author: HENLEY, Judge. BARDGETT, Judge SEILER, Chief Justice

text:
    Howard CHAMBERLIN and William Bryan Miller, Respondents, v. MISSOURI ELECTIONS COMMISSION, a Governmental Agency, et al., Appellants, and John C. Danforth, Intervenor-Appellant.
    No. 59505.
    Supreme Court of Missouri, En Banc.
    June 21, 1976.

      Howard F. Sachs, Kansas City, for appellants.
    Arthur A. Benson II, Kansas City, for respondents.
    John C. Danforth, Atty. Gen., Andrew Rothschild, Asst. Atty. Gen., Jefferson City, for intervenor.
   HENLEY, Judge.

This is an action for declaratory judgment and injunctive relief. It presents questions involving the constitutionality of parts of the Missouri Campaign Finance and Disclosure Law (hereinafter the Campaign Law) enacted by the initiative in 1974 effective January 1, 1975.

Howard Chamberlin and William Bryan Miller (hereinafter plaintiffs or Mr. Chamberlin, Mr. Miller), brought this action against the Missouri Elections Commission and its members (hereinafter the Commission), and Ralph L. Martin, prosecuting attorney of Jackson county, as defendants. John C. Danforth, attorney general of Missouri, intervened as a party defendant (hereinafter Intervenor). Both plaintiffs are attorneys-at-law licensed to practice in this state. Mr. Chamberlin was a candidate for the office of Mayor of the city of Lota-wana in the spring, 1975, election and at that time was a stockholder in a professional legal corporation in which he held an interest of more than 10%. A client paid the corporation more than $500 for his professional services during the 12 months preceding the election. He did not comply with the provisions of either subsection 1(5) or subsection 1(6) of § 130.035. Mr. Miller has held since 1968 the office of judge of the municipal court of Raytown, a part-time judgeship. He was a candidate for and was reelected to that office April 6, 1976. It is agreed that he is a sole practitioner and, although the record is not clear, the case was tried and submitted on the theory that the facts were (1) since January 1, 1975, a client has paid him more than $100 for professional services, and (2) he has failed to comply with subsection 1(5).

By this action, plaintiffs sought a judgment declaring subsections 1(5) and 1(6) of § 130.035 unconstitutional and void on the ground, among others, that they violate rights guaranteed plaintiffs by the equal protection clause of the Fourteenth Amendment of the United States Constitution “by subjecting them to classifications that impose unequal burdens of disclosure upon them without advancing any rational or justifiable state interest in such classifications * * * In addition to a declaratory judgment, plaintiffs also sought relief enjoining defendants from compelling them to comply therewith.

Plaintiffs’ “equal protection” ground for relief is that these subsections make an arbitrary and unreasonable difference between the reporting requirements of a candidate who is a lawyer practicing alone (sole practitioner) and a lawyer who, having a 10% or more interest therein, practices in the form of a professional legal corporation (corporate practitioner); that the latter is favored and the sole practitioner invidiously discriminated against in that the sole practitioner is required to report as a source of income the identity of each client who paid him in excess of $100 (the greater burden of disclosure), whereas the corporate practitioner is required to report as a source of income only the identity of each client who paid the corporation more than $500, and then only if it was paid on behalf of or for services rendered by the candidate, as distinguished from another stockholder of the corporation (the lesser burden of disclosure). Other grounds for relief raised by plaintiffs will be referred to and discussed in connection with their cross-appeal.

The trial court filed a memorandum opinion, and entered judgment upholding plaintiffs’ Fourteenth Amendment “equal protection” claim. The judgment, omitting a part not pertinent to the issues on appeal, is as follows:

1. “Plaintiffs are not excused from complying with the terms and provisions of Sections 130.035 1.(5) and (6) on the ground that compliance by them would violate the attorney-client privilege of confidentiality and the terms of that statute are not unconstitutional as applied to said plaintiffs under the facts of the case.
2. “Sections 130.035 1.(5) and (6) V.A. M.S. constitute an unlawful arbitrary classification in violation of the Fourteenth Amendment to the Constitution of the United States and are declared to be unconstitutional and void.
3. “Plaintiffs Chamberlin and Miller are excused from complying with Sections 130.035 [1^(5) and (6) and Defendants are permanently enjoined from compelling Plaintiffs to comply with said Sections and from instituting criminal prosecution to compel compliance.”

Defendants and Intervenor appealed from that portion of the judgment quoted in paragraphs numbered two and three. Plaintiffs appealed from that portion quoted in paragraph numbered one.

Defendants and Intervenor contend the trial court erred in reaching the constitutional question and in declaring subsections 1(5) and 1(6) unconstitutional, because they are susceptible of construction in harmony with the constitution. In State ex rel. State Highway Commission v. Paul, et al., 368 S.W.2d 419 (Mo.banc 1963), the court said (l.c. 422):

“It is a cardinal rule of statutory construction that where a statute is fairly susceptible of a construction in harmony with the Constitution it must be given that construction by the courts and, unless the statute is clearly repugnant to the organic law, its constitutionality must be upheld. City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687, 692[6]; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167[8]; State on inf. Dalton v. Metropolitan St. Louis Sewer Dist., 365 Mo. 1, 275 S.W.2d 225, 234[23]; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876, 882-883[5]; State ex rel. Barrett v. May, 290 Mo. 302, 235 S.W. 124, 126[3].

“Courts will not ordinarily pass on constitutional questions where the case presented may be properly decided without doing so. McIntosh v. Connecticut General Life Ins. Co., Mo., 366 S.W.2d 409, 412[2]; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612[6]; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497[23].”

We conclude that subsections 1(5) and 1(6) are fairly susceptible of a construction that will obviate any need to reach and decide the Fourteenth Amendment question decided by the trial court. Read together, an ambiguity clearly appears from these two subsections in that different amounts or “floors” ($100 and $500) are fixed as reporting requirements for the same person. Subsection 1(5) appears to require the candidate to report the source of any income in excess of $100 received by him, while subsection 1(6) appears to require the candidate to report the source of any income in excess of $500 paid for services rendered by him to “any sole proprietorship * * * In other words, under the first of these two subsections the reporting requirements of a candidate who is a sole practitioner (a sole proprietorship) is governed by a $100 floor, while under the second the reporting requirements of the same person, a candidate who is practicing as a sole proprietorship (a sole practitioner), is governed by a higher floor: $500, the amount also set for the corporate practitioner.

This conflict or inequality in the level of the “floor” set by these two subsections for reporting the source of gifts, salaries, fees or other income received by the candidate, his spouse or minor children within the prescribed period of time reasonably may be, and is, resolved by construing the two subsections to require that the candidate who is a sole practitioner shall use the same floor ($500) as that set for a sole proprietorship and those who practice in the form of a partnership or corporation. We believe this construction to be consistent with the intent and purpose of the Campaign Law. With this conflict resolved, we consider and hold that a sole practitioner and a corporate practitioner are required by subsections 1(5) and 1(6) to report as follows:

1. Where the income received within the prescribed period of time is in excess of $100 but not in excess of $500, the candidate who is either (A) a sole practitioner or (B) a corporate practitioner shall report as the “source” of this income, not the name and address of each person by whom such amount was paid, but the business entity (sole proprietorship or corporation) from which he receives his income.

2. Where the income received within the prescribed period of time from any one person is in excess of $500, the candidate who is:

A. a sole practitioner shall report as the “source” of this income the name and address of each person by whom such amount was paid; and

B. a corporate practitioner holding a 10% or more interest in and who has rendered any service to the corporation which resulted in such income, shall report as the “source” thereof the name and address of each person by whom such amount was paid.

Plaintiffs, in rebuttal, argue that this construction of subsections 1(5) and 1(6) “create differential burdens of disclosure which have no rational relationship to any justifiable state interest and the classifications are, therefore, in violation of the equal protection clause of the [Fourteenth Amendment].” In attempting to demonstrate their contention, plaintiffs refer only to hypothetical fact situations which they assert present differences in burdens of disclosure, none of which are applicable to the facts of this case. Our decision is confined to and based upon the very narrow factual situation this case presents. The hypothetical fact situations pointed to by plaintiffs will be ruled upon when, and if, they are presented as live issues in a case.

As noted above, plaintiffs appealed from that portion of the judgment which stated that they are not excused from complying with provisions of subsections 1(5) and 1(6) on the asserted ground that compliance would violate the attorney-client privilege. A question is raised by the Commission, but not pressed, as to whether plaintiffs may appeal since the overall judgment was favorable to them. At the same time the Commission and Intervenor have recognized that points briefed by plaintiffs on their cross-appeal may be urged as alternate grounds in support of affirmance and have replied thereto in their briefs as respondents. We treat these points of plaintiffs as alternate grounds in support of affirmance of the judgment.

Plaintiffs contend that subsections 1(5) and 1(6) are unconstitutional in that they infringe upon the attorney-client privilege protected by the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. We agree with the determination of the trial court that, under the facts of this case, these subsections are not unconstitutional as applied to plaintiffs.

We note that Mr. Chamberlin testified that he has clients who do not desire or will not permit him to disclose their identity, but he did not state that disclosure of their identity would subject them to harm, would have the effect of disclosing the substance of the client’s communication, or would in any other respect violate the attorney-client privilege. On this point plaintiffs rely primarily upon testimony by attorneys, not parties in this case, that on occasion an attorney-candidate might be compelled to make disclosures required by subsections 1(5) and 1(6) which could result in violation of the attorney-client privilege and thereby, they contend, violate the client’s Fifth and Sixth Amendment rights.

