author: ROBERT R. WELBORN, Special Judge.

text:
    Patricia G. RINKER, Plaintiff-Respondent, v. FORD MOTOR COMPANY, Defendant-Appellant, and Bill Woods Ford, Inc., Defendant-Third-Party Plaintiff.
    No. KCD 28550.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      John M. Kilroy, Don B. Roberson, W. James Foland, Kansas City, for defendant-appellant.
    Larry L. McMullen, Kansas City, for Bill Woods Ford, Inc.
    Joseph W. Amick, Kansas City, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injury sustained in automobile collision. Driver of vehicle sued Ford Motor Company, manufacturer of auto, on alternative theories of strict liability and negligent failure to warn. Dealer-owner of vehicle, Bill Woods Ford, Inc., was sued on strict liability theory. Jury returned verdict for plaintiff against Ford for $100,000 actual and $460,-000 punitive damages. Jury, found for Woods on plaintiff’s claim. Ford appeals.

Patricia G. Rinker, plaintiff, was interested in purchasing an automobile. On June 27, 1973, she went to Bill Woods Ford, Inc., a dealership in Clay County, Missouri. A salesman showed her three used Ford LTD’s and Ms. Rinker took a test drive in each of them. The third vehicle which she drove was a 1969 LTD with a 429 V-8 motor.

This vehicle had originally been purchased from a Ford dealer in Mitchell, South Dakota, by Henry Mancini. It had been used as a demonstrator and had 13,000 to 14,000 miles on the odometer at the time of sale. Mancini traded it to Woods on June 18, 1973; it had been driven 62,422 miles.

Ms. Rinker had no difficulty with the auto until she was returning to the Woods place of business. As she was driving north on Antioch Road, approaching the Vivion Road intersection, she decided to check the vehicle’s acceleration. She pressed the accelerator to the floor and its speed increased from about 20 to 40 miles per hour. She then slowed the auto and again depressed the accelerator fully. On this second occasion, when she removed her foot from the accelerator at about 40 miles per hour, the auto continued to accelerate. Ms. Rinker tried unsuccessfully to slow the vehicle with the brakes. She approached the Antioch-Vivion intersection at about 70 miles per hour. There was traffic in her lane of travel, stopped for a signal at the intersection. Ms. Rinker turned the auto to the left into the concrete median divider. The LTD became airborne and went into the intersection, striking another vehicle. Ms. Rinker sustained injuries which will be discussed below, for which she filed suit to recover damages from Ford and Woods.

At the trial plaintiff’s evidence showed that the fast idle cam, a part of the carburetor assembly made of nylon, was found, after the accident, to have been broken. Plaintiff’s witnesses testified that, when the accelerator was pushed to the floor, the broken cam rotated into a position where it jamed the fast idle lever into an open position, holding the primary throttle valves of the 4-barrel carburetor open.

A mechanical engineer testifying for plaintiff expressed the opinion that the design of the carburetor involved was inadequate because the section of the fast idle cam that connected the forward portion of the cam to the rear portion at the carburetor barrel was too small to withstand the loads imposed on the cam and because in the event of a break of the forward portion of the cam, there was no stop on the aft part to prevent its rotating into a position to lock the fast idle lever. He stated that the fast idle cam broke because of inadequate design.

A chemical engineer testified for plaintiff that in his opinion Zytel 101, a DuPont nylon used to form the fast idle cam, was a poor choice of material because it is degraded and loses its ductility when subjected to heat, moisture and air oxidation. Conditions under the hood of an auto can weaken a cam made of such material to the extent that stress from the choke lever can fracture the cam. He examined the cam here involved and found some discoloration and “a conchoidal fracture with a small compression fracture at the top of the fracture, such as you would get if you were to hit the part with a hammer.” The witness was of the opinion that other available plastic materials superior to nylon in strength could be used as a cam in a carburetor.

Ford offered evidence that the throttle valves were held open on the vehicle by non-standard, foreign parts added to the carburetor after manufacture.

Plaintiff’s claim based on strict liability was submitted by separate instructions against Ford and Woods. Another instruction submitted a claim against Ford based upon negligent failure to warn. A punitive damages instruction submitted such claim against Ford in the event of a finding against that defendant on the negligent failure to warn theory. The jury returned a verdict in favor of plaintiff and against Ford for $100,000 actual and $460,000 punitive damages. The verdict was in favor of Woods.

In this court, appellant first contends that the trial court should have sustained its motion for judgment n. o. v. because the verdict of the jury was inconsistent in finding against Ford and in favor of Woods.

Instruction No. 2 submitted plaintiff’s strict liability theory against Woods and No. 3 did likewise as to Ford. Both followed MAI 25.04. Instruction No. 4, following MAI 31.01, submitted the negligent failure to warn theory against Ford. Instruction No. 2 required the jury to find, among other things, that the 1969 Ford vehicle was “defective” as offered for sale and delivered to plaintiff by Woods. No. 3 required a finding that the vehicle was defective as manufactured by Ford. Instruction No. 4 required a finding that, among other things, the auto “had a fast idle cam that would break and was thereby dangerous to persons using it in the manner and for the purpose intended * *

According to appellant’s analysis of Instructions Nos. 2 and 3, the only matter submitted by those instructions and neither conceded nor in effect found in arriving at a verdict for plaintiff under Instruction No. 4 was that the vehicle was “defective.” Appellant points out that shortly after the jury retired to deliberate, they sent the following communication to the court: “Jury request definition of the word ‘defective’ as it pertains to this specific case.” The court responded: “Under the law I cannot answer this question.” Ford argues that the jury did not find for plaintiff on the strict liability submissions because the jury was unable to reach a belief that the vehicle was “defective” and that, inasmuch as the duty to warn postulated in Instruction No. 4 arose only if the vehicle was defective, the verdict is inconsistent and cannot stand.

The courts of this state have not had occasion to deal at length with the question of inconsistency as affecting the validity of jury verdicts. Verdicts exonerating a servant but placing liability upon the master solely on the basis of respondeat superior have not been permitted to stand. Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, 816-817[1] (1942); Lynch v. Hill, 443 S.W.2d 812, 817-818[6, 7] (Mo.1969). In such cases there is contradiction between “two findings treating of the same essential matter * * 76 Am. Jur.2d Trial, § 1154, p. 123 (1975). Rules have arisen pertaining to findings on claims of a spouse for loss of consortium tried jointly with the other spouse’s claim for personal injury. Thus, a verdict in favor of the latter and against the former who has presented undisputed evidence of “loss of ‘consortium, assistance, society and care’ ” has been found inconsistent and the latter will not be permitted to stand. Manley v. Horton, 414 S.W.2d 254, 261[15, 16] (Mo.1967); Stroud v. Govreau, 495 S.W.2d 682 (Mo.App.1973); Barlow v. Thornhill, 537 S.W.2d 412, 423-424[15] (Mo. banc 1976).

On the other hand, where several claims are joined for trial, consistency among the verdicts disposing of the several issues is not required. Page v. Hamilton, 329 S.W.2d 758, 764-767[10, 11], [12, 13] (Mo.1959). In that case the court stated (329 S.W.2d 767[12,13]):

“ * * * We believe the better rule to be that where separate causes of actions are joined under the permissive authority of section 509.460 and tried together, a general verdict will not be held to be fatally defective for inconsistency unless there is error in the pleading, proof or submission of the actions.”

There is no legal inconsistency between a finding against Ford in this case on the negligent failure to warn theory and a lack of finding against Ford and Woods on the strict liability theory. They are separate and distinct theories of liability. What prompted the jury to act as it did in this case is at best a matter of speculation and conjecture. The jury’s inquiry did indicate some difficulty with the term “defective” used only in the strict liability submissions. That inquiry affords no basis for presuming that the jury failed to follow the court’s instructions. The presumption, of course, is that they did. Assuming, as do both the appellant and the respondent Rinker, that the verdict in favor of Rinker was based upon Instruction No. 4, the jury could correctly arrive at a verdict against Ford on the basis of that instruction, regardless of what conclusion the jury might have reached on the strict liability submissions. This assignment of error is without merit.

Appellant attacks the strict liability verdict directing instruction against Ford (No. 3). However, since Ford has taken the position that the jury found in its favor on the strict liability submission, there could have been no harm to Ford in that submission.

