author: GUNN, Judge.

text:
    Louise C. TALIAFERRO, Employee-Respondent, v. BARNES HOSPITAL, Employer-Appellant.
    No. 41219.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Greenfield, Davidson, Mandelstamm & Voorhees, Robert M. Hamlett, St. Louis, for employer-appellant.
    Morris B. Kessler, St. Louis, for employee-respondent.
   GUNN, Judge.

Barnes Hospital appeals from a circuit court judgment affirming the Labor and Industrial Commission’s award granting permanent disability payments and medical expenses to an employee, Louis C. Taliafer-ro. Barnes alleges as error: (1) the exclusion of one of its exhibits; (2) the finding that the employee’s injury was caused by an accident arising in the course of her employment; and (3) the award of medical expenses. We affirm the award of disability payments and reverse as to the award of medical expenses.

On September 15,1975, the employee was employed as a licensed practical nurse by Barnes Hospital, a self-insurer. At the hearing before the administrative law judge, the employee related that in the course of her duties she and another coworker were moving a patient in a hospital bed down a corridor. The wheels of the bed locked causing the employee to be “jerked forward” resulting in injury to her back and pain in her left leg. Two days after the incident, she reported to Barnes that she was unable to work because of back pain, and on the fourth day after her injury the personnel health clinic sent her to the emergency room for treatment as no physician was available at the orthopedic clinic. It was at this time that the employee filled out an accident report for the emergency room. She was subsequently treated at Barnes’ orthopedic clinic on four occasions between September 19 and November 6, 1975. Between April and November 1976, the employee obtained treatment for her back and leg pains from physicians of her own selection outside Barnes’ clinics. As a part of her treatment, she was hospitalized a total of three times in April, July and September 1976.

The administrative law judge found that the employee had injured her lower back during the course of her employment when the rollers of the bed stuck while she was pushing a patient in a hospital hallway. He further found a twenty percent “permanent partial disability of her body as a whole referable to the lower back and left leg” caused by a condition diagnosed as chronic lumbosacral strain and nerve root irritation. An award of compensation was based on that finding. The employee was also awarded the medical expenses for two of the outside physicians rendering treatment and for the cost of a back brace. The Labor and Industrial Commission affirmed the award and extended the coverage to include hospital expenses for the three times the employee was placed in Barnes by the outside physicians. The circuit court affirmed the Commission’s award.

Before launching into the relative merits of the appeal, we indite the fundamental legal principles which serve as guideposts for our review of this workman’s compensation case. First, we view the record in the light most favorable to the findings and award of the Commission, and its award is conclusive and is to be upheld if supported by competent substantial evidence. Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo.App.1978); Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653 (Mo.App.1978); Hennecke v. Washington University, 543 S.W.2d 525 (Mo.App.1976). Further, we may not substitute our judgment for that of the Commission nor set it aside unless the decision is clearly contrary to the overwhelming weight of the evidence. Hendricks v. Motor Freight, Corp., supra; Pulliam v. McDonnell Douglas Corp., 558 S.W.2d 693 (Mo.App.1977). Finally, any conflicts in evidence and the credibility and weight to be given to the testimony of the witnesses is for the Commission’s determination with its findings in that regard conclusive upon the reviewing court. Skinner v. Dawson Metal Products, 575 S.W.2d 935 (Mo.App.1978); Tillman v. Wedge Mobile Serv. Station, supra; Simmons v. Wilson Freight Co., 549 S.W.2d 571 (Mo.App.1977).

The prologue of guiding precepts posted, we turn to Barnes’ challenges to the Commission’s award. The first point of alleged error concerns the exclusion of an exhibit containing a statement given on September 19, 1975, by the employee to a Barnes’ nurse, four days after the injury. The statement was written by the nurse and offered by Barnes as an exhibit of a medical record. The statement, prepared by the nurse, attributes to the employee the following cause of her accident:

“C/o [complains of] low back pain since 9-15-75, states has been unable to work. Relates onset of pain to “moving beds” on duty. Did not & does not wish to complete injury report as she states she is uncertain of cause. States has been treated for back problems 2+ [times] in past previous to employment at BH »

The exhibit was first rejected, then admitted by the hearing judge. The objection was made by the employee to its admission under § 287.215, RSMo Supp.1975, on the ground that she had not been furnished a copy of the report. The objection was initially sustained, then overruled, and the exhibit was admitted. However, in his award the administrative law judge again ruled against the admissibility of the statement.

Barnes claims that the statement admission is essential to a determination of an issue before the administrative law judge— whether the employee sustained an “accident” under § 287.020.2 RSMo Supp.1975. Barnes asserts that the language in the hospital record, “did not and does not wish to complete injury report as she states she is uncertain of cause”, fully refutes that the cause of her injury was due to the accident reported by reason of the bed wheels locking. We are not persuaded that either party’s case rises or falls on the admissibility of the foregoing statement. It is no more than what a Barnes’ nurse had written down as allegedly being reported to her by the employee. The nurse did not recall the particular statement, and it seems to contain a little something for each party — the argument that the accident occurred, as the employee .adjures, in pushing a hospital bed and, as far as Barnes is concerned, that the employee did not know the cause. We view the acceptance or the rejection of the statement as having little value to the denouement of this appeal. Barnes produced four hospital records from its emergency room and orthopedic clinic which were consistent with its theory that claimant had not suffered a § 287.020.2 accident. The portion of the rejected statement which Barnes claims would favor it is no more than cumulative and does not add anything to the existing probabilities. Sampson v. Missouri Pac. R. Co., 560 S.W.2d 573 (Mo. banc 1978).

Barnes stresses that the award must fail as it was not supported by substantial evidence. It invokes the precept that “The contradictory testimony of a single witness relied on to prove a fact does not constitute substantial evidence and is not probative of that fact in the absence of an explanation or other circumstances tending to explain the contradiction”, citing Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644 (1933); Griggs v. A. B. Chance Co., 503 S.W.2d 697 (Mo.App.1973); Morgan v. Krey Packing Co., 454 S.W.2d 939 (Mo.App.1970). And, indeed, we do not enervate that fine postulation of law. But the cases relied on by Barnes are not particularly felicitous here, for in each of the three, the single medical witness upon which the employee relied was weak, vacillating and contradictory within his own testimony. Such is not the situation here. The employee was positive and uncontradictory in her own testimony as to the cause of her accident. True, Barnes presented evidence by medical records to contradict the employee, but the medical records here are no more than statements prepared by hospital employees. There is no presumption that they are infallible or conclusively binding on the trier of fact. They merely provide a conflict between the employee’s version of the accident and the medical records prepared by others, with the conflict and the value of each to be resolved by the Commission. Skinner v. Dawson Metal Products, supra; Conley v. Meyers, 304 S.W.2d 9 (Mo.1957). See also: Griffin v. Evans Electrical Constr. Co., 529 S.W.2d 172 (Mo.App.1975). We cannot say that the Commission’s findings as to the cause of the accident were not supported by competent and substantial evidence nor contrary to the overwhelming evidence. Id.

Finally, Barnes argues that all of the employee’s medical expenses which were included in the award were incurred 90 days after the injury occurred, and because of the employee’s failure to seek a special order under § 287.140.1, RSMo 1969, authorizing the additional treatment it may not be held liable for them.

All of the medical expenses were incurred after March 13,1976, more than 90 days after the injury. There is no evidence that the employee sought a special order or that Barnes waived its statutory rights under § 287.140.1, RSMo 1969, by authorizing comprehensive medical care while fully aware of the extent of the injuries and paying for the cost of such care beyond the statutory requirement. See: Stephens v. Crane Trucking, Inc., 446 S.W.2d 772 (Mo.1969).

It is irrelevant to the finding of a waiver, contrary to what the employee asserts, that her medical expenses were incurred either at the employer-insurer’s hospital or in seeing physicians who worked at Barnes Hospital. The issue is whether Barnes authorized these physicians and their method of treatment for the employee; it did not. Since there has been no waiver or special order, Barnes is not liable for the medical expenses incurred after March 13, 1976. Gill v. Massman Construction Co., 458 S.W.2d 878 (Mo.App.1970).

The employee has also made claim for damages for frivolous appeal under Rule 84.19. We deny the claim.

The judgment as to the award of medical expenses is reversed. It is affirmed in all other respects.

REINHARD, P. J., and CRIST, J., concur.

      . The employee does not dispute her history of prior back problems and there is evidence to substantiate that she had fully recovered from them prior to the accident under consideration in this case.

      . Section 287.020.2, RSMo Supp.1975, was in effect at the time of the hearing. Section 287.-020.2, RSMo 1978, has since been enacted.

      . Section 287.140.1, RSMo 1978, differs from § 287.140.1 RSMo 1969, in effect at the time of the hearing.


source: Caselaw Access Project

license: Public Domain

text:
    PRUDENTIAL PROPERTY AND CASUALTY INS. CO., INC., Plaintiff-Respondent, v. William COLE, Sr., Defendant-Appellant.
    No. 40351.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.

      Raymond Howard, Kenneth R. Singer, Raymond Howard, St. Louis, for defendant-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Richard B. Scherrer, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant William H. Cole appeals from a declaratory judgment declaring that his homeowner’s policy with plaintiff-respondent Prudential Property Ins. Co. was void ab initio for fraudulent misrepresentations made in the policy application. The trial court’s judgment was also adverse to Cole on his counterclaim for insurance benefits, interest, vexatious penalties and attorney’s fees. The substance of Cole’s appeal is that the findings of the trial court were against the weight of the evidence and not supported by substantial evidence. We affirm.

