author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    In the Matter of the ESTATE of Elmer A. GOULD, Deceased. Appeal of Wayne R. STARR, Jr.
    No. KCD 27595.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.
    Application to Transfer Denied April 11,1977.

      Thomas M. Sullivan, Eileen S. Sullivan, Downey, Sullivan & Fitzgerald, Kansas City, for appellant.
    James L. Gillham, Independence, I. Lee Kraft, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment on trial de novo, Section 472.250, RSMo 1969, which, inter alia, removed Wayne R. Starr, Jr., as executor, denied his application for fees, and ordered him to make restitution to the estate in sum $126,741.40, for- money improperly drawn by him as fees. The questions are whether Wayne R. Starr, Jr., has been guilty of misconduct and wrongful conduct as a fiduciary in the Estate of Elmer A. Gould; and, if so, whether such misconduct and wrongful conduct justified his removal as executor and denial to him of compensation. Affirmed.

Elmer A. Gould died testate October 20, 1968, survived by his widow, Sylvia T. Gould, and his three minor children, Mary Elizabeth, Patricia Elizabeth, and Joan llene. His Last Will and Testament with three Codicils was admitted to probate October 28, 1968. Under the will, Sylvia T. Gould received her residence, household possessions, and furnishings; Christine L. Moreland received certain buildings and contents, the right to occupy the buildings rent free, the right to purchase them on first refusal, and $1,000 cash. The residue of the estate went to “WAYNE R. STARR, JR., my attorney * * * as the first trustee, and CHRISTINE L. MORELAND * * * as the second trustee, and the EXCELSIOR TRUST COMPANY * * * as the third trustee, all as joint trustees” of the “Gould Trust” for the use and benefit of testator’s three daughters. Wayne R. Starr, Jr., was named executor of the estate and was designated attorney for the estate and the trust.

The codicils were devoted to recitals of bitterness between testator and his wife, and to forecasts of difficulties Mr. Starr would encounter in his administration. They were also devoted to provision for adequate compensation for Mr. Starr and spoke of “absolute discretion” with respect to fees.

Wayne R. Starr, Jr., was granted Letters Testamentary, and embarked on the administration of the Gould estate. Administration of the estate proved difficult because of the nature and extent of the testator’s assets, inadequate records, and complications due to personality clashes between Mr. Starr on one side and the testator’s widow and children on the other. These difficulties came to a head on December 2, 1971, when the probate court commenced a hearing on: Petitions of Patricia Elizabeth, Mary Elizabeth, and Joan llene Gould, previously filed October 5,1971, and November 26, 1971, seeking removal of Wayne R. Starr, Jr., as executor; petition of I. L. Kraft, guardian ad litem of said children, filed during the hearing, also seeking removal of Mr. Starr as executor; application of Wayne R. Starr, Jr., executor and attorney, for approval of payment to Wayne R. Starr, Jr., of attorney’s and executor’s fees in sum $126,491.40; and so-called “Master Application” for executor’s and attorney’s fees of Wayne R. Starr, Jr., executor and attorney, filed November 30, 1971, seeking to increase the hourly rate for computation of all such fees paid or to be paid.

The children’s own petition for removal of the executor charged that Wayne R. Starr, Jr., had breached his duties as a fiduciary by failure to discharge his official duties and by “fraudulent incidents,” including diversion of $20,000 “earmarked for the minor heirs.”

The guardian’s Petition for Removal charged that Wayne R. Starr, Jr., had “breached his fiduciary capacity by actions contrary to the benefit and best interests of the heirs of the estate; that he failed to discharge his official duties; that he committed waste of such estate; that he committed mismanagement of said estate; and further that upon his Application to the Probate Court as Executor herein, he secured an Order of said Court to transfer funds from the estate to the testamentary trust contained in the above described will of the deceased, such Order being premised upon his Application that funds so transferred would be used for the use and benefit of the minor Gould children named therein, and that he thereafter, acting also as one of the Trustees of said Trust, allowed, permitted and participated in said funds having been so transferred to be paid to himself and others and that no portion of said funds were paid to said minor Gould children nor did they receive the use and benefit thereof, all contrary to his Application to this Court as Executor herein.”

The probate court hearing extended over seventeen days. Testimony covered 2136 transcript pages and involved 212 exhibits. The probate court judgment removed Wayne R. Starr, Jr., as executor and was adverse to him with respect to his “Master Application” and various other applications for fees.

Wayne R. Starr, Jr., appealed to the circuit court, where the matter was tried de novo on the petitions for removal and the applications for fees previously filed and heard in the probate court.

The trial de novo required seven days during which the transcript of evidence and exhibits in the probate court, and additional testimony covering some 800 pages, were received. The trial court made findings and conclusions including the following:

“Wayne Starr was attorney for decedent Elmer A. Gould. He was originally employed by Gould in connection with domestic troubles Gould was having with his wife, Sylvia. Starr drafted Gould's last will and testament together with three codicils thereto. A reading of the will and codicils partially demonstrates the animosity existing between decedent and his wife.. Starr has become the alter ego of decedent for the practical purpose of continuing the controversy that existed between the spouses prior to decedent’s death. After decedent’s death, Starr, who had by virtue of the will and codicils drafted, become decedent’s Executor, attorney for Executor, Trustee and attorney for Trustee, began to administer the decedent’s Estate under Order of the Probate Court. Sylvia Gould opposed every act of Starr.

“Decedent had accumulated a large quantity of property, both real and personal, located in Jackson and Clay Counties. Because of the volume of personalty, it was difficult to inventory all of the property and with the continuous opposition of Sylvia Gould, Starr’s task was made even more difficult. * * *

“During the period of time in question up to the beginning of the evidentiary hearing in the Probate Court on December 2, 1971, Starr paid to himself [$126,741.40] from the Probate Estate and in addition, $74,550.00 from the Testamentary Trust of which he, Christine Moreland (Decedent’s paramour) and Elwin L. Cady, Jr., were Trustees. * * * out of the total funds of over $87,000.00 handled by Starr in the Trust Estate, only $1,000.00 was used on behalf of the decedent’s daughters who were the beneficiaries of the Trust and $74,550.00 was used by Starr and his fellow Trustees for their personal gain.

“It is clear that the burden of proof with respect to the removal of Starr as Executor and attorney rests with the party seeking the removal, in this case, the three Gould children through their Guardian Ad Litem appointed in both the Circuit Court and Probate Court. That burden has been met. The burden with respect to the allowance of attorney’s fees rests with applicant Starr. He has not met that burden.

“Throughout the evidence, both at the Probate hearing and here, the Court is impressed with Starr’s evasive, voluble answers and remarkable lack of candor. Only after confrontation with facts unfavorable to Starr’s position did he grudgingly concede that he had committed certain acts of questionable propriety. * * *

“It would be sufficient to deny Starr any compensation [in] that on July 7, 1970, Starr applied for and received an Order of the Probate Court to transfer assets from the Probate Estate to the Trust Estate in the amount of $15,000.00 for the ostensible purpose of providing for the needs of the minor children. That application by Starr was false. Nothing was done for the minor children. The sum transferred was paid by Starr to himself as attorney’s fees and not until later was $1,000.00 expended on the children’s behalf. * * *

“If more is needed to demonstrate Starr’s breach of his duty in this Estate, there is proof that although the Probate Court had entered an Order directing the Executor to take charge of the real property, Starr sold what is referred to as the Garney property for $500,000.00 and received along with his co-trustees, $60,000.00 in cash unknown to the Probate Court. This money was put into the Trust Estate rather than the Probate Estate and used by Starr to pay himself $56,000.00 in attorney’s fees. * * * although the buyer and his attorney understood Probate Court approval of this transaction had been made, Starr as Executor of the Estate, without Court approval, entered into an unconditional guarantee to pay on behalf of the Estate a $60,000.00 note [covering the cash receipt] executed by the Trustees. While this evidence relates to Starr’s handling of the Trust Estate * * [which] is not directly before this Court in this appeal * * *, [it] shed[s] considerable light upon the manner in which Starr approached his fiduciary responsibility to preserve the Estate for the benefit of the three children of decedent. * * * it is difficult to escape the conclusion that Starr’s stewardship of this property was for his own benefit rather than the children of decedent.

“Unexplained by Starr is * * * that he charged himself and his co-trustees a so-called finder’s fee of 2% for handling the Garney transaction, all at a time when the property being sold was an asset of the Probate Estate and not of the Trust Estate. No timely report of this commission was ever made to the Probate Court nor was that Court’s approval ever sought for this most irregular and unusual transaction.

“In addition to the foregoing, there is evidence of mismanagement on Starr’s part in failing to take action required of him by the Court. * * * He failed to restrict his account at the Excelsior Springs Trust Company as ordered by the Court on July 3, 1969. Additionally, Starr did not conclude the Probate inventory. He filed improper and faulty settlements and although requested to do so by Probate Court auditors, failed to correct such settlements. Because of mistakes made by him in claiming attorney’s fees in both the federal estate tax return and the annual fiduciary returns the Estate may be subjected to possible penalties and interest by the federal government.

“Of questionable propriety was Starr’s failure to list as an asset in the inventory a promissory note for $5,639.93 executed by him, payable to decedent if living, or if not, to the Testamentary Trust.

“The foregoing matters are mentioned not only to demonstrate Starr’s unfitness to continue to act as Executor and attorney but also to demonstrate wrongful conduct on his part which forfeits his right to any fee as either Executor or attorney in this Estate. It follows that the Order of the Probate Court removing Starr as Executor and as attorney and appointing a successor Administrator Ad Litem was correct.

“By reason of Starr’s breach of his fiduciary duty, he is not entitled to any compensation and his claim for attorney’s fees must be denied in its entirety and he must reimburse the Estate for all monies improperly taken by him in the Probate Estate in the sum of [$126,741.40].”

Judgment was rendered accordingly.

Appellant does not question the above findings with respect to the facts. Suffice to say that review of the probate and circuit court transcripts provides ample support for such findings of fact.

Appellant’s position is that he had absolute power and discretion under the will with respect to payment of fees to himself; that the fees he received were fair compensation in the circumstances of his administration; and that he did not act in any improper or wrongful manner in receiving the fees he paid himself because the discretion given him obviated the necessity to obtain approval of his fees in the probate court.

