitioner’s motion to increase child support and maintenance payments is affirmed; however, the court’s prior order of child support to remain in full force and effect.

We remand to the trial court the determination of whether to grant petitioner’s motion for suit money and attorney’s fees. The trial court ordered that such fees and costs be held in abeyance pending the determination of the appeal. However, the trial court has sole jurisdiction to enter judgment for such awards. Reeves v. Reeves, 399 S.W.2d 641 (Mo.App.1966); McCormack v. McCormack, 238 S.W.2d 858 (Mo.App.1951); Neustaedter v. Neustaedter, 305 S.W.2d 40 (Mo.App.1957); Webb v. Webb, 475 S.W.2d 134 (Mo.App.1971). As the trial court has not passed on the petitioner’s motion for costs and attorney’s fees, the issue is not reviewable under our appellate powers nor within the original jurisdiction of this court. State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135 (1885). We therefore remand this issue for determination by the trial court.

SIMEONE, P. J., and GUNN, J., concur.

      . Sections 452.300 — 452.415, RSMo Supp. 1973.

      . 452.410 codifies long-existing common law in Missouri. Therefore, decisions under the old divorce law are often still authoritative. Kanady v. Kanady, 527 S.W.2d 704 (Mo.App.1975).


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge. ALDEN A. STOCKARD, Special Judge

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard T. WENDEL, Defendant-Appellant.
    No. 36526.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 16, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Taylor, Eichner & Hollander, Toby H. Hollander, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Robert H. House, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Convicted by a jury of robbery in the first degree and sentenced to 25 years in the custody of the department of corrections, Leonard T. Wendel has appealed, claiming he was denied a fair trial because of prejudicial comments made by the trial court, and that the court abused its discretion in connection with his sentencing.

There was evidence that in the commission of a robbery at a Velvet Freeze store appellant came around the corner, placed a big, long knife (a hunting knife with a blade 4 or 5 inches long) at the neck of the waitress, threatened to kill her, and grabbed her throat; that she screamed and moved her hand, at which time the knife cut her hand. The arresting officer caused the suspect to lie down and turn over, at which time the officer observed the knife lying on the ground. During direct examination of the arresting officer the assistant circuit attorney produced the knife for the purpose of having it marked as an exhibit. The knife was handed to defense counsel, who left the knife on a table within easy reach of the defendant. When this happened the trial court, in the presence and hearing of the jury, said, “Step over here with the knife, don’t leave that there. Look, I don’t want that exhibit left anywhere where this man can get to it.”

Bearing on the intention and motivation of the judge is his statement, made following defendant’s request for a mistrial: “Let the record further indicate there has been testimony by the victim in this case that she was cut on her hand by this knife, and it was razor sharp, and [this] was further considered by the court in directing the lawyers not to leave this knife accessible to the defendant.” At the hearing of the motion for new trial the court said, “I did it out of caution.” As he was discharging the jury, after return of verdict, the court said, “I hope that — I am sure it didn’t prejudice you when the incident [occurred] where the knife was to [sic] close. He had an escape, I was afraid for your protection, for the court reporter, and for the lawyers’ protection; that’s the reason I asked to move the knife over. I wanted to explain that to you.”

The court’s remarks were of such a nature as to reasonably tend to prejudice the minds of the jury against the defendant and to deny him a fair and impartial trial. They served to notify the jury that the trial court considered defendant a man of violence — a dangerous person who could not be trusted near a sharp knife, even in a courtroom guarded by armed deputy sheriffs; that there was a possibility that defendant would use the knife improperly if he could reduce it to his possession.

Such impressions, conveyed to the jury with dramatic emphasis, inevitably tended to discredit defendant; reflect on him as a person of rash and turbulent disposition, untrustworthy and prone to violence, and the remarks demonstrated apprehension and a degree of hostility on the part of the court toward defendant. “Defendant was entitled to a trial by a jury that had not been urged to hostility against him by the judge of the court on whose words one would expect them to place the greatest reliance.” State v. Wright, 161 Mo.App. 597, 144 S.W. 175, 178 (1912).

Appellant further suggests these remarks can only be construed as indicating the court’s belief that defendant committed the robbery with this knife. While we do not necessarily concur in this suggestion we are firm in the belief that they indicated the court’s belief that defendant was capable of using the knife for improper purposes, and disposed to do so.

“[T]he court must always maintain an absolute impartiality in any trial, both in its remarks and in its conduct generally * * State v. Sanders, 360 S.W.2d 722, 726 (Mo.1962), for “[t]he influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 470, 58 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). In State v. Bunton, 312 Mo. 655, 280 S.W. 1040, 1043 (1926), the Supreme Court approved the following quotations: “It must be remembered that jurors watch courts closely, and place great reliance on what a trial judge says and does. They are quick to perceive the leaning of the court. They are prompt to notice the inclination, even, of the court, and from his conduct, whether properly or not, they will almost invariably arrive at a conclusion as to what the court thinks about the case. Every remark dropped by the court, every act done by him during the progress of the trial, is the subject of comment and conclusion by jurymen. Hence it is that judges presiding at trials should be exceedingly discreet in what they say and do in the presence of a jury, lest they seem to lean towards or lend their influence to one side or the other.” “It is error for him to express, directly or indirectly, by words or by conduct, in the presence of the jurors, an opinion which discriminates against, or points to, the guilt of accused, or to make a statement which tends to discredit or prejudice accused with the jury.” In 24A C.J.S. Criminal Law § 1901, p. 993: “The reviewing court may consider it to be prejudicial error * * * where the conduct of the court is calculated to discredit, or prejudice the jury against, accused, * * *.”

The court’s remarks were doubtless made by this careful and conscientious judge in good faith, to prevent escape or the possibility of violence or disorder in the courtroom, but where prejudice has been engendered the motivation for the judge’s conduct is immaterial. “Regardless of the proper intention of the court in making such remarks, in determining their effect on the jury we must consider that the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by the judge, to which he himself may not attach particular importance.” Kellum v. State, 104 So.2d 99, 104. (Fla.App.1958).

The State seeks affirmance on these grounds: that the request for mistrial was not timely made; that no abuse of discretion was shown; that there was no request that the court instruct the jury to disregard the remarks; that the court had a right to take reasonably necessary precautions for the maintenance of order in the courtroom and the retention of custody of defendant during the progress of the trial; that the State’s case was so strong that no prejudice could result from the court’s remarks; that accused was not prejudiced and prejudice has not been demonstrated.

The remarks were inherently “of such a nature as would reasonably tend to prejudice the minds of the jury against the defendant and thereby deny him a fair and impartial trial,” which is the test. State v. Ross, 371 S.W.2d 224, 228 (Mo.1963); State v. Hopkins, 500 S.W.2d 264 (Mo.App.1973); State v. Hill, 518 S.W.2d 682 (Mo.App.1975). Because the remarks were so incisive and prejudicial their effect could not be cured or eradicated by proper instruction to the jury at the time. There was no waiver in failing to request that the jury disregard them or in failing to object immediately after they were made and waiting until the witness’ examination was concluded before moving for a mistrial, because the remarks were like indelible ink; they were ineradicable. See State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 442[3] (1948).

On the right of the court to take precautions against disorder: The remarks were made when the trial was more than three fourths completed. Nothing in this lengthy record indicates that during the progress of the trial up to that point defendant had misconducted himself in any way, exhibited any tendency toward violence, or indicated any disposition to escape. While á trial court has the “right to take the reasonably necessary precautions for the maintenance of order and retention of custody of an accused during the progress of the trial, State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 1. c. 205[10], and authorities referred to,” State v. Edmonson, 371 S.W.2d 273, 277 (Mo.1963), there is nothing to show that in this instance the action taken by the trial court was reasonably necessary. The court simply inadvertently failed to exercise the necessary care “to prevent the creation of an atmosphere prejudicial to [the] accused.” See State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 31 (1936).

The trial judge’s distrust of the accused is implicit in cases where he permits or orders the shackling of the accused during the progress of the trial. The decisions in such cases are instructive. Shackling is permitted or ordered only as a last resort. Unless there is some good reason, based on the prisoner’s conduct, the prisoner’s shackles should be removed when brought before a jury for trial. An exception to this rule is allowed only where there exists good reason or exceptional circumstances. State v. Robinson, 507 S.W.2d 61, 62[1] (Mo.App.1974). “When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses, on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.” State v. Kring, 64 Mo. 591, 593 (Mo.1877).

