author: REINHARD, Judge.

text:
    Patricia Ann HILL and Harold Hill, Plaintiffs-Appellants, v. Gary Paul BARTON, Defendant-Appellant.
    Nos. 38891, 38867.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.

      Donald S. Hilleary, Clayton, Keith W. Hazelwood, St. Charles, Wuestling & James, Richard C. Wuestling, III, St. Louis, for plaintiffs-appellants.
    Kortenhof & Ely, Ben Ely, Jr., Brent W. Baldwin, St. Louis, for defendant-appellant.
   REINHARD, Judge.

This is a suit growing out of an intersection collision in which plaintiffs sought damages for personal injuries, property loss, and loss of services, and defendant counterclaimed for property damage. A jury trial resulted in a verdict and judgment against plaintiffs on their claims and against defendant on his counterclaim. All parties appeal.

On August 2, 1974, plaintiff Patricia Ann Hill was driving an automobile in a southerly direction on Lindbergh. She moved into the left-turn lane near Lindbergh’s intersection with Pershall, intending to turn left and to proceed in an easterly direction on Pershall. Defendant Gary Paul Barton was driving an automobile in a northerly direction on Lindbergh, near its intersection with Pershall. The intersection was controlled by an automatic traffic light sequence. Southbound traffic on Lindbergh was permitted to turn left onto Pershall from a left-turn only lane at a time when the light controlling northbound traffic on Lindbergh was red. The testimony of the parties was in conflict as to which phase of the traffic light was in effect at the time their automobiles collided in the intersection.

According to Patricia Hill two automobiles were ahead of her when she pulled into the left-turn lane in preparation for the turn. All three automobiles were stopped on a green light, awaiting the left-turn arrow. Plaintiff Patricia Hill testified that the green arrow appeared, and the two vehicles ahead preceded her into the intersection and completed the turn onto Pers-hall.

Defendant testified the signal controlling northbound traffic was green as he neared the intersection with Pershall, traveling in the median or inside northbound lane; he had intended to proceed through the intersection north on Lindbergh. When he was some distance south of the intersection, he observed a southbound vehicle turning left onto Pershall, but it was sufficiently far ahead as to require no braking or other avoidance action. He stated the traffic signal changed from green to yellow shortly after he entered the intersection, and while he was passing Pershall Road, plaintiff entered his path.

Plaintiffs submitted in the disjunctive two issues on primary negligence, signal violation or failure to keep a careful lookout, and two issues on humanitarian negligence, failure to warn or to stop. Defendant submitted two issues on his primary negligence counterclaim, signal violation or failure to keep a careful lookout. Contributory negligence instructions as to plaintiffs’ primary negligence instructions and defendant’s counterclaim instruction were submitted.

Plaintiffs argue several points of error. Initially, we consider their contention that the trial court committed prejudicial error in permitting defendant to raise in closing argument the issue of contributory negligence as an absolute defense to plaintiffs’ claims. Inasmuch as plaintiffs submitted their case on both primary and humanitarian negligence, limited discussion of plaintiff Patricia Hill’s alleged contributory negligence as the issue pertains to and effects the claim of primary negligence would be permissible and appropriate. The matter of contributory negligence has no bearing on plaintiffs’ humanitarian submission, however.

We view the argument as a whole in determining whether certain comments were improper. Moreover, we note that when, as here, distinct legal issues are involved, it was the obligation and duty of the attorneys in their closing arguments to distinguish between the issues about which they are commenting when their comments were appropriate to one issue and not appropriate to the other. Jones v. Gooch, 453 S.W.2d 653, 654 (Mo.App.1970).

In his closing argument, defense counsel made several references to the question of contributory negligence, but on only one occasion did plaintiffs object, which objection was overruled. Early in defense counsel’s argument the following occurred:

Mr. Ely:
When we started this trial last Wednesday and selected you as jurors, I asked all of you if you could follow the presumption of law here [that] before any party here is entitled to recover damages . you would have to prove [sic] that the accident was the other person’s fault under the Instructions read to you by Judge Ruddy. Just because your car is damaged in an accident, in other words, that does not mean you have an automatic right to recover against the other person who is in it. They must prove Gary and Mr. and Mrs. Hill’s accident, under these Instructions, was the other person’s fault before they are entitled to recover. And, if they don’t do that, or if you believe under these instructions both are to blame, then your verdict should be against both of them. (Emphasis added.)
‡ s(c ¡fe ⅜ ⅜ ⅜
MR. HILLEARY: Objection, it doesn’t state that.
THE COURT: Overruled. The Jury will be guided by the instructions.

About midway through his closing argument, defense counsel made the following comments with specific reference to plaintiffs’ submission of humanitarian negligence:

Take these instructions with you to the jury room and I’m sure you will read them carefully . . . Seven (7) and Eight (8) [plaintiffs’ humanitarian submissions] say basically that under our law a person who had the last chance, really has the last chance, is supposed to avoid an accident. This instruction tells you the verdict could be for plaintiff if Gary had time to avoid this accident even though Pat Hill ran a red light, .

But toward the end of his closing argument, attorney for the defendant stated:

Now, you will fill out this verdict form if you felt no one was entitled to recovery. Both Pat Hill and Gary, and that under the instructions both are to blame and both are at fault, then neither are [sic] entitled to recover against the other. And this is the verdict that none of the lawyers are [sic] asking for but the one (1) you should fill out if you feel neither party should recover from the other and both are at fault. (Emphasis added.)

Determining the bounds of legitimate argument and the effect of allegedly prejudicial argument is especially troublesome in multiple-claim litigation involving both primary and humanitarian submissions. The permissible field of jury argument is broad, though, and the regulation of argument is a matter largely within the discretion of the trial judge. “The trial court possesses a coign of vantage which best permits it to observe the proceedings and judge the prejudicial force exerted on the jury by counsel’s comments.” Schmid v. Langenberg, 526 S.W.2d 940, 946 (Mo.App.1975); Carrel v. Wilkerson, 507 S.W.2d 82, 85 (Mo.App.1974); White v. Gallion, 532 S.W.2d 769, 771 (Mo.App.1975). The proposition was succinctly stated in Carrel v. Wilkerson, supra at 86:

While a trial court, because of its coign of vantage of the proceedings and their effect on the jury, has a large discretion in permitting, restraining and purging final argument . . ., there is no room for the exercise of judicial discretion on an issue of law.

See also Jones v. Gooch, 453 S.W.2d 653, 655 (Mo.App.1970).

We hold defense counsel misstated the law when he told the jury, without qualifications, that neither party could recover if the jury found both were at fault for the accident. The import of these statements was that if plaintiff and defendant were both negligent, neither was entitled to a favorable verdict on his claim against the other. Since plaintiffs submitted on both primary and humanitarian negligence, and defendant submitted only on primary negligence, the statements of defense counsel were correct only insofar as they applied to the primary submissions, but incorrect as regards plaintiffs’ humanitarian submission. The question of Patricia Hill’s negligence has absolutely no relevance to plaintiffs’ humanitarian claim, yet the jury might have been led to infer otherwise based on defense counsel’s statements.

In retort, defense counsel argues: Given the fact that the record itself indicates that the jury was constantly referred to the instructions, both by the Judge and by the defendant’s counsel, [In each instance, counsel prefaced his statements with “under these (the) instructions . . .”] and the additional fact that the trial judge, in overruling plaintiffs’ request for a new trial, of necessity, determined that the argument was not prejudicial, defendant respectfully submits that contributory negligence was, in fact, not injected as a defense to humanitarian negligence.

We disagree. The phrase “under these [the] instructions” did not refer to specific numbered instructions, and it did not refer specifically to the primary submissions. The phrase was overly general in tenor and was as much as to say, “Under the law of this case . . . .”

The court overruled an objection to the statement, “If under these instructions you find that both are at fault, then neither [is] entitled to recover and then your verdict should be against both of them.” The court admonished the jury to “be guided by the instructions.” The inescapable inference to be drawn by the jury was if plaintiff was eontributorily negligent, she could not recover under any of the theories of negligence on which she submitted. This clearly is a misstatement of the law. And “[i]f the trial court overrules the objection [to a misstatement], thereby condoning the misstatement, reversible error is almost inevitable.” Halford v. Yandell, 558 S.W.2d 400, 412 (Mo.App.1977). We recommend Halford for its thorough collection and discussion of Missouri appellate cases reviewing questions of misstatements of law.

Arguably, the misleading and prejudicial effect of these statements was minimized when defense counsel, referring specifically to the issue of humanitarian negligence, stated at another point in his argument, “This instruction tells you the verdict could be for plaintiff if Gary had time to avoid this accident even though Pat Hill ran a red light . . . However, after this statement the defense counsel stated, “that under the instructions both are to blame and both are at fault, then neither are entitled to recover against the other.” Counsel in effect explained to the jury that plaintiff could recover under the humanitarian instruction despite negligence on her part. Later in his argument, however, counsel again misstated the law. Thus we cannot say the reference to the humanitarian instruction negated the prejudicial impact of misstatements made elsewhere.

The trial court was required to prohibit or correct the improper argument, and failure to do so mandates reversal of the judgment below on plaintiffs’ claims.