During pendency of this matter in the probate and circuit courts, and on this appeal, In re Starr, Jr., 538 S.W.2d 334 (Mo. banc 1976), was decided. That was a disciplinary proceeding under Rule 4 (Code of Professional Responsibility), in which Wayne R. Starr, Jr., was disbarred for misconduct as “executor (and attorney) for the estate as well as one of three trustees (and attorney)” in the probate of the Last Will and Testament of Elmer A. Gould in Jackson County, Missouri.

The disciplinary proceeding against Mr. Starr was initiated by an information charging that he “made application to the Probate Court for and obtained an order authorizing a partial distribution of $5,000 from said estate to himself, Elwin Cady and Christine L. Moreland as trustees of the testamentary trust established by the Last Will and Testament of said Elmer A. Gould, upon the following representation: ‘That the payment of a partial distribution will allow the trustees, if they desire, to pay the present educational expenses of the children and to possibly assist the estate in settling a number of problems which concern the estate as well as the trust.’ * * made application to the Probate Court * * * for and obtained an order authorizing a partial distribution of $15,000 from said estate to himself, Elwin Cady and Christine L. Moreland as trustees of the testamentary trust established by the Last Will and Testament of said Elmer A. Gould upon the following representation: ‘There are many needed things that need to be done by the trustees for the minor children and it is important that a partial distribution of $15,000 be made to the trust at this time. Said distribution will not prejudice the estate as there are substantial assets to cover all claims many times.’ From the aforesaid partial distributions totalling $20,-000, respondent paid himself at least $14,-300, ostensibly as fees for services in some capacity, all without the approval of the Probate Court, or of any other court, or of the beneficiaries of said estate. No portion of the partial distributions mentioned above were disbursed or used by respondent or his co-trustees for the educational expenses of the testator’s three minor children. Respondent failed to include in the inventory of the assets of said estate filed in the Probate Court of Jackson County, Missouri, a $5,639.93 note made, executed and delivered by respondent in consideration of $5,639.93 loaned to him by the said Elmer A. Gould, deceased, in his lifetime. On or about June 19, 1970, respondent opened a bank account designated the ‘E. A. Gould Testamentary Trust’ account at the Noland Road Bank * * * and between said date and February 17, 1972, deposited therein moneys belonging to the said estate amounting in all to at least $79,000. With the possible exception of the $5,000 mentioned * * * above and the $15,000 mentioned * * * above, no orders were obtained by respondent from the Probate Court * * * authorizing the transfer of said moneys belonging to the said estate to the trustees of the testamentary trust or to said Noland Road Bank account. In the period between June 19, 1970, and December 6, 1971, * * * out of the moneys deposited in said ‘E. A. Gould Testamentary Trust’ account at the Noland Road Bank, respondent withdrew from and paid to himself, ostensibly as attorney, sums of money totalling at least $73,550, all without the approval or an approving order of the Probate Court * * * or of any other court, or of the beneficiaries of said trust.”

The Master found: “ * * * that respondent intended to deceive the Probate Court by failing to put in the verified application for partial distribution dated December 4,1969, that a substantial portion of the money was to be used for attorney’s fees” in that “when respondent prepared this application for partial distribution, he intended to use a substantial portion thereof for legal fees. * * * On December 3, 1969, he had been directed by the Trustees to make this application in the amount of $35,-000 * * *. Thirty Thousand of the $35,-000 mentioned in the application was to be used to pay respondent a retainer to institute an action to determine the competency of Sylvia Gould * * *. Instead of specifying that a portion of the money was actually to be used for legal fees, respondent stated in his verified application: ‘That the payment of a partial distribution will allow the Trustees, if they desire, to pay the present educational expenses of the children and to possibly assist the Estate in settling a number of problems which concern the Estate, as well as the Trust.’ * * that respondent intended to deceive the Probate Court” in the same manner with respect to the verified application for partial distribution dated July 7, 1970.

“The conduct of respondent in failing to disclose that he had executed a promissory note in favor of the deceased in the amount of $5,639.93 dated April 24,1968 was deceitful” in that “Respondent failed to include the note in the inventory filed in the Probate Court of Jackson County, Missouri, until December 4, 1973. Respondent failed and neglected to mention the said note in the ‘June 15, 1970 annual accounting.’ Respondent failed to mention said note in his letter to the Guardian of the children dated February 24, 1971.

“The conduct of respondent was deceptive with the respect to the sale of the Garney property” in that “On June 17, 1970 the Trustees executed a $60,000 promissory note payable to Charles Garney. In his application for approval of this sale filed on June 18, 1970, respondent failed to mention this loan to the Trust, which was a part of the terms and of the transaction of the sale. On June 19, 1970, he funded the Trust with the $60,000 loan by opening an account at the Noland Road Bank and on that same day paid himself an attorney’s fee of $40,-000. Five days later he paid himself an additional attorney’s fee of $17,300. In his testimony before Judge Berry relative to his possible removal as Executor, he failed to disclose the $60,000 loan made to the Trust. After being requested by the Guardian of the minor children to give an accounting of the funds in the Trust, Mr. Starr failed to disclose this $60,000 transaction to the Guardian, Mr. Kraft, in his letter of February 24, 1971, a copy of which was sent both to the Probate Court of Jackson County and the Circuit Court of Jackson County.

“Of the total amount of $80,000 which became available to the Trust, $79,000 was actually deposited in the Trust Account and respondent was paid, according to his own accounting, $74,550 in legal fees.”

The Master concluded that: “Respondent’s conduct, as illustrated by the foregoing findings * * * was deceitful,” ¶⅜ recommended disbarment,

Mr. Starr’s position in the disciplinary proceeding, both before the Master and in the Supreme Court, was the same as that on this appeal, i. e., that he had absolute discretion with respect to payment of fees to himself, and that he was guilty of no misconduct or wrongful conduct as to cause his removal or a denial of compensation.

The Supreme Court, by its finding, adopted the Master’s findings, conclusions, and recommendation, and ordered Mr. Starr disbarred.

The foregoing demonstrates a classic case of collateral estoppel in that the issues decided in In re Starr, supra, were identical to the issues of Mr. Starr’s present appeal, i. e., that he was guilty of misconduct or wrongful conduct as executor and attorney in the estate of Elmer A. Gould, particularly with respect to fees which he paid himself; that there was a final judgment on the merits, i. e., disbarment on grounds of such misconduct and wrongful conduct; and that the present appellant, Mr. Starr, was a (the) party to the prior adjudication.

In re Starr, supra, is, of course, binding on this court, and its prior determination of the question of Mr. Starr’s misconduct and wrongful conduct is conclusive on this appeal. In re Estate of Laspy, 409 S.W.2d 725 (Mo.App.1966); Gerhardt v. Miller, 532 S.W.2d 852 (Mo.App.1975); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Section 473.140, RSMo 1969, provides that if an executor “fails to discharge his official duties, or wastes or mismanages the estate,” he may be removed. Section 473.153(4), RSMo 1969, provides that if the court finds that an attorney’s services or actions in connection with an administration are “wrong, improper or injurious to the estate, no attorney fee whatsoever shall be allowed.” Accordingly, because Mr. Starr’s conduct as executor was improper and his conduct as attorney wrong, he was properly removed and denied all compensation. In re Alexander’s Estate, 360 S.W.2d 92, 106-107[28-31] (Mo.1962). The will did give Mr. Starr considerable discretion and authority with respect to his administration and fees. It did not, however, give him authority to practice deceit or profit from wrongdoing. In re Estate of Laspy, supra.

Appellant contends also that denial of compensation on grounds of misconduct was never before the probate court and, consequently, not before the circuit court; and that there was no pleading in the circuit court upon which to consider denial of all compensation.

Suffice to say that the removal petition put the executor’s conduct in issue, and the “Master Application” put all fees in issue whether previously approved and paid, paid without approval, or sought to be paid.

Judgment affirmed.

All concur.

      . “Trustees’ Memorandum” of January 21, 1970, shows that Excelsior Trust Company had withdrawn and declined to serve, and the remaining trustees selected Elwyn L. Cady, Jr., an attorney, as the third trustee, as provided in the will.

      . See also Restatement of the Law Second, Judgments, Tentative Draft No. 1, March 28, 1973, pp. 144-170, discussing § 68. “Issue Preclusion — General Rule.”


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    John E. GIGGAR, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28584.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.
    Application to Transfer Denied April 11, 1977.
    James M. Leu, Pickering, Larry L. Zahnd, Maryville, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

John E. Giggar, movant-appellant, is a 70-year-old, hard-of-hearing man who pleaded guilty to the crime of incest. He appeals a denial of a Rule 27.26 motion to vacate his sentence of four years in the Department of Corrections.

The only issue to be decided is whether appellant’s motion raised any issue of fact requiring an evidentiary hearing. Among the allegations of the discursive and rambling motion is the allegation that the mov-ant’s lawyer informed him to tell the court that no deals had been made despite what movant claims was a promise of a two-year sentence and probation.

This appeal is directly controlled by the decision of this court in the case of Burgin v. State, 522 S.W.2d 159 (Mo.App.1975). In Burgin, movant was possessed of an elementary grade education and pleaded guilty to a charge of assault with intent to kill with malice. At the time he entered his guilty plea, he related to the court facts which showed him guilty of the offense. He answered negatively when asked if any promises had been made to him. The court accepted his guilty plea and sentenced him to fifteen years imprisonment. His 27.26 motion alleged that he had been promised a sentence of two years and that counsel told him to say “no” when the court asked whether any deal had been made. The trial court denied the 27.26 motion without an evidentiary hearing; and, on appeal, this court reversed and remanded the cause, holding that this latter allegation that counsel had told movant to deny that any promises had been made would, if true, taint the voluntary nature of the plea. Since, if true, such an allegation would entitle movant to relief, he was entitled to an evidentiary hearing on the matter.

