author: ALDEN A. STOCKARD, Special Judge,

text:
    Daniel G. McKINLEY and Clara E. McKinley, Respondents, v. J. L. VIZE, Jr., D. D. S., Appellant.
    No. 38185.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 21, 1978.

      George E. Lee, Doris J. Banta, Barnard & Bear, St. Louis, for appellant.
    Robert Lee Smith, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for respondents.
   ALDEN A. STOCKARD, Special Judge,

Daniel G. McKinley, Jr., eighteen years of age, died on July 29, 1970, in an operating room at Rockwood Hospital in St. Louis County immediately following the extraction of two wisdom teeth. This action for wrongful death was brought by his parents against the dentist, the nurse-anesthetist and the operator of the hospital. Settlements were effected during trial with the hospital operator and the nurse-anesthetist. The trial proceeded against the dentist alone and resulted in a verdict for plaintiffs in the amount of $28,000. The defendant dentist has appealed. We affirm.

Daniel had been a regular patient of appellant since 1963. On July 13, 1970, appellant took x-rays and discovered that Daniel had two impacted wisdom teeth, which in his opinion should be removed, and arrangements were made to have that done at the Rockwood Hospital.

Daniel had a history of asthma in his childhood and some allergic symptoms continued. Appellant testified that he did not know Daniel had asthma, but his mother testified that when she first took him to appellant in 1963 she “told him then that [he] had childhood asthma,” and that on a later occasion when appellant extracted some teeth for Daniel she “reminded him again that [he] had asthma.”

Dr. Ecker, Daniel’s personal physician, examined him prior to the dental surgery because the hospital required a pre-opera-tive physical examination. In a letter to appellant Dr. Ecker stated that Daniel was in good health.” No mention was made of any allergy or asthma problem. The record of Dr. Ecker’s examination contained the entry “no asthmatic breathing.” However, Dr. Ecker testified by deposition that in 1963 Daniel “definitely [had] asthma” and that he treated him for asthma in 1966 and again in 1967.

Daniel was admitted to Rockwood Hospital on July 28, 1970. Blood and urine tests were performed and a history was taken by the house doctor. An entry made at that time on what was referred to as “Progress Notes” showed “history of childhood asthma,” but apparently this was not a part of Daniel’s medical chart and neither the anesthetist nor appellant saw this entry prior to the surgery.

The anesthetist talked to Daniel when he was brought to the operating room. She asked if he was allergic to anything, if he had been taking medicine before coming to the hospital, and if he had any heart problems. When she first saw him Daniel was lying on a stretcher. He seemed calm, but was breathing rapidly. She testified that his blood pressure was elevated somewhat, but not significantly. She observed nothing which would cause her to suggest that the operation be called off.

The anesthetist also testified that she considered using Innovar or Flourtheine as the main anesthetic agent, and that she decided to use Innovar. She further testified that the “narcotic portion” of Innovar acts as a “bronchial constrictor somewhat,” while Flourtheine “dilates the bronchials,” and that if a person has a history of asthma “Flourtheine would be the drug of choice” to use. She further stated that she did not know that Daniel had a history of asthma, that appellant did not advise her that he had any such condition, and that if she had known he had asthma she would have used Flourtheine.

The extraction went smoothly and both wisdom teeth were removed. The anesthetist testified that she monitored Daniel’s pulse and blood pressure throughout the procedure and they remained normal. Appellant told the anesthetist that he was finished. He then removed some throat packing, washed up at the sink, took the chart and walked to a table outside the room and began to write on the chart. He immediately returned to the operating room when he heard something said about Daniel not looking good. The anesthetist said she could not get a pulse, and appellant sent his assistant for a doctor. Two doctors came in and administered some drugs and applied external cardiac massage, but without success.

It is not disputed that the immediate cause of Daniel’s death was cardiac arrest. Plaintiff called as a witness Dr. Barnett A. Green, a medical doctor, who, after being qualified as an expert and a specialist in the field of anesthesiology, was permitted to testify that in his opinion the cause of the cardiac arrest was “lack of sufficient oxygen,” a condition known as hypoxia, and that the cause of the hypoxia was “inadequate dilation of the lungs” so that “when the blood left the lungs and started to circulate out of the lungs to the rest of the body it was carrying too little oxygen.” He was also permitted to testify that in his opinion Daniel’s lungs could not adequately ventilate or expand to deliver the oxygen through the respiratory tract because “bronchial spasm undoubtedly was present restricting the amount of oxygen going into this patient,” and that the bronchial spasm was the result of a “combination of * * [Daniel’s] asthmatic reactivity and * * * the Innovar to which he was exposed which is a stimulus to bronchi spasm * *

Appellant asserts that the trial court erred in permitting Dr. Green to give an opinion “as to the cause of [Daniel’s] death because there was insufficient evidence to support his opinion and his opinion was plainly founded upon speculation.” Before examining this contention we should set forth the basic theory which permits the admission into evidence of an opinion of an expert witness.

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter of the opinion is not of common knowledge so that the opinion of an expert witness would be helpful to the jury in the determination of the issues before it. Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 321 (Mo. banc 1962). Such opinion must be based on facts established by competent evidence, Craddock v. Greenberg Mercantile, Inc., 297 S.W.2d 541 (Mo.1957), and when the expert witness does not have personal knowledge of those facts, that is, the evidence of those facts was not established by the testimony of the expert witness, the witness must be asked by use of the hypothetical question to assume the truth of the facts, particularly when disputed. Hyman v. Great Atlantic & Pacific Tea Co., 359 Mo. 1097, 225 S.W.2d 734 (1949).

Dr. Green was submitted a hypothetical question in which he was asked to assume, among other things, that Daniel was 18 years of age and had a history of asthma as a child and that he later displayed symptoms when excited or frightened of rapid breathing, gasping and sometimes wheezing, but that he was otherwise in good health; that x-rays disclosed he had two impacted wisdom teeth which appellant advised to have removed by surgery under general anesthesia; that Daniel was admitted to Rockwood Hospital on July 28, 1970, and the next morning was given 2cc of Innovar; that no one who participated in the surgery visited him in his room before he was taken to surgery; that he was frightened and was having labored breathing; that an anesthetic procedure was performed “as shown by the chart” (which was in evidence); and that “during this anesthetic procedure a cardiac arrest occurred and that drugs were administered as shown on that chart.” The doctor was then asked: “considering these things, can you say with a reasonable degree of medical certainty what was the cause of [Daniel’s] cardiac arrest.” Dr. Green answered that he could, and that the cause was “Lack of sufficient oxygen to enable the heart to function as a pump.” Then based upon the same hypotheses the doctor expressed the additional opinions we have previously set forth.