Nothing in this record indicates the existence of a good reason or exceptional circumstance, based upon appellant’s courtroom conduct, to authorize or justify the exclamation made by the trial judge in this case. That appellant was charged with having used a knife in the perpetration of a robbery did not justify the action of the trial judge. In State v. Kring, supra, the fact that the prisoner had assaulted a person in court some three months before the term at which he was tried was held insufficient to authorize the court to assume that the prisoner would be guilty of similar outrages. In the absence of any such justification the action of the trial judge necessarily conveyed to the jury his opinion that this appellant was “a dangerous man, and one not to be trusted, even under the surveillance of officers,” as a result of which the jury must necessarily have conceived a prejudice against him. This exciting circumstance deprived appellant of a fair trial, which means a trial before an impartial judge “in an atmosphere of judicial calm.” 21 Am.Jur.2d Criminal Law § 235, p. 272.

The State seeks refuge in the statement in State v. Degraffenreid, 477 S.W.2d 57, 65[15] (Mo. banc 1972), that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong. As held in that case, however, we cannot conclude that the improper remarks of the court did not, in the minds of the jurors, indict defendant as a man of violence, not to be trusted near a dangerous weapon, and thereby “tip the scales” against defendant. The words used deprived defendant of a fair and impartial trial. Paraphrasing State v. Bunton, 312 Mo. 655, 280 S.W. 1040, 1043 (1926), it may well be that defendant is guilty of robbery as charged. It may be that he would be convicted by any jury in a trial where the fairness and impartiality of the trial judge could not be questioned. But that is not the criterion. Guilty or innocent, the defendant was entitled to be tried fairly and impartially. We are thoroughly convinced that defendant did not have that character of trial.

The other point, relating to the propriety of the court’s statement, in imposing sentence, that he was taking into consideration other crimes (of which defendant had not been convicted and which were not proved) and augmenting the punishment because of such unfounded offenses, will not likely arise on retrial, and is not necessary to a determination of this appeal.

Judgment reversed and cause remanded for a new trial.

SMITH, C. J., concurs.

ALDEN A. STOCKARD, Special Judge, dissents in separate opinion.

ALDEN A. STOCKARD, Special Judge

(dissenting).

The circumstances of this case compel me to dissent.

First. At the time the statement was made by the court pertaining to the presence of the knife, appellant made no objection whatever. The prosecutor continued the direct examination of the witness, counsel for appellant then cross-examined the witness, re-direct and re-cross-examination was conducted, the witness was dismissed, a recess was taken, and then for the first time appellant made any complaint about the remark. He then requested a mistrial; he did not request any other remedial action. In my opinion the objection came too late to preserve the matter for appellate review. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 442 (1949); State v. Brown, 524 S.W.2d 188 (Mo.App.1975).

Second. The matter was, in my opinion, of the nature that the prejudicial effect, if any, could have been removed by appropriate instructions on the part of the court if such relief had been requested. In these circumstances the drastic remedy of a mistrial, State v. Camper, 391 S.W.2d 926 (Mo.1965); State v. Phelps, 478 S.W.2d 304 (Mo.1972), would not have been required even if a timely request therefor had been made.

Third. In view of the right and duty of the court to take reasonably necessary precautions for the maintenance of order in the courtroom and for the safety of all in attendance, State v. Edmonson, 371 S.W.2d 273, 277 (Mo.1963), I do not consider the comment of the Court to be so grievous as to now require the reversal of the judgment, at least in view of the total circumstances. To direct a reversal in the situation we have here is to impute to the jury a lack of common understanding, which I am not willing to do, and to reward the appellant for failing to obtain corrective action less than a mistrial.

Fourth. Assuming that it is arguable that the remark of the court in the circumstances of this case constituted error, the record so clearly demonstrates appellant’s guilt that this is the appropriate case for the application of the rule “that error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong.” State v. Degraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972); Thomas v. United States, 281 F.2d 132, 136 (8th Cir. 1960).

I do not express any view concerning the other contentions of appellant, but I would not reverse the judgment for the reasons set forth in the principal opinion.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lawrence LEWIS, Defendant-Appellant.
    No. 35560.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 16, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    James A. Bell, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

A Circuit Court jury found defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, and assessed his punishment at imprisonment for twenty-two (22) years. The trial court entered judgment upon the verdict of the jury, but commuted the sentence to imprisonment for twenty (20) years. Defendant appealed.

For reversal of the judgment defendant claims that the trial court erred (1) in failing to submit two proffered converse instructions; (2) in permitting the State to introduce evidence of a stolen automobile that was not connected with defendant; and (3) in allowing the State to argue evidence of his past criminal record before the jury to show guilt.

We decline to consider points one and three because of defendant’s violation of our rules. Pertaining to point one, defendant failed to set out either instruction in the argument portion of his brief in violation of Supreme Court Rule 28.18, V.A. M.R., to these proceedings. Consequently, we do not consider this point on appeal. Likewise, we find that point three violates Rule 84.04(c), V.A.M.R., since no facts are set forth in the brief that are relevant to a determination of the question presented. Therefore, this point will not be considered.

From the evidence presented a jury could have reasonably found that on April 14, 1972, two armed men robbed the Del Farm Food Store located at McCausland and Manchester in the City of St. Louis, of $16,000. At a pretrial lineup and by in-court identifications, four (4) persons present at the time of the robbery identified defendant as k participant.

A bread salesman, who was unable to identify defendant as a participant, testified, however, that the two robbers fled from the store and entered a white, two-door, ’64 or ’65 Chevy Chevelle, bearing the license number “K1 or I, as in Ida,” and having a light blue interior. He also testified that he had given this information to the police, which was verified by the police officer who received the report.

A Mr. Meyer testified that on April 14, 1972, he reported a missing car. It was a white 1965 Chevelle — license number K1J760. He had parked this car at the intersection of Delmar and Skinker Boulevard on the West side of Skinker at 7:10 A.M. When he returned at 5:20 P.M., it was gone. Two days later he recovered the car at Mitchell Avenue just one block East of McCausland Avenue.

Despite the corresponding dates and similar appearance, this automobile turned out not to be the car used by defendant as a getaway car. However, no objections were made by the defendant to any of the above testimony pertaining to the car by Mr. Meyer, the officer who took the report of the stolen car, or the officer who assisted in the recovery of the automobile. Also, nowhere in the transcript did anyone — police, witness, or prosecutor — other than defendant’s attorney, use the words “stolen car.” Since the defendant failed to object to the evidence here complained of, giving the trial court no opportunity to correct the alleged error, we refuse to review the claim. See State v. Crow, 486 S.W.2d 248 (Mo.1972) and State v. Morgan, 444 S.W.2d 490 (Mo.1969), where the court held alleged error not objected to at trial was waived.

Moreover, we refuse to invoke our “plain error” Rule 27.20(a) because a review predicated upon claims of plain error requires not only that error be found but also a strong, clear showing that injustice or miscarriage of justice will result, State v. Garrett, 518 S.W.2d 97 (Mo.App.1974).

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Robert Lee CAMPBELL, Appellant, v. STATE of Missouri, Respondent.
    No. 36661.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 16, 1975.
    Rehearing Denied Jan. 23, 1976.

      Sherwood Volkman, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal from a judgment overruling a motion filed by Robert Lee Campbell under Rule 27.26 to set aside and vacate a judgment of conviction of murder in the second degree and a 25-year sentence.

The essential facts surrounding the killing are stated in the opinion on the original appeal, State v. Campbell, 465 S.W.2d 474, 475 (Mo.1971), and need not be restated.

On this appeal Campbell claims he was denied effective assistance of counsel at his original trial because of counsel’s failure to interview or take the depositions of any of the nine witnesses endorsed by the State and because counsel failed to allow himself enough time for reflection and preparation for trial.

Appellant argues that if counsel had taken the officers’ depositions he would have learned of their claim that during the return trip from Chicago, where he was arrested, appellant made the following incriminating statement: that he had gone into the tavern, had been asked to leave, and was piished out of the tavern by the person who was later shot; that upon appellant’s return to the tavern the victim grabbed appellant around the neck “with a death grip” whereupon appellant pulled out a gun with his right hand, put it over his left shoulder and squeezed the trigger, and the victim fell on top of him; that upon learning of this alleged statement counsel could have obtained appellant’s version of the circumstances and events leading up to the alleged statement to ascertain whether in fact it was made and if made whether it was voluntary or made under duress and whether a motion to suppress should have been filed (appellant having testified at the 27.26 hearing that the officers gave him a quantity of whiskey and beer and that he was drunk on the return trip from Chicago); that none of this was possible because counsel heard about the statement for the first time during the trial; that if counsel had elicited the existence and substance of this statement by deposition before trial he “could have urged that this was self-defense” and used it in cross-examination of State witnesses to exploit the discrepancies between their testimony and appellant’s statement as to what the victim did to appellant physically immediately before the shot was fired.