The controlling facts of Burgin are almost indistinguishable from the facts of the present case. Here, as in Burgin, movant was possessed of an elementary school education and admitted that he was guilty of the crime charged. , He denied that any promises or threats had been made to him to get him to plead guilty. However, as did the motion in Burgin, his 27.26 motion alleged that he had been guaranteed a two-year sentence with probation and had been told by his counsel to deny that any deals had been made. This latter allegation is not refuted by the record made at the time the guilty plea was entered and accepted. On the authority of Burgin, appellant’s motion alleged facts which, if true, would be grounds for relief, and the trial court should have accorded movant an evidentia-ry hearing.

The State urges this court to reconsider Burgin. It contends that Burgin allows a movant to circumvent the rule laid down in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), by merely alleging in his 27.26 motion that his attorney told him to lie to the court when asked if a deal had been made.

Burgin opens no such avenue of circumvention. The ultimate effect of Burgin on the rule that an evidentiary hearing need not be held if the motion does not plead facts which .are not refuted by facts adduced at the guilty plea proceeding is merely to require the trial court to foreclose the issue at the guilty plea proceeding. A straightforward query concerning any suggestion or direction as to the answers being made in the proceeding will serve to directly refute the claim by the record made at the guilty plea proceeding, and, under the Smith rule, no evidentiary hearing would be required.

Because movant alleged in his 27.26 motion facts which, if true, would entitle him to relief, it was error for the trial court to deny the motion without an evidentiary hearing. The cause is reversed and remanded to the circuit court for the purpose of holding an evidentiary hearing.

All concur.

      . The rule of Smith is that a 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief, and must show that such factual allegations are not refuted by the facts elicited at the guilty plea hearing.


author: ROBERT R. WELBORN, Special Judge.

text:
    Carolyn KOPP, Guardian of the Estate of Scott Kopp, a minor, et al., Appellants, v. C. C. CALDWELL OPTICAL COMPANY, C. C. Caldwell Opticians, Inc., and American Optical Corporation, Respondents, and G. R. Keirstead et al., Defendants.
    No. KCD 27566.
    Missouri Court of Appeals, Kansas City District.
    Feb. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.
    Application to Transfer Denied April 11, 1977.

      M. Randall Vanet, Vanet & Reardon, North Kansas City, for appellants.
    Edward W. Mullen, Donald C. Bollard, Deacy & Deacy, Kansas City, for Caldwell.
    Harold T. Van Dyke, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for American Optical.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries sustained by Scott Kopp, a minor, when the eyeglasses he was wearing were broken by a rock thrown by another minor, Curt Keir-stead, causing glass to enter Scott’s eye and damage it. Scott brought suit by his mother as guardian against Keirstead and his parents. Scott’s parents also brought suit against those defendants for damages they claimed as a result of their son’s injuries. The claims against the Keirsteads were settled by payment of $11,000 to Carolyn Kopp as Scott’s guardian and $8,500 to Carolyn and her husband, Earl E. Kopp.

The plaintiffs joined in their action claims against C. C. Caldwell Opticians, Inc., the seller of the eyeglasses to the Kopps, C. C. Caldwell Optical Company, the operator of a laboratory which processed the lenses sold by Caldwell Opticians, Inc., and American Optical Corporation which allegedly manufactured the lenses processed and dispensed by the Caldwell companies. The petition alleged various grounds of liability of each of the defendants. Upon trial, plaintiffs’ claims were submitted on strict liability. The jury returned a verdict in favor of defendants. After the motion for new trial was overruled, plaintiffs appealed.

Scott Kopp, born September 19, 1962, first saw Dr. Calvin Curts, M.D., a Kansas City ophthalmologist, in December, 1967. On June 10, 1968, Doctor Curts prescribed eyeglasses for Scott, calling for a plus lens to correct far-sightedness. According to Mrs. Kopp, she told Doctor Curts that she wanted “the special type [glasses] for children” and Doctor Curts pointed out that he had written “tempered” on the prescription. According to Doctor Curts, he prescribed tempered lenses for children “so that they wouldn’t be running around with breakable glass on their faces.”

Mrs. Kopp took the prescription to a retail store in Kansas City owned and operated by C. C. Caldwell Optical Company. She and Scott selected a reinforced frame and Mrs. Kopp told the Caldwell employee with whom she dealt that she “wanted the special glasses for children.” She was told: “You are going to get them. The doctor has written tempered at the top and also reinforced frames.” Mrs. Kopp asked: “Now, these are going to take care of him, right?” She was told: “Yes, they are shatter-proof, they are safer, they are stronger, you are not going to have any problems.” He told Mrs. Kopp: “* * * [T]hat is what tempered meant, that they were heat-treated to make them stronger and that they would crack but not break.”

Lee Bonner, an optician employed by Caldwell Optical as a dispenser, was the person with whom Mrs. Kopp dealt. He did not recall the transaction with Mrs. Kopp, but he recognized his handwriting on the prescription which Mrs. Kopp brought in. He stated that he never told purchasers of dress thickness tempered lenses that they would not shatter or come out of the frame or- that they would crack but not break. According to him, when the completed glasses were returned from the laboratory, they were accompanied by a blue card which contained the following language:

“Your lenses have been heat-treated for greater protection against breakage. Should they break, you will find that they do not sliver as much as ordinary glass, thereby offering some protection from eye injury.” Mrs. Kopp denied that she received such a card.

The spectacles were prepared and delivered to Mrs. Kopp and Scott who wore the first set without incident.

In November, 1968, Doctor Curts saw Scott and revised his spectacle prescription. Mrs. Kopp again went to Caldwell Optician Landing store to obtain the new spectacles. She dealt with an employee named Joe Za-jic who was dead at the time of the trial. The question of proof of conversation between Mrs. Kopp and Zajic is one of the matters involved on this appeal, the trial court having excluded Mrs. Kopp’s testimony under the Dead Man’s Statute.

The Caldwell prescription form for the changed spectacles had the word “Tem-pross” written across it. “Tempross” is a registered trademark of American Optical Company for lenses manufactured by American and designed to be heat-treated.

The glasses were made, with the lenses heat-treated by Caldwell Optical laboratory, and delivered to Mrs. Kopp.

On June 12, 1969, while he was wearing the glasses, Scott got into a rock fight with Curt Keirstead. A rock thrown by Curt struck the left lens of Scott’s glasses, knocking the lens from the frame. The only portions of the lens found were those in Scott’s eye. Two small pieces were taken from around his eye. A small piece of glass about six millimeters long, 2½ millimeters wide and less than a millimeter thick was removed surgically from the anterior chamber of Scott’s left eye by Doctor Curts on June 13. This particle of glass had penetrated the cornea, gone through the iris and punctured the anterior capsule of the lens. It had caused a traumatic cataract which was removed with complete destruction of the lens which was replaced with a contact lens. The injury caused a permanent defect but there is no necessity to detail here its effect. At the trial, plaintiffs had evidence of special damages of some $5,700.00.

Much of the evidence at the trial dealt with the method and result of heat treatment of spectacle lenses.

In the heat treatment process lenses are heated to near the softening temperature of the glass. The lens is then removed from the heating device and the outside surfaces rapidly cooled by jets of air. The interior portion of the lens cools more slowly than the exterior surfaces, causing the outside surfaces to be in compression and the interi- or in tension. The result is that the surface glass has increased resistance to failure because glass is stronger in compression than in tension.

In 1964, the American Standards Association published “American Standard Prescription Requirements for First Quality Glass Ophthalmic Lenses” (Z80.1-1964), the accepted standard in the optical industry at the time Scott’s spectacles were prepared. These standards described two types of heat-treated lenses, “Dress Eyewear Heat-Treated Lens” and “Heat-Treated Industrial Safety Lens.” Because of its greater thickness (a minimum “edge or center of 3.0 mm”) the latter lens has a greater resistance to breaking but it is not ordinarily prescribed for children. There was no contention that Scott was intended to have “Industrial Safety” lenses.

Prescription Requirements of the Standard required Heat-Treated Dress Eyewear to have “Minimum thickness, 2.0 mm.” The specified testing procedure was:

“Unmounted lens shall withstand an impact test of a steel ball dropped 50 inches as follows: Notched or drilled — Ball size — ⅛ inch. Beveled — Ball size — ⅜ inch.”

In November, 1968, the Caldwell laboratory used a hardening unit manufactured by Precision-Cosmet Company. The equipment included a “Drop Ball Tester.” Industrial Safety lenses which they heat treated were subjected to the drop ball test, but dress safety lenses were not so tested by Caldwell. Neither the president of the Caldwell companies nor the bench foreman for Caldwell laboratories in 1968, who was responsible for quality control of Caldwell laboratory’s output, was familiar with the Z80.1 standard for drop balling for dress lenses. The manual used by Caldwell in the operating of the heating unit was placed in evidence by plaintiffs. The content and use of the manual by Caldwell counsel on final argument are the source of appellants’ first assignment of error, to be dealt with below.

An expert witness for plaintiffs testified that, on the basis of his observation of heat treated and untreated lenses which failed on the drop ball test, he was of the opinion, assuming that the lens here involved had been heat treated and further assuming that the lens was in excess of two mm. center thickness, that the lens had been improperly heat treated.

The plaintiffs’ claims were submitted on a strict liability theory, as to American Optical that the lens was defective when manufactured and as to the Caldwell defendants, defective when sold, “and thereby dangerous when, put to a use reasonably anticipated.”

The jury’s verdict was against plaintiffs and in favor of all defendants. After their motion for new trial was overruled, plaintiffs appealed.

On this appeal, appellants first contend that the trial court erred in permitting counsel for Caldwells, in closing argument, to refer to portions of the manual for the heat-treating unit which appellants contend were not in evidence and, further, to misstate the content of the manual.