Plaintiffs challenge Instruction No. 6, given at the request of defendant. The instruction submits contributory negligence as a defense to plaintiffs’ primary submissions under Instruction Nos. 4 and 5. It reads:

Your finding under Instruction No. 4 and 5 must be for defendants [sic] on the claims of both Patricia Hill and Harold Hill if you believe:
First, plaintiff Patricia Hill either: violated the traffic signal, or failed to keep a careful lookout; and
Second, plaintiff Patricia Hill’s conduct in any one or more of the respects submitted in paragraph First, was negligent; and
Third, such negligence of plaintiff Patricia Hill directly caused or directly contributed to cause any damages plaintiffs may have sustained.

The instruction as submitted complies with MAI 32.01, Contributory Negligence — Generally, and is correct and complete. Since it submits two acts of negligence in the disjunctive, there must be substantial evidence tending to prove each of the acts submitted. Notes on Use, MAI 17.02; Wolfe v. Harms, 413 S.W.2d 204, 210 (Mo.1967); Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 609 (Mo.App.1971).

Plaintiffs argue the instruction was erroneous because there was insufficient evidence of plaintiff Patricia Hill’s failure to keep a careful lookout. They do not chai-lenge the sufficiency of evidence of violation of the traffic signal.

Plaintiff testified that before initiating the left turn, she looked down the northbound lanes to determine whether there was oncoming traffic, but that her view was partially obstructed by a car parked in the northbound lane closest to the median. She testified she could have seen three-fourth’s of a block, if the ear had not been parked there. Defendant said no car was standing in the northbound lane in which he was traveling. Plaintiff further testified that she was traveling approximately 5 miles an hour, attempted to brake when she saw defendant’s car traveling northbound, and had come to a complete stop before the two cars collided. When she first saw defendant, he was approximately 45 feet from her, but she claims she saw him at all times while he was in the intersection. Defendant testified that he was traveling at a speed of 35 to 40 miles an hour.

The rule is well established that the alleged negligent failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle in time thereafter to have taken precautionary action. O’Neill v. Claypool, 341 S.W.2d 129 (Mo.1960). Where failure to keep a careful lookout forms the basis of a contributory negligence defense, “additional evidence was necessary from which the jury could find that plaintiff’s failure to keep a careful lookout was a proximate, contributing cause of the collision.” Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970). The mere looking does not fulfill one’s duty to keep a careful lookout. A person is required to look in such an observant manner as to enable him to see what one in the exercise of the highest degree of care could and should have seen. Rickard v. Pratt, 459 S.W.2d 13 (Mo.App.1970). In determining whether there is substantial evidence to support the instruction, we view the evidence and all reasonable inferences therefrom from the standpoint most favorable to the defendant. Corbin v. Wennerberg, 459 S.W.2d 505 (Mo.App.1970).

From conflicting testimony, the jury could have found that no car was parked in the northbound median lane obstructing plaintiff’s view to the south. Although there was no evidence as to the length of a block, a block, when used to express a measurement of distance, is approximately 300 feet. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73 (1951). Therefore, the jury could conclude that the plaintiff could have seen defendant when he was approximately 225 feet away. This separation, it could reasonably be concluded, would have afforded plaintiff ample time to see that which was plainly visible and to have taken effective precautionary action. Yet plaintiff testified defendant was at a distance of approximately 45 feet when she first observed him. A jury could conclude she did not see defendant’s automobile sooner because of her failure to keep a careful lookout and that she therefore was unable to bring her own automobile to a stop sooner than she did and to thereby avoid the collision.

Plaintiff, contends, however, that defendant’s presentation of the case urges facts so conflicting and contradictory that they cannot be deemed substantial evidence. Much of the testimony of both parties consisted of estimates of the relative speeds, distances and locations. As a general rule, parties are not bound by their own estimates of speed, distances, and location. Baldwin v. Atchison, Topeka & Santa Fe Railway Co., 425 S.W.2d 905, 911 (Mo.1968).

It is true that where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, a submissible case is not made. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 (1933). But this is not the ease here. Defendant could rely upon his own testimony as well as that of plaintiff to produce sufficient evidence to warrant submission of failure to keep a careful lookout. There was substantial evidence adduced to permit the submission of plaintiff’s failure to keep a careful lookout.

Plaintiffs assert further that Instruction No. 6 was erroneous because it allowed the jury to render a verdict in favor of defendant on all of plaintiffs’ claims, including their humanitarian submission, if plaintiff Patricia Hill was con-tributorily negligent. Plaintiffs point to the first clause of the instruction, which states: “Your finding under Instruction No. 4 and 5 must be for defendants [sic] on the claims of both Patricia Hill and Harold Hill if you believe: . . . .” (Emphasis added.) They argue the word “finding” is synonymous with “verdict,” citing Black’s Law Dictionary, 3d ed., and Webster’s New World Dictionary, and suggest that the jury is incapable of discerning the important distinction in the meanings of these words.

As previously noted, Instruction No. 6 complies in all respects with MAI 32.01. Notes on Use to MAI 32.01 advise that when plaintiff submits both primary and humanitarian negligence, defendant’s contributory negligence instruction must begin with, “Your finding . . . .” rather than, “Your verdict . . . .”, and must include a cross reference to plaintiffs’ primary verdict directing instruction. Instruction No. 6 meets these requirements. The substitution of “finding” for “verdict” in MAI 32.01 is “to make it clear that the jury is not dealing with the ultimate determination of the case but only with one theory of recovery.” Notes on Use, MAI 32.01. So too, the reference in Instruction No. 6 to Instruction Nos. 4 and 5 (plaintiffs’ primary verdict directors) was intended to, and presumably did, inform the jury that the instruction had application only to plaintiffs’ claim of primary negligence.

The “Notes on Use” to MAI should be “religiously followed,” Ronan v. Reidel, 510 S.W.2d 762, 763 (Mo.App.1974), citing Hunter v. Norton, 412 S.W.2d 163, 166 (Mo.1967), and failure to so comply may render an instruction fatally defective. Such was the holding of the court in Ronan, where defendant’s contributory negligence instruction was amended to include reference to plaintiffs’ primary verdict director, but was not amended with the substitution of the word “finding” for “verdict”. Plaintiffs’ contention here is without merit.

Plaintiffs’ next point is equally without merit. They challenge Instruction No. 2, the burden of proof instruction, on the grounds it implies to the jury that plaintiffs’ contributory negligence is a complete defense to plaintiffs’ claims, including their humanitarian submission. In pertinent part, the instruction reads:

The burden is upon plaintiffs to cause you to believe the propositions necessary to support their claims against defendants. The burden is upon the defendants to cause you to believe the propositions necessary to support their defense that plaintiff Patricia Hill was contributorily negligent as submitted in Instruction No. 6. The burden is upon defendant Gary Barton to cause you to believe the propositions necessary to support his counterclaim against Patricia Hill. The burden is upon the plaintiff Patricia Hill to cause you to believe the propositions necessary to support her defense that defendant Gary Barton was contributorily negligent as submitted in Instruction No. 12.

The submitted instruction complies with MAI 3.01 and the applicable Notes on Use thereto, and therefore is presumed to be proper. It specifically refers to Instruction No. 6, defendant’s contributory negligence instruction, which in turn specifically refers to Instructions No. 4 and 5, plaintiffs’ primary verdict directors. We cannot conclude the burden of proof instruction, containing the required cross reference to defendant’s contributory negligence instruction, misled the jury and caused it to conclude that contributory negligence on the part of Patricia Hill was a defense to any claim other than the claim of primary negligence.

In support of his appeal from the adverse judgment on his counterclaim, defendant argues the trial court erred in giving instructions to the jury which submitted the issue of failure to sound a warning as contributory negligence, barring defendant from recovery on his counterclaim, since there was insufficient evidence to support the submissions. Defendant does not challenge the sufficiency of evidence of failure to stop as submitted under the same instructions.

The verdict director on defendant’s counterclaim provided in pertinent part as follows:

Your verdict must be for defendant Gary Barton on defendant Gary Barton’s counterclaim for damages if you believe:
First, . . . and
Second, . . . and
Third, . . .
unless you believe defendant Gary Barton was negligent as submitted in Instructions 7 or 8 or 12.

We are concerned in particular with Instructions 7 and 8, plaintiffs’ humanitarian submissions, which in pertinent part provide:

Your verdict must be for plaintiff, Patricia Hill (Harold Hill), on her (his) claim for damages if you believe:
First, . . . and
Second, . . . and
Third, at the moment when defendant Gary Barton first knew or could have known of [plaintiff’s] position of immediate danger, defendant Gary Barton still had enough time so that by using the means available to him and with reasonable safety to himself and all others by using the highest degree of care he could have avoided injury to the plaintiff Patricia Hill by sounding a warning or stopping and,
Fourth, defendant Gary Barton negligently failed to so sound a warning or stop, and
Fifth, .... (Emphasis added.)

Because defendant’s verdict director on the counterclaim cross-references to Instructions No. 7 and 8, the latter have the effect of instructions on contributory negligence. Defendant does not challenge the use of humanitarian negligence as a defense and we consider only defendant’s contention that the instructions are not supported by the evidence. Instructions must be supported by the evidence, and when, as here, the instruction states more than one element of negligence in the disjunctive, there must be substantial evidence tending to prove each element.

