author: GANT, Judge.

text:
    Murlin PHILLIPS and MFA Insurance Company, Appellants, v. Mason ROBINSON, Appellee.
    No. 74-104.
    Court of Appeals of Kentucky.
    Dec. 17, 1976.
    Discretionary Review Granted March 2, 1977.

      R. Scott Plain, Owensboro, E. Lambert Farmer, Jr., Henderson, for appellants.
    William L. Sullivan, Henderson, for ap-pellee.
    Before GANT, MILLER and VANCE, JJ.
   GANT, Judge.

The facts of this case are both uncontested and unbelievable. On Saturday, November 14, 1971, the Appellee, Mason Robinson, had attended a wedding party at the Sportsman’s Club located on Kentucky Highway 416 in Henderson County, Kentucky. At approximately 11 p. m. the party broke up and a group which included the Appellee remained at the Sportsman’s Club. Sometime after midnight, on the early morning of November 14, 1971, and after consuming four highballs, the Appellee, according to his testimony, needed to relieve himself but the rest room was occupied and the Appellee went into a vacant field next door for the purpose of relieving himself. He gave his car keys to his wife, telling her he thought he would walk home, and walked across the vacant field for the purpose which he had stated. After the Appel-lee had been gone some five to ten minutes, his wife asked assistance in locating the Appellee and contacted the Appellant, Mur-lin Phillips, and a passenger in the Phillips vehicle and asked their assistance in locating her husband. The Appellant Phillips then drove at a slow rate of speed through the field, with his headlights on and in working order, searching for the Appellee and in doing so ran over the Appellee while the latter was in a half-squatting position in the process of relieving himself. Apparently noticing that something had happened, Appellant-driver then backed over the Appellee.

In spite of the apparent humor in this bizarre set of facts, the Appellee suffered damages occasioning medical expense in the amount of $1,690.85 and loss of wages in the amount of $5,760.00.

This action was brought by the Appellee against Murlin Phillips, the driver of the car which struck him in the sagebrush field, and against MFA Insurance Co., with which company the Appellee had a policy covering damages occasioned by an uninsured motorist. In the complaint in this action, the Appellee sued the Appellant-driver for $50,-000.00 and the Appellant-insurance company for $20,000.00, the action against the driver being based in tort and the action against the insurance company being based upon his contract of insurance covering an uninsured vehicle as defined by KRS 304.-20-020.

Appellants ascribe four errors to the trial court which we will discuss in turn.

The first error urged by the Appellants is that the trial court failed to direct a verdict on motions appropriately made by the Appellants during the course of trial concerning the contributory negligence of the Appellee under the circumstances above described. Appellants quite frankly admit that they “have found no cases decided by the Court of Appeals based upon facts similar to those in this case.” We doubt seriously if there has ever been or will be a case with facts similar to the instant case but in those cases cited by the Appellants the duties imposed upon the pedestrian related to duties coextensive with their use of a travelled way, such as a road, thoroughfare, intersection, etc. In the instant case, the Appellee was in a vacant field, with sagebrush up to his waist, and the duties imposed by law upon a person in a similar position would hardly be comparable to those duties imposed upon the user of a thoroughfare. It is the opinion of the court that there was sufficient evidence to warrant the submission of the question of contributory negligence to the jury.

The second ground urged by the Appellants is that the Trial Court committed reversible error in refusing to permit the attorney for the defendant and Appellant, Murlin Phillips, to propound questions to a witness for the insurance company. Although the court might feel that this was a rather technical use of the lower court’s discretion, it was not such an abuse thereof as to warrant reversing this case.

The third ground for reversal which was used by the Appellant is that the Trial Court committed prejudicial and reversible error in its instructions to the jury, and particularly in its instructions No. IV and No. V. The gravamen of those instructions is as follows:

“If your award does not exceed the sum of $11,000.00, then all of such award shall be in favor of the plaintiff and jointly and severally against the defendants, Murlin Phillips and M.F.A. Insurance Company, and any portion of your award in excess of $11,000.00, if such award should exceed such sum, shall be in favor of the plaintiff and against the defendant, Murlin Phillips, only. Should your award be $11,000.00 or less, the court will give credit to M.F.A. Insurance Company for the $1,000.00 previously paid:

You are instructed to return your verdict in one of the following forms:

(1) “We, the jury, find for the plaintiff, Mason Robinson, jointly and severally against the defendants, Murlin Phillips and M.F.A. Insurance Company and award him damages as follows: etc.”

(2) “We, the jury, find for the plaintiff, Mason Robinson, jointly and severally against the defendants, Murlin Phillips and M.F.A. Insurance Company and award him damages as follows: etc.”

In addition to these instructions, the court furnished to the jury form verdicts which contained exactly the same language as above indicated, permitting the jury to find the Appellant-driver and the Appellant-insurance company “jointly and severally” liable to the plaintiff.

Upon the trial of this case, the jury awarded medical expenses in the amount of $1,690.85, lost wages in the amount of $5,760.00, $3,000.00 for permanent impairment of earning power and $549.15 for pain and suffering, for a total award of $11,-000.00 against both of the Appellants as hereinabove set out.

KRS 304.20-020 provides, by its own language, “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . ”. Thus we see that the purpose of uninsured vehicle coverage is to insure “against loss resulting from liability imposed by law” and no special contract is created which would circumvent legal liability on the part of the owner or operator of the uninsured motor vehicle.

The two cases with which the court is most concerned in its consideration of the facts of this case are Wheeler v. Creekmore et al., Ky., 469 S.W.2d 559 (1971) and the case of Puckett et al. v. Liberty Mutual Insurance Company, Ky., 477 S.W.2d 811 (1971). In the Wheeler case, the old Court of Appeals (and I hope our learned brothers on the Supreme Court will understand and not resent the use of the word “old”) held that in an action involving the insurance company under the uninsured vehicle coverage the Trial Court should permit the plaintiff to disclose to the jury the fact that the insurance company was a party and its counsel present in court where the uninsured motorist carrier elects to participate actively in the trial. The Puckett case went even further and permitted an action against the uninsured vehicle coverage carrier even where the uninsured motorist was a non-resident who is not amenable to process in this State. The Puckett case also stated that this action may be maintained against the insurance company without judgment previously having been obtained against the uninsured motorist.

This court notes that in neither of these cases nor in any of the other cited cases in Kentucky is there any holding that the amount of coverage is subject to proof in the presence of the jury. Nor is there any holding which would permit judgment against the insurance carrier without first determining that there was, in fact, “liability imposed by law” on the part of the uninsured owner or operator of the motor vehicle. While Puckett made it possible for the carrier to be sued without first obtaining a judgment against the uninsured motorist, his liability would certainly have to be established in the action against the insurance carrier. Further, we see no validity based upon any legal premise which would permit the disclosure of the amount of insurance to the jury. This disclosure constitutes an open invitation to the jury to fix the damages at the amount of the policy, as was clearly done here.