In our review of this court tried case we are guided by some rather fundamental legal precepts: in a court tried case the judgment is presumed to be correct. The judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence or erroneously declares the law or erroneously applies the law. Walker v. Multi-Wood Products, Inc., 581 S.W.2d 617 (Mo.App.1979); Kansas City Elec. v. Bomar Elec. Co., 581 S.W.2d 411 (Mo.App.1979); Smith v. City of Clayton, 579 S.W.2d 675 (Mo.App.1979). Further, where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part or none of the testimony. Hayes v. Reynolds, 579 S.W.2d 119 (Mo.App.1979); Gover v. Empire Bank, 574 S.W.2d 464 (Mo.App.1978). Finally, “[t]he judgment is to be affirmed under any reasonable theory supported by the evidence (cite omitted). The appellate court is also obliged to accept as true the evidence and permissible inferences which may be drawn, favorable to the prevailing party, and disregard the contradictory testimony.” S. G. Adams Printing v. Central Hardware Co., 572 S.W.2d 625, 628 (Mo.App.1978). Therefore, in this case in which Cole’s basic attack is that his evidence is more truthful than Prudential’s he is faced with the almost insuperable burden of overcoming the judgment against him.

The evidence supporting the judgment relating to the fraudulent misrepresentations in the homeowner’s policy application begins with Prudential’s salesman meeting with Cole to take an application for homeowner’s insurance for Cole’s St. Louis residence at 1332 Laurel Avenue. Regarding prior homeowner’s insurance history, Cole related for the application that within the past three years, he had not had any homeowner’s policy cancelled, refused to be renewed or acceptance declined, nor had he incurred any losses; that he occupied the premises year around at the present time and for the prior two years. The application was then accepted by Prudential. About four months later a fire did substantial damage to Cole’s residence which, according to Prudential’s evidence, was vacant and unoccupied at the time of the fire. Investigation of the fire disclosed that the house was unoccupied; that approximately eight months earlier insurance coverage on the house by another carrier had been can-celled; that Cole had experienced a burglary loss on the property seven months prior; that within one year prior to the application, fire losses had occurred at two other separate properties in St. Louis owned at one time by Cole or a realty company controlled by him. Cole’s evidence was that at the time the fires to the two other properties occurred he had no connection with their ownership.

Based on the conflict between the information discovered through the investigation and Cole’s answers on the policy application, Prudential sought by declaratory judgment action to have the policy declared void ab initio alleging that the answers to the questions in the application concerning occupancy, cancellation of previous insurance policies and prior losses were fraudulent misrepresentations. Defendant’s former wife, Inzetta Cole, whose name was still on the deed, and Lindell Trust Company, who held a deed of trust on the property were jointly sued. Cole counterclaimed for losses sustained in the fire, for vexatious refusal to pay the claim and for attorney’s fees. Prior to trial Prudential dismissed its cause of action against Lindell Trust when the deed was released. A default judgment was entered against Inzetta Cole. After trial, the court rendered voluntary findings of fact and conclusions of law and entered judgment for Prudential. The findings of fact recited:

[T]he defendant [Cole] made a material misrepresentation in his application for the aforesaid homeowners insurance policy in that in said application he stated that he had not had any prior losses on real property he owned, when in fact the Court finds from the evidence adduced at trial that he had incurred prior fire losses at real property he owned, two of the losses being within five months of the date said defendant signed the application of insurance. The Court further finds that at the time plaintiff issued its aforesaid insurance policy to said defendant it did not know of the aforesaid losses and had it known of them it would not have issued the said homeowners policy. Because of such material misrepresentation, the Court finds the said policy void ad (sic) initio.

Cole initially assigns error to the implied findings of facts of the trial court in reaching its judgment. When, as here, no request is made of the court in a court tried case to make specific findings of fact or conclusions of law and they are voluntarily given, they are not the proper basis for assigning error and the general finding is the sole basis for review. Key v. Gregory, 553 S.W.2d 329 (Mo.App.1977). Cole’s points of error must go to the plaintiff’s allegations which are the necessary elements of the offense and are, in other words, the implied findings of fact forming the basis for the conclusions of law.

Cole alleges as error that there was no substantial evidence to support a finding that the representations were made with knowledge of their falsity. Prudential’s burden in establishing that the policy was void ab initio for fraudulent misrepresentations is to demonstrate the elements, which are:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of the falsity or his ignorance of the truth; (5) the speaker’s intent that his statement be acted upon; (6) the hearer’s ignorance of the falsity of the statement; (7)his reliance on the truth of the statement; (8) the hearer’s right to rely on the statement; O’Shaughnessy v. Ward Aircraft Sales & Service, Inc., 552 S.W.2d 730, 733 (Mo.App.1977).

Accord: Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483 (Mo. banc 1966); Yeager v. Wittles, 517 S.W.2d 457 (Mo.App. 1974). Intent that the statement be acted upon may be found if the insured knew that the representations were incorporated in the application when he signed it. Cohen v. Metropolitan Life Ins. Co., 444 S.W.2d 498 (Mo.App.1969).

Cole points to his own evidence to argue that there were no misrepresentations. But in so doing he chooses to ignore the evidence favorable to Prudential, i. e., that in Cole’s deposition he testified that at the time he made the application he knew his prior fire policy on the Laurel Avenue property had been cancelled and that he had not been residing at the house at the time of the burglary, seven months prior to the application. As prologued, contradictions in testimony are to be resolved by the trial court. Smith v. City of Clayton, supra; Hayes v. Reynolds, supra; S. G. Adams Printing v. Central Hardware Co., supra. Giving consideration to the evidence before the trial court to support its judgment, and even discounting the evidence relating to the fires on the properties in which Cole disclaimed any interest, there is substantial evidence to support the trial court’s conclusions of law.

Cole also argues that Prudential should be estopped from making its claim of fraudulent misrepresentation, as the questions in the policy application were too vague and lacking in specificity to alert him to their intent; that the questions referred to the most recent policy on the house that had been only for fire insurance and to losses suffered other than by fire, such as the recent burglary loss. The questions and answers upon which Prudential in part based its action are:

Insurance History Cancelled? Refused to Renew? Declined Acceptance?
_Yes x No _Yes x No _Yes x No
8B Prior Losses Has the applicant incurred any losses in the past three years?
_Yes x No

We find the questions sufficiently specific, particularly in view of Cole’s experience as a real estate dealer.

Cole also asserts that Prudential should have independently determined on its own investigation what his previous insurance experiences had been. This point is untenable. When answers to an application are complete on their face, the insurer is not obligated to make further inquiry. Weekly v. Missouri Property Ins. Placement Facility, 538 S.W.2d 375 (Mo.App.1976).

Cole’s reliance on Farmer’s Mutual & Lighting Ass’n. v. La Vallee, 501 S.W.2d 69 (Mo.App.1973), on his estoppel theory will not support a reversal of the trial court’s decision. In Farmer’s Mutual, the insurer was estopped from raising a claim of fraudulent misrepresentation in an insured’s application which falsely denied the existence of other insurance on mortgaged property. Since mortgage banks in Missouri require deeds of trust which routinely provide for insurance coverage to secure the loan, the court assumed that “[i]n the ordinary course of sane business practice . [the insurer] would contact the bank-mortgage holder to ascertain the fact and status of the loan and existing insurance”. Id. at 76. On this assumption it was held that the trial court could properly conclude that the insurer had inquired of the mortgagee concerning other insurance and hence knew of its existence. We see no need to make such assumption when an application is complete on its face. We reaffirm the principle recently enunciated in Weekly, supra, that an insurer has no duty to inquire when the application is complete on its face.

We find that the judgment is supported by substantial evidence; that it is not against the weight of the evidence nor does it erroneously declare or apply the law.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Another element—that the hearer have consequent and proximate injury—is not pertinent in this case for declaratory judgment.

      . There was evidence that certain of the fires were of incendiary origin, including the fire at 1332 Laurel Avenue.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard JOHNSON, Appellant.
    No. 40046.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 21, 1979.

      William J. Shaw, Public Defender, James W. Whitney, Jr., Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael P. Donegan, Asst. Attys. Gens., Jefferson City, James W. Whitney, Jr., Clayton, for respondent.
   DOWD, Presiding Judge.

Richard Johnson was convicted by a jury of murder in the first degree in connection with robbery. He was sentenced to life imprisonment and appeals from this judgment entered on the verdict.

The appellant was charged with the murder of Gwynne Aarant, which occurred sometime in the evening of April 18, 1975. Appellant was the manager and maintenance man of the apartment building in which the victim was a tenant. Appellant lived with his wife in the same building in an apartment down the hall from the victim’s apartment.

The victim was last seen alive by her next door neighbor at around 4:30 or 5:00 o’clock on Friday evening, April 18. The victim and her neighbor were engaged in a conversation in the hallway when the appellant joined them. The victim’s neighbor then left for her own apartment, leaving appellant and the victim alone in the hallway. The victim was not seen for the rest of the weekend nor were there any signs of life in her apartment. A co-worker of the victim informed her employer that she had failed to show up for her car pool and work on Monday, April 21. Since this was very unusual for her, the victim’s employer went to her apartment and after receiving no answer, he requested the apartment manager (appellant) to unlock and open the door. Realizing that the apartment had been ransacked, the employer called the police.

A police officer of the Major Case Squad testified that there was no evidence of any forced entry or pry marks on the door or windows. The whole apartment had been ransacked. The victim was found lying face down on the bed, nude from the waist down. A piece of a pair of pantyhose was found wrapped around her neck. There was a large amount of blood on the bed under the upper side of her body along with a large number of checks and deposit slips lying underneath her.

