text:
    Enedina RODRIGUEZ, Appellant, v. Margarita Lopez AVALOS, Appellee.
    No. 6682.
    Court of Civil Appeals of Texas, El Paso.
    May 31, 1978.
    Colbert Coldwell, El Paso, for appellant.
    El Paso Legal Assistance Society, Israel Galindo, Phillip Prosen, El Paso, for appel-lee.
   OPINION

WARD, Justice.

This controversy is over which of two claimants was the widow of Enrique Ava-los. Margarita Lopez Avalos filed this declaratory judgment proceeding to establish the alleged validity of her prior common law marriage over the purported validity of a later ceremonial marriage, which took place between Enrique and Enedina Rodriguez. The trial Court, sitting without a jury, upheld the validity of the prior common law marriage. Findings of fact and conclusions of law were requested and filed. Enedina, participant in the later ceremonial marriage, appeals, relying in the main on the presumption set out in Sec. 2.01, Tex. Family Code Ann. We affirm.

Enrique Avalos and Epifania Madrid were married in 1918, and this marriage apparently continued until the death of Ep-ifania in June, 1965. Enrique Avalos and the Plaintiff, Margarita Lopez, began cohabiting about December of 1946, and from this union three children were born, Enrique Avalos, Jr. in 1947, Ernestina Avalos in 1949, and Eduardo Avalos in 1952. When this relationship commenced, Margarita was married to one Antonio Gonzalez. She divorced Antonio Gonzalez in El Paso in July, 1947. Thereafter, it was undisputed that Enrique Avalos and Margarita continued to live together until the death of Epifania in 1965. According to the testimony of Margarita and as found by the trial Court, Margarita and Enrique thereafter continued to cohabit until the death of Enrique Avalos in January, 1977.

According to the testimony of the Defendant, Enedina Rodriguez, and also according to the finding of the trial Court, Enrique Avalos cohabited with Enedina after 1965 until his death in 1977. Enedina had two children by Enrique Avalos, one born in 1969, and one in 1972, the latter being the only surviving child of that union. Enedina also testified that she was married to another man when she started to live with Enrique Avalos, but received a divorce from the other man in 1975. On June 23, 1976, Enrique Avalos and Enedina Rodriguez entered into a ceremonial marriage in El Paso, the record thereof being on file with the County Clerk of El Paso County.

The Court concluded that Enrique Avalos and Epifania Avalos were husband and wife until the marriage was dissolved by the death of Epifania Avalos on June 16, 1965; that Margarita Lopez Avalos and Enrique Avalos then had a common law marriage until said marriage was dissolved by the death of Enrique on January 22, 1977; and that Margarita is the lawful widow of Enrique and entitled to the benefits incident to that status.

In effect, the trial Court ruled that Margarita discharged the burden imposed upon her by Sec. 2.01 of the Family Code, which burden came into effect when Enedina established her ceremonial marriage of 1976. The Defendant’s sole point is that, as a matter of law, her ceremonial marriage to Enrique was valid and that the presumption provided for in Sec. 2.01 was not rebutted.

Before the point itself is reached, the validity of the common law marriage between the Plaintiff and Enrique will be examined. Sec. 1.91(a)(2), Tex.Family Code Ann., calls for the three necessary essentials that must be found to establish a common law marriage, and paragraph (b) of that Section provides that the existence of the agreement of the parties to marry may be inferred if the other two requirements of cohabitation and holding out to the public exist. The Section merely codified the liberal rule previously established in this State. Consolidated Underwriters v. Kelly, 15 S.W.2d 229 (Tex.Comm.App.1929); Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963). In this case, the impediment of Enrique’s first marriage existed for the first nineteen years of the relation between Enrique and the Plaintiff, but ceased in 1965 when Enrique’s first wife died. Sec. 2.22 of the Family Code provides that upon the passing of the impediment their marriage became valid if, after that time, they lived together as husband and wife and represented themselves to others as being married. This Section applies to an informal common law marriage such as existed between the Plaintiff and Enrique. Durr v. Newman, 537 S.W.2d 323 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.). The evidence was undisputed that they cohabited and publicly held themselves out as man and wife from 1965 until at least 1973 or 1974. Margarita and her son so testified. In addition, some twenty-two exhibits were introduced which covered that period of time after 1965. These included a contract of sale covering the purchase of their home on Glenwood Drive, applications for credit, a financial statement, a credit insurance policy, a burial insurance policy, various promissory notes, security agreements, and income tax returns, all of the instruments being in the name of Enrique and Margarita Avalos as husband and wife. The evidence was legally sufficient to support their common law marriage after 1965.

The Defendant, Enedina, testified that Enrique started living with her in 1965; that she was told by him that he had lived with the Plaintiff, had children by her, provided for her, but that he had never been married to the Plaintiff. Enedina stated that he rented various houses in El Paso for them to live in, the final one being on San Marcial Street. However, she stated she was married during the period of time to another man and was not divorced from him until 1975. She had the two children by Enrique before then, but on June 23, 1976, she was married to Enrique by a Judge in El Paso. At that time, Enrique was seventy-five years old. Her exhibits included her marriage license, a certification of that marriage and its record. She also produced two affidavits for support, dated in 1975 and 1976, which were executed by Enrique whereby he described her as his wife and which were made for the purpose of securing a visa for her permanent residence in the United States as an alien. The approval granted to her as a resident alien and a birth certificate of her last child were also introduced. In addition, Enrique’s son, Enrique Avalos, Jr., lived with the Defendant and his father in the Defendant’s home for about a year prior to his father’s death. The son stated that during that period of time Enrique would stay at the Plaintiff’s house part of the time and at the Defendant’s house part of the time, but that he thought his mother, the Plaintiff, was his father’s real wife.

The last sentence of Sec. 2.01 of the Family Code provides that when two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes until one who asserts the validity of a prior marriage proves its validity. This last Section codified existing law with respect to successive marriages, which was to the effect that the most recent marriage would be presumed valid until a person proves the validity of the prior marriage. Texas Employers’ Insurance Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955). The Defendant’s position is that her ceremonial marriage and the strength of the statutory presumption should control the disposition of this case. We overrule the contention. The only residence of all of the parties after 1965 was in El Paso. The Plaintiff, while admitting that after 1974 Enrique only lived with her about a third of the time and that she was aware of some sort of relation then existing with the Defendant, testified that neither she nor Enrique were ever divorced from each other, and that she never received any papers filed by Enrique questioning her marriage to him. Among her exhibits was a certificate from the office of the District Clerk of El Paso County certifying that for the period of time from 1946 to 1977, there was no divorce ever filed between Margarita and Enrique Avalos. We believe that the Plaintiff adequately demonstrated the continuing existence of her marriage by showing that her husband had not been divorced in the place where he always lived. She had only to look there as it was the only place where such a proceeding might reasonably be expected to be filed under the law.' Caruso v. Lucius, 448 S.W.2d 711 (Tex.Civ.App. — Austin 1969, writ ref’d n. r. e.). That quantum of proof was decided as sufficient to rebut the presumption of the validity of the subsequent marriage in Davis v. Davis, 521 S.W.2d 603 (Tex.1975). The Defendant’s point is overruled.

If the point is considered as one attacking the factual sufficiency of the evidence to support the trial Court’s finding, then after considering all of the evidence in the case, the point is overruled. The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Michael Dean WOOD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Everett Paul SMITH, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 23, 1978.
    Dixie R. Satterfield, Bowling Green, for appellant Wood.

      Jack Emory Farley, Public Defender, Mark Posnansky, Asst. Public Defender, Frankfort, for appellant Smith.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

The appellants, Michael Dean Wood and Everett Paul Smith, Jr., were found guilty of kidnapping and each was sentenced to 20 years’ imprisonment. We affirm their convictions.

David Davis, the deputy jailer of Warren County, Kentucky, testified at the trial that on the afternoon of March 13, 1977, he was on duty at the Warren County jail and that one of the trusties knocked on the front door and said, “There’s someone sick inside.” He went around the cellblock, where he observed one of the prisoners appeared to be in deep pain. Another prisoner, Jimmy Bass, and appellant Smith were also present and asked him [the jailer] to “get him [the sick prisoner] to a doctor.” The “sick prisoner” was appellant Wood. The “sick prisoner” appeared to have blood around his mouth. The jailer then opened a sliding door and two of the inmates placed the “sick prisoner” inside the visiting booth. The jailer then turned his back to close the outside door when appellant Wood grabbed him from behind and stabbed him in the throat with a homemade knife. Wood then threatened to kill the jailer and further instructed him to “Open the door.” The jailer then opened the door and appellant Smith and Jimmy Bass ran out.

The jailer further testified that appellant Wood told him, “You make one wrong move and you’re a dead son-of-a-bitch.” The prisoner Jimmy Bass took the jailer’s right arm, appellant Smith took his left arm and Bass said, “You’re oúr ticket out of here. We’re going to take you with us.” Appellant Smith then said, “Let’s go. Get out of here.”

