author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Danny Ray WOLFE, Appellant.
    No. KCD 29472.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Motion for Rehearing and/or Transfer Denied July 31, 1978.

      Tim L. Warren, John Warren, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Danny Wolfe was convicted of burglary second degree and stealing, §§ 560.070 and 560.156, RSMo 1969. He was sentenced to ten years imprisonment for the burglary and five years for the stealing, the sentences to run concurrently.

On this appeal Wolfe complains of the admission of certain evidence, the leading nature of the prosecutor’s interrogation, refusal to suppress a radio scanner and the failure to give an instruction. Affirmed.

Wolfe does not question the sufficiency of the evidence to sustain his conviction, so a brief statement of the evidence will suffice. In July, 1976, a physician’s office in St. Joseph was entered through a hole in the wall. A quantity of drugs was taken. Prior to the burglary and stealing the St. Joseph police had received a tip that one Oliphant was going to be involved in the burglary of a drug store or physician’s office within the coming week. Acting on this tip, the police instituted surveillance of Oliphant’s house. On the night the physician’s office was entered, police officers engaged in the surveillance saw Oliphant and Wolfe leave the Oliphant house in an automobile about 10:00 p. m. The officers followed this automobile, but lost it. The officers then returned to the Oliphant house to resume their surveillance. About 11:00 p. m. they observed the Oliphant automobile return with several men in it. The automobile entered an alley to the rear of the house and was parked in the back yard with the trunk nearest the house. The officers observed Wolfe walking from the direction of the car toward the back door of the house. After observing boxes in the trunk which appeared to contain pharmaceutical plastic bottles, the officers arrested Oliphant, Heitman and Wolfe.

Evidence introduced at Wolfe’s trial revealed a plaster residue on the clothing of Heitman and Oliphant which matched the material knocked from the wall of the physician’s office. Pillow cases found in the office contained a number of hairs. A forensic chemist testified the hairs from the pillow eases matched a sample of hair taken from Wolfe.

At the time the three were arrested they were found to be wearing overalls and cotton gloves, even though the evening was warm.

On this appeal, Wolfe first complains of the admission in evidence of two pillow cases from which hairs were taken which matched samples from his hair. The complaint here rests on the production of two pillow cases at the trial when Wolfe’s counsel contends he had only been informed of the existence of one pillow case. He now contends this constituted a failure on the part of the State to make production as required by Rule 25.32.

When the chemist produced the second pillow case, no objection was made to the introduction of such pillow case nor was any objection made to the testimony of the chemist concerning comparison of the hairs taken from both pillow cases and the sample from Wolfe. The first objection made on the ground now alleged appeared in the motion for new trial. Because the specific objection now raised was not made at trial, such question is not preserved for appellate review. State v. Franco, 544 S.W.2d 533, 537[7] (Mo. banc 1976).

Wolfe next objects to a question propounded to one of the police officers by the prosecuting attorney in which the prosecutor inquired if the officer had not gone to the prosecutor’s office the day following the arrest to correct his report to indicate Wolfe had been observed in the back yard of the Oliphant home the night of the arrest. At trial the only objection made to this question was that it was leading and self-serving. On this appeal Wolfe seeks to expand that objection by stating the State again failed to make full disclosure because counsel had not been informed changes were made in the police report. As indicated above, the only objection which can be considered in this appeal is that made to the trial court. As to the only objection preserved for review, “The approval or disapproval of leading questions is largely discretionary with the trial court and will not constitute reversible error unless there is an abuse of discretion.” State v. Todd, 372 S.W.2d 133, 137[9, 10] (Mo.1963). No effort is made to demonstrate an abuse of discretion in this case but rather the objection is largely pitched on the claimed failure to make disclosure. Wolfe has not demonstrated either an abuse of discretion or any prejudice resulting from this question and none is discerned.

Wolfe next complains the court erred in admitting a police scanner in evidence over Wolfe’s objection that the scanner had been seized as the result of an illegal search and seizure. The scanner was taken from the Oliphant house the day following the arrest pursuant to a search warrant which conced-edly did not mention the scanner. Wolfe filed a motion to suppress evidence prior to trial, but the motion did not list any specific items which were sought to be suppressed. A rather lengthy hearing on this motion was held but the scanner was not mentioned.

Under the rule followed in this state, it was incumbent upon Wolfe to file a motion to suppress the controverted evidence and also to present evidence to sustain his contention. State v. Yowell, 513 S.W.2d 397, 402[1, 2] (Mo. banc 1974). In this case Wolfe failed to mention the scanner in either his motion or in the evidence in support. Wolfe thereby failed to sustain his burden to produce evidence to support his contention that the scanner was illegally seized.

In addition to the illegal seizure, Wolfe objected to the introduction of the scanner on grounds it was immaterial and irrelevant to any issue in the trial. It is within the trial court’s discretion to determine the materiality and relevancy of any evidence. State v. Martin, 530 S.W.2d 447, 452[18, 19] (Mo.App.1975). Again Wolfe fails to demonstrate any abuse of discretion and none is found.

Wolfe finally contends the court erred in failing to give either MAI-CR 2.12 or MAI-CR 2.14 when it gave MAI-CR 2.10. The instruction given informed the jury that all persons are guilty who knowingly act together with the common purpose of committing an offense. Instructions 2.12 and 2.14 are verdict directors with 2.12 covering those who are active participants and who participate as principals, while 2.14 is limited to those who aid or encourage others.

In this case there was evidence from which the jury could find that Oliphant and Heitman participated in the breaking and entering along with Wolfe. The instructions given by the court required the jury to find that Wolfe broke into the building with intent to steal property kept therein and that Wolfe committed the crime of burglary and thereafter stole drugs kept in the building. This case is very similar to State v. Timley, 541 S.W.2d 6 (Mo.App.1976). In Timley this court held the scheme of MAI-CR contemplates that 2.12 or 2.14 should be given in conjunction with 2.10. This court held the giving of 2.10 without, in that ease, 2.12 was error but it was not prejudicial. This court found a lack of prejudice because the evidence shows more than one person was involved in the burglary and the jury was required to find the defendant actively participated in order to find him guilty.

The same facts are present in this case. The evidence showed Oliphant and Heitman were involved in the burglary and the instructions required the jury to find that Wolfe actively participated in the burglary and the stealing. Under the holding in Timley, the failure to give either 2.12 or 2.14 was not prejudicial.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lee A. HOY, Appellant.
    No. KCD 28480.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Motion for Rehearing and/or Transfer Denied July 31, 1978.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee M. Nation, Asst. Public Defenders for the Sixteenth Judicial Circuit, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant, having been found guilty of robbery in the first degree by means of a dangerous and deadly weapon and impressed with a sentence of twenty years imprisonment, seeks reversal and remand for a new trial on three grounds: (1) error on the part of the trial court in failing to give MAI-CR 1.08 at all appropriate or required times; (2) error in permitting a police officer to testify on behalf of the state as to his investigation of a burglary in the vicinity of the robbery because it constituted evidence of another crime; and (3) error in permitting an evidence technician to testify on behalf of the state as to a revolver found under the front left seat of a car alongside which the robbery occurred because it constituted evidence of another crime or, alternatively, because it was unconnected with the crime for which defendant was standing trial.

Only minimal reference will be made to the evidence as its sufficiency stands unquestioned. During the afternoon of October 31, 1974, the victim was accosted by three men while standing alongside a Ford automobile in the vicinity of 40th and Cleveland, Kansas City, Missouri. Defendant and one of the accomplices brandished “pistols”. During the encounter, defendant struck the victim with a pistol. Defendant and his accomplices then rifled through the victim’s pockets and relieved him of his billfold. Shortly thereafter a police officer who was in the neighborhood investigating an unrelated burglary drove upon the scene at which time defendant and his two accomplices fled on foot. The Ford automobile was taken to police headquarters and later in the day, while being “processed” by an evidence technician, a “.22 caliber revolver” was found under the front left seat. Additionally, a 16 ounce Schlitz beer can containing defendant’s fingerprints was found on the right rear floorboard of the Ford automobile. Defendant was subsequently apprehended, and unequivocally identified by the victim as one of the three perpetrators of the robbery.

Defendant’s first point is so lame that it cannot stand on appeal. Defendant candidly admits that at the trial level he failed to raise or in any manner question the trial court’s failure to give MAI-CR 1.08 on all appropriate and required occasions. With equal candor he seeks review of the matter on appeal under the “plain error” provision of Rule 27.20(c). Defendant’s argument for doing so is made in a vacuum as it totally ignores the fact that prior to the first recess taken by the jury, as well as prior to the only overnight recess taken, the trial judge orally instructed the jury in a manner which followed the spirit and substance of MAI-CR 1.08, although, concededly, he failed to follow MAI-CR 1.08 to the letter and, as well, failed to give any semblance of the instruction prior to two short recesses during which the jury was in the custody and presence of the bailiff and not permitted to separate. No one has alleged, much less demonstrated, any jury misconduct stemming from the presently complained of deviations or omissions which occurred with reference to MAI-CR 1.08. Absent some jury misconduct flowing therefrom, the deviations and omissions, although uncondoned, cannot be said to have been prejudicial. State v. Minor, 556 S.W.2d 35, 41 (Mo. banc 1977). It necessarily follows that if the referenced deviations and omissions charged to the trial judge were not prejudicial it would be illogical to hold that they resulted in “manifest injustice” or worked a “miscarriage of justice” within the contemplation of Rule 27.20(c), supra. Defendant’s invitation to substantively treat his first point under the auspices of the “plain error” rule is declined.