Before we review the evidence as it applies to Instructions No. 7 and 8, it is appropriate to first review the principles of humanitarian negligence. The basic inquiry in a humanitarian case is whether plaintiff can demonstrate that he was in a position of imminent peril, or as denominated in MAI, immediate danger of being injured. When such a situation is found to exist, the humanitarian doctrine seizes upon the situation then in effect and blots out primary or antecedent negligence. It imposes a duty on the other party to thereafter exercise the required degree of care to avoid the threatened injury. The duty of the operator to act does not commence until the endangered person is actually in the other person’s path or so close to it that it is apparent the operator will not stop before reaching it. The position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it. When a plaintiff is in a position of imminent peril, it is a question for the jury under all the evidence.

The zone of imminent peril is always widened considerably beyond the immediate path of a moving vehicle by the obliviousness of the person approaching the path. This zone commences and the duty of a driver of a moving vehicle begins when he saw, or could have seen by the exercise of the highest degree of care, that the person approaching the path of his vehicle was oblivious to the danger and was intent on continuing across his path. To widen the zone, there must be both actual obliviousness and the reasonable appearance of obliviousness. Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W.2d 540, 547 (1950); Findley v. Asher, 334 S.W.2d 70, 73 (Mo.1960).

When a humanitarian case is based upon failure to warn, the plaintiff must show more than he would have to under a humanitarian case based upon a failure to swerve, slacken speed, or stop. The duty to warn presupposes a timely cooperative action by plaintiff to heed the warning and escape injury. Thus plaintiff must show that defendant had sufficient time to sound a warning and that plaintiff had sufficient time after hearing the warning to free himself of the peril. Hill v. Boling, 523 S.W.2d 867, 872 (Mo.App.1975).

Applying these principles to the evidence in this case we believe the plaintiff made a submissible case of failure to warn under the humanitarian doctrine.

Plaintiff testified that she could not see the defendant because her view was partially obstructed by a car parked in the northbound lane and that she first saw defendant when he was 45 feet from her. Defendant denies the existence of the automobile which plaintiff says obstructed her view. He testified that he saw her automobile from the time it started forward into the intersection.

A jury could have found that because of the location and angles of the automobiles, including the parked vehicle, defendant could have seen that the plaintiff was oblivious to him. There was evidence of both actual obliviousness and the reasonable appearance of obliviousness. This widened the zone of imminent peril.

Plaintiffs argue a jury could conclude that plaintiff Patricia Hill entered the position of immediate danger immediately upon entering the intersection. We disagree. Plaintiff Patricia Hill was stopped in the southbound left-turn lane immediately before entering the intersection. There is no evidence her car’s left-turn signal was on. While the pavement of the southbound left-turn lane is clearly marked with white arrows designating it as a left turn only lane, the lane continues south of the intersection. Thus to a motorist traveling north on Lindbergh, it would not necessarily be obvious that a motorist standing in the southbound left turn lane intended to make a left turn. Prior to the actual initiation of the left turn, defendant could not reasonably have known plaintiff Patricia Hill was oblivious to the approach of defendant’s vehicle and intent on continuing into his path. Thus he had no duty to take action anytime prior to the moment plaintiff Patricia Hill began her turn to the left and accelerated forward. Patricia Hill marked on Exhibit A with a green line her location from the time she entered the intersection to the point where she first observed defendant. Exhibit “A” was drawn to scale, and it can be determined from the exhibit that she had clearly made her turn when she was 30 feet from the point of collision. Plaintiff’s testimony indicated that she was accelerating forward at all times in the intersection. Although plaintiff’s cross-examination testimony is somewhat confusing, her testimony as to the line constitutes substantial evidence. We find that a jury could have found that the zone of peril began when plaintiff was 30 feet from the point of collision and that defendant had a duty to take action at this point.

To determine if a warning would have been effective we consider the evidence most favorable to plaintiffs’ submission. The plaintiff was traveling 5 miles per hour (7½ feet per second) and defendant was traveling 35 to 40 miles per hour (52½ to 60 feet per second). When plaintiff was 30 feet from the collision, defendant was 210 to 240 feet from the collision. The court can take judicial notice that the normal reaction time is ¾ of a second. See Shelton v. Brumer, 449 S.W.2d 673, 677, fn. 4 (Mo.App.1969). Allowing for the reaction time of ¾ of a second for defendant to sound the warning and ¾ of a second for the plaintiff to react to the horn, at the time plaintiff would have responded to defendant’s warning, she would have traveled between 11 and 12 feet or to a point 18 feet from the point of collision. Traveling at 5 miles per hour the plaintiff could have reasonably been expected to stop her automobile before reaching the path of defendant’s automobile. The court committed no error on this point.

Defendant argues the court erred in giving Instruction No. 12, plaintiffs’ contributory negligence instruction, because there was insufficient evidence to support submission of defendant’s failure to keep a careful lookout. The lookout issue was submitted with violation of a traffic signal, in the disjunctive, but defendant does not challenge evidence of the latter. As stated earlier, when an instruction submits two acts of negligence in the disjunctive, there must be substantial evidence of each of the acts submitted.

Viewing the record most favorably to plaintiffs, evidence was presented that plaintiff Patricia Hill began to make a left turn and entered one or both of the northbound lanes. Meanwhile, defendant was traveling in the curb or outside northbound lane at a speed of 35-40 miles an hour. The two northbound lanes were each 12 feet wide, and the point of collision was at least 3-4 feet inside the curb lane. Plaintiff testified that when she first saw defendant he was approximately 45 feet away. She was near or on the northbound center line. According to plaintiff’s testimony she traveled at least 12 feet, across the median or inside northbound lane, to the point where plaintiff first observed defendant 45 feet away. Because defendant was traveling at least 7 or 8 times the speed of plaintiff, the jury could reasonably conclude defendant moved a distance of 96 feet while plaintiff moved a distance of 12 feet; and that from a distance of approximately 141 feet (96 + 45), defendant should have been able to see plaintiff in' time to have taken precautionary measures.

Indeed, defendant estimated he could have stopped within 30-35 yards. The plaintiff, Patricia Hill, testified that the defendant told her that he did not see her. We hold there was substantial evidence to warrant submission of defendant’s failure to keep a careful lookout.

We have examined defendant’s other allegations of error and find no prejudicial error.

Reversed and remanded as to plaintiffs’ claims. Affirmed as to defendant’s counterclaim.

STEWART, P. J., and STEPHAN, J., concur.

      . Defendant’s brief stated:
      Defendant-appellant contends that the trial court erred in giving Instructions 7 and 8 to the jury, in that there was insufficient evidence of failure to sound a warning as contributory negligence under the humanitarian doctrine to warrant that issue’s submission. The evidence presented at trial failed to support these instructions, and defendant-appellant’s motion for a new trial should have been granted.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Earsel Larry JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. 40110.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.

      Gary H. Sokolik, Perry, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant Earsel Larry Johnson was convicted of burglary in the second degree and stealing. He was sentenced to ten years imprisonment for the burglary and five years for the stealing, the sentences to run consecutively.' Approximately one year after the convictions, the judgment was vacated, and the trial court accepted a plea of guilty on both charges. Movant was sentenced to serve a term of five years on each charge, the sentences to run concurrently. He subsequently filed a Rule 27.26 motion and claimed that the amended information upon which he pleaded guilty was fatally defective. Further, he alleged that his plea was coerced, equivocal, subjected him to double jeopardy and was accepted without a showing that the movant understood the nature of the charges against him. Movant now appeals from the trial court’s denial of his motion without a hearing and the court’s refusal to appoint counsel pursuant to section (h) of Rule 27.26. We affirm the trial court’s denial of the motion.

Movant’s substantive and procedural complaints emanate from two sources: (1) allegations of fact intended to prove that the guilty plea was involuntary, and (2) a question of law regarding the validity of the information. Rule 27.26 was recently construed by our Supreme Court to require the appointment of counsel whenever an indigent files a pro se motion under it. Fields v. State, 572 S.W.2d 477 (Mo. banc 1978). The rule in Fields is prospective, however, and will not apply to movant’s request for relief filed in 1977. Johnson v. State, 574 S.W.2d 957 (Mo.App.1978). Therefore, we must review the motion in light of the earlier precedents. The relevant determinations with regard to the allegedly defective guilty plea are outlined in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), and its progeny:

A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing. Id. at 411.

Accord: Rice v. State, No. 39,300 (Mo.App.E.Dist., Oct. 24, 1978); Breeland v. State, 568 S.W.2d 564 (Mo.App.1978). Where the movant is not entitled to relief by reason of the allegations in the motion, the court is not required to hold an evidentiary hearing or to appoint counsel. Loflin v. State, 492 S.W.2d 770 (Mo. banc 1973). Accord, Winston v. State, 533 S.W.2d 709 (Mo.App.1976).