The medical examiner determined that death was caused by strangulation and subsequent to the strangulation the victim was stabbed seven times in the chest. There was evidence of intercourse within a range of 24 hours before or after death.

It is at this point that the evidence adduced at trial becomes contradictory. Appellant admitted going into the victim’s apartment on Thursday, April 17. When questioned on tape by police, appellant stated he went into the apartment to spray for bugs and did so along the baseboard about an inch from the wall. A laboratory examination of carpet samples found no residue of bug spray. At trial, appellant recalled the taped conversation with police but then stated he sprayed the ceiling for spiders. A similar contradiction between the taped conversation with police and his testimony at trial appears on the issue of whether the victim came home while he was in her apartment. Appellant also admitted in both his taped conversation and at trial that he went through the victim’s drawers and through her cancelled checks on that Thursday.

Appellant further testified that he had sex with the victim, which she consented to, on Friday evening, April 18 but that he left her apartment before 6:00 p. m. with the victim in good health. He left the apartment complex about 6:45 p. m. and went bowling with relatives until around 11:00 when he picked his wife up from work. Appellant testified that they both went home, showered, and went to bed.

The testimony of appellant’s wife reveals much more. She testified that after they got home, she observed the. appellant go into the victim’s apartment and return in about 20 minutes with a heavy duty electrical cord, a car title, credit cards, and a driver’s license with a picture she recognized to be that of the victim. She watched the appellant in another room burn and flush these items (except the cord) down the toilet. She testified he then cut the cord into little pieces and took her in his car and dumped these pieces along a highway.

Appellant’s wife testified that on the following day, Saturday, April 19, she accompanied appellant to his mother’s house. Appellant’s mother showed her a ring he had given her. She had never seen his mother with this ring before. She was able to identify this ring from a picture which had been identified by other witnesses as a ring belonging to the victim.

Appellant’s wife also testified that on the day after the body was found she again went with appellant to his mother’s house. While in another room, she observed the appellant hide a knife on top of a cabinet in the kitchen. Appellant did not see his wife observing him as he put the knife on the cabinet. She testified that the knife was used to cut up the electrical cord. The medical examiner testified that the knife could have caused the chest wounds of the victim.

The appellant prevailed upon his wife not to give an account of what she observed by constantly threatening her life. His wife admitted lying in her statement to police on April 25. She continued to remain silent until fifteen months after the crime occurred. Her testimony was finally prompted by appellant shooting at her in the course of an argument.

Further evidence detrimental to appellant’s position was the testimony of Ralph Williams, a recent acquaintance of appellant. Williams testified that in a conversation where no one else was present, the appellant admitted committing a murder in St. Louis.

The jury found the appellant guilty of murder in the first degree in connection with robbery and fixed punishment at life imprisonment.

Appellant’s first point relied on is that the court erred in overruling his motion in limine to strike, or in the alternative to limit, the testimony of his wife. Appellant contends that the matters testified to were confidential communications protected by the marital relationship. This point is deficient for a number of reasons.

Without going into the merits of appellant’s argument that this evidence was protected by the marital privilege, he has not properly preserved this point for appellate review. Appellant presented evidence in support of his motion in limine to strike or at least limit the testimony of his wife. This motion was overruled. When his wife testified at trial, appellant made no objection but cited as error in his motion for new trial both the denial of his motion in limine and the admission into evidence of statements made by appellant.

The principal issue: After a denial of a motion in limine is a timely objection at trial required to preserve the point for appellate review? This question is answered in the affirmative.

As a rule, the basis for a motion for new trial must be submitted to the trial court at the time the testimony is offered and, without such an objection, cannot be successfully urged on appeal. State v. Washington, 320 S.W.2d 565, 568 (Mo.1959).

A spouse waives the common law and statutory protection by failing to object when the other spouse testifies at trial. State v. Bledsoe, 325 S.W.2d 762, 766 (Mo.1959) citing State v. Hill, 76 S.W.2d 1092, 1094 (Mo.1934). This case is distinguished from State v. Euell, 583 S.W.2d 173 (Mo. banc 1979). In that case, the defendant objected that his ex-wife (she was his wife at the time of the altercation in question) was not a competent witness. State v. Euell, supra. In the case before us now, the only objection made to the testimony of appellant’s wife was an overly broad motion in limine to strike or limit her testimony. Neither such motion, nor the court’s ruling on it, disencumbers appellant of his obligation to object in order to preserve the point. State v. Beemer, 538 S.W.2d 768, 771 (Mo.App.1976). Appellant made no objection at trial and therefore has no basis for any claim of error by the trial court. State v. Rennert, 514 S.W.2d 579, 580 (Mo.1974).

In similar situations, courts have held a denial of a motion in limine an insufficient basis for a claim of error when there was no timely objection to the testimony at trial. State v. Savu, 560 S.W.2d 244, 245 (Mo.App.1976) (denial of motion to exclude evidence of other crimes). State v. Parker, 543 S.W.2d 236, 240 (Mo.App.1976) (denial of motion to suppress and exclude statements).

Although appellant has not properly preserved this claim for appellate review, the court may, in its discretion, review the point under the plain error rule, Rule 27.20(c) VAMR. Rule 27.20(c) allows the court to consider on appeal plain error affecting substantial rights, though the alleged error is defectively preserved, when it deems that manifest injustice or miscarriage of justice has resulted. Before applying this rule, the court must find a “sound, substantial manifestation” and a “strong, clear showing” that injustice will result. State v. Caffey, 457 S.W.2d 657, 660 (Mo.1970). Furthermore, appellant has the burden of proving that the error amounted to manifest injustice or miscarriage of justice. State v. Richards, 536 S.W.2d 779, 788 (Mo.App.1976). A careful review of the record shows no clear showing that a manifest injustice or miscarriage of justice has resulted. Accordingly, this court will not review the point under the plain error rule. This point is ruled against appellant.

Appellant also claims the court erred in permitting his wife to testify during the State’s rebuttal that his brother had been convicted of murder in New York. Appellant claims that this testimony was improper as rebuttal, was irrelevant and prejudicial and, if admissible at all, should have been offered in the case in chief.

On direct examination, appellant’s wife testified that appellant made threats on her life. She stated she was afraid for her life and the life of her nine year old daughter and therefore gave the police a false story.

On cross-examination by appellant, his wife testified that her fear was based partially on her belief that she would be harmed by his family. Appellant’s wife first testified, in response to questions by appellant’s counsel, that she was afraid of his brother.

In an effort to show that his wife’s fear was unreasonable, appellant testified he did not threaten her. He also produced family members as witnesses to testify that they had not threatened his wife.

On rebuttal, she testified she understood his brother had committed murder in New York and that it scared her. This evidence was offered to counter appellant’s evidence that there was no reasonable basis for the fear.

Rebuttal evidence must “explain, counteract, repel or disprove” evidence offered by the defendant. The trial court is vested with considerable discretion as to the nature and extent of rebuttal testimony. State v. Williams, 442 S.W.2d 61, 65 (Mo.1968). This discretion still remains even if the evidence more properly should have been offered in the case in chief. State v. Adams, 465 S.W.2d 536, 540 (Mo. 1971). An appellate court will not reverse a case on the ground of improper rebuttal unless there is a clear abuse of discretion or the appellant’s rights are prejudicially affected. State v. Williams, supra at 65.

The wife’s testimony was clearly proper on rebuttal. Her testimony was directed at appellant’s evidence to counteract or disprove it. Williams, supra at 65; Glenn v. Stewart, 167 Mo. 584, 67 S.W. 237, 239 (1902). We find no abuse of the trial court’s discretion.

Also, recent cases have held that when a defendant brings a matter into a case by his own questions, he cannot claim error when the state presents evidence to clarify or explain that matter. State v. Riles, 581 S.W.2d 457, (Mo.App.E.D.1979); State v. Matha, 446 S.W.2d 829, 832 (Mo.1969); State v. Holmes, 419 S.W.2d 15, 17 (Mo.1967). Appellant opened up this area on his cross-examination of his wife and therefore cannot now claim error in the State attempting to explain this issue. Appellant attempted to establish that his wife had no reasonable basis for her fear and thus question her motives for withholding her evidence. The State was merely attempting to refute this image fashioned by appellant. State v. Mude, 448 S.W.2d 879, 887 (Mo.1970).

Appellant’s contention that his testimony was irrelevant and highly prejudicial is not well taken. The credibility of appellant’s wife is of the utmost importance. The reasons for the false statement to police and withholding her evidence is highly relevant. Even if this evidence was prejudicial the testimony was indispensable for its legitimate purpose and therefore was properly admitted. Daniels v. Dillinger, 445 S.W.2d 410, 418 (Mo.App.1969). This point is ruled against appellant.

Appellant also claims the court erred in permitting the sequestered jury to suspend deliberations and eat dinner in a public restaurant, at which time several jurors had a drink. He claims that the trial judge, who was at a table across the dining room from the jurors, participated in the decision allowing several jurors to consume alcohol before dinner.

At a separate hearing before the trial judge, on appellant’s motion for new trial, the evidence showed that prior to leaving for dinner the jury had taken a ballot with 10 jurors voting to convict and 2 abstaining. Before dinner, 6 jurors had one drink each but the two abstaining jurors did not drink. The jurors who did have a drink testified that it did not affect them. Although the sheriff gave permission to have a drink, some of the jurors did observe the trial judge sitting at a table across the room.