Defendant’s second point is also beset with infirmity. The police officer who happened upon the robbery was called as a witness by the state. At the outset of his interrogation by the state he testified, without objection, that he had been dispatched to the general area to investigate a burglary. Parenthetically, the officer’s investigation of the burglary accounted for his presence at the scene of the robbery. At this juncture, a colloquy occurred between defense counsel, counsel for the state and the trial judge during the course of which defense counsel advised the trial court as follows: “Now, if this police officer is going to talk about a separate and distinct crime and prejudice the record against this defendant about a separate and distinct crime, I’m certainly going to ask for a mistrial’’ (Emphasis added.) Counsel for the state advised the court that his only purpose in asking the police officer if he had been dispatched to the general vicinity to investigate a burglary was to account for the officer’s presence in the area at the time. Counsel for defendant responded to the explanation by saying, “[w]ell, I’m going to have to object.” (Emphasis added.) Thereafter, the police officer made several innocuous references to the burglary he had been dispatched to investigate, for instance its location, his time of arrival and his actions in the area, none of which were objected to by defendant. It is clear from the record that the statements made by defense counsel during the aforementioned colloquy were in futuro in nature and did not profess to be present objections to anticipated testimony that might be forthcoming from the lips of the police officer. So viewed, the record is barren of any objections by defense counsel during trial to the presently complained of evidence. It is axiomatic that objections to evidence must be timely made during the course of trial in order to preserve any associated error for appellate review. State v. Kelly, 539 S.W.2d 106, 110 (Mo. banc 1976); State v. Taylor, 486 S.W.2d 239, 243 (Mo.1972); State v. Lovelace, 461 S.W.2d 733, 735 (Mo.1971), and State v. Simmons, 500 S.W.2d 325, 326 (Mo.App.1973). The mild, abstract nature of the police officer’s testimony concerning the burglary which he was dispatched to investigate, divorced as it was from the robbery with which defendant stood charged, obviously accounts for the fact that defendant makes no claim that it resulted in “manifest injustice” or caused a “miscarriage of justice” so as to bring it within the saving grace of Rule 27.20(c).

Defendant’s third and final point likewise fails to afford him any appellate relief. As previously noted, an evidence technician employed by the Kansas City Police Department, upon being called as a witness by the state, testified, over a timely objection lodged by defense counsel, that a “.22 caliber revolver” was found under the left front seat of the previously mentioned Ford automobile while it was being “processed” for evidence at police headquarters. After this brief, initial reference, the “.22 caliber revolver” was swallowed in silence. It was never offered or admitted as an exhibit, nor was it ever mentioned again during the ensuing evidence or closing arguments. Nor was any nexus ever established between defendant and the “.22 caliber revolver”. There was not even the slightest hint that defendant was the owner of or in possession and control of the Ford automobile in which the weapon was found, that he was the owner of the weapon, that the “pistol” flourished by defendant during the robbery was discarded by him in the Ford prior to his fleeing the scene of the robbery, or that the weapon was even purported to be one and the same as the “pistol” wielded by defendant during the course of the robbery. In view of the single, isolated reference to the weapon, coupled with a paucity, albeit total lack, of evidence to connect it with the defendant, it is difficult, if not impossible, to believe that the complained of testimony so pointedly suggested defendant’s participation in another crime as to arguably inure to his prejudice. The dichotomous nature of defendant’s argument in support of his third and final point forcibly bears out this observation — in one breath defendant argues that the police officer’s testimony as to the “.22 caliber revolver” improperly injected evidence of defendant’s alleged participation in another crime and in the next breath he argues that it was inadmissible because it was never connected with either the robbery or defendant, i. e., that it was irrelevant, immaterial and lacking in probative value. As a broad, general principle, the admission of irrelevant or immaterial evidence, otherwise free of prejudice, falls within the category of harmless error. State v. Johnson, 539 S.W.2d 493, 512 (Mo.App.1976), and State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973). The voids heretofore mentioned in the evidence disassociated defendant with the “.22 caliber revolver” as effectively as positive evidence to that effect, thus adding momentum to that side of defendant’s mutually exclusive argument that the referred to evidence was irrelevant, immaterial and lacking in probative value. Proceeding on the theory that the isolated reference to the “.22 caliber revolver” was irrelevant and immaterial under the totality of the evidence at hand, it remains to be determined whether it was so highly prejudicial as to rise to the level of reversible error. Attaching a stigma of prejudice to weapons introduced into evidence which are never connected with an accused or the crime he is standing trial for flows from “sound psychological and philosophical principles”. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300 (1944). If the weapon referred to in the instant case had been offered and admitted into evidence, and the jury’s attention persistently drawn to it, this court would have no choice but to reverse and remand this case for a new trial under the prevailing law of the state as exemplified by eases such as State v. Williams, 543 S.W.2d 563 (Mo.App.1976). Notwithstanding the irrelevant and immaterial nature of the controversial evidence, any premature sense of compulsion to reverse and remand the instant case for a new trial is assuaged by the following circumstances which stand in silent persuasion against doing so: (1) only a passing reference was made to the weapon; (2) the weapon was never offered or introduced into evidence as an exhibit; (3) the weapon was never demonstratively revealed to the jury; and (4) the weapon was never subsequently mentioned, directly or by innuendo, during either the continuing presentation of evidence or the jury arguments. In view of the context in which this matter arose, the trial court appears to have logically assumed that the “.22 caliber revolver” mentioned by the evidence technician would subsequently be connected with both the defendant and the robbery. Abstractly speaking, as none of these connections were ever made, any mention of the weapon was devoid of probative value. Defendant singles out this sterile and isolated event and argues that it constitutes a conclusive incident of reversible error. His attenuated argument indifferently ignores or intentionally avoids consideration of certain attendant realities — the single, casual reference to the weapon was never repeated,' emphasized or in anyway seized upon by the state to inflame or sway the jury — which greatly minimize the effect of any error associated with the hapless reference to the weapon, and which, at the very least, disarm the incident of prejudice. This view, buttressed by the fact that evidence of defendant’s guilt was overwhelming, leads to the common sense conclusion that any error associated with reference to the weapon was harmless. Defendant’s attempt to blow the hapless evidentiary event out of true proportion does not refute or alter this conclusion.

Judgment affirmed.

All concur.

      . Rule 20.02(a) provides in part that “[bjefore each recess or adjournment of the court, the court must read to the jury MAI-CR No. 1.08.”


author: PRITCHARD, Judge.

text:
    Bruce Allen CHARLES, Appellant, v. STATE of Missouri, Respondent.
    Nos. KCD 29755, KCD 29835.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Motion for Rehearing and/or Transfer Denied July 31, 1978.

      Edith L. Messina, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Appellant’s motion to vacate judgment under Rule 27.26, and sentence for robbery in the first degree, was denied by the trial court without an evidentiary hearing. His conviction for that offense was affirmed. State v. Charles, 537 S.W.2d 855 (Mo.App.1976).

Appellant’s sole point here is that the trial court erred in failing to make sufficient findings of fact and conclusions of law with respect to his allegation that he was denied effective assistance of counsel. In the argument portion of his brief, appellant develops the point with reference to the allegations of his motion: “1) defense counsel failed to interview all of the State’s witnesses; 2) defense counsel failed to interview and subpoena two defense witnesses whose names and addresses had been supplied to him; 3) that counsel, after having been advised that movant was under psychiatric care at the time of the alleged commission of the offense, ignored the information supplied to him and thus failed to pursue a defense to the charge.” Appellant asks that the case be reversed and remanded for an evidentiary hearing on the allegations of his motion. Disposition of this appeal turns upon whether the allegations are sufficiently factual as to require an evidentiary hearing. For the reasons set forth below, it must be concluded that they are not, and the judgment must be affirmed.

The implication of the first allegation is that some, but not all, of the state’s witnesses were interviewed by appellant’s counsel. It is not stated what witnesses were not interviewed, or what an interview would have accomplished to appellant’s benefit, as, for example, the discovery of some fact about the witness or the testimony he would give which would have borne on the outcome of the trial. In short, prejudice in not interviewing (unnamed) witnesses is not factually alleged.

As to the second allegation, the two witnesses are also unnamed, and it is not set forth in the motion what their testimony would have been with respect to any issue raised at the trial, and whether any such testimony would have been beneficial to appellant. As to a charge of ineffective assistance of counsel, “[O]ne must demonstrate that the omission of his attorney in this regard resulted in prejudice to his position and deprived him of substantial rights. McKnight v. State, 497 S.W.2d 201 (Mo.App.1973). Where a movant complains of his attorney’s failure to call witnesses, he must allege and show that the witness’ testimony would have provided a defense. Jackson v. State, 465 S.W.2d 642 (Mo.1971).” Sherrill v. State, 515 S.W.2d 611, 613[4, 5] (Mo.App.1974); and see also Fisk v. State, 515 S.W.2d 865, 866[1] (Mo.App.1974), as to the necessity of alleging facts sufficient to state a ground for relief.

The third allegation does not set forth that appellant told counsel the nature of his consultations with a psychiatrist, and whether the treatment was for a mental disease or defect which would render him unable to “know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law”, under § 552.030, RSMo 1969, as would constitute a defense. See Parks v. State, 518 S.W.2d 181, 185[4, 5] (Mo.App.1974), and cases cited, where the contention as to ineffective assistance of counsel was counsel’s failure to move for a mental examination, and it was said, “In challenging counsel’s failure to move for an examination, appellant must show that there was some basis for asserting the defense of insanity.”

