author: DIXON, Judge.

text:
    Robert M. CORCORAN and Hazel Corcoran, Plaintiffs-Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY and Mrs. R. Myron Corcoran, Defendants-Respondents.
    No. KCD 29321.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Jon M. Krebbs, Kansas City, for plaintiffs-appellants.
    J. Curtis Nettels, James E. Taylor, Kansas City, for respondent Southwestern Bell Telephone Co.
    Charles P. Todt, Susan M. Hammer, Clayton, for respondent Mrs. R. Myron Corcor-an.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Plaintiffs appeal adverse jury verdicts on their claim for invasion of privacy by Southwestern Bell, corporate defendant, and defendant Corcoran, plaintiffs’ former daughter-in-law.

Plaintiffs assert instructional error.

The facts are not at issue in this appeal, so they may be briefly summarized. Defendant Georganne Corcoran’s marriage to plaintiffs’ only son was dissolved in February, 1974. The husband was ordered to pay child support and maintenance. No child support was paid; the husband left Missouri, and the defendant tried, unsuccessfully, to locate him.

On May 31, 1974, defendant Corcoran made two calls to defendant Southwestern Bell Telephone Company. Using her own name, which was the same as plaintiffs’, her former in-laws, defendant Corcoran had the telephone company send plaintiffs’ telephone bill to a “temporary” address in Chesterfield, Missouri. It is undisputed that the bill was sent by first-class mail in an envelope and that defendant Corcoran opened the envelope addressed to plaintiffs Corcoran. As a result of this ruse, defendant was able to locate her husband and to successfully garnish his wages for back support payments.

On discovery of this scheme, Mrs. Hazel Corcoran, plaintiff-appellant, became very upset and claimed she suffered symptoms of a heart attack, sleeplessness, and much emotional stress. In August, 1974, Mr. and Mrs. Corcoran sued both Mrs. R. Myron Corcoran, their former daughter-in-law, and Southwestern Bell Telephone Company for invasion of their privacy.

Plaintiffs make two general claims of error concerning the instructions given at the request of each of the defendants. First, plaintiffs claim error in the giving of multiple converse instructions for each defendant. Second, plaintiffs claim that these instructions did not converse plaintiffs’ verdict directing instructions, were not proper statements of the law, and even if true would not defeat plaintiffs’ claims.

The disposition of plaintiffs’ appeal as to defendant Southwestern Bell rests upon one basis and the disposition as to defendant Corcoran upon another. This necessitates separate treatment of the issues.

As noted, the plaintiffs contend that the verdict as to defendant Southwestern Bell must be reversed for instructional error. Bell counters with a claim that plaintiffs failed to make a submissible case. Trial errors are immaterial if plaintiffs failed to make a submissible case. Osborn v. McBride, 400 S.W.2d 185 (Mo.1966); Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974). If plaintiffs failed to make a submissible case, error in the instructions requested by Southwestern Bell is harmless. Shepard v. Ford Motor Co., 457 S.W.2d 255 (Mo.App.1970).

For a consideration of the issue of sub-missibility of plaintiffs’ case, it is necessary to outline the elements of the tort of invasion of privacy generally, and as it has been interpreted in Missouri case law. “Invasion of privacy” is the general term used to describe four distinct torts. Each of the four torts has distinct elements, and each describes a separate interest that can be invaded, although the separate interests may, and often do, overlap. Prosser, Handbook of the Law'of Torts, § 117 (4th ed. 1971).

The Restatement (Second) of Torts § 652A A.L.I. (1977) declares that the right to privacy is invaded when there is (1) unreasonable intrusion upon the seclusion of another; or (2) appropriation of the other’s name or likeness; or (3) unreasonable publicity given to the other’s private life; or (4) publicity that unreasonably places the other in a false light before the public. Although the Restatement (Second) has not been expressly adopted in Missouri, the courts in Missouri have long recognized the tort of invasion of privacy. Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo.1959). Williams v. KCMO Broadcasting Division, 472 S.W.2d, 1 (Mo.App.1971), Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942). These cases do not expressly recognize the Restatement distinctions among the four types of invasion of privacy, but the distinctions are useful, if not critical, in deciding this case on appeal.

The claim of invasion of privacy against Southwestern Bell, defendant-respondent, falls correctly into the “public disclosure of private facts.” The elements of this tort are: (1) publication, (2) absent any waiver or privilege, (3) of private matters in which the public has no legitimate concern, and (4) such as to bring shame or humiliation to a person of ordinary sensibilities. McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir.1976), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976). The publication requirement means publicity in the sense of communication to the public in general or to a large number of persons, as distinguished from one individual or a few. Biederman’s of Springfield, Inc., supra at 898.

Casting the facts of this case against this matrix demonstrates plaintiff failed to make a submissible case against Southwestern Bell. There was no publication by Southwestern Bell. Defendant Cor-coran admits that she opened first-class mail addressed to plaintiff. The publication occurred upon that event. The action of defendant Corcoran was an intervening illegal act over which Southwestern Bell had no control. Section 1702 Title 18 U.S.C., specifically prohibited the action of defendant Corcoran. The prohibition of the statute against opening mail addressed to another inheres when the mail is posted and continues until delivery to the addressee is completed. United States v. Hill, 8 Cir., 579 F.2d 480, handed down July 20, 1978.

Southwestern Bell neither intended nor permitted a publication; whatever publication occurred was the result of the illegal action of the defendant Corcoran. The plaintiffs failed to establish publication by Southwestern Bell. The case should not have been presented to the jury;' Southwestern Bell’s motion for a directed verdict at the close of all of the evidence should have been granted. The judgment in favor of defendant Southwestern Bell is affirmed.

The claim of invasion of privacy against defendant Georganne (Mrs. R. Myron) Corcoran is based on the intrusion upon seclusion branch of the general category. To make a submissible case of intrusion upon seclusion, plaintiff must prove three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter by defendant through some method objectionable to the reasonable man. Beaumont v. Brown, 65 Mich.App. 455, 237 N.W.2d 501 (1975), rev’d on other grounds, 401 Mich. 80, 257 N.W.2d 522 (1977). Unlike the public disclosure of private facts, the intrusion upon seclusion requires no showing of publication or publicity.

The record supports the conclusion that defendant Corcoran obtained the Cor-corans’ phone bill by deception; opened the sealed, first-class mail addressed to the plaintiffs, and read the contents without authorization. There is little, if any, evidence to dispute these facts in the record, and respondent Corcoran makes no attempt to controvert them on appeal. The evidence was sufficient to submit this portion of the case to the jury. Vernars v. Young, 539 F.2d 966 (3rd Cir.1976).

Corcorans claim numerous errors in the giving of instructions requested by defendant Corcoran. Plaintiffs offered one verdict directing instruction against defendant Corcoran; relying on MAI 33.01, Notes on Use, plaintiffs claim error in allowing defendants to submit four converse instructions. See also Murphy v. Land, 420 S.W.2d 505 (Mo.1967). Defendant responds that the four instructions were not true converses, but definitions required by confusing elements of the invasion of privacy tort which are not set out in the MAI instructions.

Assuming, for the sake of argument, that the multiple instructions were necessary, defendant Corcoran must meet plaintiffs’ other claims of error concerning the disputed instructions. Plaintiffs complain not only of the fact of multiple converses, but of their content. According to the plaintiffs, defendant Corcoran’s instructions are not legitimate defenses to or explanations of the elements of the tort of intrusion upon seclusion, and are misstatements of the law in this area.

It is true that defendant Corcoran, in submitting converse instructions under the third method approved by MAI, would be permitted to submit her own theory of the case, even if she did not directly negate the theory of plaintiffs’ case. Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967). The theory submitted must be a correct statement of law.

The theory of liability against defendant Corcoran submitted by plaintiffs was based upon an intrusion upon seclusion. No publication is required to establish the tort upon that theory. The challenged instructions permitted the jury to find for the defendant Corcoran if there was no publication by her. Publication was defined as to a large number of persons or the public at large. Thus, the instructions presented a theory of defense not available to the defendant Corcoran under plaintiffs’ submitted theory. The instructions were erroneous, and it is palpable that they were prejudicial since the “publication” by defendant Corcoran was apparently only to her lawyer, and the jury may have found in her favor on the ground of this limited publication. The verdict as to defendant Corcoran must be set aside and the cause remanded for a new trial.