We held above that in certain specified circumstances all candidates are required to disclose by name and address the identity of various sources of income. Plaintiffs insist that a blanket exception should be made for candidates who are attorneys, by allowing them to avoid disclosure of the identity of clients who might fall within the purview of the statute, on the ground that the attorney-client privilege requires it.

We believe that insofar as the disclosure requirements of these subsections are concerned the attorney-client privilege generally will remain inviolate. We say this because the well-established rule is that identity of a client is not within the scope of the privilege. VIII Wigmore; § 2313. Mauch v. Commissioner of Internal Revenue, 113 F.2d 555 (3rd Cir. 1940); United States v. Long, 328 F.Supp. 233, 236 (E.D.Mo.1971); In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975). There is a very narrow exception to this rule: e. g., the identity of a client may be shrouded and the privilege recognized “when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication.” N.L.R.B. v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965).

In the well-known case of Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), cited by plaintiffs in support of the claimed privilege, the court cautioned that whether or not identity of a client is privileged “must be assessed on a case to ease basis, depending on the particular facts of each case.” 279 F.2d at 631.

There is no evidence in this case which brings these plaintiffs within the exception to the rule.

Plaintiffs further assert that “notwithstanding the fact that neither [of them] had * * * a client whose interest would be prejudiced by disclosure of the fact of representation” they have standing in this type of action under the “overbreadth doctrine” to attack the constitutionality of subsections 1(5) and 1(6) as applied to the obligations and rights of others (not parties hereto) to whom the attorney-client privilege is applicable. In this connection, plaintiffs refer to attorneys who testified that an attorney-candidate whose practice is largely in the criminal law field may be, in some circumstances, forbidden to disclose the source of fees, because disclosure might in certain hypothetical situations result in incriminating the client.

We applied the overbreadth doctrine in City of St. Louis v. Burton, 478 S.W.2d 320 (Mo.1972), striking down a “loitering” ordinance whose apparent reach was much broader than the true intent of the ordinance. However, employment of the doctrine has been narrowed somewhat; it is used “sparingly and only as a last resort.” Broaderick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). For the most part it is applicable only when the reach of the law is substantially excessive and its application normally is in First Amendment cases rather than cases involving regulation of political conduct. Its inapplicability is demonstrated by the treatment of campaign contribution disclosure requirements in the decision of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The Buckley case considered a constitutional challenge of the Federal Campaign Finance law. It was alleged that the statute called for potential unconstitutional disclosures that would unduly “chill” constitutionally-protected political activities. The court recognized a possible constitutional problem with compelled disclosure, and stated that to uphold such a disclosure requirement, there must be a “‘substantial relation’ between the governmental interest and the information required to be disclosed.” 96 S.Ct. at 656.

Such governmental interest must be “sufficiently important to outweigh the possibility of infringement” upon claimed constitutional rights. Importantly, the court concluded in reference to election campaign laws that “disclosure requirements are of this magnitude.” 96 S.Ct. at 657.

The court in Buckley rejected, as we do, a claim of harm from disclosure where such was “highly speculative” and not presently before the court. It was concluded that the statute would stand until an actual case corroborates and justifies the claim of anticipated harm and unconstitutional application. We adopt the “as applied” approach endorsed in Buckley.

In sum, there has been no showing in this case that a serious barrier presently exists precluding compliance by plaintiffs with the statutory requirement that they, as candidates for office, disclose the names and addresses of their clients who have paid more than $500 for their services.

If problems involving issues of attorney-client privilege or denial of rights or privileges guaranteed by the constitution should arise in a specific case, procedures are available to test the efficacy of the disclosure requirements “as applied” to that situation: (1) an advisory opinion by the Commission could be requested; or (2) a declaratory judgment could be sought in an actual controversy. But until such controversy arises, we decline to strike down these subsections of the Campaign Law on the grounds stated by plaintiffs where the narrow facts before the court do not support their contentions.

The judgment is reversed.

HOLMAN, FINCH and DONNELLY, JJ., concur.

SEILER, C. J., concurs in result in separate opinion filed.

BARDGETT, J., dissents in separate dissenting opinion filed.

MORGAN, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent.

I realize the principal opinion attempts to construe and decide only narrow questions directly presented in this particular case, but I find it difficult to readily discern the actual perimeters of the opinion. It may be that some of the issues spoken of in this dissent have not been ruled by the principal opinion and will be the subject of subsequent litigation. I do not intend to inferentially broaden the principal opinion by this dissent nor to indicate that issues not decided have been decided but, as noted supra, I have difficulty in discerning the precise perimeters of the principal opinion.

The first question presented arises from the circuit court’s judgment holding that the provisions of section 130.035, subd. 1(5) and (6), constitute an unlawful arbitrary classification in violation of the Fourteenth Amendment, United States Constitution.

Section 130.035, subd. 1(5) and (6), specifies what income and gifts must be disclosed by the candidate. The provisions relating to income reporting are the particular items in this case and the resolution of the issue requires that the court decide what is meant by “source of income” in view of the constitutional attacks upon this statute.

Section 130.035, subd. 1(5) and (6), provides:

“(5) A specific listing of the source, by name and address, of any gifts or income in excess of one hundred dollars received by the candidate or the candidate’s spouse or minor children during the preceding twelve months or the time of the last report, whichever is later; and

“(6) A specific listing of the source, by name and address, of any gifts, salaries, fees, or other income which for the twelvemonth period preceding the filing date individually or in the aggregate exceeds five hundred dollars which has been paid on behalf of or for services rendered by the candidate to any sole proprietorship, partnership or corporation in which the candidate or the candidate’s spouse holds an interest of ten percent or more.” (Emphasis added.)

The circuit court held that section 130.-035, subd. 1(5) and (6), creates two arbitrary classes of persons, to wit: (1) sole practitioners or businessmen and (2) persons doing business as partnerships, corporations, or other forms of business associations, and that the reporting of income requirements of the law violated the Fourteenth Amendment of the United States Constitution “by subjecting them [candidates] to classifications that impose unequal burden of disclosure upon them without advancing any rational or justifiable state interest in such classification . . ..”

Actually the law creates at least one more classification in that a person who practices a profession or does business in a firm or corporation but holds less than a ten percent interest in the business is not required to disclose the name of any client or customer even though the candidate performs all the services for the client, patient, or customer and his firm receives an extremely large sum in compensation and even though the candidate’s share is in the thousands of dollars. This candidate only gives his firm name as the source of his income.

This instant case does not involve a candidate who does business in a firm or by a corporation in which the candidate holds less than a ten percent interest and therefore the principal opinion does not consider this third classification in ruling the case. I point it out merely to show that there are a number of classifications which receive different income-reporting treatment even though the true classification is that of “candidates for political office”. It is within that classification (candidates for political office) that, in my opinion, the law treats certain candidates differently than others with respect to the same matter — income reporting.

“The parties to this litigation stipulated (Tr. at 18) that a large law firm is a partnership or professional corporation having twenty or more partners or shareholders and that most partners in such large law firms would not have an interest of 10 percent or more in the firm. It was further stipulated that, among the clients of most large law firms are corporations, agencies or other entitles whose legal and business affairs are of public interest to the citizens of Missouri, including public utilities regulated by the State, manufacturers whose business activities are subject to governmental regulation, banks in which governmental funds are deposited, and construction companies which do business with governmental units. (Tr. at 18) Under the classifications established by this Act where such clients are represented by large law firms having a partner who is a candidate, no disclosure of the business as a source of income to the candidate is required, notwithstanding a substantial personal interest in the affairs of such a client.” (Respondents’ brief p. 8.)

It appears the law rewards the laundering of money income and discriminates against single proprietorships and small firms or businesses with no discernable purpose which would be reasonably related to the purpose of the legislation nor justify the discrimination inherent in the subclassi-fication.

While I am not satisfied the principal opinion covers all aspects of the attorney-client privilege with reference to the identity (name and address) of the client, I believe some discussion is needed. The principal opinion relies upon VIII Wigmore, sec. 2312; Mauch v. Commissioner of Internal Revenue, 113 F.2d 555 (3d Cir. 1940); United States v. Long, 328 F.Supp. 233, 236 (8th Cir. 1971); In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975); Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960); to conclude that the identity of a client is not within the scope of the privilege and that whether the identity of a client is privileged must be assessed on a case-by-case basis and depends upon the particular facts of each case.

In Ex parte Schneider, 294 S.W. 736 (Mo.App.1927), it was held that an attorney was not required to divulge the address of his client as that was included within the confidential privilege which privilege had its roots in the common law and is based upon broad ground of public policy. Since the litigation did not involve the particular client the attorney was not required to divulge the address of that client.

There is no precedent whatever for a ruling that upholds the wholesale divulgence of clients, patients, and customers. In City of Carmel-by-the-Sea v. Young, 2 Cal.3d 259, 466 P.2d 225, 85 Cal.Rptr. 1 (1970), the California Supreme Court had before it a 1959 financial disclosure law relating to public offices and employees. That court held the law violative of the United States Constitution, Fourth Amendment, as an invasion of the officeholders’ right to privacy. I realize the principal opinion does not rule the case on a right to privacy basis but Carmel-by-the-Sea, supra, and its successor, County of Nevada v. MacMillen, 11 Cal.3d 662, 522 P.2d 1345 (1974), are highly instructive on the validity of the type of law involved in this case.