In the argument portion of his brief appellant states that Dr. Green expressed the opinion that the cardiac arrest was caused by lack of oxygen, that the cause of the lack of oxygen was inadequate dilation of his lungs, and that the lungs did not adequately dilate or ventilate because of bronchial spasm. Appellant argues that Dr. Green “made it quite plain” that he based his opinion that Daniel’s bronchi was in spasm or contracted upon the fact that the “anesthetist gave Anectine in a dosage that he considered excessive and that he assumed that the reason for this Anectine dosage was that the anesthetist was ‘trying to get oxygen in and she couldn’t.’ ” He then argues that there was no evidence to support the assumption “that the anesthetist was trying to get oxygen and couldn’t or the assumption that she gave additional Anectine toward the end of the procedure because she was having a problem delivering oxygen” to Daniel. A summary of other testimony of Dr. Green on the cause of the cardiac arrest will be helpful.

Dr. Green first expressed the opinion that Daniel had what he called Grade I asthma. He described this as being “mild,” and he based his opinion on Daniel’s history of asthma and labored breathing, sometimes with wheezing when excited. He then stated that at the time of the surgery the fact that his blood test showed eosinophil 8 (which he said was “grossly abnormal” and is found in people who are allergic), that he was “extremely frightened” as shown on the anesthetic chart, that his breathing was labored, as testified to by his mother, and that his blood pressure was high and his pulse was fast, as revealed by the chart, indicated to him that “an allergic state was still going on.” The doctor testified that the administration of Innovar caused a constrictive action upon the bronchial tubes, and because of this the lungs “could not adequately inventilate or expand to deliver oxygen throughout the respiratory tract where the bronchial spasm undoubtedly was present restricting the amount of oxygen going into this patient.” The doctor was asked how the bronchial spasm would prevent enough oxygen from getting into Daniel’s blood, and he answered: “If these passages are narrowed it requires greater force and greater volume to try and deliver the required amount of oxygen to these passages * * *.” The doctor had previously referred to the anesthetic chart where it was shown that the anesthetist had, according to his interpretation, “continued the Anectine (a muscle paralyzing drug) apparently right up to the very end.” Dr. Green interpreted the procedure as shown by the chart as an “indication he [Daniel] was having a problem trying to get the oxygen and she [the anesthetist] was using the muscle paralyzing drug in very large doses for longer periods of time and then she was trying to get oxygen in and she couldn’t.”

Dr. Green as a qualified expert, could properly draw his conclusions from what was shown by the chart, which included the notation that administration of Anectine was continued past the end of the surgery, or as Dr. Green said, “to the very end,” and a notation which meant that “the patient’s color was blue.” After Dr. Green testified as to the purpose of the use of Anectine, the effect of Innovar on the bronchi of a person with asthma, and then took into consideration what was shown by the anesthetist’s chart, he clearly was authorized to conclude from these facts that the anesthetist was trying to get oxygen into the lungs of Daniel but that she could not, or at least could not get enough oxygen to the lungs. We find no merit to appellant’s contention that there was “insufficient evidence” to support the opinion of Dr. Green or that it was “founded upon speculation.”

Appellant next asserts that “if Dr. Green’s [opinion] testimony was supported by competent evidence,” the trial court erred “in allowing him to answer the final hypothetical question” because the question was framed “to state the very issue which was submitted to the jury by plaintiff’s verdict directing instruction.”

The question was as follows: “Do you have an opinion as to whether or not the actions of [appellant] in not telling the nurse-anesthetist of the asthma, assuming that he knew of it, and did not postpone the operation under the circumstances we are talking about here, directly contributed to cause the death of Danny McKinley?” Dr. Green answered as follows: “By failure of [appellant] to postponing or cancelling [sic] this operation because of the knowledge of asthma, he enabled the start of a whole series of events which led to the use of an agent which is harmful to an asthmatic patient, which in turn led to this difficulty in breathing, which in turn led to the lack of oxygen, which in turn lead [sic] to damage to the brain and cardiac arrest. So that, in a chain, he started it.”

An expert opinion expressed by one properly qualified and based upon sufficient means of knowledge is evidence. The province of the jury is to hear all the evidence, including opinion evidence, to weigh it all, and to decide the issues. Thus an opinion, which is evidence, cannot invade the province of a jury in a strict sense, and this is so “even though the opinion is upon the very issue to be decided,” and for that reason “an objection that an expert opinion invades the province of the jury is not a valid one.” Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122, 130 (1952). See also Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 322 (1937), and State v. Paglino, 319 S.W.2d 613, 623 (Mo.1958). The only objection to the above opinion now relied on was that “it invades the province of the jury.”

Aside from the insufficiency of the objection, every expert opinion to a certain extent “invades” the province of the jury in the sense that it constitutes a conclusion gathered from the facts, but as stated in State v. Cochran, 356 Mo. 778, 203 S.W.2d 707, 713 (banc 1947) “ ‘An expert witness, in a manner, discharges the functions of a juror’ because, in matters in which intelligent conclusions cannot be drawn from the facts by inexperienced persons, experts, ‘who, by experience, observation, or knowledge, are peculiarly qualified to draw conclusions from such facts, are, for the purpose of aiding the jury, permitted to give their opinion.’ ” Clearly, the normal or expected result of the acts of appellant, as described in the evidence, is not a matter of common knowledge among untrained persons who comprise a jury, and the issue of causation is an issue upon which the jury could benefit from the opinion of an expert.

Appellant cites only Gillmore v. Atwell, 283 S.W.2d 636 (Mo. 1955) and Phillips v. Shaw, 381 S.W.2d 768 (Mo.1964). Neither case is controlling. In the Gillmore case, as stated in Martin v. O’Connor, 406 S.W.2d 41 (Mo.1966), “improper questions were asked calling for the opinion of the witness on a question of law,” and in the Phillips case the question pertained to a matter which was of such common knowledge that the jury did not need the aid of expert evaluation.

The admission or exclusion of expert opinion testimony is a matter within the sound discretion of the trial court, Fair Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 237 Mo.App. 511, 175 S.W.2d 930 (1943), and its admission is not objectionable for the reason, without more, that it “invades the province” of the jury or that it pertained to the “very issue” the jury was to decide.

Appellant next asserts that the trial court erred in not granting a new trial because in his opening statement plaintiff’s attorney “said he would prove a number of matters which he did not later prove,” and in this manner he “improperly planted certain ideas in the minds of the jury which were very prejudicial to [appellant] but which were not supported by evidence.” Appellant does not set forth in his point the matters about which he complains.

