source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    GATEWAY AVIATION, INC., et al., Plaintiffs-Appellants, v. CESSNA AIRCRAFT COMPANY et al., Defendants-Respondents.
    No. 39337.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.

      M. Harvey Pines, Schramm, Pines & Marshall, Clayton, for plaintiffs-appellants.
    F. Douglas O’Leary, St. Louis, Ronald Morie, Clayton, Emmett M. O’Brien, St. Louis, Schechter & Zerman, David V. Col-lignon, Clayton, for defendants-respondents.
   CRIST, Judge.

Plaintiffs, Gateway Aviation, Inc. and Paul and Ellen Silverstein, guarantors, sued defendant, Automatic Equipment Leasing Corporation, for tortious conversion of their airplane. Defendant counterclaimed for a deficiency on the resale of such airplane after its repossession for default. In a court tried case, defendant won on all counts and plaintiffs appeal.

We affirm the judgment against plaintiffs on their claim. We reverse the deficiency judgment in favor of the defendant in the sum of $97,437.00, for the reason that plaintiffs were not given prior notice of the private sale of their airplane by defendant.

Gateway Aviation, Inc. (hereinafter referred to as “Gateway”) was incorporated for the purpose of providing an air taxi service. Gateway then entered into two agreements with defendant, the effect of which was to provide for a secured sale of a Cessna aircraft. The sales price, plus financing, was to be paid in 96 equal monthly installments of $3,681.57 each.

Gateway took possession of the airplane and made ten such monthly installments from May, 1969 through February, 1970. During this time the airplane required frequent repairs. By their agreement, Gateway was obligated to make repairs. Gateway defaulted on its March and April, 1970 installments after Gateway warned defendant that no payments would be made unless the problems with the airplane were resolved. Defendant’s response was that if the payments were not then made it would repossess. Gateway commenced this litigation in March, 1970. Plaintiffs later dismissed as to Cessna Aircraft Company, and others, leaving defendant as the sole party defendant.

On April 30, 1970, plaintiffs tendered a check for the March and April installments. Defendant, however, demanded full payment of all installments. Payment in full was not made, and defendant repossessed the airplane on July 8,1970. At the time of repossession, Gateway had, in violation of the agreements, permitted the federal license to operate the airplane to lapse and had not paid the insurance policy premium. The airplane had not been maintained by Gateway in a condition to be operated for air taxi service.

Defendant expended funds for repairs, maintenance and insurance to prepare the airplane for resale, and, with notice to Gateway, conducted a public auction of the airplane on August 11, 1970. Gateway’s representative attended the auction but made no bid on the airplane. The highest bid of $130,000.00 was refused by defendant. On October 16, 1970, without further notice to Gateway, the defendant sold the airplane at private sale for the sum of $134,000.00. On November 19, 1970, defendant gave Gateway notice by letter that the sale had occurred. It used this letter to make claim against Gateway for the deficiency.

The trial court properly held that Gateway had repudiated the agreements and that the repossession of the airplane was not a tortious conversion. The judgment on the counterclaim for $97,437.00, which included an attorney fee of $12,-709.17, was not proper. Plaintiffs urge seven specific points as to why the trial court erred. We will not attempt to answer all of the points individually. We believe that plaintiffs’ claim for tortious conversion should be denied for the reason that Gateway had improperly repudiated its agreements with defendant and was thus in default under the terms of the contract.

Gateway was in default of two installments. It filed suit against defendant alleging breach of warranty and seeking rescission of the agreements. In violation of the agreements it failed to properly maintain, insure and license the airplane, and had moved the airplane away from its home airport. Section 400.9-503 RSMo. provides that “a secured party has on default the right to take possession of the collateral”, and defendant did exactly that.

A party repudiates a contract by manifesting a positive intention not to perform. Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 258 (Mo. banc 1954); Cork Plumbing Co. v. Martin Bloom Associates, 573 S.W.2d 947 (Mo.App. 1978); see § 400.2-610 RSMo., and comments thereto. This manifestation may be by words or conduct. Gateway’s assertion that even if there had been a repudiation it was retracted by its April 30 tender of past due payments, under § 400.2-611 RSMo., has no merit. The evidence considered in its entirety indicates a lack of positive intent to perform the contract according to its terms even at the time of the tender. Defendant had a right to sell the airplane as security of Gateway’s obligation to pay defendant upon repudiation by Gateway and cancellation by defendant under § 400.-2-703 RSMo.1969. Since defendant exercised its right pursuant to Gateway’s repudiation to rescind the agreements its contractual obligations were at an end and it had no legal duty to reinstate the contract by accepting the past due payments. The collateral thus secured the entire amount payable to defendant under the terms of the contract. Since defendant was entitled to cancel the agreements and insist on full payment there is no merit to Gateway’s claim that defendant had repudiated its contractual obligation.

While notice was given to Gateway of the public auction which Gateway attended, where the refused high bid for the aircraft was $130,000.00, no prior notice was given of its later private sale for $134,-000.00. This lack of notice was fatal to recovery under the counterclaim.

This transaction was governed by the Uniform Commercial Code and particularly § 400.9-504(3) RSMo. 1969:

“Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor

We are unable to find a Missouri case exactly on the point at issue. However, many other states, in construing similar language, have held that before a secured party (defendant) can obtain a deficiency against a debtor (Gateway), the debtor must be given notice of what is about to occur. The debtor in this case, Gateway, could have done many things. It could have redeemed the airplane. It could have secured purchasers for the airplane. It was not afforded an opportunity to do anything. See Mallicoat v. Volunteer Finance & Loan Corp., 57 Tenn.App. 106, 415 S.W.2d 347, 350 (1966); Camden National Bank v. St. Clair, 309 A.2d 329 (Me.1973). Section 400.-9-501(3)(b) provides that the Uniform Commercial Code’s notice provision may not be waived or varied to the extent that it gives rights to the debtor and imposes duties on the secured party.

Defendant relies on Wirth v. Heavey, 508 S.W.2d 263 (Mo.App.1974). Wirth did not involve lack of notice of a private sale. It involved a purchase by a secured party at his own private sale. Accordingly, Wirth is distinguishable.

Anheuser v. Oswald Refractories Co., 541 S.W.2d 706, 711 (Mo.App.1976) is a case where our court was confronted with an issue related to resale under § 400.2-706(3) RSMo.1969. That section provides that upon a sale “[w]here the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.” Anheuser held that when a seller avails himself of such remedy, he must comply with all of the terms of that section. Where the seller had not pleaded or proved that he gave the statutory notice, he could not recover the difference between the sale price and the contract price.

For the reason that defendant did not give the required notice to plaintiffs under § 400.9-504(3) we hold that defendant waived its right to any deficiency. Since deficiency judgments after repossession of collateral are in derogation of the common law, any right to a deficiency accrues only after strict compliance with the relevant statutes.