Southwestern Bell had filed a motion to dismiss the appeal for violation of the rules of briefing, based on the failure of the plaintiffs to include the challenged instructions in their brief. The motion was ordered taken with the case. The plaintiffs filed a supplemental brief containing the challenged instructions. The motion to dismiss is overruled.

The verdict as to Southwestern Bell is affirmed; the verdict as to defendant Cor-coran is reversed and the cause remanded for a new trial as to defendant Corcoran only.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles M. CONRAD and Agnes M. Conrad, Plaintiffs, v. Simeon B. HERNDON, Jr. and Anna M. Herndon, Defendants and Third-Party Plaintiffs-Respondents, v. Eugene WRIGHT and Bill Roberts, Third-Party Defendants-Appellants.
    No. KCD 29350.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Feldhausen & Eskridge, Eugene J. Feld-hausen, M. Randall Vanet, Kansas City, for third-party defendants-appellants.
    Law Offices of S. Preston Williams, David Lee Wells, S. Preston Williams, Thomas E. Barzee, Jr., North Kansas City, for defendants and third-party plaintiffs-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Although this case initially involved a multiplicity of parties and a complex mosaic of claims, they- have been partially winnowed by a summary judgment which has become the focal point of the case on appeal. It all began as follows: Plaintiffs Charles and Agnes Conrad, as buyers, brought suit for specific performance of a real estate contract, and for actual and punitive damages, against defendants Si-meon and Anna Herndon, as sellers; defendants Simeon and Anna Herndon, as third-party plaintiffs, filed a third-party petition for “breach of fiduciary responsibility” against third-party defendants Eugene Wright and Bill Roberts, as “real estate brokers”; third-party defendants Eugene Wright and Bill Roberts, as “real estate brokers”, filed a counterclaim for “a real estate commission earned” against defendants and third-party plaintiffs Simeon and Anna Herndon, the sellers.

Plaintiffs Charles and Agnes Conrad filed a motion for summary judgment against defendants and third-party plaintiffs Si-meon and Anna Herndon regarding all cause of action asserted by the former against the latter, and defendants and third-party plaintiffs Simeon and Anna Herndon filed a motion for summary judgment in their favor and against plaintiffs Charles and Agnes Conrad regarding all causes of actions asserted by the latter. The trial court sustained the motion for summary judgment filed by defendants and third-party plaintiffs Simeon and Anna Herndon, overruled the motion for summary judgment filed by plaintiffs Charles and Agnes Conrad, declared the real estate contract in question “null and void” because it was “indefinite, uncertain and incomplete” in certain essential respects, and entered judgment in favor of defendants Simeon and Anna Herndon and against plaintiffs Charles and Agnes Conrad regarding all causes of action asserted by the latter against the former. The trial court did not designate the summary judgment a final judgment for purposes of appeal. The third-party claim asserted by defendants and third-party plaintiffs Simeon and Anna Herndon against third-party defendants Eugene Wright and Bill Roberts, and the counterclaim asserted by third-party defendants Eugene Wright and Bill Roberts against defendants and third-party plaintiffs Simeon and Anna Herndon, have never been adjudicated or disposed of by the trial court and are still pending.

Third-party defendants Eugene Wright and Bill Roberts are the only parties who appealed from the summary judgment entered in favor of defendants and third-party plaintiffs Simeon and Anna Herndon and against plaintiffs Charles and Agnes Conrad. As previously noted, defendants and third-party plaintiffs Simeon and Anna Herndon’s third-party claim and third-party defendants Eugene Wright and Bill Roberts’ counterclaim are still pending in the trial court. This fortuitous set of circumstances raises several grave procedural questions. Was the summary judgment entered by the trial court a final judgment for purposes of appeal and, if so, were third-party defendants Eugene Wright and Bill Roberts “aggrieved” parties within the meaning of Sec. 512.020, RSMo 1969? It is the initial duty of this court to inquire into and determine its jurisdiction sua sponte, and if this court lacks jurisdiction to entertain the instant appeal it should be dismissed. Citizens Ins. Co. of N.J. v. Kansas City, etc., 543 S.W.2d 532, 534 (Mo.App.1976); and Godsy v. Godsy, 521 S.W.2d 449, 450 (Mo.App.1975), cert. denied, 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119 (1975).

Rule 81.06 immediately comes to the forefront. It reads, insofar as here pertinent, as follows: “When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the-other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.-020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. . . . ” This portion of Rule 81.06 was broadly construed in Schumacher v. Sheahan Investment Company, 424 S.W.2d 84, 86 (Mo.App.1968), as follows: “[W]hen a separate trial is had in a non-jury case the decision of whether the resulting judgment is or is not final for purposes of appeal turns on the nature of the tried and untried claims. If those tried arose out of the same transactions, occurrences or subject matter as those not tried the judgment is not an appealable, final judgment unless specifically so designated by the court. But if the claims tried are unrelated to those not tried the judgment is deemed a final one for the purpose of appeal unless otherwise designated. . . . ” The board construction given Rule 81.06, supra, would appear to facilitate its application in every conceivable situation. However, Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 3 (Mo.App.1975), came along and emphasized an additional dimension for determining what constitutes a “final judgment for purposes of appeal” within the purview of Rule 81.06, supra. As held in Crenshaw, not only must tried and untried claims in a non-jury case arise out of the “same transactions, occurrences, or subject matter” in order for a judgment entered on a tried claim to fall within Rule 81.06’s proscription that such a judgment “shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri”, but, additionally, the untried claims must be “dependent” in some respect upon the outcome or final disposition of the tried claims. Crenshaw emphasizes the reverse meaning and effect of certain succeeding language in Rule 81.06 — to preclude the finality of a judgment entered on a tried claim for purposes of appeal any pending untried claims must not be “separate and independent” from and “unrelated” to the tried claim.

Unfortunately, the record on appeal does not contain copies of or set forth defendants and third-party plaintiffs’ third-party petition for “breach of fiduciary responsibility”, or third-party defendants’ counterclaim for “a real estate commission earned”. Seldom has a court had so little to go on by way of a record to determine whether it has jurisdiction to entertain an appeal. Notwithstanding the record’s anemic status however, enough appears from which one can fairly surmise that the claims respectively asserted in the third-party petition and counterclaim arose out of the “same transactions, occurrences or subject matter” as did the causes of action disposed of by the summary judgment which was entered. Moreover, the fact that third-party defendants are the only parties who appealed from the summary judgment strongly suggests that they believe that the untried claims respectively asserted in the third-party petition and the counterclaim are “dependent” in some respect on the outcome or final disposition of the causes of action disposed of by way of the summary judgment. If the untried claims are not “dependent” in some respect on the outcome or final disposition of the causes of action disposed of by the summary judgment, then it is difficult, if not impossible, to perceive how third-party defendants Eugene Wright and Bill Roberts can be deemed “aggrieved” parties within the contemplation of Sec. 512.020, supra, so as to thereby be invested, generally speaking, with the right to appeal. This conclusion draws validity when measured by the principle that a party is not “aggrieved” by a judgment unless it directly affects some pecuniary or property right or interest which he possesses. State ex rel. People’s Railway Company v. Talty, 139 Mo. 379, 40 S.W. 942, 944-45 (1897); and American Petroleum Exchange v. Public Service Com’n, 238 Mo.App. 92, 176 S.W.2d 533, 535 (1943).