The motion does not in any of its three allegations set forth facts which would be sufficient to support the claim for relief. The matter could be determined from the face of the motion and no evidentiary hearing was required. Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977), and cases cited.

The judgment is affirmed.

All concur.


author: SNYDER, Judge.

text:
    Arnold HENDRICKS, Claimant-Respondent, v. MOTOR FREIGHT CORPORATION and Home Indemnity Company, Employer and Insurer-Appellants.
    No. 38913.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 5, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Robert Moss, J. Lloyd Wion, Wion, Burke & Boll, Clayton, for employer and insurer-appellants.
    Jack Randall, St. Louis, for claimant-respondent.
   SNYDER, Judge.

Employer and insurer appeal from a judgment of the circuit court affirming a final award of the Industrial Commission granting benefits to respondent for total disability and assessing a penalty against appellants for failing to comply with the temporary award as permitted by § 287.510, RSMo 1969.

The major issue presented for determination is the effect of an error by the respondent in the date of the accident as shown on his claim for compensation form received on July 28, 1972. Three allegations of error raised by appellants stem from the dispute concerning the reported date of the accident. They are: (1) the question of the sufficiency of the competent evidence to support the award; (2) the alleged error in the exclusion of certain written statements of respondent and a state trooper because copies of the statements were not supplied to respondent within seven days after a written request as mandated by § 287.215, RSMo 1969; and (3) a contention that the Commission acted in excess of its powers, contrary to the facts found and in an arbitrary and capricious manner in awarding medical payments to respondent and in doubling the temporary award. Appellants also charge that the Commission erroneously and in excess of its powers permitted the referee to deny a continuance for the taking of depositions of medical witnesses and that the Commission erred in finding no change in respondent’s disability status notwithstanding that respondent returned to work for a short period.

Respondent Arnold R. Hendricks was employed as an over-the-road truck driver for Motor Freight Corporation. At 4:20 a. m. on June 13,1972, he was driving the return leg of a run from St. Louis to Princeton, Indiana. At Breese, Illinois his tractor trailer jackknifed on wet pavement. The trailer body twice struck the tractor cab on the back of the driver's side and knocked respondent about the cab. Respondent telephoned Harry Johnson, Motor Freight’s operations manager, at the St. Louis terminal and informed him of the accident. Another tractor was dispatched immediately to bring the wrecked unit back to St. Louis.

When respondent arrived at the St. Louis terminal, he filled out his logbook and then told Johnson he could not finish working the balance of his shift because his back was hurting. The next day respondent made an appointment with an orthopedic surgeon, Dr. Thomas Meirink. Within a couple of days of making that appointment, and before he actually saw Dr. Meirink on July 7, respondent told Johnson and Carl Froehlich, Motor Freight's terminal manager, that he had made an appointment with Dr. Meirink to have his back examined. Between June 13 and July 7, respondent missed several days of work because of back pain.

After a course of conservative treatment failed to alleviate the back pain, Dr. Meir-ink performed a laminectomy on August 2, 1972. Despite that surgery and continued treatment, respondent has not been able to return to work on a regular basis since June of 1972. All attempts to resume his duties as a driver have ended in the same result: an increase of back pain forcing him to stop driving.

On July 27, 1972, a claim for compensation was filed. In this claim, the date of the accident was given as June 12, 1972. The accident actually happened at 4:20 a. m. on June 13, 1972. Appellants did not request an extension of time for filing their answer and no answer was filed until December 18, 1972, nearly five months after the filing date of the claim.

On November 13, 1972, respondent’s counsel made a request under § 287.215, RSMo 1969 for any statements made by or on behalf of respondent about the June 12, 1972 accident. No answer was received to that request until late December of 1972, months after the seven days then allowed by the statute for a response.

Truck drivers are required by the Interstate Commerce Commission’s regulations to keep a daily log of their activities. By Motor Freight’s policy, their drivers’ logbooks are based on a twenty-four hour day running from noon to noon. Thus, while the accident at Breese, Illinois occurred at 4:20 a. m. June 13, respondent reported it in his logbook under the June 12 work period because it took place prior to noon of June 13.

A hearing on the claim for compensation commenced on March 21,1973. In response to respondent's request for leave to amend his claim by interlineation to state the accident date as June 13,1972, the referee ruled that the claim did not have to be amended because by Motor Freight’s own written policy on logbooks, the accident had occurred during the twenty-four hour period designated June 12 in respondent’s logbook and because there was only one accident at Breese, Illinois involving respondent, an accident of which appellants had actual knowledge almost from the time it happened.

Certain exhibits and the testimony of an Illinois state trooper relating to his accident report were ruled inadmissible because of the appellant’s failure to comply with the seven day response requirement of § 287.-215, RSMo 1969. Before the March 21,1973 hearing recessed, appellants were granted leave to depose two doctors, Dr. Meirink and Dr. Zenarosa. The depositions were to be taken during the month of April. The hearing resumed and recessed again on April 3, 1973. On April 16, 1973, appellants wrote a letter to the referee requesting leave to take the depositions on May 18 and May 24. Respondent’s counsel objected, also by letter. When the hearing resumed on May 9, 1973, the depositions had not yet been taken. With the doctors’ reports already admitted, the referee declined to grant the employer a continuance to take the depositions later in the month and closed the ease.

On June 13,1973, a temporary award and findings of fact and rulings of law were handed down. The award granted respondent $70 a week from July 10, 1972 until such time as he was able to return to work. Appellants were also ordered to reimburse or make direct payment for $2,267.30 in medical bills and to assume the expense of all future necessary treatment.

A hearing on respondent’s continued disability was held on June 19,1974. Evidence of continued disability and additional medical expenses was presented. Appellants had paid the weekly disability benefits, but they had failed to pay the medical expenses as ordered in the temporary award. Respondent requested the referee to double the temporary award, as allowed by § 287.-510, RSMo 1969, as a penalty for that failure. The final award dated September 26, 1974 found respondent to be permanently and totally disabled and awarded him 300 weeks of compensation at $60 per week and a life pension thereafter of $50 per week. Appellants were also ordered to pay all past and future related medical bills. Finally, as a penalty the temporary award ($9,267.30) was doubled because the appellants had failed to pay the medical bills.

On May 22,1975, the Commission ordered an evidentiary hearing on the appellants’ motion to void or reduce and amend the award. The sole issue was to be whether there had been a change in respondent’s physical condition so as to justify modifying the award. The evidence at this hearing held on-October 21 and 23, 1975 indicated that respondent on his own initiative had received cortisone shots in his back in September of 1974 and had returned to work for short periods in September and October after receiving releases from two doctors. However, when the beneficial effects of the cortisone wore off, claimant again had to quit driving because of back pain. Respondent also worked briefly in September of 1975. Both appellants’ medical witness and respondent’s medical witness testified that respondent’s physical condition was unchanged at the time of the hearing.

On February 3, 1976, the Commission adopted and affirmed its final award of September 26, 1974, finding no change in condition. The appellants’ application for review was timely filed. The circuit court affirmed the award and this appeal ensued.

The scope of appellate review in workmen’s compensation cases is limited. The Commission’s award, absent fraud, is conclusive on appeal if supported by substantial evidence. Coleman v. Hercules Powder Company, 284 S.W.2d 32 (Mo.App.1955). The reviewing court does not substitute its judgment for that of the Commission. The function of the reviewing court is to determine whether the Commission’s findings are supported by competent and substantial evidence. If so, they must be affirmed. The record must be reviewed as a whole, including all legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625 (Mo.1969); Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965). Only if the decision is clearly contrary to the overwhelming weight of the evidence may we set it aside. We may not substitute our judgment on the evidence for that of the Commission even though a finding by the Commission to the contrary would also have been supported by the evidence. Schmidt v. Rice-O'Neill Shoe Co., 226 S.W.2d 358 (Mo.App.1950).

Appellants contend that the award is not supported by competent and substantial evidence because no accident occurred on June 12, 1972, the day alleged in the claim. Respondent, at the initial hearing on March 21, 1973, moved to amend his claim by interlineation to change the date of the accident to June 13, 1972. The motion was initially granted, but the referee reversed himself and allowed the claim to stand as it was. His reasoning was that the error in the date was the result of Motor Freight’s policy on logbook dating.

In his findings, the referee reiterated his position and found “that any error in the date was an understandable and excusable error and that the employee’s claim is not defective and not in any way in need of clarification and/or amendment.” Further, because appellants had failed to file an answer to the claim in the time permitted under the rules of the Department of Labor and Industrial Relations, Division of Workmen’s Compensation, 8 C.S.R. 50-2.010(13), the fact of the accident was taken as admitted.

The major thrust of appellants’ case on appeal is based on the June 12, 1972 accident date shown on the claim for compensation. They argue that they were not required to file an answer because no injury occurred on June 12, 1972. They say further that it was not necessary to furnish copies of statements made by or on behalf of respondent in accordance with § 287.215, RSMo 1969 since the request for the copies again related to a nonexistent accident on June 12, 1972.