The record discloses that the mov-ant, no stranger to criminal process, sought the best bargain for his waiver of a right to trial. Relying on the mistaken belief that an appeal of the original conviction on the basis of a defective information would lead to an acquittal rather than a retrial, he was at first reluctant to plead guilty to an amended charge. Following an extensive explanation of options by both the prosecutor and the defense attorney, movant continued to equivocate. As was his prerogative under Rule 25.04, the trial judge became reticent about accepting movant’s plea. After a review of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), however, and the extremely incriminating circumstantial evidence which led to the initial burglary conviction, the judge agreed to accommodate the movant if he decided to subscribe to the plea agreement whereby the conviction with its ten and five year consecutive sentences was set aside in exchange for two concurrent five year terms with jail time credit. When he ultimately agreed to accept the bargain, movant was examined thoroughly by the court to ascertain voluntariness. The trial court exhibited admirable patience in allowing full discussion between the movant, his counsel and the prosecutor regarding the consequences of movant’s plea. There was not the slightest hint or suggestion of coercion. The trial court was constant in its willingness to be guided by movant’s desires — either to accept or reject the plea— and the record conclusively substantiates movant’s knowing and voluntary plea of guilt. The record refutes movant’s contention that he was in any way coerced into pleading guilty by a threat of the reinstatement of the original fifteen year sentences. As was recently noted by the Supreme Court, “ . . . confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, [yet] the imposition of these difficult choices [is] an inevitable’ — and permissible —‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ ” Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, 611 (1978), quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).

Equally without merit is the mov-ant’s claim that he had no viable alternative and, hence, was forced to plead guilty. Pri- or to acceptance of the bargain, movant’s counsel withdrew his direct appeal and the original judgment was vacated. Despite reassurance that his appeal could be reinstated, movant argues that he was concerned about the procedural validity of such an action; parties may not confer appellate jurisdiction by consent. See, e. g., Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). Consequently, he concludes, the plea was involuntary because he believed that the alternative, a direct appeal, was no longer realistically available.

Whether movant believed that an attempt to reinstate his appeal would be hampered by the rules of appellate procedure is not determinative of the issue of voluntariness. Rather, we must review the record and decide whether the movant’s beliefs were reasonable. Dennis v. State, 559 S.W.2d 84 (Mo.App.1977). Given the innumerable assurances by both court and counsel that the appeal could be reinstated, we find nothing in the record to support movant’s fear that it could not. In his brief, movant notes that his attorney on direct appeal had not filed a timely brief on his behalf. Relying on 'this fact, movant argues that even if the appeal could be reinstated, he was effectively foreclosed by virtue of the time strictures of Rule 84.05. Case law demonstrates, however, that a procedure exists to vacate the sentence previously imposed and to resentence the mov-ant. Thus, an appeal would be permitted from the date of the new sentence. Wilson v. State, 561 S.W.2d 749 (Mo.App.1978). Consequently, no error was committed when the court held that neither an eviden-tiary hearing nor appointment of counsel was required under Rule 27.26.

Different considerations enter into our review of movant’s issue of law: the allegedly defective information.

Clearly, the Smith test, which premises the need for an evidentiary hearing on the movant’s ability to plead facts which would entitle him to relief, does not apply where the 27.26 motion presents a question of law. Further, authorities which cite the Smith case for the proposition that an indigent movant is entitled to the appointment of an attorney only when an evidentiary hearing is required must be read in their proper context. ' See, e. g., Winston v. State, supra. The appointment of an attorney, provided for in 27.26(h) to include situations when the movant presents a question of law, cannot depend on whether an evidentiary hearing is granted. There is no need for an evidentiary hearing when no factual issues are involved. Therefore, it would be error to fail to appoint counsel when a movant raises a question of law. Yet, we do not believe that any procedural error by failure to appoint counsel under the circumstances here is ground for reversal. Whatever the role for an attorney was envisioned to be by 27.-26(h), the failure of the appointment in this case could not have prejudiced the movant. We have the allegedly defective information before us in the record, and it is as a matter of law simply not defective.

The amended information cited § 560.070 RSMo (1969) and charged that the movant was guilty of breaking and entering “ . . .an unoccupied residence owned by Mrs. A. J. Baker in Macon County, Missouri, in which residence there was then and there goods and other things kept and deposited . . . ” The movant claims that the phrase “unoccupied residence” could mean “dwelling house,” an element of the burglary in the second degree offense described in § 560.045 RSMo (1969). Yet the “ . . . goods and other valuable things .” language corresponds with the statutory description of second degree burglary in § 560.070.

We must agree with the lower court’s conclusion that the amended information contains every element of the offense of burglary in the second degree as required by § 560.070 RSMo (1969). We review the information with the understanding that reversal on collateral attack is required only when the charge is so obviously defective that by no reasonable construction can it be said to allege the offense for which the movant was convicted. Foster v. State, 554 S.W.2d 544 (Mo.App.1977). “ . . . [P]oor draftsmanship will not render an information fatally defective so long as it states the essential facts of the offense and adequately notifies defendant of the charge against him.” State v. Eaton, 568 S.W.2d 541 (Mo.App.1978). Of particular significance is the Supreme Court’s recognition that § 560.070 and § 560.045 are not mutually exclusive; even if the “unoccupied residence” was a “dwelling house” within the meaning of § 560.045, a conviction could be supported under § 560.070. State v. Lenzing, 551 S.W.2d 846 (Mo.1977). Therefore, the judgment of the trial court is affirmed.

WEIER, C. J., and CLEMENS, J., concur.

      . The prosecutor reviewed the eyewitness testimony that movant and another person loaded two stoves on to a truck parked outside of the victim’s residence. The owner of the property had testified that the stoves were inside the house in their normal location before the incident and that she did not give the movant consent to remove her belongings. As well, there was evidence of forced entry and mov-ant’s speeding away from the burglarized premises with the stolen items. Though no one actually saw movant enter the residence, the case against him was substantial. Movant did not deny the foregoing evidence against him.


author: DOWD, Presiding Judge.

text:
    Roma BARRY, Respondent, v. Donald J. BARRY, Appellant.
    No. 39848.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 6, 1979.
    Motion for Rehearing or Transfer Denied March 16, 1979.

      Joseph Howlett, Shaw, Howlett & Schwartz, Edward C. Vancil, Sumner, Han-lon, Sumner, McDonald & Nouss, P. C., Clayton, for appellant.
    Don B. Sommers, St. Louis, for respondent.
   DOWD, Presiding Judge.

An action for an accounting and for an adjudication of a one-half interest in a trust.

The appellant, Donald J. Barry, appeals from a judgment issued by the Circuit Court of the County of St. Louis favorable to his former wife, respondent Roma Barry.

The respondent had instituted an action in equity in the Circuit Court seeking an accounting for jointly owned assets which had been retained by the appellant, following his revocation of a trust.

In 1971, the appellant caused an indenture of trust to be created in which he was referred to as the “grantor” and “trustee”. The purpose of the trust, as articulated in the indenture, was to “be for the benefit of the grantor (and possibly for the benefit of his wife) during his lifetime, and after his death for the benefit of his wife and his children, grandchildren and others as hereinafter provided)”. The power to terminate, modify or alter the trust was reserved to the appellant as grantor. The trust instrument made no provision as to distribution upon revocation of the trust.

The corpus of the trust was composed of seven life insurance policies, the face amount of which totaled $59,100; common stocks valued at approximately $16,000; a business interest valued at $50,000; and real estate transferred to the trust by warranty deeds executed by the Barrys as husband and wife.

The parties were divorced on June 22, 1972. The following day, the appellant, acting as “grantor”, revoked the trust. A new indenture of trust created by the appellant on March 18, 1974 was similar to the previous trust except that the former did not provide for the respondent as a beneficiary.

Respondent sought an accounting and an adjudication of her entitlement to her con-' tributed share of the trust assets. The appellant denied her interest in the trust assets, contending that respondent released all her interest in rights, claims and causes of action arising by reason of marriage in an agreement entered into on the date the divorce decree was issued. The property settlement agreement made no reference to the trust instrument or to the assets held in the trust.

The Circuit Court ruled in favor of the respondent finding her to be the “legal and equitable owner of an undivided V2 interest in common in the real estate” contributed to the trust, as well as the $16,000 worth of common stock. The court ordered the appellant to account to the respondent for bank assets, mortgages, deeds of trust and income from real and personal property held jointly by the parties at the time of their divorce.

Appellant contends that the trial court’s judgment was in error because the respondent failed to make a “submissible case” for an accounting; the respondent’s transfers to the trust divested her of any interest she possessed in the assets conveyed; the agreement entered into on the day of the divorce decree divested respondent of any interest she may have had in the property transferred; and respondent must be estopped from declaring an interest in the real property conveyed because said property was transferred by warranty deed.

At the heart of appellant’s first point relied on is the contention that the respondent failed to make a prima facie case because no evidence of fraud was introduced to substantiate the allegations of deception set forth in the amended petition.

The petition, in essence, articulated a cause of action predicated on breach of fiduciary duty, i. e., appellant improperly disposed of the trust corpus following revocation. This ground for relief, standing by itself, warranted the invocation of equitable jurisdiction. 1 Am.Jur.2d, § 51. As such, a finding of fraud was not a condition precedent to the court’s ordering and adjudication of respondent’s interests.