Plaintiffs called as their witness, Frank M. Novosel, bench foreman for C. C. Caldwell Opticians, in November, 1968, and the employee of Caldwell whose responsibility included supervision of the heat treating process. Pursuant to subpoena, Novosel brought with him the Precision Cosmet Manual, entitled “Operation and Care of the Precision Hardening Unit.” It was marked for identification as plaintiffs’ Exhibit 14 and identified by Novosel as the manual used in November, 1968, in the heat treating process. Plaintiffs’ counsel then offered the entire 11-page manual in evidence. Counsel for Caldwell objected to the offer of the entire manual because it contained irrelevant matters. Counsel for plaintiff stated: “If the Court please, I will limit it at this time to identification with specific offers.” Counsel for plaintiffs then asked the witness about the first page of the manual which was a photograph of the lens hardening unit and the drop ball tester. The witness testified that such equipment was in use at Caldwell in November, 1968. Thereupon plaintiffs’ counsel stated: “I will at this time offer the first page which contains the photograph identified as the Precision Co[s]met machine and the drop-ball tester in evidence.” Counsel for Caldwell stated that he had “no objection to the photograph.” Counsel for American Optical stated he had no objection. At this point the transcript on appeal recites:

“PLAINTIFFS’ EXHIBIT NO. 14 WAS RECEIVED IN EVIDENCE.”

In subsequent interrogation of the witness plaintiffs’ counsel inquired:

“Have you read plaintiffs’ Exhibit 14, which is the Precision Cosmet Manual?”

The witness stated he had, whereupon plaintiffs’ counsel inquired about a statement on page four of the manual, dealing with checking heat-treated lenses with a “polariscope.” (Such check shows a maltese cross pattern in the treated lens.) The manual states: “Pattern does not necessarily guarantee a perfectly hardened lens so for a position check lenses should be drop-ball tested.”

No further direct reference to Exhibit No. 14 appears until the objected-to reference by Caldwells’ counsel in his closing argument. The significance of that reference requires some detail as to the issue concerning which it was used.

In the interrogation of plaintiffs’ expert witness, Bowles, plaintiffs’ counsel asked him whether or not a lens needed to be a certain thickness to accept the heat treatment process. An objection was made that the witness had not been shown to be qualified with respect to such question. In response to the trial court’s suggestion that some further qualification of the witness with respect to the manufacturing of lenses might be in order, plaintiffs’ counsel stated:

“ * * * We are talking about heat-treatment process at this point and I an merely going to establish for (sic) this witness on this question that the thicker [the] lens is the better it is going to be. It is going to accept the heat-treating process. If you get a lens too thin it cannot handle the heat-treatment process which our lens is not one that is too thin. There is no problem on that as far as that is concerned, but it is part of the physics of heat-treatment that he is talking about.”

Subsequently, the witness, in response to plaintiffs’ counsel’s question, read from the Prescription Requirements of standards, Z80.1-1964, above quoted.

In his question to the witness which elicited the statement of his opinion that the left lens of Scott’s spectacles was not properly heat treated, plaintiffs’ counsel included the following hypothesis:

“You may further assume that the left lens met the minimum requirements by the Z80.1 standard, that to-wit, it was in excess of two millimeter center thickness.”

In the cross-examination of witness No-vosel, Caldwells’ counsel asked:

“You have mentioned two or three times as we have been talking here, you and Mr. Vanet have been talking here about a thickness of two millimeters and sometimes you just said a minimum of two millimeters thick and sometimes you said a minimum of two millimeters center thickness, the requirement for being able to heat-treat it as I understand, was that it, be a minimum of two millimeter center thickness, right?”

The witness responded affirmatively.

Lee Bonner, the employee who received the order for the first spectacles and delivered them to Mrs. Kopp, testified in response to a question from Caldwells’ counsel that a heat-treated lens had to have a thickness of two millimeters.

The final witness, called in the fourth day of the trial and in the defendants’ case, was Neill Brandt, a research physicist employed by American Optical. He testified at considerable length about the theory of heat treatment of spectacle lenses and about “Griffith flaws,” invisible defects in glass which reduce its theoretical strength. In examining the witness Caldwells’ counsel referred to dress-safety lens as one “with a center thickness in excess of minimum center thickness of two millimeters * * *.”

Cross-examination of the witness by plaintiffs’ counsel extended into the fifth day of trial. Near the end of extensive cross-examination the witness was asked the minimum thickness required by Z80.1 for the center of a plus lens. The witness responded by reading the requirement of the standard — “minimum thickness 2.0 millimeters.” The witness stated that he was not aware of any requirement of a minimum thickness at the center and outer edge of the lens. He was then handed the unbroken lens from Scott’s spectacle and asked to measure its thickness. The witness measured a center thickness of 2.8 millimeters and a minimum outer edge thickness of 1.5 millimeters.

In the opening portion of his final argument, plaintiffs’ counsel stated:

“Now there are several facts in this case that are not in dispute. In the opening statement it sounded like some of them were and some of the inferences are in dispute but some are not in dispute. One fact not in dispute is the thickness of the lens and the standard in the community. Time and time again you heard the requirement by the Z80.1 standard, that was the minimum, the minimum standard in the industry as being two millimeter thickness, minimum thickness of a lens that can be heat-treated.

“I saved for the very last to bring out to the jury the edge thickness of that lens. The first expert said it was 1.8, that was the smallest, then I asked him if he would recheck it a little closer to the edge and it turned up 1.5.

“There has been substantial testimony in this case from all the experts and others that you cannot effectively heat-treat a lens less than two millimeter thickness. That is one factor that in and of itself and nothing else in this lawsuit is a defect, it’s sold as a heat-treated lens. However, it was sold shatter-proof, heat-treated, whatever it was sold as a tempered lens. That is beyond doubt and you cannot effectively temper a lens that is 1.5 thick, and that is not in dispute.

“MR. MULLEN: I object to that. That is not the evidence in the case at all.

“THE COURT: Overruled.”

In his closing argument, Mr. Mullen, counsel for Caldwells, stated:

“* * * He says, ‘Why the lenses were too thin.’ You remember Mr. Novosel was on the stand and he was examining him about it and he says, ‘A minimum center thickness of two millimeters.’ The evidence is' these were 2.8 in the center and I believe the measurement, the man made this morning was 1.5 millimeters on the edge. That gives you an average of 2.15 millimeters thickness and the book on the lens hardening procedure says you add the thickest and the thinnest part and take the average and the time chart shows hardening of thicknesses all the way from 1.8 millimeters up to—

“(Counsel approached the bench and the following proceedings were had:)

“MR. VANET: If the Court please, I object to that testimony being argued to the jury on the basis it is not in evidence. It is outside the evidence. That exhibit has been identified and certain parts of that have been read into evidence. That exhibit is not in evidence and it is not evidence in this case. It is improper and I ask the Court to advise the jury to disregard that testimony and also ask for a mistrial.

“THE COURT: What is the number on that?

“MR. MULLEN: Exhibit No. 14, Your Honor.

“MR. VANET: Mr. Mullen insisted the whole thing not be put in evidence.

“THE COURT: This was marked and everybody used it, but I think in view of your argument and your interrogation that it would be prejudicial not to permit it, Mr. Vanet. I think it is before the jury for all practical purposes.

“MR. VANET: I ask for a mistrial.

“THE COURT: That is denied.

“(The proceedings returned to open court.)

“THE COURT: Proceed.

“MR. MULLEN: All right, sir.

“The average of that lens, Ladies and Gentlemen, 1.5 to 2.8, the average thickness is 2.15 millimeters thick and the instructions show you can harden from all the way 1.8 millimeter thick on up.”

After the jury retired to deliberate, the following occurred:

“THE COURT: Let the record show that the jury has requested by writing down on a sheet of paper that was given to them by the bailiff these exhibits, Z80.1, standard 1964 manual which was Plaintiffs’ Exhibit 5 and the Kosmet instruction manual which I understood is Plaintiffs’ Exhibit 14. Is there any objection to sending those to the jury room?

“MR. VANET: I object sending them to the jury room, number one, neither one of them is in evidence, parts have been read from both, and there is all kinds of material in there not related to the case, and maybe relating to the case but not put in evidence.

“MR. MULLEN: I join in the objection.

“MR. VAN DYKE: And I join in the objection.

“THE COURT: All parties joining, the objections are sustained.

“Here is what I have done. I have written on this page, “The jury will have to remember the evidence as it came in and the two requested documents are not in evidence.” Is that agreeable with the plaintiffs?

“MR. VANET: That is agreeable with the plaintiffs.

“MR. VAN DYKE: That is agreeable with me.

“MR. MULLEN: Well, I don’t agree that they are not in evidence, Judge. There are portions of them which are not in evidence.

“THE COURT: I thought that was the basis of the objections you fellows are making.

“MR. VANET: The record shows they are not in evidence. You are the one objecting to it.

“MR. MULLEN: I join in objecting to sending them to the jury room. I didn’t agree they were in evidence. There are portions of both that are in evidence but the vast majority of both has not been read to the jury and referred to.

“THE COURT: Frankly, all of you, this is on the record, the way this case was tried and the way you handled these exhibits I think it is frankly a gross miscarriage of justice not to send these exhibits to the jury room. You all took advantage of everything you took out of these documents and the jury has a legitimate inquiry here, it is my view. But because everybody joins in the objection, I am not going to put myself in a position of counsel. I am going to send this up, the jury will have to remember the evidence as it came in and the two requested documents are not in evidence.

“MR. MULLEN: I object to the Court instructing that the documents are not in evidence as if no part of them were not in evidence because of the objection which counsel made during argument.

“THE COURT: Overruled.”

Point I of Appellants’ brief is:

“The Trial Court erred in permitting counsel for Caldwell Respondents to inject a false issue not in evidence into the case in his closing argument when he argued to the jury that the minimum thickness is calculated by averaging the center thickness and the edge thickness of the lens and in permitting further erroneous conduct of counsel in referring to Appellants’ Exhibit 14 (the manual for the lens heat-treating unit) which was not in evidence and misstating to the jury the contents of the manual, and further in not advising the jury to disregard such argument and in failing to declare a mistrial.”

Counsel for Caldwells acknowledged that he “hurriedly looked at the time chart in Exhibit 14 and unfortunately misinterpreted it.” He in fact did so. The chart to which he referred did not purport to fix the thickness of lenses which might be subjected to heat treatment. It merely fixed the time which lenses of varying thickness should be subjected to heat. It in fact contained no reference whatsoever to a lens with a minimum thickness of 1.5 millimeters.