In County of Nevada v. MacMillen, supra, the California Supreme Court upheld the validity of the disclosure act but only on the basis that “Source of Income” did not mean the names of clients, customers and patients. The court there said at 1352-1353:

‘Source of income ’ — As we pointed out above, section 3700, subdivision (b), requires specified officials to disclose each ‘source of income, loans or gifts, aggregating two hundred fifty dollars ($250) or more in value, received in the preceding 12 months, including the name, address, and general description of the business activity of each source . ..’ Plaintiffs have forcefully contended that this provision would constitute a gross invasion of privacy if interpreted as requiring businessmen to reveal their confidential customer lists, lawyers to name their clients, or physicians and psychiatrists to disclose their patients. We believe, however, that this problem has been rendered moot in practical effect by the clarifying amendment to section 3610, subdivision (e), enacted in 1974. That amendment defined the term ‘source of income’ as ‘the business entity or activity of the official which earned or produced the income.’ (Italics added.) Thus, as we read it, the act, as amended, would not require disclosure of the names of the official’s customers, clients, or patients. Instead, the official must only disclose the specified information regarding his own business entity or activity, which produced the income. For example, a landlord would disclose the address and receipts from his apartment building, not the names of his tenants and the rents paid by each.
“[8] Although the amendment does not take effect until January 1, 1975, the Legislature has expressly found and declared ‘that the amendments effected by this act are declaratory of the legislative intent in enacting’ the 1973 act. (Stats. 1974, ch. 48, § 6, p. 161.) Although we are not bound by the Legislature’s statement regarding the 1973 legislation, that statement properly may be considered in construing the provision in question. (See West Pico Furniture Co. v. Pacific Finance Loans, 2 Cal.3d 594, 609-610, 86 Cal.Rptr. 793, 469 P.2d 665; Stockton Sav. & Loan Bank v. Massanet, 18 Cal.2d 200, 204, 114 P.2d 592; Flewelling v. Board of Trustees, 178 Cal.App.2d 168, 172, 2 Cal.Rptr. 891.) We conclude that the 1973 act should be interpreted as requiring only the limited disclosure- contemplated by the 1974 amendment.”

None of the authorities cited in the principal opinion concern a situation where the lawyer is called upon to make a wholesale disclosure of all clients or, if not all clients, those who have paid a fee of over a specific sum of money. None of the cases or authorities support a proposition that the amount of a fee can be utilized as the criterion for disclosure of the name and address of the client or patient. All of the authorities and cases concern a particular pending case in which there are contesting parties. None of them concern a situation where no litigation is pending which involves an interrelationship between the attorney and his client. All of the cases where disclosure was required are seen as exceptions to the general policy which exceptions are premised upon particular factual situations involving a specific lawyer, a specific controversy and either a specific client or a specific group of clients who come within a specific category which is directly related to pending litigation.

In the instant case the principal opinion allows or gives different definitions to the “source of income”. The elections commission has done the same thing so as to relieve a grocer from the obligation of revealing the names of customers who purchase goods in excess of $100. The grocer need only give the name and address of his business as the “source of income” but an insurance salesman who receives a commission on the sale of a policy of over $500 need not disclose the name of the customer if the insurance salesman works directly for the insurance company and does not own more than a ten percent interest in the company. What insurance salesman owns more than ten percent of an insurance company? But, if another insurance salesman operates through an agency and sells the same policy, he must disclose the name of the customer as the source if that salesman owns a ten percent interest in the agency! Identical salesmen, identical policies, identical premiums, but one must reveal names and addresses of customers and the others need not do so. This is not equal protection.

In my opinion the law under attack clearly violates the Fourth Amendment rights of privacy as well as being violative of the equal protection clause of the United States Constitution as to the candidate.

It appears from the principal opinion that this law is being viewed purely from the perspective of the candidate. But what about the rights to privacy of the clients, customers and patients, as well as their rights to the confidential relationship between attorney-client and doctor-patient.

The impact of this law as the principal opinion interprets it can be best seen if it is viewed from the client-patient-customer perspective. None of them gave permission to have their names and addresses publicized and there is absolutely no reason to believe that the client, patient or customer cared one whit about politics, campaigns, or the political ambitions of his lawyer, doctor or merchant.

Consider for a moment the outcry over the clear violation of citizens’ constitutional rights if the law sought to obtain the same result by requiring the individual patient, client, or customer to file a statement in the county clerk’s office declaring the citizen had consulted a doctor, lawyer, or had done business with the merchant if any of them became a candidate for any public office. I believe the outcry would be “It’s none of your business — I’m not in politics and made no political contribution — Whát has my consulting a psychiatrist or a lawyer on a personal matter have to do with his running for some office — I didn’t even know he was going to run when I went to him!!!”

This is simply a dragnet procedure that bears no relevant relationship to honest elections. No one has suggested why this broad invasion of private rights is necessary to the conduct of honest elections. Some suggest it is to ferret out hidden political contributions and others say it is to reveal the candidate’s interests as they may bear upon his future vote as a public official. These various ideas as to purpose fall on their face in view of the various definitions of “source of income” which allow substantial incomes to be concealed while requiring insubstantial incomes to be revealed by names and addresses of clients, customers, or patients.

I could possibly vote to uphold this law if “source of income” were judicially defined as California has defined it, to wit, “the business entity or activity of the official which earned or produced the income,” because that would protect the rights of privacy of clients, customers, and patients.

The principal opinion suggests an attorney candidate could obtain relief by an advisory opinion of the commission or a declaratory judgment suit. How does he do that without revealing that which he believes ought not to be revealed — the names and addresses of clients? And how long does the procedure take?

Pilings for offices voted on at an August primary close at the end of April so there are three months between closings of filings and primary election during which time the candidate should be campaigning — not litigating. He probably couldn’t get a final determination by the date reports are due any way. This year that date is June 24. The remedy is, in my opinion, specious.

And what about the patient who consulted a psychiatrist, gynecologist, or psychologist, or the citizen who consulted a lawyer on a private matter where the consultation or representation would not become the subject of a suit in court where the name would obviously become a matter of public record? The policy of the confidential relationship is for the principal benefit of the client and patient — not the doctor or lawyer. But the client or patient, the party really protected by the privilege, has no vehicle for relief. He is just caught in the dragnet without his consent, without his prior knowledge, and without any discernible public purpose being served.

As to “overbreadth”, the principal opinion relies upon Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The entity claiming the federal law was overbroad in Buckley was a minority political party, not an individual candidate, and the subject was political campaign contributions — not income derived in the usual course of the candidate’s occupation or profession. The overbreadth claim related to the possible chilling of political activity if the names of small political contributors were revealed. The focal point was specifically “political contributions” — an identifiable item which bears directly upon elections. In the case before this court, the items the principal opinion holds are subject to disclosure are not political contributions and no one pretends that they are such. Any “chilling” claim in the instant case would relate to the right or privilege of the doctor, lawyer, or merchant running for office and, in my opinion, would be a substantial claim.

This law is not restricted in its scope to public offices which become full-time positions for the successful candidates but also includes thousands of part-time offices where the officeholder continues to engage in his usual profession or occupation in the community. E. g. school board member, city councilman, legislator, and members of innumerable local governmental boards. It is obvious to me that the instant law at least “chills” and probably “freezes out" whole classes of citizens from seeking any public office and does so without any discernible or demonstrable public benefit being derived from the law’s operation.

But the effect of the instant law is not only that it unlawfully chills the privilege or right of merchants, doctors and lawyers to seek some public office, it requires the wholesale publication of names and addresses of people generally who, as a class (clients, patients, customers), are not politically involved at all and who did not make any political contributions whatever but who merely consulted a professional person or made a purchase from a merchant. The overbreadth claim here is, in my opinion, obvious and patent. In short, the income-reporting provisions under attack here are like using a “guillotine to cure a headache” and even then without any substantial showing that a headache exists.

Time for research in depth as to the constitutionality of the income-reporting requirements of this law has been cut short by a court-self-imposed deadline in order that the decision can be known by June 24, 1976. My research has failed to reveal any law of any state or of the United States that mandates wholesale disclosure of clients, patients and customers. The federal campaign election law does not concern itself with this type of disclosure at all. It relates to political contributions and, in my opinion, gives no support to the principal opinion in this case.

I think the United States and Missouri constitutions protects the citizens from this type of purposeless invasion into their rights of privacy. Therefore, it is my opinion the patients, clients, and customers of doctors, lawyers, and merchants who happen to be candidates for some political office, have a constitutionally protected right to say to government: “It’s none of your business who I went to and consulted in my personal life with my medical and legal problems, nor who I bought an insurance policy or television set from — It’s just plain none of your business!!!”

SEILER, Chief Justice

(concurring in result).

As pointed out in Judge Bardgett’s dissent, there are many matters which are unresolved by the principal opinion and which remain live questions in the area of concern. I understand the principal opinion to be quite narrow in its scope and to confine itself to the precise facts of the case as they apply to plaintiffs. I therefore concur in the reversal of the judgment.

      . Subsections 1(5) and 1(6) of § 130.035, RSMo Supp.1975. References to sections of the statutes will be to this Supplement unless otherwise stated.

      . Laws of Missouri, 1974, pp. 937-953.

      . There was a third plaintiff in the trial court: Dorothy Knutter, wife of a candidate for office in the Kansas City 1975 election, who was held to have no standing to sue. She did not appeal.

      . Samuel B. Murphy, David E. Blanton, Robert F. Karsch, Ed Bohl, D. W. Gilmore and Frank E. Nutt.

      . This defendant appealed but did not file a brief.

      . There was another defendant in the trial court, the Kansas City Board of Election Commissioners, which did not appeal.