Counsel’s failure to depose the police officers is not to be condemned as a matter of law. As said in McQueen v. State, 475 S.W.2d 111, 112 (Mo. banc 1971), “[t]he mere fact that [the attorney] failed to interview all the witnesses or any of the witnesses on the indictment does not necessarily mean he was negligent in the preparation of the case.” And as stated in Johnson v. State, 479 S.W.2d 416, 420 (Mo.1972): “[i]n the preparation of a case a lawyer is not required to be clairvoyant, and he must of necessity rely on information furnished him by his client.” Counsel’s first information that the State contended appellant made an incriminating statement came to him when the detective took the stand and so testified. At that time counsel asked appellant whether in fact he had made such a statement and appellant denied making the statement. Appellant reiterated at the 27.26 hearing that he made no statement to the officers. In advising appellant to take the stand and testify counsel doubtless intended to elicit from appellant his denial that he made the incriminating statement attributed to him by the officers, but due to appellant’s intransigent refusal to take the stand, and his failure to disclose to his counsel that the officers plied him with liquor and induced intoxication (of which failure counsel gave testimony at the 27.26 hearing), counsel was deprived of any opportunity to contradict the officers’ testimony that the incriminating remarks were made, or to contend that if made they were made while appellant was in a drunken condition and therefore were involuntary and unreliable. Having withheld vital information from counsel and having refused to take the stand on advice of counsel appellant is in no position to complain about counsel’s failure to take the officers’ depositions before trial. On the effect of assurances by a defendant to his counsel prior to trial that he had made no incriminating statements see Barker v. State, 505 S.W.2d 448, 451[9, 10] (Mo.App.1974).

Deposing the officers was not necessary to enable counsel to “urge the jury” that this was a case of self-defense, as appellant suggests. Several witnesses testified that appellant brandished a pistol in the victim’s face immediately prior to the time they testified the two fell to the floor and wrestled. Self-defense was relied on and submitted to the jury by Instruction No. 4.

On the alleged dereliction of counsel in connection with possible cross-examination of State witnesses, we have considered his cross-examination in detail and concluded that he did a creditable job of eliciting the facts pertaining to the physical contact between appellant and the victim immediately prior to the firing of the pistol.

Appellant makes much of the direct examination of appellant’s counsel, a 90-year-old veteran of the courts, in which he testified that he had not interviewed “any of the State’s witnesses.” On further examination it developed that counsel misunderstood the question; that he understood “State’s witnesses” to mean the officers of the law — the policemen and detectives certified by the State as witnesses. As to the other witnesses — those present at the tavern at the time of the killing — counsel testified he “lived right down there where the thing happened, just below [his] house”, a half a block away; that he knew all the people involved in it; that some of them were renters of his; that he went to the tavern and talked to people — talked to “everybody that knew about it”; that appellant was not liked in that place and everybody was against him; that appellant “really tried” to find witnesses that would be helpful but could find only one witness favorable to appellant, one Charles Ulmer, who was called and testified for appellant. In this state of the record the circuit court’s finding that appellant’s counsel did not fail to interview State witnesses is not clearly erroneous.

Appellant argues that if his counsel had taken the time to reflect he could and should have prepared appellant to take the stand and testify in his own defense but instead, without notice, warning or preparation, counsel abruptly ordered him to take the stand (which appellant refused to do). It would be better practice to have a definite understanding in advance with the defendant on the question whether he should take the stand to testify in his own behalf, and to advise him that a final evaluation would be made at the close of the State’s case; to inform him of the nature and content of the questions to be asked and ascertain what his answers will be, if he takes the stand, but this too is a matter of judgment and tactics resting in the discretion of the trial lawyer; matters as to which the courts do not require perfection. Errors in strategy or judgment are not proof of ineffectiveness of counsel. McCarthy v. State, 502 S.W.2d 397, 405[14] (Mo.App.1973).

Appellant contends that a thorough investigation would have revealed the necessity of placing appellant on the stand to counteract the giving of the instruction on flight, by showing and arguing that he returned to Chicago the day after the killing because that was his home and not to flee from arrest. It does not lie in the mouth of appellant to complain about counsel’s failure to put him on the stand to testify, in view of appellant’s acknowledgment that his counsel ordered him to take the stand and that he declined to follow the advice of his retained counsel.

Our review of the 148-page transcript of the murder trial (which reveals a strong if not overwhelming case against appellant) satisfies us that appellant received a fair trial in his legal representation; that counsel’s representation of appellant was adequate, and that the circuit court’s determination that counsel’s representation and assistance at the trial was not ineffective is not clearly erroneous.

Nor is there merit in appellant’s argument that he received ineffective assistance of counsel because counsel failed to move for a mental examination of appellant. There was no apparent reason to do so. His mother, testifying on the 27.26 hearing, asked whether she observed whether her sou was “functioning mentally correctly,” answered, “I know he was all right. Wasn’t nothing wrong with him.” His counsel testified that he did not consider requesting a psychiatric examination of his client because “he didn’t seem to be off his rocker to me. Seemed to have good sense.” Counsel considered him competent to stand trial. Review of his testimony at the 27.26 hearing indicates his mental competence at that time. His answers were responsive to the questions, coherent and intelligent. A mental examination is not required unless there is evidence or there are circumstances raising a reasonable doubt about the defendant’s mental competence. McCarthy v. State, supra, 502 S.W.2d 1. c. 403. There is no such evidence and there are no such circumstances present in this case. “In challenging counsel’s failure to move for an examination, appellant must show that there was some basis for asserting the defense of insanity.” Parks v. State, 518 S.W.2d 181, 185 (Mo,App.l974). This he has failed to do. “In the absence of some warning sign or suggestion of mental aberration there is no absolute or routine duty on counsel to initiate an independent investigation of the mental condition of an accused.” Chapman v. State, 506 S.W.2d 393, 395 (Mo.1974).

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    James HIRBE, Respondent, v. HAZELWOOD SCHOOL DISTRICT et al., Appellants.
    No. 36156.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 16, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied April 14, 1976.

      Russell, Schechter, Weiss & Ens, Dan 0. Russell, St. Louis, for appellants.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Kearney & Brown, Donald L. James, Patrick F. McLaughlin, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal by the Hazelwood School District and the individual members of its board of education from a judgment declaring that respondent is entitled to the status of a “permanent teacher” by reason of the Missouri Teacher Tenure Act, §§ 168.102 — 168.130. (All statutory references are to RSMo 1969).

In 1968 respondent was employed by the Hazelwood School District to teach the fourth grade at the Cole Water School. The contract, dated December 5, 1968, provided that respondent agreed “to teach * * * for the term of 7 months, commencing on the 18th day of November, 1968, for the sum of 5,519 dollars per year to be paid monthly, payable in 9 equal payments at the end of each month beginning December 31, 1968 * * It was stipulated that “the term of the contract expired June 30, 1969.”

Respondent was thereafter re-employed by the Hazelwood School District for the school years ending June 30, 1970, 1971, 1972 and 1973. On or before April 15,1973, he received a notice from the board of education that he would not be employed “for the school year 1973-1974.”

Prior to his employment by the Hazel-wood School District respondent had been employed by the St. Louis Public Schools for three years and by the Florissant-Fer-guson Schools for one year.

The Teacher Tenure Act became effective July 1, 1970. It is there provided, § 168.104(4), that the term “Permanent teacher” shall include “any teacher who has been employed or who is hereafter employed as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district,” with certain exceptions not here pertinent.

A “Probationary teacher” is defined in § 168.104(5) as “any teacher * * * who has been employed full time in the same school district for five successive years or less. * * * In the case of any probationary teacher who has been employed in any other school system as a full-time teacher for two or more years, the board of education shall waive one year of his probationary period; * *

It is then provided in § 168.106 that a contract between a school district and a permanent teacher shall be known as an “indefinite contract” which shall continue in effect for an indefinite period subject only to certain modifications or its termination as provided by statute. In § 168.114 it is provided that an indefinite contract may be terminated by the board of education only for six specifically enumerated causes, and § 168.116 provides that an indefinite contract may not be terminated for an authorized cause “until after service upon the teacher of written charges specifying with particularity the grounds alleged to exist for termination of such contract, notice of hearing on charges and a hearing by the board of education if requested by the teacher.”

The board of education of the Hazelwood School District did not consider appellant to be a permanent teacher, and for that reason there were no proceedings pursuant to § 168.116 pertaining to the termination of a permanent teacher’s contract.