Appellant attacks Instruction No. 4 on several grounds. The instruction given was as follows:

“[M.A.I. 81.01 — submitted by plaintiff]
“Your verdict must be for plaintiff and against defendant Ford Motor Company if you believe:
“First, defendant Ford Motor Company manufactured the 1969 Ford automobile, and
“Second, the 1969 Ford automobile had a fast idle cam that would break and was thereby dangerous to persons using it in the manner and for the purpose intended, and
“Third, defendant Ford Motor Company knew or by using ordinary care could have known of the dangerous condition, and
“Fourth, the plaintiff did not know and by using ordinary care could not have known of the dangerous condition, and
“Fifth, defendant Ford Motor Company failed to warn its dealers or its customers of such dangerous condition, and
“Sixth, defendant Ford Motor Company was thereby negligent, and
“Seventh, while the 1969 Ford automobile was being used in the manner and for the purpose intended, plaintiff was damaged as a direct result of such dangerous condition.”

Ford first contends that the instruction did not properly hypothesize the defect alleged, as required by MAI 31.01 in that the allegation of defect stated did not present to the jury the ultimate fact issue to be decided but instead imposed absolute liability on Ford. This attack is directed at the language in the second paragraph of the instruction: “ * * * the 1969 Ford automobile had a fast idle cam that would break # * * ff

Appellant argues that Rinker’s theory of liability was premised upon two assumptions: l.'That the fast idle cam was inadequate because it was subject to breakage. 2. That if the cam broke, it could, because of defects in the design of the cam and adjacent component parts in the carburetor, wedge against the fast idle lever and jam open the fast idle lever of the carburetor. Appellant argues that the instruction submitted, at best, only the first portion of the plaintiff’s facts relied upon by plaintiff to support her claim and totally ignored the essential element of faulty design.

A basic objective behind the adoption of MAI was to eliminate from jury instructions required findings by the jury “of detailed evidentiary facts.” Rule 70.01. Not unexpectedly there is no MAI precisely applicable to this ease. Plaintiff was required to modify MAI 31.01, keeping in mind the guide in Rule 70.01(e) that the modification “shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” MAI 31.01 calls for the defect involved to be described and gives as an example “a cracked left front wheel.” The language employed here is wholly consistent with the language of 31.01 insofar as the defect is concerned. It described the defect which, according to plaintiff, was at the base of the condition which made the vehicle dangerous. The danger arose because of a combination of surrounding factors, but they were set in motion only upon the breakage of the cam. There was no necessity for plaintiff to require findings on those surrounding factors.

Appellant also contends that, inasmuch as the cam on the LTD did break, the submission that the cam would break amounted to the direction of a verdict against Ford. Appellant argues that the instruction should have postulated either the probability of injury to a certain class of persons or the potentiality of the product to be dangerous. The word “would” adequately submitted the issue in this case. Among the uses of the word, recognized by Webster’s Third New International Dictionary (1961), is “an auxiliary function to express disposition or inclination * * The instruction adequately directed the jury’s attention to the issue of the breaka-bility of the cam and the attendant potential for danger. The case of Erny v. Revlon, Incorporated, 459 S.W.2d 261 (Mo.1970), relied upon by appellant, involved a hair coloring product which contained an ingredient harmful to a small percentage of people using the product. In modifying what is now 30.01, plaintiff there described the defect as follows: “The hair-coloring product contained an ingredient known as para-phenylenediamine dye which could cause allergic and systemic damage and was thereby dangerous to some of the persons using it” etc. 459 S.W.2d 265. (Emphasis supplied.) In that case, the instruction went on to identify the class of persons likely to be affected, but in this case there was no reason to do so inasmuch as the danger was not limited to a peculiarly susceptible class of persons.

In Krug v. Sterling Drug Co., Inc., 416 S.W.2d 143 (Mo.1967), the product involved was dangerous to some persons using it and the instruction was so limited.

In Reckert v. Roco Petroleum Corporation, 411 S.W.2d 199 (Mo.1966), the court suggested that the instruction submitting a question of furnishing a defective service station hoist submit the defect in terms of “likely to” puncture certain gasoline tanks. The submission in this case was not inconsistent with or contrary to the. suggested form of instruction in Reckert.

Appellant’s next objection to this instruction is based essentially upon the objections just discussed. Ford contends that inasmuch as the postulate of a dangerous condition in paragraph 2 “a fast idle cam that would break” was an absolute, the requirement of paragraph 3 that Ford have known of the “dangerous condition” meant that Ford must have known that either all such cams or the cam in the particular vehicle would break. Admittedly, there is no such evidence in this case. However, in view of the conclusion previously reached, that the language of paragraph 2 did not submit an absolute, this objection is without merit. Again, appellant’s reliance on Erny v. Revlon, Inc. and Krug v. Sterling Drug Co., supra, as well as Stahlheber v. American Cyanamid Company, 451 S.W.2d 48 (Mo.1970), is misplaced because of the nature of the products involved in those cases. The instruction here follows MAI 31.01 precisely as to paragraph 3 and no modification was required.

.Appellant next attacks the instruction for its failure to hypothesize Woods’s lack of knowledge of the dangerous condition, a necessary element of plaintiff’s cause of action, asserts Ford.

Ford offers no authority which supports the proposition that lack of knowledge on the part of the defendant manufacturer’s vendee is an element of plaintiff’s cause of action in a case such as this. Cases do support the proposition that failure to comply with the duty to warn may not be the proximate cause of an injury to a person who knows of the dangerous condition. Patrick v. Perfect Parts Company, 515 S.W.2d 554 (Mo. banc 1974). In Krug v. Sterling Drug Company, supra, plaintiff’s instruction hypothesized that neither she nor her doctor knew of the dangerous potentialities of the drug there involved. 416 S.W.2d at 153. That aspect of the instruction was not in question in the case.

In this case the instruction followed MAI 31.01 and appellant has not offered any authority which would require modification of the instruction along the lines contended by appellant.

Upon consideration of all objections by appellant to Instruction No. 4, no reversible error in the giving of such instruction has been found.

Appellant next contends that the trial court erred in admitting into evidence the carburetor removed from the Ford LTD, plaintiff’s Exhibit No. 33, over appellant’s objection that the exhibit had not been shown to have been in substantially the same condition when offered in evidence as it was at the time of the collision.

Exhibit No. 33 was admitted on the basis of the testimony of plaintiff’s witness William Mathews. Mathews saw the damaged auto for the first time on October 24, 1973, at the Woods lot. The vehicle had been towed to the city impoundment following the accident and taken to the Woods lot the next day. On July 16, 1973, Officer Eber, then a member of the Kansas City Police Department, had examined the vehicle on the Woods lot and taken a series of photographs, including some of the motor which showed the condition of the carburetor. Those photographs were introduced in evidence. According to Mathews, the photographs of the carburetor showed it as he saw it when he first saw the car. Mathews supervised removal of the vehicle from the Woods lot to a shed at an auto salvage company on East 40 Highway. Mathews, accompanied by Eber, viewed the auto on February 15, 1974, at the salvage company lot. According to Mathews the vehicle was in essentially the same condition as when he first saw it on October 24, 1973.

On April 1, 1974, Mathews, accompanied by a Woods mechanic, again saw the auto at the salvage yard and the mechanic removed the carburetor and replaced it.

On July 12, 1974, the carburetor was again removed and given to Mathews. He kept it in his custody, except for limited periods of time, until the trial.

He testified that the carburetor as produced at the trial was in the same condition as shown by the Eber photographs except for the fact that the accelerator linkage appeared to have been bent more and some dirt and particles had been cleaned off the fast idle cam.

When the carburetor was offered in evidence, Ford counsel objected that the evidence failed to show “a proper foundation in continuity of possession” and that it had not been shown to have been in the same condition as at the time immediately after the accident.

On the basis of the evidence before the court at the time of the offer of the exhibit and the objection made, the trial court cannot be convicted of error for overruling the Ford objection. The evidence then before the court showed that the carburetor came from the LTD and that it was in substantially the same condition as it appeared shortly after the collision as evidenced by the Eber photographs. The evidence thus provided a “reasonable assurance that the [object] was the same and in the same condition.” State v. Smith, 222 S.W. 455, 458[5] (Mo.1920), quoted in Storm v. Ford Motor Company, 526 S.W.2d 875, 878[3] (Mo.App.1975).

Appellant’s attack on the admissibility of the carburetor is premised largely upon the subsequent testimony of Eber, a witness for Ford. According to Eber, he took the photographs relied upon by Mathews and then checked the carburetor. He acknowledged that one photograph showed the broken cam although he did not notice that fact in his inspection of the carburetor. He found the linkage rod connecting the accelerator pedal to the carburetor jammed against the fire wall of the auto, holding the throttle open. Eber moved the motor forward, releasing the tension on the linkage rod and all carburetor linkages moved freely. According to Eber, he tested all of the carburetor linkages and they operated properly. He then disassembled the linkages to check for any binding and left the linkages disassembled.