      . These subsections are as follows:
      “1. Every candidate shall file reports in writing with the appropriate officer, at the times prescribed in section 130.045. The reports shall be subscribed and sworn to by the candidate before an officer authorized to administer oaths, setting forth in detail all contri-buttons received and expenditures made by the candidate in endeavoring to secure his nomination or election. Each report shall set forth:
      * * * * * *
      “(5) A specific listing of the source, by name and address, of any gifts or income in excess of one hundred dollars received by the candidate or the candidate’s spouse or minor children during the preceding twelve months or the time of the last report, whichever is later; and
      “(6) A specific listing of the source, by name and address, of any gifts, salaries, fees, or other income which for the twelve-month period preceding the filing date, individually or in the aggregate exceeds five hundred dollars which has been paid on behalf of or for services rendered by the candidate to any sole proprietorship, partnership or corporation in which the candidate or the candidate’s spouse holds an interest of ten percent or more.”

      . Suggested by the Commission and Intervenor.

      . Advisory Opinion 1976-1.

      . Advisory Opinion 1976-3.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Lee YOUNG et al., Respondents, v. JACK BORING’S, INC., et al., Appellants.
    No. KCD27132.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    Motion for Rehearing and/or Transfer Denied July 6, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Laurence R. Tucker, Gordon N. Myerson, Kansas City, for appellants; Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, of counsel.
    Walter R. Simpson, George H. Barr, Kansas City, for respondents; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiffs Young, husband and wife, had judgment against defendant Jack Boring’s Inc., for $8000 actual and $25,000 punitive damages on a pleading for malicious prosecution. The cause of action arose when Boring’s employees repossessed from the Youngs a television set under a replevin which issued from the magistrate on the affidavit of the defendant, and which they found later that day, had been taken by mistake. The replevin action was terminated by the Boring’s dismissal without prejudice, and this action ensued.

The original petition was in multiple counts. Count III was directed against Constable Tince Walker who falsely returned the writ non est when, in fact, he had served the plaintiffs and removed their property. The constable failed to answer and the plaintiffs took judgment by default against him on Count III of the original petition. This judgment was set aside within the month on stipulation, and the constable pleaded over.

Then, on October 29, 1973 — twenty-one months after the original petition and two weeks before the trial — the plaintiffs amended their petition to allege counts for malicious prosecution and loss by the wife of consortium against Boring’s and several employees. The pleading did not reiterate the separate cause of action against the constable on which the plaintiffs had by then brought an independent suit. Before the jury was empaneled, the plaintiffs dismissed Count II of the amended petition and proceeded to trial on the claim for malicious prosecution. At submission, only Boring’s remained, and the judgment was taken against that defendant alone.

On the morning of the trial, the defendant Boring’s moved the dismissal of the petition on the ground that the suit had been fully compromised and settled and that the plaintiffs were bound by that contract to accept $1650 in satisfaction of their claim and to discontinue the litigation. The in camera discussion on the motion discloses that counsel for Boring’s informed counsel for the plaintiffs four days earlier of his intention, at the day of trial, to answer the amended petition to raise the issue that the cause of action had been compromised and settled and that he would then also move the dismissal of the petition for that reason.

The plaintiffs argued for the denial of both the motion and the defense on grounds that they were untimely as pleadings and had been, in any event, substantively abandoned by the nineteen-months lapse between the purported settlement agreement and the assertion of that defense in bar of the action. The court concluded, as a matter of law, that the motion was not timely made and the substance of it abandoned, and ordered the accord and satisfaction defense stricken from the answer.

The defendant Boring’s contends that the denial of the motion to dismiss and the deletion of the accord and satisfaction defense from their answer to the amended petition were errors of law and require reversal. The defendant argues here that Boring’s was entitled as of right to an answer timely filed under the provisions of Rule 55.33(a):

A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

The amended petition was filed on October 29, 1973, and defendant was not served until November 9,1973. The answer to the amended petition was filed with the court on the morning of trial, November 12,1973, and thus within the ten-day prescription of the rule.

The rules of civil procedure intend that a trial court shall allow amendments to pleadings liberally, but such a purpose does not bind a court to such a course. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 174[13, 14] (Mo.1968). In the case of an amended petition, a party is entitled to make response within the prescription of Rule 55.33(a) unless the court otherwise orders. The question here is whether defendant Boring’s was entitled as a matter of right to make an answer on the day of trial which for the first time raised the defense of accord and satisfaction. That rule no doubt sanctions response by a defendant to any new matter brought into the litigation by an amendment by the plaintiff. Kroh Brothers Dev. Co. v. State Line Eighty-Nine, Inc., 506 S.W.2d 4, 13[15] (Mo.App.1974). It is clear, however, that where in the imminence of trial an answer is amended to set up a new defense on facts known before, it is within the discretion of the court to strike the defense. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696, 699[4-6] (Mo.1971).

A case closely analogous to the positions of the parties here is Kroh, supra, where the plaintiff amended the petition by striking all reference to an attorney fee. The petition was otherwise unchanged. That same day, the court entered summary judgment for the plaintiff. The defendants contended that the judgment was improperly entered since under [then] Rule 55.53 they had ten days to plead to the amended petition. The court noted that neither defendant during the months of the pendency of the litigation had sought leave to amend the answer and since the amendment introduced no new issue, an answer was not required. See, also, Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 901[1, 2] (1944). The opinion concluded [l. c. 14]:

The court below had the right to assume that [defendants] had asserted all of their defenses to Kroh’s claim in their answers as required of them under [then] Rule 55.09; Rule 55.10 .... This is particularly true since no request had been made for almost four months to file . answers.

The circumstances here are comparable. The negotiations for settlement took place in April of 1972, but the defendant did not attempt to raise the issue until November 12, 1973, although the rights in the matter were known or discoverable by the defendant during those months. The amended petition did not in any way change the causes of action pleaded in Counts I and II [malicious prosecution and loss of consortium], but only deleted Count III which pleaded a separate recovery against the constable.

It was a proper exercise of discretion for the trial court to strike the defense of accord and satisfaction and to deny the dismissal motion under these circumstances. It is not necessary to examine the additional ground for decision — that the defendant had abandoned the defense by subsequent conduct in the litigation inconsistent with an intention to rely on the compromise settlement agreement — but only note that the circumstances before the court allowed a plausible application of that principle. See, 15A C.J.S. Compromise & Settlement § 29; Thompson v. Municipal Bond Co., 23 Cal.App.2d 402, 73 P.2d 274, 278[5] (1937).

The malicious prosecution action against Boring’s culminates a series of events which began in June of 1969 when the plaintiffs Young purchased a range, refrigerator and television with stand from the defendant. The purchase was financed through the General Electric Credit Corporation [GECC]. Two years later, an investigation revealed an internal scheme at Boring’s had resulted in numerous fraudulent transactions. After consultation with its records, Boring’s officials concluded that the Youngs had received their appliances as part of the fraud, and initiated a replevin action to repossess the merchandise.

The action to replevin the appliances from the Youngs was initiated on December 13, 1971, on behalf of Boring’s by the statement and affidavit of office manager Richardson which alleged the wrongful detention of the property by the Youngs and resultant damage, and was assigned to Constable Tince Walker for service and certification of return. Three days later, the constable in the company of Richardson, two other Boring’s employees and a police officer, undertook to serve the writ upon the Youngs at their home. The sound of the doorbell roused Ms. Young who, with her husband, was abed; she was confronted with the constable who announced he had a summons to serve on them. She awakened her husband and the constable displayed the writ and his badge to them, and as he pulled back his coat, a weapon was apparent.

Mr. Young invited the constable into his home and all five entered the living room. The constable then advised the Youngs of their purpose to retake the merchandise for Boring’s, but Mr. Young protested that he owed no money to Boring’s, that Boring’s had no right to the property, and that they were making a mistake. Although the Youngs resisted his authority to serve them and seize their property, the constable searched the home for appliances with the serial numbers described in the replevin writ. Ms. Young testified that she offered to show the constable the GECC payment book as proof of ownership, Mr. Young told them he had signed a GECC note for the payment of the merchandise, but the constable refused to consider them. Mr. Young ordered the men out of the house but the police officer threatened him with arrest unless he stepped aside. With this, the Youngs finally acceded to the search and service. Young then attempted to call Boring’s but the telephone was busy, so he dressed and drove to the Boring’s office. There he reported to the secretary that some men had come to his home with an order to remove some property and that he had come about that. She gave him a number to call, and that resulted in a telephone conversation with a man to whom he explained that although he had purchased the merchandise through Boring’s, GECC financed the transaction and the account with GECC was current. The man responded that the replevin was valid because the Youngs had obtained the property through fraud. Mr. Young commenced the return home in an angry and uneasy temper and was intercepted by a police officer for excessive speed.

At the Young home, the men searched the garage but found nothing there. The search in the front room of the home disclosed a television set with the same model number as described in the replevin writ. This article and the stand on which it rested were seized. The men had been on the premises for about twenty minutes and by then, Ms. Young had become angry and in virtual hysteria. When they left, her concern for her husband prompted her to drive to Boring’s. She encountered him on the way, stopped by the police for the traffic infraction.

They returned home; Ms. Young then told her husband that only the television set had been taken. They went to the GECC office to discuss the matter and were informed that there was no outstanding pickup order for the merchandise on their behalf. Later that day, someone from Boring’s telephoned an apology that a mistake had been made and that a barbeque pit was in delivery for the trouble and inconvenience caused the Youngs. The television set and stand were returned by Boring’s; the barbeque pit was not accepted by the Youngs.

As to the evidence of the plaintiffs that they offered to prove ownership to the coterie seeking possession of the property under the writ of replevin, office manager Richardson testified that he asked Young for a bill of sale for the merchandise, but Young produced none or any other indicium of ownership. Richardson said that had such a receipt on a bona fide account been shown, he would have called the Boring’s office. He acknowledged, however, that he heard the Youngs tell the constable in loud tones that the merchandise was theirs, yet he made no effort to verify their claim.