The purpose of an opening statement is to inform the judge and jury in a general way of the nature of the case so as to enable them to understand and appreciate the significance of the evidence as it is presented. Hays v. Missouri Pacific Railroad Company, 304 S.W.2d 800 (Mo.1957). It is recognized that in the trial of a ease the proof frequently fails to come up to expectations, and counsel necessarily must be allowed a reasonable latitude in stating to the jury the facts proposed to be proved. Therefore in the absence of grievous error, the good faith reference by counsel in the opening statement to matters subsequently not proved cannot constitute the basis for the reversal of a judgment. 75 Am.Jur.2d Trial § 209. See also the annotation pertaining to criminal cases in 28 A.L.R.2d at p. 972.

By turning to the argument portion of appellant’s brief we there find reference to eight statements by plaintiffs’ counsel which appellant asserts in his point “improperly implanted certain ideas in the minds of the jury which were prejudicial” to him. However, when we turn to the motion for new trial we find that mention was made of only three of the eight incidents referred to in argument.

We find no specific contention of bad faith on the part of plaintiffs’ counsel, and we note that by Instruction No. 1 the Court advised the jury that they should “determine the facts * * * from the evidence,” and that “Opening statements * * are not evidence.” See Thompson v. Bi-State Transit Systems, Inc., 458 S.W.2d 903 (Mo.App.1970). We also note, as stated in Martin v. Hotel Kansas Citian, Inc., 516 S.W.2d 815, 817 (Mo.App.1974), that “If there was prejudicial error [resulting from the opening statement], it was more readily correctable at [the close of all the evidence] by requesting the court to instruct the jury to disregard the matter * * * or a request of the court for a withdrawal instruction.” No request for such relief was made in this case. At the time the opening statement is made the court usually does not know what evidence is available, and therefore it must rely to a substantial degree on the good faith of counsel. Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512 (1939). With the above general principles in mind we shall examine the three incidents preserved for appellate review.

The first complaint is that plaintiffs’ counsel stated that after the death of Daniel, Mrs. McKinley asked Dr. Ecker why Daniel had died, and that Dr. Ecker became agitated and excited and told her he was not going to help her against any other doctor. On rebuttal Mrs. McKinley testified that she tried to call Dr. Ecker to see if he “might help [her] find out what went wrong” and “he hung up the phone.” Dr. Ecker did not testify, but appellant read into evidence portions of his deposition. Plaintiffs point out that Dr. Ecker gave a deposition “highly favorable” to appellant and that in answer to interrogatories Dr. Ecker was listed as a witness appellant expected to call. For that reason plaintiffs expected to be able to cross-examine him. In our opinion no prejudicial error resulted even though we do not rely on this explanation of respondent, but it fortifies the conclusion that there was no bad faith on the part of plaintiffs.

The remaining two complaints pertain to the statements concerning the proposed evidence as to the use of Innovar. Plaintiffs’ counsel stated that the evidence would show that the manufacturer of Innovar advised that it should not be used for people who had asthma, and also that the Innovar made Daniel’s body rigid so that a large dose of Anectine was given. At the time of the opening statement the anesthetist was a defendant in the case, but during trial a settlement was made with her. These two items of evidence pertained primarily to plaintiffs’ claim against the anesthetist. After the settlement plaintiffs had no need to present additional evidence on that claim. This does not demonstrate bad faith, and no prejudicial error resulted.

Appellant next asserts that trial court erred in “admitting * * * during rebuttal evidence that the autopsy performed on Daniel McKinley was not consented to by plaintiffs.” He asserts the evidence was “irrelevant and prejudicial, did not rebut any evidence adduced by [appellant], and was designed to suggest some sort of conspiracy to conceal the cause of [Daniel’s] death and arouse antagonism against [appellant] on the part of the jury.”

We find no assignment of error in the motion for new trial pertaining to the alleged improper evidence “that the autopsy * * was not consented to by plaintiffs.” The issue is not presented for appellate review. Rule 78.07; Bremer v. Mohr, 478 S.W.2d 14, 19 (Mo.App.1972).

Appellant next contends it was prejudicial to permit Mrs. McKinley to testify on rebuttal that Dr. Ecker hung up the telephone on her when she called him after Daniel had died.

Mrs. McKinley first testified on rebuttal that she had heard the deposition of Dr. Ecker read to the jury. She then testified without objection that she had “called him and called his office, but he wouldn’t talk to me.” She was then asked: “Now, what was your purpose in calling him at that time?” Appellant objected because “it would be self-serving,” and also because “the witness said this doctor is available for subpoena by plaintiffs’ attorney.” Appellant’s counsel then added that there “was nothing developed in the deposition of Dr. Ecker * * * which would in any way indicate a problem about Mrs. McKinley trying to reach him and not reaching him. I don’t think it is proper redirect [rebuttal?]. I think it is prejudicial and I think it is self-serving and it calls for hearsay and for these reasons I object.” The court stated: “Mr. Lee let me overrule the objection as to the question just before the witness at this time, consider the ruling only goes to this question.” The witness answered, “I thought he might help me find out what went wrong.” There then followed three additional questions without any objection, and then this question was asked: “Now, I cannot ask you what Dr. Ecker said on this occasion, but would you tell me what Dr. Ecker did when you had him on the telephone on this occasion?” The answer was, “He hung up the phone.” No objection was made to the question and there was no motion to strike the answer. The issues of whether this was proper rebuttal and the propriety of the question were not preserved for appellate review.

Appellant next asserts that the trial court erred in “allowing plaintiffs’ counsel during closing argument [1] to suggest that a conspiracy existed among all of the parties who had been defendants * * * joined in by Dr. Gantner [the Chief Medical Officer for St. Louis County], * * * for which argument there was no foundation in evidence, and, in particular, [2] in allowing counsel to talk about the coroner system in Jefferson County as opposed to the office of Medical Examiner in St. Louis County, a matter entirely outside the record, because such argument was improper and highly prejudicial.”

We have carefully read the argument by plaintiffs’ counsel, and we consider that part of the argument, which appellant asserts constituted a suggestion that a conspiracy existed among all the defendants, amounted to no more than fair comment on the evidence. In argument counsel is entitled to draw reasonable inferences from the evidence. However, appellant made no objection to the court on the basis now urged as error in that part of his point which we have designated as [1]. If there were merit to his contention, but we believe there is not, it could not constitute prejudicial error.