The jailer said the group had moved “maybe a foot or something” when he was able to reach a small gun in his pocket. He fired several shots, one of which killed Jimmy Bass. At this point, appellants Smith and Wood turned the jailer loose and ran back toward the cellblock. On cross-examination the jailer testified the entire incident lasted only about a minute or two and that the extent of his movement while he was in the custody of the prisoners consisted of four to six feet.

The jailer’s version of the incident was corroborated by other Commonwealth witnesses and a prisoner, Paul Moore. Moore testified that he had seen appellant Smith intentionally take some blood from his own foot and place the blood around the mouth of appellant Wood on the day of the incident. Witness Moore also testified that lie observed the actual attempted escape.

The appellants now argue that the trial court committed prejudicial error by refusing to apply the kidnapping exemption statute (KRS 509.050). They argue that under the facts there should have been no conviction for kidnapping.

KRS 509.050 reads:

A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another’s liberty that occurs incidental to the commission of a criminal escape.

The question, then, as stated by appellant Smith in his brief, is whether the interference with the jailer occurred “during the commission of a criminal escape.” This court now holds that “the commission of a criminal escape" includes attempted escape as well as a completed escape. Escape in the first degree is a Class C felony; attempted escape in the first degree is a Class A misdemeanor punishable by a maximum of 12 months’ imprisonment. See KRS 506.010(4) and KRS 532.090(1). One of the purposes of KRS 509.050 is to protect prison personnel.

The appellants argue that the case of Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977) should control. Upon a close reading of Timmons, we are convinced that it is distinguishable from the present cases.

Appellant Smith argues that the court could not lawfully convict him of a Class A felony. He maintains that the exemption provided in KRS 509.050 should have precluded any prosecution for a Class A felony, such as kidnapping, and that he was entitled to a Class B felony instruction. The problem with this argument is that there were no specific objections made to the Class A felony instruction.

Appellant Smith also argues that his conviction is unsupported by the indictment and applicable statutes in effect when the offense was committed. The indictment charges in part that the appellants:

[D]id unlawfully, restrain another person, David Davis, when their intent was to accomplish or to advance the commission of the felony crime of escape in the first degree, or to inflict bodily injury on David Davis or to use David Davis as a shield or hostage contrary to KRS 509.-040(l)(b)(c)(e).
The Commonwealth further states that the defendants did not voluntarily release the victim alive, unharmed, and in a safe place as provided in KRS 509.040(2) and election is made to prosecute this case as a Class A felony.

Appellant Smith urges that this is not a capital indictment and that the prosecution supplied the necessary language to charge a capital offense. We have studied this argument in depth and find it to be without merit. The amended sections of KRS 532.-030 and KRS 532.035 are applicable. These statutes were amended and modified in language only and not in effect.

Finally, we note from the record that there were no objections made to the indictment other than arguing the exemption statute. The meaning of RCr 8.18 is that defenses or objections based on defects in the indictment may be raised only by a motion before trial, and failure to present any such objections constitutes a waiver thereof. The defective indictment argument, therefore, was not properly preserved for appellate review. Furthermore, as we have already said in this opinion, preservation of this alleged error was not made by specifically objecting to the court’s instructions on the degree of the offense charged.

The judgments are affirmed.

All concur.

      . The offense of kidnapping is a Class B felony unless the aggravating factors are present which make it a capital offense, one of the aggravating factors being failure to release the victim substantially unharmed. See KRS 509.-040.


author: WILHOIT, Judge.

text:
    OMNIFLIGHT HELICOPTERS, INC., Appellant, v. Lyle KENNEDY, Kentucky Machinery, Inc., Ford Motor Credit Company, C & K Construction Company, Inc., Lyle Coal Company, Inc., Dock Coal Company, Inc. and Vernon Collett, Appellees. Lyle KENNEDY, Appellant, v. FORD MOTOR CREDIT COMPANY, Kentucky Machinery, Inc., Omniflight Helicopters, Inc., Vernon Collett, Lyle Coal Company, Inc., Dock Coal Company, Inc. and C & K Construction Company, Inc., Appellees.
    Court of Appeals of Kentucky.
    May 26, 1978.

      Gerald L. Greene, Pineville, for Omnif-light Helicopters, Inc. in CA-1599-MR.
    Joe Nagle, Middlesboro, Frank G. Dickey, Jr., Lexington, Kenneth M. Boggs, Barb-ourville, William A. Watson, Middlesboro, for Lyle Kennedy et al. in CA-1599-MR.
    William A. Watson, Middlesboro, for Lyle Kennedy in CA-1611-MR.
    Joe Nagle, Middlesboro, Frank G. Dickey, Jr., Lexington, Vernon Collett, Kenneth M. Boggs, Barbourville, for Ford Motor Credit Co. et al. in CA-1611-MR.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   WILHOIT, Judge.

These two appeals are taken from a judgment of the Bell Circuit Court adjudging an equitable lien of Lyle Kennedy to be superi- or to the claim of Omniflight Helicopters, Inc., but inferior to the claim of Kentucky Machinery, Inc., and reducing the amount of a judgment in favor of Kennedy.

On March 4, 1976, the Ford Motor Credit Company filed action number 9058-38 against the C & K Construction Company, Inc., Lyle Coal Company, Inc., and Dock Coal Company, Inc., seeking recovery on debts due it from those 3 corporations. As a result of that suit, a coal auger owned by C & K Construction Company was repossessed and sold by Ford. The sale of the auger brought almost $97,000.00 in excess of the amount owed by C & K to Ford. On June 4, 1976, Lyle Kennedy was permitted to intervene in this action asking the court to adjudge that he was entitled to an equitable lien on the auger to secure a debt of $250,000.00 owed to him by Vernon Collett. Collett was the president and sole stockholder of C & K, and the intervening complaint made him a party defendant.

On March 9,1976, a suit for $74,550.00 on an account had been brought against C & K by Omniflight Helicopters, Inc., and on March 29, 1976, Kentucky Machinery had brought a suit for $17,380.85 against C & K on an account. On July 15,1976, Kentucky Machinery moved to consolidate its suit against C & K with action number 9058-38, the suit initiated by Ford, or in the alternative that it be permitted to intervene in that action. This motion was granted and in the same order the court granted a default judgment for $300,000.00 in favor of Lyle Kennedy against Vernon Collett, and adjudged Kennedy to have an equitable lien on the auger. The court determined that Kennedy was entitled to all of the excess proceeds after payment to Ford except for the $17,380.85 claimed by Kentucky Machinery. The court passed to a later date a ruling on the rights of the two as to this sum. Ford was ordered to pay $17,425.00 from the excess proceeds it then held to the clerk of the court until a determination of the priority of the claims of Kennedy and Kentucky Machinery could be made. The balance of the excess funds, amounting to $79,425.23, was ordered to be paid to Kennedy. Vernon Collett appealed from this order to the Kentucky Supreme Court; however, his appeal was dismissed on motion of Kennedy for late filing of the notice of appeal. On August 19, 1976, an order of satisfaction was entered showing that Ford had paid the excess proceeds in accordance with the court’s order. On August 20,1976, Kentucky Machinery obtained a summary judgment against C & K on its claim. That same day, Omniflight also obtained a summary judgment against C & K for $74,-550.00 on its claim.

On September 14, 1976, Omniflight moved that it too be permitted to intervene in action number 9058-38, asserting that it had a lien on the excess proceeds from the auger sale as the result of its judgment against C & K and that its claim was superior to either that of Kennedy or Kentucky Machinery. The motion to intervene was granted. Omniflight then filed two motions to vacate the July 16 order which had established Kennedy’s equitable lien. It alleged mistake and fraud which had come to light as the result of newly discovered evidence. Omniflight’s motions to vacate judgment were denied and the court ruled that Kentucky Machinery was entitled to the proceeds held by the clerk, basing this conclusion on the fact that Kentucky Machinery was a creditor of C & K while Kennedy was only a creditor of Vernon Collett. The court also reduced Kennedy’s judgment against Collett from $300,000.00 to $250,000.00.

Kennedy appeals from this judgment (appeal CA-1611 -MR) contending that his equitable lien should have been held to be superior to the claim of Kentucky Machinery, and that the court had no authority to reduce his judgment against Vernon Col-lett.

Omniflight appeals from this judgment (appeal CA-1599 -MR) contending that the court erred in giving Kennedy an equitable lien on a corporate asset to secure the personal debt of Vernon Collett, and that its claim as a creditor of the corporation is superior to that of Kennedy.

The evidence disclosed that C & K and two other corporations, Lyle Coal Company and Dock Coal Company, were formerly operated by Lyle Kennedy, Vernon Collett, and Collett’s two brothers as a partnership. After these businesses were incorporated, Vernon Collett bought all of the stock in the corporations owned by his two brothers and Kennedy, making him the sole stockholder in C & K and the other corporations. Collett agreed to pay Kennedy $300,000.00 for his stock and entered into a written contract with Kennedy on November 22, 1974, providing that $50,000.00 was to be paid to Kennedy on that date and the balance was to be paid at the rate of $0.50 per ton for coal mined by the corporations. To secure payment of the balance, Collett was to “provide a mortgage on sufficient equipment and machinery” of the corporations and to maintain a lien until the balance was paid. No security agreement covering any of the equipment or machinery pursuant to this agreement was ever put to record.