“A statement by counsel in argument of facts not in evidence or a misstatement of the evidence is generally regarded as reversible error, * * 75 Am.Jur.2d Trial, § 258, pp. 335-336 (1974). The manual from which Caldwells’ counsel purported to argue had not been placed in evidence in its entirety. In fact, the objection of the attorney who now argues that it was in evidence is what prevented its introduction in entirety. As a result of such objection, plaintiffs’ counsel offered only specified portions of the manual using the number given the exhibit for identification purposes. At no time did counsel for either defendant offer the entire document in evidence. There were two specific offers by plaintiffs from the document and that was all the use which plaintiffs made of it. The reporter’s statement, “PLAINTIFFS’ EXHIBIT No. 14 WAS RECEIVED IN EVIDENCE,” must be considered in the light of the offer by plaintiffs’ counsel, limited to the first page of the exhibit. That is the offer which the court accepted and the reporter’s formal statement for the record cannot enlarge the offer.

The case differs from those cited and relied upon by Caldwells in support of their argument that the entire document was in evidence. Caldwells rely upon cases in which it has been held that where both parties treat documentary evidence as if it had been placed in evidence, the failure to place the document itself in evidence does not make the use in evidence of excerpts from its contents error. Baker v. Atkins, 258 S.W.2d 16, 21[11, 12] (Mo.App.1953); Charles v. Patch, 87 Mo. 450 (1885); In re Estate of Layne, 403 S.W.2d 242, 245[3, 4] (Mo.App.1966); City of St. Louis v. McCully Const. Co., 184 S.W. 939 (Mo.App.1916), and Wolfe v. Knights and Ladies of Honor, Supreme Lodge, 160 Mo. 675, 61 S.W. 637 (1901), are cases of this nature. Here, a document was involved, only express parts of which were placed in evidence, and counsel who sought to make use of other parts failed to offer them in evidence and in fact by his objection prevented the reception of the entire document.

Respondents Caldwell also argue that plaintiffs abandoned the issue of a defect based upon the insufficient thickness of the lens. In support of this contention they point to the statement to the court by plaintiffs’ counsel, above quoted: “Our lens is not one that is too thin. There is no problem on that as far as that is concerned.” They also point to the fact that, in this hypothetical question to his witness Bowles, plaintiffs’ counsel’s question assumed that the lens met Z80.1 standards in that it “was in excess of 2 mm. center thickness.”

When plaintiffs’ counsel asked the witness to measure the thickness of the right lens, there was no objection that any claim on that basis had been abandoned. Nor was such objection raised when plaintiffs’ counsel argued the issue to the jury. At the trial Caldwell counsel obviously considered the issue in the case when he sought to answer it by a misstatement of the content of the manual.

Caldwell counsel now argues that he failed to produce evidence as to the meaning of the Z80.1 standard with respect to thickness because he considered that plaintiffs had abandoned the issue. However, the record discloses that no such position was advanced in the trial court. Counsel did interrogate his witness Novosel on the minimum thickness required for heat treatment and in his argument referred to Novo-sel’s testimony that a minimum center thickness of 2 mm. was required.

Inasmuch as in the conduct of the trial, there was no evidence that Caldwell counsel considered that the issue of minimum thickness had been abandoned, his erroneous reference to the content of the manual cannot be dismissed as harmless error.

Likewise, Caldwells’ contention that the error was harmless because invited by plaintiffs’ counsel’s injection of an abandoned issue into the case is without merit. This was not a case of invited error. The issue was properly in the case and plaintiffs’ counsel’s argument of it on the basis of the evidence in the case did not entitle Caldwell counsel to go beyond the evidence in response.

The prejudicial nature of the action of the Caldwell attorney is obvious. The trial court should have sustained the plaintiffs’ objection to the use of the manual by Caldwell counsel to refer to matters not placed in evidence. The error was compounded when counsel erroneously stated the content of the manual. No objection on that ground was made in the trial court but a correct ruling on the original objection would have avoided the problem. This is an error which requires reversal of the judgment in favor of Caldwells unless, as they contend, no submissible case was made as to them. That question will now be considered, along with the contention of American Optical that no submissible case was made as to it.

Plaintiffs did present evidence of a defect in the lens which broke, resulting in injury to Scott. Their expert testified that, in his opinion, the lens had been improperly heat treated. Caldwells have not here attacked the admissibility of such opinion evidence. There was also evidence from which it might have been found that the lens was defective because it failed to meet minimum standards of thickness for heat treatment. As Caldwells argue, there was no direct evidence of the thickness of the lens which broke. However, there was evidence concerning the companion lens and other evidence from which it might have been inferred that the broken lens was of a similar thickness.

Caldwells argue that plaintiffs’ evidence failed to make out any causal connection between the alleged defects and the injury sustained. They argue that no one for plaintiffs ever asked and no one for Cald-wells ever represented that the lens would withstand being hit by a rock in a rock fight. They argue that the legal cause of the injury was the action of the Keirstead boy in throwing the rock which struck the lens.

The evidence made a submissible case as to whether or not Scott’s injury was the direct result of the allegedly defective condition of the lens. The object of heat treatment was to reduce the danger from slivers when a lens fractured. A jury could find from the evidence here that the lens, when used in a reasonably to be anticipated manner, failed to fulfill its purpose because of defects which might have been found to exist.

As to American Optical, however, the situation is different. The charge there is that the lens was defective when manufactured. There is considerable doubt that the evidence was sufficient to show that the lens was manufactured by American. It is, however, not necessary to pursue that issue because the evidence is wholly lacking as to the condition of the lens when American completed its manufacturing process. Plaintiffs’ expert testified that the defect which he found was in the heat treatment process which was not done by American. Even as to the thickness of the lens, there was no evidence that American represented that this lens was one which might be subjected to heat treatment. Absent such evidence, there could be no finding of defective manufacture on this score. The evidence failed to make a case of liability on the part of American Optical and the judgment in its favor must be affirmed without the necessity of considering the allegation of trial error as to it.

As to Caldwells, however, the judgment must be reversed because of the error above discussed. Because the problem will undoubtedly recur on a retrial, consideration will be given to the contention regarding the application of the Dead Man’s Statute to testimony of Mrs. Kopp regarding conversation with Caldwell dispenser Zajic who was dead at the time of the trial.

The trial court properly excluded Mrs. Kopp’s testimony. She was a party to the contractual arrangement concerning which she sought to testify. Zajic, the deceased, was the agent of the other party. His death, under § 491.010, disqualified Mrs. Kopp from testifying to the conversations with him. Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, 397[6] (1933); State ex rel. State Highway Comm. v. Jacobs, 281 S.W.2d 597, 598—599[1] (Mo.App.1955); Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 170[1-7] (Mo.App.1975).

This is not a case of agent of one party testifying to dealings with the deceased agent of the other party as was the situation in J. E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862 (banc 1943), cited and relied upon by appellants. Mrs. Kopp was the surviving party to the contract for purchase of the spectacles. She was not an agent for her son who as a minor could not appoint an agent. Bell v. Green, 423 S.W.2d 724, 730[4-9] (Mo. banc 1968). The court properly rejected an offer of proof that Mrs. Kopp’s testimony be admitted only in favor of her son. He, insofar as his claim involved representation made to his mother, was in the position of “claiming under” his mother as the actual party to the contract. § 491.010, RSMo 1969.

Mrs. Kopp’s testimony would have related to contractual dealings with the agent authorized to transact the sale of lenses on behalf of Caldwell. This case does not fall within the holding of Freeman v. Berberich, supra, permitting the party injured by the tortious conduct of a servant, since deceased, to testify to the servant’s acts in a cause of action against the master.

Inasmuch as Zajic’s death occurred after Mrs. Kopp’s deposition had been taken, the taking of the deposition did not amount to a waiver of her disability to testify to her conversation with Zajic. DeMott v. Dillingham, 512 S.W.2d 918, 920[1-3] (Mo.App.1974).

Appellants’ contention of error based upon the trial court’s giving one converse instruction on behalf of Caldwells against all claims of plaintiffs is without merit. The instruction conversed only the elements common to plaintiffs’ four verdict-directing instructions. Therefore, the use of a single converse was correct. Murphy v. Land, 420 S.W.2d 505, 507[2] (Mo.1967); Watterson v. Portas, 466 S.W.2d 129, 131-132[4] (Mo.App.1971). The instruction did not purport .to converse the issue of damages^ as was the case in Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974), and Burrow v. Moyer, 519 S.W.2d 568 (Mo.App.1975). (Inasmuch as the conclusion has already been reached that no submissible case was made against American Optical, there is no occasion to reach the appellants’ contention of error as to it in the submission of multiple converse instructions.)

Judgment affirmed as to American Optical Corporation. Judgment reversed as to C. C. Caldwell Opticians, Inc. and C. C. Caldwell Optical Company, and cause remanded for a new trial as to them.

All concur.


author: BILLINGS, Chief Judge.

text:
    Margie GREGORY, Plaintiff-Appellant, v. Melvin GREGORY, Defendant-Respondent.
    No. 10111.
    Missouri Court of Appeals, Springfield District.
    Feb. 9, 1977.
    Motion for Rehearing or to Transfer Denied March 1, 1977.
    Dean S. Johnston, Joplin, for plaintiff-appellant.
    Vernie R. Crandall, Frieze, Crandall & Crawford, Carthage, for defendant-respondent.
   BILLINGS, Chief Judge.

Plaintiff, former wife of defendant, sued the defendant for an alleged breach of an oral contract. Trial was to the court and at the close of plaintiff’s evidence, the court ruled the alleged agreement was illegal and unenforceable and entered judgment in favor of the defendant. We affirm.

In 1973 the defendant wanted a divorce from plaintiff but was without legal grounds and a nonresident of this state. In exchange for an uncontested divorce wherein plaintiff would be the petitioner, the defendant orally agreed to convey to plaintiff the family residence and discharge the mortgage indebtedness against it. Following the divorce the property was conveyed to plaintiff but defendant refused to pay the mortgage and this suit, seeking the amount of the indebtedness, was filed.