As to that part of this point which we have designated as [2], plaintiffs’ counsel first described what was done by Dr. Gantner, and then improperly, in our opinion, commented as follows: “Now, what do you think a coroner would do in Jefferson County, who is not a doctor — ” Appellant objected “to what would be done in Jefferson County," and plaintiffs’ counsel said “I withdraw the argument.” There was no request for further relief. Under these circumstances we find no prejudicial error. See Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675 (1950).

Appellant next challenges Instruction No. 3, the verdict directing instruction. It was not contained in MAI but, in the parts here material, was patterned after MAI 20.02 (Wrongful death multiple acts submitted), MAI 21.01 (Malpractice), and MAI 19.01 (Submission as to one of several joint tort-feasors). Appellant does not contend an MAI instruction was available for use without modification. Appellant makes three challenges to this instruction which are, in our opinion, without merit. The three contentions of error were not the subject of a specific objection at trial, and none is mentioned in the motion for new trial. Therefore, the contentions of error are not preserved for appellate review. Rule 78.07; Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570, 579 (Mo.1964); Bremer v. Mohr, supra.

Instruction No. 5 followed MAI 5.03, but appellant asserts that as worded it was prejudicially erroneous and required a modification because, as he states, it provided that “In assessing damages you may take into consideration any aggravating circumstances attendant upon the fatal injury,” and that this permitted the jury to consider aggravating circumstances totally unrelated to any negligence of appellant.

At the time the instruction was given, appellant objected because it “includes the provision with respect to aggravated circumstances,” but there was no objection for the specific reason now advanced on this appeal. Instruction No. 5 was the subject of an assignment of error in the motion for new trial, but the specific objections there made were “there was no substantial or credible evidence sufficient to permit the jury to consider such matters,” and it “needlessly and improperly invited speculation and conjecture and induced the jury to return a verdict for an amount which was grossly excessive and beyond any reasonable concept for pecuniary loss for which such recovery is limited in law.” The specific objection now advanced on this appeal was never presented to the trial court, and is not preserved for appellate review. Rule 78.07; Moll v. Springdale Park, Inc., 395 S.W.2d 126 (Mo.1965). Appellant may not interpose one objection to the trial court and another on appeal. Negley B. Calvin Inc. v. Cornet, 427 S.W.2d 741, 746 (Mo.App.1968). In addition, this was a measure of damages instruction; not a verdict directing instruction. As stated in Barber v. M.F.A. Milling Co., 536 S.W.2d 208, 210 (Mo.App.1976), “if defendant feared the measure of damage instruction was susceptible to misunderstanding because of its general scope, it was incumbent upon the defendant to submit an explanatory or modifying instruction before it can be heard to complain.” See also, Miller v. Ranson and Company, 407 S.W.2d 48 (Mo.App.1966); Hough v. Jay-Dee Realty and Investment Inc., 401 S.W.2d 545 (Mo.App.1966); Samuels v. Illinois Fire Insurance Company, 354 S.W.2d 352 (Mo.App.1961).

Appellant also asserts that the jury verdict was “grossly excessive.” At the time of Daniel’s death the maximum recoverable in an action for wrongful death was $50,-000. § 537.090 Laws of Missouri 1967, p. 664 (now amended, Laws of Missouri 1973, p. 498). The jury determined that plaintiffs’ total damages were $50,000, but pursuant to instructions of the court the jury subtracted therefrom $22,000, the amount paid to plaintiffs by the two other defendants in settlement of the claims against them, and rendered a verdict against appellant for the remainder, or $28,000.

Appellant argues that “damages for pecuniary loss on account of the death of a child are permitted only to age twenty-one,” and that “it was impossible for the jury to make any finding of significant pecuniary loss to the plaintiffs beyond the evidence of their expenses for [Daniel’s] funeral and grave marker.”

When a verdict is claimed to be excessive and is not supported by evidence, the only reasonable hypothesis is that there was prejudice on the part of the jury or that the jury willfully disregarded the instructions. The assessment of damages is peculiarly the function of a jury and a verdict should not be interfered with absent an exercise of extreme caution because an appellate court does not pass on the weight of the evidence in a jury case, and for that reason an appellate court will not determine the existence of bias and prejudice of the jury on the amount of .the verdict alone. Each case must be considered on its own facts, and consideration is given to the nature and extent of the changing economic factors, and the compensation awarded and approved in comparable cases. Consideration is also to be given to the fact that the jury and trial judge were in a better position than the review appellate court to measure an award for reasonable compensation, and that the trial court has approved the verdict in issue. Mudd v. Quinn, 462 S.W.2d 757, 761 (Mo.1971); Smyth v. Hertz Driv-Ur-Self Stations, 93 S.W.2d 56 (Mo.App.1936).

A detailed statement of Daniel’s financial contribution to the family unit is not necessary. It is sufficient to say that he was 18 years of age, in good health except for the asthma condition, that he had been employed, he was a member of a closely united family, and that his father was retired from employment because of a physical disability. Also the jury was not instructed that it could not consider possible financial aid by this son to his parents after he reached age 21, and the Supreme Court of this State in Mitchell v. Buchheit, 559 S.W.2d 528 (1977) ruled that “Parents, seeking to recover for the death of a minor child, should not be prohibited from trying to establish a reasonable probability of pecuniary benefit from the continued life of said child beyond the age of minority.” The award in this case is not out of line with compensation awarded and approved in comparable cases. See Mudd v. Quinn, supra; Tripp v. Choate, 415 S.W.2d 808 (Mo.1967); and ffartz v. Heimos, 352 S.W.2d 596 (Mo.1962). Appellant has not persuaded us that the verdict should be disturbed.

Appellant’s final point deserves only passing comment. It is that the “cumulative effect of the errors” deprived him of a fair trial. We have found no prejudicial error resulting from the incidents we have reviewed on the merits. Other contentions were not preserved for appellate review. The “cumulative effect” of these cannot result in the denial of a fair trial.

The judgment is affirmed.

SIMEONE, C. J„ and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    IRA E. BERRY, INC., Appellant, v. AMERICAN STATES INSURANCE COMPANY, Respondent.
    No. 39256.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.

      Love, Lacks & McMahon, Thomas K. Edelmann, Clayton, for appellant.
    William F. James, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

By this action plaintiff (hereafter “Berry”), sought to recover money from its liability insurer which Berry had paid in its unsuccessful defense of a damage suit based on Berry’s fraud. Berry contended that by defendant’s policy it was obliged to defend the action against it and to pay its loss. Defendant contended the loss was for fraud, expressly excluded from coverage. The trial court agreed and rendered summary judgment against Berry, from which Berry has appealed. We affirm.