When we consider all of the facts of this case, including the fact that Collett was the sole stockholder and principal officer of C & K, we do not believe that the court erred in adjudging the equitable lien on the auger. McFerran v. Louisville Title Company’s Receiver, 254 Ky. 362, 71 S.W.2d 655 (1934). We do not agree with Kennedy, however, that this lien gave him any rights superior to those of the general creditors of C & K except perhaps as to those creditors who extended credit with actual knowledge of the lien or the facts giving rise to it. See KRS 355.9-102 et seq. Neither Kentucky Machinery nor Omniflight falls into that category.

As far as these two creditors are concerned, we are of the opinion that the judgment in favor of Kennedy did no more than render him a judgment creditor of C & K with the priority of his claim undetermined. At that stage there was nothing in the record to support the priority of Kennedy’s claim over the other creditors of C & K. Consequently, the court did not err in refusing to give him priority over Kentucky Machinery after its timely intervention in action number 9058-38. But neither did the court err in finding that Omniflight was not entitled to priority over Kennedy as to the $79,425.23. At the time this amount was paid to Kennedy in partial satisfaction of his judgment debt, Omnif-light was not a party to action number 9058-38 nor had it attached or acquired any lien on the assets of C & K. Contrary to the argument of Omniflight, even after its claim was reduced to judgment it still had no lien upon the property of C & K. Low v. Skaggs, 31 Ky.L.Rptr. 1292, 105 S.W. 439 (1907). Further, this jurisdiction appears to have adopted the view that until such time as possession of all of the assets of a corporation has been taken by a court of equity, as in a receivership proceeding, the property of the corporation is to be treated in the same way as that of an individual so far as the rights and priorities of creditors are concerned. Louisville Banking Co. v. Etheridge Manufacturing Co., 19 Ky.L.Rptr. 908, 43 S.W. 169 (1897). As between itself and its creditors, “the corporation is simply a debtor, and does not hold its property in trust, or subject to a lien in their favor in any other sense than does an individual debtor.” Id. 43 S.W. at 171, quoting Hawkins v. Glenn, 131 U.S. 319, 332, 9 S.Ct. 739, 33 L.Ed. 184 (1889).

Omniflight had not asked that C & K be placed in receivership, it had not attached anything, and as far as we can see it had not otherwise acquired any lien on the property of C & K up to the time the money was paid to Kennedy. It also failed to make any showing that the judgment in favor of Kennedy was suffered with the design to prefer one creditor over another so as to bring the matter within the purview of KRS 378.060.

As to the court’s reduction of the amount of the judgment against Collett from $300,000.00 to $250,000.00, we find no error. The smaller amount was what Kennedy had claimed in his complaint was due him. The larger amount was what he had claimed in his motion for a default judgment. The trial court did not err in correcting the judgment to reflect the amount claimed in the complaint. CR 54.03, CR 60.01. See United States Fidelity & Guaranty Co. v. Boyd, 29 Ky.L.Rptr. 598, 94 S.W. 35 (1906).

The judgment of the trial court is affirmed.

All concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. Marvin McCLOUD, Relator, v. A. J. SEIER, Judge 32nd Judicial Circuit, Division II, Respondent.
    No. 60010.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for relator.
    John M. Beaton, Kennett, for respondent.
   RENDLEN, Judge.

This original proceeding in prohibition presents the question of whether plaintiff’s treating physician may, at defendant’s behest, be named in a personal injury action to examine plaintiff who, over his objection, must submit to such examination pursuant to Supreme Court Rule 60.

In the underlying damage action, defendant moved that plaintiff be ordered examined for defendant’s purposes by Dr. Michael P. Casini, one of plaintiff’s personal treating physicians for the injuries at bar. Plaintiff, who had furnished defendant the medical and hospital records pertaining to the treatment of his injuries, objected to such selection and offered to undergo examination “by any other” physician to be suggested by defendant or the court. Rejecting this offer defendant pressed her motion and plaintiff-relator, when advised of respondent’s stated intention to order him to submit to a physical examination by Dr. Casini, petitioned here for prohibition. Our preliminary rule issued and for reasons we now discuss, the writ is made permanent.

Generally the purpose of Rule 60 providing for medical examinations in actions involving the physical condition of a party, is to eliminate uncertainty concerning the medical aspects of the cause and permit the preparation of an intelligent and informed defense. It has been stated that this procedure provides a basis for obtaining, as nearly as possible, “the exact and full truth concerning the matters in controversy, in order that [the court] may bestow on litigants equal and exact justice.” 25A C.J.S. Damages § 174(3). However, we deem it disruptive of the judicial process for the court to call upon plaintiff’s treating physician to serve as the defendant’s examining physician.

Plaintiff, by bringing suit for personal injuries, placed his physical condition in issue and thus is deemed to have waived the statutory physician-patient privilege, State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968), but we have found no ease nor has authority been cited sanctioning the appointment of plaintiff’s treating physician as the examiner for defendant’s purposes and requiring plaintiff to submit to such examination. Notwithstanding the dilution of the privilege by the application of the principle of “waiver” in McNutt, “[a] physician occupies a position of trust and confidence as regards his patient — a fiduciary position. It is his duty to act with the utmost good faith. This duty of the physician flows from the relationship with his patient and is fixed by law . . . .” Moore v. Webb, 345 S.W.2d 239, 243 (Mo. App.1961). In Houghton v. West, 305 S.W.2d 407 (Mo.1957), a suit to cancel a warranty deed on grounds of mental incapacity and undue influence, the court held that evidence establishing defendant as “plaintiff’s physician” was sufficient to establish a fiduciary relationship which carried into the parties’ dealings beyond the medical treatment rendered. “The relationship is one of trust and confidence; it is a consensual relationship wherein the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient; and it is the duty of the physician to exercise the utmost good faith in dealing with his patient, not only in professional matters but in all other relationships.” 70 C.J.S. Physicians and Surgeons, § 36, page 941. Moreover, as this duty contemplates the physician’s undivided loyalty to his patient, such duty necessarily runs contrary to the dual allegiance that would result if the physician were employed and paid by his patient’s adversary. The physician would per force be cast into a position of conflict.

Prior to 1943, it had been held that trial courts had inherent power to order, in a proper case, a physical or mental examination. Fullerton v. Fordyce, 121 Mo. 1, 25 S.W. 587 (1894); State ex rel. American Manufacturing Co. v. Anderson, 270 Mo. 533, 194 S.W. 268 (1917). By the laws of 1943, § 87, page 380 (now § 510.040, RSMo 1969), the legislature provided that the trial court in such proceedings might order a party to submit to a physical or mental examination by a physician “chosen by the party requesting the examination. . .” and further that “[s]uch physician shall be deemed the witness of the party procuring the examination unless called as a witness in court by the opposing party.” This procedural statute was superseded by Rule 60, effective April 1,1960, which was amended to its present form January 1, 1975. The language of § 510.040, permitting the physician to be “chosen by the party [here defendant] requesting the examination” has in effect been eliminated by the Rule and replaced by a provision in subsection 60.-01(a) that “[t]he order may be made only on motion for good cause shown and upon notice to the person against whom the order is sought and to all other parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.” While in practice it is customary for the moving party to suggest the name of an examining physician and the court to favorably consider such suggestion, selection of the examining physician and ordering plaintiff to submit to examination are matters for the trial court’s determination. “The order may be made only on motion for good cause shown.”

Rule 35 of the Federal Rules of Civil Procedure, similar in many respects to our Rule 60, is silent as to how the physician will be chosen and it is recognized that under the Federal Rule the moving party has no absolute right to name the examining physician. Stuart v. Burford, 42 F.R.D. 591 (N.D.Okla.1967); Liechty v. Terrill Trucking Co., 53 F.R.D. 590 (E.D.Tenn.1971). In Ohio, which by judicial decision has formulated procedures comparable to Rule 60.01(a), (although limited to actions “for damages for personal injuries”) it has been held that the trial court abused its discretion in naming a physician suggested by counsel for the defendant when that counsel failed or refused to disclose certain business and social relationships between him and the doctor. Adkins v. Eitel, 2 Ohio App.2d 46, 206 N.E.2d 573 (1965). For reasons closely akin, the Iowa Supreme Court in constructing Rule 132 of Iowa’s Rules of Civil Procedure refused to name a doctor suggested by defendant when it was disclosed that the doctor was a client of defendant’s attorney and the plaintiff had objected on this ground. Main v. Tony L. Sheston-Luxor Cab Co., 249 Iowa 973, 89 N.W.2d 865 (1958).