It is the holding of this court that the instruction permitting the jury to find the driver and the insurance company “jointly and severally” liable is fatally defective and that the sole province of the jury should be to determine the liability of the driver whether he is actually before the court or not. The question of the method of payment shall be handled in the judgment, by the court, and is not the province of the jury.

The fourth ground urged for reversal was an affidavit setting out the statement by one of the jurors to the effect that the jury figured that both the Appellee and Appellant-driver were guilty of negligence but that they figured that he had paid for his insurance and was thereby entitled to recover. The Trial Court excluded this affidavit on a Motion for New Trial but a short perusal of the verdict herein makes it manifestly clear that such was the consideration of the jury. In spite of the best efforts of some attorneys to avoid such a catastrophe, intelligent people do serve on juries and in this case, where the policy limits were fixed at $11,000.00, the jury awarded $549.15 for pain and suffering in order to round out their award to an even $11,000.00, coincidentally the amount of the policy.

It is the opinion of this court that the instructions complained of by the Appellant permitting the jury to find the defendant-driver and the defendant-insurance company jointly and severally liable and perpetuating this error in the form verdicts was clearly in error. Further, such instructions even permitted the attorney for the plaintiff to argue in his final argument such phrases as “. . . if your judgment exceeds $11,000.00 . . . then the rest of it is against Mert, individually. We don’t want that.” Or, “He paid the premium and they took his premium to protect himself if he was injured by someone who did not have insurance. His own insurance now, he bought and paid for it and this is exactly what happened.” While these statements were not objected to by the Appellants, we think that the instruction and the disclosures of the amount of the policy provided an open door through which the plaintiff obviously walked.

While this court will concur with the holdings of the old Court of Appeals in the Puckett and Wheeler cases, above cited, we would place limits upon the trial of those cases. First, it is our opinion that the fact that the tortfeasor is uninsured and the amount of the insurance coverage can be proved by deposition, affidavit, stipulation or in camera hearings. We do not feel that this is a proper subject for the jury.

Second, we feel that it must be made obvious to the jury that recovery against any defendant insurance company shall be predicated first by a finding that the uninsured motorist was, in fact, at fault. In addition, we feel that too often jurors are required to arrive at verdicts without being advised of the law in the case and would suggest that upon retrial of this cause the following instruction be given, to-wit:

“The defendant MFA Insurance Company is a party to this action by virtue of a policy of insurance imposing liability upon the company to the extent of its policy limits if, and only if, the jury determines that the damage to the plaintiff, if any, was the sole and proximate result of the negligence of the defendant, Murlin Phillips, as hereinabove set out. The fact of insurance shall in no way be considered by the jury in the determination of fault or damages in this case.

Third, the apportionment of any damages between the uninsured motorist and the insured motorist insurance company shall be performed by the court in its judgment after the verdict.

We would refer to the case of Barry v. Keith, Ky., 474 S.W.2d 876 (1971) for other conditions which should pertain whether the insurance carrier is an intervenor or a co-defendant.

For the reasons above stated, this case is reversed.

All concur.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    Lynn BOWLIN, Appellant, v. Charles THOMAS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 21, 1977.

      John J. Slattery, Jr., Louisville, John A. Gregory, Jr., Hughes & Gregory, Murray, for appellant.
    F. C. Bryan, Mount Sterling, Hunter B. Whitesell, Johnson & Whitesell, Fulton, for appellees.
    Before HAYES, LESTER and PARK, JJ.
   PARK, Judge.

The plaintiff-appellant, Lynn Bowlin, brought suit in the Fulton Circuit Court against the defendants-appellees, the Fulton City Board of Education, the individual members of the board, and the superintendent of the Fulton City Schools. Bowlin claimed that the school board wrongfully failed to renew his teaching contract in the Fulton City School System for the 1974-75 school year. From a judgment dismissing his complaint, Bowlin appeals.

The case was initially submitted to the circuit court upon a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. However, the parties filed exhibits and affidavits in support of their respective positions. Consequently, the motion to dismiss should be treated as a motion for summary judgment. CR 12.02. In reviewing the action of the circuit court, all doubts must be resolved in favor of Bowlin.

Bowlin was employed as a teacher in the Fulton City School System for the 1973-74 school year. Under his written contract with the school board, Bowlin was to teach five classes, including one designated as a planning period. During the 1973-74 school year, Bowlin received a salary of $5,376.00, or eighty per cent of the base salary of $6,720.00 per year. Not being eligible for a continuing contract pursuant to KRS 161.-740, Bowlin was employed under a limited contract.

With respect to re-employment of nontenured teachers under limited contracts, KRS 161.750(2) provided:

“Any teacher employed under a limited contract * * * shall at the expiration of such limited contract be deemed re-employed * * * for the succeeding school year at the same salary plus any increment or decrease as provided by the salary schedule, unless the employing board shall give such teacher written notice on or before the fifteenth day of May of its intention not to re-employ him; upon request by the teacher, such written notice shall contain the specific reason or reasons why the teacher is not being reemployed. * * * ”

Prior to May 13, 1974, the school superintendent verbally informed Bowlin that his salary would be reduced to seventy per cent of base salary by the elimination of the planning period. Bowlin told the school superintendent that he could not accept reemployment unless he received the same pay as received the prior year.

On May 14, 1974, the school superintendent wrote Bowlin a letter which stated:

“The Fulton City Board of Education met May 13,1974 and instructed me to inform you, that due to loss of students which leads to a loss of revenue, your time will be cut from .8 per day to .7 per day. “At the present time we are using several teachers- over our allotment by the State Department of Education, and this means that we will not replace some teachers who are leaving the Fulton City School System.
“Since you feel that you can not work less than .8 of a day which you indicated on your application form for re-employment, the Fulton City Board of Education wishes to enform [sic] you that it can not renew your contract for the school year of 1974-75, due to the above reasons.”

Bowlin asserts that the reasons given in the school superintendent’s letter are false. Specifically, Bowlin says that there was no loss of students which led to a decrease in revenue necessitating a reduction in the number of teachers in the Fulton City School System.

At the onset, Bowlin is met with the argument that he never made a request to the board that he be given the specific reasons for his not being re-employed. This argument by the defendants-appellees is without merit. Bowlin was not required to go through thé useless act of requesting the board to give him specific reasons for his not being re-employed when the board had already stated its reasons in the letter of May 14, 1974.

It is Bowlin’s position that he is entitled to a hearing in circuit court in order to prove the falsity of the reasons given in the letter of May 14,1974. If the reasons given for not re-employing him were false, Bow-lin argues that the board acted arbitrarily in failing to re-employ him. Because the board’s actions were arbitrary, Bowlin asserts that he is entitled to a judgment reinstating him as a teacher in the Fulton City School System.