One does not have to surmise, infer or fantasize to realize that certain alternative conclusions hereinafter hypothesized are of material assistance in providing a proper dispositional basis for this appeal. One, if the untried claims respectively asserted in the third-party petition and counterclaim are “dependent” in some respects upon the outcome or final disposition of the causes of action disposed of by way of the summary judgment, the summary judgment would not appear to be a final judgment for purposes of appeal within the meaning of Rule 81.06, supra. Two, if the untried claims are not “dependent” in some respect upon the outcome or final disposition of the causes of action adjudicated by the summary judgment, third party defendants Eugene Wright and Bill Roberts would not appear to be “aggrieved” parties within the contemplation of Sec. 512.020, supra. These alternative conclusions may be validly drawn without formally deciding (1) whether the third-party petition and counterclaim still pending, i. e. “untried” claims, are or are not “dependent” in any respect upon the outcome or final disposition of the causes of action, i. e. “tried” claims, which were disposed of by way of the summary judgment, or (2) whether third-party defendants Eugene Wright and Bill Roberts are “aggrieved” parties insofar as the summary judgment is concerned.

A unique status attaches to this appeal by reason of the alternative conclusions drawn, and one which suggests and permits a somewhat unorthodox disposition of third-party defendants’ appeal, namely dismissal, without the necessity of formally deciding at this time which alternative conclusion may ultimately be valid. If the summary judgment lacks finality for purposes of appeal within the contemplation of Rule 81.06, supra, then third-party defendants’ present appeal therefrom is premature and subject to being dismissed. On the other hand, if third-party defendants Eugene Wright and Bill Roberts are not “aggrieved” parties within the contemplation of Sec. 512.020, supra, they lack standing to appeal from the summary judgment and their present appeal should be dismissed. Either way, it is impossible to perceive how third-party defendants Eugene Wright and Bill Roberts can be adversely affected by presently dismissing this appeal.

After careful consideration, this court, however unorthodox doing so may appear at first blush, dismisses the appeal of third-party defendants Eugene Wright and Bill Roberts.

Appeal dismissed.

      . See Listerman v. Day and Night Plumbing & Heating Serv., 384 S.W.2d 111 (Mo.App.1964), as authority for the proposition that a third-party defendant, although not a party to a judgment entered in a cause of action between a plaintiff and a defendant and third-party plaintiff, may nevertheless, under certain circumstances, be an “aggrieved party” for purposes of appeal with respect to such judgment.


author: SWOFFORD, Chief Judge.

text:
    Eugene BELLAMY, Respondent, v. Evelyn BELLAMY, Appellant.
    No. KCD 29449.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Kenneth H. Taylor, Independence, for appellant.
    Charles W. Nichols, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

This is an appeal from an order and judgment of the court below modifying, upon motion and hearing, a decree of dissolution of marriage by eliminating therefrom the prior decree of maintenance for $20.00 per week to the wife and reducing the former provisions for the support of a child of the marriage from $60.00 to $40.00 per week.

The appellant (wife) here urges that this judgment was erroneous because it was. not supported by substantial evidence and, further erroneous, because it fails to protect her right to future modification of the maintenance provision of the original decree.

The marriage of the parties was dissolved September 4, 1975. Custody of the parties’ only child, Melody, 19 years of age and a senior in high school at the time of the modification hearing, March 14, 1977, was awarded to the appellant. The respondent (husband) was ordered to pay $60.00 per week for the support of Melody and $20.00 per week for maintenance of the appellant in the original decree of dissolution. At the time of the dissolution and continuously to the hearing on the motion to modify, the appellant has been gainfully employed with earnings of $100.00 per week.

In 1972, the respondent for reasons of health and upon the advice of his doctor, quit his job of 24 years as an automobile assembler and opened up his own automobile repair shop. At the time of the dissolution hearing his gross income from this operation was $1,000.00 per month, according to his testimony. At the modification hearing his income tax returns for 1975 showed a net taxable income (after depreciation of equipment, etc.) of $2,309.00, and for 1976 of $960.00. He testified that his gross income to date in 1977 was down.

He denied any additional source of income and placed a value on the shop and equipment of $5,000.00. He explained that the difference between his income and his support and maintenance obligations had been satisfied by help from his parents, assistance that was no longer available. He further stated that his daughter Melody was engaged to be married upon her graduation from high school in the spring of 1977.

Respondent’s testimony was all the evidence presented to the court. The decree of modification eliminated any payment of maintenance to the appellant and reduced the award for child support from $60.00 to $40.00 per week, as above noted.

The judgment of the court below will be affirmed unless there is no substantial evidence to support it, giving due regard to that court’s ability to judge the credibility of the respondent’s undisputed testimony. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Rule 73.01. The statutory standard for such a modification decree is “a showing of changed circumstances so substantial and continuing as to make the terms unreasonable”. Section 452.370 RSMo Supp.1973. The only evidence proffered in the modification hearing, that of the respondent, showed that his income had declined in such a marked and continuous degree over the period of 1975,1976 and the early months of 1977 as to place him in the position of being unable, through no fault or design of his own, to pay the original judgment of $4,160.00 per year. Such burden will not be continued under such circumstances. Hutcherson v. Hutcherson, 553 S.W.2d 487 (Mo.App.1977).

These statutory and decisional standards were certainly satisfied in this case, the respondent met his burden of proof, and the court’s modification decree was based upon substantial evidence.

The appellant’s second (and final) point relied upon is that by eliminating all maintenance and failing to retain jurisdiction over that subject foreclosed her right to ask for future modification of maintenance if circumstances then existing created a different and favorable climate for such request. This point has merit. Carrell v. Carrell, 503 S.W.2d 48, 51-52[7, 8] (Mo.App.1973).

Under the authority of Rule 84.14 and Carrell v. Carrell, supra, and to avoid any doubt as to the effect of the modification decree, such decree will be modified by adding as a last paragraph, as follows:

“The court reserves jurisdiction to reinstate or otherwise modify the provision for maintenance at such future time or times as circumstances may require.”

The judgment, as so modified, is affirmed.

All concur.


text:
    AMERICAN FAMILY INSURANCE GROUP, Plaintiff-Appellant, v. George W. WILCOXSON et al., Defendants-Respondents.
    No. KCD29550.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Gregory M. Perlstein, Kansas City, for plaintiff-appellant.
    Max W. Foust, G. Spencer Miller, Kansas City, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Plaintiff appeals from an order of the circuit court dismissing the plaintiff’s petition. The case was by de novo review from the magistrate court which had entered a judgment for defendant. The defendant’s motion to dismiss raised the issue of real party in interest.

Plaintiff’s petition alleged that it was the insurer for one Olson and that Olson’s automobile had been damaged through the negligence of the defendants. It was further asserted that, pursuant to the plaintiff’s insurance contract with Olson, it had paid Olson $1,709.32, and that plaintiff was the assignee of the rights of Olson to bring the action.

The real and substantive issue to be determined in this case is whether or not the plaintiff received an assignment of the insured’s entire cause of action and is thus the real party in interest or whether the plaintiff was a subrogee based on a subro-gation agreement and therefore not the real party in interest.

Plaintiff in its first point with three sub-points meets that issue, contending that it was an assignee.

In the first subpoint, plaintiff claims the trial court erred in considering the Proof of Loss form executed by Olson which was apparently attached to interrogatory answers of the plaintiff. Plaintiff argues that a motion to dismiss is tested only against the petition, and on its face the petition is immune from the real party in interest defense because it asserts the plaintiff was an assignee. To countenance this argument would allow an imposter plaintiff to bootstrap himself into a lawsuit through the allegations in his petition and defer the discovery of his imposition until after the trial proper has begun and after unnecessary investment of time and expenditure. To require such a dilatory disposition of a potentially dispositive issue would violate the announced policy of the Missouri Rules of Civil Procedure which is to “secure the just, speedy and inexpensive determination of every action.” Rule 41.03. Indeed, the rules themselves provide for the hearing and considering of evidence, other than the petition, in resolving this type of motion.

It is readily apparent that the motion questions the plaintiff’s legal capacity to sue. Cf. State Farm Mutual Automobile Insurance Company v. Jessee, 523 S.W.2d 832 (Mo.App.1975). Rule 55.27 specifically provides that such questions can be presented by motion and that it shall be heard and determined before trial unless the court orders otherwise. Rule 55.28 provides that when a motion is based on facts not appearing of record the court may hear the matter on affidavits, records, or other evidence. Fine v. Waldman Mercantile Company, 412 S.W.2d 549 (Mo.App.1967). Clearly, the procedures followed in the instant case (that of considering evidence other than the mere petition in hearing this motion to dismiss because the plaintiff was not the real party in interest) were proper. In fact, it is the procedure which has long been followed in Missouri. Alsup v. Green, 517 S.W.2d 151 (Mo.App.1974); Kroeker v. State Farm Mutual Automobile Insurance Company, 466 S.W.2d 105 (Mo.App.1971).