The Commission found that the claim was not defective and allowed it to stand as submitted. The evidence in support of that finding is substantial. Appellants clearly knew what accident was involved in this claim. There was only one accident near Breese, Illinois in which a truck driven by respondent jackknifed on a rain slick pavement. It was reported by respondent immediately and Motor Freight immediately dispatched another trailer to recover the disabled unit. Upon his return to the St. Louis terminal, respondent told Harvey Johnson, Motor Freight’s operations manager, that he could not complete his shift because of his back pain. There can be no doubt that appellants knew the specific accident which was at issue. Motor Freight’s written policy required that logbooks be based on noon to noon work periods. So by Motor Freight’s own system of dating the accident occurred on the June 12 workday.

Appellants’ reliance on the date discrepancy is not in keeping with the purpose and spirit of the Workmen’s Compensation Act which is intended to provide benefits to employees in all cases of accidents occurring in the course of their employment. No prejudice resulted to appellants here except as a result of their unjustified reliance on the inadvertent and understandable, in view of Motor Freight’s logbook procedure, error as to the exact date of the accident.

An analysis of Missouri case law reveals no decisions on this point. However, cases in other jurisdictions have permitted consideration of claims in spite of mistakes as to dates in claims for compensation. “In pleadings under a compensation act, calling things by wrong names, or bringing a petition under a wrong title, or making other harmless mistakes as to details such as dates, are immaterial if the intention of the pleading is clear.” Larson’s Workmen’s Compensation Law, Vol. 3 (1976), § 78.11, pp. 15-9 and 15-10.

A Louisiana claim for compensation was held not to be fatally defective because it alleged the date of the accident to be July 13, 1953 when in fact, the accident occurred on August 3, 1953. The court held that since the employer’s record showed the correct date and the employer had full knowledge of the accident, the error did not mislead the employer and the claim should be considered. Ortego v. Southern Industries Co., 88 So.2d 73 (La.App.1956). However, our major reason for ruling against appellants on this point is their immediate and continuing knowledge of the accident in question and the total absence of prejudice to appellants resulting from the date discrepancy.

There was substantial and competent evidence to support the Commission’s ruling and award.

Appellants’ next claim of error relates to the refusal to receive in evidence four exhibits offered by appellants and the testimony of the state trooper as to statements made by respondent. The exhibits offered were written statements by or on behalf of respondent.

The basis for the refusal to admit the evidence offered by means of the four exhibits and the trooper’s testimony is § 287.-215, RSMo 1969 which at the time of the hearing provided:

No statement in writing made or given by an injured employee, whether taken and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within seven days after written request for same by the injured employee, his dependents in case of death, or by their attorney.

On November 13, 1972, respondent’s attorney sent a letter to appellant Home Indemnity Company requesting copies of “any statements taken from my client by the employer concerning this accident or injury, whether such statements were taken by the employer or anyone on their behalf.” The date of “this accident” is given earlier in the letter as “6-12-72”. No response was received to this letter until December 29, 1972.

There is no dispute that these documents are covered by the statute, were requested, and were not furnished until well after the expiration of the mandated seven day period. Since the trooper’s testimony would have been based on a barred exhibit it was properly refused. Appellants’ only argument in support of this point is based on the misstatement of the accident date. They say they were not obligated to furnish the statements because no accident occurred on June 12, 1972 and that a refusal to admit the exhibits and testimony penalizes the appellants for failing to furnish what was not requested. Reliance on the erroneous date did not justify appellants’ failure to furnish copies of the statements within the statutory period. Admission of the statements and testimony was properly refused.

Appellants next contend that the Commission erred in refusing to allow them to take the depositions of Dr. Meirink and Dr. Zenarosa, a point which is not well stated, since there was no ruling that the depositions could not be taken, only a refusal to grant a continuance for the purpose of taking them.

There were hearings on March 21, April 3 and May 9, 1973. On April 16, 1973, appellants wrote a letter to the referee requesting leave to take the depositions on May 18 and May 24.

Respondent’s counsel objected and when the hearing resumed on May 9, 1973 the depositions had not been taken. Both Dr. Zenarosa’s and Dr. Meirink’s reports were admitted into evidence and in the belief that the depositions would be limited by the scope of the reports and in the interest of avoiding further delay when the record was sufficient for decision, the request for continuance was denied. Section 287.560, RSMo 1969 provides in part:

The division, any referee thereof or the commission, shall have power to issue process, subpoena witnesses, and to cause the deposition of any witness to be taken . . .. Any party shall be entitled to process to compel the attendance of witnesses . . . and . to take and use depositions in like manner as in civil cases in the circuit court.

In civil cases, continuances are within the discretion of the court. Denial of a continuance is rarely reversible error; only if there has been an abuse of discretion will the court’s action be reversed. Every in-tendment is in favor of the court’s ruling on appeal. This is partly because of the trial judge’s duty and right to control his docket and the progress of litigation. State ex rel. State Highway Com. v. Herman, 546 S.W.2d 488 (Mo.App.1976); Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976). The same consideration should be given to the referee’s decision here.

The appellants had nearly nine months to secure the depositions or the appearances of these two doctors. They failed to do so. It was not error to refuse the continuance. See, Bedenk v. St. Louis Public Service Company, 285 S.W.2d 609 (Mo.1955).

Appellants allege error in the award of medical expenses to respondent and in doubling the temporary award as a penalty. The temporary award included the sum of $2,267.30 in medical expenses. The final award included an additional $710.75 for medical expenses incurred between the times of the temporary and final awards. There was no dispute as to the reasonableness of the bills. Appellants’ sole contention was that the respondent selected his own physician. Under § 287.140(1), RSMo 1969, if an employee selects his own doctor he must pay the expenses.

There was substantial evidence to support the finding in the temporary award that appellants were fully advised, subsequent to the date of the accident and prior to the date respondent entered the hospital for surgery, first by respondent and later by the bills furnished to appellants by respondent’s doctors, as to the progress of the injuries and treatment. At no time did Motor Freight make any move to have respondent examined or provide him any treatment, nor did Motor Freight ever attempt to call in doctors to consult with the other doctors who were known by the employer to be treating respondent.

Motor Freight had actual knowledge of respondent’s injury on June 13, 1972. Within a few days, Johnson and Froehlich were informed by respondent that he had scheduled an appointment with Dr. Meirink. They did not object or suggest he see a doctor acceptable to them. Between the date of the accident and his surgery, respondent missed several days of work. Respondent gave Motor Freight notice of the operation so he could be given the necessary time off. Motor Freight received the first doctor bill on August 3, 1972. After the operation they failed to suggest a doctor or provide medical care.

The case law under § 287.140(1), RSMo 1969 clearly establishes that while the employer has the right to name the treating physician he may waive that right by failing or neglecting to provide necessary medical aid after receiving notice of the injury. Slider v. Brown Shoe Company, 308 S.W.2d 306 (Mo.App.1958); Hammett v. Nooter Corp., 264 S.W.2d 915 (Mo.App.1954). The employee then may make his own selection.

Schutz v. Great American Ins. Co., 231 Mo.App. 640, 103 S.W.2d 904, 910 (Mo.App.1937) quotes the general rule that:

‘Where the employer has neglected or refused to provide the necessary services or treatment, or has consented affirmatively, or his consent is to be inferred from his inaction, to selection by the employee, or, having knowledge of such selection, has interposed no objection, or where the physician selected by the employer is not available when required, the employee may make his own selection, the fees and expenses to be charged to the employer if they are reasonable.’ 71 C.J. p. 780.

The law is well-settled on this point. Having notice of respondent’s injury, appellants failed to object when he indicated he intended to see Dr. Meirink. Aware of the imminent surgery, they failed to take any action or advise respondent of their choice of medical care. At no time did they tell respondent that they would ultimately refuse to pay the medical bills. The bills being reasonable, appellants are liable for them.

Appellants charge that the Commission acted in excess of its powers and contrary to the facts and in an arbitrary and capricious manner when it doubled the entire temporary award as a penalty.

The June 13, 1973 temporary award instructed appellants to pay medical bills or reimburse respondent for medical bills totaling $2,267.30 incurred as a result of the injury sustained in the accident. They were also ordered to pay all future necessary medical expenses.

Appellants paid $7,000 in temporary total disability benefits between the time of the initial award and the date of the second hearing on respondent’s continued disability, but they refused to pay the medical expenses. At the hearing on continued disability on June 19,1974, respondent made a motion to double the temporary award for failure of the appellants to pay the medical bills, citing as authority § 287.510, RSMo 1969. The referee directed the appellants to make the payments. They refused claiming they were not responsible.

The final award of September 26, 1974 included the sum of $9,267.30 to be paid as a penalty for the appellants’ failure to pay the temporary award of medical expenses.

Section 287.510, RSMo 1969 provides in relation to temporary awards: “[I]f the same be not complied with, the amount thereof may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.”

“It is our view that the question of assessing the penalty is a matter that is discretionary with the Commission. We should not interfere unless it clearly appears that the action of the Commission was arbitrary and constituted an abuse of that discretion.” Cebak v. John Nooter Boiler Works Co., 258 S.W.2d 262, 266 (Mo.App.1953); Accord, Powers v. Universal Atlas Cement Co., 261 S.W.2d 512 (Mo.App.1953).

Appellants were liable for these medical bills yet they refused to pay them. As the Cebak court noted, at page 266: “The statute must have been enacted in order to encourage the payment of compensation during the interim between the temporary and final awards.” If the encouragement is to be effective, the Commission must have discretion to penalize noncompliance.