Prior to 1970, there was no requirement that a school board give any reasons in its notice that it was not re-employing a nontenured teacher. In that year, the statute was amended by adding the following provision:

“Upon request by the teacher, such written notice shall contain the specific reason or reasons why the teacher is not being reemployed.’’ 1970 Kentucky Acts, Chapter 169 § 1.

This amendment clearly requires a statement, if requested, from the school board to the non-tenured teacher giving the reasons why he is not being re-employed. However, the important question is whether the teacher has a right to contest the reasons given by the school board for not re-employing the teacher.

If Bowlin had been a tenured teacher serving under a continuing contract, the school board could have terminated his contract only for certain statutory causes. A tenured teacher has the right to contest the truth of the grounds alleged for termination in a hearing before the school board and, if unsuccessful, in a trial de novo before the circuit court. KRS 161.790; Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). Bowlin contends that KRS 161.750 as amended in 1970 grants the non-tenured teacher a right to a circuit court hearing to contest the reasons given for failing to re-employ him. This would place the non-tenured teacher in almost the same position occupied by a tenured teacher under KRS 161.790. The language of the 1970 amendment does not expressly so provide. Nor does the language of the 1970 amendment to KRS 161.-750 justify a strained construction of the statute based upon the assumption that the legislature intended to raise the rights of the non-tenured teacher to the level of the tenured teacher.

Bowlin relies upon the decision of the Illinois Supreme Court in Donahoo v. Board of Education of School District No. 303, 413 Ill. 422, 109 N.E.2d 787 (1952). The Illinois statute under consideration provided:

“Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty (60) days before the end of such period.”

The local school board notified the teacher in question that his contract would not be renewed, but the notice contained no reasons for the teacher’s dismissal. The Illinois Supreme Court held that the statute was mandatory and that the notice to the teacher that his contract would not be renewed was ineffective unless the notice contained a statement of reasons. The Illinois court did not hold that a teacher would have the right to contest the reasons given by the board of education. The Illinois court did no more than hold that a dismissal was ineffective if the board failed to give any specific reasons for its action.

The Donahoo ease can be easily distinguished. First, the language of the Kentucky and Illinois statutes is substantially different. Although KRS 161.750 was subsequently amended by the 1976 legislature, in 1974 a notice of a board’s intention not to re-employ a non-tenured teacher was not required to be accompanied by a statement of reasons. A statement of reasons was required only if requested by the teacher. Second, the board did in fact provide Bow-lin with a statement of reasons for his non re-employment.

Under the Fourteenth Amendment to the Constitution of the United States, Bowlin does not have a constitutional right to a statement of the reasons for the school board’s decision not to re-hire him for the 1974-75 school year or a right to a hearing to contest that decision. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In the Roth case, the Supreme Court held that Wisconsin State University — Oshkosh did not have to provide a non-tenured professor with reasons and a hearing before deciding not to re-hire him for another year.

Since Bowlin’s complaint was dismissed by summary judgment, it must be assumed that the reasons given by the board in the letter of May 14, 1974, were in fact false. However, it does not follow that any constitutionally protected interest of Bowlin was impaired solely because the reasons given in the letter of May 14, 1974, were incorrect. In Bishop v. Wood, 425 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684, (1976), the Supreme Court held that the Fourteenth Amendment did not grant a North Carolina policeman a right to a hearing to determine the sufficiency of the reasons given for his discharge. Under the city ordinance governing the policeman’s employment, the policeman had no right to continued employment. His employment could be terminated at any time so long as he was given a written notice setting forth the reasons for his discharge. The Supreme Court held that it was immaterial whether the city manager was mistaken in the reasons given for the policeman’s discharge or whether the city manager deliberately lied. As the policeman’s employment was terminable at will, there was no constitutional requirement that the reasons given for his termination be accurate or correct.

Citing certain language from the opinion in Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973), Bowlin asserts that the school board could refuse to re-employ him only upon a statement of reasons “showing the exercise of a fair discretion.” From this statement, Bowlin argues that he should be entitled to a hearing in circuit court in order that he may prove that the stated reasons are false and, therefore, not the exercise of “fair discretion.” However, the language quoted from Johnson v. Dixon must not be quoted out of context. In that case, the Court of Appeals held that the school board could not base its decision not to re-employ a non-tenured teacher solely on the ground that the teacher was not a native of Hart County. A classification based solely on place of birth was held to be “inherently suspect” and therefore unconstitutional unless the school board could show “a compelling governmental interest” for the rule. The Court of Appeals went on to state that the non-tenured teacher was not automatically entitled to a judgment that he be re-employed. As a non-tenured teacher, his future employment would continue to be subject to determination “by a fair, non-discriminatory decision of the board of education.” When the Court of Appeals referred to the exercise of a “fair discretion” by the board of education, the Court of Appeals was only saying that re-employment could not be denied “solely on the basis of an unconstitutionally discriminatory classification.”

There is no allegation in Bowlin’s complaint nor any suggestion in the brief or oral argument that Bowlin’s employment was terminated because of some constitutionally prohibited reason. The decision not to re-employ Bowlin was not based upon Bowlin’s race, sex, religion or place of birth. See, e. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Sugarman v. Dougall, 413 U.S. 364, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Rawlings v. Butler, Ky., 290 S.W.2d 801, 60 A.L.R.2d 285 (1956); Johnson v. Dixon, supra. Nor is there any allegation that the failure to re-employ Bowlin was based upon his exercise of the right of free speech or because of his political activities. See, e. g., Eirod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In the absence of any allegation that Bowlin’s termination was based upon an “inherently suspect” classification, he is not entitled to a hearing at which the school board could be required to show “a compelling governmental interest” for failing to re-employ Bowlin.

Bowlin argues that the board’s failure to re-hire him constituted arbitrary action in violation of section two of the Kentucky Constitution. Bowlin cites the decision of the Court of Appeals in Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970), which held that the work assignment given a teacher by a school board could be arbitrary in violation of section two of the Kentucky Constitution. However, in that case, the school board had already re-employed all of the teachers in question before making the work assignments which were deemed arbitrary. In this case, the school board made the decision not to re-employ Bowlin. Bow-lin’s situation is analogous to that of the Wisconsin professor in Board of Regents v. Roth, supra. So long as it is not based upon a constitutionally impermissible reason, a decision to terminate the employment of a public officer or employee does not raise an issue under section two of the Kentucky Constitution. See Johnson v. Laffoon, 257 Ky. 156, 77 S.W.2d 345 (1935).

Bowlin also asserts that the attempt of the school board to reduce his annual salary was in violation of KRS 161.760(1) which provides:

“Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, stating the best estimate as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting the entire district, or unless there is a reduction or elimination of extra service, administrative and/or supervisory duties and responsibilities of the teacher or other certified personnel. Upon requests by the teacher, any reduction or elimination of extra service, administrative and/or supervisory duties and responsibilities shall be accompanied by a written statement of the specific reason or reasons for such reduction or elimination. * * * ”

Bowlin asserts that the reduction in his salary was not a part of a uniform plan affecting the entire district and that there was to be no real reduction in his teaching duties and responsibilities.