By its policy, known as a Real Estate Agents’ Errors and Omissions Policy, defendant agreed “to pay on behalf of the insured [Berry] all sums which the insured shall become legally obligated to pay on account of any claim made against the insured and caused by any negligent act . in the conduct of their business as real estate agents.”

During the policy period a suit was instituted against Berry by James B. and Judith A. Hutchings. Their petition alleged Berry had “falsely and fraudulently” made representations to them regarding real property they had purchased through Berry. Berry requested defendant to defend it pursuant to the policy provisions. Defendant refused to defend, claiming Berry was not afforded coverage for the fraudulent acts the Hutch-ings alleged. Defendant relied on a policy provision that excluded from coverage “any dishonest, fraudulent, criminal or malicious act, libel or slander.” Ultimately, Berry settled with and paid the Hutchings.

Berry then sued defendant-insurer to recover the sums it had paid the Hutchings. Defendant answered and moved for summary judgment. Berry filed an affidavit in opposition admitting the Hutchings’ petition was grounded on fraud but further asserted that the conduct which gave rise to the Hutchings’ action was negligent rather than fraudulent. The trial court then sustained defendant’s motion and rendered summary judgment against Berry.

Berry contends the trial court erred in granting summary judgment because the facts concerning its conduct giving rise to the Hutchings’ action were in dispute, citing Rule 74.04(d) and Hurwitz v. Kohm, 516 S.W.2d 33[3] (Mo.App.1974).

For the purpose of avoiding summary judgment, a genuine issue of facts exists whenever there is doubt as to the facts. Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328[2] (Mo.App.1977). The undisputed facts here: (1) Defendant had insured Berry for loss resulting from negligence but not fraudulence, (2) the Hutchings’ petition stated a cause of action based on fraud and (3) the Hutch-ings’ action against Berry was settled without a judicial determination that Berry was liable for either fraud or negligence. Berry’s affidavit in opposition to defendant’s motion for summary judgment did not allege “such facts as would be admissible in evidence,” (Rule 74.04(e)). In other words, Berry did not specify the acts which were allegedly negligent. Plaintiff merely stated that it “intended” to prove these facts at some future time. A party cannot argue that he has evidence for trial that will disclose issues of fact. Hurwitz, supra. Under these circumstances, Berry failed to comply with Rule 74.04(e) and we cannot say the trial court erred in granting defendant’s motion for summary judgment. Renois v. DiFranco, 512 S.W.2d 411[3] (Mo.App.1974).

Furthermore, the sole issue of Berry’s present action is whether the provisions of defendant’s policy provided coverage. A liability insurer’s duty to defend and to pay is determined by its policy and the allegations of the insured’s petition. Zipkin v. Freeman, 436 S.W.2d 753[1] (Mo. 1968). Summary judgment is proper where the issue to be resolved is the construction of a contract which is unequivocal on its face. Adzick v. Chuiick, 512 S.W.2d 194[2] (Mo.App.1974); Renois, supra, at 413[2], As noted, Berry admitted the Hutchings’ action against it was grounded on fraud. The insurance policy clearly excludes fraud and summary judgment was proper.

Berry mistakenly contends the facts giving rise to the Hutchings’ petition are material to its cause of action against defendant, which is based on its insurance contract. The facts of the Hutchings’ cause of action are not in issue here because plaintiff settled that case. Thus, no judicial determination regarding the facts in that case were made. For us to determine what the facts might have been and whether these facts constituted fraud or negligence, would be to rule on the merits of the Hutchings’ case without a trial on their petition.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: WEIER, Judge.

text:
    STIX FRIEDMAN & COMPANY, INC., Plaintiff-Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Respondent.
    Nos. 37999 and 38027.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 28, 1978.

      Lowenhaupt, Chasnoff, Freeman, Armstrong & Mellitz, Hugh R. Law, St. Louis, for plaintiff-appellant.
    Barnard, Baer, Lee, Timm & McDaniel, James C. Brandenburg, St. Louis, for defendant-respondent.
   WEIER, Judge.

Plaintiff Stix Friedman & Company, Inc., brought suit against its insuror, defendant Fidelity & Deposit Company of Maryland, to recover on an insurance policy for loss sustained by plaintiff through its alleged good faith acceptance of allegedly altered stock certificates. A jury returned a verdict for plaintiff in the sum of $25,000. Plaintiff voluntarily remitted $5,310.68 making a total of $19,689.32 in its favor. Thereafter, the trial court granted defendant’s motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence on the ground that the evidence failed to show that the certificates had been altered or fraudulently altered. The trial court, in the event its judgment was reversed on appeal, further denied defendant’s alternative motion for a new trial. Plaintiff appeals, contending the trial court erred in granting defendant’s motion for a judgment notwithstanding the verdict. Defendant appeals claiming that if the trial court erred in granting the motion for a judgment notwithstanding the verdict, it also erred in denying defendant’s alternative motion for a new trial.

In the pertinent portion of the insurance contract defendant agreed “to indemnify and hold harmless the Insured for: . Loss sustained by the Insured through the insured’s having, in good faith and in the course of business, purchased or otherwise acquired, accepted or received, or sold or delivered, or given any value, extended any credit or assumed any liability, on the faith of, or otherwise acted upon, any securities, documents or other written instruments which prove to have been (a) counterfeited or forged . or (b) raised or otherwise altered or lost or stolen . . .” The dominant issues in the trial and on appeal are whether plaintiff sufficiently proved (1) that the instruments in question were “altered,” (2) that plaintiff accepted the instruments “in good faith” and (3) that plaintiff suffered a “loss” as a result of its good faith acceptance of the altered instruments. In summary the facts are that plaintiff agreed to allow another brokerage company to exchange stock certificates held by plaintiff as collateral, that as part of the exchange plaintiff accepted two certificates representing 2,000 shares of stock in “Information Management International Corporation” apparently believing them to be certificates for “Information International Corporation” (the word “Management” had been crossed out in pencil), and that the stock actually received was worth much less than the stock plaintiff apparently thought it was getting. Because the issues involve whether plaintiff made a submissible case, we review the facts in detail.