The difficulty with predicating error on the part of the trial court on the basis of Eber’s testimony is that nothing was presented to the trial court calling for a ruling as a result of such testimony. In Ford’s brief, it states that, “ * * * following uncontradicted testimony that the carburetor was not in substantially the same condition at the trial as it was immediately following the accident, the Court would not reconsider its ruling or limit the purpose for which Exhibit No. 33 could be used in further proceedings (Tr. 802-858, 858-968, 969-1001, 1002-1005).” The page references are to the “uncontradicted testimony,” not to any request for reconsideration by the court of its ruling on the admissibility of the exhibit, or for a limitation on the use of the exhibit.

A prima facie case for admissibility having been made when the exhibit was offered, the trial court is not to be found to have erred on the basis of later unspoken objections or requests. Eber’s testimony created an issue for the jury as to the authenticity of the exhibit (Bean v. Riddle, 423 S.W.2d 709, 718[2, 3] (Mo.1968)), but it did not render erroneous the trial court’s ruling on Ford’s objection to the admission of the exhibit in evidence.

Appellant’s next assignment of error is based on the trial court’s overruling of objections to the placing in evidence by plaintiff of a summary of and excerpt from a report from Ford Motor Company to the United States Department of Transportation, dated April 9, 1974. This report was in the form of a letter (Ex. No. 160) from J. C. Eckhold, Director of Automotive Safety for Ford to Andrew G. Detrick, Acting Director of the Office of Defects Investigation, National Highway Traffic Safety Administration. The report was in response to a demand of that agency under the Motor Vehicle Safety Act, 15 U.S.C. § 1391 et seq. Attached as an exhibit to the report was a list of the names and addresses of owners of Ford-made vehicles of whom Ford was aware who had reported jamming of the throttle on 4300-4V Carburetors which might have been attributable to fast idle cam breakage (Ex. No. 92).

Over Ford’s objection based primarily on the hearsay rule, the trial court permitted plaintiff’s counsel to read a summary of the material in Exhibit No. 92 to the effect that between December 24, 1968 and June 27, 1973, there were 29 reports to Ford of 4300-4V carburetor fast idle cam breakage jamming throttles. The carburetors were equipped with a “G” fast idle cam. (The carburetor in this case was so equipped.)

The trial court ruled that such evidence was admissible for the purpose of showing knowledge on the part of Ford of the allegedly defective part.

In this court, appellant repeats its hearsay objection, but the objection is without merit. Evidence that such reports had been received by Ford was admissible on the issue of knowledge and such evidence for that purpose is not precluded by the hearsay rule. “These questions and answers were improper as hearsay if offered only to prove the fact that the sealed area was slick. But aside from the fact of slickness there was the issue of defendant’s knowledge of slickness. Evidence of complaints of slickness made to defendant was relevant to the material issue of defendant’s knowledge. As said in Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958[9]: “ ‘Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.’ ” Vinyard v. Vinyard Fu neral Home, Inc., 435 S.W.2d 392, 396[7] (Mo.App.1968).

Appellant also complains that in final argument plaintiff’s counsel used the evidence beyond the scope of the purpose for which it was admitted. No objection on that basis was made and no request for a limiting instruction was made. No error arises in this regard.

Appellant also assigns error in the admission of a paragraph from the letter of Eck-hold, dated April 9, 1974, Ex. No. 160. The court had sustained objection to the use of the letter. Ford’s objection was founded on the theory that the letter was the involuntary statement of Ford, under compulsion of law. However, in the course of the examination of Ford’s witness, Raymond Cedar, a liaison engineer employed by Ford, a portion of the letter was introduced in the following circumstances:

On direct examination of Cedar, he answered in the negative as to whether there was any impact force that ever touches that cam in the operation of the carburetor that will cause it to break.

An interrogatory had been posed to Ford, as follows:

“With respect to the letter described in interrogatory 2 (Ex. No. 160), please state and describe the sources of information contained therein.”

Ford’s answer was:

“The source of information was Ray Cedar, Office of the General Counsel and Customer Service Division.”

In cross-examining Cedar, counsel for plaintiff asked him whether or not he had told Eckhold, the signer of the letter for Ford, that an examination of all the data now available suggests that a limited quantity of [G] “fast idle cams were subject to cam breakage because of questionable cam quality in combination with impact loads imparted on the cam through the choke linkage as a result of engine backfire”?

Cedar denied that he had made such a statement. Plaintiff’s counsel offered the exhibit in evidence for purpose of impeachment and the witness was asked to read from it the portion which contained the statement incorporated in the question. In response to further interrogation, Cedar indicated disagreement with the interrogatory response naming him as the source of the information.

In this court appellant contends that the court erred in admitting the statement for impeachment because it in fact did not impeach the witness. This argument is premised on the idea that the response to the interrogatory naming the source of the information in the report named three sources: Cedar, the Office of General Counsel and the Customer Service Division.

The trial court is not to be convicted of error on its ruling. Appellant prepared the interrogatory answer before the court, using the singular “source,” not the plural, in its answer. It may have been, as appellant’s reply brief argues, a “grammatical error” but if it led the trial court astray, appellant must bear the consequences of the error.

In any event, there is a broader reason for concluding that the court did not err. Appellant’s objection throughout the trial to the use of the report (Ex. No. 160) and the accompanying exhibits (Ex. No. 92) was premised upon the fact that they were reports required by law. In support of that position in this court, appellant cites the case of Vockie v. General Motors Corp., 66 F.R.D. 57 (E.D.Pa.1975), affirmed without opinion 523 F.2d 1052 (3rd Cir.1975).

In that case the trial court excluded from evidence recall notices made under the National Traffic and Motor Vehicle Safety Act. 15 USC 1391 et seq. In overruling the motion for new trial, the court rejected a claim of error based on such ruling. It reasoned that the recall notice was not a voluntary admission. It also found that manufacturer could be reluctant to disclose defects if the statements were “admissible on a wholesale basis.” (66 F.R.D. 61)

The Eighth Circuit Court of Appeals was confronted with a similar question in Earner v. Paccar, Inc., 562 F.2d 518 (8th Cir. 1977), and it declined to follow the Vockie case. In its opinion the court said (562 F.2d at 526-527):

“We turn now to Paccar’s contention that the Stephens’ memoranda and the recall letter should have been excluded because of the hearsay rule. Ordinarily these documents would be admissions falling outside of the hearsay rule as prior statements by a party opponent or its employee offered against that party at trial. However, Pac-car contends that these documents should not be considered admissions since the recall campaign, with which they were concerned, was initiated under the compulsion of the National Traffic and Motor Vehicle Safety Act.

Although the principles governing admissions by a party-opponent do not exclude admissions made under a duty imposed by law, such admissions may, nonetheless, be excluded where the statute imposing the duty expressly makes the communication confidential or where such privilege is necessarily implied in order to further public policy objectives. See 4 Wig-more, Evidence § 1050 (Chadbourn rev. 1972). The National Traffic and Motor Vehicle Safety Act imposes no express confidentiality upon recall communications between manufacturers and purchasers. Pac-car argues, however, that such a privilege should be implied since the admission of recall evidence might deter manufacturers from disclosing potential safety hazards which they discover. See Vockie v. General Motors Corporation, Chevrolet Div., 66 F.R.D. 57, 61 (E.D.Pa.), aff’d, 523 F.2d 1052 (3rd Cir. 1975).

“We decline to follow the Vockie case.. In Robbins v. Farmers Union Grain Terminal Ass’n, 552 F.2d 788 (8th Cir. 1977), this Court held that the exclusionary rule governing subsequent remedial measures is inapplicable in a strict liability case because it serves no deterrent function. The reason for this conclusion is expressed by the South Dakota Supreme Court:

“ ‘A products liability case looks to a defect in the product rather than any culpable act by the manufacturer. In an age of mass production it is not reasonable to assume that manufacturers would forego improvements in a product and subject themselves to mass liability for a defect just because evidence of an improvement is admissible in a pre-improvement liability case. The pure economics of the situation dictate otherwise.’ Shaffer v. Honeywell, Inc., supra at 257 n. 7, quoted in Robbins v. Farmers Union Grain Terminal Ass’n, supra at 793.

“We believe that this reasoning is equally applicable here. Just as it is not reasonable to assume that manufacturers will forego improvements in products in order to avoid admission of the evidence of the improvements against them, it is not reasonable to assume that the manufacturers will risk wholesale violation of the National Traffic and Motor Vehicle Safety Act and liability for subsequent injuries caused by defects known by them to exist in order to avoid the possible use of recall evidence as an admission against them. We find no error in the admission of these documents on this ground.”