Although, as noted above, the choice of examining physicians is generally a matter within the sound discretion of the trial court, the Rule does not contemplate appointments of the type considered here. This is seen in the requirement of subsection 60.01(b)(1) that the person causing an examination (defendant) shall if requested by the person examined (plaintiff) deliver to him “a copy of a detailed written report of the examining physician.” In the usual situation if plaintiff’s treating physician conducts an examination, plaintiff could reasonably expect his doctor to send him a copy of any report thereof in the course of their fiduciary relationship without the formality of requesting that his opponent (defendant) obtain and deliver the same to him. If the Rule were construed as respondent urges and an arms length relationship imposed on physician and patient, plaintiff-relator could be forced to go through defendant to obtain a copy of the report. Under the same subsection of the Rule, if the examining “physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.” This is a further indication that plaintiff’s treating physician will not be called to make the examination, for if the physician were so appointed and should for any reason fail to report the examination results, a question would immediately arise whether his testimony concerning treatment, as well as that concerning examination, would be excluded. In addition to the divided loyalty resulting from such appointment, a variety of additional problems are readily envisioned, some of which are: (1) A question could arise as to a witness’ “availability” which could be determinative of the right to comment on the failure of a party to call such witness, see Richardson v. Wendell, 401 S.W.2d 455 (Mo.1966). (2) Could the defendant or plaintiff or both impeach the physician if he testifies? (3) Would impeachment by a party be directed to all or limited to only that portion of the testimony relating to the examination or treatment paid for by the other? (4) Could either or both argue concerning the witness’ interest based on the monies paid to him by the other? (5) Which party would be obligated to compensate the physician for the court appearance? (6) Would apportionment between the parties be required relative to monies paid and services rendered for each? These and similar incongruities stemming from respondent’s threatened action convince us that forcing a patient to submit to examination by his treating physician for the benefit of the patient’s adversary could not have been intended by our Rule.

Defense counsel in oral argument conceded that information they sought from the physician would not be limited to matters developed during the examination ; instead it is their stated intention that information obtained during treatment would be included in the report and serve as a basis for the “examining” physician’s opinion. The harm and perplexing difficulties inherent in this procedure heavily outweigh any justification respondent has suggested in support of his position. The appointment of the treating physician as the examining physician is contrary to the intent of the Rule so that the threatened action may be said to exceed the court’s authority. In such circumstances prohibition lies. State ex rel. Gray v. Jensen, 395 S.W.2d 143 (Mo. banc 1965).

We hold that under our Rule 60, a patient-litigant cannot be required over his objection to submit to an examination by his treating physician at the request of and for the benefit of the patient’s adversary.

The preliminary writ heretofore issued is made permanent.

MORGAN, C. J., BARDGETT, FINCH, DONNELLY and SEILER, JJ., and KELLY, Special Judge, concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . Pertinent portions of the Rule are as follows: “60.01 Examination and Report — (a) Order for Examination. In an action in which the mental or physical condition . . of a party, is in controversy, the court in which the action is pending may order the party to submit to physical or mental . . . examinations by a physician or physicians . . . . The order may be made .only on motion for good cause shown and upon notice to the person against whom the order is sought and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, (b) Report of Findings. (1) If requested by the party against whom an order is made under Rule 60.01(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out ■ his findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition . . The court on motion shall make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the person examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition. . . . ”

      . For convenience and clarity, we refer to the parties by the roles they occupy in this case; however, Rule 60 applies to parties generally, without regard to their status as plaintiff or defendant and our holding here has general application.

      . Rule 132, like Missouri’s Rule 60.01(a), was patterned after Rule 35 F.R.C.P. and is synonymous to Missouri’s Rule 60.01(a).


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE ex rel. John A. PARKS, Prosecuting Attorney of Polk County, Missouri, Relator, v. Honorable Charles V. BARKER, Judge of the Polk County Circuit Court, Respondent.
    No. 60376.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.

      John A. Parks, Pros. Atty., Bolivar, for relator.
    Kerry D. Douglas, Bolivar, for respondent.
   ROBERT R. WELBORN, Special Judge.

Original proceeding in prohibition. Preliminary rule issued upon petition of John A. Parks, Prosecuting Attorney of Polk County, against Honorable Charles V. Barker, Judge of the Polk County Circuit Court. The return of the respondent admitted the factual allegations of the relator’s petition, but denied that the action complained of was in excess of the court’s jurisdiction.

The factual basis of the proceeding is as follows:

By information in the Polk County Circuit Court, Joe Duryee was charged with violating the Missouri Wildlife Code by trammel netting in Pomme de Terre Lake, a misdemeanor. § 252.040, RSMo 1969. On December 2,1976, the matter was tried to a jury which returned a verdict of guilty, with a punishment of a fine of $50.00. The defendant was granted 30 days to file a motion for new trial. On January 3, 1977, the defendant was granted seven days additional time for filing his motion. The motion was filed January 7, 1977. The trial court did not act on the motion within 90 days of its filing and the motion was deemed denied under Rule 27.20. On July 20, 1977, the defendant appeared in the Polk County Circuit Court. Sentence was imposed and judgment entered. On August 1, 1977, the defendant paid the fine and costs in the case.

On August 16, 1977, the defendant filed his “Motion to Reopen and Vacate Judgment.” The motion recited its filing under Rule 75.01 and sought vacation of the judgment and discharge or alternatively a new trial. The grounds for the motion were that, after sentence had been pronounced against defendant, the Missouri Department of Conservation notified him that his commercial fishing license would not be renewed because of “repeated violations of the Wildlife Code.” The motion alleged that the above-mentioned conviction was the only time that defendant had been found guilty of violation of the Wildlife Code. He asserted that his defense in the case was entrapment and stated that the use by the Department of Conservation of the conviction as a basis for revocation Of his license without notifying him of its intention to do so before judgment was entered was “conclusive evidence of an unlawful and unconstitutional plan and conspiracy on the part of the Department of Conservation and its agents to unlawfully entrap the Defendant into a violation of the Wildlife Code and based upon any conviction obtained as a result of such unlawful entrapment, to then revoke or refuse to renew the Defendant’s commercial license.”

The circuit court took up the motion on August 18, 1977, at which time the court, upon reconsideration of defendant’s motion for new trial, “and within the 30 days during which the Court controls said judgment,” concluded that the motion for new trial should have been sustained, vacated the judgment and sentence, and sustained the motion for new trial.

On September 28, 1977, the prosecuting attorney filed his petition for writ of prohibition in this Court. The petition asserted that the Rules of Criminal Procedure granted no authority to the trial court to vacate or set aside a judgment at the stage of the proceedings at which the court acted. The respondent was notified on November 14, 1977, that, unless within 10 days he set aside the order of August 18, 1977, the petition for prohibition would be sustained and the preliminary rule ordered to issue. No action on the part of respondent was forthcoming and on November 29,1977, the preliminary rule issued.

By his return, the factual allegations of the petition were admitted by respondent. He asserted that he acted within the 30-day period within which he retained control over the judgment and that he had authority, upon motion of the defendant, to make such order. The return also asserted that issuance of the final writ in the case would have the effect of granting a right of appeal to the state in a case not within the limited area in which the right of appeal is given the state under §§ 547.200 and 547.-210, RSMo 1969.

Respondent acknowledges that no provisions of the Rules of Criminal Procedure directly authorizes his action in this case. He relies upon Rule 36.04 which provides:

“If no procedure is specifically provided by Rule, the court shall proceed in any lawful manner consistent with any applicable statute and not inconsistent with these Rules.”

Respondent contends that under this Rule he was entitled to rely upon Rule 75.01 of the Rules of Civil Procedure as authority for the action which he took.

Rule 75.01 provides, in part:

“The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.”

In a civil case in which judgment is entered on a jury verdict, the effect of Rule 75.01 is to give the trial court 30 days following rendition of the verdict within which it may exercise the authority granted under Rule 75.01. This follows from Rule 78.04 which provides that a judgment on a jury verdict “shall be entered as of the date of the verdict.”

Rule 27.19(b) grants comparable authority to the judge in a criminal case. However, inasmuch as rendition of judgment in a criminal case must await disposition of the defendant’s motion for new trial, Rule 27.19(b) limits the time for action by the court in granting a new trial on its own initiative to 30 days “after the verdict of the jury is returned” rather than 30 days “after entry of judgment” as in Rule 75.01. That the committee which drafted the Rules of Criminal Procedure intended by what is now Rule 27.19(b) to grant the equivalent of the authority found in what is now Rule 75.01 appears from the committee report stating:

“Section (b) [of proposed Rule 111, now Rule 27.19(b)] authorizes a new trial on the court’s own motion at any time within thirty (30) days after verdict and in this respect follows Civil Section 510.370.” Report to Missouri Supreme Court of Committee on Rules of Criminal Procedure, p. 23 (1951).

