text:
    Billy J. BARLOW and Laverne Barlow, his wife, Appellants, v. Douglas J. THORNHILL and Wieton W. Pierce, Respondents, and Woodrow M. Lewis, Defendant.
    No. 59073.
    Supreme Court of Missouri En Banc.
    May 5, 1976.
    Rehearings Denied June 14, 1976.

      Roland A. Wegmann, Richeson, Roberts, Wegmann, Gasa way, Stewart & Schneider, Hillsboro, for appellants.
    Evans & Dixon by Eugene K. Buckley, St. Louis, for respondents.
   BARDGETT, Judge.

Plaintiffs-appellants Billy and Laverne Barlow sued respondents Thornhill, Pierce, and Lewis for damages resulting from two rear-end collisions. The jury verdict was in favor of Billy Barlow and against Thornhill and Pierce in the sum of $63,000 and in favor of defendant Lewis. The jury found against Laverne on her consortium claim. Following judgment, the trial court set aside Billy’s judgment against respondent Thornhill in accordance with Thornhill’s trial motion for directed verdict. The court granted Pierce a new trial for error in Billy’s damage instruction and granted Laverne a new trial on all issues against Pierce.

Plaintiffs appealed to the Court of Appeals, St. Louis District, which by opinion affirmed the trial court’s judgment.

On application of plaintiffs-appellants, this court ordered the cause transferred. Art. V, sec. 10, Mo.Const., as amended S.Ct. Rule 83.03.

On July 23, 1971, plaintiff Billy Barlow was a passenger seated in the right rear seat of defendant Lewis’s car which was going west on Highway 40 in St. Louis county. Highway 40 at the place where the collision occurred has two lanes westbound and two lanes eastbound with a median strip between them. The Lewis car was in the inside, or southern westbound lane. Lewis was going to turn left in a crossover in order to go back east on the highway. He had slowed down to about 5-10 m. p. h. when his car was struck in the rear-end by defendant Thornhill’s car. The Thornhill car then slid sideways to the north and struck a Mr. Klingert’s car which was also westbound and in the outside right, or northernmost lane. The impact between Thornhill and Lewis was light. It dented Lewis’s rear bumper and trunk. Lewis’s car proceeded into the median and stopped headed west. Thornhill’s car came to a stop across the westbound lane and then proceeded into the median. Klingert’s car went north — to its right — and stopped either all the way off the pavement or with about the rear half of the car on the right-hand westbound lane. Klingert and Lewis said Klingert’s car was all the way off the pavement.

After the above-mention collisions occurred, the drivers and some of the passengers got out of their cars and began exchanging information while standing in the median. It began raining so they got into the Lewis and Thornhill automobiles with Billy Barlow returning to the rear seat of the Lewis car. Within a few minutes, the Pierce car, which was westbound, struck the Thornhill ear and then hit the rear-end of the Lewis car. This impact threw Barlow about inside the car and after he got out of the car he was vomiting and had trouble breathing. This last collision took place 10 to 15 minutes after the initial collision.

As to the last collision, defendant Pierce testified he was westbound in the right-hand or northern lane; that he saw the Klingert car stopped partially onto that lane of traffic and the Lewis ear was partly onto the left or southern westbound lane; that he, Pierce, turned left a bit to go between the cars and applied his brakes; that he skidded into the Thornhill car and, continuing on, collided with the rear of the Lewis car. Defendant Pierce and officer Leavitt, who investigated the collisions, testified the Klingert car was partially on the pavement. Klingert’s car was not driveable and remained in its original stopped position until towed away, and this was after officer Leavitt arrived on the scene.

Mr. Barlow described the first collision as a “light impact”, that he was not thrown around in the car by it, and immediately following that collision he was excited but he was not aware of any physical pain at that time. He described the second collision as more severe and it was after this collision he felt discomfort and physical pain.

Following the last collision, Mr. Barlow had difficulty breathing, was vomiting, and had pain in his rib cage. He was taken from the accident scene to St. John’s Hospital where he was X rayed, given a prescription, and told to see his family doctor and was sent home. The next day he had pain in his back from the neck down and pain in his ribs. He went to work on Monday but could not do his job because of pain in his back and because his feet and legs had become swollen. The next day, Tuesday, July 27, 1971, he saw Dr. Glen Calvin, a general practitioner. Mr. Barlow’s initial complaints were swelling in his hands, arms and legs; headaches, neck pain, back pain, and severe pain on bending or stooping. The doctor observed the swelling and found muscle spasm in Barlow’s neck, mid-thoracic area and lower back. Mr. Barlow made 137 visits to Dr. Calvin’s office as of May 29, 1973, one month prior to trial.

In answer to a hypothetical question, Dr. Calvin testified that in his opinion the complaints of Mr. Barlow and the injures found by Dr. Calvin were caused by both collisions. He testified he could not attribute the injuries to either the first or second collisions nor separate the effects of the two collisions with respect to causation of the injuries. In his opinion, the injuries were caused by both collisions. The doctor was asked to assume that following the first collision there was no immediate onset of symptoms and then asked if this would indicate that no injury was sustained in the first collision. The doctor answered that, in his opinion and based on his experience, most patients who have sustained that type of trauma are symptom-free for awhile, in the absence of lacerations, etc., and that trauma of that kind does not ordinarily produce spasm for 48 to 72 hours. In Dr. Calvin’s opinion, Mr. Barlow was still disabled and unable to work as of trial time. On cross-examination, the doctor testified that he had no way of knowing whether or not the first collision, without the second collision, would have produced the same symptoms.

Mr. Barlow was hospitalized at Deaconess Hospital from August 7 to August 21, 1971, under the care of a Dr. Manganaro. The diagnosis was cervical sprain, thoracic sprain, lumbar sprain, contusion of the soft tissue with injury, right thorax. Subsequently Mr. Barlow was examined and treated at Mayo Clinic, Rochester, Minnesota, and a report was sent to Dr. Calvin, which was read into evidence. Mayo’s diagnosis was post-traumatic syndrome and ti-nea cruris, pedis, and manus. No objective evidence of any neurologic impairment was found nor was there objective evidence of spinal cord disease or cervical or lumbar radiculopathy. A psychiatrist at Mayo believed Mr. Barlow was demonstrating a conversion reaction.

Dr. Walter Moore, a specialist in neurology and psychiatry, examined Mr. Barlow in August 1972 and testified as to Barlow’s complaints, his examination, finding, and diagnosis. He found nothing organically abnormal with the patient from a neurological standpoint. Dr. Moore’s diagnosis was a post-traumatic psychoneurosis with conversion reaction, marked traumatic fixation with total invalid reaction, all of which the doctor explained to the jury.

In answer to a hypothetical question, Dr. Moore testified that the two collisions were the effective precipitating cause of the psychiatric condition of Mr. Barlow. He was questioned with respect to the causative effect of the first and second collision. The doctor testified the patient’s condition was caused by a combination of the two collisions and ascribed very little weight to the relative severity of the two saying that a man does not have to have a severe physical accident to develop a severe neurosis. When asked if he could separate the two collisions with respect to the neurosis the doctor answered, “I would say it is one accident and the other and there were two factors there one acting right close to the other and they both were a summational effect.”

On cross-examination, Dr. Moore was further questioned concerning the two collisions as follows:

“Q. Well, if Mr. Barlow himself felt that his injuries and that his complaints were due to the second accident rather than the first . . . that he was hurt in the second accident and not from the first, under those circumstances would you say that his psychosis resulted from the second accident rather than from the first? A. I couldn’t — I would say that most likely it did, it being a more perpetrating factor, yes sir.”

Further cross-examination was as follows:

“Q. Doctor, do I understand your conclusion based upon reasonable medical certainty in this case however was that whatever psychiatric problem you found resulted from both accidents? A. I would say it did from both accidents. One acting as a stimulus and the other an aggravating- — a superimposed trauma to it. Q. In other words, Doctor, had the first accident not occurred isn’t it true that it is quite likely that no psychological problems that you found would have resulted in the second accident? A. I can’t answer that question. Q. You can’t differentiate between the two? A. No, sir, I cannot.”

Plaintiffs’ case was submitted on rear-end collision and following too closely as to Thornhill and on rear-end collision as to Pierce by separate instructions against each defendant and each instruction required a finding that the negligence of the particular defendant caused one of the collisions and combined with the acts of the other defendant to cause injury to plaintiff Billy Barlow.

Each defendant submitted and the court gave instructions conversing both negligence and damage. Defendant Pierce also submitted and the court gave a contributory negligence instruction authorizing a verdict for Pierce if the jury found plaintiff Billy Barlow contributorily negligent in getting back into the Lewis car when it was partially onto the traveled roadway.

The jury returned its verdict in favor of plaintiff Billy Barlow and against defendants Thornhill and Pierce and assessed damages at $63,000 and in favor of defendant Lewis. No appeals have been taken from the verdict and judgment in favor of Lewis. The jury found in favor of all defendants and against plaintiff Laverne Barlow on her loss of consortium claim.

The trial court sustained Thornhill’s motion for judgment in accordance with Thornhill’s motion for directed verdict on the ground that the evidence failed to prove that negligence on the part of Thornhill directly caused or directly contributed to cause injury or damage to plaintiff Billy Barlow. Defendant Pierce’s motion for new trial was sustained on the ground that it was error to give instructions 14 and 15 (damage instructions) as against Pierce “for the reason that said Instructions permitted recovery by plaintiffs for damages sustained as a direct result of ‘the occurrence mentioned in the evidence,’ whereas, in fact, there were two separate ‘occurrences’ mentioned in the evidence and one, the first, involving defendant Lewis and Thorn-hill was found to be not actionable (by the jury as to defendant Lewis and by the Court, this date, as to defendant Thornhill). The Court concludes that the Jury under Instructions 14 and 15 could have considered both occurrences in arriving at the amount of damages. This is error under the Court’s finding of a failure of proof of causation as to the first occurrence. Plaintiff Laverne Barlow’s Motion for New Trial is ordered granted as to defendant Pierce on the single ground set forth therein and new trial ordered on issues both of liability and damages in view of order herein granting new trial to defendant Pierce.”