Plaintiff and defendant had been separated for five years and defendant was living with another woman. Plaintiff would not seek a divorce and would have contested such a proceeding if defendant had attempted to initiate the same. Defendant was not an innocent and injured party, was without grounds for divorce, and a nonresident of Missouri. It was only after he agreed to plaintiff’s terms and conditions that an uncontested divorce proceeding was instituted and concluded. Plaintiff’s evidence shows that an uncontested divorce was bargained for. The agreement was illegal, void, and against public policy. Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731 (banc 1950); Murray v. Murray, 293 S.W.2d 436 (Mo.1956).

The judgment is affirmed.

AH concur.


author: TITUS, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Earl MOULDER, on Exceptions of Austyn O. Swenson and Justine Swenson, Defendants-Appellants.
    No. 9739.
    Missouri Court of Appeals, Springfield District.
    Feb. 15, 1977.
    Rehearing Denied March 7, 1977.

      Bruce A. Ring, Jefferson City, George M. Johnson, William T. Powers, Jr., Springfield, for plaintiff-respondent.
    Charles C. Shafer, Jr., A. Howard Cham-berlin, Kansas City, for defendants-appellants.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

This case was reassigned to the writer for opinion. Mr. and Mrs. Swenson, the defendants, were owners and developers of an 80-acre subdivision known as Eastwood Hills. By condemnation the State Highway Commission of Missouri (state) took 8.23 acres of this land, plus .03 acres for a permanent drainage easement, for the construction of U.S. 65 By-Pass located east of Springfield. Defendants calculated their damages at $344,475, while witnesses for the state opined defendants’ damages ranged from $80,450 to $100,000. The jury assessed defendants’ damages at $127,500 and they appealed.

A defendants’ point relied on which we initially consider has the following factual background. It is gleaned from the record that during pretrial conversations or conferences the state’s lawyer and perhaps also the trial judge were advised that only Mr. and Mrs. Swenson would appear as expert witnesses on their own behalf. The transcript further reflects that before defendants’ present counsel became involved in the matter, defendants were represented by an attorney who died ere the cause came to trial. The deceased attorney had engaged Hubert Riebold and maybe another as appraisers to familiarize themselves with the damages defendants would or had sustained because of the eminent domain taking by the state. During presentation of defendants’ case-in-chief, and while Mr. Swenson was being cross-examined by state’s counsel, this happened: “Q. Mr. Swenson, did you ever employ a real estate expert to appraise this for you? A. Yes, sir. Q. Why are they not here? A. Because one of them looked you up and discussed it with you. . Q. What about Hubert Riebold? . . . THE WITNESS: I have no confidence in him. Q. Which one? A. Hubert Riebold. Q. Did he make an appraisal for you? Don’t give me the figures; did he make an appraisal for you? A. I believe so.”

After defendants rested, the state started its case-in-chief with two expert witnesses on damages. When the state indicated its third expert witness was to be defendants’ appraiser Riebold, who was present in response to subpoena, defendants entered their vehement objections. As they do now on appeal, both sides relied on State ex rel. State Highway Commission v. Kalivas, 484 S.W.2d 292 (Mo.1972). The state argued to the trial court (repeated to this court) that Kalivas was authority for permitting it to use Riebold as an expert witness. Defendants urged (as repeated here) that Kalivas and State ex rel. State Highway Commission v. Crain, 496 S.W.2d 867 (Mo.App.1973) required sustention of their objections. Although declaring itself dubitante, the trial court overruled defendants’ objections and permitted Riebold to testify for the state. Defendants say this was “Gross error.”

Readers hereof are cautioned to observe that the instant case was tried and that Kalivas and Crain were written prior to the effective date (January 1, 1975) of present Supreme Court Rule 56, V.A.M.R., entitled “General Provisions Governing Discovery.” We shall not concern ourselves with the effect, if any, present Rule 56 may have on the holdings in the reported cases, supra, nor how the rule might have affected this cause had it been in force when the case was tried.

In Kalivas, defendants-condemnees employed three appraisers to establish their damages. Two of the appraisers testified at trial; the third appraiser did not, and his services apparently had been terminated by defendants. When one of the defendants took the stand to testify during defendants’ case-in-chief, he was asked on cross-examination about the employment of the nontes-tifying appraiser employed by defendants. During its case-in-chief after defendants had rested, the state undertook to call the appraiser not produced by the defendants for the purpose of placing his opinion as to damages before the jury. The trial court refused to permit the proposed witness to testify on the ground that his opinion constituted a “ ‘work product’ ” of defendants. Following a verdict which left the defendants $42,500 short of the commissioners’ award, the trial court granted defendants a new trial because “ ‘the disclosure to the jury of an additional appraiser having been employed together with failure of [defendants] to use said appraiser . . . did possibly, if not probably, prejudice the jury.’ ” The state appealed from the order granting defendants a new trial. In affirming the judgment awarding the new trial, the Supreme Court said (484 S.W.2d at 295[3, 4]): “In so far as this case is concerned, [defendants’ appraiser which they did not call] was available for plaintiff to call as its own witness. Plaintiff, if it so elects, should not be allowed to establish the prior employment of such witness by defendants during its case in chief. The defendants, during cross-examination, may decide not to establish the prior employment, however, if they elect to do so, they may bring out the fact of such employment and the termination thereof in an attempt to affect the credibility of such witness before the jury. If the first alternative is selected by defendants, argument relative to the prior employment of [defendants’ appraiser which they did not call] would be improper. If defendants, however, bring out such fact while seeking to establish that the testimony of such witness should not be given any probative value, the same would be a subject for argument by either side.”

In the instant matter, the trial court concluded, and we think erroneously, that the restriction placed on the state by Kali-vas applied only if revelation of Riebold’s employment by defendants came during presentation of the state’s case-in-chief. The trial court, as the state argued then and now, permitted the expert testimony of Riebold as a witness for the state because the disclosure of his hiring by defendants was established in the cross-examination of Mr. Swenson during defendants’ case-in-chief. Seemingly the task in Kalivas, as appears from the complete text, was to seek a balance of the concept of “work product,” preventing as it then did discovery of the conclusions of an opponent’s expert, with the view that all witnesses who can aid the jury should be available to any party. This accommodation, of somewhat opposing concepts, would not be advanced by preventing disclosure of defendants’ prior employment of the expert in the state’s ease-in-chief, while sanctioning disclosure of the very same information through cross-examination of a witness who testifies in the defendants’ case-in-chief. To say that the state could not make it known to the jury that Riebold had been employed by defendant during its case-in-chief but condone the use of the expert by the state after the jury learns of the employment through cross-examination of a defendant, is placing form before substance. Or, to paraphrase defendants’ brief, it is the disclosure to the jury of “the prior employment that is the poison apple, not when you bite it!” In our view, the overall evil to be avoided is establishing, during any phase of the trial, that the appraiser had been employed by the adversary. State ex rel. State Highway Commission v. Crain, supra, 496 S.W.2d at 870.

We hasten to underscore that despite the “case-in-chief” language in Kali-vas, the facts there are the same as the one before us, i.e., the disclosure of defendants’ employment of the appraiser by defendants came through cross-examination of one of the defendants. Yet the grant of a new trial, based on prejudice to the defendants, was affirmed, a result which would not square with a limitation of the nondisclosure rule to the state’s case-in-chief. Also, regardless of when the disclosure is made, the option granted solely to defendants by Kalivas not to show their employment of the appraiser or to establish it on cross-examination to discredit his credibility, comes to naught. The neglect or failure of a party to call a witness within his power who has knowledge of the facts in issue is said to raise a strong presumption that the testimony would have been unfavorable and damaging to the party who fails to offer it, and such failure may be commented upon in argument. However, the rule is limited. No such inference may be drawn and no unfavorable comment may be made by counsel on account of the nonproduction of a witness whose testimony is equally available to all the parties. Bean v. Riddle, 423 S.W.2d 709, 720—721[9,10] (Mo.1968). Since Kalivas (484 S.W.2d at 295[3]) held that defendants’ appraiser was available to the state as a witness, the limitation on the foregoing rule would appear applicable to silence the state, either via cross-examination or during its case-in-chief, in establishing the employment of the appraiser by defendants, thereby leaving it entirely to defendants’ choice to make the disclosure vel non. The action of the trial court in permitting Riebold, over defendants’ objections, to testify as a witness for the state when the jury knew he was employed but not produced by defendants, made an unfortunate situation acute which resulted in error prejudicial to the defendants.

The case must be retried. Hopefully the other errors, if so, complained of by defendants will not occur on retrial. Therefore, we eschew the chore of considering them at this time.

The judgment is reversed and the cause is remanded for a new trial.

Addendum

Our disposition of the appeal renders moot defendants’ motion to amend their brief on appeal which was taken with the case. Ergo, the motion is denied with our repeated admonition to all lawyers to con Rule 84.04, V.A.M.R., before undertaking to prepare a brief.

All concur.

      . In this, as in most eminent domain cases, the principal issue involved concerned the amount of defendants’ damages. Missouri State Park Board v. McDaniel, 473 S.W.2d 774, 777 (Mo.App.1971).


text:
    Richard A. NASH et al., Plaintiffs-Appellants, v. Dennis Lee MICHAEL et al., Defendants-Respondents.
    No. 10002.
    Missouri Court of Appeals, Springfield District.
    Feb. 18, 1977.

      Claude T. Wood, Dale H. Close, Wood & Close, Richland, for plaintiffs-appellants.
    Fred Foster, Jr., John Casteel, Camden-ton, for defendants-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

The Circuit Court of Camden County entered judgment in favor of the defendants in plaintiffs’ suit to establish a private roadway by prescription over lands owned by defendants.

In this court tried case, our review is under Rule 73.01, V.A.M.R., as recently construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Murphy states the judgment of the trial court is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Four essential facts are necessary to establish an easement by prescription: first, user for the prescriptive period of ten years [Guerin v. Yocum, 506 S.W.2d 46, 47 (Mo.App.1974)]; second, user was adverse; third, user was under claim of right; fourth, the owner had notice of the user, and of its character and claim of right. Carpenter-Union Hills Cemetery Association v. Camp Zoe, Inc., 547 S.W.2d 196 (Mo.App.1977).

We have reviewed the transcript and exhibits and briefs of the parties. The testimony of the nine witnesses for plaintiffs and twelve witnesses for defendants was conflicting and the trial court concluded an easement by prescription was not shown. Giving due regard to the opportunity of the trial judge to have judged the credibility of the witnesses [Rule 73.-01(3)(a)], we believe there is substantial evidence to support the judgment.