Respondent was employed to teach, and he did teach full time, for the Hazelwood School District for a period of seven months, and following that for a period of four years. Therefore, if but only if, the seven month period ending June 30, 1969, constituted a “year” within the meaning of § 168.104(4), he acquired the status of a permanent teacher when he was re-employed in 1972. On the other hand, if the seven month contract terminating June 30, 1969, does not qualify as a “year” pursuant to § 168.104(4), he did not complete his four “years” until June 30, 1973, and he was not thereafter continued as a full-time teacher, which is a condition to acquiring the status of a permanent teacher. See Lopez v. Vance, 509 S.W.2d 197, 203 (Mo.App.1974).

The determinative issue in this case is the meaning of the term “five [or four] successive years” as used in § 168.104(4). The trial court held that appellant was not employed in 1968 for a “full school year,” but that he was employed “as a full-time teacher for that contract year,” and, therefore, he was employed by the Hazelwood School District for “five successive contract years” and was entitled to the status with that school district of a permanent teacher as that term is defined in § 168.104(4). We do not agree.

One of the purposes of a teacher tenure law is to protect competent and qualified teachers in the security of their positions. Lopez v. Vance, supra; Mullally v. Board of Education, Trenton Public Schools, 13 Mich.App. 464, 164 N.W.2d 742 (1968); Monan v. Board of Education of City of Buffalo, 280 App.Div. 14, 111 N.Y. S.2d 797 (1952); 78 C.J.S. Schools and School Districts § 180 c. Where the teacher tenure law incorporates a probationary period, as does the Missouri law, it has as its purpose to provide the board of education a period, the duration of which is determined by the legislature as a matter of public policy, in which “to make a meaningful, on the job appraisal of the teacher’s ability to perform his duties; to evaluate his worth to the school and determine whether he should become a permanent employee of the district, subject to removal only as provided by the act.” Marzec v. Fremont County, School District No. 2,142 Colo. 83, 349 P.2d 699 (Colo. banc 1960). In this case, the school board of the Hazelwood School District had, by legislative pronouncement, a period of “five [four] successive years” to make that decision. But in so declaring, the legislature did not define what it meant by a “year.” We must therefore determine from the words, and the context in which they were used, the intent of the legislature.

We first note that § 1.020(6), provides that when the term “year” is used in the statutory law3 of this state it “means a calendar year unless otherwise expressed, and is equivalent to the words ‘year of our Lord,’ ” unless that meaning is plainly repugnant to the intent of the legislature or to the context thereof. We are of the opinion that to construe the term “five [or four] successive years” to mean that number of years each being from January 1 to December 31 (which would constitute a “year of our Lord”), would be inconsistent with the intent of the legislature when it referred to contracts of employment for teachers whose usual period of employment is for a school year. See Brookfield v. Drury College, 139 Mo.App. 339, 123 S.W. 86, 94 (1909). In addition, and we consider this to be of particular significance, by § 160.041, enacted in 1963 as a part of a general revision of the school laws of this State, it is provided that “The school year commences on the first day of July and ends on the thirtieth day of June following.” It is to this “year” that we think the legislature had reference when it used the term “five [or four] successive years.” This is made evident when we look to § 168.108 of the Teacher Tenure Act pertaining to the provisions required to be incorporated in an indefinite contract. It is there directed that the contract shall contain a provision that “the teacher, beginning on the — day of_19_, shall serve in the employ of the Board of Education and its successors for a term of_months (the number of school months of the school year in the district) * * and shall also contain a provision that the “contract shall continue in force from year to year until modified or terminated * * *.” (Emphasis added.) It is obvious that by the phrase “from year to year” the legislature intended “from school year to school year,” and that when the legislature referred to “five [or four] successive years” it meant “five [or four] successive school years” as the term “school year” is legislatively defined. See Gerritt v. Fullerton Union High School District, 24 Cal.App.2d 482, 75 P.2d 627 (1938).

In order for respondent to have obtained the status of a permanent teacher it was essential that the “statutary conditions [were] fulfilled, i. e. he [was] a full-time teacher for five successive [school] years” and thereafter continued to be employed as a full time teacher by the school district. Lopez v. Vance, supra at p. 203. When a statute creates a status upon the occurrence of certain conditions, that status, in this case tenure, can be acquired only in the manner provided by statute. Nyboe v. Allen, 10 Misc.2d 895, 175 N.Y.S.2d 334 (1958); Zimmerman v. Board of Education of the City of Newark, 38 N.J. 65, 183 A.2d 25 (1962). The period of respondent’s first contract was for seven months. It was not for “the number of school months of the school year in the district,” § 168.108, and therefore by teaching for that seven month period, respondent was not “employed as a teacher” for a school year. Thereafter, respondent was “employed as a teacher * * for [four] successive [school] years,” but he was not thereafter employed as a full time teacher so he did not obtain the statutorily created status of a permanent teacher as defined by § 168.104(4).

When respondent was notified that he would not be employed for the school year ending June 1974, he had not obtained the status of a permanent teacher. He does not contend that his release was in any way improper in the event he had not obtained that status.

The judgment is reversed.

SMITH, C. J„ and NORWIN D. HOUSER, Special Judge, concur.


author: WEIER, Presiding Judge.

text:
    Ernest C. GERHARDT et al., Plaintiffs-Appellants, v. Frank A. MILLER, Jr. and Miller-Scheer Realty and Insurance Company, Defendants-Respondents.
    No. 36296.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 23, 1975.

      Lester W. Duggan, Jr., St. Charles, for plaintiffs-appellants.
    Dubail, Judge, Kilker & Maier, William C. Maier, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

This is an appeal by plaintiffs from a judgment of the trial court sustaining a motion to dismiss their petition on the basis of the doctrine of res adjudicata. We affirm the action of the trial court.

The petition, which suffered an early demise by reason of the action of the trial court, was filed by four plaintiffs, Ernest C. Gerhardt, Ronald F. Gerhardt, Donald Koch (also known as Don Merle Koch), and Lois Koch, against defendants Frank A. Miller, Jr. and Miller-Scheer Realty and Insurance Company. Each of the plaintiffs in separate but identical counts alleged that Miller and the Miller-Scheer Realty and Insurance Company, by and through its agents, servants, officers and employees, together with others, by means of “duress, fraud, deceit, manipulation, undue influence and over-persuasion” procured one Huida Ger-hardt to execute a will in 1968 which by its terms destroyed a 1965 will under which plaintiffs, who were not heirs, were to receive a substantial portion of the estate of Huida Gerhardt as residuary legatees. Each of the plaintiffs sought money damages in the sum of $50,000.00 and punitive damages in the sum of $25,000.00. The verified motion to dismiss filed by defendants set out as a bar to the suit for damages the facts that plaintiffs had filed a will contest suit wherein they had sought to establish the 1965 will previously rejected by the probate court of the City of St. Louis, and had contested the validity of the 1968 will previously admitted to probate by the probate court. A third count in this suit sought to engraft on the will contest a suit for specific performance of a testamentary agreement to leave certain property to the plaintiffs, but this was dismissed. About two years after the filing of this will contest suit in the circuit court of the City of St. Louis, an agreement was executed by the plaintiffs who are the same plaintiffs in the instant action, and the then defendants, Martha Lee Widman and Joyce Truscott Wilhelm, named as the principal beneficiaries under the 1968 will. By this agreement the plaintiffs were to receive out of the estate $46,250.00 together with specific bequests of $2,500.00 made to each of them under the 1968 will, and in consideration of such assignment the plaintiffs agreed not to oppose the further probate of the 1968 will of Huida Gerhardt, or to impede in any way the administration of her estate. Thereafter the circuit court determined that the 1968 instrument was the will of Huida Ger-hardt, and in accordance with the settlement agreement the plaintiffs were paid.

The court below sustained the motion to dismiss on the basis that the suit for damages because of fraud filed by the plaintiffs against the defendants in the instant cause could not be maintained because the validity of the will of Huida Gerhardt had been challenged in the will contest by the same plaintiffs, and after settlement of the issues by the plaintiffs and the other persons interested in the estate, the will was held to be valid. The court determined this judgment sustaining the will acted as an estoppel against the plaintiffs bringing the fraud action, and prevented the plaintiffs from again contending that the execution of the will was brought about by fraud, trickery or deceit. The court reasoned that whatever rights, if any, plaintiffs may have had prior to the will contest, these rights were wholly dependent upon the respective wills which were the subject of the contest action. In the contest action, by its judgment the court necessarily found that the will of 1968 was not brought about by any “duress, fraud, deceit, manipulation, undue influence and over-persuasion” as alleged in plaintiffs’ fraud petition. Such a judgment sustaining the will is res adjudicata on every ground which was, or could have been, litigated in that proceeding. An action to contest a will cannot be split so as to enable a contestant to bring successive actions, each based upon a new ground of contest. Miller v. Munzer, 251 S.W.2d 966, 971[6] (Mo.App.1952).