Appellants argue that because they paid the $7,000 in disability benefits under the temporary award, that amount should not have been included in the penalty. Unfortunately for appellants, the statute speaks of a doubling of the entire temporary award, not just the unpaid portion. Their argument that a doubling of the whole award will encourage failure to pay the entire amount when only a portion is objected to has merit, but it should be directed to the legislature. The statute as written allows for the doubling of the entire award. However, it does not condition the penalty on failure to pay the entire award but upon failure to comply. Appellants failed to comply by refusing to pay the medical bills.

In this case, the conduct of the appellants was such as to cause the referee to find “a certain callous attitude and general ignoring of the welfare of the employee.” Their delaying tactics and the nature of the objections to the claim for compensation and request for written statements support that finding. The final award was in accordance with the temporary award as required by the statute. Under these circumstances, a doubling of the award as a penalty for failure to comply with its terms is not an abuse of discretion.

Finally, appellants assert that the Commission erred in finding no change in respondent’s disability status, arguing that his return to work negated a finding of continued total disability.

Between September 24,1974 and October 25, 1974, respondent drove during round trips between St. Louis and Omaha, Indianapolis, Columbus, Cincinnati and Terre Haute. This attempt to resume his employment occurred after he was hospitalized for cortisone shots in the spine in an attempt to relieve his pain. The procedure was temporarily successful but after a couple of weeks of driving the problems with his back and legs reappeared.

Again, in 1975 he attempted to go back to work. Between September 17 and 20, respondent made three trips to Indianapolis. Again, the condition of his back prevented him from continuing to work.

At a hearing on October 21 and 23, 1975, respondent’s doctor testified that there had been a slight improvement in respondent’s health but that there were physical objective findings indicating disability. The appellants’ own doctor testified that from the respondent’s history, examination and x-rays his condition remained “essentially the same.”

The burden of proof is on the employer to show the employee's condition has changed. Tabacchi v. Garavelli, 52 S.W.2d 567 (Mo.App.1932); Hassell v. C. J. Reineke Lumber Co., 54 S.W.2d 758, 760 (Mo.App.1932). These cases concern attempts by employees to prove changed conditions but the same burden of proof principle applies as to employers.

The testimony of respondent and the medical experts clearly established no change in condition. When, at his own initiative, respondent tried to return to work, his back condition forced him to abandon the effort. The evidence supported a finding of continued and total disability. There was no substantial evidence showing a change in condition justifying the amendment of the award.

Respondent has asked for damages for a frivolous appeal as authorized by Rule 84.19, citing Brooks v. General Motors Assembly Division, 527 S.W.2d 50 (Mo.App.1975). The test is one of good faith. Brooks, supra. Appellants’ conduct throughout the appeal, particularly in their refusal to pay the medical expenses and in delaying the temporary total compensation for approximately a year after the accident was anything but exemplary.

However, the date discrepancy gave rise to a point which was debatable. In retrospect appellants’ reliance on the erroneous date in taking some of the actions they did was not justified, but in the initial stages of the proceedings the error in the date may have seemed more important and less a technicality than a substantive defense. As far as we can determine, there are no Missouri cases which might have served them as a guide.

The appeal here is not so devoid of merit as to make the conclusion inevitable that it was not taken in good faith. We do not consider it frivolous and decline to award damages.

Judgment affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Section 287.215, RSMo 1969 was amended in 1973 by changing the seven days to fifteen days.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert LOMACK, Appellant.
    No. 38924.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jack White, Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, James M. Smith and Michael P. David, for appellant.
   CLEMENS, Presiding Judge.

Defendant Robert Lomack has appealed his first degree robbery conviction for which he was sentenced to five years’ imprisonment.

On December 11, 1975 a robbery occurred at a liquor store as the owner, his wife, and an employee were opening it for business. A man wearing a pulled-up ski mask and holding a gun followed the three into the store. The owner testified the man did not pull down the ski mask to cover his face until his wife exclaimed, “Robert Lomack.” The wife stated she recognized the man as Robert Lomack while he was running across the parking lot and after he had entered the store. The employee testified that as the man ran across the parking lot he recognized him as a long-time customer. Defendant was identified as the robber by the employee at a lineup and in court.

Defendant alleges the trial court erred by improperly commenting on evidence during defense counsel’s cross examination of the employee. We agree and reverse and remand for a new trial.

The employee testified that “he came running across, he came running across the parking lot with a ski mask on and then he pulled it up, you know.” Defense counsel was questioning the employee about this statement when the incident in question arose:

Q. “And a man came running up with a ski mask on and then pulls it up so you can look at his face—
THE COURT: “He never said he was running.”

Defense counsel then asked and was permitted to approach the bench, and the following proceedings occurred outside the hearing of the jury:

MR. WARZYCKI: “Your Honor, at this time I object to the court interjecting himself in the case. I believe this is a cross examination and I have leeway in determining — bringing out the—
THE COURT: “Overruled, and you don’t have any leeway to misquote the testimony. The man never said he was running. He said he came across the lot.”

We note the well-settled rule that a fair trial exacts absolute impartiality by the judge. A judge must not say anything that can be construed by the jury to the prejudice of defendant. State v. Gastino, 264 S.W.2d 372[3-5] (Mo.1954). “Even if counsel or others should be guilty of misconduct the judicial calmness and the dignity and the self-restraint and obvious impartiality of the judge must always be maintained and made manifest. . . .We know that juries are inclined to draw conclusions and are quite sensitive to any indications of the judge’s belief as to the merits of the issue being tried.” State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654[3] (1952). It is fundamental that the trial court in a criminal case shall not sum up or comment on the evidence or charge the jury as to any matters of fact. Rule 26.09, YAMR.

In State v. Fields, 314 S.W.2d 723 (Mo.1958), the trial court was reversed for interjecting itself in defense counsel’s closing arguments by contradicting his statements and declaring “as a matter of law” one possible inference from the evidence. Although the comments were directed to counsel, they were made in the presence of the jury. The court found the comments violated Rule 26.09, VAMR, and remarked, “To any reasonable person sitting on the jury this constituted a statement by the trial judge as to what the facts were ‘as a matter of law.’ ” Fields, supra, at 725.

The distinguishing characteristics of Fields were examined in State v. Ball, 529 S.W.2d 901[24,25] (Mo.App.1975). First the trial judge volunteered his comments in Fields. If the remark had been addressed to counsel in ruling upon an objection, it would have been proper. State v. Selman, 391 S.W.2d 193[2] (Mo.1965). Second, the trial judge in Fields stated what the facts were “as a matter of law.” However, we do not interpret the use of the legal maxim “as a matter of law” as a distinguishing characteristic. As noted above, a judge must say nothing that can be construed by the jury to the defendant’s prejudice. Cas-tino, at [3-5]. Accordingly, application of Fields requires a comment in violation of Rule 26.09 which (1) was volunteered by the trial judge, (2) was not made in response to an objection as part of the court’s ruling, (3) was made in the presence of the jury, and (4) could have been construed by the jury to the prejudice of the defendant.

Here, the trial judge not only improperly commented on the evidence in violation of Rule 26.09 but he also was incorrect. State v. Phelps, 478 S.W.2d 304[16—18] (Mo.1972), holding an improper remark might not be prejudicial if it was correct, is not applicable. The remark here was volunteered by the trial judge, not made in response to an objection as part of the court’s ruling. The comment was made in the presence of the jury. Defendant was unfairly prejudiced by the comment because it precluded a defense contention that the robber’s approach was so sudden as to prevent a good identification.

The state contends any possible prejudice resulting from the court’s comment was cured by having read Instruction No. 1, MAI-CR 2.01 warning the jury that the court’s remarks are not to be considered as evidence. The fallacy of this argument is that if carried to its logical conclusion, it would condone every prejudicial comment and render Rule 26.09, VAMS, meaningless.

The proper approach was stated in Castino, supra, at [3-5], holding that if the damaging effects of a trial judge’s improper remarks can be cured by admonishing the jury, the remarks are usually held not prejudicial where such steps are timely taken by the judge. Here, the only time an admonition could have had the desired effect was when defense counsel objected to the interjection. That objection was overruled. The prejudicial effect of the court’s comment was the diminution of the defense strategy of mis-identification and the preliminary instruction to the jury did not cure it.

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

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge.

text:
    Patrick M. FIANDACA III, Administrator, Plaintiff-Appellant, v. Harold E. NIEHAUS et al., Defendants-Respondents.
    No. 38967.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 18, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Richard L. Ross, David Drury, Clayton, for plaintiff-appellant.
    Charles E. Gray, Gray & Ritter, St. Louis, for defendants-respondents.
   SMITH, Judge.

Plaintiff-administrator of the estate of Caroline Neihaus appeals the action of the trial court in dismissing his second amended petition with prejudice.

The petition was grounded upon allegations that defendants, through fraud and overreaching, caused decedent, Caroline Ne-ihaus and her husband, to convey land to defendants at far less than its value. The original sale contract, alleged to have been fraudulently induced, was executed in March 1967, ten days prior to the death of Herman Neihaus, Caroline’s husband. In April 1967, a warranty deed for the property was executed by Caroline to defendants, which deed is also claimed to have been fraudulently induced. Caroline died on December 13, 1973. Defendants are children or in-laws of Caroline and Herman. It is alleged that in 1968 and 1969 they sold the land for $120,000, four times the purchase price and that defendants failed to disclose and concealed the facts from Caroline until her death. Suit was filed by plaintiff on June 6, 1975.