No error of law appears. An opinion would have no precedential value and the judgment is affirmed pursuant to Rule 84.-16(b), Y.A.M.R.

All concur.


text:
    In re ESTATE of Fred Hiram HAMPTON, Deceased. Mary BELL et al., Plaintiffs-Respondents, v. Edna Elizabeth HAMPTON, Individually and as Administratrix of the Estate of Fred Hiram Hampton, Deceased, Defendant-Appellant.
    No. 10196.
    Missouri Court of Appeals, Springfield District.
    Feb. 22, 1977.

      James D. Sickal, David E. Blanton, Blan-ton, Blanton, Rice & Sickal, Sikeston, for plaintiffs-respondents.
    C. A. Powell, Powell & Ringer, Dexter, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

In a bench trial the court ruled in favor of plaintiffs on their petition for discovery of assets and accounting and on defendant’s “cross-petition” to withdraw assets from decedent’s estate. We affirm.

Plaintiffs, children of Fred Hampton by prior marriages, initiated proceedings in the probate court seeking an order requiring defendant, individually and as administra-trix, to account for and pay to Hampton’s estate the proceeds of a savings certificate which was in his name at the time of his death. Defendant, as administratrix of her late husband’s estate, had inventoried an amount representing one-half of the sum paid under the certificate. She claimed the remainder of the proceeds as “co-owner” of the certificate. The case was removed to the circuit court and in her pleadings defendant sought judgment for all the proceeds of the certificate.

The undisputed facts giving rise to this controversy are as follows:

1. Fred and his former wife, Grace, were joint owners of an $8,000 certificate of deposit issued by Poplar Bluff Loan and Building Association and both had signed a signature card.
2. Grace died.
3. Fred surrendered the Fred-Grace certificate and on August 10, 1973, certificate “A” in the sum of $8,000 was issued by the saving association in the name of Fred Hampton.
4. August 31, 1973, certificate “B” in the sum of $8,000 was issued by the association in the name of Fred H. Hampton.
5. Fred Hampton was the exclusive source of the monies for certificates “A” and “B”.
6. November 12, 1973, during the marriage of Fred and Edna, the words “and Edna Hampton or either or survivor” were added to “A” after Fred’s name at his direction.
7. At an unknown date, during the marriage of Fred and Edna, the words “and Edna Hampton or either or survivor” were added to “B” after Fred’s name at his direction.
8. May 7, 1974, “A” and “B” were surrendered by Fred and certificate “C” in the face value of $16,000 was issued by the association in the name of Fred Hampton.
9. Signature cards for “A,” “B,” and “C” were prepared by the association and sent to Fred but were never executed or returned.
10. Edna had knowledge of one of the two $8,000 certficates. She did not know they had been surrendered or that “C” had been issued to Fred.
11. Fred Hampton died sometime after “C” had been issued and “C” was found in his lockbox by defendant.
12. The inventory and appraisement of Fred’s estate was dated July 22, 1974. It recited defendant had cashed certificate “C” but had charged herself, as administratrix, with only one-half the monies received and she claimed the remainder as her individual property. The value of Fred’s estate, per the inventory filed, was $49,000 real estate and $10,269.57 personal property.

The trial judge found Fred Hampton was the owner of certificate “C” at the time of his death and entered judgment accordingly-

In the case of In re Estate of LaGarce, 487 S.W.2d 493 (Mo.banc 1972), the supreme court stated that prior constructions placed on Missouri’s joint account statutes [§ 369.-150 (savings and loan associations) and § 362.470 (banks)] were erroneous and our statutes created a “statutory joint tenancy which should be given effect without consideration of the strict common-law requirements mentioned in the [previous] cases.” 487 S.W.2d at 500. (emphasis added)

The issue here presented, whether the depositor and statutory joint tenant may revoke a statutory account during his lifetime, was squarely presented and ruled in Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973). In that case the St. Louis District of this court held that a stepfather who deposited funds in a joint account with his stepson had the power during his lifetime to revoke the account and appropriate and transfer those funds to a new account, thereby divesting the interest of the stepson.

In Carroll, as in this case, the appellant relied on Feltz v. Pavlik, 257 S.W.2d 214 (Mo.App.1953). In distinguishing Feltz the court said, 498 S.W.2d at 608: “In that case the funds from a joint account of a husband and wife as tenants by the entirety were held to retain their joint character after they had been removed by the husband, placed by his brother in a new account under his brother’s name and ultimately in a joint account of the brother and his wife. The evidence in that case indicated that the funds in the original account represented the accumulation of the individual savings and earnings of both the plaintiff-wife and her deceased husband. Since plaintiff was shown to have made personal contributions to the purchase of the property, which when sold resulted in the joint account, that case, unlike the present, was a proper subject for tracing the joint funds and the imposition of a constructive trust thereon. Furthermore, the husband fraudulently transferred the money to his brother and thus was a case involving fraud upon the marital rights of the wife. See Feltz distinguished in Staehle v. Mercantile Trust Co., 327 S.W.2d 220, 226 (Mo.1959).” (our emphasis)

This is not a case involving fraud upon the marital rights of the wife, Edna. There are no allegations of such in the pleadings and no evidence thereof in the record. Edna’s marital rights in Fred’s property, including certificate “C,” remain intact. As surviving spouse she will receive one-half of his entire estate [§ 474.010, RSMo 1969], exempt property [§ 474.250, RSMo 1969], and family allowance for one year [§ 474.-260, RSMo Supp. 1975],

“We do not deal here with the traditional common law joint tenancy relationship. Nor do we deal with tenancies by the entirety. Rather, we deal with a unique, specialized type of relationship — a joint savings account which is not governed by the traditional common law rules relating to joint tenancy.” Carroll v. Hahn, supra, 498 S.W.2d at 606.

We think the Carroll ruling is sound and consistent with the recognition by our supreme court in LaGarce that a statutory joint account is what is sometimes referred to as a “poor man’s will” and is subject to revocation by the depositor of the funds during his lifetime. In Matter of Estate of Thompson, 539 S.W.2d 650 (Mo.App.1976), our Kansas City brethren arrived at the same conclusion in holding that where the source of the joint account became incompetent, her guardian had the right to withdraw the funds from the account just as the ward had before becoming incompetent.

The judgment is affirmed.

All concur.

      . Colloquy of the parties’ attorneys indicate Edna was Fred’s fourth wife.

      . LaGarce involved a transfer by a husband of saving certificates in the names of husband and wife with right of survivorship. On remand and trial the evidence showed husband had a $7,000 certificate reissued in his name alone. Thereafter, he had a third party’s name added as a joint tenant. On appeal it was held the husband’s transfer of ownership to the third party was fraudulent as to the surviving wife’s marital rights because: (a) no consideration by the third party, (b) retention of certain control over the certificate by husband during his lifetime, (c) the amount of the transfer was disproportionate to the value of the husband’s estate, (d) the transfer was not made openly and with frank disclosure, (e) the transfer occurred while husband and wife were having marital difficulties and separated, and (f) the husband, during the separation, had placed his own assets and jointly held assets beyond the wife’s control. Matter of Estate of LaGarce, 532 S.W.2d 511 (Mo.App. 1976).
      A similar result was reached in Nelson v. Nelson, 512 S.W.2d 455 (Mo.App.1974). Also see In re Estate of Lowe, 519 S.W.2d 373 (Mo. App.1975). In Nelson and Lowe the transfers were ruled gifts in fraud of marital rights in violation of § 474.150, RSMo 1969.


author: HOGAN, Judge.

text:
    Ida Bell PURDY and John K. Purdy, Plaintiffs-Appellants, v. Joyce Arlene FOREMAN, Defendant-Respondent.
    No. 9772.
    Missouri Court of Appeals, Springfield District.
    Feb. 23, 1977.

      Horace S. Haseltine, Arthur S. Haseltine, Haseltine & Haseltine, Springfield, Dan K. Purdy, Osceola, for plaintiffs-appellants.
    P. William Joyner, Miller, Fairman, Sanford & Carr, Springfield, Mayte B. Hardie, Ozark, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This case arose out of a collision which occurred about 4:30 p. m. on July 6,1970, in the intersection of Benton Avenue and Central Street in the City of Springfield, Missouri. Benton Avenue is 44 feet wide and runs north and south. Central Street is also 44 feet wide and runs east and west. Plaintiff Ida Bell Purdy was driving south on Benton Avenue in a funeral procession; defendant Foreman was driving east on Central. Defendant’s vehicle struck the plaintiffs’ automobile broadside in the southwest quadrant of the intersection. Plaintiffs Ida Bell and John Purdy brought this action in three counts seeking recovery for a) Ida Bell’s personal injuries; b) John’s loss of consortium and medical expense, and c) their joint property damage. Plaintiffs’ causes were submitted to a jury disjunctively upon 1) defendant’s negligent failure to keep a lookout or 2) defendant’s negligent failure to stop after danger of collision became apparent, and 3) upon plaintiff Ida Bell’s contributorily negligent failure to obey a traffic control signal. By unanimous verdict the jury found all issues tendered in favor of the defendant. Plaintiffs appeal.

The appeal turns upon the proper interpretation of one, or possibly several, ordinances enacted by the City of Springfield. Plaintiffs’ second amended petition contained nine specifications of negligence, one of which read:

“3(e). [That defendant carelessly and negligently failed] to yield the right-of-way to motor vehicles in a funeral procession in violation of the Springfield City Code, Motor Vehicles and Traffic, Section 22.77 et Seq. which provides, inter alia, ‘no person shall drive a vehicle between the vehicles comprising a funeral procession or other authorized procession while they are in motion and when such vehicles are designated as required in this chapter’.”