Plaintiffs, on appeal, however, contend that the defendants in the fraud case may not rely on res adjudicata to prevent the bringing of the fraud action because the defendants were never parties to the will contest case, and since there must be identity of the persons and parties to the action, the doctrine does not apply and plaintiffs are free to pursue their fraud action against these defendants.

Generally, the doctrine of res ad-judicata may be considered to have dual aspects. A judgment on the same cause of action between the same parties may be raised as a bar to the prosecution of a second action upon the same cause of action as to any issue which was or might have been litigated in the first. This is known as estoppel by judgment. A prior judgment between the same parties may also be raised on a different subsequent cause of action as binding with regard to ultimate facts decided or issues passed upon in the prior action, and is conclusive upon the parties as to these facts actually decided and issues necessarily determined in rendering the judgment. This is called estoppel by verdict. State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S.W. 83, 87[3] (1927); Abeles v. Wurdack, 285 S.W.2d 544, 546[1] (Mo.1955); Smith v. Preis, 396 S.W.2d 636, 640[4, 6, 8] (Mo.1965). Mutuality of parties, either in person or by privy, is one of the requisites in determining whether a former judgment may be used to bar the bringing of a subsequent action. A will contest is an in rem proceeding. Miller v. Munzer, supra, 251 S.W.2d at 971[5]. It is also recognized in Gott, 298 S.W. l.c. 88[9], that a judgment in rem is conclusive with regard to its effect on the res (here the will) in establishing the status of a person or thing or title to property as to all the world but only as to parties with respect to findings of fact.

Mutuality of parties, however, is not always required. There is an exception to this requirement that allows a stranger to the original litigation to assert the defense of res adjudicata against a party bound by the judgment so as to preclude the relitigation of an issue determined in the prior action. This is true where parties to the original action or their privies institute a subsequent action against a defendant who had no part or representation by privy in the prior action but who asserts the defense of res adjudicata. Thus in Arata v. Monsanto Chemical Company, 351 S.W.2d 717 (Mo.1961), landowners brought a suit for damages based on the theory that the highway commission did not previously condemn their land for public purpose but rather for the private purpose of the defendant company in affording it a mode of ingress and egress to defendant’s property; and that the highway commission was induced to bring a prior condemnation suit to acquire plaintiff’s land through contributions of money and land by the defendant company. On appeal, it was determined that the judgment in the condemnation action, wherein the taking for a public purpose was adjudicated, was a bar to the subsequent action by the landowners for damages. And this could be pleaded by the defendant in the second action even if there was no identity of parties in the two lawsuits. The court there stated: “Our conclusion is in accord with the policy of the law (under circumstances such as are here presented) to end litigation by preventing a party who has had one trial of a question of fact from again drawing it into controversy.” l.e. 722[8]. Absolute mutuality of parties is not essential. Abeles v. Wurdack, supra, 285 S.W.2d at 547.

The ultimate issue as to whether the 1968 will of Huida Gerhardt was the product of fraud and illegal activity was fully presented to the circuit court in the will contest case. The plaintiffs here were also the plaintiffs in that litigation. They brought that litigation to a conclusion which was also to their satisfaction under their agreement. The judgment of the court sustained the validity of the will and found against the plaintiffs with respect to the ultimate fact issues. It is true that plaintiffs did not contest these issues after the execution of the agreement and assignment of a part of the residue of the estate to them by the residuary beneficiaries under the 1968 will. But even a consent judgment has the same force and effect as any other judgment reached on its merits. Gerard v. Kodner, 468 S.W.2d 677, 680[3] (Mo.App.1971). And a judgment in a will contest case cannot be considered a consent judgment since once instituted, it leads to a final adjudication upon all matters which were alleged or could have been alleged. Miller v. Munzer, supra, 251 S.W.2d at 971[6]. The same fact issues were presented in the instant suit contending that the will of the deceased was brought about by fraud and illegal acts — the same charges that were asserted, litigated and found against these same plaintiffs in the will contest. It is the policy of the law to give repose to litigated matters that have been properly concluded.

The judgment of the trial court dismissing the petition of the plaintiffs is affirmed.

DOWD and RENDLEN, JJ., concur.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Reginald NELSON, Appellant.
    No. 36222.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Dec. 23, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Charles D. Kitchin, Public Defender, Richard A. Knutson, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, John C. Danforth, Atty. Gen., Preston Dean, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, for respondent.
   SMITH, Chief Judge.

Defendant was convicted of three counts of first degree robbery upon a verdict of a jury and was sentenced to five years on each count, the sentences to run consecutively. He appeals.

A group of people were assembled at the apartment of Rodgers Haines on the night of the robbery. Someone knocked on the door and upon response Mr. Haines went out into the hall. He stated that something was sprayed into his eyes which temporarily blinded him and twelve dollars was taken from him. He saw one man, not the defendant, but no weapons. Immediately thereafter, two men, the one seen by Haines, and defendant came into the room. Defendant was holding a sawed-off shotgun on the people in the room and the other man took money from those people. Four of those people identified defendant as the man with the shotgun. Defendant presented an alibi defense.

Defendant contends the court erred in failing to direct a verdict of acquittal as to Count I, the robbery of Mr. Haines, because there was no evidence that the robbery was effected by means of a dangerous and deadly weapon as charged in the information. Robbery in the first degree occurs when the property is taken from a person by violence or by placing the person in fear of injury. Sec. 560.120 RSMo 1969. That the crime is committed by means of a dangerous and deadly weapon is not an element of the crime, but does enhance the possible maximum penalty. See. 560.135, RSMo 1969 and State v. Spencer, 486 S.W.2d 433 (Mo.1972); Keeny v. State, 461 S.W.2d 731 (Mo.1971).

Allegations of use of a dangerous and deadly weapon are surplusage in an information charging robbery in the first degree. The evidence here clearly establishes robbery in the first degree through fear and violence and defendant was not entitled to a judgment of acquittal even if the evidence failed to show a dangerous and deadly weapon. We need not reach therefore the question of whether the spray constituted such a weapon.

Defendant also complains of the trial court’s failure to give a required instruction, MAI-CR 2.70 — “Verdict Possibilities: Other than Burglary and Stealing — One Defendant — Multiple Counts Requiring Separate Verdicts.” Defendant made no specific objection to this failure at trial and in his motion for new trial complained only generally of the trial court’s failure to “adequately instruct the jury as to all questions of law applicable to the case.” The matter has not been preserved for appellate review. See Rules 20.03, 27.20 and 78.07 V.A. M.R., and State v. Mitchell, 500 S.W.2d 320 (Mo.App.1973). Nor do we find any manifest injustice under Rule 27.20 (the plain error rule) as the other instructions given clearly advised the jury that each count was to be considered separately.

Defendant’s final point is that the Court erred in permitting Haines to “identify” defendant because Haines didn’t see defendant. We do not interpret Haines’ testimony as defendant does. Throughout the trial one of the men committing the robbery was known to the witnesses as “Butch”. Haines’ testimony was that defendant was known as “Butch”. It was made clear by Haines, the assistant circuit attorney, and defense counsel that Haines could not identify the defendant as one of the robbers. We find neither error nor prejudice in permitting Haines to identify defendant as a man known to him as “Butch”.

Judgment affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


text:
    STATE ex rel. James W. NILGES, Relator, v. Hon. Fred RUSH, Circuit Court of St. Charles, Respondent.
    No. 37129.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 30, 1975.

      William J. Fletcher, Clayton, for relator.
    Ellsworth Cundiff, St. Charles, for respondent.
   WEIER, Presiding Judge.

Relator seeks our peremptory writ of mandamus to compel respondent judge to accept for filing his notice of appeal and application for leave to file supersedeas bond as to the court’s judgment with respect to support and maintenance payments in a dissolution of marriage action. The judgment was entered on April 28, 1975. No motion for new trial having been filed, relator filed his notice of appeal in the office of the circuit clerk on May 20, 1975. Relator also filed an application for leave to file the notice and for leave to file superse-deas bond on appeal on May 21, 1975.

In his return, respondent contends that the alternative writ of mandamus should be quashed for two reasons. First, he states that § 452.360, RSMo. 1969 (Laws 1973, p. 477, § 13) provides in part: “1. A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal.” Reading this section in conjunction with Rule 81.04, which provides that notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final, would, in the opinion of respondent, require relator’s filing of his notice of appeal ten days after April 28,1975, the date the court entered its order of dissolution.