Defendants concede in their brief that, unless the cause is barred by limitations, the allegations are sufficient to state a cause of action. They also concede that the court could infer from the petition that Caroline was unaware of the alleged fraud at the time of her death. We agree with these concessions, but note in passing that an allegation that defendants concealed the fraud is not the same as an allegation that Caroline Neihaus had not discovered the fraud.

As presented to us, the question is whether the one year limitation on commencement of suit by an administrator in Sec. 516.180 RSMo 1969 applies only where the decedent is under a disability listed in Sec. 516.170 RSMo 1969 or if it applies in any suit brought by an administrator. Sec. 516.120 RSMo 1969 provides for a five year limitation in actions for fraud. Under sub-paragraph (5) of that section, the five year period does not commence until discovery of the fraud “at any time within ten years.” This has been interpreted to mean that the statute of limitations for undiscovered fraud is fifteen years. Berry v. Dagley, 484 S.W.2d 182 (Mo.1972) [2]; Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970) [4].

Plaintiff contends the language in Sec. 516.180 “any person so entitled to sue” refers only to those persons listed in the preceding section on disabilities encompassing minority, insanity and imprisonment. Since the petition does not allege that Caroline suffered from any of these disabilities and since the petition does inferably allege that she was unaware of the fraud upon her death, plaintiff contends the five year statute did not commence to run until her death and the suit was timely.

Defendants contend that the one year limitation applies to any action which the administrator brings and since this suit was not commenced until more than a year had elapsed from the date of Caroline’s death, it is barred.

Two cases have squarely ruled this question. In both Rosenberger v. Mallerson, 92 Mo.App. 27 (1902) and Holland v. Duckworth, 539 S.W.2d 326 (Mo.App.1976), the courts held that the provisions of Sec. 516.-180 or its predecessors applied only to suits where the decedent was subject to one of the disabilities listed in the preceding section. It was noted in Rosenberger that an additional section had been inserted between the disability provision and the one year provision but that that did not alter the intent of the “so entitled to sue” provision of the one year provision. That intervening section has since been removed.

Defendants contend, however, that Ro-senberger and Holland were wrongly decided and are contrary to the only Supreme Court decision on the point, Smith v. Newby, 13 Mo. 159 (1850). We disagree. Initially, we note that the language and determination in Smith relied upon by defendants did not squarely confront the precise issue now before us or before the courts in Rosenberger and Holland. In Smith the major question to be resolved was when the statute of limitations began to run. That question was resolved contrary to plaintiffs contention. Under that determination, plaintiff’s decedent died several weeks before the expiration of the statute and suit was not brought until more than one year after his death. Only if the one year provision could have been tacked onto the end of the statutory period (not onto the death date of the decedent) would the bar of the statute have been avoided. Since the statute clearly did not provide for such eventuality, it was unnecessary for the court to determine whether the bar dropped five years after the cause of action accrued or one year after decedent’s death.

Secondly, the statute under which Smith was decided was changed in 1866 to the present language. At the time of Smith, the one year statutory provision was: “If any person entitled to bring any action in this article specified, die before the expiration of the time herein limited for the commencement of such suit, . . . .” The remainder of the statute is identical to the present statute. The disability section which immediately preceded the one year provision (as it presently does) began in the same way, which it should be noted is comparable to the present disability provision. That disability provision, except for deletion of married women, has not been changed since the Smith decision; the one year provision has been. We cannot lightly dismiss the change as defendants suggest. The pre-1866 statute appears to have made the one year period applicable to any case; the post-1866 statute appears to apply only to disability situations. The change may well have been an attempt by the general assembly to avoid the dicta of the Smith case. That the one year limitation applies only in disability cases has a logical basis. Those disabilities can have the effect of delaying the bar of the statute of limitations for lengthy periods, possibly a lifetime. It is reasonable that when the disability has ended by death an action should be promptly commenced. It is not as reasonable to shorten the statutory limitation period to as little as one year in circumstances where no delay has occurred by virtue of disability. Nor, are we persuaded that the precision with which Sec. 516.050 RSMo 1969 spells out its applicability warrants a conclusion that the general assembly intended Sec. 516.180 to cover different ground. We think it more reasonable that it was intended that similar treatment be afforded to succeeding interests in both real actions and personal actions and that Sections 516.050 and 516.180 are essentially parallel provisions. We are not persuaded that Rosenberger and Holland were erroneously decided.

Our determination in that regard answers defendants’ additional point that concealment of fraud is also a disability and the one year limitation applies to it. Sec. 516.180 applies to those disabilities, and only those disabilities, enumerated in 516.-170. Concealment of fraud is not so enumerated.

Defendants’ last argument is that the allegations concerning Caroline Nei-haus’ physical and mental condition demonstrate that she was insane and therefore disabled under Sec. 516.170. We cannot conclude that such a condition is established by the petition. That a person is old, infirm, has a weakened mind, impaired mental capacities and is subject to influence and domination by her children does not establish that she is insane. The statute of limitations is an affirmative defense. Rule 55.-08. Only if an affirmative defense is irrefutably established by the plaintiff’s petition can a petition be dismissed on that ground. International Plastics Development Inc. v. Monsanto Co., 433 S.W.2d 291 (Mo. banc. 1968). The petition does not establish that Caroline Neihaus was insane as a matter of law even if the allegations are accepted as true. The court erred in dismissing the petition.

Judgment reversed and cause remanded for further proceedings.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . 516.180 On death of person under disability, cause of action survives. — If any person so entitled to sue, die before the expiration of the time herein limited for the commencement of such suit, if such cause of action shall survive to his representatives, his execut.or or administrator may, after the expiration of such time and within one year after such death, commence such action, but not after that period.

      . We agree with defendants that in deciding the meaning of the statute we may not rely upon the titling of the sections, which is done by the revisor not the general assembly. We do believe, however, that headings and revi-sor’s catchlines may be pertinent in demonstrating how the statute has generally been read and understood. See Holland v. Duckworth, supra, [1], This is particularly true where the headings and catchlines have been essentially the same for over a century.

      . We, of course, are not deciding what effect Sec. 516.Í80 has when the delay because of disability is less than the statutory limitation.


author: ALDEN A. STOCKARD, Special Judge.

text:
    SIGNET GRAPHIC PRODUCTS, INC., Appellant, v. The FIRST NATIONAL BANK OF CLAYTON, Respondent.
    No. 37990.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 25, 1978.
    Motions for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      P. Terrence Crebs, John P. Walsh, Gallop, Johnson, Godiner, Morganstern & Crebs, St. Louis, for appellant.
    Robert C. Jones, Harold A. Tzinberg, Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff has appealed from an adverse judgment in its action against The First National Bank of Clayton to recover money lost by it when the Bank cashed checks payable to plaintiff and deposited the proceeds in an account maintained by its employees as a “welfare fund.”

Plaintiff was originally incorporated under the name of Setlich Sign Co., Inc. in 1954, and after a series of changes of name and sales of assets the present plaintiff came into corporate existence and became the owner of the business.

Since 1959 the employees of Setlich Sign Co., and its successors, maintained an unincorporated association under the name of the Setlich Sign Co. Welfare Organization (hereafter referred to as the “Association”). Its purpose was social in nature, and its funds consisted of the profits from sales made from vending machines located in the plant. The employees, as members of the association controlled the expenditures.

At no time did plaintiff contribute any money to the Association’s fund or exercise any control over it.

In 1959 the Association opened a checking account at defendant Bank under the name of “Setlich Sign Co. Welfare Organization.” A form, apparently furnished by the Bank, entitled “Authority of Lodge, Association or Other Similar Organization to Open Deposit Account,” was signed by Loretta N. Dimond, as secretary, and recited that at a regular meeting of the officers of the “Set-lich Sign Co. Welfare Organization” Eugene D. Oehlert was elected president, and Loretta N. Dimond was elected Secretary-Treasurer, and that under the rules of the Association funds on deposit to the credit of the Association could be withdrawn on the signature of either.

On April 21, 1966, Mr. Oehlert, who apparently was still president of the Association, sent a letter to the Bank enclosing a check to be deposited in the name of “Signet Graphic Products, Inc. (Welfare Organization Fund).” In the letter he stated that the “name of the new account [was] to be changed from Setlich Sign Co., Inc.” Apparently some question was raised by the Bank because four days later Mr. Oehlert sent a second letter in which he referred to the same check and gave the same instructions concerning it, but added that his signature was to be the only authorized signature. On April 26, the account card on file at the Bank was changed to show the name of the Association to be “Signet Graphic Products, Inc. Welfare Organization Fund,” and the account was given a new number; 64-109-1.

In June or July 1967 Kay German was employed by plaintiff as bookkeeper. At a meeting of the members of the Association held in September of that year she was designated as the person to “take care of the funds.” In response to a telephone call the Bank sent to her what was labeled “Authorized Signature Card.” Although the Bank had on file the previously executed form for an Association, the card sent was designated as one to be used by a .corporation. Kay German typed thereon the name “Signet Graphic Products, Inc.— Welfare Organization Fund.” There appears on the card the signatures of two persons: Marvin L. Stott who is shown to have the title of “Treasurer,” and Kay German whose title is shown to be “Bookkeeper.” The titles were typed in by Kay German, but neither person held such position with the Association. Instead, the titles shown refer to their respective positions with plaintiff.