Respondent’s contention would, in effect, by relying upon Rule 75.01 in a criminal case, bring into criminal procedure authority in a jury case not granted under the rules of civil procedure to a trial court in a civil case tried to a jury. In the latter case, the judgment does not become final until an after trial motion is disposed of, but the trial court’s authority under Rule 75.01 to control its judgment extends only for 30 days following rendition of the verdict. Respondent’s argument would give the trial court such authority under Rule 27.19(b) in a criminal case for 30 days after the rendition of a verdict plus a second 30-day period following entry of judgment and sentencing. Therefore, even if Rule 36.04 might be held to permit resort in a criminal case to Civil Procedure Rules, there is no Civil Procedure Rule which would authorize the action of the trial court in this case.

The fact that the trial court purported to act on the basis of a previous timely motion for new trial does not authorize the action taken. By Rule 27.20(b), a motion for new trial not acted upon within 90 days is deemed overruled for all purposes. In such event, the trial court’s authority to act on the motion has terminated and there is no authority for that court to act thereafter on the motion.

Attention has been called to two cases in which reference has been made to Rule 75.01 as giving the trial court in a criminal case control over its judgment for 30 days. In State v. Bolden, 525 S.W.2d 625 (Mo.App.1975), the court was concerned with the validity of an order by a trial court under Rule 26.05 to correct and clarify the record. The appellant argued that Rule 75.01 limited the court’s authority to make such correction to 30 days following entry of judgment. The court considered the argument as made and held that action under Rule 27.22 is not limited by Rule 75.01. Cruces v. State, 452 S.W.2d 180 (Mo.1970), involved a nunc pro tunc order. In the course of the opinion the court stated that the time within which a nunc pro tunc order may be made is not restricted to the “30-day period within which the court retains control of the judgment under Civil Rule 75.01, V.A. M.R.” 452 S.W.2d at 184.

In both of these cases, the reference to Rule 75.01 was not essential to the holding in the case. Neither is authority for the application of Rule 75.01 in the manner relied upon by the trial court.

The proposition that issuance of the absolute writ in this case would in effect permit an appeal by the state in a case not within §§ 547.200 and 547.210 is advanced without supporting authority. In State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782 (1956), the court held that an appeal would not lie from the action of the trial court which, on the same day of the return of a jury verdict of guilty, set aside the verdict as unsupported by the evidence. The court found no authority for such action but held that the appeal was not authorized under §§ 547.200 and 547.210.

There is no question that the state could not have appealed from the trial court’s order of August 18, 1977. However, relief was sought by way of prohibition, not appeal. Prohibition has been recognized as a remedy applicable in criminal cases. In State ex rel. Brown v. Walls, 113 Mo. 42, 20 S.W. 883 (1892), prohibition was employed to prevent a judge in a criminal case from granting a new trial after expiration of the trial term. The action of the trial court, beyond the time within which it could act upon a motion for new trial, was held to have been without jurisdiction and void and prohibition was held to be the proper remedy. Apparently no contention such as here presented was made in that case so it is not authority in that respect. However, the purpose of the writ of prohibition is to control action of the trial court beyond its jurisdiction and since the granting of a new trial in this case was beyond the time given the trial court for such action, the action was beyond the court’s jurisdiction and prohibition is a proper remedy. The right of the state thereto is not precluded by §§ 547.200 and 547.210.

Respondent’s motion to dismiss, taken with the case, for failure of relator’s brief to comply with the rules is overruled. The preliminary rule is made absolute.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY, RENDLEN and SEILER, JJ., concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . At the time of the adoption of the Rules of Criminal Procedure, effective January 1, 1953, Rule 75.01, relied upon by respondent, was embodied in § 510.370, RSMo 1949.


author: CLEMENS, Presiding Judge.

text:
    Betty KRUG, Respondent, v. UNITED DISPOSAL, INC., Appellant.
    No. 38231.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 16, 1978.

      Warren W. Friedman, Daniel C. Aubu-chon, St. Louis, for appellant.
    Barnard & Baer, Richard 0. Funsch, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

By petition and counterclaim the individual plaintiff and corporate defendant each sued for damages arising from an intersec-tional collision. At the close of evidence the trial court directed a verdict against defendant on its counterclaim on the ground it had failed to prove any damage. Judgment ensued, and pursuant to Civil Rule 81.06, VAMR, the trial court designated the judgment as final for purposes of appeal.

The trial court’s conclusion that defendant had failed to prove damage to its truck followed its rulings denying defendant’s proffered damage testimony. On appeal defendant challenges these evidentiary rulings. We conclude they were erroneous and reverse and remand.

The first ruling denied defendant’s proffer to show the before-and-after damage to its truck and the cost of repairing it. Defendant’s witness was William Johnson, who for 20 years had been its maintenance manager. When Johnson was questioned about the cost of repairing defendant’s truck plaintiff objected, without stating grounds, and the court sustained the objection. Defense counsel then made a formal proffer to show by Mr. Johnson that defendant owned several similar trucks; that he supervised the truck’s repairs and knew truck values; that the damaged truck had diminished $1,500 in value, from $22,000 to $20,500; that it would cost $900 to repair it.

Plaintiff’s first objection was that since the truck was owned by a corporation and witness Johnson himself was not the owner, his proffered damage testimony was inadmissible and could come in only by an expert witness. We disagree.

Plaintiff concedes that an individual property owner is qualified to testify as to value. A long line of cases so holds. See Evidence, 12A Mo.Dig., <§=474(18). To decide if this rule should apply to corporate owners we look to its rationale.

In State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68[10-12] (1948), the court held “it has long been the rule that an ‘owner of an automobile without further qualification may testify as to its reasonable value, and the jury determines the weight and value of such testimony’. . . ” In Stockton v. Tester, 273 S.W.2d 783[14] (Mo.App.1954), Judge Ruark wrote: “The courts are liberal in permitting an owner to testify as to the value of his property.” In Shelby County R-IV School District v. Herman, 392 S.W.2d 609[6 — 10] (Mo.1965), the court held an owner’s estimate of value is admissible, even though he is not qualified as an expert, upon the assumption he is particularly familiar with it. And, in Hood v. M.F.A. Mutual Insurance Company, 379 S.W.2d 806[9-11] (Mo.App.1964), Judge Stone, citing numerous cases in support, wrote . . the owner of personalty usually is permitted to testify as to its reasonable market value, although he may not have sufficient knowledge to qualify as an expert.”

As said, plaintiff’s objection to the proffered value testimony was that witness Johnson, not- being the owner of the damaged property, was unqualified to give his opinion of value. We find that illogical. We see no reason — and plaintiff suggests none — that a corporate owner should have less right than an individual owner to give a valid opinion of value. A corporation, as an artificial person, can only speak through its authorized personnel. Here, witness Johnson was defendant’s long-time maintenance manager. He knew the before-and-after value of the damaged truck and the extent and cost of its repair. The reason for the rule allowing an owner to give an opinion of the value of his property is that his unique familiarity with the property gives relevance to his opinion of its value, the weight of that opinion being a jury issue. That right should not be denied a corporate owner who cannot speak itself but can convey that opinion by a corporate manager familiar with the property. Although we find no Missouri case as to corporate ownership specifically so holding, we do so as a logical extension of the rule as to personal ownership. Courts of other states have so held, as indicated by annotations to the two textual statements and the case noted marginally.

The second basis for the trial court’s ruling denying defendant’s proffer of Mr. Johnson’s value testimony was that defendant had failed to disclose his identity in response to plaintiff’s interrogatory. That interrogatory asked defendant to name persons “defendant expects to call as an expert witness.” Defendant responded by naming George Brown who would testify as to the sequence of traffic control lights.

An “expert witness” has been defined as “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 Pacific Railroad Company, 320 S.W.2d 457[2—4] (Mo.1959). The normal use of the term applies to a witness “retained by a party in relation to litigation.” See Advisory Committee Notes to Federal Rule 26. Here, witness Johnson was not retained by defendant to testify. He was defendant’s maintenance manager, familiar with maintenance and the value of defendant’s vehicles. We do not fault defendant for failure to name Mr. Johnson as an “expert witness.” Plaintiff relies on Civil Rule 56.01(b)(4) requiring pretrial identification of experts who hold opinions “acquired or developed in anticipation of litigation.” Mr. Johnson was not such a witness. He was defendant’s alter ego and his knowledge of the extent of defendant’s damages arose long before litigation.

Furthermore, plaintiff’s two . arguments against Mr. Johnson’s qualifications are inconsistent. Plaintiff raised a two-pronged argument to Johnson’s testimony: first, as outlined above, that his proffered testimony of value was inadmissible because Johnson was not an expert witness and, second, that in answering plaintiff’s interrogatory defendant failed to name Johnson as an expert witness.

In view of the weakness of defendant’s grounds against Mr. Johnson’s value testimony we conclude the trial court erred in applying the harsh sanction of excluding his testimony.

Judgment reversed and cause remanded for a new trial on defendant’s counterclaim.

SMITH and McMILLIAN, JJ., concur.