By pretrial motion defendant moved to strike paragraph 3(e) of plaintiffs’ petition because “the Section of the Springfield City Code which is quoted therein ... is unconstitutional because it is contrary to the State Statutes of the State of Missouri.” Prior to trial, and without specifying its grounds, the trial court struck paragraph 3(e) of plaintiffs’ petition. Defendant’s answer, we note, specifically denies each and every allegation contained in paragraph 3(e) of the petition. Trial of the cause began on March 18,1974. In proceedings out of the jury’s hearing, plaintiffs’ counsel stated to the trial court that plaintiffs still believed “the ordinance” was “in this case” and requested permission to refer to the ordinance on voir dire and in opening statement and requested permission to “prove up” the ordinance. Defendant objected and the request was denied. Plaintiffs’ counsel then asked if it were necessary to offer the ordinance and the trial court stated he did not consider it necessary. No ordinance enacted by the City of Springfield appears in the record; parts of one or several ordinances are quoted or pleaded.

The parties have expended considerable effort developing the issues they conceive to be controlling. Plaintiffs have meticulously briefed their argument that the enactment of Chapter 22 of the Springfield City Code is a valid exercise of the legislative authority vested in the City of Springfield by its constitutional charter; defendant has devoted as much effort developing the contrary. The issues presented are, in point of fact, more limited than the parties seem to believe. True, the defendant moved to strike paragraph 3(e) of plaintiffs’ petition upon the broad ground that the quoted ordinance was “unconstitutional”, but it is not necessary to look to, much less construe, Mo.Const. Art. VI, § 19(a) (as amended), to determine the validity of that purported section of Springfield’s ordinance; Springfield’s charter provisions, which we must notice judicially, State ex rel. Voss v. Davis, 418 S.W.2d 163, 172 (Mo.1967), permit the city to adopt safety and other similar regulations “not in conflict with general laws”. Charter of the City of Springfield, Missouri, § 2.16, para. 4. Moreover, there is no record basis for the assumption that the trial court ruled defendant’s motion to strike on constitutional grounds; it may instead have based its ruling on an interpretation of the ordinance, and because the record does not indicate whether the trial court struck paragraph 3(e) on the ground of constitutional conflict or upon the conclusion that the quoted section did not regulate the right-of-way as between these litigants, we must infer that a ruling upon any constitutional question presented by defendant’s motion to strike has been avoided. Motchar v. Hollingsworth, 162 S.W.2d 805, 806-807 [1] (Mo.1942); Juengel v. City of Glendale, 161 S.W.2d 408, 409—410 [4] (Mo.1942); 1964 Wash.U.L.Q. 462, § 1.022(b).

Reduced to essentials, the substantive question presented in this case is whether the Springfield ordinance, partially pleaded and quoted, creates an actionable right in plaintiffs, and on the record before us, we simply cannot decide that question with any reasonable degree of confidence in the fairness and accuracy of the result. Subject to exceptions not material here, municipal ordinances are not judicially noticed by the courts of this state; their existence and contents must be proved. City of St. Louis v. Roche, 128 Mo. 541, 544-545, 31 S.W. 915, 916 (1895); State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123,127 [4] (Mo.App.1975). In this case there was neither any attempt to offer or prove the whole ordinance as provided by § 82.200, RSMo 1969, V.A.M.S., nor have the plaintiffs set out the ordinance in full in their brief. Plaintiffs assert that the ordinance gave them the right-of-way regardless of the condition of the otherwise controlling signals. However, before we could confidently say that plaintiffs’ presence in a funeral procession gave them the right-of-way, and that defendant’s failure to yield constituted actionable negligence, it would be necessary, in our opinion, to examine the quoted part of the ordinance in context. Before it can be held that the violation of a statute or ordinance constitutes actionable negligence, it must appear that 1) there was in fact a violation of the ordinance; 2) the injured party was within the class of persons intended to be protected by the ordinance; 3) the injury complained of was of such character as the statute or ordinance was designed to prevent, and 4) the violation was the proximate cause of the injury. Endicott v. St. Regis Investment Co., 443 S.W.2d 122, 125-126 (Mo.1969); Sayers v. Haushalter, 493 S.W.2d 406, 409 [6] (Mo.App.1973). We are convinced here that without examining the whole “traffic code”, to which both parties refer, we cannot say that plaintiffs’ injury and damage are of the character the ordinance was designed to prevent. We do not even know judicially, on the record before us, that the ordinance is a penal ordinance. Certainly we cannot convict the trial court of error in striking out paragraph 3(e) of plaintiffs’ amended petition or in refusing to permit counsel to read it to the jury.

We would not have the plaintiffs believe they have been unduly imposed on because of the niceties of the law of evidence, or because they followed the court’s suggestion (which does not change the law) that proof of the ordinance was unnecessary. Although it is not necessary to our ruling in this case, we may say that we have examined similar “funeral procession” statutes and ordinances from other jurisdictions, and find they have not been construed to give funeral processions the unqualified right-of-way at signal-controlled intersections. See, e. g., Guidry v. Como, 332 So.2d 579, 581 (La.App.1976); Merkling v. Ford Motor Co., 251 App.Div. 89, 296 N.Y.S. 393, 400-401 [11-12] (1937); Przybyszewski v. Nunes, 168 Pa.Super. 311, 77 A.2d 703, 705-706 (1951). As the New York court observed, it is difficult to find any good reason why a funeral procession should be given license to violate an adverse signal. No haste is required when a funeral procession is passing; no emergency exists. On the other hand, neglect to heed a proper signal is the cause of a good many accidents, and surely the aim of traffic ordinances is to prevent, not increase accidents. So, while we cannot, for the reasons stated, so hold, it would appear that the quoted section of the “traffic code” does not have the effect contended for by the plaintiffs. The trial court may well have construed the ordinance as we have, i. e., as having nothing to do with the right-of-way in the present circumstances; if so, there was no error because it is immaterial on what grounds the trial court purported to rule if it ruled correctly. Spiking School Dist. No. 71, DeKalb County v. Purported “Enlarged School Dist. R-II, DeKalb County, Mo.”, 362 Mo. 848, 859, 245 S.W.2d 13, 16-17 [2] (banc 1952); Missouri Electric Power Co. v. City of Mountain Grove, 352 Mo. 262, 269, 176 S.W.2d 612, 616 [10] (1944).

Plaintiffs have briefed an additional point involving the same issues. The assert that the trial court erred in giving Instruction No. 7, which advised the jury that their verdict must be for defendant on the claims of both plaintiffs if the jury found: 1) that plaintiff Ida Bell Purdy violated the traffic signal; 2) that such conduct directly caused or directly contributed to cause any damage plaintiffs might have sustained. The principal complaint made of this instruction is that it ignores plaintiffs’ “right” to be in the intersection as a participant in the funeral procession. For the reasons stated and restated, we cannot, upon this record, rule this point.

Plaintiffs’ final point is so diffusely presented as to be difficult to follow. The essential issue tried was, simply, who had the green light at the intersection? There was substantial evidence that Mrs. Purdy entered the intersection on a red light or upon an amber light preceding a red light; defendant and her sister Twila testified that the light was green for defendant as she entered the intersection. A jury resolved this issue for the defendant, even though the plaintiffs’ injuries and damage were extensive.

Plaintiffs sought a new trial upon the ground, among others, that evidence procured by them (an affidavit) after trial shows it was physically impossible for defendant to have entered the intersection on a green light. We doubt that in any event the plaintiffs were entitled to a new trial upon the ground asserted; the affiant was at all times available to plaintiffs at the trial because he was subpoenaed and testified at the trial and no good reason appears excusing plaintiffs from eliciting the facts they now seek to present at the time the case was tried. See Gehner v. McPherson, 430 S.W.2d 312, 316 (Mo.App.1968).

Granting, however, that testimony the affiant would produce would support counsel’s involved analysis of the facts and indicate that defendant’s version of the facts was inherently impossible, it does not follow that the trial court abused its discretion in failing to grant plaintiffs a new trial on that ground. There was other evidence, unobjected to, which was identical to defendant’s testimony, specifically, the testimony of defendant’s sister Twila. In view of the fact that the plaintiffs had the burden to persuade the jury, and because upon this record the jury may have reached its verdict because it did not believe plaintiffs’ witnesses, and because it was for the trial court alone to say whether the verdict was against the weight of the evidence, we cannot in the circumstances convict the trial court of error in denying plaintiffs’ motion for new trial upon the ground that defendant’s version of the facts was inherently impossible. Clark v. McKeone, 234 S.W.2d 574, 576 [2-5] (Mo.1950).

We find no error materially affecting the merits of the action in any respect briefed or argued here; accordingly the judgment is in all respects affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Marvin FIELDS, Defendant-Appellant.
    No. 10146.
    Missouri Court of Appeals, Springfield District.
    March 1, 1977.
    Motion for Rehearing or Transfer Denied March 11, 1977.
    Application to Transfer Denied April 11, 1977.

      John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Loren R. Honecker, Springfield, for defendant-appellant.
   PER CURIAM.

Defendant James Marvin Fields, a self-styled professional burglar, was convicted of second degree burglary by a Greene County jury and sentenced as a habitual criminal by the trial court to a term of ten years imprisonment. We affirm.

A Springfield dwelling was forcibly entered during the nighttime. The intruder triggered a silent alarm system which summoned friends of the absent owner and policemen. A few minutes later the defendant was found hiding in a stream of water which flowed beneath the house.

We have reviewed the trial transcript and the briefs of the parties. The trial court suppressed an oral statement allegedly made by the defendant to the police at the scene of his arrest. We find no error in its refusal to declare a mistrial because of the state’s previous nondisclosure of the purported statement. The sanction of exclusion of the alleged statement comports with Rule 25.45, V.A.M.R., and the denial of a mistrial did not constitute an abuse of discretion by the trial judge.

Defendant’s second and third points are also without merit. He complains the court erred in denying him state assistance in securing witness DeCamp’s presence at the trial and in denying him a continuance to enable DeCamp to appear and testify. The state was under no obligation to pay the expenses of DeCamp, a prisoner in a West Virginia penal institution, and defendant’s application for a continuance failed to comply with Rule 25.08, V.A.M.R. By agreement the defendant was permitted to read the statement of DeCamp to the jury. DeCamp’s testimony, thus received, was merely cumulative to that of defendant and other defense witnesses as to his physical and mental condition prior to the burglary.

There is substantial evidence to support the verdict and no error of law appears. An opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b), V.A.M.R.

All concur.