With respect to Thornhill, the trial court’s ruling setting aside the verdict and entering judgment for Thornhill was, in effect, a ruling that the evidence was not sufficient to show that Thornhill’s negligence in causing the first collision was either the or a proximate cause of Mr. Barlow’s injuries.

Therefore, the first point to be considered is whether or not the evidence was sufficient to support a jury finding that the collision between the Thornhill and Lewis cars (first collision) was the, or a, cause of injury to plaintiff.

Brantley v. Couch, 383 S.W.2d 307 (Mo.App.1964), presented the same issue. In that case plaintiff was a passenger in Thompson’s car which struck the rear of one Eftink’s car. Shortly thereafter Couch struck the rear of the Thompson car. Brantley sustained a whiplash injury. Plaintiff Brantley testified she felt Thompson’s brake go on; looked up and saw Ef-tink’s car less than a car-length ahead; that she leaned forward a little and the impact moved her forward just a little; that the impact was slight; that she couldn’t say whether or not her head and neck were snapped by that impact; that the second impact was of terrific force and she was thrown back in the seat and immediately thereafter had quite a bit of pain in her head and was dazed; that she couldn’t say in which collision she was hurt; that the collisions happened fast and she couldn’t distinguish between the two. She admitted stating earlier that she did not think the first impact jarred her.

A hypothetical question which outlined the collisions was put to plaintiff-Brantley’s doctor who was asked to assume that the first impact was very slight and that anticipating the first impact plaintiff leaned forward and that the first impact produced no snapping of the neck or movement of her body. The doctor was then asked to state with reasonable certainty which of the two impacts would cause the conditions he found. The doctor responded: “Gentlemen of the Jury, I honestly don’t believe you could say which one caused it, because, certainly, I have had patients hit from the side, had head-on collisions, and all sustained this injury. Now Mr. Jeans mentioned if she was braced for it and had her neck stiff, and so on, perhaps both, perhaps it was the one behind, but I honestly don’t believe in my mind you could say which one caused the damage and did not both impacts cause it.” 383 S.W.2d 311-312. The court held at 312: “While the Doctor testified on cross-examination that if an impact from the front was slight and one from the rear was severe he would tend to say the rear end impact caused more damage, he also stated that he had had cases where there had been a light impact and substantial injury. In view of the foregoing testimony we are of the opinion that the evidence was sufficient to submit to the jury the issue of whether plaintiff’s single, indivisible injury was the proximate result in whole or in part of the negligence of defendant Thompson, and that the trial court therefore erred in sustaining his motion for judgment.”

The ruling in Brantley was premised upon the following postulation of the law set forth at 310:

. . Of course, if all of the evidence established that plaintiff’s injury resulted solely from the second impact, between the Thompson and Couch cars, then in order to recover against Thompson it would be necessary for plaintiff to show that Thompson’s negligence was the sole, or at least a concurring, cause of the second collision and plaintiff’s consequent injury. Seeley v. Hutchison, Mo., 315 S.W.2d 821; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; See v. Kelly, Mo.App., 363 S.W.2d 213. Or if the two accidents were widely separated as to time and distance, and it was possible to identify with some definiteness the injuries suffered in each, the burden of proving in which accident an injury was sustained would be on the plaintiff. Sparks v. Ballenger, Mo., 373 S.W.2d 955.

“[1] But a different rule applies where two or more persons acting independently are guilty of consecutive acts of negligence, closely related in point of time, which cause an indivisible injury; that is, an injury which the triers of fact decide they cannot reasonably apportion among the negligent defendants. According to the weight of authority, in such a case the tort-feasors are jointly and severally liable for all of the damages. The rule is stated in 38 Amer. Jur., Negligence, Sec. 257, pp. 946, 947, as follows:

“ ‘ * * * According to the great weight of authority, where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tort-feasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-fea-sors separately, or against any number or all of them jointly. The injured person is not compelled to elect between the tort-feasors in invoking a remedy to obtain compensation. * * *

This court in Glick v. Ballentine Produce, Incorporated, 396 S.W.2d 609 (Mo.1965), cited Brantley with approval and utilized quotations from Brantley as the law on the subject of successive tortfeasors.

The facts in Brantley closely approximate the facts in the instant case. The only difference is the time expiring between the two collisions. The first collision in both cases was very light. In Brantley plaintiff testified she could not state in which collision she was injured but she did have pain following the second collision. In the instant case Barlow said he was not aware of pain right after the first collision but did have pain following the second collision. In both cases the medical evidence was that it is not unusual for a person in a rear-end collision not to have pain develop until hours later, and in both cases the doctors testified they could not separate the two collisions with respect to injuries and that both collisions caused the injuries.

Defendant Thornhill contends that Barlow’s testimony that he was not aware of physical pain after the first collision amounts to a judicial admission of no injury and is conclusive upon him and fatal to Barlow’s cause of action, citing Elliott v. Metropolitan St. Ry. Co., 157 Mo.App. 517, 138 S.W. 663, 664 (1911), and Davis v. Metropolitan St. Ry. Co., 177 S.W. 1097, 1098 (Mo.App.1915). The cited cases do not so hold. In Elliott and Davis the court held that the testimony of a third party as to his observation of injury to the plaintiff was admissible as statements of fact — the observation of a witness and not an inadmissible conclusion.

In the absence of observable injury, lacerations, etc., a person who feels pain, of course, knows because of that sensation that he is injured, but it is not correct to say that just because a person does not immediately feel pain he is, as a matter of law, not injured. That proposition appears to have been accepted in Brantley and is supported by the medical evidence in this case.

In the instant case, had there been no second collision and had Mr. Barlow begun having pain in his neck and back the next morning, a not uncommon event, and medical testimony connected the pain and injury to his neck with the collision, it could hardly be said that plaintiff would have failed to make a submissible case because he did not feel pain at the scene of the collision. But here there was a second collision and it was more severe than the first. By comparing the two collisions, one might have a tendency to say that since the second was more severe the injuries were caused by it rather than the first. However, the doctors testified that both collisions caused the injuries and they could not separate the collisions with respect to the total injuries sustained.

Here the jury was instructed with respect to each defendant and in order to return a verdict as to each defendant had to find that the negligence of the individual defendant caused the collision he was involved in, and combined with the acts of the other defendant caused injury to Mr. Barlow. Additionally, each defendant offered and the court gave an instruction authorizing a verdict for that defendant unless the jury found that the plaintiff sustained injury as a direct result of the individual negligence of the particular defendant.

The court holds that plaintiff Billy Barlow made a submissible case against defendants Thornhill and Pierce as to negligence and injury. It was for the jury to say by their verdict whether plaintiff Billy Barlow was or was not injured as a result of the separate negligent acts of each respondent.

Respondent Thornhill argues that because fifteen minutes transpired between the first and second collision the time period takes this case out of the rule enunciated in Brantley and Glick.

In Brantley, the rule set forth at 310 is “ . . .if the two accidents were widely separated as to time and distance, and it was possible to identify with some definiteness the injuries suffered in each, the burden of proving in which accident an injury was sustained would be on the plaintiff. Sparks v. Ballenger, Mo., 373 S.W.2d 955.”

In Daniels v. Dillinger, 445 S.W.2d 410, 413 (Mo.App.1969), the court said that when two or more independently acting persons are consecutively negligent in a closely related period of time and cause an injury which the fact trier determines cannot be reasonably apportioned among them, the tortfeasors are jointly and severally liable for all the damages directly and proximately resulting from such negligence. The Daniels case involved the question of whether or not the plaintiff was in the car defendant Dillinger struck at the time of that collision. The evidence was conflicting on the point and the court of appeals held that the issue was for the jury to determine and the jury found for defendant Dillinger.

In the instant case, the two collisions occurred at the same place. Thornhill argues this court should hold that the fifteen-minute intervening time span, as a matter of law, precludes the application of the indivisible-injury rule set forth in the Brantley and Glick cases.

There is no arbitrary time limit the court could promulgate as being the “cutoff point” for application of the rule. The gist of the rule with respect to injuries is not so much the time separating the collisions as it is the impossibility of definitely attributing a specific injury to each collision. Each case must be judged in the circumstances of the case. The fifteen-minutes differential in the instant case does not preclude the application of the indivisible-injury rule.

Thornhill contends there can be no recovery against him for the disabling neurosis Mr. Barlow suffers because of the rule in Missouri which precludes recovery for mental distress and suffering unless accompanied by a physical injury. The court has determined that the evidence was sufficient to support a jury finding that'Barlow was physically injured in the first collision and, therefore, it need not reach the question presented by this contention nor, in this case, reconsider the continued viability of the minority position Missouri occupies in this regard.

Thornhill contends his negligence as to the first collision had come to rest and had become passive and, therefore, was not a proximate cause of the subsequent second collision, citing Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955), and King v. Ellis, 359 S.W.2d 685 (Mo.1962).

In Branstetter and King the question was whether a certain defendant’s negligence was the proximate cause of the singular collision in which each plaintiff was injured. In the instant case, plaintiff did not submit his case against defendant Thornhill on the theory that Thornhill’s negligence caused or contributed to cause the second collision but rather that Thornhill’s negligence caused the first collision and that plaintiff’s injuries resulted from that collision and the second collision combined. In these circumstances the cases holding that passive negligence is not a proximate cause of a collision and, therefore, the passively-negligent defendant is not liable for injuries resulting from such collision are not apposite.

For the reasons set forth supra, the trial court erred in setting aside the verdict in favor of plaintiff Billy Barlow and entering judgment for defendant-respondent Thorn-hill. With respect to defendant-respondent Pierce, the trial court sustained Pierce’s motion for new trial on the ground that it erred in giving instructions 14 and 15 which are the damage instructions given on behalf of Billy Barlow and Laverne Barlow, respectively. These instructions permitted recovery by plaintiffs for damages sustained as a direct result of “the occurrence mentioned in the evidence.” The reason the trial court assigned as the basis for holding it was error to have given these instructions was because there were two separate occurrences mentioned in the evidence and the trial court found the first occurrence (collision) involving Barlow to be not actionable because Mr. Barlow was not injured in the first collision. The court concluded that the damage instructions erroneously authorized the jury to consider both collisions in arriving at the amount of damages.