For these reasons, the judgment on the counterclaim in favor of the defendant is reversed with directions to enter a verdict in favor of plaintiffs. The judgment in favor of defendant on plaintiffs’ petition is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: SNYDER, Judge.

text:
    Robert W. BERGEL, Plaintiff-Appellant, v. David E. KASSEBAUM, Ronald Conway, and Gale Traiteur, Defendants-Respondents.
    No. 39527.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 19, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Edward J. Delworth, St. Louis, for plaintiff-appellant.
    John C. Livingston, Whalen, O’Connor, Danis & Tobben, St. Louis, for David E. Kassebaum and Gale Traiteur.
    W. Munro Roberts, Jr., Roberts, Hene-ghan & Coffelt, Inc., St. Louis, for Ronald Conway.
   SNYDER, Judge.

Suit for damages for false imprisonment against David Kassebaum, an off-duty City of St. Louis police officer, Ronald Conway, a Crestwood police officer and Gale Trait-eur, a private citizen, stemming from plaintiff-appellant’s arrest on October 5, 1973 at the Crestwood Plaza Shopping Center. The case was tried to a jury. A directed verdict was granted for Traiteur at the close of plaintiff-appellant’s evidence. The jury returned a verdict for defendants-respondents Kassebaum and Conway and plaintiff-appellant appeals. Affirmed in part; reversed in part; remanded for a new trial.

Appellant alleges the trial court erred in: (1) denying his motion to direct respondent Conway to make more definite and certain his answer to appellant’s first amended petition; (2) granting respondent Traiteur’s motion for a directed verdict at the close of appellant’s evidence; (3) giving Instruction No. 6 to the jury, respondent Conway’s verdict director; (4) allowing respondent Conway to interrogate witnesses about incidents involving advances toward female employees at Crestwood Plaza; (5) refusing to allow appellant to question respondent Conway about his written police report on appellant’s arrest; and (6) sustaining respondents’ objections to portions of appellant’s closing argument.

As a backdrop, it should be noted that there was some apprehension in the community at the time of this incident about the “South County Rapist.” A composite sketch of the suspected assailant had been broadcast on television in the St. Louis area. Appellant happened to bear some resemblance to this composite sketch. He also drove a car that matched the general description of the car believed to be driven by the “South County Rapist.”

After work on the afternoon of Friday, October 5, 1973, appellant went to Crest-wood Plaza to do some shopping and banking. While walking through the shopping mall, he noticed a woman, Susan Kasse-baum, seated and holding a baby. Appellant went up to Mrs. Kassebaum and attempted to make conversation with her about the baby. According to him, she appeared unfriendly and he left.

At trial, there were various descriptions of Mrs. Kassebaum’s emotional state during and after this incident. Appellant testified she was unfriendly but not upset. Mrs. Kassebaum stated she was frightened, scared and terrified for herself and her child because of appellant’s appearance (long hair, sideburns, blue jeans and work shirt). Mr. Traiteur testified she was scared and frightened to the point of being near hysterics and that she attempted to move away and pull back from the appellant while he was talking to her. Mr. Kas-sebaum testified his wife was extremely upset after the incident, mumbling, crying and clutching the baby.

After appellant left, Mrs. Kassebaum was immediately approached by a bystander, Mr. Traiteur, who asked if she needed help. She told him to find her husband and bring him back, which Traiteur did. Mrs. Kasseb-aum told her husband that a man who resembled the composite sketch of the “South County Rapist” had touched the baby and “bothered” her. Traiteur and Kassebaum then went to look for appellant and found him at the B. Dalton Bookseller bookstore. Kassebaum identified himself as a police officer, asked appellant some questions and then instructed appellant to come along with him to a phone, where he called the Crestwood Police. When Officer Conway of the Crestwood Police arrived, he had a discussion with Kassebaum in which Kassebaum related the incident between appellant and Mrs. Kassebaum and told Conway that his wife believed appellant resembled the sketch of the “South County Rapist.” Kassebaum also told Conway that he (Kassebaum) did not wish to prosecute. After some further questioning, Conway arrested appellant. Kassebaum assisted in handcuffing appellant when appellant made what Conway perceived as a threatening move. Once appellant was placed in the squad car, Conway informed him he was “under arrest for investigation suspect rape and resisting arrest.”

At the Crestwood police station, appellant was “booked,” questioned and viewed by an employee of a Crestwood Plaza department store who had been harassed at that store by a man who also resembled the “South County Rapist.” She could not identify appellant. Appellant was finally charged with resisting arrest and disturbing the peace. He was later found not guilty of those charges in Crestwood Municipal Court.

Appellant’s first point is that the trial court erred in overruling his motion to require respondent Conway to make a more definite statement of his affirmative defense. In his answer to appellant’s first amended petition Conway stated, by way of affirmative defense, that he “had reasonable grounds or probable cause to believe that plaintiff had committed a wrongful act and to place plaintiff under arrest therefor.” Nowhere in Conway’s answer is the nature of this “wrongful act” specified.

Accepting appellant’s argument that this answer did not raise the affirmative defense of probable cause because of its failure to plead the facts establishing probable cause, appellant tried the issue by implied consent when he failed to object to the introduction of evidence on the defense. Rule 55.33(b); Harris v. Goggins, 374 S.W.2d 6 (Mo. banc 1963). Although the Harris case involved a defendant’s motion to dismiss plaintiff’s petition for failure to state a claim, the same logic applies here. To preserve the issue for appellate review, appellant must make the motion, object at trial to admission of evidence on the issue (on the ground that it is beyond the scope of the pleadings) and include the issue in his motion for new trial. Appellant failed to object and the issue is not preserved.

However, because the case is to be remanded for a new trial as to respondent Conway, the trial court is instructed to require him to make a more definite statement of his defense. The object of pleading is to form specific and definite issues of fact. Zancker v. Northern Ins. Co. of New York, 238 Mo.App. 110, 176 S.W.2d 523 (Mo. App.1944). Pleadings are not to serve as ambushes. Cook v. Bolin, 296 S.W.2d 181 (Mo.App.1956). Pleadings must state facts, not conclusions. Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353 (Mo. 1941). The averment of a legal conclusion is not a statement of fact, and the phrase “wrongful act” is simply a legal conclusion on respondent’s part, unsupported by pleaded facts. It is evident from the transcript that the trying of this case would have been aided by a clear statement of the “wrongful act” relied on as the basis of respondent’s probable cause defense. A fair reading of Rules 55.04, 55.07, 55.08 and 55.27(d) requires that statement.

Did the trial court err in granting a directed verdict for defendant Traiteur at the close of appellant’s evidence?

[1-4] The granting of a directed verdict at the close of the plaintiffs’ evidence is a drastic action which should be taken only when all the evidence and reasonable inferences therefrom are so strongly against the plaintiff that reasonable men could not differ. When the party having the burden of proof has adduced substantive evidence on a pleaded issue, that issue should be submitted to the jury and it is reversible error to direct a verdict against that party. In deciding whether the plaintiffs in this case adduced substantial evidence which would require that their theory of [defendant’s] negligence be submitted to the jury, it is our duty to view the evidence before the trial judge who directed the verdict against the plaintiffs in a light most favorable to the plaintiffs and indulge in all reasonable inferences from the evidence in their favor. Except when unreasonable or opposed to physical laws, plaintiffs’ evidence must be taken as true. However, we must find substantial evidence supporting plaintiffs’ claim; a mere scintilla of evidence is not sufficient. Eyler v. Allison, 500 S.W.2d 49, 50[1-6] (Mo.App.1973). [Kaelin v. Nuelle, 537 S.W.2d 226, 229-230 (Mo.App.1976)].