The branch manager for GECC, Jerry Swope, testified that the Youngs had financed two other purchases from Boring’s through GECC and that no collection efforts were needed on any of these accounts. GECC had not received any information from Boring’s concerning the Youngs. [The defendant Boring’s judicially admitted that no money was owed them by the Youngs in December of 1971 when the action in replevin was initiated.]

On the day the property was taken from them under the writ, the Youngs engaged counsel to represent them in the magistrate court action and paid him $350 for those services. The replevin action was dismissed by Boring’s within a few weeks of commencement, and this litigation followed.

A recovery for malicious prosecution requires the proof of six elements: 1) the commencement of an action against the plaintiff; 2) legally caused by the defendant; 3) terminated in favor of the plaintiff; 4) the absence of probable cause; 5) the presence of malice; and 6) damage to the plaintiff as a consequence. Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 483[1-6] (Mo.1972); Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 504[1] (1942).

An equivalent, but terser, statement of this principle is given in Restatement of Torts, § 674, which imposes liability upon the procurer or initiator of a civil proceeding against another for the harm done if: 1) the proceedings are initiated without probable cause; and 2) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings are based; and 3) the proceedings have terminated in favor of the person against whom they are brought. Woods v. Standard Personal Loan Plan, Inc., 420 S.W.2d 380, 383[2] (Mo.App.1967); McFarland v. Union Finance Company, 471 S.W.2d 497, 499[3] (Mo.App.1971); Houska v. Frederick, 447 S.W.2d 514, 518[2, 3] (Mo.1969).

It is the contention of the defendant Boring’s that, as a matter of law, the plaintiffs failed to prove that the replevin litigation was initiated without probable cause and with malice.

The proof by the defendant on these issues was of a conjunction of coincidences which appeared to link the Young transaction with a scheme of internal fraud by certain Boring’s employees to steal merchandise. Among those found in complicity were two employees, Rosemary Race who worked with appliance delivery records and salesman M., and Betty Sue Elbert, a customer.

It happened that when the Youngs made the purchase and security agreement on June 28, 1969, for the range, refrigerator and television set, the contract — for some reason — was written up as a COD order with a July 5 delivery date. The name of M. appeared on the security agreement as the salesman for the transaction. Young testified that when these items were purchased they were about to move from one address to another so his wife instructed Boring’s to place them on will call. Young also informed Boring’s that the purchase would be made through a finance company. When Boring’s attempted to deliver the appliances in July, the Youngs were in the process of changing residences and so requested that the property be held until the move was completed. The Boring’s warehouse delivery schedule for July 5, 1969, contained an entry with the name Lee Young and the three sales items and a notation Pater determined to be in the hand of Rosemary Race] “cust wanted to put in W.C. [will call] till he move”. On that same schedule also appeared the name of customer Betty Sue Elbert and a description of merchandise to be delivered to her. The next month, in August, Ms. Young returned to Boring’s and re-ordered a range, refrigerator and television set with the purchase price increased from the original $1053.10 to $1290. The security agreement for these purchases, dated August 21, 1969, called for delivery to the new Young address and instructed that the purchase price be added to the current Young account with GECC. Delivery was made and the Youngs began to make payments to GECC which had purchased the contract from Boring’s for the unpaid balance of $1290 plus insurance.

It is the contention of Boring’s that the duplicated delivery of the merchandise prompted the replevy of the merchandise. June Smith, assistant comptroller for the defendant, testified that prior to the commencement of the replevin action, an investigation aided by the FBI and local police revealed an internal scheme of fraud to obtain goods without payment. The plan centered around employee Rosemary Race who arranged the delivery of merchandise on an ostensible COD basis to her confederates, and then changed the records on the orders so that they could be received without payment. The comptroller contended that one reason why Boring’s suspected Young as part of the fraud was because his name was on the July 5, 1969, warehouse delivery schedule as a COD buyer and that another person on that schedule, Betty Sue Elbert, was known as an accomplice in the deceit. Another basis of suspicion against Young was that the notation on the delivery schedule — that he had refused the goods and placed them on will call until his move to another address — was in the hand of Ms. Race. It also happened that in all the fraudulent transfers, the delivery tickets for the transactions had been removed and were not in the business files where they were normally kept in numerical order. Neither could the delivery ticket for the June 1969 transaction [13587 — the number on the security agreement] be found. The warehouse delivery schedule had entered the June purchase as a COD transaction, so Comptroller Smith searched the cash records for verification. Since that transaction had been superseded by the August purchase — but for some reason had not been cancelled by the salesman — the search for the payment of account 13587 was of course fruitless.

The combination of these factors — the names Race, Elbert and salesman M., the absence of a delivery ticket, the lack of payment on transaction 13587 — led Boring’s to conclude that Young was part of the fraudulent scheme.

Comptroller Smith testified that in all about 80 replevin suits were instituted to recover property purloined in the fraud, including goods received by Betty Sue Elbert.

The defendant concedes that the Youngs were not accomplices in the fraud and, as matter eventuated, the replevin action was mistakenly brought. The defendant insists, however, that diligent search of the records for some proof that Young had paid for the appliances, apparent coincidences of fraud which attended that transaction, and failure of the salesman to record that the June, 1969 purchase had been superseded by a later purchase, as a matter of law, constituted probable cause to commence the re-plevin action and defeat the claim for malicious prosecution.

The law allows redress for damages from the commencement or continuation of a prosecution without probable cause. Hughes v. Aetna Insurance Co., 261 S.W.2d 942, 945[1-4] (Mo.1953); 52 Am.Jur.2d, Malicious Prosecution § 6. In a civil proceeding, probable cause consists of “such facts and circumstances as will warrant a cautious, reasonable and prudent man in the honest belief that his action and the means taken in prosecution of it are just, legal, and proper”. Woods v. Standard Personal Loan Plan, Inc., 420 S.W.2d 380, 384 (Mo.App.1967). Where the evidence of probable cause is in conflict the issue is for the jury and a submissible case has been made. In this assessment, the termination of the litigation in favor of the plaintiff, standing alone, does not conclusively establish absence of probable cause for the commencement or continuation of the original action. Jones v. Phillips Petroleum Co., 186 S.W.2d 868, 875[10-11] (Mo.App.1945).

The plaintiffs submitted recovery on the theory that Boring’s lacked probable cause in the instigation, not continuation, of the replevin action against them. The defendant argues that since antecedent to filing the replevin action it acted diligently on all information available, and all effort to verify the genuineness of the obligation disclosed nothing to augur a greater care than was taken, probable cause was established as a matter of law. This argument falsely assumes that a civil proceeding, as an element of malicious prosecution, commences when the petition is filed.

The early common law allowed an action for a civil prosecution brought maliciously and without probable cause irrespective of special damage beyond the expense of making defense. The later English practice awarded damages [including attorney fees] as well as costs designed to compensate the wrong committed by the party who first put the law vexatiously in motion in a civil proceeding, a remedy which became a substitute for the independent action for malicious prosecution. 52 Am.Jur.2d, Malicious Prosecution § 9. Thus the view developed that no cause for malicious prosecution of a civil proceeding was proved unless the civil process resulted in some special injury, not otherwise compensated as costs, as by arrest of the person or interference with property. 54 C.J.S. Malicious Prosecution § 12. Our courts rejected this development because under our practice the recovery of costs does not reimburse attorney fees, and have adopted the view that an action for malicious prosecution may be maintained where the original action was begun by civil summons alone, where that process results in some damage, even if only the expense of defense. Smith v. Burrus, 106 Mo. 94, 16 S.W. 881[1] (1891); Brady v. Ervin, 48 Mo. 533, 535 (1871).

The gist of a malicious prosecution action, as that remedy is now understood in our jurisprudence, is “putting legal process in force regularly for the mere purpose of vexation or injury”. 52 Am.Jur.2d, Malicious Prosecution § 2. In the case of an ordinary civil litigation, that means an action begun by a summons regularly served according to the requirements of law. Brady v. Ervin, 48 Mo. 533, 535 (1871); State ex rel. Williams v. Berrey, 492 S.W.2d 731, 734[1] (Mo. banc 1973); § 517.110, RSMo 1969. In those exceptional circumstances where the mere filing of the action defames person or property and therefore some damage is presumed in law, the action is deemed commenced for the purpose of malicious prosecution even without service of process. See, Restatement of Torts, Wrongful Civil Proceedings, § 681.

The evidence clearly shows that before the constable served the Youngs at their home with summons or impressed the property under the writ of replevin, the plaintiffs insisted repeatedly that they owned the television set, that Boring’s had no right to it, and that the property was a GECC account. All this, within the presence and hearing of office manager Richardson, occurred before the replevin suit was given force by the regular service of process and thus before the commencement of the action. A jury could have found that prudent and reasonable conduct would have prompted inquiry of GECC to verify the claim made by the Youngs that the account did not belong to Boring’s. In two analogous cases, McFarland v. Union Finance Company, 471 S.W.2d 497 (Mo.App.1971) and Woods v. Standard Personal Loan Plan, Inc., 420 S.W.2d 380 (Mo.App.1967), those sought to be charged as signatories on promissory note obligations denied by affidavit that the signatures were theirs. Notwithstanding, suit was filed. In each case termination of the suit was in favor of the defendant, and actions for malicious prosecution followed. The contentions were made that the evidence failed to prove want of probable cause. The holding of the court in Woods, 1. c. 384[3], cited in McFarland, l. c. 500[3], is applicable to our determination: “Under these circumstances the jury could well find a cautious, reasonable, and prudent person would take other steps to insure the Magistrate Court action was in fact brought against the proper party.”