The appellees contend that KRS 161.760 only applies to tenured teachers and has no application to a non-tenured teacher holding only a limited contract. Bowlin argues that KRS 161.760 applies to both tenured and non-tenured teachers. Neither party is wholly correct. If the school board had re-employed Bowlin for the 1974-75 school year, then he would have been entitled to the protection of KRS 161.760. See Snapp v. Deskins, supra. If Bowlin had not received a written notice prior to May 15th that he would not be re-employed, then he would have had a contract valid for the succeeding school year as provided by KRS 161.750(2). Having a contract valid for the 1974-75 school year, Bowlin’s salary could not have been reduced except pursuant to KRS 161.760. However, the school board did effectively terminate Bowlin’s employment in conformity with KRS 161.750(2). Not having a valid contract for the succeeding school year, Bowlin was not entitled to the protections of KRS 161.760.

This court concludes that the circuit court did not err in dismissing Bowlin’s complaint. The judgment is affirmed.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Gerald H. GUELKER, Appellant.
    No. 59305.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.
    Rehearing Denied Jan. 10, 1977.

      Norman S. London, Lawrence J. Fleming, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

Defendant, charged with operating a motor vehicle without the permission of its owner (§ 560.175, subsection 1), was found guilty by a jury and sentenced to imprisonment for three years. He appealed to the Court of Appeals, St. Louis district, which reversed and ordered him discharged. On application of the State, we ordered the case transferred to this court. We affirm.

Defendant contends that the trial court erred in overruling his motion for judgment of acquittal filed at the close of all the evidence, because there was no evidence that he operated the motor vehicle without permission of its owner. More particularly, defendant’s contention is that there was no such evidence, because Donald V. Howard, alleged owner of the vehicle and the only witness on the issue of ownership and permission vel non, testified to facts which show that he was not the “owner” at the time defendant is alleged to have operated the vehicle unlawfully.

Defendant’s posttrial motions were a motion for judgment of acquittal in accordance with his trial motion for judgment of acquittal or, in the alternative, for a new trial. He calls attention to the fact that these are separate motions and that his motion for new trial does not assign as error either the overruling of his trial motion for judgment of acquittal or the insufficiency of the evidence to sustain conviction. He argues that since the evidence is not sufficient to sustain his conviction and his motion for judgment of acquittal should have been sustained for that reason, the only course open to the court is to reverse the judgment and order him discharged; that a new trial may not be ordered upon reversal in accordance with his motion for judgment of acquittal, because he asked only for judgment of acquittal and not for a new trial on the ground of insufficiency of the evidence; that to remand the case for a new trial on this ground would be to subject him to being twice put in jeopardy for the same offense in violation of rights guaranteed by the Fifth Amendment of the United States Constitution.

In State v. Caldwell, 434 S.W.2d 571, 574[2] (Mo.1968), the court held that a claim of error in overruling a motion for judgment of acquittal is required by Rule 27.-20(a) to be raised in a motion for new trial in order for it to be preserved for appellate review; that it is not an error or matter required by Rule 28.02 to be considered although not preserved for review.

The contention that the court erred in overruling defendant’s motion for judgment of acquittal, admittedly not assigned as error in his motion for new trial, is not preserved for appellate review. State v. McClunie, 438 S.W.2d 267, 268[1] (Mo.1969); State v. Nolan, 423 S.W.2d 815 (Mo.1968). However, we may, and do, consider the contention under Rule 27.20(c). State v. McClunie, supra.

Patrolman James H. Wisecarver of the St. Louis Police Department testified that on July 5, 1973, he and his partner, Patrolman Theodis Johnson, saw the defendant driving a 1972 Chevrolet station wagon in a careless manner in downtown St. Louis near the Mansion House where defendant stopped; that in the course of discussing this offense with defendant, he (the officer) secured the. vehicle’s identification number (No. 1N45S2C 152625), had it checked, and received information that it had been stolen; that the automobile was then delivered to the police garage. Patrolman Johnson corroborated Patrolman Wisecarver’s testimony.

Donald V. Howard of Dallas, Texas, testified that in April, 1972, he bought the motor vehicle involved in this case, a 1972 model Chevrolet station wagon bearing identification number 1N45S2C 152625, and that he is its owner; that he had possession of the vehicle from the date of the purchase until about January 3, 1973, when it disappeared from the driveway at his home where he had left it locked the night before; that he reported the theft to the police that morning; that he did not see the automobile again until July, 1973, when, in response to information that it was being held for him in the police garage in St. Louis, he went there, identified it as his, took possession, drove it back to Dallas, and has had possession since that date; that he does not know and did not give defendant permission to drive the automobile. Mr. Howard further testified that at the time of his purchase he registered the vehicle in his name and received a State of Texas certificate of registration; that he financed his purchase with the Republic National Bank of Dallas and gave the bank a mortgage on the vehicle; that the certificate of title to the vehicle was deposited with the bank when the mortgage was executed.

We quote those portions of Mr. Howard’s testimony, developed in cross-examination, on which defendant relies as evidence that Mr. Howard was not the owner on July 5, 1973:

“Q. Was that vehicle insured?
A. Yes.
Q. Did it have — strike that- — was a claim made relative to the loss of that vehicle?
A. I did not make a claim but the insurance company approached me to settle it.
Q. And, when was that dope, sir?
A. Actually after the recovery of the car.
Q. And during the six months between January and July you had not been reimbursed or compensated in any way, shape or form by any insurance company?
A. No, I had not.
⅜ * ⅛: ⅜ sf: ⅜
Q. Do you know if the mortgage holder was reimbursed for the loss of that vehicle?
A. Yes, * * * [⅛] was.
Q. Do you know when that took place, sir?
A. No, I do not.
Q. Was that before July, however?
A. Yes.
Q. Do you know approximately how long before July?
A. No, sir, I do not.
Q. And, was the title deposited with the mortgage holder of that vehicle when you took out the mortgage on that car?
A. Yes.
Q. And, was it endorsed over to them for the purpose of their being reimbursed by the insurance company or was it endorsed to them at the time you took out the loan?
A. They received the title at the time of purchase.
Q. Which would have been sometime in ’72?
A. Yes.
Q. And, did you assign that title to them when you took out the loan?
A. Yes.
Q. And, do you know, sir, did they then assign that title to the insurance company when they made their settlement with the insurance company?
A. Yes, they did.
Q. And, that was prior to July of 1973?
A. Yes.
* * * * ⅜ *
Q. * * * Mr. Howard, do you know the name of the insurance company involved, sir?
A. No, I do not.
Q. That was handled by the bank that you have referred to?
A. Yes, it was.
Q. Did you then repurchase the car after you found it here in St. Louis or make some arrangements for the repurchase?
A. The insurance company gave me that option and I did repurchase the car.
Q. And, when did you do that, sir?
A. I would say approximately 60 days ago * * * [on or about October 18, 1973] * * *.
Q. But, then some 60 days ago or so * * * sometime then in October be fair to say that you made arrangements to repurchase the vehicle from the insurance company?
A. I believe that would be close.
Q. All right. And, did they then deliver a certificate of title to you at the time that you repurchased it or did you finance it again at the time of repurchase?
A. They delivered it to my bank where I did finance the car.
Q. All right. And, that would have been, again, probably sometime on October or thereabouts of 1973?
A. Yes.”