In order to make a prima facie case for an accounting, it is necessary to prove the existence of a fiduciary relationship and an obligation to account. Stark v. Cole, 373 S.W.2d 473 (Mo.App.1963); Engelsmann v. Holekamp, 402 S.W.2d 382 (Mo.1966), 36 A.L.R.3d 1056. The respondent demonstrated that a fiduciary relationship existed between her husband as grant- or/trustee and herself as contributor/beneficiary; that the assets and interests she contributed to the trust were due to be returned to her upon termination of the trust; and that her demand for an accounting was refused by the appellant We are of the opinion that a prima facie case was presented on the stipulated facts. Accordingly, point one is ruled against the appellant.

In his second point relied on the appellant alleges that the assets, upon transfer to the trust by the respondent, ceased to be held by the entireties and became sole property of the appellant. It is appellant’s contention that no resulting trust arises in favor of the respondent because by her execution of the warranty deeds, she manifested an intention to dissolve the tenancies by the entireties. In a similar vein, appellant’s fourth point contains the contention that respondent should be estopped from declaring an interest in the property transferred because the conveyances were effected by general warranty deeds. As points two and four both challenge the trial court’s finding regarding the effect of the conveyances we shall treat them simultaneously.

In order to transfer in trust property held by the entireties it is necessary that both tenants join in the conveyance.' Commentary on Possessory Estates, Vol. 23 VAMS, Sec. 40, p. 30; Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 396 S.W.2d 570 (Mo. banc 1965). Therefore, respondent’s sole act of joining in the conveyance should not be construed as evidencing intent to make a gift of her interest.

Since appellant and respondent contributed assets to the trust, in substance both may be considered to be settlors. Restatement of Trusts 2d, Chapter 2, Topic 1, Methods of Creating a Trust § 17-23. In the absence of a provision to the contrary, the effect of their joint conveyances to the trust was to divest both parties of their interests in the property transferred, since “he who creates a trust estate creates an estate no longer his own.” Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96, 98 (1963).

Our examination of the warranty deed reveals that the language used to effect the transfer was “to Donald Barry as trustee under an indenture of Trust dated 23rd day of February 1971”. There is no evidence on the face of the deeds which indicates that respondent manifested an intention that appellant should acquire a beneficial interest in the real estate transferred. Contrarily, the warranty deeds reflect that respondent intended the appellant to acquire legal title to the realty in his fiduciary capacity as trustee rather than in his individual capacity as her husband.

As the trust indenture did not contain a limitation on the estate transferred to the trustee, the latter became vested with that degree of interest necessary to the purpose and operation of the trust, and no more. Stephens v. Moore, 298 Mo. 215, 249 S.W. 601 (1923).

Upon termination of a trust, if the indenture is silent on the issue, it is the trustee’s fiduciary duty to reconvey title to the beneficial owners or hold same upon a resulting trust for the settlor(s). See Restatement of Trusts 2d, Chapter 12, § 411; Prudential Insurance Co. of America v. Gatewood, 317 S.W.2d 382 (Mo.1958).

Where, as in the present case, the trust instrument does not provide for a method of distribution upon termination,

“the trustee will have a duty to make delivery to such a party as is equitably entitled thereto and to deliver such instruments of transfer as the carrier of the property reasonably requires . Usually the transferee will be the set-tlor”. Bogert, Trusts and Trustees, Ch. 47, Sec. 1010, p. 577.

Furthermore, when contributions to a trust are made by more than one settlor, “the contributors are entitled to receive the amounts which they contributed;” Restatement of Trusts, Second Chapter 12, § 4110.

The trial court did not err in holding that upon termination of the trust the respondent became the legal and equitable owner of an undivided ½ interest in common in the real estate transferred in trust, as well as the common stock. Appellant may not be permitted upon termination, to hold the trust corpus free of trust. Points two and four are ruled against the appellant.

Appellant’s third point contains the allegation that the agreement entered into on the date the divorce decree was issued operated to divest respondent of any interest she may have had in the trust corpus.

We are of the opinion that this agreement did not affect either party's interest in the trust corpus. The agreement made no reference to the indenture of trust. According to the language of the document, the parties acting as husband and wife agreed to release each other from “claims, demands, causes of action in law or equity as to both real and personal property.” At the time of the agreement neither the husband or wife owned the trust assets individually. The property was held in trust with the appellant as trustee.

On the date the agreement was finalized, the trust was in full force and effect. The appellant’s termination of the trust on the following day did not operate to vest him with complete title to the trust corpus. Rather, as discussed in connection with points two and four, it became appellant’s duty on termination to transfer to respondent that share of the beneficial ownership to which she is entitled. Restatement of Trusts, Second, Chapter 10, § 345, p. 193.

Accordingly, point three is ruled against the appellant.

Judgment affirmed.

WEIER, C. J., and CRIST, J., concur.

      . It is well settled that one acting in an individual capacity is, for judicial purposes, different from that same person functioning as a fiduciary. 89 C.J.S. Trusts § 3.

      . Upon divorce, property which had been held by a tenancy by the entirety by a husband and wife is converted by operation of law to being held by a tenancy in common. Reed v. Reed, 516 S.W.2d 568 (Mo.App.1974).

      .Appellant cites Seymour v. Seymour, 340 S.W.2d 652 (Mo.1960) in support of his position. Seymour is distinguishable because the deeds therein were executed as part of a settlement pursuant to a separation agreement. In this case however, the deeds were executed in an isolated transaction which preceded the settlement agreement by a year.


author: CLEMENS, Judge.

text:
    CLAUDE T., Respondent, v. CLAIRE T., Appellant.
    No. 39328.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 6, 1979.
    Motions for Rehearing or Transfer Denied March 16, 1979.
    Cupples, Cooper & Haller, Inc., Irving L. Cooper and Barbara W. Wallace, Clayton, for appellant.
    Joseph Howlett, Clayton, for respondent.
   CLEMENS, Judge.

The trial court denied defendant-wife’s motion to modify a divorce decree to provide maintenance for a child born to her seven months after divorce. The trial court held defendant had failed to prove plaintiff was the father. Defendant-wife has appealed.

The evidence: Claude and Claire were married in June 1969 and separated in January 1972; they were divorced in August 1972. The child whose paternity is in issue was born March 6, 1973. Thus, the child was conceived after the parties had separated, but before they were divorced. Defendant denied—and plaintiff asserted-—that after they separated they continued having sexual intercourse at frequent intervals from January 1972 to early 1974. Defendant denied that during their marriage she had intercourse with anyone other than plaintiff. On direct examination plaintiff admitted he furnished hospital and medical insurance coverage for the child’s birth and made one hospital visit, but denied providing anything for the child’s support. And, plaintiff testified he last had sexual intercourse with defendant in mid-1971, almost two years before the child’s birth.

Defendant’s physician testified defendant was twelve to fourteen weeks pregnant on August 18, 1972 and delivered the child March 6, 1973, after a pregnancy of about 280 days. Laboratory blood tests indicate plaintiff could be the biological father.

Over objection plaintiff introduced evidence of defendant’s adultery. His witness, Thomas Hamner, testified he met defendant in a cocktail lounge, drove her home, and thereafter had sexual intercourse with her during April and May, 1972, the probable time of the child’s conception.

On appeal defendant raises two points— that the evidence is not sufficient to establish illegitimacy, and the court erred in allowing Thomas Hamner to testify.

For her first point defendant relies on the presumption of legitimacy of a child conceived during marriage. The presumption is a rule of evidence, overcome by substantial evidence to the contrary. Simpson v. Blackburn, 414 S.W.2d 795 [6-8, 9] (Mo.App.1967). Upon presentation of substantial evidence to rebut the presumption of legitimacy, as here, the existence or nonexistence of the fact once presumed is determined from the evidence as if no presumption had ever been operative. In re L_, 499 S.W.2d 490 [1, 2] (Mo. banc 1973).

We have examined cases cited by defendant and find none holding the evidence here is insufficient to rebut the child’s presumed legitimacy. Defendant cites JD v. MD, 453 S.W.2d 661 (Mo.App.1970), where there was no evidence of adulterous relations at the time of conception and it was not disputed that defendant-husband was in plaintiff’s physical presence during the period of conception. And, where evidence to rebut the presumption of legitimacy rested solely upon the husband’s unsupported testimony, the court in Underwood v. Underwood, 399 S.W.2d 635 [2, 3] (Mo.App.1966), held it was insufficient in view of the entire record and the immoral activity of both parties. Reversible error was found in the case of In re KWH, 477 S.W.2d 433 [1, 2] (Mo.App.1972), where the evidence showed the mother had sex with two men during the period of conception. The cited cases are distinguishable.

Where, as here, there is an irreconcilable conflict in the evidence on an essential fact issue, necessarily depending on the credibility of witnesses, deference to the trial court’s conclusions is appropriate. In re L_, supra. The trial court heard testimony not only of the plaintiff’s denial of intercourse after the parties separated, but also of an adulterous relationship at the time of conception. Because the trial court is best able to judge credibility and to determine whether plaintiff presented sufficient evidence to rebut the presumption of legitimacy, we uphold the trial court’s finding of plaintiff’s non-paternity.