The Farner case did not involve Missouri law but appears consistent with the law of this state on related issues. Thus, Missouri recognizes that a statement may be an admission, even if claimed to have been made under compulsion. Ogle v. Todd, 514 S.W.2d 38, 41[4] (Mo.App.1974). No provision of the federal law gives a protected status to communications required by it.

Thus, the trial court here could have properly admitted the report without regard for the impeachment issue. In such situation, there was no error on the part of the trial court. Franklin v. Friedrich, 470 S.W.2d 474, 476[1, 2] (Mo.1971).

Appellant contends that the verdict for plaintiff is so excessive as to indicate bias, passion and prejudice on the part of the jury, affecting the trial so that the verdict must be set aside and a new trial granted as to all issues.

Plaintiff, 37 years old at the time of the trial, sustained a brain concussion and was unconscious for a period of time after the collision. She sustained bruises, lacerations and abrasions over her entire body. Fifty sutures were required to close the lacerations. She was left with permanent scars on her face, head, inside her mouth and on both knees. Her right ankle was fractured into the ankle joint. The ankle could not be placed in a cast promptly because skin had been torn off the ankle area. She wore a cast for six weeks. She received multiple fragmented fractures of nasal and underlying facial bones. A nerve in her face was permanently damaged. Her face is permanently disfigured as a result of injuries to her nose and face. She continued to have pain and weakness in the ankle at the time of trial.

Plaintiff was hospitalized for 15 days. Her medical and hospital bills were $2,948.60. There was evidence that, if she elected plastic surgery to correct her scars, her future medical expenses would be around $1,500. She lost seven weeks’ wages at the rate of $765 per month.

Appellant charges that an award of $100,000 actual damages in this case was so grossly excessive as to indicate bias, passion and prejudice on the part of the jury.

There is no need to dwell upon appellant’s first premise that the verdict was grossly excessive. Appellant’s position requires it to show occurrences at the trial that caused the jury to ignore the evidence and the court’s instructions. Wolfe v. Harms; 413 S.W.2d 204, 217[25-27] (Mo. 1967); Skadal v. Brown, 351 S.W.2d 684, 689-690[12-14] (Mo.1961). To sustain the burden which it has undertaken, Ford points to numerous matters involving the admission of evidence and argument. It points first to evidence of change in design which plaintiff adduced over objection. As noted in the Farner case, supra, the rule relied upon by appellant is of doubtful application in product liability cases.

Appellant points to a volunteer statement of plaintiff’s plastics expert: “ * * * I have found a strong urge to take part in some of the product liability cases, where I feel the consuming public have been victims, in these cases.” Ford’s counsel’s objection was promptly sustained and the jury instructed to disregard the remark. Counsel for plaintiff, in closing argument, referred to “victimizing” of the consumer. No objection was made to the argument. The volunteered remark of the witness which the jury was instructed to disregard and the unobjected to remark in argument could hardly have produced the verdict in this case.

Appellant returns to the admission of Exhibits Nos. 92 and 160 in arguing this point. Since their admissibility has been sustained, argument based upon those matters is unconvincing. Appellant also complains of admission of two carburetors used for demonstration purposes. This was a matter within the court’s discretion and no abuse has been demonstrated. Wilcox v. St. Louis-Southwestern Railroad Company, 418 S.W.2d 15, 18—19[1] (Mo.1967).

Appellant points to the court’s ruling, precluding its obtaining testimony from its witness Eber about his experience in accelerating an auto to 70 miles per hour and braking it simultaneously. As Ford’s attorney pointed out at the time the objection was sustained, Ford already had the benefit of testimony by another of its witnesses that a “properly braked” auto could be stopped even if the throttle was stuck wide open. Appellant’s counsel made no offer of proof as to what Eber would say. This is not the type of matter which would support a finding that the verdict was the result of bias, etc. .

Appellant has demonstrated no trial incident to which the verdict might be attributed. In the only case cited by appellant in which an appellate court awarded a new trial on the basis here urged, Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618 (1930), a $1,000 verdict in favoir of a plaintiff who had sustained injuries and had medical expenses of some $839 was held grossly inadequate. The court in granting relief pointed to cross-examination of plaintiff and some of her witnesses that certain facts such as “her father’s ownership of an expensive car, the nature of his business, and her own race and foreign birth, were suggested and stressed in a manner more likely to create prejudice against plaintiff than to serve the legitimate purposes of cross-examination.” No similarly prejudicial occurrences have been shown in this case. The only other case in which it appears that relief was granted on the grounds here urged was that of Murphy v. Graves, 294 S.W.2d 29 (Mo.1956), where misconduct on the part of two jurors was shown. Nothing comparable appears in this case. This assignment of error is without merit.

Appellant contends that the damage instruction in the form of MAI 4.01 should have been modified to assure that the jury did not award plaintiff damages under both of plaintiff’s verdict-directing instructions and thereby subject Ford to double recovery.

Appellant’s argument on this point is in the face of its position on its first point in which it conceded that the verdict against Ford was on only one ground of liability— negligent failure to warn. At any event, the damage instruction directed the jury to award plaintiff damages for the “occurrence mentioned in the evidence.” There was a single “occurrence,” the collision which resulted in plaintiff’s injuries. There is no reason to assume that the jury disregarded the instruction. Appellant offers no authority which requires modification of MAI 4.01 when alternative theories of liability are submitted.

Appellant next contends that the court erred in instructing the jury on the issue of punitive damages because there was no probative evidence to support the submission of that issue. Appellant’s point states further than an award of punitive damages “is a novel matter in a product liability case and raises serious issues of public policy.”

In arguing the inadequacy of plaintiff’s evidence on this issue, appellant accepts the standard of conduct presented by MAI 10.02 as the basis for an award of punitive damages in this case, i. e., defendant’s conduct must have “showed complete indifference to or conscious disregard for the safety of others * * The problem here presented is whether or not the evidence viewed in the light most favorable to plaintiff would admit of a finding by the jury that appellant’s conduct partook of this nature.

The evidence would have permitted the jury to find that Ford’s Director of Automotive Safety knew that a limited number of 1968 and 1969 Ford vehicles were equipped with fast idle cams subject to breakage; that a broken fast idle cam could cause the throttle to jam open, hurtling the vehicle forward at a high rate of speed with no effective method of promptly stopping the car; that prior to Ms. Rinker’s accident, over a period of four years, 29 reports of incidents involving broken fast idle cams had been received by Ford; that Ford took no steps to warn its dealers or customers of this problem.

Ford argues that, at the most, the evidence presented a jury question of negligence, but that there was no evidence of conduct on its part which reached the “aggravated character indispensable to an award of punitive damages.”

The language of cases in the appellate courts of this state in which punitive damages have been allowed or refused is not particularly helpful in a case such as this. The important factor is the conduct which was found to warrant the imposition of punitive damages. Most nearly approaching the nature of the conduct of appellant here among cases in the state cited by either party is Reel v. Consolidated Inv. Co., 236 S.W. 43 (Mo.1921). In that case, city inspectors had notified the engineer for the owner of a building that strands of wire were broken in an elevator hoisting cable' and that the cable should be renewed in order to put the elevator in a safe condition. For six weeks nothing was done and at that time, the cable broke, the elevator fell and plaintiff sustained injury. In holding the evidence sufficient to authorize an award of punitive damages, the court stated (236 S.W. at 46):

One permissible view of the evidence is that at the time of the inspection on March 4th and subsequently the cables of the elevator were so worn and broken that they were likely to give way at any instant while in use; that Reel not only knew the physical condition of the cables, but he also knew and appreciated the imminent danger necessarily incident to their further use; and that his failure to renew them during a period of six weeks was not, and under the circumstances could not have been, the result of mere inadvertence, but of an utter indifference to the rights of those whose lives and limbs were thereby daily and hourly imperiled, equivalent to intentional wrongdoing.”

As appellant points out, the judgment in that case was reversed because of error in the punitive damages instruction which assumed that defendant knew of the danger if the cables were not renewed. 236 S.W. 47[7]. However, the case is significant for its recognition of the nature of conduct which may be found to amount to conscious disregard of the safety of others.

In this case, the jury could undoubtedly have found that the breaking of a cam and the jamming of the accelerator causing the vehicle to travel at a high rate of speed without an effective means of control was a threat to the safety of not only the occupant of the vehicle but also to the occupants of other vehicles and pedestrians in the vicinity. The jury had the right to weigh Ford’s inactivity against the hazard presented and could well conclude that Ford consciously or knowingly elected to disregard what it well knew to be a genuine potential for danger.