Defendant did not present any evidence.

After the close of the State’s case, the court, on motion of the State claiming “surprise” and over the objection of defendant, permitted the State to reopen its case for the purpose of rebutting portions of this cross-examination testimony of Mr. Howard. The purpose of this rebuttal evidence was said to be to explain the “assignment” of title to the bank and to the insurance company and Mr. Howard’s “repurchase” of the automobile from the insurance company; however, it was not available to the State before final submission of the case to the jury. In its stead, the parties stipulated to what this evidence would show, with defendant preserving his objections to the court’s ruling permitting reopening of the case as well as to the admissibility of the evidence. The stipulation, communicated to the jury before final submission, is that evidence on behalf of the state “would show that in April of 1972 there was registered with the State of Texas in the name of Donald V. Howard a 1972 Chevrolet station wagon, Kingswood Estate Wagon, with the V.I.N. number 1N45S2C 152525. And that no change thereafter in the registration of that automobile shows on the records of the State of Texas.”

In determining the sufficiency of evidence to withstand a motion for judgment of acquittal, we consider only the evidence favorable to the verdict and any favorable inferences which may be drawn therefrom, and evidence to the contrary is rejected. State v. Townsend, 327 S.W.2d 886, 887[3] (Mo.1959); State v. Morris, 460 S.W.2d 624, 625 (Mo.1970).

In State v. Curry, 473 S.W.2d 747, 749[6] (Mo.1971), a case involving a conviction for operating a motor vehicle without the owner’s consent, the court held that “[a]ny competent evidence may be introduced to establish the fact of ownership of personal property. . . . Oral testimony that a witness is the owner of an automobile is competent, primary evidence of the fact of ownership.” See also: State v. Townsend, supra, at 888; State v. Morris, supra, at 626-627.

The registration of a motor vehicle in Texas raises a presumption of ownership in the registrant and once established ownership is presumed to continue in the same person until a change is shown. Pioneer Mutual Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202, 204[5] (1944). See also: O’Malley v. Heman Const. Co., 255 Mo. 386, 164 S.W. 565, 566[3] (Mo.1914).

As between the mortgagor of a motor vehicle and his mortgagee or the mortgagee’s assignee, the mortgagor is deemed the owner under Article 6701d, subsection 10(d), Vernon’s Annotated Texas Statutes. This section is identical to § 301.010(31), RSMo 1969. In this connection, the Texas Court of Civil Appeals held in Texas Bank and Trust Co. of Dallas v. Custom Leasing, Inc., 402 S.W.2d 926, 929[3-5] (Tex.Civ.App., 1966) that a chattel mortgage on a motor vehicle is a lien only and title to the vehicle remains in the mortgagor; that the mortgagor retains all rights of ownership. A chattel mortgage does not give the mortgagee any right of possession or control over a vehicle in Texas; nor does the practice in Texas of mortgagees holding the certificate of title to a motor vehicle as additional security, authorized by Article 6687-1, § 32, Vernon’s Annotated Texas Statutes, affect the rights of the mortgagor to possession or control of the vehicle. And it follows, of course, that the mortgagee’s assignment of security instruments (including a certificate of title deposited as security) would give its assignee no more rights in a vehicle than the assignor had.

The evidence, considered in the light of these authorities, leads us to the conclusion that Mr. Howard was on July 5, 1973, the owner of the station wagon defendant was seen driving in St. Louis that day. We so conclude notwithstanding Mr. Howard’s legal conclusions, suggested by cross-examination questions, that he “assigned” the title to his mortgagee who, in turn, “assigned” before July 5, 1973, to the insurer from whom he “repurchased.” Defendant makes much of the fact that Mr. Howard stated that he repurchased the vehicle from the insurer in October, 1973, and draws the conclusion that he, therefore, could not have been the owner on July 5. Mr. Howard’s testimony was sufficient to support a finding that defendant’s operation of the station wagon was without the owner’s permission. The court did not err in overruling the motion for judgment of acquittal.

Two points briefed by defendant are allied and will be considered together. The first is that the court erred in permitting the state to reopen its case to show by Texas records the initial registration of the vehicle in Mr. Howard’s name and no changes in registration thereafter. The second is that the court erred in presenting to the jury the parties’ stipulation of facts.

The trial court has a rather broad discretion as to whether to permit the State to reopen its case and in the circumstances presented here we do not find an abuse of its discretion. The stipulation as to registration is corroborative merely of Mr. Howard’s testimony that he did register the vehicle in his name; and, as to no change in registration thereafter, the stipulation is supportive merely of presumption existing ' that this registration continued to exist absent evidence to the contrary. We find no error by the court respecting these points.

Defendant next contends that the court erred in failing to submit an instruction which required a finding that he intentionally operated the motor vehicle without the owner’s permission.

This case was tried and submitted before the effective date (January 1, 1974) of Missouri Approved Instructions — Criminal (MAI-CR). However, these instructions were published and circulated to the bench and bar, and their use before their effective date encouraged, all with the approval of this court. The instruction used in this case was MAI-CR 7.80, without its optional paragraph “Third” negating the element of intent. The Notes on Use of MAI-CR 7.80 require that this paragraph be included so that the jury will be required to make an additional finding before it may convict, if there is evidence either that the defendant acted in good faith in the honest belief that he had legal title to the vehicle or that he had permission of the owner. However, there was no such evidence in this case. Because the court used the approved instruction, as suggested and authorized, it would have been error to fail to include paragraph “Third,” as required by the Notes on Use, had there been such evidence. Inasmuch as there was not, no error resulted.

Defendant refers to State v. McLarty, 414 S.W.2d 315, 318[5] (Mo.1967) holding that criminal intent is an essential element of the crime proscribed by subsection 1 of § 560.175, and State v. Crawley, 478 S.W.2d 344, 346[3] (Mo.1972) holding that under its facts the verdict directing instruction was required to submit a finding of criminal intent.