What was the evidence regarding Mr. Traiteur’s involvement in appellant’s arrest? Appellant testified that while he was being questioned by Kassebaum, at or just outside the B. Dalton Bookseller bookstore, he noticed another person in the background (Traiteur). When appellant and Kassebaum left B. Dalton, Traiteur followed approximately five feet behind them. Traiteur apparently left the scene while Kassebaum was phoning the Crestwood police because appellant did not see Traiteur again until appellant and Kassebaum were seated outside the mall awaiting the arrival of the Crestwood police. He then noticed Traiteur “was behind us and maybe off to my left sometimes.” Appellant never heard Traiteur speak to Kassebaum, nor did Trait-eur speak to appellant. Appellant admitted on cross-examination that he was not “even sure whether or not Mr. Traiteur knew Mr. Kassebaum.”

Appellant completed his case by reading from Mr. Traiteur’s deposition. Traiteur stated he was asked by Kassebaum whether he would identify the fellow who had bothered Mrs. Kassebaum. After Traiteur agreed to do that, he and Kassebaum went looking for the man and found him the B. Dalton Bookseller bookstore. He accompanied Kassebaum into the bookstore and observed Kassebaum’s conversation with appellant. Kassebaum, having identified himself as a police officer and displayed his badge, questioned appellant. When appellant and Kassebaum left the vicinity of the bookstore, Traiteur followed behind them because he was going in that direction to pick up a sewing machine.

“[3-4] It is thoroughly settled law that a person is liable for false arrest made by another if he ‘directed, advised, countenanced, encouraged, or instigated’ such arrest. Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239.” Knupp v. Esslinger, 363 S.W.2d 210, 213 (Mo.App.1962).

“Instigate” means to stimulate or goad to an action. “Abet,” a synonym for “instigate,” means “ ‘ “to aid, promote, or encourage the commission of an offense.” ’ ” Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242 (Mo.1948), quoting State v. Fraker, 148 Mo. 143, 49 S.W. 1017 (Mo.1899). “Countenance” means to “ ‘encourage, favor, approve,’ ” its synonyms being “ ‘sanction, endorse, support.’ ” Snider, supra, 242, quoting Webster’s New International Dictionary, 2d Ed. See also Vimont v. S. S. Kressge Co., 291 S.W. 159 (Mo.App.1927); Checkeye v. John Bettendorf Market, 257 S.W.2d 202 (Mo.App.1953). But, “to ‘countenance’ an act means something more than to witness it.” Cooper v. Johnson, 81 Mo. 483, 490 (Mo.1884).

Appellant failed to produce any evidence that Traiteur directed, advised, or encouraged his arrest. In response to a request by Kassebaum, Traiteur accompanied him in an attempt to find the man who had “bothered” Kassebaum's wife. There is no evidence Traiteur at any time suggested or directed any action be taken once that man was found. While he provided identification of appellant, one does not participate in a false arrest so as to become liable therefor “where he does nothing to affect the arrest or imprisonment except to accompany an officer to identify one suspected of an offense, even where the identification may have been the principal cause of the wrongful arrest.” 32 Am.Jur.2d, False Imprisonment § 35.

Traiteur’s action following his identification of appellant could not be categorized as endorsing or supporting the arrest. His presence outside the mall was simply motivated by curiosity. He did not aid in taking appellant into custody; he did not help “guard” appellant while appellant and Kas-sebaum waited for the police; he did not accompany appellant and the officers to the police station. Traiteur did nothing to initiate or procure appellant’s arrest. Trait-eur’s interest in appellant’s arrest was simply the interest of a citizen who has observed a possible offense and identified the possible offender.

Therefore, because appellant failed to adduce substantial evidence which would require that his theory of Traiteur’s liability be submitted to the jury, the trial court ruled properly in granting Traiteur’s motion for a directed verdict at the close of appellant’s evidence. Kaelin, supra.

Appellant contends the trial court erred in giving respondent Conway’s Instruction No. 6, which read:

Your verdict must be for defendant Ronald Conway if you believe:
First, defendant Ronald Conway had reasonable grounds or probable cause to believe that Plaintiff had committed the crime of rape or that defendant Ronald Conway had reasonable grounds or probable cause to believe that Plaintiff may have committed the crime of rape.

Appellant objects to the language “or that defendant Ronald Conway had reasonable grounds or probable cause to believe that Plaintiff may have committed the crime of rape,” and argues that the instruction: (1) misstates the law, and (2) is repetitious and places undue emphasis on the right of arrest. Because the emphasized language is a prejudicially erroneous misstatement of law, the second ground need not be reached.

It is generally recognized that a police officer making an arrest without a warrant for a felony not committed in his presence is not liable in an action for false imprisonment when he believes on reasonable grounds or with probable cause, that the person he is arresting has committed or is committing a felony. 32 Am.Jur.2d, False Imprisonment, § 79; 35 C.J.S. False Imprisonment § 22.

Missouri courts have frequently been called upon to define “probable cause” in deciding questions regarding the constitutionality of arrests and subsequent searches and seizures. In none of the cases researched have the courts defined probable cause to include a belief that the arrestee “may have committed” a crime. Rather, the supreme court indicated in State v. Hicks, 515 S.W.2d 518, 521 (Mo.1974) that “the requirement of probable cause can never be satisfied with a bare suspicion of guilt, [cites omitted].”

[2,3] Probable cause to legally justify a warrantless search is virtually incapable of being defined in precise or exact terms. When faced with the necessity of resolving the existence or nonexistence of probable cause to support a warrantless arrest, courts look at the particular facts at hand to see if sufficient information of a reliable or trustworthy nature existed to cause a ‘prudent’ or ‘reasonable’ man to believe that the arrestee committed the offense for which he was arrested, [cites omitted].

State v. Love, 546 S.W.2d 441, 449 (Mo.App.1976) (Emphasis supplied). Similarly, the court stated in State v. Singleton, 560 S.W.2d 379, 384 (Mo.App.1977), that “the test [for whether probable cause to effect a warrantless arrest exists] is whether the officer had reasonable grounds to believe that the subject had committed or was in the process of committing a crime, [cites omitted].” (Emphasis supplied). See also State v. Hicks, supra, 521 [“to believe that appellant had committed the murder.”]; State v. Gant, 490 S.W.2d 46, 48 (Mo.1973) [“ ‘to suspect that the person arrested has committed a felony.’ ”]; State v. Ward, 457 S.W.2d 701, 705-706 (Mo.1970) [“ ‘to believe that the person arrested is guilty of a recent felony.’ “that an offense has been committed by the arrested, (cites omitted).”]; State v. Greenhaw, 553 S.W.2d 318, 325 (Mo.App.1977) [“ ‘in believing that the petitioner had committed or was committing an offense.’ ”]; and State v. Howell, 543 S.W.2d 836, 838 (Mo.App.1976) [“in believing that defendant had committed the offenses.”]