We do not believe that it was the intent of the legislature by the language of § 452.360 to attempt to cut down the time that a court retains jurisdiction over its judgment during which it may change, modify or set aside the judgment for good cause under Rule 75.01. This provision of our statute is identical to § 314 contained in the Uniform Marriage and Divorce Act where it is designated subsection (a). In its comment on this clause, the editors state that subsection (a) abolishes interlocutory periods in those states which have them. In other words, the decree of dissolution or separation is immediately effective when entered rather than at a later time after the parties have had a chance to reconsider and reconcile. But this statute does not change the effect of Rule 75.01 which authorizes the trial court to retain control over judgments during a 30-day period after entry of judgment. So far as an appeal is concerned, a judgment does not become final until 30 days have expired after its entry absent the timely filing of a motion for new trial. Rule 81.05. And notice of appeal must be filed within 10 days after the judgment becomes final under Rule 81.-05. Rule 81.04; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975). Such rules govern all civil actions. They are promulgated pursuant to authority granted to the Supreme Court by § 5, Art. 5, Const, of Mo., and they supersede all statutes and existing court rules inconsistent with them. Rules 41.01, 41.02. It should further be noted that in § 452.300, RSMo. 1969 (Laws 1973, p. 471, § 1) the legislature stated the rules of court should apply to all proceedings under the act concerning dissolution of marriage. Respondent’s first reason for sustaining his position based upon the wording of § 452.-360 is without merit.

We now consider the second ground upon which respondent bases his ruling. He asserts correctly that Rule 81.05 provides: “For the purpose of ascertaining the time within which an appeal may be taken, 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. In any such case, by leave of the trial court, a notice of appeal may be filed at any time after the expiration of the time for filing a motion for a new trial and within thirty days after entry of judgment.” (Emphasis supplied.) Respondent points out that no motion for new trial was filed, but admits in his answer a notice of appeal was filed on May 20, 1975. The court records indicate that on May 21 an application for leave to file a notice of appeal and for leave to file supersedeas bond and to approve the same was filed. Judgment having been entered on April 28, 1975, respondent contends that as trial judge he has the discretion to either grant or deny leave to file notice of appeal after the 15 days allowed for filing motion for new trial, but within the 30 days after entry of judgment, and therefore the petition for mandamus does not lie. Respondent judge, however, is incorrect in this conclusion. An appellant should not exercise his right to appeal by filing his notice during the 30-day period while the trial court retains control over its judgment under Rule 75.01 without first obtaining leave. But failure to apply for leave does not affect the validity of the appeal. Where a notice of appeal is filed prematurely, such notice is considered filed immediately after the time the judgment becomes final for the purpose of appeal. Rule 81.05(b); Glassburner v. Burtrum, 418 S.W.2d 119, 120[2] (Mo.1967). All that is necessary to perfect the appeal in these circumstances is that notice of appeal must have been filed within the forty days after entry of judgment.

Respondent judge’s order of May 23, 1975 denying relator’s application for leave to file notice of appeal because not filed within the necessary time is vacated and, if the notice of appeal has been filed in the clerk’s office as conceded by the parties, respondent is ordered to consider application of the relator, James W. Nilges, for leave to file supersedeas bond and approve the form of bond in the case of In re marriage of Frances R. Nilges and James W. Nilges, Frances R. Nilges, Petitioner, vs. James W. Nilges, Respondent, Cause No. 12575 of the Circuit Court of St. Charles County. Relator may then proceed to perfect his appeal in accordance with the rules.

DOWD and RENDLEN, JJ., concur.

      . Rule 73.01 in part provides: “1. In cases tried without a jury or with an advisory jury: * * * (c) Not later than 15 days after the entry of judgment, a party may, but need not, file a motion for new trial or a motion to amend the judgment and opinion, or both.”


author: SHANGLER, Judge.

text:
    Samuel M. LEWIS and Minnie B. Lewis, husband and wife, Plaintiffs-Appellants, v. Mary M. HUBERT and Ben O. Haskell, Defendants-Respondents.
    No. KCD 27064.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.
    Application to Transfer Denied March 8, 1976.

      Jerome W. Seigfreid, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for plaintiffs-appellants.
    Scott 0. Wright, Brown, Wright, Will-brand & Burditt, Columbia, for defendant-respondent Mary M. Hubert.

      Hamp Ford, Jones, Knight & Ford, Columbia, for defendant-respondent Haskell.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

This action for damages comes in two counts and arises from an intersection collision. Count I is a claim by Minnie B. Lewis against Mary M. Hubert, her host driver, and Ben 0. Haskell, the other driver. Count II is a claim by Samuel M. Lewis for the loss of the consortium of his wife. The jury awarded Minnie B. Lewis $5000 against the defendant Hubert but found for the defendant Haskell. The jury found against the husband on his claim for loss of consortium.

On this appeal, the plaintiffs claim that numerous trial errors resulted in an inadequate award of damages for the wife and the denial of recovery to the husband.

The incidents of the event are not in dispute. The collision occurred during the forenoon of March 22,1969, at the intersection of State Highway 22 and Allen Street in Centraba, Missouri. The plaintiff was a passenger in the automobile driven north on Allen Street by her sister-in-law, the defendant Hubert. That movement was governed by a stop sign. As she approached Highway 22 at from 10 to 15 miles per hour, Ms. Hubert [who had traveled that way many times before] was aware of the intersection and the traffic sign but because of cars parked along the shoulder of Allen Street and beyond the corner to the east, her view was hampered, and so continued at undiminished speed into the intersection and collision without prior stop or sight of the Haskell car. She was charged with careless and reckless driving to which she entered a plea of guilty.

The defendant Haskell was westbound on Highway 22 at between 35 and 40 miles per hour. He was about 50 feet from the intersection when he first saw the Hubert car in motion in the vicinity of the stop sign on Allen Street. Haskell then realized the Hubert car would not comply with the traffic stop, so he applied his brakes, swerved to the right, but did not avoid an impact. The Haskell front came into collision with the Hubert right front wheel. Haskell did not sound his horn; he contended there was no time. At impact, each car was travelling 10 to 15 miles per hour. Haskell estimated that two seconds elapsed between his first sight of the Hubert car and the collision. This evidence was confirmed by two witnesses.

The plaintiff Minnie Lewis was past her 72d birthday at the time of the casualty. She had no memory of the collision; but her last recollection was her presence in the Hubert car some distance south of the highway.

The chief of police of the municipality, H. F. Smith, was called to the scene. He found both women lying on the highway pavement, where they had been thrown by the impact. He marked the debris from the collision at six feet north of the centerline of Highway 22. The Haskell car had laid down 27 feet of skid marks. His investigation concluded that the stop sign was visible to a northbound driver notwithstanding cars parked along the east shoulder of Allen and beyond.

The plaintiff Minnie Lewis claimed multiple injuries from the accident, including a recurrent facial melanoma and other disabilities. The defendants concede injury, but limited to a cerebral contusion, hematoma on the right side of the face and fractures of the seventh and eighth ribs on the right side.

A preliminary contention for review is that the trial court improperly overruled the motion of plaintiffs for directed verdict against the defendant Hubert in the face of evidence of negligence uncontroverted and absence of proof that appellants were con-

tributarily negligent. The error assigned in the motion for new trial recites: The Court erred in refusing to grant plaintiffs’ motion for directed verdict against Defendant Mary M. Hubert. That motion was submitted to the trial court without argument or elaboration and summarily denied. The respondent Hubert contends that such a scant allegation of error, without a definite objection either at the trial or on the motion for new trial, violates the governing rules and preserves nothing for review. We deny review of the point on that basis. Beyer v. Pick, 428 S.W.2d 1, 3 (Mo.App.1968); Rules 78.07 and 78.09.

The salient assertion of the plaintiffs is that they are aggrieved because the judgments, which returned inadequate damages to the wife and denied them altogether to the husband, was the result of a jury bias induced by evidence of income erroneously received and evidence of treatment and care expense erroneously excluded.