Appellant cites several out-of-state cases while the law in Missouri is well settled. Section 547.020 RSMo 1969 permits the court to grant a new trial “(2) When the jury . . . has been guilty of any misconduct tending to prevent a fair and due consideration of the case.” State v. Edmondson, 461 S.W.2d 713, 724 (Mo.1977). However, the determination of whether the particular circumstances warrant a mistrial rests in the discretion of the trial court. State v. O’Neal, 436 S.W.2d 241, 246 (Mo.1968). The fact that there was a possibility something prejudicial could have occurred is not enough to grant a new trial where the possibility is rebutted by other facts and circumstances. State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 123 (1951).

It was incumbent upon appellant to show that the mind of a juror was affected by the alcohol or suffered from some degree of intoxication. State v. Washburn, 91 Mo. 571, 4 S.W. 274, 276 (1887); State v. West, 69 Mo. 401 (1879); State v. Taylor, 134 Mo. 109, 35 S.W. 92, 105 (1896); Annot., 7 A.L. R.3d 1040 (1950).

The trial judge held a hearing in which the jurors were examined by both counsel and the court. The jurors testified not to impeach their verdict but to support and uphold it and therefore their testimony was properly received. State v. Westmoreland, 126 S.W.2d 202, 204 (Mo.1939). No evidence was presented to show any intoxication of a juror. State v. Selman, 433 S.W.2d 572, 577 (Mo.1968). The facts reveal no prejudice to the appellant and support the trial court’s exercise of discretion in denying a mistrial. State v. Edmondson, supra at 724. Therefore, this point is ruled against appellant.

Finally, appellant asserts that the trial court committed error in failing to obtain a written waiver of counsel from him pursuant to § 600.051 RSMo Supp. 1976.

Section 600.051, supra, allows the trial judge to permit a waiver of counsel in a criminal trial if he determines that the waiver was knowledgeably and intelligently made and if the waiver is signed by the defendant. Before deciding if this statute was followed, the principal issue is whether there has, in fact, been a waiver. We think not.

The appellant requested to try his case as his own counsel but with the aid of an attorney. The decision allowing appellant to participate in his trial when he was counsel rests within the discretion of the trial court, State v. Velanti, 331 S.W.2d 542, 546 (Mo.1960), because he has no 6th Amendment right to participate as co-counsel. U.S. v. Wolfish, 525 F.2d 457 (2nd Cir. 1975). Such dual representation does not constitute either a waiver or an attempted waiver. State v. Burgin, 539 S.W.2d 652, 654 (Mo.App.1976). Since appellant did not waive this right to counsel but proceeded, in the court’s discretion, as co-counsel with an attorney’s assistance, a written waiver was not necessary. State v. Burgin, supra.

Furthermore, the record reveals that appellant did have the active assistance of counsel throughout the trial. Appellant’s co-counsel caused a subpoena to be issued, objected at trial several times, conferred with appellant during trial, made a motion for acquittal and examined appellant, appellant’s wife and even the jurors in a post-trial hearing. There is no evidence that the appellant presented his defense on his own.

The only case cited by appellant, Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978), is dispositive on this issue. That case concerned a guilty plea followed by a conviction and sentencing in a situation where the defendant had no assistance of counsel at all. This is not the case here. Appellant had the aid of counsel and took advantage of it throughout the trial. Appellant never waived his right to counsel and therefore, a written waiver form was not required. This point is ruled against appellant.

Affirmed.

STEWART and CRIST, JJ., concur.

      . The medical examiner testified that although the pantyhose found wrapped around the victim’s neck could have caused the strangulation, a cord of this type could also have been used with the pantyhose obscuring any marks on the victim’s neck.

      . Appellant contends the court erred in overruling this motion. Actually, the trial judge did grant appellant’s alternative request and did limit the wife’s testimony to what she saw appellant do, excluding statements made by appellant, except for the threats.

      . Regardless, threats made to the wife cannot be considered confidential communications and are therefore not barred by § 546.260 RSMo 1969. The United States Supreme Court has stated that the privilege should be allowed only when “marital confidence cannot otherwise reasonably be preserved.” Wolfle v. U. S., 291 U.S. 7, 17, 54 S.Ct. 279, 281, 78 L.Ed. 617 (1934). The threat itself refutes any reliance on confidence springing from the marital relationship and is therefore not privileged.

      .The wife testified that defendant’s brother had murdered his wife and children in New York.


author: PREWITT, Judge.

text:
    Ted H. GOTHARD, Plaintiff-Appellant, v. James SPRADLING, Director, Missouri Department of Revenue, Leevirt H. Williams, Supervisor, Bureau of Driver’s License, Defendants-Respondents.
    No. 10939.
    Missouri Court of Appeals, Southern District, En Banc.
    Aug. 24, 1979.

      Samuel J. Short, Jr., Stockton, for plaintiff-appellant.
    Dennis D. Reaves, Stockton, for defendants-respondents.
   PREWITT, Judge.

Plaintiff appeals from a ruling of the trial court denying his petition to prevent the Director of Revenue from enforcing a one year revocation of his privilege of operating a motor vehicle for refusal to submit to a chemical test pursuant to § 564.444 RSMo 1969 (now § 577.050).

On February 28, 1976, plaintiff was arrested in Stockton, Missouri and charged with operating a motor vehicle while intoxicated. On March 17, 1976, the Director of Revenue notified plaintiff that his privilege of operating a motor vehicle in Missouri would be revoked for one year, effective April 4, 1976, for refusal to submit to a chemical test as provided in § 564.444. Plaintiff, on March 23, 1976, filed a “Petition and Application for Restraining Order” and on the 24th day of March, 1976, the circuit court ordered defendants to “cease and desist from enforcement of said order until the further order of this court”. Hearing was held on July 22, 1977. Afterwards a premature appeal to this court was dismissed. Gothard v. Spradling, 561 S.W.2d 448 (Mo.App.1978). A judgment was entered against plaintiff on February 6, 1978.

The sufficiency of the evidence to support the trial judge’s ruling is not questioned and no purpose would be served in setting forth the evidence. It was ample to support the Director of Revenue and the trial judge’s findings.

Plaintiff makes two contentions of error: (1) That the trial court erred in overruling plaintiff’s motion to declare defendant Director of Revenue in default for failure to file a responsive pleading; and (2) that the trial court erred in overruling plaintiff’s motion to dismiss the proceedings as moot. No brief was filed by defendants nor argument in their behalf.

For his first point, plaintiff argues that this is not an action under § 564.444; that the ordinary Rules of Civil Procedure apply, and defendant Director was in default because no responsive pleading was filed. Plaintiff’s “Petition and Application for Restraining Order” appears to be a petition for review as provided in § 564.444, together with a request for a stay of the order of revocation. In his motion for new trial and brief plaintiff contends this is a suit for an injunction. The petition does not use the word “injunction” and it does not contain standard allegations for injunctive relief such as no adequate remedy at law being available. Paragraph 9 states “pursuant to paragraph 2 of § 564.444, plaintiff is entitled to a hearing before a court of record in the county of which his alleged arrest occurred”. In the “Wherefore” clause he asks for the exact relief provided in subsection 2 of § 564.444, and for a stay pending the court’s “hearing”.

Our belief that this petition was for review as provided in § 564.444 is fortified by our finding that the procedure described in § 564.444 is exclusive. Where the legislature is authorized to, and provides a method for review, failure to follow that procedure is jurisdictional. Randles v. Schaffner, 485 S.W.2d 1, 3 (Mo.1972). The General Assembly may very properly provide for specific review procedures in particular cases. Blydenburg v. David, 413 S.W.2d 284, 291 (Mo. banc 1967). The right of review is constitutional, but where the statute provides the remedy and the procedure to be followed, it must be complied with. State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375 (Mo. banc 1970); State v. Stanton, 311 S.W.2d 137, 140 (Mo.App.1958). When a statute provides a special type of review it is exclusive so as to preclude the use of any other or nonstatuto-ry method. American Hog Company v. County of Clinton, 495 S.W.2d 123, 127 (Mo.App.1973).

The request and issuance of a stay or restraining order does not convert the petition from the statutory procedure to some other form of action. In Bolling v. Schaffner, 488 S.W.2d 212, 216 (Mo.App. 1972) it was conceded that a cease and desist order could be issued pursuant to § 536.120 before a hearing as provided in § 564.444. We need not decide whether § 536.120 does apply here, as absent § 564.-444 prohibiting a stay, the trial court would have inherent power to issue a stay where the circumstances warranted. 73 C.J.S. Public Adm. Bodies and Proc. § 180-81, pp. 526, 527. In determining if a stay is issued, the court should recognize that the purpose of § 564.444 is to protect the safety of those using the highways of Missouri, and to punish those guilty of driving while intoxicated. Bolling v. Schaffner, supra, 488 S.W.2d at 217. Whether the present order was a temporary restraining order or a stay makes no difference as they are generally considered the same. See Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246-247 (Mo.App.1963).

Rule 100.08, V.A.M.R., among other provisions, provides for review by injunction in uncontested cases. This right is limited to situations where “there is no other provision for judicial inquiry into or review of such decision”. This was an “uncontested case”, that is, a case where the officer acted without having a hearing or making a record. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 439 S.W.2d 1, 4 (Mo.App.1969). As § 564.444 provides a method for review, Rule 100.08 has no application here.