For defendant’s second point, we must determine whether plaintiff’s witness Thomas Hamner should have been allowed to testify. Plaintiff had failed to disclose Hamner’s name in answering defendant’s interrogatory as required by the continuing duty doctrine. Laws v. City of Wellston, 435 S.W.2d 370 [2, 3] (Mo.1968), and Rule 56.01(e)(2). The trial court, however, allowed the challenged testimony only after defense counsel had deposed the witness and the case had been reset, a period of twenty-nine days. Defendant objected, claiming prejudice resulted by having prolonged the trial.

The trial court has wide discretion when ruling on objections to interrogatories. State ex rel. Norfolk and Western Railway Company v. Dowd, 448 S.W.2d 1 [4] (Mo. banc 1969). Defendant has not shown how her cause was prejudiced and finding no abuse of discretion, we deny defendant’s second point.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: CRIST, Judge.

text:
    George W. TAINTER and Carrie Tainter, Plaintiffs-Respondents, v. J. W. GRAHAM, d/b/a J. W. Graham, Inc., Defendant-Appellant.
    No. 40035.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 6, 1979.
    Motion for Rehearing or Transfer Denied March 16, 1979.

      Thurman, Nixon, Smith, Howald, Weber & Bowles, James E. Bowles, Hillsboro, for defendant-appellant.
    Herbert A. Kasten, Jr., St. Louis, for plaintiff s-respondents.
   CRIST, Judge.

Breach of contract and quantum meruit.

Plaintiffs obtained a jury verdict on breach of contract in the sum of $1,000.00 and on quantum meruit in the sum of $5,100.00. Defendant complains that the jury was not properly instructed. We agree.

Plaintiffs contracted, in writing, to buy ten acres from defendant for $10,000.00, with a down payment of $1,000.00 and the balance to be paid by the plaintiffs’ construction of a road for defendant at $1.50 per lineal foot. The parties disagreed as to the length of the road thereafter constructed by plaintiffs.

Plaintiffs filed suit asking (1) for the return of the down payment on the ground that defendant had failed to perform or execute the contract and (2) for the reasonable value of the road furnished to.defendant under the contract.

With reference to the return of the $1,000.00, the jury was instructed as follows:

“INSTRUCTION NO. 3
Your verdict must be for plaintiffs on plaintiffs’ claim for damages in Count I if you believe:
FIRST, defendant did not return the $1,000.00 deposit to plaintiffs, and
SECOND, because of such failure defendant’s contract obligations were not substantially performed, and
THIRD, plaintiffs were thereby damaged, unless you believe that plaintiffs are not entitled to recover by reason of Instruction No. 5.
MAI 26.02
Offered by Plaintiffs and given by Court.
INSTRUCTION NO. 4
Your verdict must be for defendant, upon Count I of plaintiffs' petition, unless you believe each proposition submitted to you in Instruction No. 3.
MAI 33.13
Offered by Defendant and given by Court.
INSTRUCTION NO. 5
Your verdict must be for defendant, upon Count I of plaintiffs’ petition, if you believe that plaintiffs failed to substantially perform their obligations under the contract mentioned in the evidence.
Not in MAI
Offered by Defendant and Given by Court.”

Defendant claims that Instruction No. 3 alleges defendant’s breach as the failure to return the $1,000.00 deposit. We see eye to eye with defendant on this. This instruction was, in effect, a command to the jury to return a verdict against the defendant for $1,000.00. An instruction is deficient, as here, when it fails to accurately state the nature of the alleged breach. North County School District v. Fidelity & Deposit Co., 539 S.W.2d 469, 479 (Mo.App.1976).

Plaintiffs say that any error in Instruction No. 3 was cured by defendant’s Instruction Nos. 4 and 5. But not so. Forsythe v. Starnes, 554 S.W.2d 100, 106 (Mo.App.1977). The failure to describe the alleged breach, in plaintiffs’ verdict director,, was not cured by reference to another instruction. And the error was prejudicial. Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo.banc 1967).

Defendant also complains about the breach of contract damage instruction!:

“INSTRUCTION NO. 9
If you find in favor of the plaintiffs in Count I then you must award to plaintiffs the sum of $1,000.00.
MAI 4.04
Offered by Plaintiffs and given by Court.”

For the reason that the giving of Instruction No. 3 was prejudicially erroneous, this complaint is moot. On retrial this damage instruction, based on MAI 4.09, should be given only if there is no dispute as to the amount of damages arising from the breach alleged in plaintiffs’ verdict directing instruction.

Defendant also complains about the giving of plaintiffs’ general damage instruction MAI 4.01 instead of the quantum meruit instruction MAI 4.04. We agree. Plaintiffs verdict director on quantum me-ruit, MAI 26.05, required a corresponding quantum meruit damage instruction. Rule 70.02 requires an applicable MAI instruction to be used to the exclusion of all others. Brown v. St Louis Public Service Co., 421 S.W.2d at 257.

The case is reversed and remanded for new trial on all issues.

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


text:
    STATE of Missouri, Respondent, v. Charles Lee THOMAS, Appellant.
    No. 39016.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.

      Michael A. Gross, Gross & Goodman, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Clark, Asst. Attys. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., William N. Seibel, Jr., Asst. Pros. Atty., St. Charles, for respondent.
   DOWD, Presiding Judge.

Charles Lee Thomas was charged by information with capital murder. The penalty provision of the information was dismissed due to the fact that discretionary alternative penalties similar to those articulated in § 559.005 and § 559.009 RSMo 1975 had been declared unconstitutional by the United States Supreme Court. (See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 346 (1972)). The charge was revised to read murder in the first degree and the corresponding penalty provision was to be governed by § 559.011 RSMo 1975.

Thomas was convicted by a jury of murder in the second degree and assessed a sentence of 55 years imprisonment. In this appeal from the judgment entered on the verdict, Thomas alleges that the trial court erred in three respects.

Since appellant has challenged the sufficiency of the evidence to sustain his conviction, we shall consider this point first. Our review of this issue is limited to a consideration of all the direct and circumstantial evidence in the record tending to prove the defendant’s guilt, drawing all reasonable inferences therefrom in favor of the State. State v. Allen, 555 S.W.2d 36 (Mo.App.1977).

The facts adduced at trial revealed that Thomas, who was employed as a security officer at City Hospital, owned a gun for use in his profession. On the evening of March 19, 1976, Thomas and two women, Carol Boyd and Jeanette Whit went for a car ride. Ms. Boyd, who was operating the vehicle, drove the occupants to St. Charles, where the car became stuck on railroad tracks. In a statement made to police, Thomas explained that Ms. Whit became alarmed upon seeing his gun, and left the car. Thomas followed her, and while he was adjusting the position of his weapon for comfort, it discharged, striking and killing Ms. Whit.

After hearing the gunshot, the St. Charles Police fired warning shots and proceeded to the railroad tracks. Thomas testified that he fled the scene to avoid the gun fire. Appellant and Ms. Boyd were apprehended near a police roadblock after being chased by the police. The weapon, identified by Thomas as belonging to him, was found on the street. While in police custody, Thomas exculpated Ms. Boyd from involvement in the shooting.

At the trial, Thomas repudiated the contents of the statement made to police. He justified his prior statement regarding the shooting as being precipitated by police brutality and threats of physical violence. His recollection of the occurrence was that he left the car to push it from the tracks. While doing so, he heard gunshots, and thought his car was being shot at. He testified that he did not kill Jeanette Whit, and was uncertain as to who had fired the fatal shot.

Ms. Boyd, the appellant's paramour, testified that she was angry with Thomas on-the evening of March 19, because he was entertaining Ms. Whit in his apartment. Ms. Boyd had waited outside Thomas’ apartment in his auto until appellant and Ms. Whit left the building a few hours later. The couple joined Ms. Boyd in the car, after which the latter drove at appellant’s suggestion.

Ms. Boyd testified that when the car became stuck on railroad tracks in St. Charles, the appellant muttered either “You’ve got to go” or “we got to go” before leaving the car with Ms. Whit. Although Ms. Boyd had stated in her deposition that appellant ordered her to turn up the volume of the radio as he left the car, she had no recollection of this at the trial. Shortly after Thomas and Ms. Whit exited from the car, Ms. Boyd heard a noise that sounded like a firecracker. As Thomas returned to the car, Ms. Boyd viewed Ms. Whit sitting on the ground. Thereafter Thomas hurriedly freed the car from the tracks and drove it away from the riverfront. Ms. Boyd further testified that during the escape she noticed that the appellant made a motion as if he were throwing something out the window.

The police found Ms. Whit, lying in a prone position, nude from the waist up and wearing slacks which had been torn in the front. As previously mentioned, a weapon identified by the appellant as his, and assayed by a forensic analyst as having discharged the bullet which killed Ms. Whit, was found in the street.

The assessment of the credibility of the witnesses and the resolution of the conflicts in the testimony are functions of the jury rather than of the reviewing court. State v. McNeal, 589 S.W.2d 722 (Mo.App.1976). We find there was substantial evidence to support the jury’s finding of guilt. Accordingly, this point is ruled against the appellant.