      . Section 134 of 31 Am.Jur.2d, Expert and Opinion Evidence, states: “Thus, a corporate officer is competent to testify to the value of property belonging to the corporation, where, by reason of his management of its affairs, his personal knowledge of the property, and his information as to surrounding values, he is qualified in fact.” Section 546(116) of 32 C.J.S. Evidence states: “It has been held that the rule that the owner is qualified applies to corporate as well as individual owners, and that the managing officer of a corporation may testify as to the value of property owned by the corporation.” For example, see Hellstrom v. First Guaranty Bank, 54 N.D. 166, 209 N.W. 212, 45 ALR 1487 (1926), holding: “We know of no reason why the salutary rule of evidence which permits an owner of real estate to testify to its value, upon showing the qualifications required of such owner, should not apply to the managing officer of a corporation owning real estate, if such officer shows sufficient knowledge of market value to bring him within the rule. Counsel have cited no authorities to the contrary, and we have found none. Therefore, if the witness Lahr has shown the same knowledge of the market value of this land which would be required of him if he were the individual owner of the same, it should be sufficient.”


author: McMILLIAN, Judge.

text:
    Joseph M. BECKER, Respondent, v. Mrs. Carolyn FINKE, Appellant.
    No. 39610.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Fitzsimmons & Fitzsimmons, Paul E. Fitzsimmons, Clayton, for appellant.
    Samuel A. Goldblatt, William R. Kirby, St. Louis, for respondent.
   McMILLIAN, Judge.

Appellant Carolyn Finke appeals from a judgment entered on a jury verdict in favor of respondent Joseph M. Becker in the amount of $15,000. The judgment arose out of a suit seeking damages for injuries allegedly sustained by respondent Joseph M. Becker in an automobile accident that occurred in St. Louis on November 14,1975.

On appeal appellant challenges the sufficiency of the evidence; thus a recitation of the pertinent facts is necessary. On November 14, 1975, respondent Becker was driving east on Loughborough Avenue and made a stop at the stop sign at Loughbor-ough and River Des Peres Drive. Respondent then turned right and proceeded south on River Des Peres in the curb lane. After travelling approximately 100 feet, respondent stopped his car in order to put his sunglasses on, as the sun was shining into his eyes. Meanwhile, appellant had taken a right turn onto River Des Peres Drive. Appellant saw respondent’s stopped car, and tried to swerve to the left; however, she failed to avoid the car and struck the left rear of respondent’s automobile.

Appellant, at trial, contested these facts in trying to prove that the accident took place at the intersection, rather than 100 feet south of the intersection. Appellant testified that respondent’s car was located on River Des Peres only six feet south of the intersection. She claimed that when impact occurred one-half of- her car was on River Des Peres Drive, and the other half was on Loughborough. In other words, appellant claims that she was in the intersection at the time of impact.

The trial court submitted the following instruction:

“INSTRUCTION NO. 3
“Your verdict must be for plaintiff if you believe:
“First, defendant’s automobile came into collision with the rear of plaintiff’s automobile, and
“Second, defendant was thereby negligent, and
“Third, as a direct result of such collision, plaintiff sustained damage. .
“MAI 17.16 by the plaintiff."

On appeal, appellant challenges, as her sole point relied on, the trial court’s submission of Instruction No. 3. The sole question presented is whether there was sufficient evidence to warrant submission of plaintiff’s instruction based on the rear-end collision doctrine.

It is quite settled in Missouri that in determining whether a submissible case was made, the evidence is considered in the light most favorable to respondent, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to respondent the benefit of all favorable inferences that reasonably may be drawn from such evidence. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 538 (Mo.1977); Vaeth v. Gegg, 486 S.W.2d 625, 629 (Mo.1972); Hays v. Proctor, 404 S.W.2d 756, 758 (Mo.App.1966). After reviewing the record, we find that respondent did make a submissible case based on the rear-end collision doctrine.

From the evidence the jury could have reasonably found that respondent was stopped in the curb lane of River Des Peres Drive, approximately 100 feet south of Loughborough Avenue. As noted above, respondent had stopped at this point to put on his sunglasses. At this time, appellant who had just made a right turn onto River Des Peres Drive from the intersection, ran into the rear end of respondent’s car. Thus, the evidence shows that respondent was stopped in a lane where he was entitled to be stopped; that appellant made a right turn into this lane; and that, after travel-ling approximately 100 feet, appellant struck respondent’s automobile from the rear. A prima facie case of negligence was made.

Appellant argues, citing Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972), that time and distance available to the overtaking driver are necessary factors in determining whether the fact of collision gives rise to an inference of negligence. We wholeheartedly agree; however, because all favorable inferences must be given to respondent, we may only assume that the jury found that the respondent was not negligent in stopping 100 feet from the intersection and that appellant should have been able to stop or avoid the collision within this distance.

Appellant has cited Rosenfeld v. Peters, 327 S.W.2d 264 (Mo.1959) and Todd v. Presley, 413 S.W.2d 173 (Mo.1967), to aid in her argument. These cases are distinguishable, however, from the presented fact situation. Both Rosenfeld and Todd involve situations where the plaintiff, having made an inter-sectional stop, pulled out onto a highway at which time a rear-end collision occurred. Both cases involved clear failure to yield situations, rather than a situation where the rear-end collision doctrine would be applicable. Contrasted with the present facts, there was no failure to yield at an intersection in either Rosenfeld or Todd. The present case involves a fact situation in which an overtaking car, having the time and distance to avoid collision, struck an overtaken car from the rear. The rear-end collision doctrine appears clearly to be applicable.

Accordingly, judgment of the trial court is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . It must be noted that appellant was only travelling approximately four to five miles per hour at the time of the accident.


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas McUIN and Patrick O. Chatman, Defendants-Appellants.
    Nos. 38857, 38876.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Bussey, Collier & Dorsey, P.C., Hugh J. White, St. Louis, for defendants-appellants.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMillian, Judge.

Defendants, Patrick 0. Chatman and Thomas McUin, jointly appeal from a judgment entered by the circuit court upon a jury verdict finding each of them guilty of kidnapping on two separate counts, § 559.-230, RSMol969. Pursuant to the verdict returned by the jury, the trial court sentenced each defendant to two years imprisonment on each count, said sentences to run concurrently for an aggregate of two years for each defendant.

For reversal of the judgment defendants urged that the trial court erred by permitting a witness whose name appeared on the indictment but who failed to testify in the state’s case in chief, to testify as a rebuttal witness. For the reasons hereinafter given, we disagree and therefore affirm the judgment as to each defendant.

From the evidence presented, the jury could have reasonably found that defendants accosted Jeanette and Gwendolyn Sutherlie and Kenneth Taylor on a public street. When the defendants alighted from their automobile, they identified themselves as police officers. When Taylor requested some identification, McUin the driver struck him and Taylor fled. As Jeanette attempted to flee, Chatman caught her by the arm. McUin then grabbed, struck, and forced Jeanette into the back seat of the automobile on the driver’s side. Chatman grabbed and placed Gwendolyn in the back seat of the automobile. Gwendolyn sat in the middle with Chatman to her right by the door. Defendants drove off with the girls in the car. Upon seeing a relative near a pool room, Jeanette rolled down her window, attempted to holler, broke loose from Chatman, and jumped out of the automobile. Immediately thereafter the car came into collision with several other automobiles; McUin and Chatman jumped out of the automobile and fled. At trial both were identified as the abductors.

At the close of defendants’ case, the state announced that Kenneth Taylor, the endorsed witness, was now present and that the state would like him to testify. After a discussion out of the hearing of the jury, the trial court refused to permit the witness to give evidence that should have been presented in the state’s case in chief. Yet, the court, recognizing that defendants had testified that Taylor and the girls were seeking to purchase some marijuana and had given that as the reason the two girls were in the car, did permit Taylor to testify as a rebuttal witness to contradict the defendants’ testimony in that regard.

The state is neither obliged to call all the witnesses endorsed on an information or indictment, State v. Jones, 456 S.W.2d 7, 8 (Mo.1970); State v. McClain, 531 S.W.2d 40, 45 (Mo.App.1975), nor obliged to endorse rebuttal witnesses on its information or indictments. State v. Washington, 383 S.W.2d 518, 524 (Mo.1964) and State v. Malone, 301 S.W.2d 750, 758 (Mo.1957).

Here the record shows that Taylor’s testimony was limited, and was so limited by the court, to rebuttal of the defendants’ evidence. Consequently, we find no error and hold the defendants’ point to be of no merit.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: GUNN, Presiding Judge.

text:
    Maurie H. PLATTNER, Petitioner-Respondent, v. Phyllis L. PLATTNER, Respondent-Appellant.
    No. 38826.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 23, 1978.

      Blumenfeld, Kalishman, Marx, Tureen & Paster, Theodore D. Ponfil, Louis F. Bona-corsi, Clayton, for respondent-appellant.
    Hanks, Taylor & Suddarth, Claude Hanks, Clayton, for petitioner-respondent.
   GUNN, Presiding Judge.