Appellant advances the argument that punitive damages are “inappropriate” in a products liability case such as this. As appellant suggests, no case in this state relied upon by either party has approved of punitive damages in a products liability case. However, given the purpose of punitive damages to punish a defendant for an aggravated act of misconduct and to deter similar conduct in the future by the defendant and others, there is no fundamental reason for excluding products liability cases from the cases in which punitive damages may be recovered. One writer suggests that punitive damages are particularly appropriate in such cases. Owen, Punitive Damages in Products Liability Litigation, 74 Mich.Law Rev. 1258, 1262-1299.

Appellant’s primary reliance on this contention is upon Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1967). That case involved a drug produced by defendant to reduce blood cholesterol level which turned out to have serious side effects, including causing cataracts. Punitive damages were sought based upon the claim that the defendant had deceived the Food and Drug Administration, the medical profession and consumers regarding the safety of the drug. A jury awarded the plaintiff $17,500 actual damages and $100,000 punitive damages. The award of punitive damages was reversed in the Court of Appeals on a 2 to 1 vote.

Judge Friendly, the author of the majority opinion, treated at considerable length questions which he felt were presented by allowing punitive damages in such a case. The court noted that the case “was the first to be tried of some 75 similar cases now pending in the District Court for the Southern District of New York. Several hundred actions have been filed elsewhere, * 378 F.2d at 834. Judge Friendly expressed the “gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill. ” 378 F.2d at 839. He questioned whether or not allowance of punitive damages in such a case would provide a greater deterrent than that found in the federal food and drug requirement. He also noted the possibility that “a sufficiently egregious error as to one product can end the business life of a concern that has wrought much good in the past and might otherwise have continued to do so in the future, with many innocent stockholders suffering extinction of their investments for a single management sin.” 378 F.2d at 841.

However, despite these concerns, Judge Friendly acknowledged that in that diversity action, he could not predict that the New York courts would adopt a rule disallowing punitive damages in such a case and he decided the case on the grounds that plaintiff’s evidence had not shown that the “management” of the defendant had authorized, participated in or ratified the conduct relied upon as giving rise to punitive damages. As pointed out, New York adheres to the “complicity rule,” holding the corporate master liable for punitive damages “only when superior officers either order, participate in, or ratify outrageous conduct.” 378 F.2d at 842[6],

Missouri does not follow the “complicity rule.” Action of a nature which gives rise to such liability by a corporate agent acting within the scope of his authority is all that is required to impose liability for punitive damages on a corporate employer. Tietjens v. General Motors Corp., 418 S.W.2d 75, 88[12-14] (Mo.1967).

The conduct of the same defendant and involving the same product as in Roginsky was held to support an award for punitive damages in Toole v. Richardson-Merrell, Inc., 251 Cal.App.2d 689, 60 Cal.Rptr. 398 (1967). The jury awarded plaintiff $175,000 actual and $500,000 punitive damages. The punitive damages award was reduced by remittitur to $250,000 and that award was upheld on appeal. The court concluded that the evidence showed the malice required to support an award of punitive damages based upon a showing that the “defendant’s wrongful conduct was wilful, intentional, and done in reckless disregard of its possible results.” The California court disagreed with Judge Friendly’s conclusion that management had not participated in the wrongful conduct. 60 Cal.Rptr. 398, 416-417 N. 3.

In the cases of Pease v. Beech Aircraft Corporation, 38 Cal.App.3d 450, 113 Cal. Rptr. 416 (1974), and Searle v. Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218 (1975), the court recognized that punitive damages might be recovered in a products liability case. In Pease, an award of such damages was set aside for error in instructions. In Searle, pleading allegations were held insufficient to support the issue.

An award of punitive damages for injuries arising out of a defective television receiving set was upheld in Gillham v. The Admiral Corporation, 523 F.2d 102 (6th Cir.1975). As pointed out by appellant the conduct of the defendant in that case was much more aggravated than that involved in this case. The manufacturer was aware of the defect when it began producing the set and took no remedial action despite numerous reports that the defect had caused fires.

Appellant’s authorities and the argument based thereon are not persuasive that this court should, as a matter of public policy, refuse to permit punitive damages in a case such as this. The problems suggested by appellant will be dealt with as they arise. Means are available to both trial and appellate courts of the state for the control of excessive award of punitive damages. See Beggs v. Universal C.I.T. Credit Corporation, 409 S.W.2d 719, 724-725[8-13] (Mo.1966). No such relief was sought in this case. (No opinion is expressed as to the amount of the judgment here.)

Appellant’s final point is that the cumulative effect of the trial court’s errors would require a new trial, even if considered separately such relief might appear to be inappropriate. Inasmuch as appellant’s claims of error on the part of the trial court have not been accepted here, this claim need not be pursued.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Judge.

license: Public Domain

text:
    Nancy Gail TAYLOR, Respondent, v. Clifford Dean ASPEY, Defendant, v. Paul E. TAYLOR, Sr., Appellant.
    No. KCD 29029.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    M. Sperry Hickman, Independence, for appellant.
    Charles Gersh, Grandview (Gersh, Holt, Earhart, Jones & Dibler, of counsel), Grand-view, for respondent.
    G. Michael Fatall, Kansas City, for defendant.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

For the wrongful death of Paul Eugene Taylor, Jr., as a result of being struck by a car when he was a pedestrian, a settlement was achieved with defendant Aspey’s insurer, for the amount of the policy limit, $10,-000.00. Appellant-intervenor, the deceased’s natural father, contends here that under § 537.080, RSMo 1969, he was entitled to an equal interest in the judgment from the $10,000.00 fund which was paid into court. As to who may sue for the wrongful death of an unmarried minor, § 537.080(2) provides that suit may be brought “ * * * by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them' be dead, then by the survivor; or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents; * * *.” The trial court, after hearing the evidence, apportioned the fund, $9,291.28 to respondent, and $708.72 to appellant, under the provision of § 537.-095, which is: “In any action for damages under section 537.080, the trier of the facts shall state the total damages found or the total settlement approved. The court shall then enter a judgment as to such damages, apportioning them among those persons entitled thereto as determined by the court.” As is obvious, the latter statute does not offer any guidelines or factors for apportioning the damages.

Deceased was born in 1959, and was 15 years old at the time of his death. The parties here were divorced in 1963, and respondent was awarded the custody of deceased, he living with her until the date of the accident. Appellant paid $60.00 per month child support for deceased.

After the accident, which was on August 28, 1975, deceased died 8 days later. The exhibits in evidence show that the Research Hospital bill, doctors’ bills and ambulance totalled $6,833.30, and interment, grave marker, casket, limousine and flowers, to-talled $2,359.33, a grand total for these expenses of $9,192.63. Of these amounts, about $7,800.00 had been paid by respondent or on her behalf from life insurance policies, her own pocket, or through Union insurance, and about $1,600.00 remained unpaid.

Respondent testified that appellant never offered to pay any of the bills. He was in the Army, earning over $1,200.00 per month with a rank of E8. He had promised to pay respondent’s second husband $433.72 for the grave marker, but she has a claim for that amount because it was originally paid out of insurance proceeds belonging to her. The amounts paid by appellant were: $50.00 for funeral flowers; $275.00 paid to respondent three or four months before trial (which was on July 23, 1976) for the grave plot. The court also allowed attorneys’ fees of one-third of respondent’s recovery, or $3,097.09, and observed, “The only thing that we have here, is a policy which is going to pay $10,000 and that is inadequate to pay the expenses that everybody became obligated for when you consider the amount of attorney fees and legal expenses. So, it’s just a question of trying to apportion the actual out-of-pocket expenses * *