In his first point, appellant contends that the saving clause of § 559.011 is not effective because neither § 559.005 nor § 559.009 (RSMo 1975) have been declared unconstitutional by the United States Supreme Court or the Supreme Court of Missouri. The main thrust of this point is that a declaration of unconstitutionality is a condition precedent to the invocation of § 559.-011 RSMo 1975.

This point was addressed by the Supreme Court of Missouri in State v. Duren, wherein it was said:

“We think the argument lacks merit. In the first place, the legislative intent obviously was to provide for the possibility the ‘penalty’ could not be imposed for any reason; and secondly, this court, now having ruled that the ‘penalty’ is unconstitutional under the existing statutes, has made the second contingency effective.”
547 S.W.2d 476, 480-481 (Mo. en banc 1977).

We are of the opinion that this holding refutes appellant’s contention. Accordingly, this point is ruled against the appellant.

Secondly, appellant contends that the trial court abused its discretion by denying appellant the opportunity to present character witnesses to testify in his behalf.

The trial court conditionally excluded such testimony due to appellant’s noncompliance with the Rules of Discovery. (25.30-25.45) The court provided, however, that an exception to the ruling would be made if unusual circumstances occurred during the progress of the trial. Despite the latitude offered by this ruling, appellant’s counsel announced his abandonment of this aspect of his trial strategy.

Appellant’s counsel explained the noncompliance as resulting from an “eleventh hour” decision to place the appellant on the stand. When this strategy was planned, the day prior to trial, the prosecution was advised of the name and place of employment of a character witness.

We find no abuse of discretion in the trial court’s ruling. The State filed a request for disclosure on July 29, 1976. Following a hearing on pretrial motions November 4, 1976, appellant was requested to file the requisite disclosure material by November 19, 1976. The name of the character witness was communicated to the State on January 3, 1977.

It is appellant’s position that a close reading of the discovery rules permits the inference that the notification provision may be deemed satisfied if counsel supplies the information once the intent to call a witness is formed.

In State v. Ellis, 567 S.W.2d 454 (Mo.App.1978) wherein a similar theory was interposed, this court said “determination of compliance with the disclosure rule cannot be based upon a party’s subjective intent.” (567 S.W.2d 454, 456) Furthermore, as appellant declined the opportunity to make an offer of proof regarding the testimony of the proposed character witness, we are unable, as was the trial court, to appraise the degree of prejudice which could have potentially inured to the State. Accordingly, we rule this point against the appellant.

Judgment affirmed.

WEIER, C. J., and CRIST, J., concur.

      . The order entered by the trial judge on September 7, 1976 was as follows:
      “ORDER
      Parties having submitted defendant’s Motion to Dismiss Information and the Court being now fully advised, it is ordered that said Motion to Dismiss Information be granted only in the respect that the United States Supreme Court has declared a penalty as set forth in Sections 559.005 and 559.009 R.S.Mo. for capital murder to be unconstitutional and the same is, therefore, hereby, upon defendant’s motion, declared to be unconstitutional, it is, therefore, further ordered that the charge herein be deemed to be murder in the first degree, pursuant to Section 559.011 R-S.Mo., and shall hence forth be referred to in this proceeding as murder in the first degree with a penalty provision as provided in Section 559.011 R.S.Mo., i. e., life imprisonment with no eligibility for probation or parole until service'of a minimum of fifty years of sentence. (See also Section 559.009.) Defendant’s Motion to Dismiss Information is in all other respects overruled.
      Enter:
      Dated September 7, 1976
      /S/ Donald E. Dalton
      Donald E. Dalton
      Circuit Judge (Div. 2)
      Filed Sept. 7, 1976”

      . It will be noted that this section was repealed in 1977, and has been replaced by § 565.016 RSMo 1977. Section 559.011 RSMo 1975 in effect at time of the judge’s ruling was as follows:
      “559.011 ALTERNATIVE PUNISHMENT IF DEATH PENALTY DECLARED UNCONSTITUTIONAL. — If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri Supreme Court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section 559.005 shall be deemed to be murder in the first degree and the offender shall be punished accordingly, except that he shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.”


text:
    STATE ex rel. HANCOCK-GROSS, Plaintiff-Respondent, v. Honorable Leonard E. MARTIN, Defendant-Appellant.
    No. 39908.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 1979.
    Christine C. Pernoud, Ass. County Counselor, Clayton, for defendant-appellant.
    William H. Leyhe, Clayton, Lawrence F. Hartstein, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Attempted appeal by Magistrate from writ of prohibition in a civil case. The Magistrate does not show how he, or the magistrate court, was aggrieved. The aggrieved party, plaintiff below, chose not to appeal. The appeal must be dismissed.

Carl Kelsey filed a contract action in the Magistrate Court of the County of St. Louis against Hancock-Gross, defendant below. The Circuit Court of the County of St. Louis issued a writ of prohibition, at the request of Hancock-Gross. It directed that the Magistrate proceed no further in the civil suit, for the reason that service upon Hancock-Gross was insufficient.

Carl Kelsey, plaintiff below, did not appeal from the writ of prohibition. The Magistrate followed appeal procedure to this court, with the St. Louis County Counselor’s office as his attorneys. °

A final judgment in prohibition is reviewable by motion for new trial and appeal as in other civil actions. Section 530.080 RSMo 1969. The lawsuit ended when Carl Kelsey, plaintiff below, chose not to complain about the issuance of the writ of prohibition. There is no justiciable controversy between the parties. Appellant was not an aggrieved party by the judgment of the circuit court in issuing the writ of prohibition as required by § 512.020 RSMo 1969. Freeman v. De Hart, 303 S.W.2d 217, 221 (Mo.App.1957). See also Hertz Corp. v. State Tax Commission, 528 S.W.2d 952, 954 (Mo.banc 1975).

An appeal taken without statutory sanction confers no authority upon an appellate court to adjudicate the merits of a dispute. Campbell Street Lumber Co. v. Central Mortgage Co., 436 S.W.2d 57 (Mo.App.1968).

The appeal is dismissed.

REINHARD, P. J., and GUNN, J., concur.


text:
    V_, Appellant, v. S_, Respondent, and I. M. Simon & Company, Garnishee.
    No. 40368.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.

      Daniel T. Rabbitt, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant.
    William J. Costello, St. Louis, for respondent.
   GUNN, Judge.

On November 29, 1976, a judgment was entered by the Circuit Court of the City of St. Louis which determined the defendant to be the natural father of a ten year old boy born out of wedlock. The trial court ordered the father to pay the mother of the boy the sum of $300 each month for future child support and maintenance. Recognizing that the mother had incurred substantial expenses as the sole provider for the boy prior to judgment, the court also declared that the father must reimburse her in the amount of $20,292. No appeal was taken from that judgment, which became final on December 29, 1976.

In an effort to collect the judgment for $20,292, the mother instituted garnishment proceedings against garnishee I. M. Simon & Co., a stock brokerage firm in which the father was a partner. The garnishee contended that the mother could recover no more than 25 percent of the father’s weekly earnings in accordance with the restrictions on the maximum earnings subjected to garnishment in § 525.030.2, RSMo Supp.1975. She maintains that her claim was the result of an “. . . order of any court for the support of any person . . .,” and that her- recovery was therefore not' subject to any restriction. The issue was litigated and the trial court found in favor of the garnishee. From that decision, the mother for herself and son appeals.

The mother initially maintained that 100 percent of the father’s earnings were subject to garnishment. She now concedes, however, that the federal Consumer Credit Protection Act has pre-empted the Missouri garnishment law in this area and that the federal 50 percent/65 percent formula will limit her recovery if this court finds in her favor. 15 U.S.C. § 1673(b)(2) (Supp.1978).

And we find that we are presented with a unique issue for review. There are no Missouri decisions which define an order for the support of any person as it pertains to either the state or corresponding federal garnishment statute. We are guided by statements of Congressional purpose which preface the Consumer Credit Protection Act. 15 U.S.C. § 1671 et seq. (1970). Clearly the intent of Congress was to grant an exemption to wage earners from burdensome garnishments, to protect wage earners from loss of employment as the result of garnishment proceedings and to prevent bankruptcies. Gerry Elson Agency, Inc. v. Muck, 509 S.W.2d 750 (Mo.App.1974). We know as well that the Congress has limited the state’s entry into the field by establishing a maximum allowable garnishment level above which no state may legislate. 15 U.S.C. § 1673(c) (Supp.1978). As in the case of all statutes, the provision must be construed in light of the object sought to be attained and the iniquity sought to be remedied. State ex rel. Missouri Power & Light Co. v. Riley, 546 S.W.2d 792 (Mo.App.1977). Any exception to the maximum garnishment restrictions must be narrowly construed.

The mother urges us to apply the rationale adopted in Pellerin v. Pellerin, 259 Ark. 546, 534 S.W.2d 767 (1976). There a divorced husband sought to quash a garnishment of his income issued to collect a judgment for child' support arrearage. He argued that the strictures of 15 U.S.C. § 1673(a) should apply, as there was no order for support — only a judgment for a debt due. The Arkansas Supreme Court disagreed and concluded that a judgment based on a court order for child support arrearage is an order for the support of any person within the meaning of § 1673(b)(1), which we believe to be a correct conclusion. See: Brown v. Brewington, 513 S.W.2d 768 (Mo.App.1974). Unquestionably, an order for child support does not change its essential character simply because it remains unsatisfied. However, the judgment granted to the mother here is not really analogous to back payments for child support. The pleadings request two forms of monetary recovery: (1) support and maintenance for the future care of the son; (2) reimbursement for necessities furnished by the mother in lieu of support from the child’s father during the years prior to the judgment. These latter expenses, reduced to a judgment of $20,292, represent a debt owed to the mother rather than support owed to the child.