The court has decided supra that there was sufficient evidence to warrant a jury finding that Mr. Barlow was injured in the first collision and that the indivisible-injury rule set forth in Glick v. Ballentine, supra, and Brantley v. Couch, supra, applies. That means that both respondents were subject to joint and several liability for all of the injuries sustained in the combined events. Therefore, denominating the combined events as an “occurrence” could not have prejudiced either defendant. The point is overruled.

Defendant Pierce contends the rear-end-collision doctrine does not apply to him in this case because, first, his car skidded into collision with the Lewis car and, second, because the Lewis car was stationary, parked in the median, which “was not a portion of the highway where it should have been.” We disagree.

A long line of typical rear-end-collision cases springs from Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (1942). In Jones plaintiff and defendant were traveling in tandem along a highway; negligence was inferable from the fact defendant’s truck, in attempting to overtake plaintiff’s car, ran into its rear end.

The rear-end doctrine is not limited to situations where the facts are the same as those in Jones. For example a modified MAI 17.16 instruction was used without challenge in Scheele v. American Bakeries Company, 427 S.W.2d 361, 362 (Mo.1968), to submit the issue of a storekeeper’s negligence in pushing a hand truck into an oblivious customer standing in his path. Like res ipsa loquitur cases, the rear-end doctrine embraces the essential element that “the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care.” McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557[1] (banc 1932). The rationale of Jones was illuminated by quoting from Thompson v. Keyes-Marshall Bros. Livery Co., 214 Mo. 487, 113 S.W. 1128, 1130 (1908): “Driving a team of horses at a rapid gait into a narrow space where people are standing in plain view of the driver is prima facie evidence of negligence . . The parallel element of prima facie negligence in rear-end-collision cases and in res ipsa cases is noted by the Committee’s Comment to MAI 17.16: “While there is language in the cases cited below suggesting that the collision itself shows negligence, the safer course is to further hypothesize negligence.”

A rear-end submission may be justified in automobile collision cases under circumstances warranting an inference of defendant’s negligence. As said in Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972), “ . . . the doctrine approaches— if it does not reach — that of res ipsa loqui-tur in that under the circumstances in Jones the fact of collision bespeaks the defendant’s negligence.”

The doctrine applies when a rear-ended plaintiff is parked, Boresow v. Manzella, 330 S.W.2d 827, 829, 831 (Mo.1959); is stopped in a line of traffic, Hollensbe v. Pevely Dairy Co., 38 S.W.2d 273[6, 7] (Mo.App.1931); Glowczwski v. Foster, 359 S.W.2d 406[1, 2] (Mo.App.1962); or is stationary at a traffic signal, Watts v. Handley, 427 S.W.2d 272, 275 (Mo.App.1968). Thus, plaintiff’s right to submit the issue of Pierce’s liability under the rear-end doctrine is not deniable merely because the Lewis car was stationary rather than mobile, as is the situation in most rear-end-collision cases.

Nor is plaintiff’s right to the rear-end submission to be denied on the ground he “was not in a portion of the highway where [he] had a right to be.” We do not agree that the Lewis car lacked the right to be in the median strip. Moving the car from the traveled portion of the highway to a safer place was a prudent act. A median strip, like a shoulder, is a part of the highway. See Ely v. Parsons, 399 S.W.2d 613[5, 6] (Mo.App.1966). The point is overruled.

Respondent Pierce contends the court erred in excluding from evidence a portion of plaintiff’s employment record at McDonnell-Douglas Corp. The parties had stipulated that the record qualified under the Uniform Business Records as Evidence Law, secs. 490.660-490.690, but plaintiff reserved the right to object to specific portions of the records as various parts would be offered. The particular portion Pierce sought to have admitted and to which plaintiff’s objection was sustained was a statement made by a Dr. Macon in October 1960 in a letter to the workmen’s compensation insurance carrier in connection with a workmen’s compensation claim for an injury to plaintiff’s left knee. The entry reads, “that this man sustained an injury to his left knee and that his complaints at that time were so multiple and varied that he is most difficult to evaluate and he rambles on and confuses the issue and at times I begin to wonder if he is malingering some.”

The court sustained the objection on the ground that the entry was “hearsay and not admissible”. Pierce argues the hearsay objection is not applicable as to records qualified under the Business Records Act. Plaintiff argues the court properly excluded the evidence because it was speculative and did not constitute evidence of a definite opinion.

The purpose of the offer was to get before the jury that particular part of the entry where the doctor says, “I begin to wonder if he is malingering” on the basis that this would contradict Dr. Moore’s testimony that plaintiff, as to his present complaints, was not dishonest or malingering. It was not the purpose of the offer to show plaintiff had previously injured his left knee but rather to show that Billy Barlow’s general moral character, integrity, and credibility were not good.

The statement in the letter by the doctor that, “I begin to wonder if he is malingering some” does not qualify as an expert opinion about anything much less constitute an expert opinion that he was malingering. The objection on hearsay grounds may not have been appropriate as to records which were stipulated to as being • ualified under the Business Records Act; however, “the admission, exclusion, striking or refusal to strike evidence is not reversible error where it is proper on any ground, even though not proper on the ground stated in the objection or ruling. In such case it is immaterial on what ground the objection or ruling was made or whether such ground is good; and the sufficiency of the reason need not be considered.” Franklin v. Friedrich, 470 S.W.2d 474, 476 (Mo.1971); Eller v. Crowell, 238 S.W.2d 310, 313 (Mo.1951). The point is overruled.

Pierce next contends the cumulative effect of certain remarks by plaintiff’s witness, Woodrow Lewis, and Dr. Moore was so prejudicial as to constitute reversible error and to require the granting of a new trial to defendant Pierce.

The following occurred during the recross-examination of defendant Lewis by the attorney for defendant Thornhill: “Q. Something was said about your having had a lawsuit growing out of this accident for your own injuries. Is that correct? A. Yes. Q. Was that lawsuit filed only against Mr. Pierce? A. I’m pretty sure that Mr. Kimme — he said that was the one that — MR. ALBRECHT: I object to any statement. THE COURT: Sustained. Q. All I want to know is that the only defendant in the lawsuit you filed — Mr. Pierce? A. Yes. He settled out of court, you know. MR. BUCKLEY: Don’t go into that. Thank you. MR. ALBRECHT: Step up here.”

Defendant Pierce moved for a mistrial and the court overruled that motion and then offered to and did sustain the objection and instructed the jury to disregard the part of the witness’s answer pertaining to an out-of-court settlement.

With respect to Dr. Moore’s testimony, the record reflects that he was being cross-examined by the attorney for Mr. Pierce concerning malingering generally and the meaning of the word “malingerer” and in the course of the questioning the following appears:

“Q. You find malingerers usually where there is a motive such as material gain or money damage? A. Yes, that is why he is malingering because he has a motive. Q. So that you would expect to find malingerers then more commonly among your patients who have litigation pending than in patients that have no motive? A. No, I would say the need for a neurosis is more severe there because they are honest people and that they have to have symptoms in order to get what they call justice. I think it is just a play on words upon being just malingering because a person has a neurosis following a trauma. That is just one of the big insurance company’s attitudes towards the phrase malingerers. They think they are all malingerers. Q. And none of them are, is that your testimony? A. I didn’t say that. No, you know that is a ridiculous statement. Surely there are malingerers, a lot of them. I think anybody would know that.”

No objection was made to Dr. Moore’s testimony until sometime later and after the doctor was permanently excused as a witness. At that time the attorneys for Thornhill and Pierce both moved for a mistrial which was overruled. The court inquired as to whether there was any request other than for a mistrial to which the attorneys responded in the negative and the trial proceeded.

The trial court sustained the objection as to the testimony of Lewis concerning the settlement and instructed the jury to disregard it. In the absence of exceptional circumstances, it is to be assumed the jury obeyed the trial court’s direction. Pender v. Foeste, 329 S.W.2d 656 (Mo.1959); Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79 (1948). The trial court did not abuse its discretion in refusing to declare a mistrial.

As to the testimony of Dr. Moore, there was no timely objection made. The court did not abuse its discretion in refusing to grant a mistrial.

There is no discernible cumulative adverse or prejudicial effect resulting from these two incidents. The point is overruled.

Laverne Barlow filed a motion for new trial as to damages only against Thornhill and Pierce. The trial court, in accordance with its after-trial ruling as to Thornhill, overruled Laverne’s motion as to Thornhill and awarded her a new trial as to Pierce on both negligence and damages. The grounds upon which the court granted Laverne the new trial was that the verdict against her on the loss-of-service claim was inconsistent with the verdict in favor of her husband for substantial damages and because of the undisputed testimony as to her damages.

The trial court did not order a new trial for Laverne as to Thornhill because the trial court decided that the evidence failed to show that Billy was injured in the first collision and, therefore, was not entitled to recover against Thornhill. This court has held supra that Billy Barlow made a sub-missible ease against both defendants Thornhill and Pierce.

On this appeal plaintiff Laverne Barlow contends the trial court erred in failing to award her a new trial as to damages only— that the trial court erred in awarding her a new trial as to both liability and damages.

Defendant Pierce did not appeal from the trial court’s order granting Laverne Barlow a new trial as to him on liability and damages.

Laverne Barlow contends she should have been granted a new trial against defendants Thornhill and Pierce as to damages only, relying principally on Manley v. Horton, 414 S.W.2d 254 (Mo.1967), and Foster v. Rosetta, 443 S.W.2d 183 (Mo.1969).

In Manley v. Horton, supra, the husband sustained a substantial injury and received a jury verdict against the tortfeasor. The jury returned a verdict against the wife on her consortium claim. The trial court overruled the wife’s motion for new trial. On appeal the court held at 261: “We amended our Rule 66.01 so as to require that such an action [consortium] be joined with the action of the other spouse. . . . As to defendant Horton, the verdict against her [wife] is so inconsistent with the verdict in favor of her husband and against Horton, that it should be set aside and a new trial granted.” The court then reversed the judgment against the wife and ordered a new trial on the issue of damages only.