It has long been the rule in this state and many other jurisdictions that expenses incurred, or which beneficiaries have become obligated to pay, for medical and hospitalization expenses, and funeral expenses, are items which may be recovered as part of the damages in wrongful death cases. Rains v. The St. Louis, Iron Mountain & Southern Railway Company, 71 Mo. 164, 169 (1879); Hickman v. Mo. Pac. Ry. Co., 22 Mo.App. 344 (Mo.App.1886); Hildreth v. Key, 341 S.W.2d 601, 613-614 (Mo. App.1960). Proceeding from this premise, it is obvious that these parties, natural parents of the deceased, had they been equal, could have recovered what they jointly paid, if they had done so, for the medical, hospital and burial expenses of their deceased son. The facts here are, however, that respondent paid the vast majority of these expenses. If appellant would prevail in his claim that he is entitled, under § 537.080, to one-half the settlement proceeds, it would leave respondent holding the bag for all that she paid out. Such a result would clearly be inequitable. The matter of the equities of the parties was addressed in Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147 (1942), as to apportionment of damages, for wrongful death as between deceased’s mother and father. The amount agreed upon as wrongful death damages was $6,500, and the court apportioned the damages three-fourths to the mother and one-fourth to the father, after deducting funeral expenses and the mother’s attorney fees incurred in bringing the wrongful death action. Two issues were considered: Whether the deduction of funeral expenses and attorney fees before apportionment was proper; and whether the judgment should have been apportioned equally. As to the first issue, the court held that the deduction for funeral expenses, having been advanced by the mother’s brother, and going to decedent’s estate, not the next of kin, was proper. As to attorneys’ fees, that deduction was proper because it was a necessary expense in creating the fund. As to the contention that the judgment had to be apportioned equally, the court found that the trial court had made the apportionment on the basis of the pecuniary loss suffered by each parent, and said, loe. cit. 127 P.2d 150[5, 6], “ * * * those who have suffered no detriment are entitled to no compensation.” The Hurley court held that the proceeding to apportion the judgment was of equitable nature because the party recovering the judgment held it in trust for all persons entitled thereto, and therefore it was in equity because the enforcement of trusts and the distribution of trust funds are equitable matters. Compare Adams v. Coleman, 386 P.2d 1004 (Okl.1963); and Tackett v. Tackett, 174 Okl. 51, 50 P.2d 293 (Okl.1935), where, in each case no issue was raised on apportionment of the judgment based upon pecuniary loss. See also In re Riccomi’s Estate, 185 Cal. 458, 197 P. 97 (1921), an action to apportion a $3,000 judgment for wrongful death brought by the mother of deceased against his wife, the latter being awarded 15/16ths of the judgment, and the mother claiming on appeal that she was entitled to one-half. The court said, 185 Cal. 462, 197 P. 98[3], “[h]ow perfectly absurd it would appear to be to hold that where the whole amount of the recovery is given solely on account of the pecuniary injury to the surviving wife, one-half thereof must go to a surviving father or mother or brother or sister of decedent who has suffered no pecuniary injury whatever.”

If appellant’s contention were sustained that he is entitled to one-half the gross settlement proceeds for the wrongful death of the son, it would not only be inequitable and unfair, but it would subvert the obvious purpose of § 537.095 to apportion the damages awarded or the settlement in accordance with the parties actual pecuniary loss, which in different cases may vary in accordance with the facts, as determined by the court.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Charles A. DAFFIN, Appellant, v. Frances Louise DAFFIN, Respondent.
    Nos. KCD 29223, KCD 29279.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.

      William C. Partin, Kansas City, for appellant.
    Joseph R. Borich, James R. Derting, Col-let & Borich, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

These appeals come from an order to set aside the property provisions of a dissolution of marriage decree for fraud on the court of rendition in the procurement of the judgment. The husband appeals on the ground that the prior decree entered was on an agreed property settlement not unconscionable in terms and therefore beyond the power of a court of equity to affect. The wife appeals on the ground that the subsequent order was not just as a division of the marital property nor as allowances for maintenance and attorney fee.

The decree of dissolution found fraudulent was entered on a petition of the husband and the entry of appearance of the wife on waiver of personal service and consent to trial and judgment without further notice. The wife was without the advice of counsel throughout these proceedings. The separation agreement of the parties, drafted by counsel for the husband, was presented to the court for approval. The agreement undertook to apportion the personal property of the parties, provided for joint ownership as tenants in common of the townhouse after dissolution but for the use of the wife and minor son until the child left the home, acceded to the fitness of the wife for the custody of the son, and provided for support money of $40 per week on the basis of a net $217 weekly salary. The agreement made no mention of a military pension of $500.59 he received every month. The court found the settlement agreement was not unconscionable and that the interests of the parties in the marital property were determined by its terms and entered judgment accordingly. The wife let the proceedings and judgment go without contest.

After the lapse of some months, the wife brought a direct action to set aside the decree, except as to the dissolution of the marriage, on grounds that the judgment, separation agreement and waivers of appearance and contest were procured by fraud practiced upon her and upon the court. The wife contended that her actions were overborned by the husband who dominated her to such extent that she was forced to rely on his advice to waive her rights of contest and to have the court divide the marital property. She contended also that the nondisclosure of the military pension in the separation agreement was a fraudulent concealment from the court of a valuable marital asset and so was not adjudicated by the decree.

The evidence was that the marriage continued for twenty-four years. They married when he was nineteen and she only fourteen; she represented herself to be sixteen at his suggestion to avoid objection. He had just enlisted in the Marine Corps where he continued service until retirement nineteen years later. Two children were born to them and at the time of dissolution the daughter was. of full age and the boy, eighteen, remained at home. The wife accepted whatever employment was available during the marriage and contributed throughout to the common financial needs. The husband tended to the financial affairs almost exclusively and dominated their activities. After twenty-four years of marriage, the husband met a younger woman, his present spouse, and began to urge a dissolution of the marriage but the wife resisted. He persisted and she became distraught and developed symptoms of illness. She began under the consultation and care of a physician. He found her in stress from the marital situation — passive and compliant. She was in this state when the husband announced he had commenced the dissolution action. It was the opinion of the physician that she could not have effectively negotiated a settlement agreement or made any other judgment as to marital rights.

The husband filed petition for dissolution of the marriage on December 18,1974. The next day he took her to the office of his counsel to sign papers. There she was presented the separation agreement for the first time and was asked by counsel to read and sign the document. She had not discussed the terms with her husband; he had assured her she need have no worry because what was done was for her benefit. He had told her also that the lawyer represented both of them and would look after her interests — and expected her to rely on that assertion as “[s]he had relied on everything else [he] said for twenty years". At the office, counsel expressly requested that she read the document before she gave her signature. She was very upset and tearful, however, and so only feigned examination of the agreement and signed it without understanding. [The entry of appearance and waiver appear to have been executed also at that time.]

The separation agreement identified the marital property to include the townhouse, furniture, household goods, automobiles and bank account, to the total value of about $12,000. The agreement made no reference to the $500 monthly military pension which then had an actuarial value of $64,491.

While the petition pended, the husband suggested a reconciliation, so he returned to the home and they resumed intimacy. Two days later he moved out again in anger. The wife assumed that because of resumption of the marital relation the dissolution hearing would be rescheduled on further notice, but the cause was heard about two weeks later without her knowledge or presence.

The husband appeared in person at the dissolution hearing and gave evidence to prove the cause of action but made no mention of the military pension he received regularly. In response to examination by his counsel the husband testified:

Q. Now, Mr. Daffin, in relationship to this separation agreement, you have made disposition of all your marital and non-marital property, is that correct?
A. Yes.

On this evidence the court found the marriage irretrievably broken and ordered dissolution. The custody of son Michael and $40 per week for his support was awarded the wife. The court further found the separation agreement set apart to the parties the property of each and was not unconscionable and, as such, was “determinative of all property interest owned or claimed by both parties hereto.” No maintenance was awarded.

The action to set aside the uncontested judgment for fraud on the court in the procurement followed some months later. The court vacated the judgment [except as to dissolution of the marriage] and, as amended, divided the marital property [except for the military pension] substantially as delineated by the separation agreement, declared son Michael an emancipated person, ordered the parties to sell the townhouse and share the proceeds at such time as the son should remove from residence, adjudged the military pension a marital asset and ordered the husband to pay the wife $175 per month [to commence thirty days after sale of the townhouse and to terminate upon the death of either party or remarriage of the wife] from that retirement benefit both as a division of marital property and as maintenance.

These orders rest on the determination that a husband who procures a judgment on the basis of a separation agreement presented to the court for approval as not unconscionable and who at the same time withholds from the court knowledge of the single largest marital asset [the military pension] — commits a species of fraud.

The husband contends here that the court had neither legal nor equitable cause to vacate the original judgment which found the separation agreement not unconscionable and adjudged the disposition of the property according to its terms. The husband means by these contentions that the prior judgment entered some months before, and from which no appeal was taken, had since become final and was conclusive. Rule 75.01. The husband means also that, whether the proceeding to vacate that judgment was intended as a writ of error coram nobis or as an action in equity for fraud in the procurement — as alternatively proposed by the wife — the evidence was not sufficient to support the remedy awarded.