Subsection 4 of § 564.444 provides that requests for review shall go to the head of the docket. If other methods of review are used the proceedings may be delayed and thwart the intentions of the legislature in removing persons who drive intoxicated from the roads and in promptly punishing them. We hold that the procedure set forth in § 564.444 is exclusive and requires no answer or responsive pleading. The issues are made up by the request for hearing and subsection 2 of that section which provides that the judge shall determine only: (1) whether or not the person was arrested; (2) whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and (3) whether or not the person refused to submit to the test.

Even if other remedies were available there would be no error in the court’s ruling. Plaintiff’s brief acknowledges that the record does not disclose service upon defendants. Mailing a copy of the petition to the prosecuting attorney would not be service upon defendants in ordinary actions. Such service is only valid i/pon an attorney of record. Rule 43.01(b), V.A.M.R. Service of initial process cannot ordinarily be made upon an attorney. McPike Drug Co. v. Wilson, 237 S.W. 1044 (Mo.App.1922); 7 Am.Jur.2d, Attorney at Law, § 120, p. 119. Also see Bradley v. Welch, 100 Mo. 258, 12 S.W. 911 (1890). A motion for defendants was filed by the prosecuting attorney some 110 days after plaintiff’s petition. The motion was denominated “Motion to dissolve restraining order and dismiss petition and application for restraining order”. It was never ruled upon. Even if the general Civil Rules had applied, plaintiff cannot complain of any default where defendants were not served and had a motion pending at the time plaintiff moved for judgment. Plaintiff’s first point is without merit and is denied.

Plaintiff secondly contends that the Director’s order of revocation expired while the matter was pending in the Circuit Court, and further proceedings would be moot. Plaintiff relies upon Pollard v. David, 421 S.W.2d 296 (Mo.1967) and Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273 (1942). Neither case has any application here. In Pollard there was no stay, and the revocation had been suffered. In Personal Finance Co. of Missouri the requirements of the contract were fulfilled by an injunction, that is, the employee was enjoined from entering into competing employment for a period of one year. Here the revocation was not started because of the court’s order. Other cases holding such proceedings moot are those where no stay or cease and desist order were issued. See Slusher v. Schaffner, 495 S.W.2d 135 (Mo.App.1973) and In Re Johnson, 440 S.W.2d 495 (Mo.App.1969).

Bolling v. Schaffner, supra, 488 S.W.2d at 216 held that the trial court was warranted, where a stay had been granted, in making the revocation effective for one year from the date of judgment rather than the date of the Director’s revocation. In the present case the initial court order required that defendants cease and desist from enforcement of the revocation until further order of the court. The court’s further order found against plaintiff on each ground required by the statute and dissolved the initial order. The effect of a trial court granting a stay under § 564.444 has been previously ruled by this court. In Re Green, 511 S.W.2d 129, 135 (Mo.App.1974) states:

“Hence, upon dissolution of that stay by this court, the Director of Revenue will be free to proceed with such revocation by the issuance of an order revoking appellant’s privilege of operating a motor vehicle in the State of Missouri for a period of one year from and after the effective date stated in the order.’’

The stay or restraining order did not eliminate the revocation, but merely delayed it. The matter was not moot and the Director of Revenue, following the court’s determination was authorized to set a new period of revocation.

The judgment is affirmed.

All concur.

      . All references to statutes are to RSMo 1969.


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth Lloyd RIGGS, Appellant.
    No. 10877.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 27, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert W. Evenson, Pineville, for appellant.
   TITUS, Presiding Judge.

Tried as a habitual criminal (§ 556.280 RSMo 1969), defendant was jury-convicted of second degree burglary (§ 560.045 RSMo 1969), and burglarious stealing. § 560.110 RSMo 1969. Defendant was court-sentenced to consecutive prison terms of 5 years for burglary and 4 years for stealing. This appeal ensued.

Upon returning to her rural Newton County home the evening of June 13, 1977, Miss Webb discovered her record player and 57 record albums were missing. (She later discovered a floor fan was missing also). Deputy Sheriff Pearman responded to her summons. From talking with neighbors German and Winchester, the deputy learned they had seen a white-over-maroon pickup truck parked at the Webb residence earlier in the day. Mrs. German also advised that she had observed the male truck driver (whom she later identified as being defendant) loading objects into the pickup.

The following day, June 14, witness Winchester again saw the same pickup, followed it and noted the names “Jim and Sue Irwin” were printed on the side. (This truck was identified at trial as having been sold to defendant by a deputy reserve sheriff on June 10, 1977). After this was reported to Deputy Pearman and pursuant to other information acquired in his investigation, the deputy interviewed a Mrs. Yust who recounted that the previous evening (June 13), at defendant’s invitation, she and her husband had gone to defendant’s house to listen to recordings on a player that defendant represented he had just purchased for $30. (At trial, Mrs. Yust identified Miss Webb’s player as the one she had seen at defendant’s house).

Armed with the accumulated information, supra, Pearman, another deputy and the sheriff, drove to defendant’s bucolic home the afternoon of June 14 and contacted defendant’s wife. While awaiting defendant’s arrival, the other deputy, from outside the home and by looking through a window, espied the reported purloined record player in the living room. When defendant arrived home driving the pickup previously described, he was arrested and advised of his rights. Because it was raining, the three officers and defendant et uxor sat in the sheriff’s vehicle while inquiry was made concerning the necessity vel non of obtaining a warrant to search the house for the stolen player and records. According to the officers, and as concluded by the trial court, defendant consented to the warrantless search. One deputy and the sheriff accompanied defendant into the house to obtain clothing in anticipation of incarceration. Another officer accompanied defendant’s wife to the living room to obtain the player and the records which defendant’s wife sorted out to be those that purportedly had been stolen.

The morning following his arrest, i. e., June 15, defendant was again advised of his rights. In his memorandum as to what defendant said on the 15th, Deputy Pear-man, inter alia, wrote: “After he gave this [information regarding another burglary and stealing] I asked if he wanted to give [a] statement on the Webb house and he said not until he talked to his lawyer but that he got a fan from the house and when we got the rest of the stuff from the other [defendant’s] house we might as well get the floor fan all so [sic]. Stated he got it out of the front room all so [sic].” The amended information upon which defendant was tried accused him of stealing the record player and 57 record albums; no mention was made of stealing the floor fan.

Defendant’s first two points relied on asseverate that the trial court erred in permitting, over objection, the prosecuting attorney, in his opening statement, and Deputy Pearman, in his testimony, to allude to defendant’s oral statement, supra, relative to the fact he had also stolen the floor fan from Miss Webb’s home. Defendant says this was error because the court, ere trial, had sustained his motion in limine to cause the prosecutor and state witnesses to refrain from referring to “ . . . any items of alleged stolen property other than set forth in the amended information filed herein which may have been found at the residence of Defendant” because it would allow “the jury to consider a reference to another crime not charged in the information, nor established by the evidence by proper foundation laid by the state . . . .”

The Latin phrase “in limine” is defined to mean “In or at the beginning.” Bouvier’s Law Dictionary, Baldwin’s Ed. 1934, p. 530. Such a motion with no title save “in limine”, apparently is designed, at the beginning of litigation, to accomplish some purpose which may be known only by reference to the context thereof. When so viewed, the pleading here was nothing more or less than a highfalutin motion to suppress designated testimony or evidence. However, sustention of such a motion does not per se work as a permanent damnation of the evidence sought to be suppressed. Neither, does sustention prevent the trial court from later changing its mind. The pretrial ruling is interlocutory only. Additional information or trial-produced evidence may prompt the trial court to alter its pretrial ruling by admitting the previously objected-to testimony. Such change of mind does not automatically work to convict the trial court of error. State v. Howell, 524 S.W.2d 11, 19[6] (Mo. banc 1975).

Defendant’s objection to the state’s opening statement and the testimony of Deputy Pearman regarding his declamation to the officer that he “might as well get the fan I took from [Miss Webb’s house] too”, is without merit. The evidence established the fan had been stolen at the same time the player and records were taken and defendant’s admission went to prove he had put the fan in his residence at the place where the player and records were recovered. This evidence was admissible to connect defendant with possession of the items enumerated in the information. State v. McBride, 366 S.W.2d 374, 378[7] (Mo.1963); State v. Hedgpeth, 311 Mo. 452, 459, 278 S.W. 740, 742[4, 5] (1925). Defendant could not have been convicted of stealing the fan because Instruction No. 6, which submitted the issue of whether he was guilty in connection with the burglary, specifically limited the jury’s consideration to whether he stole the player and records which were the only articles itemized in the information. State v. Johnson, 447 S.W.2d 285, 292 (Mo.1969). Defendant’s points I and II are denied.

Defendant’s third and final point relied on contends that the trial court erred in not suppressing the record player and albums as evidence because they were seized in an unlawful search of defendant’s residence as any consent he may have given to the search was involuntary and was the result of coercion on the part of the sheriff and two deputies. The trial court held an extensive hearing on defendant’s motion to suppress. As in determining the correctness of the court nisi’s ruling on a motion to suppress a confession, unless it appears that manifest error has been committed we defer to the trial court’s obvious acceptance or rejection of the credibility of witnesses on conflicting testimony relative to whether defendant’s consent to search was voluntarily given. State v. Crowley, 571 S.W .2d 460, 465[13] (Mo.App.1978).