One of the elements of the damages claimed by plaintiff Minnie Lewis was that her collision-induced injuries prevented her from baking cakes, an avocation she practiced for thirteen years at a gross profit of $150 per week. On cross-examination the defendant Hubert undertook to impeach this claim of loss:

Q. Now, Mrs. Lewis, you didn’t show anything on your income tax returns for sale of these cakes, did you?
A. No.
Q. Your income tax returns, you filed a joint return with your husband?
A. Yes.
Q. Your return for 1971_
MR. SIEGFRIED [Counsel for plaintiff]: Just a minute. We object to this.
The return is the best evidence. I don’t know what Mr. Wright is attempting to show.
THE COURT: Well, the objection will be overruled. I haven’t heard the question. Ask your question, Mr. Wright.
[Proceedings followed outside the hearing of the jury.]
MR. SIEGFRIED: If the question turns out, “Your income tax shows” — and I take it there is going to be a figure here with regard to income and I think that the best evidence would be the return itself so that we would have some knowledge of what counsel is going into on the return.
THE COURT: Well, the objection will be overruled, until I hear the question.
Q. And in your joint return for 1971 it shows gross income of $19,768.49; is that right?
A. I don’t know.
Q. Does that sound about right?
A. I suppose so, but I don’t know anything about it.
Q. Was there any portion of that income on that — did you show any income for baking these cakes?
A. No, because I asked the people in Centralia about that and they said as long as I baked in my home it was a hobby and I didn’t have to put it in.

The defendant Hubert then turned her inquiry to other facets of the case and when she had concluded, the defendant Haskell, in turn, had the plaintiff on cross-examination. The witness was then excused and the jury released until the next morning.

In that posture of the proceedings, counsel for the plaintiffs pressed his objections:

MR. SIEGFRIED: Your Honor, I’d like to renew my objection to counsel using the income tax returns which were not introduced in evidence, eliciting information from them without showing the materiality of the information, going into matters that were not gone into on direct examination and not the proper subject of cross-examination and at this point and based upon this, this improper method of offering evidence to the jury to prejudice their minds against this particular plaintiff, I’d like to ask the court for a mistrial.
THE COURT: Well, the objection — and the Court will adhere to its ruling that it previously gave in this matter and request for a mistrial will likewise be denied. The Court recalls the question dealt with whether she had or had not made a report of the income derived from baking which was opened up on direct examination by your inquiry of her in that regard. It appears to the Court to be a legitimate cross-examination to go into the question of whether this income was or was not reported on her tax return.
MR. SEIGFREID: But the total income of those people as shown on their income tax return has no relevancy or materiality in this case and could do nothing more and was for no other purpose than to prejudice this jury’s mind. We object to it and think a mistrial should be granted for allowing such evidence to be elicited, first of all, just by way of cross-examination, and secondly, by failure to adhere with the best evidence rule which would have shown that at least a portion of this income was from farm rental and certainly this whole thing had nothing to do with the materiality of this particular lawsuit, what the earnings of these people are jointly has absolutely nothing to do with this lawsuit; * * *
THE COURT: The objection will be overruled and the request for mistrial will be denied.
The Court also notes at no time when the jury was present was there any request made to strike that portion of the answer from the jury’s consideration or to admonish the jury not to consider it, and that the request for a mistrial has been made at this time, sometime after the particular situation occurred.
THE COURT: Again, Mr. Seigfreid, if you wish to make a request to the Court tomorrow morning that the Court instruct the jury to disregard that portion of the question, the Court will consider it at that time.
(Emphasis supplied.)

In this court, the plaintiffs complain that the evidence of income from rents and royalties during years 1970 and 1971 were irrelevant to any issue and that the jury bias induced against them by this misimpression of affluence should have been redressed by the grant of a mistrial. The defendants respond that this objection, which came for the first time after the jury had been excused for the day, was not seasonable, and that in any event, the grant or denial of a mistrial was a matter of sound judicial discretion.

It was the right of the defendants to attempt to discredit the proof of lost earnings. Contradiction as a means of impeachment, however, presupposes a previous factual statement by the witness inconsistent with his trial testimony. Aboussie v. McBroom, 421 S.W.2d 805, 807[1, 2] (Mo.App.1967). It is only when a witness denies or equivocates about a statement

that the examiner may show that he in fact did make a previous inconsistent statement. See, cases collected in 29A Mo. Digest, Witnesses On these principles, the income tax returns reported by the plaintiffs for years 1970 and 1971 were inadmissible as evidence for any purpose. They did not contradict, but rather confirmed, the testimony of Ms. Lewis that she had not reported the revenues from her baking enterprise for those years preceding the casualty, and since she claimed no other impairment of income from the collision, the tax returns which disclosed other sources of gain did not bear on any material issue in litigation.

The question remains whether the plaintiffs moved opportunely by timely and specific trial objection to exclude the evidence of earnings from rents and royalties which they now present as immaterial and prejudicial to the verdicts. The purpose of objections to evidence is to avoid trial error and to enable the court to rule intelligently. To that end, the burden is on the party who objects to the admission of evidence to state the proper ground for exclusion. Gerald v. Caterers, Inc., 382 S.W.2d 740, 743[2-4] (Mo.App.1964); 88 C.J.S. Trial § 123. At the trial the plaintiffs attempted to foreclose inquiry on the contents of the tax returns on the ground that the documents were the best evidence, a ground not asserted here. It was not until defendants had done with the cross-examination of the witness, and the jury was recessed for the day, that the plaintiffs first raised the objection made here, that the evidence of income [rents and royalties from oil properties] were neither relevant nor material to any issue and was calculated to prejudice their cause.

It is fundamental to our jurisprudence that rich and poor stand alike in our courts and that neither the wealth of one nor the poverty of the other shall be permitted to affect the administration of the law. 22 Am.Jur.2d, Damages, § 319. The financial status of the parties to a litigation, therefore, is not admissible except when relevant to the issues joined. Bremen Bank & Trust Co. v. Bogdan, 498 S.W.2d 306, 312[5] (Mo.App.1973). In an action for compensatory damages for negligence, the affluence of the plaintiff is extrinsic to the cause of action and tends to distract the jury from a fair assessment of damages. Welch v. Sheley, 443 S.W.2d 110, 116[3] (Mo.1969). This rule of evidence, as any other, is waived when not invoked by a timely objection on a proper ground of exclusion. Appelhans v. Goldman, 349 S.W.2d 204, 207[4-6] (Mo.1961). The objection that the evidence of income was immaterial and prejudicial made for the first time after the jury was released came too late. Notwithstanding, the trial court offered to consider a motion to strike the offensive evidence on the next morning before the reconvened jury. The plaintiffs made no further move for redress, either by motion to strike or by a withdrawal instruction, except to insist then as now that a mistrial was the only effective remedy.

The declaration of a mistrial is the most drastic remedy for a trial error and should be granted only when the resultant prejudice cannot be excised in any other way. Furlow v. Laclede Cab Company, 502 S.W.2d 373, 376[3, 4] (Mo.App.1973). The grant or denial of a mistrial is a matter largely within the discretion of the trial judge who has. a commanding view of the effect of the evidence. The refusal of a mistrial was not an abuse of discretion in these circumstances.

The plaintiffs contend next that the trial court erred in refusing to permit them to show that the royalty income was not a recurring emolument. The record shows that contrary to this assertion witness Marion Lewis gave testimony that his parents, the plaintiffs, were poor farmers, and in this exposition the witness testified from the tax returns for not only years 1970 and 1971, but those for 1966, 1968 and 1969. For those latter three years, his parents reported an income of $4,137.50, a loss of $806.61, and an income of $1,761.00, respectively. In the year 1970, his parents began to receive oil royalties on homestead land in Wyoming and income from that source, received also in 1971, would not continue “for very long, if any more”. This evidence contradicts the contention of the plaintiffs, and goes far to dispel any prejudice which otherwise may have affected the proceedings.

Two other subsidiary points are without merit. The contention is made that the trial court erred in refusing to permit the plaintiffs to show how the rent and royalty income received in years 1970 and 1971 was spent. The plaintiffs do not support this point with argument or with authority. It is denied.

The last component point of the claim that prejudice to plaintiffs resulted from evidence of the income from royalties was that the court erred in disallowing their closing argument that such evidence had no bearing on the case. While it would have been altogether proper for the court to have allowed such an argument, in the circumstances presented, where the evidence had been received and retained by the jury for want of effective objection, motion to strike or other withdrawal, the trial court did not abuse discretion by the curtailment of argument. This is so particularly in the context of the statement of counsel, immediately preceding that the evidence of income was a deliberate stratagem to poison the minds of the jury.

The next point on this appeal is that evidence of family status was elicited from defendant Haskell by his counsel which enlisted the sympathy of the jury in favor of that defendant to the prejudice of the plaintiffs. As filed on this appeal, the transcript discloses these proceedings on direct examination:

Q. State your name to the jury, please.
A. Ben Haskell.
Q. How old are you, Mr. Haskell?
A. Twenty-four.
Q. Are you married?
A. Yes.
Q. You have any children?
A. One.
MR. SIEGFRIED [Counsel for plaintiffs]: Your Honor, one moment, please. [Out of the hearing of the jury]: We’re right back into the same matter of improper questions, Your Hon- or. It’s been held to be highly irregular and improper for counsel to show family status.
MR. FORD [Counsel for defendant Has-kell]: I’ll withdraw it.
MR. SIEGFRIED: I object to this type of question. I think it’s highly improper for him to go into family status and I am not going to ask it be striken, I am going to ask for a mistrial on the grounds it is highly improper as to the — as to the prejudice, that’s already been injected into this case.
THE COURT [within the hearing of the jury]: The objection as to the last question will be sustained. Proceed counsel.