In Foster v. Rosetta, supra, the husband obtained a verdict of $9,000 on his personal injury claim but the jury returned a verdict against his wife on her consortium claim. The trial court granted the husband a new trial on the ground the verdict was inadequate and granted the wife a new trial on the ground that her consequential damages were clearly supported by the uncontradict-ed testimony of Mrs. Poster and, therefore, the verdict against her in view of the verdict in favor of the husband was inconsistent, contradictory, incorrect and void. On defendant Rosetta’s appeal, the court followed Manley v. Horton, supra, and affirmed the new trial order, saying at 185: “The court held, [Manley v. Horton] 414 S.W.2d 1. c. 261[16], that where a verdict is rendered in favor of one spouse in a personal injury action, a verdict against the other spouse in the jointly-tried (as required by Rule 66.01) action for loss of consortium would be set aside because of its inconsistency, and a new trial granted. Accordingly, in this case it would have been reversible error if a new trial had not been awarded on ground 10.”

In the instant case, plaintiff Billy Barlow received a verdict of $63,000 and on this appeal no complaint is made about the amount of the verdict. The evidence showed he sustained substantial disabling injuries and the testimony concerning loss of services and consortium was uncontra-dicted.

The Manley and Foster cases have been followed and applied in Kennedy v. Tallent, 492 S.W.2d 33 (Mo.App.1973), and Stroud v. Govreau, 495 S.W.2d 682 (Mo.App.1973). In each instance the loss of services claimant was granted a new trial on damages only where there were no errors affecting the negligence liability portion of the cases.

Therefore, plaintiff Laverne Barlow should be awarded a new trial as to both defendants Thornhill and Pierce on damages only.

The order of the trial court setting aside the verdict and judgment in favor of plaintiff Billy Barlow and against defendants Thornhill and Pierce and granting Pierce a new trial and entering judgment in favor of Thornhill is set aside with directions to reinstate the verdict in the sum of $63,000 in favor of plaintiff Billy Barlow and against Thornhill and Pierce as of the date of the verdict.

The order granting Laverne Barlow a new trial as to defendant Pierce on liability and damages and the judgment entered by the court in favor of Thornhill and against Laverne Barlow are set aside with directions to enter an order granting Laverne Barlow a new trial against defendants Thornhill and Pierce on damages only.

All of the Judges concur.

      . See: Annot., 29 A.L.R.3d 1337 (1970); 46 Miss.L.J. 871 (1975); Psychic Injury and Tort Liability in New York, 24 St. John’s Law Rev. 1 (1949).


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    KIM MANUFACTURING, INC., Respondent, v. SUPERIOR METAL TREATING, INC., Appellant.
    No. 27260.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Rehearing Denied June 1, 1976.

      Gary E. Lowe, Rogers, Field, Gentry, Benjamin '& Robertson, Kansas City, for appellant.
    Ralph 0. Wright, Gary W. Collins, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for plaintiff for $5,636.75 following jury-waived trial on allegation that defendant negligently damaged certain swivels “by incorrectly conducting the heat treatment of said swivels.” The questions are whether plaintiff made a case on the issues of negligence and proximate cause, and whether two of plaintiff’s witnesses were qualified as expert witnesses to give opinions on the issue of causation. Affirmed.

Timothy P. Kimsey is the vice president of plaintiff Kim Manufacturing, Inc. He earned a Bachelor of Science degree from Regis College in 1963. His major was mathematics and he had courses in physics, science, and metallurgy. In his ten years with Kim he had worked as general plant manager and in purchasing, design, engineering, and sales. Metal is Kim’s principal fabricated product, and Mr. Kimsey had to know actual physical properties of metal with respect to hardness and capacity for machining.

The subject matter of the case is a hydraulic or high-pressure swivel which Mr. Kimsey designed. It has been used in hydraulic hoses in the car-wash business since 1971. Each swivel consists of a barrel and plug manufactured from type 410 stainless steel obtained through Jorgenson Steel Company and shipped directly to Manning Metal Products for machining to a tolerance not to exceed .002 inches. Upon completion of the machining, Kim takes the parts to a heat treater for hardening. Kim had used Metallurgical, Inc., for this process in the past but, in this instance, they were overloaded. Mr. Kimsey called defendant Superior Metal Treating, Inc., and spoke to Lay-ton Redman, its president, to determine whether Superior heat treated type 410 stainless steel. Mr. Redman replied that he was familiar with type 410 stainless steel, and they agreed that Superior would heat treat a quantity of Kim’s swivels to “maximum hardness in the range of 40 to 42” on the Rockwell C Scale. Heat treating deposits a film on the surface of the metal parts, and Mr. Kimsey explained that the next process would be to polish the parts to look nice for sale, and that they would have to fit together.

After the quantity of swivels had been heat treated by Superior, they were received by Kim for delivery to the A Luster Company for removal of “a tightly adherent greenish-brown scale on the surface of the material so that it would look shiny and silver and would be a salable piece of merchandise.” A Luster employed an electro-polishing process for this purpose which does not affect operation of the swivel. Prior to the delivery to A Luster, Junior Barber, Kim’s plant manager, inspected the parts en route to A Luster and reported that they appeared different in coloration from the material that had been heat treated formerly at Metallurgical.

After the parts had been delivered to A Luster for electropolishing, the A Luster plant manager called Mr. Kimsey to report that the parts were not cleaning up properly, that there was some deep pitting on the surface of the metal, and that they would try processing them a second time to see if they would clean up. A Luster kept the parts for another week and attempted to clean them. Upon redelivery to Kim, Mr. Barber reported that they would not work, would not fit together, were too loose, looked like coarse sandpaper, and were not salable.

After repeated efforts by Mr. Kimsey to talk to Mr. Redman at Superior, Superior’s plant manager came by, looked at the damaged parts, and said it was not their problem.

Over defendant’s objection going to Mr. Kimsey’s qualification as an expert, Mr. Kimsey was permitted to and did testify that the defective condition of the swivels was caused by the heat-treating operation; that it was not caused by the electropolish-ing operation; that he was familiar with both operations; and that when an atmosphere in a furnace is not properly balanced you get a pitting and scaling on the surface of the heat-treated material; that in elec-tropolishing, you cannot polish down in the bore of the parts because there is no way to get in there to polish it, and that physical examination of the parts satisfied him the cause of the damaged condition was a defective heat-treating operation.

Arthur Manning, Jr., of Manning Metal Products was familiar with the machining they did for Kim on the type 410 stainless steel obtained by Kim from Jorgenson Steel Company. He had been with the company for over 20 years, had worked with metals for about 80% of the time, was a member of the Society of Metal Engineers and was familiar with the processing of Kim’s swivels from manufacture through the heat treatment and electropolishing processes. Over defendant’s objection that Mr. Manning was not qualified as an expert, he was permitted to and did testify that the swivels were damaged because “they had been left in the tanks too long. Q. What kind of tanks are you talking about? A. The elec-tro — THE COURT: I didn’t hear that. A. We do some etching in our plant on different material. Q. Now you’re saying that that is what causes the appearance here (indicating)? Would that cause the tolerances to be any less? A. Yes, if left that would be the way the material — Q. And it wouldn’t be in the heat-treating of it? A. It could be in the heat-treating too. I don’t know all the processes they go through in the heat-treating.”

On cross-examination, Mr. Manning testified that the defects could have been caused by both the electropolishing process and the heat-treating process, “but I believe it was caused by heat-treating because the electro thing — I don’t believe it would change the dimensions. * * * they left it in the furnace too long.”

Junior Barber, shop superintendent at Kim, received the alleged defectively heat-treated materials from Superior and delivered them to A Luster, noted the discoloration in comparison to similar parts he had seen after heat treating by other companies, and reported his observation to Mr. Kimsey.

Gordon E. Gross, a physicist and manager of the material services section at Midwest Research Institute, gave his expert opinion that the defective condition of the swivels in question was caused “from an erratic protection of the surface by an oxide, similar to the green oxide that was visible inside this piece. That oxide, while it appears to be continuous, of course, isn’t really so, it doesn’t have uniform strength, and as a result the electrochemical attack on it is irregular resulting in a rough surface or pitting. The oxide film that is in there is the usual product of heating in an atmosphere which provides oxidation. This could be air, it could be oxygen, but normally a person wouldn’t let pure oxygen in anyway, but it could be any atmosphere that provided oxygen, including water vapor. The result simply is a surface that won’t etch uniformly.”

On cross-examination, Mr. Gross testified, “The kind of pitting we see here doesn’t look like the kind of pitting that would occur from the heating. It looks like pitting that would occur from the erratic protection of a scale, but the pitting itself occurring at the time of electropolishing. Q. In other words, what you’re saying is what you found on this, as far as the pitting, occurred probably during the electro-polishing stage? A. During that time, right, as a result of the scale. Q. In other words, the pitting that you found didn’t occur during the heat-treatment process. A. That would seem to be the case. Q. It did not occur during the heat-treating process? A. That would seem right.”

On redirect examination, Mr. Gross testified that “The pitting here is caused by the erratic attack of the electropolishing, as a result of the scale. In other words, the scale protects the metal surface in certain areas. Weaker points and fissures in the scale allow the electropolishing attack to occur nonuniformly. The result then is pitting. * * * The scale is the cause in essence of the pitting. In other words, given scale then electropolish then pitting. * * * the only cause that we’re aware of of this kind of scale is heating in an oxidizing atmosphere. This is a reasonably heavy, although it’s not a very tough scale, it breaks and shatters off very easily, it can be picked off very easily. It is very thin, a thousandth of an inch thick or less perhaps. It’s enough to protect and give an erratic start on the electropolishing. * * * Q. And that’s because of the heat treatment and not the electropolishing? A. Right. That seems definitely the case that the film is a result of oxidation during the heat treatment, right.”

Layton T. Redman founded Superior Metal Treating, Inc., in 1954, and was its president. He had been involved in the metal-treating business since 1942 and previously had worked for Remington Arms and Armco Steel as acting plant metallurgist in charge of heat treating. He described Superior’s heat-treating equipment, its operation, and the steps taken to maintain a proper atmosphere in the furnaces. He discussed Kim’s order with Paul Wallace and Glen True, Superior’s plant metallurgist and plant manager. Mr. Wallace had obtained the specifications for Rockwell hardness from Mr. Kimsey. He stated that the atmosphere during Superior’s heat treating of Kim’s swivels had been correct; that there was no way for anything to have gone wrong with the furnace that day. It was his opinion that the pitting and damage of Kim’s swivels could not have occurred at Superior’s plant during the heat-treating process, and that the condition was caused by an acid attack during the polishing process.