With the signature card, the Bank also sent a printed form entitled “Resolutions of Board of Directors Re: Checking Account.” The blank spaces were filled in by Kay German, and in its material parts provided as follows:

After Mr. Stott and Mrs. German signed the signature card, the completed form containing the resolution was sent to Mr. Richard 0. Funsch, plaintiff’s secretary. He testified that he did not know of the existence of the association fund, and that Mr. Stott called him and stated that there was “a special fund * * * derived from vending machines that were on the premises, and the funds from these vending machines were used for Christmas parties and to buy flowers for sick employees, and that there had been a change in personnel or some circumstance * * * and they wanted to change the signatories on this welfare organization fund.” He further testified that Mr. Stott told him that he had had the form prepared; that he asked Mr. Funsch to sign it certifying that the people there named were the officers of the company; that Mr. Stott brought the form or mailed it to him, and he signed it and affixed the corporate seal at Mr. Stott’s request. The signature card and executed form containing the resolution were returned to defendant Bank. Mr. Funsch did not discuss the matter with Mr. Robert J. Kerdasha, the president of plaintiff, or with anyone at the Bank. Mr. Kerdasha, who was the sole director and sole stockholder of plaintiff, at no time authorized the opening of an account, or the continuation of an account for plaintiff at defendant Bank, and he had no knowledge of the existence of the employees’ association or its checking account until June or July of 1973.

Mr. Stott testified that he was “officially the treasurer” of plaintiff, but that he did “estimating and the purchasing” for plaintiff, and as an employee he was a member of the welfare association. After June 1967 and until the meeting in September when Kay German was designated to look after the fund, he signed the checks drawn on the fund. He signed the signature card with Kay German, but he stated that while it was “possible” he talked with Mr. Funsch about the resolution form, he had no recollection of having done so.

Account No. 64-109-1 remained in the name of Signet Graphic Products, Inc. Welfare Organization Fund, and it was essentially dormant until April 1971. It was at that time that Kay German began a program whereby over a period of a few years she embezzled more than $240,000.00.

Kay German testified that she was the bookkeeper for plaintiff, and that her duties consisted of “taking care of the books, payroll records, tax returns and so forth.” She did not handle the billing of clients of plaintiff, but she received all the checks from clients payable to plaintiff which she posted in the accounts receivable book. Checks that were not deposited by her in the account in defendant Bank were deposited in a New York or Evansville, Indiana bank. She also received the monthly bank statements for Account No. 64-109-1 from defendant Bank.

The monthly statements from defendant Bank prior to November 1971 carried the name “Signet Graphic Products Inc. Welfare Organization Fund c/o Mr. Lewis I. Davis.” However, Mr. Davis had left plaintiff’s employment before Kay German started to work there. For some undisclosed reason, starting with the statement dated November 18, 1971, the name carried on the account was “Signet Graphic Products, Inc. c/o Mr. Lewis I. Davis,” but the account number remained the same. Kay German testified that she did not have anything to do with bringing about this change in the name of the account, but that the statements “came in that way.” The Controller of the Bank could not explain the change except that it may have resulted when the Bank converted to its own computer system. The Bank did not produce any authorization for the change in the name of the account. At approximately the same time the printed name on the checks and on the deposit slips was changed to “Signet Graphic Products, Inc.” There was no explanation as to how this came about.

During the time that the account still carried the name of “Signet Graphic Products, Inc. Welfare Organization Fund,” Kay German took checks payable to Signet Graphic Products, Inc., and made thereon in her handwriting the following endorsement:

For Deposit Only
Signet Graphic Products
WOF
Acct # 64-109-1

After the name of the account on the Bank records was changed, the endorsements were as follows:

For Deposit Only
Signet Graphic Products
Acct # 64-109-1

The trial court entered findings of fact which in summary form included the following:

1. In 1959 an unincorporated association known as Setlich Sign Co. Welfare Organization, constituting the employees of plaintiff’s predecessor in business established a checking account with defendant Bank which was still in existence on September 20, 1967.
2. On September 20, 1967 plaintiff, by resolution of its Board of Directors, converted the unincorporated association account to a corporate account of plaintiff, even though no change was made in the name of the account and even though the account number also remained the same.
3. The “Corporate Resolutions” authorized funds to be withdrawn on the signature of either plaintiff’s treasurer or bookkeeper.
4. Defendant Bank had a right to rely on the content of said resolutions and it did so rely.
5. By virtue of the “Corporate Resolutions” and plaintiff’s office procedures, Kay German had authority to endorse and deposit into the account all checks belonging to plaintiff.
6. “Said Corporate Resolutions converting account 64 109.1 to a corporate account of plaintiff” were executed and delivered to defendant with the active participation and cooperation of plaintiff’s treasurer, secretary and bookkeeper, and defendant Bank had a right to rely on the content of said resolutions, and did so rely.
7. By virtue of the “Corporate Resolutions” Kay German had express authority from plaintiff to endorse and deposit into account 64-109-1 any and all checks belonging to plaintiff.
8. Defendant Bank acted in good faith and according to reasonable commercial standards in accepting for deposit and crediting to account 64-109-1 checks drawn to plaintiff’s order and endorsed for “deposit only” even though the payee named on the checks was “Signet Graphic Products, Inc.” and not “Signet Graphic Products, Inc. — Welfare Organization Fund,” and it further acted in good faith and in compliance with reasonable commercial standards in allowing a reprinting of checks and deposit slips deleting the name “Welfare Organization Fund.”
9. Plaintiff’s treasurer and secretary did not intend to authorize Kay German to deposit cheeks drawn to the order of plaintiff into account 64-109-1, but the authority to do so was expressly given to her by the resolution contained in the form supplied by the Bank. The misplaced trust contributed to the embezzlement of plaintiff’s fund, as did the office procedure of plaintiff relative to the handling of billings, books of account, and checks for payment of accounts receivable of plaintiff.

We have here a “comedy of errors” with tragic results.

Plaintiff vested Kay German (a previously convicted embezzler) with authority to deal with its daily transactions, but without adequate supervision or control, and in a manner not consistent with acceptable business practice. She made all bank deposits and endorsed all checks received by plaintiff, but plaintiff negligently failed to establish supervisory control over or investigate her activity. The Bank, although knowing or being charged with knowledge that account 64-109-1 was that of an association of employees, wrongfully, or at least negligently, sent to Kay German a signature card and a form for resolution designed for use by a corporation in establishing an account at the Bank. Kay German then filled in the blank places in the corporate form using the name of plaintiff as the depositor of an account under the name of “Signet Graphic Products, Inc. — Welfare Organization Fund,” and authorizing the treasurer and bookkeeper of plaintiff, not of the Association, to write checks on the account. By virtue of the resolution set forth in the corporate form furnished by the Bank any officer or agent of plaintiff was authorized to endorse for deposit in the described account any and all checks belonging to plaintiff, and the endorsements could be in writing or by stamp and without designation of the person so endorsing. The secretary of plaintiff then signed the form containing the resolutions, affixed the seal of plaintiff, and the completed form was returned to the Bank. Subsequently the Bank, without justification and certainly without any explanation, changed the name of the account to “Signet Graphic Products, Inc.,” leaving off “Welfare Organization Fund,” and then permitted or caused checks and deposit slips to carry only that name. (While this appears to have been negligence on the part of the Bank, we fail to see how it in any way contributed to the loss sustained by plaintiff.) Finally, the embezzlement escaped detection until Kay German confessed to her private attorney who advised plaintiff.

Account No. 64-109-1 was that of the employees’ Association, and neither the “Corporate Resolutions” nor the change of the name of the account by the Bank on its records and on the checks and deposit slips changed its status. But there is no claim that any monies of the Association were lost by reason of the acts of Kay German and the Bank. Also, there was in fact no meeting of the Board of Directors of plaintiff on September 20,1967, as recited in the “Corporate Resolutions.” Mr. Kerdasha owned all the stock of plaintiff and was its sole director. He had no knowledge of the existence of the bank account for the welfare fund, but the plaintiff here is the corporation; not Mr. Kerdasha as an individual.

We do not understand what was meant by the finding that plaintiff converted the then existing unincorporated association account to a corporate account of the plaintiff. The endorsements made by Kay German were not forgeries in the usual meaning of that term. § 400.3-419 RSMo 1969. She had authority to endorse for deposit all checks payable to plaintiff. The account remained that of the Association to which the officers of plaintiff authorized funds of plaintiff to be deposited. However, we agree with the result reached by the trial court for the reasons hereafter stated.

As noted, plaintiff is a corporation, and as such it acts only through its authorized officers, agents and employees. Peak v. W. T. Grant Company, 386 S.W.2d 685 (Mo.App.1964); Presley v. Central Terminal Co., 142 S.W.2d 799 (Mo.App.1940). There is no contention that Mr. Stott was not the treasurer or that Mr. Funsch was not the secretary of plaintiff, or that either did not possess and exercise the usual functions and duties of his office. Also, Kay German was the bookkeeper of plaintiff, and an agent of plaintiff in that her regular duties included the endorsement for deposit of all checks payable to plaintiff. Therefore, when the Bank received the completed corporate form of resolutions, signed and sealed by the secretary of plaintiff, even though that form had been improperly furnished to Kay German by the Bank, it was entitled to rely on the apparent authority therein expressed, Willsey v. W. C. Porter Farms Company, 522 S.W.2d 29 (Mo.App.1975); S. S. Silberblatt, Inc. v. Seaboard Surety Company, 417 F.2d 1043 (8th Cir. 1969), absent some circumstance which would result in such reliance to be contrary to the usual and reasonable banking practices, and there is substantial evidence that such reliance was not contrary in that respect.