The plaintiffs dispute the correctness of the transcript and contend that their objection to the question: “You have any children” put to defendant Haskell by his counsel came before the answer was made, not after as the transcript shows. On the formal motion of the plaintiffs, we remanded the cause to the trial court to settle the transcript. In obedience to our mandate, the trial court heard the contentions and concluded that the record as originally prepared, approved by counsel and filed in the appellate court accurately reports the proceedings. We are bound by that determination. Rule 81.12(c).

It is the general rule that in an action for personal injuries where compensatory damages are recoverable, evidence that a party has children is incompetent on any issue, not only because irrelevant, but because calculated to appeal to the sympathy of the jury. 22 Am.Jur.2d, Damages, § 318. The disclosure in evidence, above proper objection, of such a domestic fact gives rise to prejudicial error in most circumstances. Stephens v. Hannibal & St. J. R. Co., 96 Mo. 207, 9 S.W. 589, 591[3] (1888); 9 Am.St.Rep. 336; Heibel v. Robison, 316 S.W .2d 238, 243[7] (Mo.App.1958); Annotation, 59 A.L.R.2d 396. “ ‘Where a question indicates that the response to it will be incompetent or inadmissible, an objection thereto, in order to be available, must be made before the answer is given, as it is too late to object thereafter, unless the answer is given before there is an opportunity to object.’ ” Minks v. Smith, 367 S.W .2d 6, 8[2] (Mo.App.1963). The question posited to defendant Haskell by his counsel plainly undertook to elicit incompetent evidence of family status. The objection which came after the answer came too late. The motion for mistrial on that ground was properly denied.

The remaining point asserts that the trial court should have allowed as evidence exhibits 8 and 18, checks given by the plaintiffs in payment for nursing care and excluded by the court because not shown to have been reasonable and necessary.

The evidence which bears on these exhibits shows that the plaintiff Minnie Lewis developed a facial melanoma some ten months after the collision. Her physician Dr. Jolly, surgically excised the malignancy four times but did not arrest the cancer. Dr. Jolly concluded she should have more expert care and referred her for that purpose to the Ellis Fischel Hospital in Columbia, Missouri, where she became the patient of Dr. John Spratt, the Chief Surgeon. Dr. Spratt detected not only the facial lesion, but also a malignancy on the left upper arm, and removed both surgically. Neither has recurred. At the trial, Dr. Jolly gave his opinion [to the effect] that the facial cancer was caused by the collision trauma, while Dr. Spratt testified that to a reasonable medical certainty the melanoma was not traumatically caused. At the conclusion of the plaintiffs’ case, the defendants by joint motion reasserted their objection that the evidence that the facial cancer was traumatically caused was speculative and should be stricken. The court overruled the motion and submitted the issue to the jury.

The plaintiff Minnie Lewis testified that following facial surgery at the Ellis Fischel Hospital in April of 1971, she required nursing care at home to dress her face each day. She offered exhibit 8, a packet of cancelled checks in the aggregate of $3186.80, as proof of that expenditure. She acknowledged, however, that the nurses were used also to care for her husband who, by that time was suffering from the effects of advanced arteriosclerosis. Except for $20 paid anaesthetic services administered at the hospital, the balance of the expenditures shown by exhibit 8 were undifferentiated as to post-operative home nursing care for Ms. Lewis and that accorded her husband. The trial court received the exhibit provisionally pending full proof but denied final admission because there was no showing that the expenditures were reasonable or necessary. The plaintiffs cite the rule of law that payment of expenses for treatment of injury imports reasonableness of the charges and that where the nature and extent of the injury clearly result from the negligent act, the necessity for treatment is shown and a prima facie proof of damages is made. Hay v. Ham, 364 S.W.2d 118, 125[12-15] (Mo.App.1962).

We need not assess this contention against the evidence [which defendants insist did not allow the inference of traumatic cancer] but conclude there was no substantial evidence that the need for the home nursing care for Mr. Lewis [reflected by exhibit 8] and his later institutional nursing care [reflected by exhibit 18] was proximately caused by the injury to Ms. Lewis. If we assume nonetheless that the expense of facial dressing was a proper item of damage, that proof is not made by exhibit 8 which integrates that competent proof with incompetent proof. On that basis, exhibit 8 was properly refused. This exclusion did not impair the legitimate proof — otherwise made by oral evidence — of the $20 expenditure for the anaesthetic services of a hospital nurse.

The rationale which excludes exhibit 8 excludes exhibit 18 as well. That exhibit shows a total of $6148.00 in cancelled checks in payment for home nursing care for both the plaintiffs and for the cost of later institutional care for the plaintiff Samuel Lewis when the home regimen became inadequate. The plaintiffs contend that the nursing care for Mr. Lewis, first at home and then at the Sherwood Arms, was made necessary because the casualty incapacitated her from continuing to care for her enfeebled husband.

The age of Mr. Lewis does not explicitly appear, but the evidence reasonably and cogently suggests that at the time of trial he was in his mid-seventies. Mr. Lewis did not testify, but his personal history was recounted by his wife and son, Denton. Their undisputed testimony draws this composite: At the time of the accident, March 22, 1969, Mr. Lewis was physically well but mentally debilitated. He was afflicted with a progressive arteriosclerosis and had to be cared for by Mrs. Lewis. In 1969, his condition was such that his son, Denton, commenced to keep records for his parents because “[his] father became incompetent to do so”. His physical ability was not comparably impaired, however, so that he continued to drive his automobile and when Ms. Lewis returned home from the Audrain Medical Center following the casualty in March of 1969, he cared for her when she could not care for herself. The mental condition of Mr. Lewis continued to deteriorate so that by February of 1972, when he was placed in the nursing home, “he remember[ed] only 5% of the time”. He was then “in bad condition from old age and arteriosclerosis mentally”.

This evidence — that Mr. Lewis suffered from a condition of progressive mental debilitation which manifested at the time of the accident as an incompetence to keep personal records and then declined into a condition of confusion and almost total loss of recall — undermines the contention of the plaintiffs that Ms. Lewis was disabled by her injuries from continuing the home care to her husband she had managed successfully for ten months after the accident even with her burden of injury. This proof compels the equal possibility that in the natural course of events such professional care would have become necessary when it did even had Ms. Lewis not been injured.

Proof of damages is not a demand for absolute certainty, but only that the loss be the natural and proximate consequence of the wrongful act. Evans v. Wabash Ry. Co., 223 Mo.App. 439, 12 S.W.2d 767, 768[2] (1928). That is to say, speculative, contingent, or merely probable results of injury are not proof of damages. Moore v. St. Louis Southwestern Ry. Co., 301 S.W.2d 395, 402[7] (Mo.App.1957). The rule against uncertain or contingent damages applies to such damages as are not the certain results of the wrong. Moore v. St. Louis Southwestern Railway Company, supra, l.c. 403[9]; 25 C.J.S. Damages § 28.

The evidence of the plaintiffs raises an uncertainty whether the cause for the nursing expenses for Mr. Lewis was the progression of his affliction or the injury to Ms. Lewis; either possibility is as valid as the other, therefore neither is proved. Where the evidence tends equally to sustain either of two inconsistent propositions, neither has been established. Reynolds v. Metropolitan St. Ry. Co., 136 Mo.App. 282, 116 S.W. 1135, 1138[3] (1909). The trial court properly excluded exhibits 8 and 18 which failed as competent proof of damages.

The plaintiffs assert yet another claim of error as to the refusal of the court to allow the jury a view of exhibit 9 relating to expenses for drugs. This point was not raised in the motion for new trial and thus not preserved for our review.

The judgments are affirmed.

All concur.

      . It is not apparent, in any event, what legal right of plaintiffs was infringed by the refusal of the trial court to direct a verdict for both plaintiffs against the defendant Hubert. If it can be said that proof of actionable negligence [liability and consequent damage] was conceded to the plaintiff wife by defendant Hubert, that right was presumptively redressed by the award in her favor. And the husband [whose damages were contested] was entitled at best to a directed verdict limited to liability; such a direction, however, would not have precluded denial of recovery by the jury.