Glen R. True took the order for heat treatment of Kim’s swivels, specified how it was to be run at Superior, and examined the materials after treatment and before they left Superior. Mr. True felt that the heat-treatment processing of Kim’s materials had been normal and he passed the parts as to quality control so they could leave the plant.

David Sparks was the heat treater’s helper at Superior. According to him a 1700° temperature was normal for the Kim job and the prescribed procedure had been executed in accordance with the work order including a steady 1700° temperature.

Alfred Brown, an employee of Superior for seven years, “Roekwelled” random parts after the heating and tempering process and stated that maximum hardness for type 410 stainless steel had been reached. He also felt the greenish-blue color of the parts was normal, and he knew of nothing unusual with respect to the parts upon completion of the job.

Paul B. Wallace had a degree in metallurgy from the University of Notre Dame and 20 years’ experience in metallurgy, including employment with Metallurgical, Thiokol Chemical Company, and the Ballistics Missile Agency. He took the order in question from Mr. Kimsey, acknowledged the specifications of desired hardness, and described the process used including the 1700° temperature and oil quenching, the latter for maximum hardness. In his opinion, the greenish-blue film upon completion of Superior’s process was normal, and that the pitting and shrinkage of the swivels were due to excessive pickling and could not have been caused by any process undertaken by Superior.

Kenneth E. Rose, Associate Dean of Engineering at the University of Kansas, had a degree of Metallurgical Engineer from Colorado School of Mines, and a Master's degree in metallurgy from Cornell University. He also was a member of several professional societies, a textbook writer, and a professional engineer. He examined certain of the parts in question. It was his opinion that the damage was caused by electrochemical attack; and that the parts had been properly hardened by Superior, and that it would not have been necessary, if the “pickling” operation had been undertaken properly, to remove as much material as had been removed by A Luster. Mr. Rose also acknowledged that if the heat-treating process left a greenish chrome oxide film as evidenced by the damaged parts, it meant that there had been a reaction with air or water in the process.

Appellant contends the court erred in entering judgment for plaintiff in that: (I) plaintiff failed to establish that defendant “negligently damaged plaintiffs material”; and (II) the evidence established that damage to plaintiff’s material was not caused by the heat-treating process undertaken by defendant but rather was caused by the electropolishing process which occurred after the material was removed from defendant’s plant and which was undertaken by A Luster Company.

Actionable negligence involves existence of a duty on the part of defendant to protect plaintiff from injury, failure of defendant to perform the duty, and injury to plaintiff resulting from the breach of that duty. Nichols v. Blake, 418 S.W.2d 188, 191 (Mo.1967); Schaefer v. Accardi, 315 S.W.2d 230, 233 (Mo.1958).

Appellant asks how defendant breached any duty it owed to plaintiff so as to cause injury to plaintiff. Appellant asserts the sole duty defendant had was to heat treat plaintiff’s parts to the requested maximum hardness and that it did so.

Appellant’s position does not question that plaintiff’s swivels were damaged and that plaintiff sustained injury as a result; and there is evidence to establish defendant’s negligence and that it caused plaintiff’s damage and injury.

Mr. Kimsey gave an expert’s opinion that the damaged condition of the swivels was caused by the heat-treating operation and not the electropolishing process, due to an unbalanced atmosphere in the furnace. Mr. Manning also gave an expert’s opinion that the damaged condition was caused by heat treating because he did not believe the elec-tropolishing process would change dimensions of the material. In his opinion, defendant left the material in the furnace too long. Mr. Gross was also of the expert opinion that the damaged condition was caused by the heat treatment and not the electropolishing. In arriving at that opinion, he explained that faulty heat treatment produces a scale which causes subsequent electropolishing of the surface to occur non-uniformly resulting in defects manifested by pitting. “ * * * the only cause that we’re aware of of this kind of scale is heating in an oxidized atmosphere.” These opinions were confirmed in part by defendant’s witness Rose. In addition, Mr. Barber noted the difference in physical appearance of the parts heat treated by defendant in comparison to similar parts heat treated by other companies on previous occasions.

Appellant emphasizes the testimony of defendant’s president, Mr. Redman, its plant metallurgist, Mr. Wallace, and its primary expert, Mr. Rose, and questions the familiarity and knowledge of plaintiff’s witnesses with respect to the matters upon which they testified. The resolution of any conflicts in the evidence, thus presented, as well as the credibility of all witnesses, were matters peculiarly within the province of the trier of fact. Rule 73.01, V.A.M.R.; Shute v. Prom Motor Hotel, Inc., 446 S.W.2d 137, 141 (Mo.App.1969).

Appellant contends (III) that the court erred in admitting opinion testimony on behalf of plaintiff from Timothy P. Kimsey and Arthur Manning on causation “when in fact said witnesses were not qualified as expert witnesses to give opinions as to causation.”

An “expert witness” is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of deducing correct conclusions. Giambelluca v. Missouri Pac. R.R. Co., 320 S.W.2d 457, 463 (Mo.1959). Admission of expert testimony is a matter within the discretion of the trial judge and the exercise of the judge’s discretion should not be upset absent abuse. Butcher v. Main, 426 S.W.2d 356, 359 (Mo.1968).

The qualifications of Mr. Kimsey and Mr. Manning, previously stated in connection with their testimony, demonstrate an ample basis for receipt of their opinions.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    CROSSGATES HOME ASSOCIATION, Respondent, v. Charles BLOMQUIST, Jr. and Helen R. Blomquist, Appellants.
    No. KCD 27716.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Rehearing Denied June 1, 1976.
    Larry 0. Denny, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellants.
    Robert Van Horn, Hutson, Van Horn, Schmidt & Hammett, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

Defendants (hereinafter referred to as appellants) appealed from a “Contempt Order” imposing a fine predicated on violation of a final judgment enjoining them from breaching certain “Subdivision Restrictions”. Their sole claim on appeal being that the trial court exceeded the scope of its subject matter “jurisdiction” when it initially enjoined the conduct from which the contempt proceeding emanated.

Rules 81.12(b) and 81.14(a) require that a transcript on appeal contain all records, proceedings and evidence necessary to determine all questions presented for appellate review. Determination of whether the trial court exceeded its jurisdiction in granting the injunctive relief upon which the “Contempt Order” was predicated necessarily depends upon the scope and nature of the “Subdivision Restrictions” and the evidence adduced at the original trial relative thereto, neither of which is to be found in the abbreviated transcript on appeal filed in this court. Perforce, appellants’ failure to comply with Rules 81.12(b) and 81.14(a), supra, has deprived this court of the basic facts essential to determine the sole question presented by them on appeal.

In conclusion, a judgment entered in a court tried case is presumed to be correct and a party questioning it carries the burden of proving otherwise. James v. James, 248 S.W.2d 623 (Mo.1952); Hardy v. McNary, 351 S.W.2d 17 (Mo.1961); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473 (Mo.App.1972); and Weston v. Great Central Insurance Company, 514 S.W.2d 17 (Mo.App.1974). Concomitantly, since appellants failed to include anything in the transcript on appeal which would enable this court to determine whether or not the trial court exceeded its jurisdiction in rendering the original judgment, the existence of facts necessary to give the trial court jurisdiction over the full scope of the subject matter of the judgment underlying the “Contempt Order” is presumed. First Nat. Bank & Trust Co. v. Bowman, 322 Mo. 654, 15 S.W.2d 842 (1929); Steinbaum v. Wallace, 237 Mo.App. 841, 176 S.W.2d 683 (1944); and Cusack, v. Green, 252 S.W.2d 633 (Mo.App.1952).

Since the judgment of contempt is affirmed, it is unnecessary to rule on respondent’s motion to dismiss the appeal.

Judgment affirmed.

      . Neither party has questioned the nature of the contempt proceeding, whether civil or criminal, and, in view of the disposition hereinafter made of the appeal, the contempt proceeding will be assumed to have been civil in nature.
      Although the judgment underlying the “Contempt Order” became final long before the contempt proceeding was initiated, appellants’ belated attack upon the original judgment is bottomed upon the principle that it is subject to collateral attack because the scope of the original judgment exceeded the subject matter jurisdiction of the trial court.


author: TITUS, Judge.

text:
    DICKEY COMPANY, INC., Plaintiff-Respondent, v. F. A. KANAN et al., Defendants-Appellants.
    No. 9911.
    Missouri Court of Appeals, Springfield District.
    May 14, 1976.

      John R. Lewis, Kirby, Lewis, Cohick & Franks, Springfield, Jon Dermott, Blanchard, Van Fleet, Robertson & Dermott, Joplin, for plaintiff-respondent.

      Richard M. Webster, Myers, Webster & Perry, Webb City, for defendants-appellants.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendants admitted owing plaintiff Dickey Company, Inc., a $16,200 commission for procuring a restaurant-lease of adjacent properties owned separately by defendants F. A. and Elma Kanan (husband and wife) and defendant Ancell Enterprises, Inc. A dispute as to how the commission was to be paid spawned this lawsuit. Plaintiff averred defendants agreed to pay half the commission ($8,100) when the lease was executed and the other half over the following five years with 6% interest. Defendants asseverated they agreed to pay $540 upon execution of the lease and $45 a month thereafter for 348 months with no interest. A jury returned a verdict compatible with plaintiff’s claim.

In early June 1969, John Dickey (for plaintiff) encountered Mrs. Kanan at her home situate on the Kanans’ property. When advised that Dickey “wanted to talk about leasing the property for a restaurant,” Mrs. Kanan told him “Mr. Ancell handled their leases.” This was Dickey’s only conversation with Mrs. Kanan and he admittedly “never discussed a real estate commission with Mrs. Kanan.” She asserted she had never discussed the manner of commission payment with anyone.