Plaintiff Stix Friedman & Company, Inc., is a stock brokerage firm owned by William Stix Friedman. In 1972 the company was a member of the New York Stock Exchange but was principally engaged in trading over-the-counter securities. Plaintiff hasn’t done any business with the public since December 1972. On about December 1, 1971, while still active in the market, plaintiff agreed to clear stocks for White & Company, Inc. Mr. Friedman testified that “[w]hat happened was White & Company had been drafting stocks through First National Bank. The First National Bank, I believe, told Mr. White [president of White & Co.] that they didn’t want to draft any of his securities any more, and he asked if we would draw draft on them . . . [W]e agreed to draw drafts for White & Company . . They have serious problems and there were a number of brokers and dealers who were no longer willing to do business with White & Company. I did not envision this as a running account. I thought everything would be on a strictly cash basis and it turned out not to be.” Friedman also stated that White & Company had been suspended by the New York Stock Exchange. White denied this but he did acknowledge that the company’s seat on the Midwest Stock Exchange (which was in the name of White’s brother) was under a suspension “for a period of time in 1971 until we rearranged certain business transactions.”

A letter drawn up by Friedman and signed by White dated January 26,1972, set out the amount plaintiff would be paid for each draft it cleared for White & Company. The letter also states that White and Company agrees to let plaintiff “have some extra collateral in the amount of $15-20 thousand in the event that from time to time one of your drafts may not clear.” Pursuant to this agreement White & Company delivered to plaintiff 600 shares of Sea World, Inc., stock, which at that time had a value in excess of $20,000. Although at one point Mr. Friedman stated that the agreement outlined in the letter had not been modified, he later acknowledged that it was his understanding with Mr. White “after this letter” that the collateral was also to be held for other transactions such as sales. In other words, Friedman believed the collateral was a margin on White & Company’s account. He also testified that it was the custom in an account such as this not to release the collateral stock if there is a debit balance. Mr. White, on the other hand, testified that plaintiff was holding the collateral solely to cover the situation where a draft would not be picked up by a broker on the other side of the transaction. After numerous transactions between these parties White & Company owed plaintiff in excess of $20,000 in February 1972. This debit balance arose because White & Company was often slow in delivering certificates of volatile stock to plaintiff.

On or before February 25, 1972, Mr. White proposed to exchange the Sea World, Inc., stock held by plaintiff as collateral for some other stock. Friedman said his company frequently permitted such an exchange. He also testified that White proposed to deliver 2,000 shares of “Information International” stock in exchange for the Sea World, Inc., stock. Friedman checked the value of 2,000 shares of Information International and found it to be worth about $25,000 on February 25, 1972. White, however, testified that he had proposed to substitute “Information Management International” stock for the Sea World, Inc., stock. Two thousand shares of Information Management International Stock was worth about $310.68 on February 25, 1972.

When the stock certificates were delivered by White & Company, Mary Charyle Weber, whose deposition was read into evidence, worked for plaintiff taking in and sending out stocks and bonds. She stated that if the validity of a security was doubtful in some way that she had primary responsibility to decide whether or not to accept it and if she had a question she would consult her supervisor. In response to a question about “what specific instruction did you get at Edward Jones and Company [her previous employer — also a stock brokerage company] and at Stix Friedman with regard to the receiving and classifying of securities, documents,” she stated, “If there was any question about the name of the security, such as any markings had been put in or any words added, I was first to check this list that we had which showed name changes. If I couldn’t find it there or if I had any further questions, I was to go to my supervisors and ask them.” On or before February 25,1972, Mrs. Weber heard from Mr. Friedman that some stock would be coming in from White & Company. On that day a messenger from White & Company brought in two stock certificates and gave them to Mrs. Weber. She noticed that “the name on the security was not the name I was told to expect . . . The title wasn’t the same and, also, it had been scratched out. I didn’t know whether that meant it was still an okay certificate. I was told it had been, in other circumstances, but I was leery from the securities coming in from White and Company.” The two certificates, introduced into evidence, stated in large black lettering near the top “Information Management International Corporation.” On both certificates the word “Management” had been crossed out several times with a pencil, but this word was still clearly visible. In smaller lettering near the middle of both certificates there was again printed “Information Management International Corporation” without any extraneous markings. Mrs. Weber took the certificates to her supervisor, Bob Dunlap, and showed them to him. “He said it is okay, it is a security change ... a change of name.” After Mr. Dunlap gave his approval Mrs. Weber “went out and checked it in this book, anyway. We had a book where you could find change of names. They came out with a new paper or pamphlet every so many months, of changes of names and companies, and so, supposedly, if it hadn’t just happened, you could find it in there. You could find the old name in there. I checked it in the book.” Mrs. Weber did not find any change from Information Management International to Information International. She then paid the messenger and gave him a receipt for 2,000 shares of “Information International Corp.” stock. The certificates were actually shares of “Information Management International Corporation” stock rather than shares of “Information International Corporation” stock. Mr. Friedman first saw the certificates at the close of business that day. White was informed the certificates delivered had a lesser value but White never made “good on the deal.” When plaintiff ceased dealing with White & Company and closed their account, White & Company owed plaintiff “something in excess of $30,-000.00.”

In an effort to prove that its acceptance of the certificates in question was in good faith, Friedman testified that it was the practice of stock brokers to accept a stock certificate with a marking on it under circumstances where the name of the company had been changed or where there was a merger with another company. Newly printed certificates after the change were not always available. On cross-examination, he admitted that in this instance his clerks were “probably not as diligent or as sophisticated as they should have been.” As to whether the appearance of penciled lines on the front of the certificate were “red flags” to investigate the issue, he replied, “I suppose there were a lot of red flags on that certificate. I’m not questioning that.”

On the other hand defendant’s expert witness testified that the practice followed throughout the brokerage industry was never to accept certificates like those in this case without determining that a name change had been recorded in a regular trade publication such as “Standard & Poor” digest or in “trading sheets.” Witness Weber, plaintiff’s receiving clerk, had found no listing of such a change and had failed to communicate this to Mr. Friedman.

“When the party having the burden of proof has adduced substantive evidence on a pleaded issue, that issue should be submitted to the jury and it is reversible error to direct a verdict against that party . [I]t is our duty to view the evidence before the trial judge who directed the verdict against the plaintiffs in a light most favorable to the plaintiffs and indulge in all reasonable inferences from the evidence in their favor. Except when unreasonable or opposed to physical laws, plaintiffs’ evidence must be taken as true. However, we must find substantial evidence supporting plaintiffs’ claim; a mere scintilla of evidence is not sufficient.” Kaelin v. Nuelle, 537 S.W.2d 226, 229-30[2-4] (Mo.App.1976).