Borrowing liberally from Hogan, J,, author of State v. Pinkus, 550 S.W.2d 829, 835-836[3-7] (Mo.App.1977), we note the following: “To determine whether a criminal defendant has voluntarily consented to a search, a court looks to the ‘totality of all the circumstances’, . . . which means, we suppose, that the presence or absence of persuasion or compulsion is always subjective. . . . Factors to be considered are the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether there was any fraud on the part of the officers, the acts and statements of the person giving consent, and other matters comprising the so-called ‘totality of the circumstances’. . . . The defendant claims that at least [two] officer[s’] weapons [were] exposed [but testified the guns were kept in holsters at all times and never used or pointed at him]. The fact that the officers were carrying sidearms does not constitute coercion in the absence of a display of those weapons. . . . The number of officers present [at defendant’s house when the search was conducted — here three] is one factor bearing on the existence of coercion, . . . but this factor alone is not determinative, and the presence of a group of officers upon the premises, without more, does not render [defendant’s] consent involuntary. . . . [The evidence by the state was that after defendant was arrested outside his home and given his rights, he was asked if the officers needed to get a search warrant or if he would give them the player and the records. To this, defendant replied that if the officers permitted him to change clothing, they could have the requested items. This constituted] no evidence of any suggestion of dire consequences if defendant did not consent. . . . Fairly read, the record shows 1) that defendant’s consent was given at [his] home, ‘not in the confines of [a] police station [or county jail]’, . . .; 2) that [he] had not been subjected to custodial interrogation and no threats were made; 3) the arresting officers did not undertake any show of force and did not emphasize their authority; 4) there was no evidence of any fraud or misleading on the part of the officers; . . . . Considering the ‘totality of the circumstances’, the defendant’s consent to the search was entirely voluntary.” Defendant’s point III is denied.

Judgment affirmed.

All concur, except PREWITT, J., not participating because not a member of the court when cause was submitted.


text:
    Robert D. BIEREY, Appellant, v. STATE of Missouri, Respondent.
    No. 41185.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Office of the Public Defender, Thirty-second Judicial Circuit, Jackson, for appellant.
    John D. Ashcroft, Atty. Gen., Michael P. Donegan, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant was sentenced on a guilty plea to eight years imprisonment for second degree burglary. He subsequently filed two Rule 27.26 motions, the first alleging that a “deal” had been made whereby he was to receive only a five year sentence in exchange for his plea, but that his attorney had told him not to reveal the plea bargain in court. The second motion also alleged that his attorney told him to lie to the court by denying that any “deals” had been made in exchange for his guilty plea. It further alleged he was promised an eight year term to run concurrently with his federal court sentence.

The trial court in its written findings of fact and conclusions of law denied the motions without an evidentiary hearing. The basis for its ruling was:

That the only allegations of fact pleaded in Movant’s motion, cognizable under Supreme Court Rule 27.26 are controverted and refuted by the facts elicited and established at the time the Plea of Guilty was made. That Movant has not pleaded any other facts which, if true, would entitle him to relief.

The sole issue raised on appeal is that the trial court erred in failing to hold an evi-dentiary hearing on the facts raised in mov-ant’s motions. We affirm. Movant’s allegations of error in the denial of the eviden-tiary hearing rest on Giggar v. State, 547 S.W.2d 870 (Mo.App.1977), and Burgin v. State, 522 S.W.2d 159 (Mo.App.1975), which state that a movant is entitled to an eviden-tiary hearing if he alleges that his counsel promised a certain sentence would be imposed in exchange for a guilty plea with an admonition for the movant to deny in court that any such bargain had been made. Movant’s argument regarding Giggar and Burgin is accurate so far as it is stated. But both cases go further and steadfastly abide by the guiding precept set forth in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), as follows:

A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing, (original emphasis)

Giggar v. State, supra, makes it manifest that the record of a guilty plea hearing can refute a movant’s allegation that he was told to falsely affirm to the judge that he had not made any deals:

A straightforward query concerning any suggestion or direction as to the answers being made in the proceeding will serve to directly refute the claim by the record made at the guilty plea proceeding, and, under the Smith rule, no evidentiary hearing would be required. Id. at 871.

The record of the guilty plea proceedings in this case is a paragon of the “straightforward query” referred to in Gig-gar. The record reflects that the movant, who had two years of college, executed a lengthy written petition to enter a guilty plea specifically reciting that no promises had been made. His lawyer also certified in writing that all statements made by the movant were accurate and true. Further, the trial court in a painstaking exercise of judicial patience and wisdom heard the movant’s recital of all the essential factors to establish that his plea was absolutely voluntarily and knowingly made and without any promise of a bargain by anyone. The record clearly refutes movant’s claim that he was told to lie at the hearing:

Q. [The Court] Has Mr. Rader [mov-ant’s counsel] told you to do anything other than to tell the truth here this morning?
A. [Mr. Bierey] No, sir.
Q. Are all of your answers going to be truthful?
A. Yes, sir.
* * * * * *
THE COURT: Have all the defendant’s answers been truthful as far as you know?

MR. RADER: They have; yes, sir. Not only did the facts testified to by the movant, his counsel and the prosecutor directly refute the allegation that promises of five years or of concurrent sentencing were made, but the straightforwardness and depth of the questioning meet the objectionable facets of guilty plea hearings which traditionally fostered the concealment of bargains. The process was sufficient to “dispel a defendant’s belief that any bargain struck must remain concealed.” Blackledge v. Allison, 431 U.S. 63, 77, 97 S.Ct. 1621, 1631, 52 L.Ed.2d 136 (1977).

Additionally, the in-court exchange made completely unreasonable any belief that movant may have held at that time as to the existence of a bargain. A test of involuntariness of a plea when the movant claims to have been misled is whether it was reasonable for movant to hold the belief by which he claims to have been misled. McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978); Johnson v. State, 579 S.W.2d 802 (Mo.App.1979). Movant was afforded at least two opportunities to withdraw his plea. Once having been informed that the only bargain struck was the dismissal of a stealing charge, the movant could not reasonably have believed that any “promise” would be fulfilled. Moland v. State, 555 S.W.2d 97 (Mo.App.1977).

The trial court’s finding that movant’s factual allegations were refuted by the record of the guilty plea proceedings is fully supported, and there was no need for an evidentiary hearing. Johnson v. State, supra.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


text:
    Paul TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. 40357.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.

      Thea A. Sherry, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant has appealed the trial court’s denial of his Rule 27.26 motion. His appeal alleges that the trial court erred in failing to make specific findings of fact and conclusions of law and that he was deprived of effective assistance of counsel. We affirm.

Movant was convicted of first degree robbery, and his appeal from the judgment of conviction was affirmed in State v. Taylor, 538 S.W.2d 761 (Mo.App.1976). With assistance of counsel, movant filed a Rule 27.26 motion for post conviction relief which was denied by the trial court after complete evidentiary hearing but without recitation of findings of fact or conclusions of law. Movant’s appeal from the 27.26 denial together with the State’s request for remand resulted in remand for findings of fact and conclusions of law on all issues presented under Rule 27.26(i). The trial court subsequently did make the requisite findings of fact and conclusions of law on all issues in support of the denial.

Movant raises three points on appeal. The first deals with the issue of the trial court’s noncompliance with Rule 27.-26(i) in failing to make findings of fact and conclusions of law on all issues. In reviewing the record, we find that the trial court on remand has fully complied with Rule 27.26(i) and remedied the prior infirmity.

The second point suggests that mov-ant was denied effective assistance of counsel by the failure of his attorney to fully investigate the case after the names of two potential witnesses had been supplied to him. Movant argues that the trial counsel’s determination not to call the witnesses did not fall within the ambit of trial strategy and that,' consequently, he was deprived of a fair trial. We disagree. Movant’s trial counsel testified at the 27.26 hearing and related that he had fully discussed with movant the possible use of the two potential witnesses who were co-accused with him in the robbery and had strongly advised against their use. The trial counsel had investigated the witnesses’ possible testimony and concluded that they would be adverse to movant’s best interests and would implicate him in the robbery; that their testimony would be subject to impeachment by prior inconsistent statements made to police; and that their presence would be a detriment to the planned defense. The decision of the trial counsel in this instance not to utilize the testimony of the two co-accuseds was manifestly a matter of trial strategy and within the counsel’s professional judgment. His action in this regard does not form a basis for Rule 27.26 relief. Nickelson v. State, 583 S.W.2d 746 (Mo.App.1979); Johnson v. State, 581 S.W.2d 118 (Mo.App.1979); Williams v. State, 566 S.W.2d 241 (Mo.App.1978).

Movant’s third point also relates to the matter of his counsel’s assistance, alleging it to be ineffective because he was not advised of the trial date until the evening before trial. This point must also fail. The record shows that movant’s counsel was appointed several weeks before trial. He had consulted with movant for substantial periods of time on three or four occasions. He had prepared for trial and announced “ready” for trial the day before proceedings commenced. In fact, there is no assertion made by movant of any lack of preparedness for trial. In this instance, the fact that movant was not notified of the precise time of trial until the day before proceedings were to start did not prejudice him or hamper in the preparation or defense of the case. Movant has not met his burden of establishing ground for relief by a preponderance of the evidence. Brewster v. State, 577 S.W.2d 911 (Mo.App.1979); Walker v. State, 567 S.W.2d 398 (Mo.App.1978).

Movant’s reliance on Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975), is unavailing, for in Wolfs, appointed counsel was refused a continuance after having been appointed only one and one half days before trial and could not properly prepare — a remarkably different circumstance from that here where trial counsel was fully prepared.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: • PER CURIAM:

text:
    AMERICAN NATIONAL BANK IN SPRINGFIELD, Plaintiff-Respondent, v. WHITE RIVER SERVICE CORPORATION, Dean Saxton, Mary V. Saxton, Jack C. Wells, Betty J. Wells, Defendants, John W. Holland and Betty Holland, Defendants-Appellants.
    No. 10203.
    Missouri Court of Appeals, Southern District, En Banc.
    Aug. 29, 1979.