In the second subpoint, plaintiff claims that an automobile liability insurance company which receives an assignment of its insured’s entire cause of action is the real party in interest and can bring suit in its own name. There is no question but that this is a correct principle of law (State Farm Mutual Automobile Insurance Company v. Jessee, 523 S.W.2d 832 (Mo.App.1975); Lumbermen’s Mutual Casualty Company v. Norris Grain Company, 343 F.2d 670 (8th Cir. 1965)), and defendants concede it to be such.

In the third subpoint, plaintiff asserts the proof of loss made it an assignee. Plaintiff’s “proof of loss” form was an exhibit, and it is filed in this court. It recites in pertinent part:

“It is, therefore, understood and agreed: . 3. that the company is hereby subrogated, to the extent of said payment, to all rights of recovery which the insured has, may have or ought to have against any person or organization on account of said loss, and that the insured agrees to execute any document, furnish any information required by the company or do whatever else is necessary to secure and prosecute said rights, and that the insured hereby empowers the company to sue, compromise or settle in his name or otherwise.” (Emphasis added).

The proof of loss document thus not only denominated plaintiff’s status as that of subrogee but also specifically recognized that any further suits would be in the insured’s name. These provisions made plaintiff a subrogee and not an assignee.

In Holt v. Myers, 494 S.W.2d 430 (Mo.App.1973), the St. Louis Court considered a document signed by the plaintiffs and given to their insurance company after it had paid them on a property loss claim to determine whether plaintiffs were assignors or subro-gors. The document contained the following language:

“In consideration of and to the extent of said payment the undersigned hereby subrogates said Company, to all of the rights, claims and interest which the undersigned may have against any party, person, persons, property or corporation liable for the loss mentioned above, and authorizes the said Company to sue, compromise, or settle in the undersigned’s name or otherwise all such claims and to execute and sign releases and acquittanc-es and endorse checks or drafts given in settlement of such claims in the name of the undersigned, with the same force and effect as if the undersigned executed or endorsed them.” Holt, supra at 436. (Emphasis added).

The court held that the instrument was one of subrogation and not assignment. Holt controls the construction of the document in the instant case.

The plaintiff, being a subrogee, was not a proper party but had to sue in the name of the subrogor, and the sustaining of the defendants’ motion to dismiss was proper. Kroeker v. State Farm Mutual Automobile Insurance Company, supra.

Plaintiff’s second point, claiming error in overruling its motion to correct the pleadings by interlineation by substituting the name “American Standard -Insurance Company, Inc.” for the nominated plaintiff, is made moot by the disposition of the first point. Plaintiff represents that the interests of the nominated party and the proposed party in this suit are identical and that there has merely been a clerical mistake in using a generic nickname for the plaintiff’s true corporate name. Even if relief were granted under Point II, the substitution would be totally ineffectual to change the judgment. This court should not proceed to discuss a question which is moot when the resolution of the issue is not necessary for a determination of the appeal. Newton v. Regional Investment Company, 516 S.W.2d 822 (Mo.App.1974); Kestner v. Jakobe, 412 S.W.2d 205 (Mo.App.1967).

Judgment affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William L. BROADNAX, Appellant.
    No. KCD 29570.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Robert A. Simons, Kansas City, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was indicted, tried to a jury, found guilty, and sentenced to one hundred years imprisonment for second degree murder (Sec. 559.020, RSMo 1969). The victim was defendant’s wife.

The sufficiency of the evidence to support the guilty verdict stands unchallenged. A brief recapitulation of the salient facts explains why it has not been challenged. The victim’s son and defendant’s stepson, being one and the same person, testified that during the evening of October 4, 1976, he saw defendant bludgeon the victim alternately and repeatedly with an electric iron and a baseball bat. The fatal beating took place in the bedroom of an apartment occupied by the family. A forensic pathologist who had performed an autopsy upon the body of the victim testified that “extensive bruising” was observed on and about the “arms, chest, upper back and the head or face” of the victim, “lacerations of the scalp” were observed on the “upper forehead”, “right side above the right ear” and “above the left ear” of the victim, and a “laceration” was observed on the left arm of the victim. The forensic pathologist further testified that in her opinion the victim “died as a result of a beating around the head, with a cerebral concussion.”

Fifteen photographs, seven of which were post-mortem pictures of the victim’s body taken from different angles showing the various bruises and lacerations which had been inflicted upon the victim, seven of which were pictures of the scene of the crime taken from different views, and one of which was a picture of a blood stained electric iron found at the scene, were all properly identified and admitted in evidence. Five other items of demonstrative evidence, the electric iron heretofore referred to, a blood stained baseball bat, a blood stained wig, a blood sample removed from the top portion of the electric iron heretofore referred to, a blood sample removed from the “side” of the electric iron heretofore referred to, and two fibers of “hair” removed from the floor immediately under where the electric iron heretofore referred to was discovered, all of which were obtained at the scene of the crime, were properly identified and admitted in evidence.

The sole point relied upon by the defendant on appeal charges that the trial court “abused its discretion by admitting into evidence state’s exhibits for the reason that the exhibits were repetitious, highly inflammatory, and tended only to inflame the passions of the jury.” The obvious frailty of defendant’s singular point vis-a-vis compliance with Rule 84.04(d), occasioned by a failure to specifically mention any particular exhibit or exhibits, will be charitably overlooked as the particular exhibits involved are those heretofore mentioned, all as readily gleaned from the argument portion of defendant’s brief.

The only objections lodged by defendant regarding admission of the various items of demonstrative evidence heretofore mentioned, both during trial and in his motion for new trial, were to the effect that they tended to “inflame the jury”, that they were “unduly inflammatory”, that they “unduly inflamed the jury”, and that they were introduced “to inflame the passions of the jury unduly and unfairly”. It is well settled that assignments of error as to the admissibility of evidence are not preserved for appellate review unless presented during trial at the time objections are lodged against the complained of evidence. State v. Davis, 482 S.W.2d 486, 489 (Mo.1972); State v. Brown, 360 S.W.2d 618, 621 (Mo.1962); State v. Hernandez, 325 S.W.2d 494, 496 (Mo.1959), and State v. Washington, 320 S.W.2d 565, 568 (Mo.1959). It is equally well settled that a party will not be permitted to broaden the scope of his objection on appeal beyond that made at the trial level. Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570, 582 (Mo.1964). Perforce, defendant’s charge that the various items of demonstrative evidence were “repetitious” will not be considered.

Resolution of defendant’s single point now turns on whether the various items of demonstrative evidence possessed such an inflammatory aura that the trial court abused its discretion in admitting them in evidence. For sake of clarity the photographs, on the one hand, and the remaining items of demonstrative evidence, on the other hand, will be discussed separate and apart from each other. First, attention focuses on the photographs. This court is frank in stating that the photographs, whether viewed singularly or collectively, do not appear unduly gruesome, repugnant or shock provoking, particularly when considered anent the oral testimony of various witnesses offered by the state. State v. Love, 546 S.W.2d 441, 451-52 (Mo.App.1977), laced with a plethora of case authority, fully repels defendant’s attack upon the photographs. As pointed out in State v. Love, supra, at 451, even though photographs possess a prejudicial and inflammatory aura their admission in evidence is not barred if they are otherwise relevant and have probative value, and in the context just mentioned they are deemed to have probative value “if they show the nature and location of wounds inflicted upon a deceased”, “if they enable the jury to better understand the facts elicited from various state witnesses”, “if they corroborate the testimony of the state’s witnesses”, and “if they aid in establishing any element of the state’s case”. In order to avoid being unduly prolix, it suffices to say that each of the photographs attacked by defendant met one or more of the tests for probativeness laid down in State v. Love, supra. The trial court was in a far better position than this court to balance the probative value of the photographs against any propensity they might have to work upon the raw emotions of the jury. The trial court, as evidenced by its rulings, concluded that their probative value outweighed any inflammatory effect which might be attributed to them. Because of the superior vantage point occupied by trial courts to “read the scales” when such opposing considerations are weighed, common sense dictates that they be vested with broad discretion in admitting or rejecting photographs such as those in question. State v. Love, supra. This court concludes that the trial court did not abuse its discretion in admitting the photographs in evidence.