Conferences anent the proposed lease followed between Dickey and Ancell. According to Dickey’s unobjected-to testimony, “Mr. Ancell explained to me that he represented both . . . Ancell Enterprises, Inc. and Mr. and Mrs. Kanan.” In late July 1969, Dickey went to AncelPs office with the written lease and told Ancell that “before we sign the leases [sic], let’s make an agreement on the commission.” When Ancell assented, Dickey produced printed commission forms. By Dickey’s account, Ancell then proceeded to dictate to Dickey the terms for paying the $16,200 commission. The payments to be made, as dictated by Ancell and recorded on the form by Dickey, were the same as now contended by defendants, supra. After completion, and after Ancell added to the form “no interest — The commission is to be enclosed in the lease,” it was signed “Ancell Enterprises, Inc. Larry E. Ancell Vic. Pres.” An-cell did not undertake to sign the agreement on behalf of Mr. and Mrs. Kanan. Neither Dickey nor the Kanans ever signed the form. Although Ancell denied having dictated the terms and testified the commission payments as recorded on the form were “acceptable [to Dickey because] we agreed on it before he wrote it out,” Dickey stated he had informed Ancell that “I could not accept it . .we could not live with this agreement.” Dickey further recounted that after telling this to Ancell, he (Dickey) “suggested” the commission be paid “half at the time and half later and [Ancell] said, ‘We won’t do that,’ and that’s when I took the leases [sic] and started to go.” Dickey testified that “We did not have an agreement” when he left Ancell’s office, and that he “did not again talk to Mr. Ancell about a commission.”

As Dickey was departing Ancell’s office, “Mr. Kanan came in the door and [Dickey] was introduced to Mr. Kanan for the first time.” Dickey told Mr. Kanan he was leaving with the unsigned lease and Kanan “suggested that we go have a cup of coffee.” Ancell did not accompany them. Dickey stated that while-he talked to Ka-nan over coffee, he did not show Kanan the commission agreement form although they did “discuss what had been proposed in that agreement.” By Dickey’s version “I told Mr. Kanan that the only way we could accept it was half at that time and half paid in five years, and he said ‘What difference does it make whether I borrow $150,000 or $158,000 at the time I build the building, live and let live this is my motto.’ This is his exact words.” Based on this, Dickey said he “believed” Mr. Kanan had “agreed to pay . . . one half of it down and the balance of the commission over the five-year period.” Dickey left the lease copies with Mr. Kanan and from that “time on I dealt strictly with Mr. Kanan, I never again dealt with Mr. Ancell. . . . Mr. Ka-nan instructed me that from now on out I was dealing strictly with him and no longer with Mr. Ancell.” Dickey did not prepare another commission agreement form to be signed by the defendants because “I thought I had a verbal agreement with Mr. Kanan.” Plaintiff’s agent, while saying that interest was discussed, acknowledged that he “didn’t discuss the rate” and that he did not “ever reach an agreement upon which a note could be drawn” to evidence the defendants’ obligations to pay any part of the commission. The lease was signed by all the defendants and returned to Dickey. It did not mention the commission.

It was Mr. Kanan’s testimony that when he was having coffee with Dickey on the aforementioned occasion, he was shown and discussed the commission agreement form which previously had been signed by Ancell Enterprises, Inc. Kanan recounted: “The agreement that I stated to Mr. Dickey will be the one it’s been read in here, it’s already made with Mr. Ancell and we’ll go ahead with it and live and be live, that’s my statement was to Mr. Dickey.”

Plaintiff’s verdict-directing instruction (Instruction No. 2 — MAI 29.02 modified) read: “Your verdict must be for plaintiff if you believe: First, plaintiff was a licensed real estate broker, and Second, plaintiff and defendants agreed that plaintiff should receive a sum of $16,200.00 payable $8,100.00 in cash on date of closing and $8,100.00 over a period of five years as commission, if defendants’ property was leased as a result of plaintiff’s efforts, and Third, defendants leased the property as a direct result of plaintiff’s efforts, unless you believe plaintiff is entitled to recover by reason of Instruction No. 3.” Defendants’ Instruction No. 3 submitted their theory as to how the commission was to be paid. In substance and in part, defendants’ points relied on are that the trial court erred in not granting them a new trial for error in giving Instruction No. 2, supra, because there was no evidence to support the hypothesis that “defendants agreed” to payment of the commission in the manner set forth in the charge. It is our opinion that defendants’ contention has merit.

Assuming, arguendo, Mrs. Kanan’s statement to Dickey that “Mr. Ancell handled their leases” and Dickey’s unobjected-to recitation of Ancell’s out-of-court assertion “that he represented both Ancell Enterprises, Inc. and Mr. and Mrs. Kanan,” were sufficient proof that Ancell was agent of the three defendants both for leasing their properties and contracting concerning commissions, we are, nonetheless, confronted with Dickey’s testimony that he never had a commission agreement with Ancell and with Ancell’s testimony that the commission agreement differed from what plaintiff contended. Consequently, the purported agency of Ancell as a source of tying defendants, or any of them, to the agreement alleged by plaintiff is wholly destroyed.

Ordinarily one’s belief, feeling, understanding or thought about a matter does not constitute substantial evidence justifying or permitting a finding to that effect. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 372[9] (Mo.App.1970); Bailey v. Kershner, 444 S.W.2d 10, 15 (Mo.App.1969); Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25[9] (Mo.App.1969). However, if we again reluctantly assume, but purely ar-guendo, that what Dickey “believed” or “thought” about Mr. Kanan’s rhetorical question constituted some basis for permitting or justifying a finding that Kanan agreed to paying the commission as proposed by Dickey, there is not a jot of evidence that Mr. Kanan, either actually or apparently, was then acting as agent for or to bind Ancell Enterprises, Inc., or his wife.

The law indulges no presumption that agency exists [Mark Century Corp. v. Tiger Broadcasting Co., 509 S.W.2d 737, 739[5] (Mo.App.1974); Erickson v. Civic Plaza Nat. Bank of Kansas City, 422 S.W.2d 373, 380[15] (Mo.App.1967)], and the burden of establishing agency is on the party by whom it is alleged to exist. Nelle Plumbing Company v. Stefanic, 453 S.W.2d 636, 641[8], 48 A.L.R.3d 145, 151[6] (Mo.App.1970); Roy v. Tinsley, 355 S.W.2d 621, 625[2] (Mo.App.1962). Merely because of the marital relationship, neither the husband nor the wife is empowered to act as agent for the other [Murphy v. Olds, 508 S.W.2d 249, 253[8] (Mo.App.1974); Vaughn v. Great American Insurance Company, 390 S.W.2d 622, 627[10] (Mo.App.1965)], and absent proof of facts or circumstances showing agency, the power of the husband to act as agent for his wife will not be inferred. Gottlieb v. LaBrunerie, 514 S.W.2d 27, 32 (Mo.App.1974).

While the evidence may have shown Ancell to have been the agent for defendants, it did not suggest that Mr. Kanan was agent for anyone. There being no evidence of Kanan’s agency for either of the other two defendants and no showing that either of them agreed to plaintiff’s proposed contract as to how the commission was to be paid, it is obvious no evidence existed from which the jury could find the issues (as submitted by Instruction No. 2) against defendants Ancell Enterprises, Inc., or Elma Kanan. “There is nothing more firmly entrenched in the law than the requirement that issues submitted in instructions to the jury be supported by evidence from which the jury could reasonably find such issue. ‘An instruction which is not supported by the evidence is erroneous in that it is misleading and confusing.’ ” Brassfield v. Sears, 421 S.W.2d 321, 323 (Mo.1967).

From what has been said, it follows that the judgment nisi is reversed and the cause is remanded for a new trial.

All concur.

      . As initially contemplated, the lease would run for 30 years with ground rent payable at $750 per month ($9,000 per year) for a total ground rent of $270,000 over the entire lease period. The commission and commission payments were calculated at 6% of the ground lease figures.

      . Had this statement been objected to, it would seem that neither the fact nor scope of the claimed agency could have been established by a recitation of the out-of-court declaration of the alleged agent. Rosser v. Standard Milling Company, 312 S.W.2d 106, 110[2] (Mo.1958); Fielder v. Production Credit Association, 429 S.W.2d 307, 310 (Mo.App.1968).

      .Mr. Kanan came to this country from Palestine some 18 years ago which probably explains his unorthodox use of the English language.

      . That plaintiff was a licensed real estate broker was not an issue in the case. Ergo, paragraph First should have been omitted. Notes on Use, MAI 29.02.

      . The word “not” is missing.

      . “What difference does it make whether I borrow $150,000 or $158,000 at the time I build the building, live and let live this is my motto.”

      . We have not overlooked the false argument of plaintiff that when Mrs. Kanan and Ancell Enterprises, Inc., signed the lease, they ratified and approved Mr. Kanan’s alleged agreement with Dickey as to the commission payments. Such an argument may have worked against Mrs. Kanan and the defendant corporation in an action to enforce the lease or any other action regarding the lease itself, but it assuredly has no merit in an independent action, such as this, to enforce an averred contract for the method of payment of a commission to a real estate broker.


author: STEWART, Judge.

text:
    Janet BROWN, Plaintiff-Respondent, v. Charles T. BROWN, Defendant-Appellant.
    No. 36370.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 18, 1976.

      Rendlen, Rendlen and Ahrens, Clifford H. Ahrens, Hannibal, for defendant-appellant.
    James Millan, Mcllroy & Millan, Bowling Green, for plaintiff-respondent.
   STEWART, Judge.

Defendant appeals from a judgment of the trial court upon motions to modify a decree of divorce. Plaintiff and defendant were divorced in May of 1971, at which time the court made allowances for alimony and for child support. Defendant had filed a motion seeking to eliminate the payment of alimony, now maintenance, and for a reduction in child support. Plaintiff filed a motion seeking increases in both maintenance and child support. The court entered judgment reducing the amount of maintenance to be paid to plaintiff from $50.00 per week to $25.00 per week and reducing the child support from $75.00 per week to $50.00 per week. Plaintiff did not appeal.

Defendant contends that under the evidence in this case the allowance of maintenance for plaintiff should have been terminated. He also contends that the modification should be made effective as of the date of the filing of the motion to modify and not the date the judgment was entered. Defendant does not question the court’s judgment as to child support.