These cases illustrate that only the first portion of Instruction No. 6 correctly stated the substantive law on the justification of probable cause for arrest. The inclusion of the “may have committed” language amounts to the approval of an impermissible additional degree of uncertainty in respondent’s belief at the time of appellant’s arrest. Whether that uncertainty goes to identification or the commission of the offense is unclear. It is clear, however, that respondent’s instruction should have been limited to the first portion of Instruction No. 6, in accordance with the case law outlined. (It should be noted that MAI 32.13 does not include any “may have committed” language.)

This objection to the instruction is not a “ ‘hypercritical’ ” demand for “ ‘technical accuracy.’ ” Stein v. McDonald, 394 S.W.2d 297, 299 (Mo.1965). Respondent’s instruction furnished a misleading guide to the jury on a key element of substantive law. “Instructions may not be confusing, misleading, inadequate nor prejudicially erroneous. Tile-Craft Products Co. v. Colonial Properties, Inc., 449 S.W.2d 653, 656 (Mo.1970).” Woodford v. Illinois Central Gulf Railroad Co., 518 S.W.2d 712, 716 (Mo.App.1974). This error in the instructions necessitates reversal and remand for a new trial as to respondent Conway.

Appellant argues that the trial court erred in admitting immaterial and irrelevant testimony by witnesses Judy Fieser and Fred Stewart, and by respondent Conway, regarding incidents, other than the one involving Ms. Fieser, of unwarranted advances toward female employees of the Sears store at Crestwood Plaza.

Ms. Fieser, a Sears employee, was called by appellant and recounted an incident of harassment she had been subjected to at the store. On cross-examination she was asked by respondent Conway if she was aware of any other similar incidents involving Sears employees. Appellant raised a general objection — “I object.” — and failed to secure a ruling on his objection.

Respondent Conway, testifying on his own behalf, was asked if he was aware of instances of female employees of the Sears store being harassed. Appellant objected to such testimony on the grounds that it was irrelevant and immaterial. The objection was overruled and the testimony admitted. Conway stated he was aware of several incidents of harassment at the Sears store and that he knew the man suspected was a white male in his twenties with long hair and sideburns. He supposedly was driving a 1962-1964 medium-sized, white automobile.

Fred Stewart, a Crestwood police officer also testified, again over appellant’s objection, that he had investigated complaints of “unwarranted advances toward female employees” at the Sears store in October of 1973.

Appellant’s point with regard to Ms. Fieser’s testimony has not been preserved for review. When the challenged testimony was given, appellant made only a general objection — “I object.” An objection to the admissibility of evidence must be specific and contain the proper ground for exclusion. Stafford v. Lyon, 413 S.W.2d 495 (Mo.1967); Negley B. Calvin, Inc. v. Cornet, 421 S.W.2d 741 (Mo.App.1968). A mere general objection to evidence is insufficient to preserve the matter for review. O’Donnell v. General Motors Corp., 534 S.W.2d 271 (Mo.App.1976). Further, appellant failed to insist upon a ruling on his objection and thereby waived whatever objection he might have had. State v. Hart, 417 S.W.2d 193, 195 (Mo.App.1967).

The relevancy and materiality of the testimony on other incidents of harassment can best be determined by examining the purposes for which it was introduced. Did it establish a fact which tended to prove a fact in issue or logically render probable the existence of a fact in issue? Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973).

Appellant introduced evidence of the Fieser incident in an attempt to show that respondent Conway had arrested him because Conway suspected appellant was involved in the harassment of Ms. Fieser. Conway brought out evidence of other incidents in an attempt to show that a man who matched the description of appellant and the “South County Rapist,” and who supposedly drove a car matching their automobiles, had been present at Crestwood Plaza and had harassed Sears female employees in a manner slightly similar to the incident here. In other words, Conway tried to show he had reason to believe the “South County Rapist” and the culprit in the Sears incidents were the same person. The Sears incidents would, therefore, tend to establish the probable cause necessary to justify the warrantless arrest of appellant.

The existence of probable cause for appellant’s arrest had been raised by Conway’s answer and clearly was in issue. Because the challenged testimony recounted incidents which were closely related in time to appellant’s arrest and which were supposedly perpetrated by a man matching the description of the “South County Rapist,” the testimony was admissible. Compare Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963). While the probative value of the evidence may have been tenuous, “the admission of evidence is largely a discretionary matter and absent clear abuse we will not interfere with the trial court’s ruling, [cites omitted].” Aiple v. Southside National Bank in St. Louis, 442 S.W.2d 145, 152 (Mo.App.1969).

In connection with this incident, appellant was charged with resisting arrest and disturbing the peace. He was found not guilty of those charges. Appellant testified that he subsequently filed suit in St. Louis County Circuit Court and succeeded in having the record of his arrest expunged pursuant to § 610.100, RSMo Cum.Supp.1975.

In the course of cross-examining respondent Conway, appellant’s counsel asked him whether respondent Kassebaum had told him that Kassebaum “was holding Mr. Ber-gel?” When Conway responded that Kas-sebaum had not said that, counsel inquired, “subsequent to this incident, you made up some reports for the City of Crestwood, did you not?” Conway replied that he had and counsel then requested a discussion before the bench, in which he indicated he wanted to use the police arrest report made out by Conway to show Kassebaum had made such a statement. Respondents objected to the use of the police report on the ground that it had been expunged and, therefore, was no longer in existence.

At this point, the trial court indicated it wanted to see the order of the circuit court in the expungement proceeding and sent its clerk to obtain a copy. Noting that the witness could be recalled, the trial court instructed appellant’s counsel to proceed. Cross-examination of respondent Conway resumed on a different topic.

Appellant’s counsel was still cross-examining Conway when the order in the ex-pungement proceeding was produced. Counsel approached the bench and, out of the hearing of the jury, the court read the order which requested the Chief of Police of Crestwood, a St. Louis County police officer, and the Superintendent of the State Highway Patrol, “to destroy all records of petitioner pertaining to his arrest on October 5, 1973, by the Police in the City of Crestwood in accordance with the order entered by the Court at this time.”

The trial court ruled that since the records were destroyed and the file sealed, no records of appellant’s arrest could be brought before the court in this proceeding. Appellant then made an offer of proof of the contents of the police report. When counsel persisted in the matter, the trial court informed him, “You can’t get into it. You can’t say anything about the report. Say whatever you want to say, but don’t get into the report.” Proceedings resumed and appellant did not raise any further questions on the report.

Did the trial court err in sustaining the respondents’ objections to appellant’s use of Conway’s police report?

Section 610.100, RSMo Cum.Supp.1975, the statutory section authorizing expungement of arrest records provides:

If any person is arrested and not charged with an offense against the law within thirty days of his arrest, all records of the arrest and of any detention or confinement incident thereto shall thereafter be closed records to all persons except the person arrested. If there is no conviction within one year after the records are closed, all records of the arrest and of any detention or confinement incident thereto shall be expunged in any city or county having a population of five hundred thousand or more.

Appellant does not cite, nor does research disclose, any case law or other authority on the admissibility of expunged records. An argument could be made that a party, for whose benefit and protection a record is expunged, should be able to waive that protection and use the expunged record in another proceeding. Such an argument, however, ignores the essential nature of an expungement proceeding, for it is an action to destroy or permanently seal a record.