Guided by these principles, we first consider whether the certificates in question were “altered” within the meaning of the insurance policy. The trial court held that the certificates had not been so altered. Plaintiff contends the definition of “altered” adopted by the trial court and defendant is incorrect. The allegedly erroneous definition, borrowed from contract and negotiable instrument law, appears in Instruction No. 4 and states that “an alteration is an act done upon a written instrument by a party thereto or by a person claiming thereunder which changes its language so as to materially affect the rights and obligations of the parties.” This definition would be proper if plaintiff were seeking to be discharged from a contract because of a material alteration in the terms of an agreement made on a written contract by the other party but it is not proper where the only issue is whether these certificates have been “raised or otherwise altered” within the meaning of this insurance policy. The policy does not require that the alteration be material. It is designed to protect plaintiff from losses arising from plaintiff’s good faith acceptance of documents which have been “(a) counterfeited or forged ... or (b) raised or otherwise altered or lost or stolen without any requirement as to the degree or type of alteration involved. These certificates were “altered” within the meaning of the insurance policy. The trial court erred in ruling otherwise. The judgment for defendant cannot be sustained on this ground. But this does not end our inquiry. If the action of the court in sustaining the motion for judgment notwithstanding the verdict is supported by any of the grounds raised by defendant in its motion, carried forward in its brief and would support a judgment in its favor, the trial court judgment will be affirmed. McClellan v. Highland Sales & Investment Co., 514 S.W.2d 371, 374[1] (Mo.App.1974). See also, Powers v. Shore, 248 S.W.2d 1, 4[1] (Mo. banc 1952); Auffenberg v. Hailey, 457 S.W.2d 929[36] (Mo.App.1970). The first such ground upon which defendant urges this court to affirm the trial court judgment is plaintiff’s alleged failure to prove good faith.

Plaintiff accepts defendant’s definition of good faith as “an absence of all information or belief of facts that would render the transaction unconscientious.” Gray v. Clement, 296 Mo. 497, 246 S.W. 940, 944[8] (1922). This is similar to the definition of good faith given to the jury in Instruction No. 5. This instruction stated: “The Court instructs the jury that ‘good faith’ means freedom from knowledge of circumstances which ought to put a person upon inquiry. This includes the exercise of reasonable discretion under the circumstances, and an honest effort to ascertain the facts and to make a determination based on such ascertained facts.” It has been stated that “ ‘good faith’ is more than a state of mind. Under these circumstances it may also be a concrete principle upon which the world’s business is daily transacted. A breach of good faith is not so wholly within the realm of the mind that it cannot be reasonably inferable. Even the state of a man’s mind is reasonably inferable from what he says (or fails to say) and what he does (or fails to do) under certain circumstances It has been held that ‘good faith’ is not an abstract thing, but ‘is a concrete quality, descriptive of the motivating purpose of one’s act or conduct when challenged or called into question.’ ” Krone v. Snapout Forms Co., 360 Mo. 821, 230 S.W.2d 865, 869 (1950). The definition of good faith agreed to by the parties and appearing in the jury instruction goes beyond a requirement of a mere subjective, innocent and honest belief in the lawfulness and correctness of some action. This subjective definition is the basic definition of good faith under § 1-201(19) of the U.C.C. (§ 400.1-201(19) RSMo 1969), sometimes referred to as the white heart — empty head standard, where the actual belief rather than the reasonableness of that belief is the controlling criteria. Anderson, Uniform Commercial Code § 1-201:60 (1970). In addition to this basic requirement, the parties’ definition and jury instruction require that plaintiff’s acceptance of the certificates be reasonable under the circumstances. In terms of the U.C.C. this means that the action be “commercially reasonable.” See, U.C.C. § 8-318 (§ 400.8-318 RSMo 1969); Anderson, Uniform Commercial Code § 1-201:60 to 1-201:64 (1970). See also, Phillips v. Whittom, 354 Mo. 964, 192 S.W.2d 856, 857[2] (1946) wherein it is said: “Good faith, however, generally imposes a duty on the obligor to use reasonable diligence — the diligence that an honest man of ordinary prudence is accustomed to exercise.” See generally, 35 C.J.S. Faith, pp. 605-08.

Whether plaintiff’s acceptance of these certificates was in good faith as defined above depends on plaintiff’s evidence of the reasonableness of its actions under the circumstances. The question for this court is not whether there is more evidence of good faith than of bad faith (obviously there is much evidence that plaintiff’s action was not reasonable); the issue is only whether there is substantial evidence of good faith. Mr. Friedman testified that brokers sometimes accept securities with marks on them, such as when there has been a name change. Mrs. Weber also said certificates like the ones in question had been “okay” in other circumstances and that within her experience it had never been the case (before this case) that such altered documents were not valid. But these witnesses never stated that they or any other broker would accept such altered documents without first verifying the fact of a name change. Mr. Friedman acknowledged that he sometimes relied on assurances from other brokers but he never said he or any other broker would rely on assurances from Mr. White, a person whom Mr. Friedman admitted had a bad reputation for truthfulness in the investment community. The evidence that brokers sometimes accept certificates with marks on them, that plaintiff had never before had a problem with altered documents and that Mr. Friedman would rely on the assurances of another broker does not rise to the level of substantial evidence of reasonableness and good faith. The trial court judgment for defendant is sustainable on this ground on the facts of this case.

The judgment is affirmed.

GUNN, P. J., and KELLY, J„ concur.

      . Webster’s Third New International Dictionary gives as one definition of the word “raised,” “to add fraudulently to the face value of (a bank check or other negotiable paper) by altering the writing, figures, or printing in which the sum payable is shown.”

      . Mr. Friedman testified that “[a]n over the counter [stock] is one that is not listed on any national exchange. For instance, the banks in St. Louis, none of them are listed on a national exchange. Anheuser Busch is not listed. On the other hand there are many, many smaller companies, many of which are trading, for less than a dollar a share that are trading over the counter.”

      . Dunlap was not available to testify at the time of trial.

      . “We say substantial evidence, because the ‘scintilla’ doctrine is no longer the rule in this jurisdiction.” Lamm, J. in Williams v. Kansas City Southern Ry. Co., 257 Mo. 87, 165 S.W. 788, 796 (Banc.1914); see also, S. S. Kresge Co. v. Unemployment Compensation Commission, 349 Mo. 590, 162 S.W.2d 838, 840[5] (1942).