By the original decree plaintiff was awarded custody of the two minor children of the marriage and defendant was ordered to pay plaintiff the sum of $50.00 per week as alimony and $75.00 per week for support of the two minor children.

At the time of the divorce decree defendant’s take home pay was $244.00 per week. At that time the parties owned a farm worth $7,000 to $10,000 and a home. The home was sold after the divorce and the proceeds were divided between them. Defendant’s net worth at the time including the interest in the real estate was $69,000. In 1972 he went into the laundry and dry cleaning business in Louisiana, Missouri, using a large portion of his assets and a loan of $92,000 from a bank. Early in 1973 there was a natural gas shortage which temporarily caused the business to lose between thirty to forty percent of its volume. In March and April of the same year, the City of Louisiana experienced two floods that closed defendant’s business for six and one-half weeks and thereafter prevented full operation for another four weeks. The second flood did considerable damage to the machinery, fixtures, and equipment essential to the business. The defendant was required to obtain a $17,000 Small Business Administration flood disaster loan to repair the damage and to invest another $18,000 of his funds in the business. He quit his job in order to devote his full energy to saving the business. In 1973, the laundry lost over $19,000. In the first one and one-half months of 1974 it lost $1,200.

At the time of the hearing defendant had a negative net worth of over $41,000. His monthly payments for outstanding business loans were $1,010.

Plaintiff, at the time of the hearing, was studying interior design at the University of Missouri. She was to receive her Bachelor’s Degree in May 1974. It was her intent to continue in school and obtain a Master’s Degree. She was living rent-free with her parents who were purchasing $35 worth of clothing per month for the two children and providing her with a maid. The plaintiff valued her net assets at approximately $22,-000.

Both parties presented evidence with respect to their monthly personal expenses. Plaintiff’s evidence was to the effect that she required $535.00 to cover her needs and $377.50 for the children. Defendant’s evidence was that he, for himself and for his mother, needed $830.81, plus his maintenance and support obligations of $541.00, a total of $1,311.81. A review of each of the items will serve no useful purpose.

The motions to modify which were filed on July 11, 1973, and August 22, 1973, were heard on February 20, 1974. As agreed by the parties this proceeding is governed by the Dissolution of Marriage Act § 452.300 et seq. which became effective January 1, 1974.

The governing statute is § 452.370; the pertinent portion reads as follows:

“Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.”

The scope of our review is governed by Supreme Court Rule 73.01(3). We are to review the law and the evidence and enter such judgment as the trial court should have entered giving due deference to the trial court’s opportunity to judge the credibility of the witnesses. In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975). However, the determination of the amount of alimony, now maintenance, is a matter resting in the sound discretion of the trial court which we will not disturb absent an abuse of that discretion. Biggs v. Biggs, 397 S.W.2d 337 (Mo.App.1965).

The defendant here did suffer severe financial reverses. However, the plaintiff’s needs had not diminished as of the time of the hearing. The ability of defendant to meet his needs while meeting those of the plaintiff is still one of the elements to be considered in determining the amount of maintenance § 452.335(2)(6). An award should not exceed the husband’s capacity to provide. McM v. McM, 506 S.W.2d 14, 16 (Mo.App.1974). In determining defendant’s capacity to pay both his past and present earnings are evidence of such capacity. Page v. Page, 516 S.W.2d 537, 540 (Mo.App.1974). The court did grant some relief to the defendant in this case. Under the circumstances of this case we cannot say that the judgment is clearly against and contrary to the facts. We find no abuse of discretion in this case so far as the allowance to plaintiff is concerned. Murray v. Murray, 538 S.W.2d 587, Mo.App., St.L.Dist. # 37,076 (April 13, 1976).

The next matter is not easy of solution. Defendant contends that under the circumstances of this case the court should have made the decree effective as of the date he filed the motion to modify, which was July 11, 1973. The cause was not heard until February 20, 1974. The cause was then taken as submitted on that date. Judgment was rendered on June 17, 1974, as follows:

“Motions to modify, previously taken under advisement, are sustained insofar as to reduce the award of alimony from $50.00 per week to $25.00 per week and to reduce the award of child support from $75.00 per week to $50.00 per week and it is so ordered. Said motions to modify are ordered denied in all other respects. Counsel notified.”

By Section 452.370, as quoted above, the court may modify the decree of maintenance as to installments accruing after the motion for modification. The statute is a codification of the case law holding that the court may not provide that the decree become effective prior to the date the motion to modify was filed. Hughes v. Wagner, 303 S.W.2d 181 (Mo.App.1957); Nelson v. Nelson, 282 Mo. 412, 221 S.W.2d 1066, 1069[8] (Mo. banc 1920). The determination of the effective date of the decree, at a given time subsequent to the date of filing, is a matter within the discretion of the trial court. As with all discretionary matters we defer to the trial court, absent a clear abuse of that discretion. Anderson v. Robertson, 402 S.W.2d 589, 593[3, 4] (Mo.App.1966); Biggs v. Biggs, supra. While the motion to modify filed on July 11, 1973, contained allegations of substantial change in circumstances, the evidence presented at the hearing more clearly reflects the condition of the parties as of the date of the hearing February 20, 1974. Under the circumstances we cannot say that the court abused its discretion in not providing that the decree be effective as of the date the motion to modify was filed. However, the more disturbing problem, is the question of whether the effective date of the decree in this case should be the date of hearing and submission or the date of the decree, four months later. The general rule is said to be that a decree is effective as of the date the judgment is entered. 49 C.J.S. Judgments § 113(e), p. 243.

In this case the cause was under submission for almost four months. This delay in no way reflects upon the able trial judge who tried this case. As alluded to by our Supreme Court recently, it is well known that the volume of cases filed in our courts is ever increasing. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, Mo.1976. Heavy case loads do not permit the courts and litigants to enjoy the swift disposition of litigation which they desire. The evidence of substantial change in defendant’s circumstances was established as of the date that the case was heard and finally submitted, February 20, 1974.

In considering the question of when the modification of a monetary award should be effective, we take cognizance of the fact that although actions for divorce, now dissolution, and ancillary proceedings are statutory actions at law they are nevertheless tried and disposed of upon equitable principles. Franklin v. Franklin, 283 S.W.2d 483, 485[6] (Mo. banc 1955); Fawkes v. Fawkes, 204 S.W.2d 132, 134 (Mo.App.1947).

In framing decrees in cases of an equitable nature the courts exercise a broad discretion and should render “such relief as the nature, rights, facts, and exigencies of the case demand at the close of the trial or at the time of the making of the decree.” 27 Am.Jur.2d Equity § 249 p. 818.

All of the facts warranting the relief granted in this case were established at the latest as of the date of the hearing and submission. The statute governing this case authorizes the court to enter a judgment which could be effective as early as the date upon which the motion to modify was filed. We are reminded of the old adage that “justice delayed is justice denied.” We feel that where, as here, it is possible to alleviate the effect of unavoidable delay it should be so decreed.

We are of the opinion that under circumstances such as those before us, nothing more appearing, the modification with respect to monetary awards should be effective at the latest as of the date of the hearing.

The judgment of the trial court is modified to be effective as of February 20, 1974, and as modified the judgment is affirmed.

CLEMENS, P. J., and KELLY, J., concur.

      . All Statutory References are to R.S.Mo.Supp. 1973, unless otherwise indicated.


author: McMillian, Judge.

text:
    Zella Maxine LARISON, Respondent, v. Robert Lee LARISON, Appellant.
    No. 37110.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 18, 1976.

      Ellsworth W. Ginsberg, Clayton, for appellant.
    Cundiff & Turken, Ellsworth Cundiff, Jr., St. Charles, for respondent.
   McMillian, Judge.

This is an appeal by Robert Lee Larison from a judgment entered on a decree wherein he was ordered to pay respondent Zella Maxine Larison, $800 for attorney fees and $188.52 for expenses on appeal in the case of Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). On appeal, the $188.52 is not questioned. For reversal, appellant urges that the trial court abused its discretion in failing to consider his ability to pay. We affirm.

On January 15, 1974, the Circuit Court of St. Louis County entered a decree: 1) dissolving the marriage between Robert and Zella Larison; 2) awarding the custody of their minor son to Zella; 3) allowing Zella $5.00 a week for maintenance and $25.00 a week child support; and 4) awarding Zella $1800.00 as and for attorney fees.

After Robert appealed, Zella filed a motion for an allowance of attorney fees and expenses to support the decree of dissolution. The trial court refused to rule on Zella’s motion stating her motion would be taken up after the appeal. In passing, we note that we do not approve the practice followed by the court. While it is true that after the appeal, the allowance to be made would have the advantage of mathematical certainty, however, in the field of law reasonable certainty is our standard. Here, the trial court could have heard testimony as to the novelty of the issues involved, number of hours for preparation, including research and writing, appearance before the appellate court, approximate cost of briefs, and the number of hours and hourly charge for counsel’s time. Based upon its findings, a reasonable allowance could have been made.

After we affirmed, in Larison v. Larison, supra, respondent Zella Larison then presented her motion for the allowance of expenses on appeal.

We have read the record, the transcript and the briefs. In our view, the case has no precedential value. A long discussion will add nothing to the present state of the law. While in our opinion the award made by the trial court is generous, we find no abuse of discretion. Accordingly, the judgment is affirmed.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


text:
    EQUALITY SAVINGS AND LOAN ASSOCIATION, a corporation, Plaintiff-Respondent, v. MISSOURI PROPERTY INSURANCE PLACEMENT FACILITY, Defendant-Appellant.
    No. 36668.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 18, 1976.
    J. H. Cunningham, Jr., Jerome M. McClaughlin, Wilson, Cunningham & McClellan, St. Louis, for defendant-appellant.
    Richard Wolff, Kappel, Neill, Staed & Wolff, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

This is an action brought by Equality Savings and Loan Association, plaintiff, and the holder of a deed of trust on property damaged by fire, against Missouri Property Insurance Placement Facility, defendant, on a policy of fire insurance issued by defendant. The trial court entered judgment in favor of plaintiff under the “Standard Mortgage Clause” of the policy.