Black’s Law Dictionary, Revised Fourth Edition, defines “expunge” to mean: “to destroy or obliterate; it implies not a legal act, but a physical annihilation. Andrews v. Police Court of City of Stockton, Cal.App., 123 P.2d 128, 129. To blot out; to efface designedly; to obliterate; to strike out wholly. Webster.” Also see Natalizia v. Atlantic Tubing and Rubber Co., 81 R.I. 515, 105 A.2d 190 (1954); State v. Chambers, 533 P.2d 876 (Utah 1975); Application of Brandon, 131 N.Y.S.2d 204 (1954). These definitions were approved by this court in State ex rel. M.B. v. Brown, 532 S.W.2d 893 (Mo.App.1976).

[4,5] In considering the intent of the legislature when it used the term ‘expunge’ ... we follow the primary rule of statutory construction to ascertain intent from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning, [cites omitted].

State ex rel. M.B., supra, 896.

In State ex rel. M.B., the court held that the language of § 195.290, RSMo 1969 which allows a youthful offender who has successfully completed probation to apply to the court which sentenced him “for an order to expunge from all official records . . . all recordations of his arrest, trial and conviction” did not mandate the physical destruction of the entire record. Relying on the word “from,” the court held, at page 896, that the offender was only entitled to an order “striking out, blotting, obliterating or in any manner completely concealing or excising the name of the offender, his address and any other identification which might associate him with the records of the court.” The record would be left intact; only those portions which identified or connected the offender with the record would be destroyed.

Section 610.100 does not use the language of § 195.290 and only states that “all records of arrest . . . shall be expunged.” The language of § 610.100 does not support a partial expungement. It must be assumed, therefore, that when the legislature provided “all records of arrest and of any detention or confinement incident thereto shall be expunged” it meant to use “expunge” in the sense defined by Black’s and the case law. Thus, when appellant’s arrest record was “expunged,” it was destroyed. If it was destroyed, it was not available to appellant for use in this proceeding and the trial court properly sustained respondents’ objections to its use. Even if the rationale of State ex rel. M.B., supra, were adopted, there would be no way to identify appellant with any specific arrest record. The same decision on the question of admissibility would be required.

Appellant’s final contention is that the trial court improperly restricted his final argument to the jury. His comments, objections to which were sustained, fall into three categories: (1) comment on witness Traiteur; (2) comment on the evidence in the case; and (3) comment on the law in the case.

It is well established that, “[t]he regulation of argument is a matter largely within the discretion of the trial court and it is the policy of the law to indulge a liberal attitude in ruling contentions relating to jury argument, [cites omitted].” Beesley v. Howe, 478 S.W.2d 649, 652-653 (Mo.1972). The trial court’s actions must be reviewed by that standard. An appellate court will not interfere with that determination unless an abuse of discretion is found. Helfrick v. Taylor, 440 S.W.2d 940 (Mo.1969).

(1) During his summation, appellant’s counsel stated:

“I can sympathize in Mr. Traiteur wanting to help this lady, but Mr. Traiteur had something unfortunate about his personality. He is a man that is apparently easily led in what he does and . . . .” An objection was made and sustained.
“[1-3] It is axiomatic counsel should neither argue nor draw inferences from matters not in evidence and that a trial court errs in permitting such a discourse.” Hodges v. Johnson, 417 S.W.2d 685, 689 (Mo.App.1967). There was no evidence in the case of “something unfortunate” in Mr. Traiteur’s personality, nor was there evidence that he was “easily led in what he does.” The trial court would have erred had it permitted such comment. Hodges, supra. The objection was properly sustained.

(2) Appellant charges the trial court erred at three different times in restricting his commentary on the evidence in the case. First, appellant argued that “there must have been literally hundreds of people that were around in St. Louis County on October 5,1973 that would answer the description” of the “South County Rapist.” Appellant cites no evidence in the record to support this comment. Again, it would have been error for the trial court to permit this argument. Davis v. City of Independence, 404 S.W.2d 718 (Mo. banc 1966); Hodges, supra.

The second claimed error occurred when appellant’s counsel characterized as “ignominious” certain questions asked of appellant at the Crestwood Police Station. The nature of the questions [appellant’s sexual proclivities and preferences] was developed by the evidence. The questions, while perhaps necessary to the investigation of sex crimes, could fairly be characterized as humiliating and degrading. Appellant’s comment was not objectionable, as it surely fell within the broad field of argument afforded counsel in commenting upon the evidence in the course of his closing argument. Lineberry v. Robinett, 446 S.W.2d 481 (Mo.App.1969). Upon retrial of the case, appellant should be allowed to comment on the nature of the questioning at the police station, should that evidence be presented.

Third, appellant’s counsel commented on the fact that no victims of the “South County Rapist” were brought to the Crestwood Police Station to view appellant after his arrest. After an initial objection was overruled, appellant’s counsel continued, “If they had really been serious about that . if they had really believed he was the South County Rapist, they would have gotten in the victims . . . .” Respondent Conway’s objection was sustained.

No evidence was presented as to what procedures the Crestwood police followed in having victims view a suspected assailant. Without that evidence, an inference that a victim would be called in a “serious” investigation cannot be drawn. While the courts are liberal in allowing counsel wide latitude in drawing deductions and inferences from the evidence [Anderson v. Robertson, 402 S.W.2d 589 (Mo.App.1966); Johnson v. St. Louis Public Service Co., 256 S.W.2d 308 (Mo.App.1953)], those deductions and inferences must be based on evidence in the record. There is nothing in this record on which to base a charge that failing to bring in any of the “South County Rapist’s” victims meant the respondent was not “serious” in his belief that appellant had committed the crime of rape. The trial court did not abuse its discretion in sustaining respondent’s objection to the argument.

(3) Finally, appellant argues the trial court improperly restricted his comments upon the law in the case. The disputed comments came in appellant’s discussion of the law applicable to respondent Kasseb-aum. Appellant stated: “I don’t know, but in my opinion an arrest was accomplished at this point, and it’s up to Mr. Kassebaum to justify that arrest” [objection sustained] and “If you believe that Mr. Kassebaum effected an arrest, then he must show that he had a right to make that arrest.” [objection sustained].

Appellant’s comments correctly state the rule on burden of proof where a defendant has asserted the justification or affirmative defense of probable cause in an action for false arrest. Parrott v. Reis, 441 S.W.2d 390, 392 (Mo.App.1969). However, respondent Kassebaum did not assert the defense of probable cause; he relied instead on the theory that he had made no arrest. Yet, the effect of appellant’s comments was to “instruct” the jury as if Kassebaum were relying on the affirmative defense of probable cause. Appellant’s comments, if allowed to stand, would have interjected a false issue as to respondent Kassebaum.

“Instructing the jury is, of course, the province of the court. While counsel had the right to base his argument on instructions given by the court, he was not privileged to give instructions on the law different from those given by the court.” State v. Bailey, 234 Mo.App. 168, 115 S.W.2d 17, 23 (Mo.App.1923).