We have recognized that this case was tried before the effective date of MAI-CR and note that State v. Crawley, supra, would have mandated the giving of an instruction which required a finding of intent before the jury could convict. However, we do not believe that the failure to require such finding in this case was error prejudicial to the defendant. The instruction given met the requirements of MAI-CR under the facts with which we are presented. There is nothing in this record to indicate that defendant believed he had legal title to the automobile or that he had permission of the owner to drive it. A remand for a new trial would serve no useful purpose, because, under the same facts, the instruction about which defendant complains is now required to be given by Rule 20.02(c).

Defendant next contends that the court erred in refusing to permit him to inspect a transcript of testimony Officer Wisecarver gave to a grand jury. His motion to examine was based on claimed inconsistencies between parts of the officer’s testimony at trial and his police report. The court conducted an in camera inspection of the grand jury testimony and concluded that although there were certain inconsistencies, they related to minor details which would not warrant disclosure.

Defendant was not entitled as a matter of right to examine the grand jury testimony of this witness. The granting or refusal of such request lies in the discretion of the trial court and we will not reverse for refusal, unless there is a clear showing that the court thereby abused its discretion. State v. Cusumano, 372 S.W.2d 860, 867[8-10] (Mo.1963); State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 152-153[4, 5] (1938); Rule 24.24. The bare record does not disclose an abuse of discretion, nor does defendant attempt to demonstrate wherein or why his examination of this testimony was necessary to the ends of justice and for that reason there was an abuse of discretion.

Defendant contends that the court erred in giving instruction No. 3, because the “ * * * instruction, taken as a whole, lessens the [State’s] burden of proof, particularly since it equates ‘reasonable doubt’ to a ‘substantial doubt touching on the defendant’s guilt and not a mere possibility of defendant’s innocence.’ ” In this connection, he cites State v. Davis, 482 S.W.2d 486 (Mo.1972), and relies on an opinion by Seiler, J., concurring in result only (482 S.W.2d at 489) which recognized that the instruction had been approved, but expressed the hope that the burden of proof instruction would be changed to eliminate the language that a doubt to authorize an acquittal should be “a substantial doubt touching the defendant’s guilt and not a mere possibility of his innocence.” This court en bane considered and rejected essentially this same contention in State v. Scott, Mo., 491 S.W.2d 514, 520[11], in March, 1973, before trial began in this case in December, 1973. The trial court did not err in giving the instruction.

Defendant’s last point is that “ * * * ^he court erred in imposing a sentence of three years inasmuch as such sentence was disproportionate to the offense and was based upon improper considerations.”

The jury was unable to agree upon the punishment to be assessed; hence, the court assessed the punishment and sentenced defendant to imprisonment in the penitentiary for the stated number of years and denied probation.

Defendant, recognizing that the sentence imposed is within the limits of § 560.180 (maximum of five years) and should not be adjudged excessive, contends that it was disproportionate because it was “shocking to the moral sense,” and was based upon matters improperly considered by the court. After the judge had imposed sentence he turned to “the question of probation.” After denying probation the judge remarked that this was “not an easy decision”; that he disagreed with defense counsel’s statement that he (the judge) should not consider the fact that defendant was a St. Louis police officer “sworn to uphold * * and to enforce the law * * * not to violate it”; that he (the judge) believed that he should take these facts into consideration as well as the fact that, although defendant did not testify, “ * * * the inference was laid before the jury [by defendant] that * * * police officer [Wise-carver] was - mistaken, that he [Wiseear-ver] took the- wrong number * * '* off the wrong car” and‘that there was “ * * an attempt-. * * * to-impose upon .the jury an indication that this man [defendant] wasn’t operating this automobile, that the police were mistaken, that he was operating some other automobile”; that “I [the judge] regret the necessity of denying probation in a case like this but I feel that if we’re going to enforce the law we’re going to have to make it perfectly clear to law enforcement officials * * * [that] they’re held to a very high duty.”

The quoted remarks of the trial judge demonstrate clearly that the matters taken into consideration were not improper and were being considered only as affecting the decision to deny probation. The record does not support the contention that these considerations affected the sentence and made it “disproportionate” — whatever that word may mean as used here. Defendant contends that these matters considered by the trial court denied him rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, § 2 of the Missouri Constitution, but he does not state or attempt to demonstrate how or in what respect those rights have been denied.

The judgment is affirmed.

All concur.

      . References to sections of the statutes are to RSMo 1969.

      . References to rules are to Supreme Court Rules.

      . This section is essentially the same as a part of § 301.610, RSMo 1969.

      . The approved pattern form for the third paragraph is:
      “(Third, that he did not (drive) (operate) (use) (tamper with) such vehicle in good faith in the honest belief (that he had legal title to the car) (that he had the permission of the owner),)”.

      . See also: State v. Tate, 436 S.W.2d 716, 718-719[3, 4] (Mo.1969).

      .Instruction No. 3 reads as follows:
      “You are further instructed that the indictment contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt.
      “The law presumes the defendant to be innocent and this presumption continues until it has been overcome by evidence which establishes defendant’s guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving defendant’s guilt rests with the State.
      “If, however, this presumption has been overcome by the evidence and the guilt of the defendant established beyond a reasonable doubt, your duty is to convict.
      “If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.”

      . He also cites United States v. Atkins, 487 F.2d 257 (8th Cir. 1973); United States v. Alvero, 470 F.2d 981 (5th Cir. 1972); and United States v. Bridges, 499 F.2d 179 (7th Cir. 1974), neither of which is controlling or persuasive.

      . The burden of proof instruction (MAI-CR 2.20) required to be given effective January 1, 1974, has been changed completely and does not contain the language claimed to effect a lessening of the State’s burden.


author: BARDGETT, Judge.

text:
    Retia TAYLOR, Respondent, v. YELLOW CAB COMPANY, a corporation, Appellant.
    No. 59563.
    Supreme Court of Missouri, En Banc.
    March 14, 1977.

      Price Shoemaker and Thomas R. Summers, St. Joseph, for appellant.
    Martin M. Bauman, St. Joseph, for respondent.
   BARDGETT, Judge.

Appellant, Yellow Cab Company, appealed to the Missouri court of appeals, Kansas City district, from a verdict and judgment in favor of plaintiff and against Yellow Cab of $10,000. The jury also found in favor of the other defendant, Stewart Infra Red Commissary (Stewart).

The principal issue on appeal is whether the trial court erred in failing to modify the verdict-directing instruction as to both defendants and the damage instruction in accordance with MAI 7.01 and notes on use thereof. MAI 7.01 requires the jury to deduct the amount paid to plaintiff by a joint tortfeasor from whatever sum the jury finds to be full damages for plaintiff when, as here, the money paid by Stewart was a “payment in advance” under sec. 490.710, RSMo Supp. 1975, and that statute prohibits the jury from being informed of such payment.

The court of appeals, believing this issue probably presented a conflict between a statute and a Supreme Court rule and, if so, probably involved the rule-making power of this court under Art. V, sec. 5, Mo.Const., requested this court to transfer the case prior to opinion pursuant to Art. V, sec. 10, Mo.Const., and we did so.