The record before us is replete with other evidence which supports the findings of malice and want of probable cause in the instigation of the replevin action. For instance, according to Comptroller Smith the replevin action was brought because, among other indications, the name of the Youngs appeared on the July 5th warehouse delivery schedule along with Betty Sue Elbert, a customer known to have been involved in the fraud, and in conjunction with instructions made in the hand of Rosemary Race, an employee convicted for the fraud. It was conceded by Comptroller Smith, however, that Boring’s knew before the replev-in suit was filed that the four customers, other than Elbert and the Youngs, listed for delivery on the July 5th warehouse schedule were not involved in the fraud and that Rosemary Race had made entries on other delivery schedules which were in all respects bona fide. The evidence was conclusive that Race and salesman M., the Boring’s employee accomplices, conducted many legitimate business transactions for the defendant during this period.

One who institutes a prosecution is held not only to the knowledge he then has, but also to the relevant information a diligent inquiry would have disclosed before the machinery of the law was put in motion. Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 483[1-6] (Mo.1972). Once want of probable cause is made out, the jury may infer malice; in this case, it may be presumed from the failure of the defendant to make suitable and reasonable inquiries concerning the ownership of the property taken. Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650, 659[5, 6] (1902).

The jury returned for the plaintiffs $8,000 in actual and $25,000 in punitive damages. The defendant contends that these awards were so disproportionate to the actual damages proven as to demonstrate the bias and prejudice of the jury and require a new trial or, alternatively, a substantial remittitur of both elements of damages. This argument proceeds on the faulty assumption that actual damages in such an action are limited to the recovery of expenditures [in this case $850 paid for the defense of the replevin suit]. In an action for malicious prosecution, damages are recoverable for every element of the injury, including mental and physical suffering, injury to fame and reputation, and the general impairment of social standing. Foley v. Union House Furnishing Co., 228 Mo.App. 1063, 60 S.W.2d 725, 728[1,2] (1933). Additional elements of damage include injury to credit, deprivation of use of property, and actual loss and injury to property. 54 C.J.S. Malicious Prosecution § 112. And while there is no fixed relation between actual damages and an award of punitive damages, nor a fixed standard for their measurement, generally punitive damages must bear some relation to the injury and the manner of its infliction. Beggs v. Universal C. I. T. Corporation, 409 S.W.2d 719, 724[8-13] (Mo.1966).

It was the evidence that the incursion by the Boring’s employees into the Young home caused the plaintiffs mental distress, physical discomfort and personal embarrassment. Young testified that the intruders invaded the privacy of the home, threatened his life and safety and called him a thief. These incidents elevated his blood pressure [corroborated by the ministrations of his wife, a licensed practical nurse.] Young admitted a condition of chronic high blood pressure and that he had suffered no permanent physical impairment from these events. Ms. Young said that the incidents caused her upset, hysteria and embarrassment with the neighbors who had seen the Boring’s van and police car near the house. The intrusion so distracted her that she became enraged at the men and tore the antenna off the television set. The humiliation and degradation of the experience continues to be a source of anxiety to her.

Damages for humiliation, shame and mental anguish are elements of actual damages which cannot be measured precisely. Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S.W.2d 189, 191[1] (1951). A plaintiff who has established the essential elements of the cause of action in a malicious prosecution case may recover for harm to his reputation and disgrace or distress necessarily resulting from that prosecution without specific proof of such injuries. 52 Am.Jur.2d, Malicious Prosecution § 187.

Our courts have considered the claim of an excessive verdict in two perspectives: 1) a verdict which is simply disproportionate to the proof of injury and which results from an honest mistake by the jury in assessment of the evidence and 2) a verdict whose excessiveness is engendered by trial misconduct and thus results from the bias and prejudice of the jury. A verdict of the first order may be corrected by an enforced remittitur and does not require a retrial. A verdict of the second order is prejudiced and can be redressed only by a new trial. Bertram v. Wunning, 417 S.W.2d 120, 125[4-6] (Mo.App.1967). The defendant contends the verdicts are excessive on both grounds.

As to the claim for a new trial because of jury bias and prejudice, the defendant argues that the “situation appears to be one where some exterior considerations have entered into the jury’s deliberations and have caused it to award a disproportionately large amount of actual damages”. These external factors are not identified, and the argument is reduced to a contention that the jury misconduct becomes evident from the size of the verdicts alone. While a trial court may competently weigh the evidence in a jury case and infer bias and prejudice from the size of the verdict alone, an appellate court may not, and thus will not determine jury prejudice without evidence of misconduct. Nussbaum v. Kansas City Stock Yards Company of Maine, 359 S.W.2d 335, 341[6] (Mo.1962). This point is denied.

The defendant argues alternatively for the remittitur of both actual and punitive damages. Those factors which bear on the determination of excessiveness of a verdict so as to require remittitur are well known: 1) the nature and extent of the injuries; 2) the permanency of the injuries; 3) the age of the plaintiff; 4) diminished earning capacity; 5) regard for variable economic factors; 6) comparison with awards for similar injuries (the rule of uniformity of verdicts) and 7) deference to the superior vantage of the jury and trial court to appraise the claim of injury. Blond v. Overesch, 527 S.W.2d 663, 672[10-12] (Mo.App.1975). Our recent opinion holds that the remittitur doctrine expresses a standard of reasonableness for verdicts determined in the light of these composite elements, among them the notion of uniformity with awards made for comparable injuries. Ricketts v. Kansas City Stock Yards of Maine, 537 S.W.2d 613 [Adopted May 3, 1976].

The defendant does not develop the rule of reasonableness nor mention the consideration of uniformity in argument, but application of these principles to other cases where substantial actual damages were awarded on evidence similar to that presented at trial [particularly as to the expenditure made necessary by the prosecution] requires that the claim for remittitur be denied. In Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78 (1907) the plaintiff claimed injury and disgrace to his reputation from a criminal prosecution for arson brought without justification. An award of $12,500 was upheld where the only expenditure was $212 paid to counsel for defense of the criminal charge. Huffstutler v. Coates, 335 S.W.2d 70 (Mo.1960) allowed recovery of $7000 actual damages for the malicious prosecution of an arson charge, where the only expenditure was $500. See, also, Coffman v. Shell Petroleum Corporation, 228 Mo.App. 727, 71 S.W.2d 97 (1934); Randol v. Kline’s, Inc., 330 Mo. 343, 49 S.W.2d 112 (1932) and Irons v. American Ry. Express Co., 318 Mo. 318, 300 S.W. 283 (banc 1927). In each of these cases, the actual damage award rested on the mental anxiety caused by the disgrace and humiliation of the malicious prosecution. We remarked in Boquist v. Montgomery Ward & Co., Inc., 516 S.W.2d 769, 777[20] (Mo.App.1974) that “disgrace is a relative term and that the law has determined that the jury shall decide the question”. The law concedes a wide latitude of discretion to the jury in such actions and, on this record, we have no cause to question its exercise.

The defendant contends for re-mittitur of punitive damages also. The award of such damages is so peculiarly committed to the jury discretion that only in an extreme case will the appellate court interfere. Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 486[14-16] (Mo.1972). An abuse of discretion in this reference means an award so out of all proper proportion to the evidence as to reveal improper motives or a clear absence of the honest exercise of judgment, Beggs, supra. The purpose of punitive damages is to punish wrongdoing and to discourage similar conduct by others. Beggs, supra, l. c. 724. In this case, the malice of the defendant was not only inferable from the determination of want of probable cause but was aggravated by the wanton direction by office manager Richardson to the constable, contrary to his public duty, to return the replevin summons non est when in fact service had been perfected upon the Youngs according to law. The jury could have understood this devious conduct as an acknowledgment that the replevin action was commenced in bad faith. The award of $25,000 punitive damages was not excessive.

The defendant insists that the trial court applied the incorrect standard to the grounds of the motion for new trial which asserted: “1) the verdict is excessive and should be remitted, and 2) the verdict is the result of bias and prejudice on the part of the jury”. The court ruled these grounds of the motion by order which recited, inter alia, “that the verdict was not so high as to indicate bias and prejudice on the part of the jury. Remittitur is therefore denied”. The defendant contends that the ruling intermingles two separate standards, mere excessiveness requiring remittitur and bias and prejudice requiring a new trial. The order of the court, in full text, explicitly recites and considers each separate ground and fully distinguishes excessiveness as a predicate for the grant of a remittitur or a new trial. The point is without merit.

The defendant next asserts that the trial court erred in the submission of Instructions 6 and 7 because vague, misleading and indefinite. These instructions are taken directly out of MAI. Instruction 6 renders MAI 10.01 on exemplary damages, and Instruction 7 is the MAI 16.01 definition of legal malice, required by MAI 23.07 to be used in a malicious prosecution submission. The principles of law expressed in MAI 10.01 and 16.01 have been confirmed repeatedly. This point is without merit.

The defendant also assigns as error forms of verdict Instruction No. 10 on the contention that it joins and submits the separate claim of Ms. Young in Count II of the amended petition [for loss of consortium] with the joint claim of the Youngs under Count I. This argument overlooks that Count II for loss of consortium was dismissed with prejudice by the plaintiffs. Only the joint claim of the Youngs for malicious prosecution was submitted to the jury and directed the alternatives allowed by law under proper forms of verdict.

The final contention of error is that the trial court should have sustained objection to the closing argument of the Young attorney:

Now it is easy for Mr. Myerson [counsel for Boring’s] to sit in his office and say well, this isn’t any big deal. That’s because it didn’t happen to him in his home.