The court properly sustained the objection to appellant’s comments on the instruction, as they were not based on the instructions given by the court.

Because the trial court did not err in sustaining Kassebaum’s objections to the introduction of the expunged arrest record or to the comments on the law in closing argument, the judgment in favor of respondent Kassebaum is affirmed.

The judgment in favor of respondent Traiteur is affirmed. The judgment in favor of respondent Conway is reversed and remanded, with instructions for a new trial.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


text:
    Murle COMEGYS, Plaintiff-Respondent-Appellant, v. CHRYSLER CREDIT CORPORATION, Defendant-Appellant, and Sam Ogle Chrysler-Plymouth, Inc., Defendant-Appellant-Respondent.
    Nos. 39160, 39161 and 39170.
    Missouri Court of Appeals, Eastern District.
    Jan. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.

      Daniel J. McAuliffe, Clyde C. Farris, Jr., Whaley & McAuliffe, Clayton, for Sam Ogle Chrysler-Plymouth, Inc.
    Edwin D. Akers, Jr., James W. Erwin, Thompson & Mitchell, St. Louis, for Chrysler Credit Corp.
    Robert T. Ebert, Walsh, Howe & Ebert, Clayton, for respondent.
   SNYDER, Judge.

Chrysler Credit Corporation (Chrysler Credit) and Sam Ogle Chrysler-Plymouth, Inc. (Ogle) appeal from a jury verdict in favor of plaintiff Murle Comegys (Come-gys) and against them in the amount of $1,000.00 actual and $14,000.00 punitive damages. The jury failed to render a verdict on Ogle’s counterclaim for $200.00 and on his cross-claim against Chrysler Credit for any damages which might be assessed against him on plaintiff’s petition. Ogle did not object to the failure of the jury to return a verdict on its cross-claim and counterclaim, nor request that the jury be instructed to do so. Twenty-seven days after the return of the jury verdict the trial court entered judgment for Ogle on both its cross-claim against Chrysler Credit ($15,-000.00) and its counterclaim against Come-gys ($200.00). Ogle and Chrysler Credit appeal from the judgment entered on the jury verdict; Comegys appeals from the judgment on the counterclaim; and Chrysler Credit appeals from the judgment on the cross-claim.

In their joint brief, Ogle and Chrysler Credit assert that the trial court erred: (1) in admitting into evidence photographs of a sticker found on Comegys’ automobile; (2) in overruling their respective motions for a directed verdict and motions for judgment notwithstanding the verdict; (3) in submitting Instructions No. 2 and No. 3 to the jury; and (4) in permitting Comegys to testify as to the value of her automobile.

Chrysler Credit also contends it was error for the trial court to enter judgment against it on the cross-claim and Comegys claims it was error for the trial court to enter judgment against her on Ogle’s counterclaim.

Because the trial court erred in giving plaintiff’s verdict-directing Instruction No. 2 and in rendering judgment in favor of plaintiff and against Chrysler Credit Corporation on plaintiff’s cross-claim after the jury failed to return a verdict on the cross-claim, the cause is reversed and remanded for a new trial on all the issues.

The jury could have found from the evidence, considering it in the light most favorable to plaintiff, that Comegys went to a Chrysler-Plymouth dealership operated by Ogle in Crystal City, Missouri. Comegys talked to a salesman about a 1974 Plymouth Duster which was for sale. She visually checked the condition of the interior, exteri- or and motor of the car and specifically noticed that the Duster’s odometer read 2,860 miles. She also took the car on a short test drive, accompanied by her friend, Norman Ellsworth, and the salesman. She testified that the car “looked nice.”

Comegys talked to Sam Ogle, the owner of the dealership, although he denied the conversation, and he told her that the Duster was a “low mileage” and a “nice gas-saving car.” She decided to buy the car at that time but she left the lot without formally entering into a contract.

The next day, Comegys and Ellsworth returned to the dealership to close the deal. Comegys talked only to Sam Ogle at that time and agreed to buy the Duster for $3,995.00. She made a cash downpayment of $395.00 and received a trade-in allowance of $300.00 plus a loan pay-off on two cars, a Chevrolet Vega and a 1968 Oldsmobile. The balance was financed by Chrysler Credit.

There was a mutual mistake as to the model year of the traded-in Vega. It was a 1971 model rather than a 1972 as both Co-megys and Ogle believed at the time the sales contract was signed. After some negotiation, the parties agreed that a fair value for the difference between a 1971 and 1972 Vega was $200.00 and Comegys agreed in writing to pay $200.00 to Ogle to take care of the difference in value.

On November 29, 1974 Ogle gave Come-gys, among other documents, an odometer mileage statement signed by Ogle and stating that the Duster’s mileage was 2,868 miles. The state inspection form given to Comegys by Ogle showed the mileage of 2,851. The warranty given to Comegys was for 12,000 miles less the 2,868 shown on the odometer. Ogle told Comegys that the automobile had been sold a couple of months previously to another customer and had been repossessed in Georgia. No other representations about the mileage were made.

Comegys had had no dealings or communication with Chrysler Credit before she purchased the Duster.

Comegys drove the car away on November 29. About two weeks later, Comegys and her friend, Ellsworth, were looking at the car when a strong wind blew the left door completely open revealing a sticker on the front flange of the door. The sticker had the name Mopar printed on it and two hand-written entries: the date, 9-13-74, and the mileage, 9417.9. Mopar is the name of a Chrysler Corporation parts subsidiary. The sticker found by Comegys is the type required by federal law to be placed upon the door of any vehicle whose odometer has been replaced or altered. Such stickers are generally available to anyone in the business of repairing automobiles and they are normally placed on the rear rather than the front flange of the left front door. The sticker on the Duster was in a location where it could not be seen in ordinary use.

The Duster had been repossessed by Chrysler Credit on October 10,1974 and the title transferred from the former owner to Chrysler Credit on October 28,1974. It was delivered to the Ogle dealership on November 6,1974 by a Chrysler Credit representative who executed an odometer mileage statement in which he certified that the odometer reading was 2,851 miles. Chrysler Credit transferred title to the Duster to Ogle on November 15, 1974 pursuant to a Vehicle Repurchase Agreement between them.

Ogle’s employees, who cleaned the car probably three times while it was on the lot, did not report seeing the sticker on the door and Sam Ogle himself said he had not seen it.

Chrysler Credit in its Answers to Interrogatories stated that it had informed Ogle that the odometer had been replaced and that the odometer reading at the time the automobile was transferred from Chrysler Credit to Ogle was not the true and correct mileage for the automobile and that “written information was available to Sam Ogle Chrysler-Plymouth, Incorporated, through change of odometer statement sticker located on the left door flange of automobile, the mileage of which is the subject of this lawsuit.”

Comegys had no mechanical experience and she relied on Ogle’s statement that the car in fact had low mileage. Comegys’ opinion was that the difference in value between a 1974 Duster with 2,868 miles and a 1974 Duster with approximately 12,000 miles was $1,000.00. Ogle said at the trial there was no difference in value but on deposition he had testified that the difference in value was $270.00. In addition, after Comegys discovered the mileage discrepancy and complained to Ogle, Ogle offered to get her the same kind of car with low mileage for $500.00 more.