Missouri recognizes the common law doctrine of indemnity for recovery of monies expended for necessaries from one who owed the duty to support. Attebery v. Attebery, 507 S.W.2d 87 (Mo.App.1974). In the area of domestic relations, this doctrine encompasses both monies expended for support by another of a delinquent husband’s wife as well as those expended for the support of a delinquent father’s children. Josey v. Forde, 338 S.W.2d 14 (Mo.1960); Attebery v. Attebery, supra; Smith v. Smith, 300 S.W.2d 275 (Mo.App.1957). A distinction is made between the statutory remedy for future maintenance and support and the common law remedy for recovery of a specific liquidated amount already paid out. In the context of a divorce, it was stated:

“The remedy by proceeding in the divorce case and court by motion or otherwise looks to the future support of the child, while the commonlaw independent action deals with the support already furnished and to recover for expenses already incurred. The two remedies are coterminous rather than concurrent, and the one begins where the other ends.” Smith v. Smith, supra, l.c. 278, quoting Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 767 (banc 1932).

We believe the same principles apply where a mother seeks future support for her illegitimate child as well as recovery for past expenditures. The latter action has nothing to do with child support; the mother alone is entitled to reimbursement upon the basis of her quasi-contractual relationship with the child’s father. Swanson v, Swanson, 464 S.W.2d 225 (Mo.1971). In the child support count in this case, the son is the true party in interest and is represented by his mother only because of a disability to sue by reason of minority. Martin v. Martin, 539 S.W.2d 756 (Mo.App.1976); Block v. Lieberman, 506 S.W.2d 485 (Mo.App.1974). In her action for reimbursement, the mother is the only interested plaintiff. “If [the judgment is] collected, that money goes to her, not to the child, who has already had the past support.” Mayes v. Mayes, 342 Mo. 401, 407, 116 S.W.2d 1, 4 (1938). Compare: Fower v. Fower Estate, 448 S.W.2d 585, 586-87 (Mo.1970).

Therefore, the judgment which supports the mother’s garnishment action does not fall within the parameters of “[any] order of any court for the support of any person.” Consequently, the garnishment restrictions as outlined in 15 U.S.C. § 1673(a)(1) and § 525.030.2, RSMo Supp. 1975, apply.

The decision of the trial court is affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: REINHARD, Presiding Judge.

text:
    In re Marriage of Elinor Darlene GOVERO, Petitioner-Respondent, v. William Jerome GOVERO, Respondent-Appellant.
    No. 40084.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.

      Mark T. Stoll, Richeson, Roberts, Wag-mann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for respondent:appellant.
    James E. Pennoyer, Stevenson, Pennoyer & Ray, Farmington, for petitioner-respondent.
   REINHARD, Presiding Judge.

This case involves an appeal from an order of the Circuit Court of St. Francois County, Missouri which sustained in part and overruled in part Husband’s Rule 74.32 verified motion to set aside a default decree of dissolution entered by that Circuit Court in June of 1976.

In April of 1976, Wife filed for dissolution of marriage in the Circuit Court of St. Francois County asking that court to dissolve her marriage, restore her maiden name, award her the parties’ house and lot and, in addition, award her $4,000.00 in damages for certain misrepresentations allegedly made to her by Husband which operated to induce her to marry respondent.

Husband was personally served but defaulted. At the hearing, the court entered a default judgment in favor of the wife granting all relief prayed for as well as awarding her the household furniture and attorney’s fees.

In February of 1977, Husband filed his Rule 74.32 motion to set aside the dissolution decree or, in the alternative, to set aside that portion of the decree providing for $4,000.00 in misrepresentation damages. Respondent’s motion alleged irregularities in the decree in that it provided for more relief than prayed for in the petition (i. e. the furniture and attorney’s fees), and further alleged the circuit court exceeded its jurisdiction in awarding $4,000.00 for premarital representations.

The Judge who rendered the original decree was no longer a Judge at the time the 74.32 motion was filed. The regular Judge disqualified himself. Subsequently, the Supreme Court assigned a special Judge to dispose of this motion. The Special Judge set aside that portion of the dissolution decree awarding the furniture, the attorney’s fees and the misrepresentation damages, but sustained the remainder. The court predicated its action on the belief that those portions of the decree dissolving the marriage, restoring petitioner’s former name and disposing of the house and lot were separate and severable from the erroneous portion of the decree awarding relief in excess of that prayed for and damages for misrepresentations made prior to marriage. The court ordered new proceedings to determine distribution of the furniture, and further provided that its order was to be considered final for purposes of appeal.

On appeal, the husband challenges only that portion of the court’s order which pertains to the marital property. He contends the circuit court erred in failing to set aside the entire order as to this property, and that the court should hear evidence and make a new disposition of the house and lot as well as the furniture.

Initially, we dispose of the wife’s claim that the order of the court is not an appealable order. We agree with the husband that this 74.32 motion is separate and distinct from the original divorce proceeding. Since the husband was denied the relief requested, he is entitled to appeal from that order, even though he was granted partial relief. For appealability of 74.32 orders see Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596 (Mo.App.1970), Dickmann v. Associates Discount Corp., 410 S.W.2d 695 (Mo.App.1966), In re Marriage of Bradford, 557 S.W.2d 720 (Mo.App.1977).

In Wife’s petition she alleged that the parties owned a house and lot (legal description in petition) and “certain household furniture which is subject to an indebtedness in the amount of $1,300.00.”

In her prayer for relief she requested the “Court make and enter its order granting to Petitioner the house and lot above described and for such other and further relief as to the Court may seem meet and proper.” She did not request the court to assign her all marital property.

In the decree the court set off to the wife the house and lot and “all furniture located therein, subject to the indebtedness, of record.”

The wife does not complain of the court’s order setting aside that portion of the decree awarding her the furniture. In her memorandum to the trial court the wife stated, “the law is clear that a judgment entered by default in excess of the prayer may be properly set aside by the trial court in a proceeding, brought by the defaulting party pursuant to Rule 74.32.” For a good discussion of this point see Rook v. John F. Oliver Trucking Company, 505 S.W.2d 157, at page 161 (Mo.App.1973) wherein Judge Simeone stated,

There is good reason for the rule that a judgment by default should not exceed the prayer. A defendant may desire to let judgment go by default when he is aware of the limit on the amount of damages [property sought] claimed in the prayer, but would not be so desirous if he could be subjected to a judgment in a sum [amount of property] exceeding the amount of relief prayed for.

Also see La Presto v. La Presto, 308 S.W.2d 724, 727 (Mo.1958); and, Boggess v. Jordan, 283 S.W. 57, 57 (Mo.App.1926).

The husband argues that the entire decree pertaining to the property must be set aside because the property provisions of the dissolution decree are not separate and sev-erable because in the new proceeding the court must dispose of and divide all property of the parties after considering the factors stated in Section 452.330 RSMo 1969. In Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977) and Nilges v. Nilges, 564 S.W.2d 262 (Mo.App.1978) we dismissed appeals because the court failed to exhaust its jurisdiction by not allocating interests in retirement programs. We stated in Nilges at page 263 that, “In failing to consider a potentially valuable asset, evaluate and allocate it . [the court was] without jurisdiction.” We further suggested that because of the time lapse between the original trial and remanded hearing, the trial court might want to consider the entire property disposition.

The status of an order in the face of undisposed of property has become a hiatus to both lawyers and judges. ■ Somewhere along the line it would seem reasonable to accord a decision finality, at least with respect to property the trial court has already considered and disposed of. Should the entire property settlement be negated simply because the parties failed to remember a small bank account, some furniture, a watch, or the right to purchase Missouri University football tickets? We think not. We believe the more reasonable approach is to require a reconsideration of all the marital property only if the undisposed of property constitutes a substantial portion of all marital property.

We are not confronted, in the present instance, with a failure of the court to allocate all of the marital property. The trial court was approached with a petition which made reference to all the marital property, but requested only a portion thereof. The court heard the evidence and allocated to the wife furniture she had not requested. The trial court had before it several options. Among these was to: 1) Order as it did; 2) Order the furniture allocated to the husband as the wife’s petition did not request it; or, 3) Permit the wife to amend her petition to include a request for the furniture and order new service upon the husband based on this new request.

Faced with these options, the trial court opted to allocate the furniture to the wife. Under the cases previously discussed, the husband claimed lack of notice that she was to receive this furniture and that, therefore, the order was improper. Adopting this same theory, he tims notified that she was requesting the house. He was given the opportunity for his day in court on the house, but rejected his right to contest.

We are of the opinion that Judge Grimm’s order confining the new proceedings to a hearing on the furniture was proper.

Affirmed.

CLEMENS and GUNN, JJ., concur.