Defendant appeals contending (1) that the policy was void because the policy was issued in response to a written application in which the owner of the property misstated a material fact, (2) property owner, in executing the application, was plaintiff’s agent, and (3) because the broker through whom the policy was written and who obtained the application from the owner of the property was selected by plaintiff.

This case was tried upon an agreed statement of facts.

Pansy Lee Irvin and Frank Irvin, her husband, were the owners of a residence at 4708 Page Boulevard in the City of St. Louis. On August 14, 1959, Mr. and Mrs. Irvin executed certain notes secured by a deed of trust upon the property, to Bernard Hollander as trustee for Al Mallioux. The notes and deed of trust were then transferred to plaintiff for valuable consideration.

On August 14, 1971, when the notes became due plaintiff and the owners of the property entered into a renewal agreement by which the deed of trust was renewed to secure the payment of a principal balance of $2681.50.

The deed of trust required the property owners to furnish fire insurance in an insurance company acceptable to plaintiff. On January 22, 1973, plaintiff through its authorized agents, Hahn-Lippelman, obtained a written application for renewal of a policy of fire insurance upon the building and contents from the owners. The application was forwarded to defendant by Hahn-Lip-pelman and in reliance upon the application defendant issued its policy numbered 35941 in renewal of policy 01621 effective March 14, 1973 to March 14, 1974. The policy provided that any loss to the building would be payable to plaintiff subject to the provisions of the “mortgage clause attached” to the policy.

At the time the application was executed by the Irvins taxes on the property were delinquent in the total sum of $337 covering a portion of the year 1970 and the years of 1971 and 1972. The application for insurance which was signed by Mr. and Mrs. Irvin contained a question which asked if there were any delinquent taxes against the property. The question was answered “no”. Plaintiff and Hahn-Lippelman had no knowledge that the taxes were delinquent.

On July 6, 1973, the building described in the policy was damaged by fire in an amount in excess of $3000. Defendant was given due notice of the loss and plaintiff filed a proof of loss in proper form claiming $2263.14, representing the principal balance due on the notes which were secured by the deed of trust. When the defendant learned that the real estate taxes were delinquent it denied liability under the mortgage clause of the policy.

It was the established practice of defendant to decline the application and refuse to insure property upon which there were delinquent taxes.

It was further stipulated that plaintiff would deliver to defendant, upon demand, the deed of trust and other collateral.

The pertinent portion of the “union” or “standard mortgage clause” contained in the policy of insurance issued in this case reads as follows:

“Loss or damage, if any, under this policy, shall be payable to the mortgagee [or trustee], named on the first page of this policy, as interest may appear, and this insurance as to the interest of the mortgagee [or trustee] only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee [or trustee] shall, on demand, pay the same.”

That portion of the mortgage clause which provides that the insurance as to the interest of the mortgagee “shall not be invalidated by any act or neglect of the mortgagor or owner of the . . . property” has been given a very broad and liberal interpretation. That clause has been interpreted to mean that such insurance is not invalidated by any act or neglect on the part of the mortgagor before, at the time of, or after the policy is issued. This has long been the rule in Missouri. Burns v. Insurance Company of Pennsylvania, 224 S.W. 96 (Mo.App.1920). This rule has been adopted in most of the states that have undertaken to interpret the same or similar clauses.

Under the agreed statement of fact there was clearly no coverage afforded to the owners of the property. The “Standard Mortgage Clause” as interpreted by the courts contemplates just such a situation as this. In fact the defendant’s policy .provides that it shall have the right of subro-gation against the owner for the amounts paid to the mortgagee where defendant claims that it has no liability under the policy as to the owner.

Defendant contends that since the owners were required to provide a policy of insurance they became the agents of the plaintiff and thus plaintiff is bound by their statements in the policy. There is nothing in the statement of fact from which we can say the trial court erred in not finding the existence of an agency relationship. In any case the clear language of the “Standard Mortgage Clause” anticipates that it is the mortgagor or owner who will make application for the policy and specifically provides that the actions of the mortgagor shall not affect the validity of the policy so far as the mortgagee is concerned.

As stipulated by the parties neither plaintiff nor Hahn-Lippelman had any knowledge that the statement made by Mr. and Mrs. Irvin in the application respecting the taxes was false. Although Hahn-Lippel-man were the brokers selected by plaintiff for the placement of the insurance they did not execute the application which contained the false statement. We can find no basis for attributing the false statement to plaintiff.

Once the policy was issued, a separate contract arose between plaintiff and defendant which was not affected by the actions of the owners in procuring the policy. There was a binding contract of insurance between plaintiff and defendant which was in effect at the time of the loss. The judgment of the trial court is affirmed.

CLEMENS, P. J., and KELLY, Jr., J., concur.

      . Citizens State Bank v. State Mut. Rodded Fire Ins. Co., 276 Mich. 62, 267 N.W. 785 (1936) (false statement by mortgagor in application re status of title and amount of indebtedness).

        Ohio Farmers Ins. Co. v. Hull, 45 Ohio App. 166, 15 Ohio L.Abs. 17, 186 N.E. 823 (1932) (mortgagor concealed true nature of his interest in the property).

        Reed v. Firemans Ins. Co., 81 N.J.L. 523, 80 A. 462 (N.J.1911) (misrepresented ownership in property).

        Fayetteville Bldg. & L. Asso. v. Mutual F. Ins. Co., 105 W.Va. 147, 141 S.E. 634 (1928) (owner in application falsely stated that the property within a town and within 30 yards of a fire hydrant).

        Polar Mfg. Co. v. Integrity Mut. Ins. Co., 7 Wis.2d 443, 96 N.W.2d 822 (1959) (false and inaccurate answers in application for fire insurance).

      . “Whenever this Company shall pay the mortgagee [or trustee] any sum for loss or damage under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this Company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee [or trustee] the whole principal due or to grow due on the mortgage, with interest accrued thereon to the date of such payment, and shall thereupon receive a full assignment and transfer of the mortgage and all such other securities; but no subrogation shall impair the right of the mortgagee [or trustee] to recover the full amount of his, her or their claim.”


author: SMITH, Chief Judge.

text:
    Oneila JACKSON, Respondent, v. MISSOURI RATING AND COLLECTION COMPANY, Appellant.
    No. 36347.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 18, 1976.

      Sachs & Miller, P.C., Richard J. Fredrick, Clayton, for appellant.
    Joseph S. McDuffie, Ray H. Williams, Clayton, for respondent.
   SMITH, Chief Judge.

Defendant appeals from a judgment against it, following jury verdict, for $10,-000 actual damages and $5,000 punitive damages. We reverse and remand for new trial.

Defendant is a collection agency. It instituted suit against plaintiff, a school teacher, in Magistrate Court, and allegedly served plaintiff through a special deputy appointed pursuant to Sec. 517.100 RSMo 1969. The return stated:

I hereby certify that I served the within summons by leaving on the 8th day of November, 1971, for each of the within-named defendants William and Onelia Jackson a copy of the summons at the respective usual place of abode of said defendants with some person of his or her family over the age of 15 years.

Defendant obtained a default judgment against plaintiff and subsequently sequestered funds from her employer, the St. Louis Board of Education.

Plaintiff’s petition sought recovery upon allegations which could be read to include both malicious prosecution and false return of service. Plaintiff’s verdict-direction instruction was MAI 23.07 (modified) and premised relief upon a theory of malicious prosecution. Such submission was unwarranted by the evidence, most notably because one of the constitutive elements of malicious prosecution requires termination of the prosecuted suit favorably to the present plaintiff. Hughes v. Aetna Ins. Co. 261 S.W.2d 942 (Mo.1953). That has not happened here. The Magistrate Court judgment against plaintiff is still extant.

It appears that plaintiff has misconceived her theory of recovery. In Moore v. Securities Credit Company, 475 S.W.2d 430 (Mo.App.1971) we upheld a cause of action against a principal for a false return by a special deputy appointed pursuant to Sec. 517.100, RSMo. 1969. Such a cause of action does not require that the judgment in the underlying suit be vacated. It rather finds its vitality in the very fact that a sheriff’s return is conclusive on the parties in the original action, and that recovery for false return against the sheriff on his bond is the proper course of action. Under Sec. 517.100 and Moore, supra, such procedure is also available against the principal of the special deputy.

In Moore we set out the reasons for such a cause of action. It is difficult to conceive of a more pernicious evil than the misuse of the judicial system through false returns of process which deny a defendant his day in court, an opportunity to defend, and due process.

Plaintiff submitted substantial evidence that she was not a resident of the house where the summons was served at the time of the alleged service. It was the residence of her brother, William, and had at one time been her residence, but she testified and produced additional evidence that she had moved prior to the date of service into St. Louis County. While defendant produced evidence intended to cast doubt on this element of plaintiff’s proof, resolution of that question of fact is for the jury. Plaintiff’s evidence established all of the elements necessary to support a cause of action for false return of process. Because, however, the jury was erroneously instructed a new trial must be granted. Plaintiff should be granted an opportunity to amend her petition to more clearly set forth her theory of recovery.

Judgment reversed and cause remanded for new trial.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges.


text:
    Larry Wayne McAFEE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10092.
    Missouri Court of Appeals, Springfield District.
    May 19, 1976.
    David G. Neal, Eminence, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Larry Wayne McAfee appeals from the dismissal of his Rule 27.26 motion without an evidentiary hearing. Charged with auto tampering, appellant entered a guilty plea. He was placed on probation for a period of two years. Prior to the expiration of the probationary period, appellant was found to have violated the terms of probation. The trial court afforded appellant an opportunity to withdraw his guilty plea, imposed a five-year sentence, and placed appellant on parole in the custody of State Hospital No. 4 for treatment of alcoholism. Thereafter, appellant’s parole was revoked and he was transferred to the Missouri Department of Corrections.

Appellant contends that the motion raises a claim of double jeopardy, but our reading of the motion, transcript, and briefs on appeal does not lead us to that result. The motion consists of conclusions rather than facts which, if believed, would not entitle appellant to relief, and no evidentiary hearing was required. Smith v. State, 513 S.W.2d 407, 411[1] (Mo. banc 1974).

An opinion would have no precedential value. Judgment affirmed pursuant to Supreme Court Rule 84.16(b).

All concur.