The jury returned a verdict in favor of Comegys and against Ogle and Chrysler Credit in the amount of $1,000.00 actual and $14,000.00 punitive damages but no verdict was returned on the counterclaim of Ogle or the cross-claim of Ogle against Chrysler Credit. The court entered an order overruling the defendants' after-trial motions and in the same order entered judgment in favor of Ogle on its counterclaim against Co-megys in the sum of $200.00 and in favor of Ogle on its cross-claim against Chrysler Credit in the sum of $15,000.00.

The Chrysler Corporation was named originally as a defendant but the court sustained its separate motion to dismiss at the close of all the evidence.

Ogle and Chrysler Credit claim the trial court erred in admitting photos of the mileage sticker found on the Duster’s door because there was no authentication of the writings on the sticker and because the writings were hearsay. No extended analysis of the issue will be undertaken because the cause is remanded for a new trial for other reasons and the question may not arise again under exactly the same circumstances. However, the photos were admissible because the writing they depicted was authenticated by Chrysler Credit’s Answers to Interrogatories which admitted Ogle had been told the odometer had been replaced and that it did not show the true mileage. Chrysler Credit and Ogle were parties to the writing; it was an integral part of the transaction. See 15 U.S.C.A. § 1987. On the admissibility of photos, see State ex rel. Highway Commission v. Cone, 338 S.W.2d 22 (Mo.1960).

Ogle and Chrysler Credit next claim it was error to overrule their motions for a directed verdict and for judgment notwithstanding the verdict. It is sufficient to note Comegys made a submissible case on her theory of fraud and that the jury verdict was supported by substantial evidence. No error was committed in overruling these motions.

Appellants charge error in the submission of Instructions No. 2 and No. 3. However, only Instruction No. 2 is set forth in full in the argument portion of the brief as required by Rule 84.04(e). The text of Instruction No. 3 is not included either in Ogle’s brief or its motion for a new trial. Therefore, the error as to Instruction No. 3 was not preserved.

The trial court erred in giving Instruction No. 2 which reads as follows:

Your verdict must be for Plaintiff and against defendant Chrysler Credit Corporation if you believe:
First: defendant Chrysler Credit Corporation represented to defendant Sam Ogle Chrysler-Plymouth, Inc. that the motor vehicle had an odometer reading of 2,851 miles intending that defendant Sam Ogle Chrysler-Plymouth, Inc. rely upon such representation and intending that plaintiff rely upon such representation in purchasing the motor vehicle, and
Second: the representation was false, and
Third: defendant Chrysler Credit Corporation did not know whether the representation was true or false, and
Fourth: the representation was material to the purchase by plaintiff of the motor vehicle, and
Fifth: plaintiff relied on the representation in making the purchase, and
Sixth: as a direct result of such representation the plaintiff was damaged.

The first paragraph of the instruction is not supported by the evidence. It requires the jury to find that Chrysler Credit represented to Ogle that the automobile had an odometer reading of 2,851 miles, intending that Ogle rely upon the representation. Chrysler Credit through its agent represented to Ogle that the odometer reading was 2,851 miles. Even assuming Chrysler Credit, by its statement of the odometer reading, which in fact was 2,851 miles, meant to represent that the actual mileage was 2,851 miles, there is no evidence proving Chrysler Credit’s intent that Ogle rely upon that representation. On the contrary, the evidence is that Chrysler Credit, by means of the sticker, informed Ogle of the change of odometer. Chrysler Credit’s disclosure of the odometer and mileage change put Ogle on notice that the odometer had been replaced and that the actual mileage was more than 2,851 miles. This disclosure negated any alleged intent on the part of Chrysler Credit that Ogle rely on the lower mileage reading.

The first paragraph also required the jury to find that Chrysler Credit intended that Comegys rely upon the representation when she purchased the automobile and that she did in fact rely upon it.

From all of the details of the transaction it might be inferred that Chrysler Credit intended for a purchaser, not necessarily Comegys, to rely upon the odometer mileage representation. It knew that Ogle would sell to a customer. But there is no evidence that Comegys did indeed rely upon the Chrysler Credit representation of the odometer reading. In fact, she did not even know about it at the time of the purchase.

In addition, the second paragraph of the instruction requires a finding that the representation was false. It could have been found false only if it were interpreted to be a representation of the actual mileage.

Because of the error in giving Instruction No. 2, the judgment against Chrysler Credit on plaintiff’s petition must be reversed and remanded.

Appellants Ogle and Chrysler Credit contend the trial court erred in allowing Comegys to testify as to the difference between the value of the auto as represented and its actual value with the additional mileage. Comegys’ testimony as to value was admissible for consideration by the jury along with the other evidence of value. See Auffenberg v. Hafley, 457 S.W.2d 929 (Mo.App.1970); Langdon v. Koch, 393 S.W.2d 66, 70 (Mo.App.1965).

Chrysler Credit argues that the trial court erred in rendering judgment in favor of Ogle and against Chrysler Credit on Ogle’s cross-claim. This point is well taken.

At the close of all the evidence neither Ogle nor Chrysler Credit made a motion for a directed verdict.

The jury was given sixteen instructions and twelve verdict forms. During deliberations, the jury sent the judge the following question: “How many of these verdict forms are we supposed to return?” They were told: “All of the forms must come back, but you have been given appropriate verdict forms to return any verdict you desire.”

The jury returned this unanimous verdict:

We, the jury, find the issues in favor of the plaintiff, and against both defendants, and find that plaintiff is entitled to both actual and punitive damages, and we assess plaintiff’s actual damages in the sum of $1,000, and we further assess plaintiff’s punitive damages in the sum of $14,000.

No other verdict form was completed. Obviously there is no specific mention of Ogle’s counterclaim against Comegys (plaintiff) or Ogle’s cross-claim against Chrysler Credit.

After asking counsel whether they wanted the jury polled, the court discharged the jury. No objection to the verdict was raised by any party. •

Ogle’s motion for a directed verdict or new trial, filed after return of the verdict, requests the court to set aside the judgment rendered on Comegys’ petition, to enter judgment in accordance with Ogle’s motion for a directed verdict, and to render a verdict in favor of Ogle on the cross-claim and counterclaim. Twenty-seven days after the return of the jury verdict the court denied Ogle’s motion for a directed verdict on the petition and sustained its motion for a directed verdict on both the counterclaim and cross-claim by rendering judgment in favor of Ogle on both.

The question presented is whether the trial court has the authority to enter judgment on a cross-claim which has been submitted to a jury which returns a verdict on the petition but fails to return a verdict on the cross-claim.

In an action for the recovery of money, the jury must return a general verdict (§ 510.230, RSMo 1969; Rule 71.02) and such a verdict must be responsive to all the material issues and must find for or against all the respective parties. Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481 (Mo.App.1972); Robinson v. Riverside Concrete, Inc., 544 S.W.2d 865 (Mo.App.1976). “It is well settled that a verdict must be responsive to all the material issues in a cause, and if there is no finding as to some of them, the judgment will be reversed on appeal. [Cites omitted]. . . . Where the verdict is not merely informal but substantially defective, omitting to find a material issue, such defect cannot be supplied by the court. [Cites omitted].” Lummi Bay Packing Co. v. Kryder, 263 S.W. 543, 545 (Mo.App.1924).