As to the remaining items of demonstrative evidence, the propriety of admitting them in evidence turns on essentially the same considerations as those governing the photographs. Such evidence is generally deemed admissible if it tends to connect the accused with the crime, or prove the identity of the deceased, or shows the nature of any wounds, or corroborates the testimony of the state’s witnesses, or throws any relevant light upon any material matter in issue. State v. Brandt, 467 S.W.2d 948, 951-52 (Mo.1971), and State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 82 (1933). One does not need to give way to credulity to conclude that the remaining items of demonstrative evidence met one or more of these criterions for admission. As before, broad discretion was reposed in the trial judge to balance the probative value of the remaining items of demonstrative evidence with any inflammatory aura which might surround them. Once again, the trial judge obviously concluded that the probative value of the remaining items of demonstrative evidence outweighed any propensity they might have to “inflame the passions of the jury”.

The probative value of all of the demonstrative evidence in question would have to be unrealistically minimized by this court in order to shift the balance and pave the way to brand the trial court with an abuse of discretion. Doing so would emasculate both the law and the facts.

Judgment affirmed.

      . Identified by a forensic chemist as “human blood”.

      . Identified by a forensic chemist as “human blood” of the same “type” or group as that of the victim.

      . Identified by a forensic chemist as “human blood” of the same “type” or group as that of the victim.

      . Identified by a forensic chemist as matching two of the three types of fiber contained in the blood stained wig admitted in evidence.


text:
    In re the MARRIAGE OF Aline Denise BUSSMAN (now Aline Denise Haley), Petitioner-Appellant, and William J. Bussman, Respondent.
    No. KCD 29607.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Robert G, Smith, Brookfield, for petitioner-appellant.
    Robert F. Devoy, Brookfield, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

The mother (appellant) of two minor children, a boy and girl whose ages, respectively, are five and six, has appealed from an order of the trial court denying her request that an original custody decree which gave the father (respondent) custody of the minor children be modified and that custody of said minor children be transferred to her.

The mother takes the position that the trial court erred in not transferring custody of the two minor children to her because (1) a “change of circumstances” has occurred since the original decree was entered in that she has now remarried and is capable of taking care of the children and the father has now remarried and “moved the children from his parents’ home where . [they] had been staying”, and (2) because “the children are of tender years and their best interests would be served by being placed with their mother”.

The evidence fairly lends itself to being briefly recapitulated as follows: Both the mother and father have remarried, since her remarriage the mother is physically situated to provide a suitable home for the children, no aspersions were cast on the father or on his newly acquired spouse, the two children are healthy, normal, happy, well provided for and properly taken care of by the father, and the general atmosphere surrounding the children, before and after the father’s remarriage, remains essentially the same except for the added factor of a surrogate mother in the home.

Sec. 452.410, RSMo Supp. 1975, addresses the matters to be considered when modification of a prior custody decree is sought: “The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” As judicially applied, the change of circumstances must be of such a nature that the best interests of the child will be served by modifying a prior custody decree. Clouse v. Clouse, 545 S.W.2d 402 (Mo.App.1976). The remarriage of a parent, standing alone, is not a sufficient change of circumstances to justify modification of a prior custody decree. In re Marriage of Wolf, 542 S.W.2d 615 (Mo.App.1976). The natural inclination to award custody of children of tender years to their mother was never meant to be indulged to the extent of excluding all other relevant matters from consideration. R._ G._ T._ v. Y._ G._ T._, 543 S.W.2d 330 (Mo.App.1976); and Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975).

The inexorable command to be observed when considering a transfer of custody of minor children via modification of a prior custody decree is that the best interests of the minor children be served. Sec. 452.410, supra. What was said by this court in In Re Marriage of L_, 548 S.W.2d 262, 263 (Mo.App.1977), regarding the initial placement of custody of minor children, is apropos to this case: “Many intangibles emerge during trial bearing upon the custody of minor children which a sterile, printed record is many times incapable of reflecting — parental love and affection, and genuine concern for the children, as opposed to merely salving the pride of an individual parent — thereby making it necessary to repose great confidence in the trial court’s determination as to what serves the welfare and best interest of the minor children involved.” The trial court may well have concluded, and properly so, that there was nothing to gain, but much to lose, by putting the minor children through the trauma of relocation.

As noted in Randle v. Randle, 560 S.W.2d 876 (Mo.App.1977), the standard for appellate review of this matter is found in Rule 73.01 as clearly explicated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When the record in this matter is so reviewed, it cannot be said that the trial court’s order denying the mother’s request for transfer of custody lacked substantial evidence to support it, erroneously declared or erroneously applied the law, or that “a firm belief” exists that it was against the weight of the evidence.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Burk Thomas OSBORNE, Appellant.
    No. KCD 29627.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      James W. Gallaher, Barry, Neff & Gal-laher, Jefferson City, for appellant.
    Vernon R. Dawdy, Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged by information in the Circuit Court of Cole County with unlawfully climbing into a motor vehicle without the permission of its owner, a misdemeanor (Secs. 560.175.2 and 560.180.2, RSMo 1969). He was tried and found guilty by a jury who fixed his punishment at ninety days confinement in the Cole County Jail.

The sufficiency of the evidence to sustain defendant’s conviction of the misdemeanor with which he was charged and for which he stood trial has not been questioned. Such being the case, a recitation of facts would serve no purpose. This court, after having carefully reviewed the facts, finds that substantial evidence was introduced from which the jury could have found beyond a reasonable doubt that defendant was guilty of the charged offense.

The only point of error raised on appeal questions Instruction No. 6, the state’s verdict directing instruction, which was an adaptation of MAI-CR 7.80. Defendant takes the position that Instruction No. 6 submitted and he was found guilty of “tampering with a motor vehicle”, a felony, although he was charged with climbing into a motor vehicle without the permission of its owner, a misdemeanor, and therefore the giving of Instruction No. 6 was reversible error.

In order to put the single issue raised by defendant in proper perspective it is necessary to set forth both the applicable statutory provisions and Instruction No. 6. Sec. 560.175, RSMo 1969, captioned “Tampering with motor vehicles”, reads as follows:

“1. No person shall drive, operate, use or tamper with a motor vehicle or trailer without the permission of the owner thereof.
2. No person shall, without the permission of the owner or person in charge thereof, climb upon or into, or swing upon any motor vehicle or trailer, whether the same is in motion or at rest, or sound the horn or other sound-producing device thereon, or attempt to manipulate any of the levers, starting device, brakes, or machinery thereof, cr set the machinery in motion, or hold to such vehicle while riding a bicycle or other vehicle.
3. The provisions of this section shall apply to any person employed by the owner of such motor vehicle as a chauffeur or registered operator if the said motor vehicle is driven or operated, used or tampered with without the owner’s knowledge or expressed consent, or in violation of his instructions.
4. No person shall knowingly ride in a motor vehicle which has been stolen or is being operated without the consent of the owner thereof.” (Emphasis added.)

Sec. 560.180, RSMo 1969, captioned “Penalties for violation of section 560.175”, reads as follows:

“1. Any person who violates subsection 1 of section 560.175 shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the penitentiary for a term not exceeding five years or by confinement in the county jail for a term not exceeding one year, or by a fine not exceeding one hundred dollars or by both such fine and imprisonment.
2. Any person who violates subsection 2 or 4 of section 560.175 shall be deemed guilty of a misdemeanor.” (Emphasis added.)