The common law allowed remedy to challenge the validity of a judgment already rendered by means which included the writ of error coram nobis and a proceeding in equity to vacate the judgment for fraud in the procurement. The remedy used was determined by whether the challenge to the judgment invoked the law or equity jurisdiction of the court. Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 881 (Banc 1922); J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 191 (Mo.App.1961). The remedy by writ of error coram nobis engaged the law jurisdiction of a court to correct an error of fact upon which the judgment rested. The writ brought its own judgment before the court of rendition for examination of a matter of fact [but not of law] wrongly assumed in the adjudication and which, if known, would have prevented jurisdiction to enter the judgment. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 676 (1908). The remedy to vacate a judgment for fraud in the procurement engaged the equity jurisdiction of the court. The fraud which justified such relief, however, was a deception which prevented the presentation of a defense or proof, and because extraneous to the judgment, the practice at the common law required that such a proceeding be brought in equity by separate bill. In re Beauchamp’s Estate, 184 S.W.2d 729 (Mo.App.1945).

The coalescence of the two traditional forms of action, law and equity, into the single form, the civil action, prompted a rule of law — of apparent logic — which used coram nobis by direct motion to the court of rendition as a means for the equity power to vacate the judgment procured by fraud. Subsequent authority, however, restored the distinction between the common law function of coram nobis and the remedy by equity to avoid a judgment procured by fraud [Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 881 (Banc 1914); Spotts v. Spotts, 331 Mo. 942, 55 S.W.2d 984, 986[2, 3] (1932)] and that rule governs the contention here.

The petition upon which the judgment before us rests alleges fraud in the procurement of the orders for disposition of the property. The judgment entered upon that petition recites fraud as the ground of adjudication. The pleadings and judgment call for an exercise of jurisdiction not compatible with the office of a writ of error coram nobis. Schneider v. Schneider, 273 S.W. 1081, 1083[2] (Mo.App.1925). The only question for determination, therefore, is simply whether the proof supports the equity of the wife to be relieved from the prior judgment because of the fraud of the husband.

The evidence is not in question: the husband was the beneficiary of a vested military pension for a twenty year service. This stipend of $500 per month had been paid him regularly for the five years which preceded the uncontested judgment and, according to the best evidence of the wife, had an actuarial value of $64,491 at the time of dissolution. Nor is there doubt that the separation agreement made no mention of the pension benefit, nor that the husband affirmed to the court in response to inquiry by counsel that the separation agreement made disposition of all the property, both marital and non-marital. The contentions the husband propounds on appeal are that the wife executed the separation agreement with awareness of the benefit and that it was not mentioned as an item of property in the agreement, and so his conduct was not fraudulent and, in all events, the pension was not a marital asset subject to the property judgment of a court under § 452.-330.

The Dissolution of Marriage Act imparts a power to the courts to order division of marital property which the former procedure withheld. An agreement on separation between the husband and wife as to their property was valid under the former practice even without oversight by the court. Reiner v. Miller, 478 S.W.2d 283, 286[7] (Mo.1972). The present statutes, however, impose an inflexible duty on the court to make division of the marital property by order [§ 452.330.1; Corder v. border, 546 S.W.2d 798, 804[6] (Mo.App.1977)] or, where the parties propose a property agreement, to approve the disposition only after determination that the economic and relevant circumstances render the agreement not unconscionable. § 452.325. It is the clear purpose of the statute, therefore, that a valid adjudication of fairness shall precede the efficacy of a separation agreement.

Concealment of a material fact of a transaction, which a party has the duty to disclose, constitutes fraud as actual as by affirmative misrepresentation. Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611, 616[4] (1946); Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562, 590[27] (Banc 1931). A party who gives evidence is by the troth of his oath to speak the truth. Bartlett v. Kansas City Public Service Company, 349 Mo. 13, 160 S.W.2d 740, 742[3, 5] (1942). The husband withheld altogether mention in the separation agreement the knowledge he had of the pension benefit and disguised his testimony to the court of that fact material to the adjudication of fairness. The trial court found, and the evidence clearly supports, that the court of original rendition was misled into the pronouncement of a judgment which disclosure of the true facts would not have induced.

The husband acknowledges the power to equity to nullify a judgment procured by fraud, but contends that the misconduct must relate to the manner whereby the judgment was concocted, and not to the merits of the issues actually adjudicated. It is the rule that equity will not annul a judgment at law where the fraud was in the very issues decided by the judgment, but only where the deceit was extrinsic to the subject matter of the litigation — that is, where the fraud prevented the suitor from, a trial or from the full presentation of his case. Hemphill v. Hemphill, 316 S.W.2d 582, 586[5-7] (Mo.1958); Walther v. Null, 233 Mo. 104, 134 S.W. 993, 995 (1911). The limitation of this remedy to extrinsic fraud does not describe an impotency of equity, but rather is imposed by the public policy that there must be an end to litigation. Pomeroy, Equity Jurisprudence, § 919b (5th ed. 1941). On this principle, a court of equity will not vacate a judgment merely to allow the defeated suitor another opportunity to assert the merits of a case [Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 192[9, 10] (1949)] or even for mere perjury, unless accompanied by other collateral acts of fraud. Winchell v. Gaskill, 354 Mo. 593,190 S.W.2d 266, 271[3, 4] (1945); Cantwell v. Johnson, 236 Mo. 575, 139 S.W. 365, 373[6] (1911); Pomeroy, Equity Jurisprudence, § 919a (5th ed. 1941). Whether the sworn declaration of the husband before the court that the separation agreement made disposition of all marital and non-marital property constitutes a concealment, as found by the chancellor, or was an affirmative suppression of the truth, as would appear, does not determine our decision. There is no doubt that the fraud of the husband in that respect was on an issue actually litigated and not an act in the very procurement of the judgment and so, however untruthful the testimony, when considered alone does not invoke the equitable remedy. Our decision, rather, rests on the breach by the husband of the trust confided to him by the wife which induced her to forgo advice of counsel and so submit her rights of property for division without opportunity to assert that the pension was in law — under the facts — an asset of the marriage.

It has been the insistence of the husband throughout that the military pension, as a matter of law, was a personal asset not subject to division with the spouse. From all that appears, that conviction prompted the husband not to mention the pension in the separation agreement. That does not explain his response to the court, however, that the agreement made disposition of all the marital and non-marital property. One very purpose of § 452.330 that “the court shall set apart to each spouse his property and shall divide the marital property” is that the court determine — where there is dispute — what the law accords to both as property of the marriage and what the law sets apart to each as separate property. To that end, the procedures of § 452.330 postulate full disclosure by the husband and wife to the court of all the property held by either or both of them. The determination of interest and ownership under the Act is for the court as an incident of division by decree or adjudication of fairness of an agreed disposition. §§ 452.325 and 452.330.

The wife was prevented from a just consideration of her claim to the pension under circumstances of breach of faith as would make the court an instrument of injustice should that judgment be allowed effect. The relationship between husband and wife entails the highest trust and confidence and justifies their mutual reliance. Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 232[4, 9] (1947); Bitzenburg v. Bitzenburg, 360 Mo. 70, 226 S.W.2d 1017, 1021[3, 4] (1950). The truth of this principle, becomes evident from the admitted expectation of the husband that the wife, as she had throughout the marriage — would accept and rely on his representations that .she had no need of a personal lawyer to advise her on the dissolution and separation agreement, because his counsel would look after her interests as well. And in fact the wife did rely on that representation. Although she appreciated the need for independent advice on these matters, and in fact consulted a lawyer separately on one occasion, she was discouraged from further recourse by the insistence and anger of the husband that the counsel he had chosen would serve them both. It was disclosure to him that she had seen a lawyer that prompted his indignant break of the scant reconciliation they had managed. Although the marriage was in the process of rupture, it is clear that the dependency and reliance of the wife on the representations of the husband that his lawyer would benefit her arose out of the confidence and trust engendered by the marital relation. The chancellor found, quite properly, that the wife knew of the pension; but from what appears, she was not aware of her legal right to claim it as a marital asset. This she would have readily learned from independent advice. She was misled from that knowledge by the trumpery of the husband. The relationship of confidence between them justified the wife to rely on the representation of the husband that his counsel would act also for her benefit, and his breach of that confidence excuses her from any neglect to act for herself. Winchell v. Gaskill, 354 Mo. 593, 190 S.W.2d 266, 272[8] (1945); Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1037[5-8] (1935). A judgment which results from trickery and prevents an adversary from a defense or full response to the action is procured by fraud. Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121, 132[15] (1933). A judgment procured by fraud is regarded as perpetrated on the court as well as on the injured party. Pomeroy, Equity Jurisprudence, § 919a (5th ed. 1941). The chancellor properly annulled the judgment.