      Carl E. Yates, Yates, Mauck & Robinett, Inc., Springfield, for plaintiff-respondent.
    Nicholas R. Fiorella, Springfield, for defendants-appellants.
   • PER CURIAM:

This action is based upon a promissory note executed by White River Service Corporation payable to the order of American National Bank in Springfield. By Count I of its petition the bank sought judgment on the note against that corporation. By Count II, the bank sought judgment for the indebtedness evidenced by the note against six individuals (three husbands and wives) who allegedly guaranteed payment of that indebtedness to the bank. Upon its motion, the bank was granted a summary judgment upon Count I against the corporate defendant. Upon Count II, the bank was granted a summary judgment against five of the individual defendants. Upon her motion, the sixth individual defendant was granted a summary judgment absolving her of liability to the bank.

The case has had a long and tortuous history. It includes an amendment of the return of service upon the corporate defendant, such amendment showing a non-est return; four amendments to the petition; one amendment to defendants Hollands’ answers; a mistrial; a default judgment on Count I, which was set aside; a second mistrial; and intervention by the individual defendants as defendants-inter-venors in defense of Count I. Originally the five individual defendants who suffered the adverse summary judgment appealed. Three of those individual defendants have withdrawn their appeal. Only defendants John W. Holland and Betty Holland have pursued their appeal. There was no oral argument. The bank did not submit a brief. The case has been submitted upon a partial transcript. It is possible the trial court in granting the summary judgment had before it items not before this court. However that may be, we will review the case on the record presented to this court.

In summary, Count I of the petition alleged the execution and delivery of the note (a copy being attached and incorporated), a recitation of the provisions of the note regarding terms of payment and regarding attorney’s fees, default in payment and the balance allegedly due. The prayer was for principal and interest and attorney’s fees. Count II incorporated the allegations of Count I and alleged the execution of substantially identical “loan guaranty agreements” by five individual defendants and the execution of a different loan guaranty agreement by the prevailing individual defendant. Copies of the loan agreements were attached and incorporated. The prayer was for principal and interest and attorney’s fees. The petition was verified by the president of the bank “to the best of his knowledge and belief”.

As stated, the petition was amended four times. The substance of the third amendment was to add to Count II an allegation of the default judgment on Count I, which default judgment was later set aside. The other amendments did not materially alter the allegations. Prior to the hearing upon the motion for summary judgment the plaintiff filed a motion to withdraw superseded pleadings and to proceed to trial on the original petition as amended by interlin-eation to show the correct corporate status of the plaintiff. The record does not show that this motion was ever expressly ruled upon.

Defendants Holland filed separate answers in regard to Count I. Defendant John W. Holland alleged that the corporate charter of the corporate defendant had been revoked; admitted the execution of the note by the corporate defendant; admitted the alleged terms for payment of the note and for attorney’s fees; denied the note was in default and the balance alleged to be due. In answer to Count I defendant Betty Holland alleged she had no knowledge or information concerning the allegations of that count and therefore denied the same. In regard to Count II both defendants Holland admitted their execution of and the purpose of their loan guaranty agreement and basically incorporated their answers to Count I. Both defendants Holland alleged three affirmative defenses not now in issue. Both defendants Holland by amendment asserted an additional affirmative defense that the bank agreed and represented that the absolved individual defendant would become a co-guarantor, thereby inducing them to become guarantors, and that the bank failed to obtain a guaranty agreement of that defendant and that thereby they were discharged from liability upon their loan guaranty agreement. None of the answers or amendments were verified.

Interrogatories to and answers of the bank, non-appealing Dean Saxton and defendants Holland are included in the record. The only answers which remotely pertain to the issues involved in this appeal were the following: the bank’s answer that on September 7, 1972, it first received information that the corporate defendant’s charter had been revoked; the answer of Saxton that he “contended” that the balance due on the note was the same as that pleaded by the bank; and defendants Hollands’ answers that they didn’t know what payments were made on the note as they were made by Saxton.

The plaintiff sought a summary judgment “upon the admissions, pleadings and proof adduced herein to date”. The summary judgment granted upon Count I recites that counsel for the defendants had been notified and that upon considering “the Affidavits and evidence adduced” determined the bank was entitled to summary judgment upon Count I as prayed in the petition originally filed and judgment was rendered accordingly. The summary judgment on Count II recites that the court has considered “the Affidavits and evidence and the pleadings, depositions, and admissions” and determined that the bank was entitled to summary judgment against the five individuals as guarantors of the debt which had been reduced to judgment upon Count I. Judgment upon Count II was entered accordingly.

Defendants Holland have not appealed as intervenors-defendants. Their appeal relates only to the summary judgment on Count II against them as defendants. In their brief they assert the trial court erred because there were genuine issues of fact concerning the bank’s alteration of the terms of the note, whether the bank’s failure to obtain a guaranty from the co-guarantor increased their liability, whether the amount of attorney’s fees was reasonable and for the reason the bank was not entitled to a summary judgment as a matter of law. The record is totally devoid of any assertion or evidence that the bank had altered the note and this point will not be considered. Defendants Hollands’ last point under Civil Rule 84.04(d), V.A.M.R., fails to preserve any allegation of error and will not be considered.

In determining whether or not the trial court erred in entering a summary judgment on Count II this court must view the record most favorably to defendants Holland. Peer v. MFA Milling Co., 578 S.W.2d 291 (Mo.App.1979). A summary judgment is properly granted only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law”. Civil Rule 74.04(c), V.A.M.R. The burden is on the movant to establish he is entitled to such relief. Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974).

The bank could have supported its motion by affidavits, Civil Rule 74.04(a), V.A.M.R., but it did not do so. The bank could rely upon depositions and admissions on file, but there were no depositions and no admissions, except such admissions as were contained in the pleadings. The answers to interrogatories are of no aid. Had the motion as supported by evidentiary material established there was no genuine issue of fact, defendants Holland could not have relied upon their pleadings to controvert that evidentiary material and raise a genuine issue of fact. Civil Rule 74.04(e), V.A.M.R. In such event defendants Holland would have been required to come forth with evidentiary material to raise such an issue. Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.1978). It is possible that a pleading may constitute evidentiary material to support or oppose a motion for summary judgment. In this case the petition was verified. However, that alone does not meet the requirement of Civil Rule 74.04(e), V.A.M.R. “Although a verified pleading, like any pleading, may be presented to the court in a summary judgment proceeding, it will not be accorded the probative force of an affidavit unless it meets the requirements of Rule 56(e). This means that the content of the pleading must be asserted on the personal knowledge of the pleader, set forth facts that would be admissible in evidence, and show affirmatively that the pleader is competent to testify to the matters pleaded. Few pleadings will satisfy these requirements, even when verified.” Wright & Miller, Federal Practice and Procedure: Civil § 2738, pp. 702-703. Also see 6 Moore’s Federal Practice, 2nd Ed., § 56.11[3]; Allen v. St. Luke’s Hosp. of Kansas City, 532 S.W.2d 505 (Mo.App.1975). The bank’s petition does not constitute evi-dentiary material.

Since the bank’s motion was not supported by evidentiary material, in effect it became a motion for judgment on the pleadings. In such event the position of the bank was similar to that of a movant on a motion to dismiss. Cantor v. Union Mut. Life Ins. Co., 547 S.W.2d 220 (Mo.App.1977). If the ultimate facts pleaded by defendants Holland, together with the benefit of all reasonable inferences to be drawn from such allegations, show any ground upon which they could have prevailed, the motion should have been denied. Sutton v. Sutton, 567 S.W.2d 147 (Mo.App.1978). This is true if those allegations invoke principles of law that may entitle them to relief even though the defense is imperfectly pleaded. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674 (Mo.App.1978).

The defendants Holland did plead that the bank agreed and represented that Mary Saxton would become a co-guarantor and that she did not and thereby defendants Holland were absolved. Under such allegation defendants Holland could have presented evidence which could have absolved them from or at least reduced their liability. While no Missouri case has been found, it is generally held that when a guarantor delivers a guaranty upon the condition precedent that others will also guarantee the debt, that guarantor is not liable unless the others do enter into such guaranty. United States v. Everett Monte Cristo Hotel, 524 F.2d 127 (9th Cir. 1975); Beard v. Economy Finance Corporation, 409 S.W.2d 516 (Ky.1966); State Bank of East Moline v. Cirivello, 74 Ill.2d 426, 24 Ill.Dec. 839, 386 N.E.2d 43 (1978); 38 C.J.S. Guaranty § 20b, p. 1159. It is no defense to such proposition to cite the parole evidence rule. Parole evidence may generally be used, at least between the parties, to show the conditional delivery of an instrument. United States v. Everett Monte Cristo Hotel, supra; Farmers Ins. Exch. v. Farm Bureau Mut. Ins. Co., 522 S.W.2d 779 (Mo. banc 1975). Further, proof under such allegation could conceivably extend to a written agreement providing that it was not to be merged into such guaranty and expressly providing for such absolution. In all events, the answers by this affirmative defense and in other respects did raise issues of fact. The summary judgment on Count II against defendants Holland is not supported by the record and is reversed and the cause remanded.

All concur except HOGAN, GREENE and PREWITT, JJ., recusing.