On November 6,1973, Retia Taylor was a passenger in a Yellow Cab when it and a truck of defendant Stewart collided injuring Taylor. Subsequently the liability insurance company of Stewart paid Taylor $4,944.37 as an advancement against any settlement or potential judgment in the case. No release or covenant not to sue was given by Taylor. The matter was not settled and Taylor sued both Yellow Cab and Stewart. During the trial, but out of the jury’s hearing, Yellow Cab made a record of the advance payment noted. The jury was not informed of the payment.

The case was submitted to the jury against both defendants. The jury returned its verdict of $10,000 in favor of plaintiff and against Yellow Cab Company alone and in favor of defendant Stewart.

Yellow Cab filed a motion for new trial asking that the verdict against it be set aside and a new trial ordered because, inter alia, the court erred in giving certain instructions, numbers 4, 6, and 8, requested by plaintiff because they were not modified in accordance with MAI 7.01 and the revised notes on use under 7.01.

MAI 7.01 and the notes on use appearing in the bound volume of MAI 2d edition are as follows:

“7.01 Damages — Deduction for Admitted Settlement with Joint Tort-Feasor
After you have determined such sum, you must deduct _ dollars which (name of joint tort-feasor) has paid plaintiff. In the event such payment is equal to or exceeds the amount of plaintiff’s damage then your verdict must be for defendant.
Notes on Use
This addendum is mandatory when a plaintiff or a counterclaiming defendant has made a settlement with one tort-fea-sor on a covenant not to sue or a reserve clause.
When the jury finds that the prior payment is equal to or exceeds plaintiff’s injuries, this instruction requires a ver-diet for defendant. In order to avoid an inconsistency it will be necessary to add to plaintiff’s verdict directing instruction the words ‘for which he has not been fully compensated by (insert name of joint tort-feasor)’ at the end of the paragraph hypothesizing that plaintiff sustained damage.”

The notes on use under MAI 7.01 were revised effective July 1,1973, and appear in the 1976 supplement as follows:

“Notes on Use [Revised]
This addendum is mandatory when a plaintiff or a counterclaiming defendant has received partial payment which the court has determined is allowable as a credit.
Two further modifications are necessary:
Add to the appropriate verdict directing instruction the words ‘for which he has not been fully compensated,’ to the end of the paragraph hypothesizing that damage was sustained. Delete from the appropriate measure of damage instruction the phrase ‘award the plaintiff’ and substitute therefor the word ‘determine.’ ”
Section 490.710, enacted in 1972, provides: “490.710. Advance payment predicated on possible tort liability not admissible in evidence-payment a credit, when-limitation on action starts when 1. No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person, of medical expenses, loss of earnings and other actual out-of-pocket expenses, because of an injury, death claim, property loss or potential claim against any person shall be admissible into evidence as an admission against interest or admission of liability by such party or self-insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event.
2. Any payments made as provided in subsection 1 of this section shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be brought to the attention of the jury.
3. If after an advance payment or partial payment is made as provided in this section, and thereafter it is determined by final judgment of a court of competent jurisdiction that the person is not liable for an amount sufficient to satisfy the advance payment or partial payment, such person or insurer shall have no right of action for the recovery of such payment.
4. The period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder. Laws 1972, p. 1023, sec. 1.”

MAI 7.01 will be referred to as a rule from time to time in this opinion.

At first blush it would appear that the rule and the statute are in conflict — the rule implicitly requiring the prior payment be made known to the jury so that the subject could be instructed on and the statute prohibiting any information from being placed before the jury with reference to the prior payment including any instruction thereon.

The practice in Missouri, both prior to MAI and at the present time, is to put evidence before the jury with respect to any payments received by the plaintiff from a joint tortfeasor as a settlement with that potential defendant and for which plaintiff gave a covenant not to sue that tortfeasor. If the jury finds in favor of the plaintiff and against the remaining defendant who is sued then the jury is.to reduce the sum it finds to be full compensation by the amount of the earlier partial settlement. This results in the plaintiff receiving full but not double damages from the tortfeasors. MAI 7.01 was promulgated as the instruction to be used in such a case and was prepared with knowledge of the existing procedural law on the matter. Since the tortfeasor who made the partial settlement received an agreement that plaintiff would not sue him, that tortfeasor could not be prejudiced by the jury’s knowing he had previously paid plaintiff some sum of money because, not being a party at the time of submission to the jury, he would not be subject to a judgment by the jury. It seems obvious that it is to the advantage of the tortfeasor who is sued to show the prior partial settlement in evidence in order that the judgment against him would be less than if the jury were to award full compensation in that judgment.

Partial settlement settlement with a joint tortfeasor, usually represented by a covenant not to sue him, is not an advance payment or partial payment as those terms are used in sec. 490.710. The ordinary covenant not to sue constitutes a complete relinquishment of the plaintiff’s claim against one tortfeasor. The advance payment or partial payment referred to in 490.710 does not cause a relinquishment of the plaintiff’s claim against the tortfeasor making the payment but, to the contrary, envisages the continued existence of that claim and the continuing right of the plaintiff to sue the party making such an advance payment.

It seems obvious the enactment of sec. 490.710 serves the purpose of permitting a defendant or his insurer to assist an injured person monetarily during the pend-ency of a claim and also of facilitating the final settlement of damage claims without suit by removing a very real concern insurance companies have about making a partial payment without extinguishing the claim. The concern was that if the claim was not finally settled and suit was filed the plaintiff might be allowed to put the partial payment in evidence before the jury and thereby cause the jury to think that the defendant must have been at fault since otherwise he would not have paid anything at all prior to suit. And it seems reasonable to assume that insurance companies would not be willing to make advance payments if they were to be confronted with evidence of such payments being admitted before the jury and perhaps then used by the jury against the insured.

The instant case is a good example of the wisdom exemplified by the provisions of sec. 490.710. It was the codefendant Yellow Cab that wanted the jury to be told through the use of MAI 7.01 that the other defendant Stewart, who was still in the case and whose liability the jury would also pass on, had previously paid $4,944.37 to plaintiff. If the only purpose of putting the payment in advance on the record was to allow for the reduction of the verdict by that amount, then that result is reached by simply advising the court of the prior payment and the court will reduce the verdict accordingly. But if one of the reasons for putting the advance payment into evidence is to instruct that the codefendant paid plaintiff a sum of money and thereby imply that “if he wasn’t negligent he wouldn’t have paid but because he paid he is the negligent party”, then it is being used for an improper purpose. This is precisely what the legislature sought to avoid by the evidentiary restrictions found in sec. 490.-710.

Thus, it is seen that where A has a claim for damages against joint tortfeasors B and C and A settles with B and gives a covenant not to sue, B cannot be prejudiced by the jury knowing in the suit of A vs. C that B paid A a sum of money. But where B makes an advance payment to A and the claim against B is not extinguished and A sues B and C, the jury’s knowledge that B made an advance payment to A may well operate to the prejudice of B and to the advantage of C.