The resolution expressly authorized “any officer or agent” of plaintiff to endorse for deposit in Account No. 64-109-1 all checks for the payment of money to plaintiff, and it expressly directed the Bank to honor and pay any and all checks drawn on that account when signed by the treasurer or bookkeeper of plaintiff. We do not find that the Bank did anything pertaining to Account No. 64-109-1 that it was not specifically authorized or directed to do by officers and agents of plaintiff who were clothed with apparent authority.

We conclude that the judgment of the trial court is supported by substantial evidence, and that it does not erroneously declare or apply the applicable law.

The judgment is affirmed.

DOWD and SNYDER, JJ., concur.


author: STEWART, Presiding Judge.

text:
    Dennis SCHEIBEL, Appellant, v. Betty HILLIS, Respondent.
    No. 38981.
    Missouri Court of Appeals, St. Louis District, Division 2.
    July 25, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Joyce P. Hayes, Hayes & Hayes, St. Louis, for appellant.
    Kemper R. Coffelt, St. Louis, for respondent.
   STEWART, Presiding Judge.

This is the second appeal of this case. This appeal has its origin in the proceeding had prior to the first appeal. A review of those proceedings is necessary to our consideration on this appeal. Plaintiff brought an action for personal injuries against Betty Hillis (Hillis) and Richard Joyner (Joyner). The trial court sustained Hillis’ separate motion to dismiss for failure to state a claim upon which relief could be granted. The court did not enter an order making the dismissal a final judgment for the purpose of appeal. Thereafter default and inquiry was granted against Joyner and subsequently a hearing was had and default judgment was entered against Joyner in the sum of $250,000.00. Plaintiff then appealed from the judgment attacking that part of the judgment dismissing Hillis from the action.

In substance, plaintiff’s petition alleged that plaintiff who was visiting in the home of Hillis was shot in the right leg by Joyner with a shot gun owned by Hillis. The petition charged that Joyner willfully and maliciously shot plaintiff resulting in the loss of plaintiff’s right leg. As against Hillis it was alleged that she kept the loaded shot gun, and that its presence and location were known to Joyner; that plaintiff had knowledge that Joyner was a violent and dangerous person who had committed other acts of violence and who had made threats; that she failed to warn plaintiff of the danger; that she had notified Joyner of the presence of the gun knowing he would be likely to use it.

On the original appeal the Supreme Court in Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976) held that plaintiff’s petition stated a cause of action and remanded the cause to the trial court without further instructions. The Supreme Court was cognizant of the fact that the default judg-merit in the sum of $250,000.00 had been entered against Joyner. See Scheibel v. Hillis, supra, at 287 n. 1.

Upon remand Hillis, by leave of court, filed another motion to dismiss. Hillis’ motion alleged that after the court had grant-' ed her original motion to dismiss in March of 1973 plaintiff proceeded to have default judgment entered against defendant, Joyner, and proceeded to have damages assessed and final judgment was entered on August 13, 1973; that the judgment so entered against Joyner foreclosed plaintiff from pursuing his claim against defendant because “to permit [him] to so proceed would permit him to possibly obtain two final judgments in direct violation of Rule 74.08.” The trial court sustained Hillis’ motion.

Although many points have been briefed the primary issue to be determined is whether the judgment against Joyner alone was a final judgment after remand by the Supreme Court.

In March 1973 the trial court dismissed plaintiff’s petition for failure to state a claim. No disposition was made of plaintiff’s claim against Joyner who was then in default. The court did not designate its order as final for the purposes of appeal under Rule 81.06. It follows that plaintiff could not have taken an appeal from the order dismissing plaintiff’s claim against Hillis. Scholz Homes, Inc. v. Clay Wideman & Sons, Inc., 524 S.W.2d 896 (Mo.App.1975).

It is argued that plaintiff should have taken an interlocutory default judgment against Joyner in accordance with Rule 74.08 and then proceeded against Hil-lis. Plaintiff could not have proceeded in this manner because Hillis’ motion to dismiss had been sustained so that no proceeding by way of trial could have been had. Neither could he have proceeded by way of appeal because an interlocutory decree by its nature is not appealable, unless so designated. State ex rel. Eichorn v. Luten, 561 S.W.2d 435 (Mo.App.1978). Before plaintiff could proceed against Hillis by way of appeal the court was required to dispose of all parties and all issues. Dotson v. E. W. Bacharach, Inc., 325 S.W.2d 737, 738 [2] (Mo.1959). An interlocutory decree would not have disposed of the issue of damages. Before plaintiff could proceed against Hillis by way of appeal a final judgment disposing of the issues of liability and damages had to be entered against Joyner. This would have been required whether the proceeding against Joyner was by default or by adversary proceeding. A judgment as to one of multiple defendants is not a final appealable order. Massey v. Hamilton, 564 S.W.2d 618, 619 (Mo.App.1978). Upon the judgment being entered against Joyner in the sum of $250,000.00 all parties and issues were disposed of and the judgment became final for the purpose of appeal.

Hillis seeks to fault plaintiff for failing to request that the order dismissing plaintiff’s petition as to Hillis be designated an appealable order. The parties have no right to have that designation made. Whether the order shall be designated a final judgment for purposes of appeal is a matter solely within the discretion of the trial court. Dotson, 325 S.W.2d at 739. Inasmuch as the court, in the exercise of its discretion, did not “in the judgment entered” designate the dismissal of plaintiff’s petition as an appealable order plaintiff could not obtain such designation as a matter of right.

Upon appeal from the final judgment the Supreme Court reversed that portion of the judgment of the trial court that dismissed plaintiff’s action against Hillis. The order of the Supreme Court on the initial appeal of this case was “reversed and the cause remanded.” Scheibel v. Hillis, supra, at page 290.

It has long been said that a cause reversed and remanded without further directions is reversed for a new trial. To paraphrase Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810, 818 (banc 1912), what could the judgment of the Supreme Court reversing and remanding without more mean except that it refused to give judgment there for Hillis and, what is more, refused to direct the trial court to give such judgment, but opened the case generally. It has also been said that an appellate court will not grant a new trial where a party can derive no benefit. Furguson v. Turner, 7 Mo. 497, 498 (1842).

In this case the Supreme Court was aware that judgment had been entered against Joyner, a" co-defendant, by default in the sum of $250,000.00. The case could only be remanded for a new trial as to plaintiff’s action against Hillis. There was no error found or alleged as to the judgment against Joyner. To answer the primary issue no final judgment was in existence at the time this case was ruled by the Supreme Court and remanded to the trial court. There was an interlocutory judgment against Joyner and plaintiff’s cause against Hillis remains unresolved.

The matter to be determined is what issues should be tried upon remand. As Hillis contends there can only be one judgment for damages in the same case. This is true whether the judgment is by way of trial or by default. In Hoelzel v. Chicago R.I. & P. Ry., 337 Mo. 61, 85 S.W.2d 126, 134 (Mo.1935), the court said, “[a] defendant should not be given a second trial of an issue where there was no error in the first trial of that issue.” In most of the cases where this principle has been followed the defendants have participated in all stages of the trial.

In the case before us Hillis had been dismissed from the case before the hearing on the measure of damages and she was not notified of the hearing. She was not an aggrieved party and could not appeal from the judgment which was against Joyner and in her favor. Allstate Insurance Co. v. Northwestern National Insurance Co., 539 S.W.2d 118 (Mo.App.1976). Equitable principles would dictate that Hillis should have a right to contest the issue of damage. Hoelzel recognized that a general rule would not cover the question of what issues should be tried upon remand. It said at p. 134, “There is no set rule which should govern this question in every case against two or more joint tort-feasors.”

Somewhat akin to this case is Rosenkoetter v. Fleer, 155 S.W.2d 157 (1941), where plaintiff had judgment against two defendants in the sum of $10,000.00. Both defendants appealed, however defendant Rueck-holdt’s appeal was dismissed because it was not perfected. The court reversed that portion of the judgment with respect to the other defendant because of error in instructions and because the judgment was excessive. The court in Rosenkoetter remanded the cause with directions to hold in abeyance the verdict as to Rueckholdt’s liability pending a new trial on the other defendant’s liability and on the damages to be assessed against both defendants. By Hil-lis’ logic the judgment in Rosenkoetter would have become final as to defendant Rueckholdt upon a finding of error against the other defendant and plaintiff would have been precluded from pursuing his remedy against the defendant who had obtained a reversal of the judgment against him and a remand. The same would be true in the case of an erroneously directed verdict against one of multiple defendants where a judgment is had against other defendants in the cause. This position is untenable.

Fairness dictates that plaintiff have his day in court against Hillis and that Hillis have the right to defend upon the issue of damages.

The opinion of the Supreme Court in Scheibel v. Hillis, supra, dictates the solution adopted in Rosenkoetter v. Fleer and in Yarrington v. Lininger, 327 S.W.2d 104 (Mo.1959). The judgment dismissing plaintiff’s petition is reversed. It is apparent that the effect of the opinion of the Supreme Court is that the judgment as to the liability of Joyner be held in abeyance. A trial is to be held as to the liability of Hillis and on the amount of damages as to both defendants.

REINHARD and STEPHAN, JJ„ concur.

      . “When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered.”