The plaintiff argues that these remarks were retaliatory. We are satisfied, as was the trial judge who considered the objection at the trial and on the new trial motion, that no prejudice resulted to the defendant from the comment. The trial judge exercised a lawful discretion in the denial of the objection. Humes v. Salerno, 351 S.W.2d 749, 754[3-5] (Mo.1961); Cook v. Cox, 478 S.W.2d 678, 682[8-11] (Mo.1972). The defendant contends that the plaintiffs improperly argued the size and corporate status of Boring’s. No objection appears at the transcript reference given by the defendant on this point, nor was the issue preserved in the motion for new trial. In any event, the jury is entitled to consider the wealth or financial condition of a defendant on the issue of punitive damages, Beggs, supra, l. c. 724.

The judgment is affirmed.

All concur.

      . Neither the Motion to Dismiss nor the Answer to the Amended Petition [which presumably asserts the defense of accord and satisfaction reiterated in the motion] appears in the transcript on appeal. The court and the parties have treated these pleadings as actually tendered, so we rule the issues accordingly.

      . Although the court did not determine the merits, the defendant was allowed an offer of proof which was made by the testimony of the attorney who then represented the plaintiffs. He testified that, prompted by a domestic exigency, the plaintiffs agreed to settle their claim for $1650. The settlement was concluded on those terms and the draft was endorsed by the plaintiffs on April 11, 1972, but when a disagreement arose as to the apportionment of the proceeds, the plaintiffs refused to execute the release. The attorney then voided the signatures and informed counsel for Boring’s what had passed and returned the instrument to him. Counsel for plaintiffs then withdrew his representation. The plaintiffs made no formal proof on the issue but only presented the statement of counsel that they had authorized settlement against the constable only and that it was not until they saw the face of the release that they realized that the check they had endorsed intended to compromise the claim against Boring’s.

      . This complaint is directed to elements 4 and 5 of the traditional statement of the cause of action for malicious prosecution and to elements 1 and 2 of the Restatement expression of the principle. MAI 23.07, which submitted the issue to the jury, also reduces the more composite traditional statement to three propositions.

      . Ms. Race and the customer Elbert were confirmed in the fraud; Race was convicted and sentenced; the testimony of the Boring’s comptroller definitely places Elbert in the scheme, but no disposition as to her is shown. The name of salesman M. appeared on about 75% of the appliance transactions involved in the fraud, but there is no clue as to his personal involvement.

      .
      WAREHOUSE DELIVERY SCHEDULE_Date 7/5/69
      D.T.No. Customer Name Merchandise C.O.D. Special Instructions _& Address_Delivered_
      1-13587 Lee Young 5532 Wabash Roper Gas 1329 1053.19 Cust wanted to put W/H Ref. RJJ43 Avo. in WC till he move Zen.CTV Z 4507 1 stand
      1-13730 Betty Sue P. 5-412-62 494.40 Elbert Sofa, etc. 3513 Kensington

      . As in the case of a criminal information-Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78, 98[38] (1907)-or a petition for involuntary bankruptcy-Wilkinson v. Goodfellow-Brooks Shoe Co., 141 F. 218, 219 (C.C.E.D.Mo., 1905); McDonald v. Goddard Grocery Co., 184 Mo.App. 432, 171 S.W. 650, 654[6] (1914).


author: KELLY, Judge.

text:
    Ann MILLER, Appellant, v. MUNICIPAL THEATRE ASSOCIATION OF ST. LOUIS, a corporation, et al., Defendants-Respondents.
    No. 37175.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 1, 1976.
    Motion for Rehearing or Transfer to Court En Banc Denied Aug. 18, 1976.

      Gray & Ritter, Charles E. Gray, Robert F. Ritter, Mark E. Hughes, St. Louis, for plaintiff-appellant.
    Sullivan & Watkins, Hiram W. Watkins, Clayton, for defendants-respondents.
   KELLY, Judge.

Plaintiff-appellant, Ann Miller, appeals from a summary judgment entered in behalf of the defendants-respondents, the Municipal Theatre Association of St. Louis and the City of St. Louis by the Circuit Court of the City of St. Louis. We reverse and remand.

Appellant — hereinafter the plaintiff— brought suit against the Municipal Theatre Association of St. Louis and the City of St. Louis for injuries allegedly sustained during the performance of a play — “Anything Goes” — when she was struck by a piece of stage equipment on August 14, 1972. Both the Theatre — as Municipal Theatre Association of St. Louis shall hereinafter be identified — and the City — as the City of St. Louis shall hereinafter be identified — filed a joint Motion for Summary Judgment; the Theatre on the grounds that plaintiff was an employee as that term is defined in § 287.-020(1) and that she had elected to come within the purview of § 287.090(2) both by contract and by virtue of the fact that the Theatre had obtained a Workmen’s Compensation Insurance policy. The City’s ground for summary judgment was that the action against it was barred by reason of the fact that it was a statutory employer by virtue of § 287.040(1). The defendants filed affidavits in support of their motion wherein it was asserted that a Workmen’s Compensation Insurance policy between the Theatre and Aetna Casualty Insurance Company was in force and effect on the date of the alleged accident and that Aetna had paid $4,161.78 to doctors, hospitals and nurses for the benefit of plaintiff and had issued seven drafts totalling $490.00 to her as indemnity payments. Plaintiff filed her reply affidavit in opposition to the defendants’ Motion for Summary Judgment averring therein that she had retained her own arranger, conductor and choreographer for purposes of creating, coordinating, refining and implementing dance routines to be performed by her in the production, etc., that she retained the exclusive right to control the manner, method and means by which she would perform her role, and that she retained and exercised, in accord with industry custom, “creative control” over her performance. She denied that she had at any time agreed to be an employee of the defendants but rather that she occupied the status of an independent contractor. She further denied that the City was at any time engaged in the business of producing any entertainment production at the Thea-tre, that she had any contract with the City, and asserted that at no time did she or anyone in her behalf accept or consent to Workmen’s Compensation payments by Aetna or any other person or firm.

After a hearing on the Motion, the trial court entered Findings of Fact and Conclusions of Law wherein it found that the parties elected and contracted to come under the Workmen’s Compensation Act of the State of Missouri, Ch. 287 RSMo 1969, and more particularly § 287.120(1), and the Theatre and the City were thereby released from any common law liability because the plaintiff was an employee of the Theatre and a “statutory employee” of the City. Defendants’ Motion for Summary Judgment was sustained.

The only issue on appeal is the sufficiency of the evidence to support the Summary Judgment entered by the trial court on behalf of the defendants. Rule 74.04 governs proceedings in Summary Judgment and provides that judgment shall be rendered, forthwith, if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law; and in no case shall a summary judgment be rendered on an issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.

In reviewing a Summary Judgment entered by the trial court, it is the duty of the appellate court to view the record on summary judgment in the light most favorable to the party against whom the judgment was rendered, Estate of Sample v. Travelers Indemnity Company, 492 S.W.2d 829[3] (Mo.1973), Allen v. St. Luke’s Hosp. of Kansas City, 532 S.W.2d 505, 508[9] (Mo.App.1975).

Viewed from the foregoing vantage point we conclude that the critical issue in this cause is whether the plaintiff was an employee of the Theatre, and, as the trial court also determined, a “statutory employee” of the City. The trial court decided that she was and based its finding on the Actors’ Equity Association Stock Jobbing Contract of April 22, 1972, between plaintiff and the Theatre, the Agreement and Rules Governing Employment in Outdoor Musical Stock and the Managers’ Stock Company Application, Questionnaire and Agreement incorporated into the Stock Jobbing Contract and the provisions of § 287.-090.

Plaintiff, alleged in her First Amended Petition that she was injured “while performing on stage under a contract in a theatrical production;” and in her affidavit in opposition to defendants’ Motion averred that she “did agree” with the Theatre to perform the role of “Reno Sweeney” in the musical production, “Anything Goes.” She then further averred those activities she engaged in to prepare for the performance, independently and at her own expense; that she provided certain enumerated “tools of her trade,” professional persons to assist her in arranging her hair, etc., in a manner designated by herself inasmuch as she had retained the exclusive right to make such designation; that her pay was higher than other participants in the production because of her particularly unique and exceptional abilities in singing and dancing and for her acquired excellent reputation as a star performer. She further averred that it was understood between the Theatre and herself that she would retain the right to designate and control the manner, methods and means by which she would perform her role and that she exercised what is known in the entertainment trade as “creative control,” i. e., the right of a performer with her high status to designate and control the means by which she performs her work in reaching the desired result or effect.

The Theatre argues that plaintiff was an employee and together with the Theatre elected to come under the Workmen’s Compensation Act as evidenced by the contractual documents. It further argues that for members of the Actors’ Equity Association to take part in performances, Equity requires the manager of a theatre to sign the Application and Agreement and agree thereby to furnish Workmen’s Compensation and Disability Benefits to the “Actor” and therefore plaintiff is bound by ratifying this agreement when she executed the Stock Jobbing Contract to accept the benefits and thereby waived her common law action. It points also to the Agreement and Rules Governing Employment in Outdoor Musical Stock incorporated into the Stock Jobbing Contract and the use of the term “employment” throughout that document as further evidence that plaintiff was an employee and not an independent contractor as she contends.