Instruction No. 6, the state’s verdict directing instruction, reads as follows:

“INSTRUCTION NO. 6
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 20th day of October, 1976, in the City of Jefferson, County of Cole, State of Missouri, the defendant climbed into a certain motor vehicle; to-wit: a 1975 Chevrolet Van, owned by Bill B. Dunn, and
Second, that he climbed into the motor vehicle without the permission of the owner, and
“Third, that he did not climb into such vehicle in good faith in the honest belief that he had the permission of the owner,
then you will find the defendant guilty of tampering with a motor vehicle without the permission of its owner.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.
If you do find the defendant guilty of tampering with a motor vehicle without the permission of its owner, you will fix his punishment:
1. By confinement in the county jail for a term fixed by you, but not to exceed one year, or
2. By a fine fixed by you, but not to exceed $1000, or
3. By both such fine and confinement in the county jail.”

Defendant vigorously argues that inclusion of the twice used language “guilty of tampering with a motor vehicle” in Instruction No. 6 converted it from submission of a misdemeanor to submission of a felony. The following realities augur in favor of the inexorable conclusion that the giving of Instruction No. 6 was not reversible error. One, defendant, beyond question, was charged with climbing into a motor vehicle without the permission of its owner, conduct clearly prescribed as constituting a misdemeanor rather than a felony by paragraph 2 of See. 560.180, supra. Two, the delineated facts set forth in Instruction No. 6, which the jury was required to “find and believe” in order to return a verdict of guilty, conformed to both the information and the evidence and submitted a misdemeanor rather than a felony. Three, the permissible range of punishment set forth in Instruction No. 6, omitting as it did any reference to imprisonment in the state department of corrections, denoted submission of a misdemeanor rather than a felony. Four, the guilty verdict returned by the jury fixed defendant’s punishment at ninety days in the county jail. Five, when defendant appeared for the rendition and pronouncement of judgment and sentence, the trial judge specifically adjudged him guilty of a “misdemeanor” and sentenced him to confinement in the “Cole County Jail for a term of 90 days”.

A virtually identical attack was leveled against the state’s verdict directing instruction by the accused in State v. Burgess, 456 S.W.2d 641 (Mo.App.1970). By way of a brief preface, the information in Burgess was cast in somewhat different language in that it charged, inter alia, that the accused “did unlawfully tamper with a motor vehicle without the consent of the owner, by climbing in and upon the same . . .”. In rejecting accused’s contention that the St. Louis Court of Criminal Corrections lacked jurisdiction to try his case because the above quoted language contained in the information charged him with a felony, the appellate court held that the words “tamper with” were merely a “conclusionary description” of the accused’s act which constituted a misdemeanor, and therefore “mere sur-plusage”. In rejecting accused’s contention that the following language contained in the state’s verdict directing instruction, “that the defendant . . . tampered with the automobile mentioned in evidence by climbing in and upon said automobile . . . ”, permitted the jury to find him guilty of a felony, the appellate court held that any error attributed thereto was harmless because it placed “an unnecessary burden on the State, favorable to the defendant”. The same can be said of the instruction in the instant case.

When adapting MAI-CR 7.80 for submission of the type of misdemeanor in question, it would appear preferable to employ the words “guilty of climbing into a motor vehicle” in place of “guilty of tampering with a motor vehicle” where twice used in Instruction No. 6. However, failure to have made the suggested interchange in the verdict directing instruction in the instant case was, at most, harmless error.

Judgment affirmed.

All concur.

      . The term "felony” is statutorily defined in Sec. 556.020, RSMo 1969, as follows: “The term ‘felony’, when used in this or any other statute, shall be construed to mean any offense for which the offender, on conviction, is liable by law to be punished with death or imprisonment in a correctional institution of the state department of corrections, and no other.”


text:
    Mary Elizabeth ARP, Petitioner-Respondent, v. Darrell Duane ARP, Respondent-Appellant.
    No. KCD29644.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Jack Lukehart, Brunswick, for respondent-appellant.
    Michael L. Midyett, Thomas M. Shea, Midyett & Shea, Keytesville, for petitioner-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This is a marriage dissolution from which the husband appeals, claiming error in the allowance of maintenance and the division of marital property. The husband’s points of error are far from models, but, taken with the argument portion of the brief, can be considered to be claims that, as to both the maintenance and the division of property, there was a lack of substantial evidence, an erroneous declaration of law by the court concerning the award, and an erroneous application of the law by the court. The husband concedes that our review is under the dictates of Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

On the question of substantial evidence to support the trial court’s award of the maintenance, it is sufficient to say that the wife, who had a record of ten years of employment in Missouri, terminated her employment and moved to Illinois where her husband was working in an attempt to help her save her marriage. The husband admitted that he had been involved in an illicit relationship with a woman in Illinois for about seven years. The wife’s testimony indicated that she had no income at the time of the trial and that her expenses were approximately $500 per month. The trial court’s award to the wife was $100 per month. Considering the wife’s claim of expenses of $500 per month and the award to her of the family home, an automobile, and a camper, the trial court’s award cannot be .said to be without substantial support in the evidence. The wife was awarded no income-producing property, a factor to be considered in assessing this evidence. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977). Obviously, the wife should not be required to consume the value of the family home in living expenditures before being entitled to maintenance. In Re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977). The principal argument of the husband is that the court failed to consider the wife’s ability to be employed in the banking business and provide herself with her entire support by such employment. The difficulty with that argument is that the wife testified that she was unable to obtain employment in her area of experience and that the factory work available to her would provide her approximately $384 per month against her low estimate of expenses of $482 per month which completely supports the trial court’s award of $100 per month maintenance. There is no argument that the husband is incapable of providing the maintenance awarded. Defendant cites In Re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976); Foster v. Foster, 537 S.W.2d 833 (Mo.App.1976); and Brown v. Brown, 537 S.W.2d 434 (Mo.App.1976), for the principle that income may be imputed to a husband, based upon evidence of his past and present earnings, as evidence of capacity to earn a sufficient amount to provide maintenance for his wife. The husband argues cogently that this rule should be applied in determining the capability of the wife to earn and, therefore, her training and experience in the banking experience would impute to her an ability to earn sufficient to offset any need for contribution by the husband to her maintenance. The difficulty with the husband’s argument is that there is direct evidence that the wife is unable to utilize her training and experience in the area of banking and thus obtain a greater income. In the cited cases involving the husband’s capacity to earn, there was no evidence of inability to be employed.

With respect to the husband’s claims concerning the division of marital property, the court was confronted with a marriage of some twenty-seven years and only marital property to be divided. In the division, the trial court, as indicated, gave the wife the family home, a 1972 automobile, and a camper trailer, with a total value of approximately $21,500. The husband was awarded a 1974 pickup truck, boats and motors, and all of the savings accounts, checking accounts, certificates of deposit, savings bonds, and balance in the credit union with a total estimated value of approximately $8,265.

In considering the husband’s claim, certain broad principles of review with respect to division of marital property are applicable and controlling. The trial court is vested with broad discretion in the division of marital property, and its decree will not be disturbed unless abuse of discretion is shown. Eden v. Eden, 558 S.W.2d 394, 395 (Mo.App.1977); Klinge v. Klinge, 554 S.W.2d 474, 477 (Mo.App.1977); In Re Marriage of Cornell, 550 S.W.2d 823, 826 (Mo.App.1977); In Re Marriage of Vanet, supra at 240.

Section 452.330 RSMo Supp.1975 provides that the court shall make a just division of marital property and in doing so shall consider the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) the value of the property set apart to each spouse; (3) the economic circumstances of each spouse; and (4) the conduct of the parties during the marriage. However, these factors are not exclusive. Lockett v. Lockett, 558 S.W.2d 387 (Mo.App.1977).