Appellant, Phyllis L. Plattner, filed a motion to modify her divorce decree to increase the child support obligation of her former husband, Maurie H. Plattner. After a hearing, in which the only evidence consisted of the testimony of the two parties, the court overruled her motion. She appeals alleging that the court’s order was against the weight of the evidence. We affirm.

In the divorce decree entered September 15, 1972, appellant was awarded custody of the couple’s two minor children. Under the terms of the decree the father was required to pay $290 per month in child support for each child as well as other benefits agreed to in a stipulation between the parties. Although the stipulation was not made a part of the record before us, from the father’s unchallenged testimony we may conclude that in addition to the $580 per month child support payment, he was required to make mortgage payments totaling $96.63 a month on the house in which appellant and the children continue to live, as well as insurance, taxes and maintenance thereon. Additionally, he was to pay all the children’s medical and dental bills including pharmaceutical charges. He was further obliged to provide for the children’s summer camp and all special schooling. The father also maintains a $50,000 insurance policy on his life naming the children as beneficiaries. Though he is not required to do so, he also takes the children out to dinner two times each week and pays for various miscellaneous expenses, e. g., scouting, Sunday school and sports leagues. According to the father’s records, his payments directly to appellant for the children’s support averaged $993.73 per month in 1975 and approximately the same for the first four months of 1976.

Even though he has remarried and supports his wife’s child, the father’s ability to pay additional child support is undisputed. He and his brother are joint owners of six retail clothing and shoe stores which grossed 1.75 million dollars in 1975. At the time the original decree was entered, the father earned $36,000-$42,000 per year. By 1974 his yearly gross earnings had increased to $56,000. At the time of the hearing on appellant’s motion the father’s income exceeded $60,000 a year. Additionally, he was given the use of a company car, medical benefits, and a $5,000 per year contribution to a pension fund as well as other company fringe benefits.

Appellant and the children remained in the family home at the father’s expense, with the exception of utilities which appellant was required to pay. Appellant had the burden of providing food, clothing, entertainment and general living expenses for the children out of the support payments. She gave widely varying estimates of her costs to meet these expenses. There was no evidence of the cost of meeting the children’s needs at the time of the original decree.

If the statutory standard for the modification of maintenance and child support was the ability of the non-moving party to pay an additional amount, we would be compelled to hold that the trial court’s decision was against the weight of the evidence. Such is not the standard our legislature has adopted. A divorce decree provision for child support may be modified “only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” § 452.370 RSMo Supp.1975. This section of our Dissolution of Marriage Law was enacted to implement a stricter standard for modification, thereby discouraging repeated and insubstantial motions for modification. Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976). Under its terms, a showing of changed circumstances is a condition precedent to the authority to modify. Ward v. Ward, 534 S.W.2d 593 (Mo.App.1976). The burden of proving the substantiality and continuousness of the change is on the movant. Sifers v. Sifers, 544 S.W.2d 269 (Mo.App.1976); McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974). The trial court held that appellant failed to meet her burden of proof. Appellant’s sole argument on appeal is that such a determination was against the weight of the evidence.

Our review is governed by the well known standards enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Although we review the evidence and law de novo, we accord great deference to the trial court’s opportunity to have seen and heard the parties and to have judged their credibility. In re Marriage of Engelhardt, 552 S.W.2d 356 (Mo.App.1977); Seelig v. Seelig, supra. Merely because there is some evidence which could support a result contrary to that reached by the court below does not demonstrate that the decision is against the weight of evidence. We will reverse a decision on that ground only when a cautious study of the record firmly convinces us that the decree rendered is wrong. Roark v. Harvey, 544 S.W.2d 287 (Mo.App.1976).

We believe that the decision of the trial court is amply supported by the evidence and, therefore, hold that appellant failed to meet her burden of showing changed circumstances so substantial and continuing as to make the terms of the decree unreasonable.

Appellant has presented evidence, primarily her uncorroborated and varying estimates, showing the present living expenses of herself and her children. She has produced no clear and unequivocal evidence that these expenses have increased substantially since the divorce decree. Instead, she relies on the general propositions that the needs of growing children increase with age and that inflation has decreased the purchasing power of the dollar. Although these two factors would support a modification, they do not mandate a modification unless it is shown that their effect has been to make the prior decree unreasonable, In re Marriage of Englehardt, supra; Walter v. Waiter, 544 S.W.2d 271 (Mo.App.1976); McGinley v. McGinley, supra. We have been given no evidence to show that the terms of the original decree were insufficient to provide for the present needs of the children, whatever that exact amount may be. Moreover, the trial court could reasonably find that the father’s obligation for child support has automatically increased with inflation. Under the terms of the stipulation, he is required to meet specific expenses incurred by the children in addition to paying a fixed monthly support payment, i. e., schooling, health costs, taxes, insurance, summer camp, etc. The effect of inflation on the father’s obligation to provide for these specific needs has therefore increased his outlays for child support without a modification of the decree.

It is true that the father’s income has increased significantly since the original decree was rendered. An increase in income of the spouse who is obliged to pay child support is not by itself a sufficient reason to modify the support award unless the required showing under § 452.370 RSMo Supp.1975 is first made. McGinley v. McGinley, supra. The spouse’s increased income then becomes a relevant factor in judging his ability to provide greater child support. In re Marriage of Englehardt, supra; Seelig v. Seelig, supra. The preliminary showing was not conclusively established by appellant; therefore, the father’s admitted ability to pay is not a relevant factor in this case.

The judgment is affirmed.

WEIER and KELLY, JJ., concur.

      . Under the terms of the stipulation, upon the sale of the house appellant was to receive $5,000 and the remainder of the proceeds were to be paid to the father.

      . The actual average monthly payment for 1976 was $1,211.17, but this total included $1,100 for the children’s summer camp which was payable only one time per year.

      . Section 452.070 RSMo 1969, which governed modification of divorce decrees for alimony and maintenance prior to the enactment of § 452.-370, provided as follows:
      “ * * * The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.”


text:
    Benjamin J. MITCHELL, Appellant, v. WELLSTON BOARD OF EDUCATION et al., Respondents.
    No. 39565.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Ettie L. Collier, St. Louis, for appellant.
    Thomas E. Tueth, St. Louis, for respondents.
   CLEMENS, Presiding Judge.

Defendant Board of Education employed plaintiff Benjamin Mitchell as its school principal for a two-year term. Defendant discharged plaintiff at the end of the first year without stating reasons and plaintiff sued for breach of contract. The trial court summarily dismissed plaintiff’s petition for failure to state a claim and he has appealed. We find the petition sufficient and reverse and remand.

Summary of employment contract: Plaintiff agreed to serve “effectively” as school principal at specified salaries for each of two years and agreed to abide by the board’s rules and directions. The two-year term was to terminate if plaintiff became legally unqualified or permanently disabled, if he breached the employment contract or committed any act “which would constitute cause for dismissal of a tenured teacher.”

Summary of plaintiff’s petition: The board employed plaintiff in accordance with the above contract. Plaintiff rendered the agreed services for the first year. At the end of the year the board terminated plaintiff’s employment without cause and without stating a reason. The board has not paid plaintiff for any part of the second year of his two-year term.

In judging the sufficiency of plaintiff’s petition we note Rules 55.04 and 55.05, VAMR, declaring that without requiring technical forms a pleading shall be simple, concise and direct, and shall be “a short and plain statement of the facts showing the pleader is entitled to relief.” In Young v. Lucas Construction Company, 454 S.W.2d 638[5] (Mo.App.1970), a similar petition was summarily dismissed and we reversed, holding: “If the facts pleaded, and the reasonable inferences to be drawn therefrom, looked at most favorably from plaintiffs’ standpoint, show any ground for relief then the amended petition should not have been dismissed.”

So construed, plaintiff’s petition pleaded the ultimate facts of his performance of the contract and the board’s breach thereof by summarily discharging him without stated cause. In its brief the board argues its contract “clearly contemplates that the board has the so.le discretion to determine whether appellant’s services as principal were satisfactory.” We disagree. The contract says nothing about such unlimited discretion by the board to determine its satisfaction with plaintiff’s performance. The contract does require plaintiff to perform effectively and he so alleged. “Matters seeking avoidance of a valid contract are affirmative defenses which must be set out in the pleadings.” Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256[1-2] (Mo.App.1975). “The requirement that an affirmative defense be pleaded is not a mere technicality. It is necessary to the fair and orderly administration of justice.” Winthrop Sales Corporation v. Shelton, 389 S.W.2d 70[4, 6] (Mo.App.1965).

It may well be that plaintiff breached the employment contract. If so, as required in Winthrop, supra, that may be pleaded and proven in “the fair and orderly administration of justice.”