      . “Of course, a summary judgment motion may be made on the basis of the pleadings alone, and if this is done it functionally is the same as a motion to dismiss for failure to state a claim or for a judgment on the pleadings.” Wright & Miller, Federal Practice and Procedure: Civil § 2713, p. 392. International Business Machines Corp. v. David, 408 S.W.2d 833 (Mo. banc 1966).


author: HOGAN, Judge.

text:
    Dwight CLASPILL, on behalf of himself and all other members of International Association of Fire Fighters, Local No. 152, AFL-CIO, Plaintiffs-Respondents, v. J. Ray CRAIG, Ray Edward Fraker, Charles Grant, Robert G. Harris, Harry Lassley, Richard Mann, John R. Martin, Lloyd W. Newman, Ray G. Nichols, William T. Penland, Clifford Pickett and George D. Tillman, Defendants-Appellants.
    No. 10606.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 30, 1979.

      Donald W. Jones, Gary T. Nelms, Jones, Karchmer, Nelms & Sullivan, Springfield, Rex H. Reed, Fairfax, Va., for defendants-appellants.
    Charles C. Shafer, Jr., Kansas City, for plaintiffs-respondents.
   HOGAN, Judge.

• This appeal is the upshot of a long-standing controversy between plaintiff Claspill, representing the rank and file, and defendants, as supervisory employees, concerning the propriety of defendants’ membership in local No. 152, International Association of Fire Fighters, AFL-CIO (local 152). All the parties are, or have been employees of the Springfield City Fire Department, and it is inferable that at one time or another, most of the defendants have been members of local 152.

The dispute which was litigated grew out of the local’s decision, in 1969, to institute a “slowdown” and demonstration in aid of negotiations conducted with the city of Springfield. The defendants insist there was a “strike”; plaintiff denies that any strike vote was ever taken. In any case, some sort of “slowdown” occurred, for on September 4,1969, only 14 firemen reported for duty. At least one of the defendants participated in the job action, but several were disciplined by the union for failure “to live up to the obligation of Local # 152” in the demonstrative action.

Following a meeting with city officials in February 1970, all the defendants who had been members of local 152 resigned or attempted to resign their memberships in local 152 because they believed membership in a union was incompatible with the nature of their duties and their obligation to the city of Springfield. Some of the resignations were accepted; others were refused for one reason or another.

Thereafter, according to their testimony, the defendants were subjected to various indignities which they regarded as retaliatory harassment by local 152. This harassment was intensified after the union began publishing a notice (to which defendants refer as an advertisement) in the Union Labor Record, a trade union publication. This advertisement or notice advised readers of the Union Labor Record that the defendants were members of the Springfield City Fire Department but were not members of local 152. The notice was first published in July 1970 and thereafter appeared sporadically in the Union Labor Record up to the time of trial in October 1973.

The defendants testified to various forms of harassment. Defendants Nichols, Mann and Fraker testified they received anonymous telephone calls at all hours; some of the calls were obscene, and some of the defendants considered them threatening. The defendants were unable to identify the antiphonal speakers. Defendant Nichols testified that a copy of the notice, or ad, was posted on the bulletin board at his fire station with derogatory comments scrawled on it. Other indignities, insults and annoyances were visited upon other defendants. Such is the general background of the controversy up to the institution of this action in May 1972. We have by no means recited all the background facts nor set out the testimony in detail, but what we have noted is sufficient for the purposes of this memorandum.

In 1972, this action was commenced in the Circuit Court of Greene County by plaintiff Claspill on behalf of local 152 as an unincorporated association. The substance of the petition is that in 1969, the union brought an action against the city of Springfield “to recover damages from the City for certain monies due to Springfield Fire Fighters for additional compensation due to them because of the City’s erroneous computation of ‘holiday time’ that the action was compromised and as a result all members of the fire department received additional vacation time in 1971. Further, it was averred that as a result of the compromise, each defendant received benefits, but refused to bear a proportionate share of the legal costs and expenses incurred in securing those benefits. Prayer of the petition was for judgment severally against each defendant in the amount of $638.50, plus interest and costs.

At this point, the action became very complex. The defendants filed an incredibly prolix responsive pleading consisting of an answer and a counterclaim in two counts. The counterclaim, given most favorable intendment, averred: 1) An abuse of process in prosecution of the plaintiff’s cause, and 2) invasion of defendants’ privacy by publication of the notice in the Union Labor Record. Defendants also requested injunctive relief from the alleged invasion of privacy. Prayer of the first count of the counterclaim was for $120,000 actual and $600,000 punitive damages; prayer of the second count was for injunctive relief, and for actual damages in the amount of $120,-000 and punitive damages in the amount of $600,000.

The trial court heard the evidence of 21 witnesses and received some 138 pages of exhibits. The cause was then submitted to the jury as follows: 1) Plaintiff’s claim for reimbursement was submitted; 2) defendants' counterclaim for abuse of process was submitted upon the general hypothesis that the purpose of plaintiff’s action was to compel the defendants to join or pay membership fees to local 152, or to intimidate the defendants; 3) defendants’ claim of invasion of privacy was submitted upon the general hypothesis that publication of the ad constituted an invasion of their privacy, and 4) the request for injunctive relief was submitted to the court.

The jury found: 1) Against the plaintiff; 2) for the defendants upon their claim of abuse of process, assessing defendants’ damages at $500 per defendant, and 3) against defendants upon their claim of invasion of privacy. The trial court denied injunctive relief. Both parties then appealed to this court. Plaintiff dismissed his appeal. This court dismissed defendants’ appeal as premature because the judgment did not dispose of all the parties. Upon remand, the trial court corrected its judgment and defendants again appealed.

By the corrected judgment appealed from, the trial court: Sustained plaintiff’s motion for new trial on Count I of the counterclaim (for abuse of process) because: a) The damages awarded on Count I were not supported by the evidence as to any defendants; b) defendants’ verdict-directing instructions 4 through 15, inclusive, were erroneous; and c) instruction 56, defendants’ measure of damages instruction applicable to Count I, was prejudicially erroneous. Defendants’ alternative motion for judgment n. o. v. or for a new trial upon Count II of their counterclaim was denied. Injunctive relief from the invasion of privacy alleged in Count II was denied.

On this appeal, defendants have briefed and argued five points. Points four and five assign error to the trial court’s refusal to grant defendants’ motion for judgment n. o. v. or a new trial and its refusal to grant injunctive relief on Count II of the counterclaim, which alleged an invasion of privacy. The point directed to the denial of defendants’ alternative motion for judgment n. o. v. or for new trial is inadequately stated, but upon discretionary consideration, we find it to be without merit. Defendants’ contention that they were entitled to injunctive relief as a matter of law is likewise without merit. An action for tortious invasion of privacy by public disclosure presupposes the disclosure of private facts which would bring shame or humiliation to a person of ordinary sensibilities. Corcoran v. Southwestern Bell Tel. Co., 572 S.W.2d 212, 214-215[3] (Mo.App.1978). If, as the defendants contend, they have an absolute legal right to refrain from joining local 152, there is nothing in the “ad” or notice which would bring shame or humiliation to a person of ordinary sensibilities.

The other three points briefed are directed to the order granting plaintiff a new trial on Count I of defendants’ counterclaim, which alleged abuse of process. One of the grounds upon which a new trial was granted was that “the damages awarded on Count I of the counterclaim are not supported by the evidence as to any defendant.” The defendants construe this ground as a ruling that the evidence was insufficient as a matter of law to warrant an award of $500 to every defendant. We agree with this construction and with the trial court’s ruling. Of greater importance is plaintiff’s response that the defendants proved no damages whatever. If that were true, defendants would be entitled to no relief because proof of some damage is necessary to recover for an abuse of process. Stafford v. Muster, 582 S.W.2d 670, 678[13] (Mo.banc 1979); National Motor Club of Missouri, Inc. v. Noe, 475 S.W.2d 16, 24 (Mo.1972). Although we agree that the evidence does not warrant the award of $500 to each defendant, we cannot say there is no evidence whatever of compensable damages. Defendants' damage evidence had probative value, even though it was sketchy and vague. There is evidence that the defendants had lost some time and had suffered some inconvenience because plaintiff’s action was instituted; considering the whole record, the evidence is at least sufficient to support a nominal award of actual damages. Plaintiff does not otherwise question the submissibility of Count I of the counterclaim and we decline to consider it sua sponte.

As noted, the order for new trial on Count I of defendants’ counterclaim was based on two additional grounds. They need not be considered nor discussed. The rule is that if any ground advanced in support of a new trial is demonstrably correct, the order should be affirmed. State ex rel. State Highway Commission v. Klipsch, 414 S.W.2d 783, 786[4, 5] (Mo.1967); Vaughn v. Ripley, 446 S.W.2d 475, 479[5] (Mo.App.1969). No error of law appears, and the judgment is affirmed pursuant to Rule 84.-16(b), V.A.M.R.

All concur.

      . The counterclaim runs to 14 record pages. A sample subparagraph: . . the present action [has been filed] for the purpose of violating the rights of defendants under Article I, Section 2 of the Missouri Constitution of 1945, which guarantees that all persons shall have the natural right to life, liberty and the pursuit of happiness and the enjoyment of the gains of their own industry; and the petition herein seeks to interfere with those rights and to otherwise infringe the civil liberties of the defendants as guaranteed under other provisions of the Missouri and United States Constitutions, including the guarantee that each defendant have the freedom to associate or not associate with any group of individuals, defendants relying expressly upon Article I, Section 10; Article I, Section 29 of the Missouri Constitution of 1945; and the First, Fifth, Nineth [sic], and Fourteenth Amendments of the United States Constitution.”