The husband was awarded over $8,000, or approximately 28 per cent of the marital property. The wife was awarded over $21,000, or approximately 72 per cent of the marital property, consisting of the marital home, an automobile, and a camper trailer. The wife worked outside the home for 13 or 14 years during the marriage. There was evidence that the wife was a good and constant homemaker and reared four children, and this was not disputed by the husband. The parties had no separate property except that acquired during the marriage, and it is evident that both contributed substantially to its acquisition and both basically agreed on its value. As discussed previously, although the wife was able to work, she was unable to find appropriate employment sufficient to support herself. It is also clear from the evidence of husband’s income and expenses that he could support himself. The wife stated under oath that she had been a faithful and dutiful wife, and the husband presented nothing to counter this statement. On the other hand, husband admitted that he had an intimate relationship with another woman for at least three years during his marriage. Furthermore, although the court is not required to consider this, the fact that husband was awarded all of the income-producing property is relevant to the fairness of the division.

Even though the wife was awarded approximately 72 per cent of the marital property, the statute does not require the court to make an equal division of the property but only a just division, D. L. C. v. L. C. C., 559 S.W.2d 623 (Mo.App.1977); In Re Marriage of Prenavo, 556 S.W.2d 463, 466 (Mo.App.1977); C_ L_ R_ v. L_ B_ R_, 555 S.W.2d 372 (Mo.App.1977); and this is certainly true where one spouse has engaged in marital misconduct. Smith v. Smith, 552 S.W.2d 321, 323 (Mo.App.1977); Conrad v. Bowers, 533 S.W.2d 614, 620 (Mo.App.1975); In Re Marriage of Powers, 527 S.W.2d 949, 957 (Mo.App.1975).

After reviewing the evidence in light of the relevant factors, including those enumerated in § 452.330, it does not appear that the trial court abused its discretion in making a just division of the marital property.

The judgment is affirmed.

All concur.


text:
    George W. Craig, Deceased, Employee, William R. CRAIG, Geraldine Craig, Christina Craig, and Cheryl Linn Craig, Claimants-Respondents, v. Lin CALVERT, Employer-Appellant, Western Casualty & Surety Company, Insurer.
    No. KCD 29665.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Dale Reesman, Williams, Reesman & Tate, Boonville, for employer-appellant.
    W. F. Daniels, Fayette, for claimants-respondents.
    Before SOMERVILLE, P. J„ and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This is an appeal by the employer of an award of compensation in a death claim. The employer contends that the claimants’ award is improper as being without competent and substantial evidence supporting the finding of contribution by the deceased to the claimants.

The deceased was the son of the claimant, William R. Craig, stepson of William R. Craig’s wife, Geraldine Eliza Craig, and a half brother of Cheryl Craig, age 6, and Christina Craig, age 8. Christina is a mongoloid child. At the time of his death which was a result of a compensable injury, the deceased lived in his father’s home with the other claimants. The decedent had his own bedroom in the home and had lived there since the marriage of his father and his stepmother about ten years preceding the death of the son. The testimony developed that the deceased contributed $20 every week to Mrs. Craig which she used with the money given to her by the husband to pay the household and living expenses. In addition, the evidence disclosed that the deceased brought home groceries worth $10 to $15 per week and spent an average of $15 per month on clothing for his half sisters. He also contributed to the family enterprise by baby-sitting with his half sisters, mowing the lawn, and helping with the household chores. The evidence disclosed that the deceased used his father’s car on the weekends and frequently provided gasoline for that vehicle. At the time of his death, his stepmother was not employed outside of the home, although she had been employed in prior years. The evidence was understandably skimpy with respect to the family expenses, the claimants having no record or recollection of their family budget for groceries before and after the deceased’s death.

The scope of review in this case is delineated in § 287.490 RSMo 1969, which in pertinent part is as follows:

“The court, on appeal shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

In workmen’s compensation cases, it is the award of the Industrial Commission, not the finding of the referee, which the Court of Appeals reviews. Begey v. Parkhill Trucking Co., 546 S.W.2d 529 (Mo.App.1977).

The judicial review of a workmen’s compensation case is of the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission. The function of the court is to determine whether the Commission’s findings, if supported by competent and substantial evidence, are contrary to the overwhelming weight of the evidence. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625 at 627-28 (Mo.1969).

The record below contains competent and substantial evidence upon which the Commission could base the award, and clearly this finding was not against the overwhelming weight of the evidence. The evidence was uncontradicted that the deceased contributed substantially to the household both in money and services. Assuming Mr. Craig was making the same amount of money at the time of his son’s death as he was at the time of the hearing ($90 take home pay), the decedent was contributing at a minimum one-fourth of the money that came into the household each week (at least $30). The employer argues there was no testimony in the record as to need or dependency. This contention is without merit since need or dependency is obviously a reasonable inference which could be drawn from the evidence presented. “Dependence within the meaning of the Workmen’s Compensation Law does not mean absolute dependency for the necessities of life, but rather that the claimed dependent looked to and relied upon the contributions of the employee, in whole or in part, as a means of supporting and maintaining himself.” Dykes v. Thornton, 282 S.W.2d 451, 454 (Mo.1955).

The employer’s principal assertion is that the language of the award of the Industrial Commission — that it was bound by Mrs. Craig’s undisputed testimony that the decedent’s payments were contributions for family support rather than for his room and board — was a misapplication of the law by the Commission. This argument is semantic rather than legal. The Commission was only bound by the evidence as any trier of fact is; that is, they hear the evidence, weigh it, judge its credibility, and draw reasonable inferences from it. The use of the word “bound” in the award, when read in context of the entire final award, seems to indicate that the Commission was trying to express that they could only make assumptions or inferences from evidence presented, and that the only evidence presented indicated that the money was for household expenses rather than room and board.

The Commission was aware that the referee, acting as a trier of fact, chose not to believe Mr. and Mrs. Craig and found that the money contributed by the deceased was for room and board. One must assume that the Commission was also aware that it had the same prerogative in acting as a trier of fact. It certainly didn’t indicate that it was reversing the referee’s decision as a matter of law because the referee was bound by the testimony presented. Rather, the Commission reversed the referee on his finding of fact that the Craigs were not partially dependent on the deceased. Even if the Commission erroneously believed it was bound by the testimony of Mr. and Mrs. Craig, the final award indicates that the same result would have been reached if the Commission had not thought it was bound by that evidence.

Judgment of the circuit court affirming the award of the Commission is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ahmad Ali KHAJEHNOURI, Defendant-Appellant.
    No. KCD 29668.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Carl P. Sapp, Sapp, Woods & Orr, Columbia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals his conviction on two counts of forgery. The defendant is a citizen of Iran, and the trial was conducted with an interpreter because of the defendant’s limited understanding of the English language.

The defendant urges that the trial court erred in permitting an expert witness to testify on rebuttal with respect to a comparison of handwriting samples of the defendant made during cross-examination and the handwriting on the forged checks.

The sufficiency of the evidence is not in question. The evidence developed the following facts. The owner of some printed checks bearing the name James Ely testified that two numbered checks were lost or stolen and that the signatures appearing on the two checks were not the signature of either James Ely or his wife. Two employees of a grocery store testified that the two numbered checks on the Ely account were cashed on separate occasions in the grocery store. The first employee knew the defendant as a regular customer and paid no attention to the name written on the check, the check being signed in his presence by someone he was familiar with. The other employee was not sure whether the check was signed in his presence, but he saw the defendant in the store approximately a month later and recognized him as the person who had presented the Ely check which had been returned by the bank. The employee then notified the police.

The State also offered the evidence of a handwriting expert who testified in the case in chief that the handwriting on the Ely checks was most probably the handwriting of the person who gave exemplars. The exemplars were identified as samples defendant gave the police. During the cross-examination of the defendant, the State obtained two handwriting samples of the defendant. After the defendant’s testimony and after the close of the defendant’s case, the State offered the handwriting expert as a rebuttal witness. The expert stated that his opinion based on the samples would have to be a qualified one since he did not have the time or the equipment to make a complete examination. He further testified that there were features of the handwriting which appeared on both the forged checks and the handwriting samples of the defendant obtained on cross-examination and that there were no major inconsistencies. The defendant objected on the grounds that it was improper rebuttal and constituted an invasion of the province of the jury because of the qualified nature of the expert’s opinion.