The claim by the husband to the military pension as his separate property is without merit. Section 452.330.3 treats “[a]ll property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation” presumptively as marital property. The military service which earned the pension emolument was virtually coterminous with the conjugal span — it began when they married and was fully earned before they separated. The husband attempts to avoid the plain statutory language by arguments that the wife expressly relinquished her right to claim the pension — a contention the evidence discredits — and that the record does not suffice to attribute value to the benefit. As to the latter, the pension was vested and payable as long as the husband should live, and the judgment which treats the pension benefit — then $175 per month — as an asset of the marriage is soundly based. The military pension acquired subsequent to the marriage was a present interest, not subject to divestment, and falls within the marital property definition of the statute. In re Marriage of Powers, 527 S.W.2d 949, 957 (Mo.App.1975).

The husband cites a number of decisions which bear neither by analogy or as precedent. Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971) determined that the value of a future pension benefit no part of which became vested until actual retirement was too speculative an interest to be considered a present asset for purposes of alimony judgment. Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960) determined that retirement benefits which the wife “will or may draw at the end of her employment, whenever that may be” never became part of the common property. Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.) was remanded for opportunity to make proof of the nature of pension plan and the interests of the spouses according to the criteria given in Powers, supra, and Robbins, supra. These cases, and those others cited by the parties, show that the determination that a pension or profit-sharing plan is a marital asset rests on proof that the right to receive the benefit was earned during the marriage and is not contingent nor subject to divestment.

The wife contends on her separate appeal that the court neither made just division of the marital property nor determined the issue of maintenance in accordance with the statutory factors, §§ 452.330 and 452.335. In more exact terms, she contends that the military pension was inequitably apportioned. We conclude, rather, that the order which adjudges the wife $175 “partially as a division of [the husband’s] vested retirement pay . . . and partially as periodic maintenance” does not express a division of property. The award adjudges but does not separate the two disparate property interests accorded the wife in the pension benefit. Statutory maintenance is for support, is conditioned on circumstances and may be modified [§§ 452.335 and 452.370]; the allocation of marital property redresses, on relevant considerations, the contribution of each spouse to the marriage and vests ownership, § 452.-330. The judgment as to the pension asset does not divide the marital property as required by § 452.330 and so does not present a subject for review. Corder v. Corder, 546 S.W.2d 798, 804[6] (Mo.App.1977).

The cause- is remanded for the entry of a definite and certain disposition of the pension fund asset. In this disposition the trial court will heed the prescription of § 452.-335.1 which conditions the award of maintenance on the consideration that the spouse favored with such allowance “[l]acks sufficient property, including marital property apportioned to [her], to provide for [h]er reasonable needs.” The trial court will consider also that the pension benefit, by its terms, varies according to the cost of living and that such adjustable asset is most aptly allocable on a percentile basis. The award on this asset shall accrue as of December 1, 1976, the date of the trial court judgment.

The cause is remanded according to these directions and is in all other respects affirmed.

All concur.

      . The rationale which prompted Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, l.c. 678 (1908) and even earlier courts [Downing v. Still, 43 Mo.309 — and see the splendid exposition of developed authority on this general subject in J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, l.c. 192 et seq. (Mo.App.1961)] to employ a motion in the nature of coram nobis as a cumulative remedy with the traditional bill in equity to avoid a judgment for fraud, mistake or duress, rests on the recognition that the' discard of separate procedures for law and equity cases [as by present Rule 42.01] was an advance in the administration of justice, and so to allow the vacation of judgment for fraud by simple motion — as done by coram nobis — promotes speedy dispositions of causes with the least cost and trouble to the suitors. See, especially, the dissent of Judge Lamm in Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048, l.c. 1056 (Banc 1914).

      . While coram nobis may not be used as a pleading in equity to set aside a judgment for fraud in the procurement, contemporary practice allows the equity action by direct motion as well as by the traditional independent proceeding. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 195[3, 4] (Mo.App.1961).


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James MAYNARD, Appellant.
    No. KCD 29240.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.

      William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon while acting in concert with another. Sec. 560.120, RSMo 1969, and Sec. 560.135, RSMo Supp. 1975. A Boone County jury before whom defendant stood trial agreed upon a verdict of guilty but failed to agree upon the punishment to be inflicted. Accordingly (Sec. 546.440, RSMo 1969), the trial court assessed and declared defendant’s punishment at eighteen years imprisonment in the Missouri Department of Corrections. The foregoing prompted defendant to appeal.

The thrust of defendant’s sole point on appeal is that the trial court erred in refusing to set the judgment and sentence aside because the length of the sentence handed down by the trial court exceeded a fifteen year recommendation made by the prosecuting attorney to the jury during closing argument and followed on the heels of a post-trial recommendation of twenty-five years made by an assistant prosecuting attorney.

A concise overview of the evidence will presently suffice as its sufficiency has not been challenged. The jury was amply justified in finding beyond a reasonable doubt that at approximately 2:30 A.M. on March 6, 1975, the Columbia Best Western Inn, Columbia, Missouri, was robbed of a substantial amount of cash by a shotgun wielding bandit wearing a partial face mask. The masked bandit made his escape in a getaway car driven by defendant which was waiting outside the motel office with its motor running. A member of the Columbia, Missouri, Police Department who was on a “stakeout” nearby gave chase and the getaway car careened off the road and ended up in a ditch. The two occupants then abandoned the getaway car and fled on foot. Both were subsequently apprehended and separately stood trial.

During the course of his closing argument the prosecuting attorney recommended imposition of a fifteen year sentence. Although the jury returned a verdict of guilty, it was unable to agree upon defendant’s punishment notwithstanding the prosecutor’s plea that it be fixed at fifteen years imprisonment. As dictated by the circumstances, and in accordance with the statutory command of Sec. 546.440, supra, a duty befell the trial judge to assess defendant’s punishment and the eighteen year sentence presently complained of by defendant was the result. Before the eighteen year sentence was meted out an assistant prosecuting attorney urged the trial judge to impose a sentence of twenty-five years.

The rationale of defendant’s sole point on appeal has been difficult to grasp. Defendant seems to say that the trial judge was duty bound to fix his sentence at a term of years which did not exceed the maximum punishment recommended by the prosecuting attorney during his closing argument to the jury. Beyond question, a duty devolved upon the trial judge to fix defendant’s sentence in view of the jury’s inability to agree thereon. However, defendant attempts to impose a false limitation upon this duty. Performance of this duty by a trial judge involves a solemn exercise of discretion on his part, the outer limits of which are set by applicable statutory perimeters while the inner limits are set only by the sound judgment and good conscience of the judge himself. In short, a trial judge is vested with broad discretion within statutorily prescribed limits when called upon to fix punishment in criminal cases.

Defendant erroneously assumes that the jury’s inability to agree upon his punishment conclusively demonstrated that part or all of the jurors felt that the prosecutor’s recommendation of a fifteen year sentence was excessive. This assumption, at best, is founded on the quicksands of imagination. The trial judge was under no compulsion to accept either the fifteen year sentence recommended by the prosecuting attorney in his closing argument to the jury or the post-trial twenty-five year sentence recommended by the assistant prosecuting attorney. Neither of these recommendations was finding upon the trial judge, as they were just that, recommendations in the strictest sense of the word, and nothing more. The trial judge obviously rejected both recommendations and in a sound exercise of discretion fixed defendant’s punishment at eighteen years confinement in the Missouri Department of Corrections. Defendant has failed to point out a single tangible fact or advance a single cogent reason which would support or indicate a belief that the twenty-five year sentence recommended by the assistant prosecuting attorney accounted for the eighteen year sentence levied by the trial court, thereby bespeaking of prejudice to defendant or an abuse of discretion on the part of the trial judge.

Defendant reaches clear out of sight and comes up with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), as authority for his single point. There are no parallels between the case at bar and Pearce or Santobello. Pearce stands for the proposition that if a defendant in a criminal case overturns his conviction on appeal and is awarded a new trial, he may not receive a heavier sentence on remand unless the sentencing body delineates reasons, based upon defendant’s conduct occurring after the time of the original sentencing, for imposing a heavier sentence. The elimination of any chilling effect attached to the right of appeal in criminal cases is the quintessence of Pearce. Santobello stands for the proposition that when a prosecutor induces a defendant in a criminal case to plead guilty by promising to recommend a certain sentence he cannot renege on his promise. As neither resentencing after a successful appeal nor a plea of guilty by defendant in reliance upon a recommended sentence are involved in the instant case, Pearce and Santobello are inapplicable.

Judgment affirmed.

All concur.