Reversed and remanded.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Clinton Martin COLLINS, Appellant.
    No. 37930.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant was convicted of first degree robbery and sentenced to five years’ imprisonment. On appeal he alleges the trial court erred by (1) refusing to suppress out-of-court identification, (2) allowing in-court identification by victims, (3) denying his motion for acquittal when the evidence was insufficient to prove the victim’s fear and (4) admitting evidence of a prior misdemeanor conviction. We affirm.

Defendant requests his points relied on be reviewed as plain error under Rule 27.20(c). The rule is invoked on a case-by-case basis where substantial rights are affected and “there must be a sound, substantial manifestation . . , a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” State v. Meiers, 412 S.W.2d 478[1] (Mo.1967).

By his first point defendant challenges out-of-court identification testimony based on a one-on-one confrontation (a showup) at the police station. Defendant argues the showup itself was so suggestive it caused irreparable misidentification. Further, he argues that the fact the victim-witnesses drove to the police station together and then discussed the incident created a risk of misidentification.

At a pre-trial hearing on defendant’s motion to suppress Edith Dobbins, the owner of a food shop, testified she had previously seen the man who robbed her shop many times and knew his name. She stated she had observed defendant several minutes during the robbery from a distance of four feet. Subsequently, she identified defendant as the robber while he was standing in the police station. The mere fact a showup occurred and that the victim identified defendant as the robber does not render the confrontation at the police station unduly suggestive. See State v. Barnes, 537 S.W.2d 576[2] (Mo.App.1976). See also State v. Burnette, 549 S.W.2d 352[2, 3] (Mo.App.1977), where a motion to suppress identification based on a showup was held to have been properly denied. Nor does the fact the owner and her employee, Edith Millicker, drove to the station together or discussed the incident show prejudicial suggestiveness. See State v. Williams, 448 S.W.2d 865[3] (Mo.1970) where the court held that separation of identifying witnesses is not a requirement to identification.

Second, defendant contends there was no independent basis for the in-court identifications, that they' were based on suggestive out-of-court identifications. When an in-court identification is attacked the inquiry extends not only to determining whether identification procedures were unduly suggestive, but also to determining whether there is an independent source of identification. See State v. White, 549 S.W.2d 914[2] (Mo.App.1977).

Determination that an independent source of identification exists is based on factors enumerated in State v. Madison, 537 S.W.2d 563[3] (Mo.App.1976): (1) the opportunity of the witness to view the accused at the time of the alleged crime, (2) the accuracy of the witness’ prior description of the accused, (3) the certainty of the witness at the confrontation, (4) the length of time between the crime and the confrontation, and (5) the need for the police to determine at the earliest possible opportunity whether the person suspected is the person sought. See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Edith Millicker, an employee at Edith’s Food Shop, testified she recognized the person who robbed the shop because she had seen him in the store on previous occasions and also for about five minutes earlier on the day of the robbery. At the time of the robbery she was approximately two feet from him and he stood across the counter from her for five minutes. She described the man in detail. Later that night she identified defendant at the police station. She stated she had no doubt defendant is the person who robbed the shop. Coupled with the trial testimony of Edith Dobbins which corroborated Edith Millicker’s testimony, there is a sufficient independent source of identification to support the in-court identification. See State v. Corlew, 463 S.W.2d 836[1] (Mo.1971) where the court found that since each witness knew the defendant prior to the offense his in-court identification had an independent basis.

Third, defendant contends the evidence failed to prove the victims were placed in fear. He argues that because employee Edith Millicker testified she did not see a gun and that she was afraid because he said “Give me your money,” any fear existed as a result of her “tempermen-tal timidity.” However, Edith Millicker also testified that she believed defendant had a weapon in the hand he held underneath his coat and that she was frightened. She later stated more specifically that it looked like he had a gun in his hand. Although the witness admitted she had said at the preliminary hearing she was not afraid, these contradictory statements do not render her trial testimony insufficient to sustain a conviction for first degree robbery. See, e. g., State v. Brown, 480 S.W.2d 839[1] (Mo.1972) and cases in Mo.Dig., Criminal Law 553. The fact defendant may not have had a gun does not prevent a conviction. Robbery in the first degree may be found where the victim is in fear even though there was no real possibility of injury, such as here where a robber falsely pretended to be pointing a gun supposedly concealed under his clothing. State v. Keeney, 425 S.W.2d 85[2] (Mo.1968). Fear need not be stated expressly. A presumption of fear will arise from evidence showing reasonable grounds for it. State v. Day, 560 S.W.2d 322[3] (Mo.App.1977); State v. Tidwell, 500 S.W.2d 329[7] (Mo.App.1973). The court in Keeney, supra, concluded: “That she [the victim] complied with her assailant’s demand is indicative of her fear of consequences which reasonably could result from failure to accede to the demand [for money]-”

Finally, defendant urges us to consider our prior holdings that allow a defendant who testifies to be impeached by evidence of past misdemeanor convictions. We are bound by the rulings of the Missouri Supreme Court to the contrary. See, e. g., State v. McKissic, 358 S.W.2d 1[9] (Mo.1962).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: WEIER, Judge.

text:
    Emery SUTTON, Appellant, v. Harold SUTTON, Respondent.
    No. 38831.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 23, 1978.
    Lawrence N. Koeln, Centerville, for appellant.
    Jack C. Harper, Clayton, for respondent.
   WEIER, Judge.

Plaintiff Emery Sutton brought this suit against the defendant Harold Sutton to recover actual and punitive damages for defendant’s alleged alienation of the affections of the plaintiff’s wife. The Circuit Court of St. Charles County, Missouri, granted defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiff appeals. We reverse and remand for trial.

In considering a petition on motion to dismiss, we accept as true the facts properly pleaded and construe it liberally and favorably to the plaintiff, giving him the benefit of all reasonable inferences fairly deducible from the facts stated. Concerned Parents v. Caruthersville School District 18, 548 S.W.2d 554, 558[6] (Mo.banc 1977). The pleader is only required to state ultimate facts. It is not necessary to plead facts and circumstances by which the ultimate facts will be established. Scheibel v. Hillis, 531 S.W.2d 285, 290[14] (Mo.1976). If facts so pleaded, together with reasonable inferences that can be drawn from these allegations, show any ground upon which relief can be granted, the motion should be denied. Euge v. Golden, 551 S.W.2d 928, 931[4] (Mo.App.1977).

Keeping these general principles in mind, we consider the plaintiff’s petition in light of the elements required to be pleaded and proved in a suit for alienation of affections.

“Alienation of affections is an intentional tort, and the elements of the cause of action are defendant’s wrongful conduct, plaintiff’s loss of the affections or consortium of his spouse, and the causal connection between such conduct of defendant and the loss by plaintiff. Gibson v. Frowein, 400 S.W.2d 418, 421 [3] (Mo.banc 1966). We review plaintiff’s petition to determine whether the allegations therein sufficiently plead the ultimate facts containing the elements outlined in Gibson.

(1) Wrongful conduct. Plaintiff alleges “. . . the defendant, well knowing the said JoAnn 'Sutton to be the wife of the plaintiff, and wrongfully intending to injure this plaintiff and deprive him of his said wife’s comfort, society and assistance, willfully, wickedly and maliciously gained the affections of said JoAnn Sutton, and induced her to have carnal intercourse with him and sought to persuade her and entice her to leave plaintiff . . . ”

(2) Plaintiff’s loss of affections or consortium. The petition alleges that defendant alienated and destroyed plaintiff’s wife’s affection for plaintiff and that he has been deprived of the comfort, society and assistance of his wife.

(3)Causa1 connection. The petition alleges that by reason of the allegations of wrongful conduct set out in (1), plaintiff lost the affection of his wife for him, and that by reason thereof he was damaged in the sum of $10,000.

.Here we have a petition which sets out that the defendant deliberately committed acts which were inherently wrong and seductive and tended to and did have that effect. It alleges an active interference with the marital relation between the spouses. Causal connection of wrongful acts with the loss of affection is clearly stated. We see no basis upon which the trial court can be sustained for granting the motion to dismiss.

Contrary to defendant’s suggestion, there is no bar to the plaintiff’s cause arising from plaintiff’s institution of an action to dissolve his marriage and obtaining judgment in that suit. A decree of divorce does not generally bar an action for previous alienation of affections. Pollard v. Ward, 289 Mo. 275, 282, 233 S.W. 14, 16[1] (1921). There seems to be no reason why a defendant in an action for alienation of affections may assert as a grounds for defense a decree dissolving the marriage of the plaintiff and his or her erring spouse unless the decree was rendered prior to the acts of defendant described in the petition.

A motion by appellant to correct the transcript remains for disposition. No filing date is shown in the transcript on the entry containing appellant’s motion to set aside order sustaining defendant’s motion to dismiss and for rehearing. We have ordered up the original court record in the case and find that the court minutes set out the date on which this motion was filed to be November 8, 1976. The judgment of dismissal was entered October 29, 1976. Plaintiff’s motion to set this order aside was filed well within the fifteen days allowed by Rule 78.04.

The judgment is reversed and the case remanded.

GUNN, P. J., and KELLY, J., concur.