Defendant’s first ground for objection is that the expert evidence was not proper rebuttal. The defendant’s claim of error must be rejected. The nature and extent of rebuttal evidence is within the sound discretion of the trial court. State v. Parker, 543 S.W.2d 236 (Mo.App.1976); State v. Harris, 539 S.W.2d 793 (Mo.App.1976). Although the testimony in question involved an exhibit which was obtained by the State, it should be noted that it was obtained on cross-examination of the defendant. Clearly, testimony of the defendant, whether on direct or cross-examination can be the proper subject of rebuttal by the State. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968) (overruled on other grounds); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). The handwriting sample was merely an extension of the defendant’s testimony elicited on cross-examination. In addition to the writing sample itself, there was testimony from which the jury could infer that there were differences between the checks and the in-court sample. The defendant testified on cross-examination that “This is my handwriting but this is not.” The testimony of the expert was proper rebuttal because it was used to explain or counteract evidence which had arisen during the cross-examination of the defendant. State v. Williams, supra; State v. Hoyel, 534 S.W.2d 266 (Mo.App.1975).

Defendant’s second claim of error concerning the qualified nature of the expert testimony must likewise be denied. The defendant never challenged the witness’ qualifications as a handwriting expert. He did not cease to be an expert merely because the second observation of samples was made out of the laboratory. The expert’s testimony met the test of expertise in that it was capable of being helpful to the jury. Parlow v. Dan Hamm Drayage Company, 391 S.W.2d 315, 326 (Mo.1965). The testimony gave the jury aid in knowing what to look for when comparing the various handwriting samples. The defendant cites Galovich v. Hertz Corporation, 513 S.W.2d 325 (Mo.1974), to support his argument that because the expert qualified his opinion he should have been disqualified as an expert. That case is not supportive of this argument since the court in Galovich found that the use of the term “suspicious” in an answer of an expert did not render that testimony inadmissible. The court found the use of the word, suspicious, in light of the whole testimony of the expert, was an expression of his opinion, based upon his knowledge as a physician. Galovich v. Hertz Corporation, supra at 335. In State v. Granberry, 530 S.W.2d 714 (Mo.App.1975), the expert witness was asked if he could determine the age of a fingerprint. The witness responded that he could give an “educated guess” but in later testimony went on to qualify that answer by stating that he could give an opinion as to whether the prints were fresh or old. On appeal, the admission of this testimony was upheld, “. . . we must examine his testimony as a whole to determine whether the witness intended to express an opinion or a judgment rather than a mere guess.” (Citations omitted). State v. Granberry, supra at 729. The record in this case indicates that the expert was not expressing a mere guess, but was only qualifying his expert observations. After qualifying his answer, the witness went on to give the factual grounds on which he was basing his opinion, that there were consistencies between the samples, and no major' inconsistencies.' Clearly, his answers were not so speculative as to invade the province of the jury. The qualifications placed by the expert on his rebuttal testimony went to the weight of the evidence, not its admissibility. Harp v. Illinois Central R. Co., 370 S.W.2d 387 (Mo.1963); Leathers v. Sikeston Coca-Cola Bottling Co., 286 S.W.2d 393, 396 (Mo.App.1956).

Judgment of conviction is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Billy Lee GASH, Defendant-Appellant.
    No. KCD 29735.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      David M. Doak, Asst. Public Defender, Columbia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals his conviction of assault with the intent to do great bodily harm without malice.

The sufficiency of the evidence to sustain the conviction is not questioned. The defendant and one Mittlestadt had roomed together for some period of time. There was a disagreement concerning payment of rent and conduct of the defendant, and the defendant moved out of the apartment. He returned to the apartment at a later date, an altercation ensued, and defendant left, returning at 4 o’clock in the morning, breaking open a barricaded door and striking Mittlestadt with a hammer.

The defendant challenges the denial of a motion for mistrial for an incident during voir dire examination of the jury and two other instances of a denial by the trial court of a motion for mistrial, one relating to an evidentiary matter and the other to the use of exhibits in the State’s argument.

The jury voir dire incident occurred as follows: The prosecutor asked the venire if any of them knew the defendant. One of the female jurors indicated that the defendant looked familiar and said, “I have a question and I am Mrs. Neunuebel, has the defendant been to Boonville?” Immediately after this response was made, the prosecutor discontinued his questioning and moved to strike the juror. Without comment, the trial court excused her, and she left the courtroom. The defendant, after the court had excused the juror, moved for a mistrial. All of this transpired out of the hearing of the jury but within the courtroom. It appears from the colloquy of counsel and the court that the juror was employed at the state training center in Boonville and that the defendant had at one time been an inmate in the training center. From the circumstances, it is apparent that the juror had no opportunity to communicate to any other member of the jury any knowledge of the defendant by reason of her employment at the Boonville facility, nor does the record indicate that the jury was even aware that the particular juror who was excused was an employee of the training center.

The trial judge is vested with a broad discretion in controlling voir dire examination, and his rulings should not be disturbed unless they clearly and manifestly indicate an abuse of his discretion. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974). In the instant case, the discretion to be exercised by the trial court was to evaluate the effect upon the other veniremen of the comment by Ms. Neunuebel. In State v. Murphy, 533 S.W.2d 716 (Mo.App.1976), a similar situation was presented. A venireman indicated that he had seen the defendant “around” and would rather not serve, indicating he could not give the defendant a fair and impartial trial. The defendant’s motion for a mistrial was denied, and the defendant argued that the venireman’s comments affected the other veniremen adversely. In that case, the court said:

“The trial court is in a much better position than this court to evaluate the effect upon others of a venireman’s voir dire comments, and the handling of the matter must be entrusted largely to its discretion. On the record before us, it has not been demonstrated that the trial court abused its discretion in refusing to grant a mistrial . . . ” State v. Murphy, supra at 718.

That comment is controlling in' this case since there is nothing in this record to indicate that the trial court did not properly evaluate the situation, and there is no showing of prejudice to the defendant.

The second request for a mistrial arose out of the direct testimony of Mittle-stadt when he, somewhat unresponsively, referred to the defendant fighting with another roommate on a different occasion. Defense counsel promptly objected, moved to strike the testimony, moved the court to instruct the jury to disregard the answer, and asked for a mistrial. The court sustained the objection, instructed the jury concerning disregard of the unresponsive answer, and denied the mistrial. This claim is also to be determined under the general rule that the granting of a mistrial is a drastic remedy to be exercised only in extraordinary circumstances, and only where the error is so grievous that the prejudice cannot be removed except by sustaining the motion. State v. Nolan, 423 S.W.2d 815 (Mo.1968). This court’s function is to determine whether as a matter of law a trial court abused its discretion in refusing the mistrial. State v. Nolan, supra. There is nothing in this record to suggest that the reference to a fight with another person had such a prejudicial effect that the court’s prompt direction to disregard was not sufficient to counteract it.

The third instance of a request for a mistrial is almost frivolous. In the course of the prosecuting attorney’s argument, the hammer and photographs of the victim showing his injuries were placed on the rail of the jury box. In chambers, prior to the argument, the court ruled that since the hammer and photographs were admitted as evidence, they could be utilized by the prosecutor in his argument. At the conclusion of his argument, the prosecutor apparently walked away from the jury box leaving the exhibits on the rail. The defendant objected and requested a mistrial. The court directed the prosecutor to remove the hammer from the rail. The prosecutor did so, and the defendant objected to the manner in which the hammer was standing on the counsel table where the prosecutor had placed it, and he again moved for a mistrial. The court commented that the exhibits were in evidence, and the hammer would be visible to the jury no matter where it was placed on the counsel table. It is clear under the law of this state that demonstrating properly admitted exhibits before the jury does not constitute error. State v. Murray, 280 S.W.2d 809 (Mo.1955); State v. Miller, 542 S.W.2d 322 (Mo.App.1976). Cases involving the exhibiting to the jury of objects or evidence which have not been admitted or have been improperly admitted have no bearing on the issue in this case. There is no indication that the exhibits were used in an inflammatory manner. The hammer used in the assault was simply being demonstrated to the jury by the prosecutor for the purpose of showing the necessary intent to do great bodily harm by commenting upon the nature of the weapon used in the attack.

Judgment and convicted affirmed.

All concur.