Plaintiff’s claim here is not in contract, it sounds in tort. She is not suing on the contract; rather, the contract is interposed as a defense to her common law claim. For the Act to be a bar to her claim, it must first be established that there was an employer-employee relationship existing at the time of the occurrence by which she sustained her injuries. She relies for recovery not on her contract; rather, she contends that despite what the contract may have provided, there is, and was at that time, in the entertainment trade what is known as “creative control” reserved to a star of her standing whereby she was permitted to retain her independent contractor status.

The ordinary relationship of employer and employee exists in contract wherein, by the agreement, the employer is the one who employs another to perform service in his affairs and who controls, or has the right to control, the conduct of the other in the performance of the service and the employee is the person employed to perform services in the affairs of the employer and who, with respect to the physical conduct in the performance of the services, is subject to the employer’s control. Fiedler v. Production Credit Association, 429 S.W.2d 307, 314[12] (Mo.App.1968). In the case where the employee seeks to enjoy the benefits of the Workmen’s Compensation Act it is he who must prove the existence of the employer-employee relationship. Fiedler v. Production Credit Assn., supra, l.c. 312[5]. Here, however, the burden to prove this relationship is on the defendants interposing it in support of their Motion for Summary Judgment, and if there is a fact issue on that point they must fail. E. O. Dorsch Electric Co. v. Plaza Construction Company, 413 S.W.2d 167, 169 (Mo.1967).

It is apparent to us from the trial court’s Findings of Fact and Conclusions of Law that it based its ruling solely on the documentary evidence filed in the cause and § 287.090[2], disregarding any pleading or averments contained in plaintiff’s affidavit in opposition to defendants’ Motion. In this we conclude he erred.

Because of the drastic remedy afforded by summary judgment the Supreme Court in E. O. Dorsch Electric Co. v. Plaza Construction Co., supra, cautioned the courts of this State against rendering summary judgments in suits for damages where the motion for summary judgment is premised upon an interpretation of only the words of a contract interposed as grounds for the summary judgment.

In reversing and remanding a summary judgment in that case the court held that where the terms of the contract were equivocal it was to be interpreted in the light of surrounding circumstances, applicable customs and usages, the contracting parties’ own interpretation of the contract, and other evidence bearing on the question of the contract’s meaning, l.c. 173[8]. We believe that caution well taken under the circumstances of this case.

The Actors’ Equity Association Stock Jobbing Contract here is one for “Principals.” A “Principal Actor” is defined in Rule 16(B) to include all members of AEA hired on Equity contracts other than those members engaged on Chorus contracts and/or engaged to perform chorus work. Plaintiff is identified in the Contract as “Actor.” Rule 16(A) defines that generic term so that it refers to and includes persons who are members of AEA, including members engaged under Chorus contracts. It is apparent from this that this contract is a general form of contract. The contract specifically provides that the Agreement and Rules Governing Employment in Outdoor Musical Stock and the Managers’ Stock Company Application, Questionnaire and Agreement are a part of the Agreement. Except that it requires that plaintiff arrive and report at the theatre location on August 4,1972, that the first rehearsal is to begin at 10 a. m., and that the opening date of the musical play is to be on August 14, 1972, the contract itself sets out no other duties of the plaintiff than that she play the part of “Reno Sweeney” in the play “Anything Goes.” The Managers’ Stock Company Application, Questionnaire and Agreement, so far as relevant, provides that the Manager, (the Theatre) agrees that all employment agreements with members of the Actors’ Equity Association the terms of the Managers’ Stock Company Application, Questionnaire and Agreement and the Minimum Contract for Stock shall apply, and further, that “the Actor is entitled to -the benefits of all Federal and State . Workmen’s Compensation and Disability Benefits;” that it will pay any and all payments required to be paid by employers under the provisions of said laws, and in the event the services of the Actor are not subject to the compulsory provisions of said laws, then it agrees that it will make application to cover the Actor under the elective provisions of said laws, or the elective provisions of the State of New York or the State of the Actor’s residence.

The Agreement and Rules Governing Employment in Outdoor Musical Stock, Rule 32(A), provides that the Manager shall obtain and maintain Workmen’s Compensation Insurance coverage for all Actors in his employ. Rule 24 of the Agreement sets out the duties of an Actor, and these are to be prompt at rehearsals and performances, to pay strict regard to makeup and dress, to perform his services to the best of his ability, to abide by all reasonable rules and regulations of the Manager not in conflict with Equity rules, to notify the Manager as far in advance as possible when any songs must be transposed into a different key from the key used in the score provided by the Management, and advises the Actor that repeated lateness “may subject the Actor to disciplinary proceedings in accordance with the Constitution and By-Laws of Equity.”

From the foregoing, the trial court found that the terms of the contract are explicit in granting the Theatre “the right to control the manner, method, mode and result of the work of plaintiff, and thiis the conduct of the parties need not be analyzed.”

Having concluded from the documents in the case, other than plaintiff’s affidavit, that there existed an employer-employee relationship between plaintiff and the Theatre, the trial court then further found that there was in full force and ef-feet a Workmen’s Compensation policy of insurance issued by the Aetna Casualty & Surety Company to the Theatre and that the Theatre had elected to come within the scope of § 287.090. The error in this finding is that § 287.090 has no applicability to the issues in this case in any manner whatsoever, and further, is not relied on by the Theatre in this court. The election afforded the employer under § 287.090 RSMo 1969, as amended Laws 1971, p. 84, § 2, is available in only those instances where the employer making the election to come under the provisions of the Workmen’s Compensation Act, Ch. 287, is engaged in one of the three employments exempted thereby or is a minor employer not determined to be engaged in an occupation not hazardous to employees. There is ho evidence in this case that the Theatre is engaged in any of the exempt employments and therefore the fact that a policy of insurance was obtained by the Theatre does not constitute an election within the provisions of § 287.090.

Nor do the election provisions of § 287.120(1) have any applicability here until the employer-employee relationship has been established by unassailable proof, and any references to Workmen’s Compensation Insurance in the Managers’ Stock Company Application, Questionnaire and Agreement and the Agreement and Rules Governing Employment in Outdoor Musical Stock to this effect cannot bring the plaintiff under the coverage unless she is an employee and not an independent contractor. In Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, 334[4] (1944) it was held that the provisions of the Workmen’s Compensation Act cannot be enlarged by contract, waiver or estoppel, and unless it is shown by unassailable proof that plaintiff has an employer she cannot be brought under the Act by contract, waiver, or estoppel.

We hold that the trial court erred in sustaining the Theatre’s Motion for Summary Judgment.

We are also of the opinion that the trial court erred in finding that plaintiff was a statutory employee of the City within the meaning of that term as it is used in § 287.040[1]. Before one can be held to be a statutory employee three prerequisites must be established: 1) the work was performed under a contract, 2) the injury must have occurred on or about the premises of the employer, and 3) the injury must have occurred while the employee was doing work in the usual course of the business of the employer. Dunn v. General Motors Corp., 466 S.W.2d 700, 702[1] (Mo.1971). The purpose of this statute is to prevent an employer from evading workmen’s compensation liability by hiring independent contractors to perform the usual and ordinary work which his own employees would otherwise perform. Greiser v. Western Supplies Co., 466 S.W.2d 13, 16 (Mo.1966). While the plaintiff admits that the injuries for which she seeks damages occurred on the City’s premises, she denies the other two prerequisites for the application of the statutory employee rule. The defense that the plaintiff was a statutory employee and hence cannot maintain a common law action is an affirmative defense and the burden of both pleading and proving it is on the defendant City in this case. Grieser v. Western Supplies Co., supra, l.c. 16[1]. The other requirements to establish the defense of “statutory employee” in this case which plaintiff denies exist must be proved by the City for it to prevail in this defense. We therefore conclude that the City did not meet its burden by affording unassailable proof that plaintiff was a “statutory employee” and thus barred from proceeding with her cause of action. For this defense to apply, the contract under which the work is done is one whereby the party interposing the defense has contracted either with the plaintiff or plaintiff’s employer for the performance of certain duties in furtherance of the usual course of defendant’s business and for the primary benefit of the statutory employer. Ferguson v. Air-Hydraulics Co., 492 S.W.2d 130, 137[9] (Mo.App.1973). There is no evidence here that plaintiff ever contracted with the City, and, as we held above there is a live issue whether plaintiff was an employee of the Theatre.

There is here no direct evidence of any contract between the City and the Theatre regarding the use of the Municipal Opera premises. The only evidence is a permit issued to the Theatre for the use of the premises for the purpose of producing a series of operas and to use portions of the. structure for offices year-round. Nor is there any evidence that the production of shows is a part of the City’s usual business. The trial court found that since the only business carried on on the premises was the performance of this and similar productions, that the premises upon which this play was performed belonged to the City, and that the City had “contracted" with the Theatre to conduct the production of “Anything Goes,” therefore plaintiff was a “statutory employee” of the City. However, Perrin v. American Theatrical Co., supra, presented a similar situation and there it was held that the owner of a theatre was not the statutory employer of a musician, employed by a third party, who was injured while performing in the theatre. A distinction was made in Perrin between the usual operation of a theatre business and the production of shows therein. Under the evidentiary materials and other documents in this case it is impossible to determine whether the production of this play was within the usual course of the business of the City.

For the aforesaid reasons we hold that the trial court also erred in sustaining the Motion of the City for summary judgment.

Reversed and remanded.

SIMEONE, P. J., and GUNN, J., concur.

      . Edward M. Greenberg, Executive Producer of the opera production, is a named defendant in Plaintiffs First Amended Petition but he is not a party to this appeal.

      . All statutory references are to RSMo 1969, except § 287.090 refers to that section as amended Laws 1971, p. 84, § 2.

      . AEA is “Actors’ Equity Association” the exclusive representative of all actors for the purpose of collective bargaining.