MAI 7.01 was not intended to be applicable in payment in advance cases where the party making the advance payment is a party to the suit whose responsibility for the injuries to plaintiff is to be determined by the jury.

The revised notes on use to MAI 7.01 contain broader language than the notes on use to MAI 7.01 in the bound volume of MAI 2d edition. Appellant Yellow Cab argues these revised notes on use include within their scope payments in advance made by a defendant, such as Stewart in the instant case, even though Stewart is a participating defendant in the trial of the case. Unfortunately, the language of the revised notes on use is arguably broad enough to support Yellow Cab’s position. The court’s committee on civil jury instructions will be advised of this ambiguity in order that an appropriate note can be drawn to exclude payments in advance under sec. 490.710 from MAI 7.01.

The court holds that evidence of advance payments or partial payments made pursuant to sec. 490.710 is not to be admitted in evidence before a jury and is not the subject of an MAI 7.01 modification. Such payments should be made a matter of record in the trial court before the judge alone and the trial court must then act in accordance with sec. 490.710, subd. 2, and reduce the verdict by the amount of such payments and enter up judgment in the reduced sum. The court did not err in failing to modify the instruction in accordance with MAI 7.01 and the notes on use thereunder.

There is no conflict between sec. 490.710 and MAI 7.01 and the notes on use thereunder and therefore there is no need to address hypothetical issues relating to the court’s rule-making authority under Art. V, sec. 5, Mo.Const.

Respondent Taylor contends the advance payments should not be allowed as a credit against the instant verdict because sec. 490.710, subd. 3, provides that the party or his insurer who makes the advance payment shall have no right of action for the recovery thereof even though the judgment rendered against such party is for less than the advance payment or in favor of the party making the payment. Taylor argues that since Stewart could not recover back from respondent the $4,944.37 it paid in advance, even though the verdict was in Stewart’s favor, the appellant Yellow Cab, having paid nothing in advance should not be allowed a credit for the sum paid by Stewart.

Section 490.710, subd. 2, provides, “Any payments made as provided in subsection 1 of this section shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. .” (Emphasis added.) This subsection requires that the advance payments made by a joint tortfeasor be deducted from any final judgment rendered in favor of the person who received the advance payments on account of the injuries sustained. Its application is not restricted only to judgments against the party who made the advance payment but rather operates so as to reduce the verdict or judgment rendered in favor of the injured person who received the payments by the amount of the advance payments. In so doing the statute merely follows the general law that an injured party may have but one satisfaction for his injuries. Vinson v. East Texas Motor Freight Lines, 280 S.W.2d 124, 133 (Mo. 1955); Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825, 833 (1938).

The provision of subdivision 3 of the statute denying a cause of action to the party making advance payments against the party receiving them simply protects the injured party from becoming liable for repayment to the payer should the payer prevail in the trial. The law does not require advance payments but leaves it to the potential defendant or his insurance carrier to decide whether or not to offer them. The risk of having paid too much is left with the party making the payment. This leaves the injured party free to expend those funds without fear of being required to repay them later should he not obtain a judgment for more than the advance payments. It also prevents an injured party from being coerced into a meager settlement out of fear of having to repay sums previously advanced.

In short, the prohibition against a suit for repayment is part of the legislative scheme to encourage the use of advance payments to the end that claims will be settled rather than litigated.

The court holds that the advance payment of $4,944.37 should have been deducted from the verdict of $10,000 and judgment entered for the difference in favor of plaintiff and against defendant Yellow Cab Co.

Next Yellow Cab claims the trial court erred in refusing to grant a new trial on the ground that Yellow Cab, subsequent to the submission of the case to the jury, discovered new evidence. It was asserted that this evidence was relevant and material to the issues in this cause. This new evidence was submitted to the court by way of an affidavit along with Yellow Cab’s motion for new trial.

The gist of this evidence was that the evening before the case went to the jury, January 7, 1975, the president of Yellow Cab learned that one of the company’s employees had been an eyewitness to the accident. The employee disclosed in his affidavit that he was following the cab in which Mrs. Taylor was riding and when that cab entered the intersection where the accident occurred the light was green in favor of the cab. This employee further alleged he notified the dispatcher of the need for an ambulance and, once he was assured it was on its way, left the scene of the accident. On January 7, 1975, the employee learned of the trial from the dispatcher at Yellow Cab and it was at this time that the employee informed the dispatcher of his knowledge concerning the accident.

Yellow Cab cites only one case, Gehner v. McPherson, 430 S.W.2d 312 (Mo.App.1968), in support of its contention that the trial court erred in refusing to sustain its motion. In Gehner the court set out the requisites for a new trial on the ground of newly discovered evidence. At 316, Gehner stated the movant must show: “(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to want of due diligence that it did not come to his knowledge sooner; (3) that it is so material that it would probably produce a different result if a new trial were granted; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be produced, or its absence accounted for; and (6) that the object of the evidence is not merely to impeach the character or credit of a witness, (citations omitted.)”

In addition Gehner is informative on the scope of appellate review of motions for new trials and at 315-316 states: “ . our courts have long viewed motions for new trial on the ground of newly discovered evidence with marked distaste, and grant them as an exception and refuse them as a rule. . . . The granting or refusing of the new trial for newly discovered evidence reposes, to a great degree, within the sound discretion of the trial judge, whose ruling should not be disturbed but for clear abuse, and when the motion is overruled the onus probandi is cast upon appellant to display that the trial court clearly erred. Galeener v. Derris, Mo.App., 20 S.W.2d 167, 169[5] [1929]. If there be doubt whether the trial court’s discretion has been exercised soundly, the doubt is to be resolved in favor of the ruling it made.”

Yellow Cab had access to this evidence before the case was submitted to the jury and did not bring it to the attention of the court until sometime after the conclusion of the trial. We cannot conclude it acted with that degree of diligence required by law. The action of the trial court in refusing Yellow Cab’s motion for a new trial was not clearly erroneous. The point is overruled.

The judgment as to Yellow Cab Company is reversed and the cause remanded to the circuit court with directions to enter judgment in favor of plaintiff and against defendant Yellow Cab Company in the sum of $5,055.63 and costs as of the date of the jury verdict.

SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.

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

      . In some states this is handled by the court reducing the judgment by the amount of the previous partial settlement rather than the jury doing so. This may be a better way to handle this situation. Using this procedure solves the problem of the jury using the evidence of the prior settlement as its basis for finding the tortfeasor who settled negligent while exculpating from liability the tortfeasor who was sued. See DeLude v. Rimek, 351 Ill.App. 466, 115 N.E.2d 561, 565[3] (1953), and Tresch v. Nielsen, 57 Ill.App.2d 469, 207 N.E.2d 109 (1965).