“[W]here the verdict of the jury fails to find all that there is in issue between the parties, the verdict is fatally defective and such defect is a substantial and reversible error. [Cites omitted].” National Cash Register Co. v. Kay, 230 Mo.App. 1046, 93 S.W.2d 260, 263 (Mo.App.1936).

“Further, a judgment entered against a party not based upon a verdict is in excess of the power of the trial court. [Cites omitted]. Where a verdict cannot be fairly resolved into a definite finding for either party, it will not support the entry of any judgment. [Cites omitted].” Robinson, supra, 873.

The court has the power to correct or amend a verdict after discharge of the jury, but that power extends only to matters of form and not matters of substance. Stafford, supra, and cases cited therein. In Lummi, supra, the appellate court indicated the trial court would be adding, not correcting, a verdict if it decided the counterclaim without the support of a jury verdict after the jury had returned a verdict not mentioning the counterclaim and been discharged. If there is no verdict on an issue, the court’s action cannot be categorized as a correction.

Counsel have a duty to call the court’s attention to any irregularity or defect in the verdict [Johnson v. Girvin’s Estate, 370 S.W.2d 163 (Mo.App.1963)], but the trial court has a duty to examine the verdict returned by the jury for defects, inconsistencies and ambiguities. Brown v. Kroger, 358 S.W.2d 429 (Mo.App.1962). If such are found, the court has an obligation to call them to the jury’s attention and afford the jury an opportunity to correct the errors before the verdict is finally received and recorded. Blackman v. Botsch, 281 S.W.2d 532 (Mo.App.1955); Johnson, supra; Brown, supra.

In Stroud v. Govreau, 495 S.W.2d 682 (Mo.App.1973), inconsistent and contradictory verdicts were returned. Plaintiffs made no objection to the verdicts at their return, but in proper time filed a motion for a new trial on the ground of inconsistency. Respondent argued plaintiffs failed to make a timely objection to the defect in the verdict and, therefore, waived any right to complain of the inconsistency or defect. That argument was rejected by the court which said, at page 685: “Primarily it is the duty of the court to require the jury to correct a verdict such as this as it was in Thorne v. Thorne, 350 S.W.2d 754 (Mo.1961). In Boone v. Richardson, supra, 388 S.W.2d [68] at 75, where the court held the verdict to be invalid, no immediate objection was made ‘on the part of either party.’ ”

Ogle argues that Chrysler Credit’s failure to object to the jury’s failure to return a verdict on the cross-claim constitutes a waiver of Chrysler Credit’s right to a jury trial, just as though a jury had been waived initially and the cause tried by the court. It is obvious that there is a material distinction between the two situations that makes the argument untenable. There is a substantial difference between waiving a jury prior to trial and failing to object to the failure of a jury to return a verdict on a cross-claim after a jury trial. Different rules apply to court and jury tried cases. Court strategy varies. The waiver of a jury trial is usually done prior to trial, not after the evidence has been submitted to a jury. Further, though waiver is a flexible and indefinite term, it is generally defined as a voluntary or intentional relinquishment of a known right. 92 C.J.S., Waiver, page 1041. Nothing in the record indicates an intent or voluntary action on the part of Chrysler Credit to waive a jury trial. Moreover, it is the duty of the court to tell the jury of any omissions and give the jury an opportunity to correct any errors. Blackman v. Botsch, supra. Chrysler Credit’s failure to object to the absence of a jury verdict on the cross-claim did not constitute a waiver of a jury trial.

It was error for the trial court to render judgment on the cross-claim.

Shall the cause be remanded as to the cross-claim only and Comegys’ judgment against defendant Ogle affirmed? Rule 84.14, provides, in part: “No new trial shall be ordered as to issues in which no error appears.” This reflects a determination that a judgment should be allowed to stand in as many respects as possible. If the retrial of the cross-claim will not necessarily affect the judgment on the plaintiff’s claim, the judgment in favor of plaintiff should be affirmed and only the cross-claim remanded for a new trial.

In Jackson v. Farmers Union Livestock Commission, 238 Mo.App. 449, 181 S.W.2d 211, 222 (Mo.App.1944), the court attempted to outline a standard for remanding a cause in part:

‘In remanding a cause and in determining the scope to be taken by the new trial, if the error in the previous trial relates only to a certain issue or feature of the case which is not at all dependent for its proper trial on other issues in the case already satisfactorily tried and disposed of, and a partial or limited retrial will work no injustice to any of the parties to the cause, then the cause may properly be remanded for the retrial of the issue or feature theretofore erroneously tried, and for that purpose alone. However if the whole of the issues are so interrelated and interdependent that the trial of the one issue or feature necessarily involves the trial of the other, then the whole case, if before the appellate court, should be remanded for a new trial so that the rights and liabilities of the respective parties may be tried out and adjudicated at one and the same time, by the same jury, and upon the same evidence, to the end that inconsistent findings may thus be avoided. 4 C.J. 1194.’ Bramblett v. Harlow, Mo.App., 75 S.W.2d 626, 633; Hall v. Martindale, Mo.App., 138 S.W.2d 657, 660.

The petition here and Ogle’s cross-claim are not interrelated and interdependent but instead are independent of each other. The transaction between Ogle and Comegys was separate and distinct from, and occurred after, the transaction between Chrysler Credit and Ogle.

If the petition against Ogle and the cross-claim were the only issues to be considered, then reversal and remand could be ordered as to the cross-claim only, allowing Come-gys’ judgment against Ogle to stand. However, the remand of the verdict against Chrysler Credit on plaintiff’s petition must be taken into account. The jury verdict considered the element of punitive damages as common to both parties and for that reason the cause must be remanded for a trial of all the issues.

Punitive damages are based (among other things) upon the defendant’s ability to pay. The amount of punitive damages awarded by the jury against both Ogle and Chrysler Credit may have been influenced by the financial ability of Chrysler Credit even though there was no direct evidence on this point. An affirmance of the punitive damage award against Ogle when it may have been based upon the ability to pay of Chrysler Credit and a retrial of the petition against Chrysler Credit and the cross-claim issues only may work an injustice to Ogle.

Although the issue of punitive damages was submitted by separate instructions as to each defendant the verdict forms submitted did not permit the jury to find against each defendant separately. The three applicable verdict forms allowed the jury to find against both defendants in a single verdict director, (which is quoted above), or against Ogle and in favor of Chrysler Credit or against Chrysler Credit and in favor of Ogle. The jury found against both defendants. The jury should have been given verdict forms allowing them to find against each defendant separately while holding both liable.

Comegys in her brief claims error on the part of the trial court in rendering judgment on Ogle’s counterclaim after the jury neglected to return a verdict on the issue. It was error, and although Comegys failed to file a motion for a new trial and thus preserve this point for review, the judgment as to the counterclaim will also be reversed and remanded. It is an integral part of the transaction and should be considered along with the other issues to be retried.

The judgments are reversed and the cause remanded for a new trial on all the issues.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.