      . See, § 400.3-406 and § 400.3-407 RSMo 1969; First National Bank of Fredonia v. Meadows, 460 S.W.2d 604 (Mo.1970) (promissory notes); Robb v. N. W. Electric Power Cooperative, 297 S.W.2d 385 (Mo.1957) (deed granting an easement); Bader Automotive & Industrial Supply Co., Inc. v. Green, 533 S.W.2d 695 (Mo.App.1976) (restrictive employment agreement); Mayfield v. Stoops, 262 S.W.2d 299 (Mo.App.1953) (promissory note); Bente v. Finley, 83 S.W.2d 155 (Mo.App.1935) (chattel mortgage). See generally, 3 C.J.S., Alteration of Instruments; 4 Am.Jur.2d Alteration of Instruments.


author: STEWART, Presiding Judge.

text:
    NATURAL BRIDGE DEVELOPMENT CO., Appellant, v. ST. LOUIS COUNTY WATER CO., Respondent.
    No. 38650.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 28, 1978.

      Milton L. Schwartz, St. Louis, for appellant.
    Richard T. Ciottone, St. Louis, for respondent.
   STEWART, Presiding Judge.

Plaintiff, the owner of a multi-family apartment complex, filed suit for declaratory judgment against defendant water company, a public utility, to determine a dispute between the parties over billing for water used in the apartment complex. Plaintiff alleged that defendant’s water meters were inaccurate and as a result plaintiff was charged in excess of three times the amount charged for water used in the apartment complex during comparable periods. Plaintiff also sought an injunction to prevent defendant from discontinuing water service to plaintiff pending the disposition of the declaratory judgment action. A temporary restraining order was issued and defendant was ordered to show cause why a temporary injunction should not be issued. Defendant filed a motion to dissolve the temporary restraining order and a motion to dismiss plaintiff’s petition for lack of subject matter jurisdiction. The trial court dismissed plaintiff’s petition for lack of subject matter jurisdiction. Facts necessary to disposition of issues will be set out hereafter.

On this appeal plaintiff contends that because his Application for Change of Judge was timely filed pursuant to Rule 51.05, it was error for the trial court to overrule the application and that the court thus lacked jurisdiction to enter its order dismissing its petition. Plaintiff alternatively contends that the court erred in dismissing his petition for lack of subject matter jurisdiction because the subject matter of the action, overcharge by reason of improperly functioning-meters, is not within the exclusive jurisdiction of the Missouri Public Service Commission. We reverse and remand.

We conclude that the trial court should have granted the Application for Change of Judge which forecloses our consideration of other issues raised by plaintiff.

With respect to the court’s action on plaintiff’s Application for Change of Judge the transcript reveals that a temporary restraining order was issued on July 27, 1976, restraining defendant from discontinuing water service to plaintiff. The order to show cause why a temporary injunction should not be issued was set for August 23, 1976. On August 20, 1976, defendant filed a motion to dissolve the temporary restraining order, a motion to dismiss plaintiff’s petition and a memorandum in support of its motion to dismiss. At that time the court, on its own motion, continued the show cause order to August 25, 1976.

The next entry in the transcript is a court memorandum signed by counsel and by the court dated August 25, 1976. It reads:

“Cause called on show cause order and with consent of both parties; said show cause order is continued to September 9, 1976 and Plaintiff is granted to said date within which to file a reply to Defendant’s motion to dismiss.”

On August 27, 1976, plaintiff filed an Application for Change of Judge and notice that the application would be called up for hearing on September 7, 1976. The record shows that on September 7, the Application for Change of Judge was called and overruled. On September 14, the “motion to dismiss was argued and submitted.” On October 13, the court entered its order dismissing plaintiff’s petition “without prejudice for lack of jurisdiction.”

The present rule governing change of judge, 51.05, became effective September 1, 1975. For our purposes it is the same as Rule 51.05 which became effective September 1, 1973. The rule as promulgated in 1973, and as it now stands with minor changes, replaces Rule 51.03 and 51.06 effective March 1, 1964 and represents a substantial departure from the older rules. Formerly, a change of judge could be obtained only for the causes enumerated in 51.03 (eff. 1964). The application for change was required to set forth the cause for disqualification and the date when the applicant first obtained knowledge of the cause and an affidavit as to the truth of the application and, among other things, a statement that the affiant had just cause to believe he could not obtain a fair trial and that the request was not for the purpose of delay. Rule 51.06(a). The application was required to be filed within 5 days after knowledge of the existence of cause became known and no later than 5 days “before the date set for trial on the merits.” Rule 51.06(c) (eff. 1964).

The portions of Rule 51.05 necessary to our discussion are subsections (a), (b) & (e). They read:

“(a) A change of judge shall be ordered in any civil action upon the filing of a written application therefor by any party or by his agent or attorney. The application need not allege or prove any cause for such change of judge and need not be verified.
“(b) The application must be filed at least thirty days before the trial date or within five days after a trial setting date has been made, whichever date is later, unless the trial judge has not been designated within that time, in which event the application may be filed within ten days after the trial judge has been designated or at any time prior to trial, whichever date is earlier.
“(e) Upon the presentation of a timely application for change of judge, the judge shall promptly sustain the application . . ."

It is apparent that subsection (a) of the rule made a most substantial change in this area of the law. The party seeking a change of judge need not allege or prove any cause for the change. The right to a change of judge is placed in the category of the peremptory jury challenge. Aside from service of a copy of the application and notice, the only prerequisite for granting a change of judge is a timely application for the change. The application need only state, “_ requests a change of judge.” , and upon presentation of the timely application the judge is required to promptly sustain the application and obtain a judge to try the cause in accordance with Rule 51.05(e)(1), (2).

In this case defendant, in his argument, stresses the fact that the trial judge at some time on August 25 stated that he was familiar with the law of the case and would be inclined to sustain defendant’s motion to dismiss. There is nothing in the record with respect to the comments of the judge; plaintiff, however, in its brief, concedes that the court did make a statement to that effect. We may therefore take the matter into consideration. Hammack v. White, 464 S.W.2d 520, 522[1—5] (Mo.App.1971).

Because the applicant for a change of judge is not required to allege and prove the reason therefor, there is no basis for inquiry into the reason for the application. The only issue open for inquiry is the timeliness of the application. The fact that the court expressed an opinion as to the merits of the controversy is not material to that issue.

In this case the trial judge had been designated so that the application was required to be “[fjiled at least thirty days before the trial date or within five days after a trial setting date has been made, whichever date is later . ” Rule 51.05(b). Plaintiff urges us to rule that the hearing on the show cause order is not a trial within the meaning of the rule. Defendant urges that a hearing on an order to show cause is a trial. It is unnecessary for us to rule on this issue. Plaintiff filed its Application for Change of Judge on August 27, two days after the hearing on the show cause order was set. Therefore, even if the hearing constitutes a trial, the application was timely because it was filed “ . within five days after a trial setting date has been made . . ”

Respondent urges us to hold that the matters upon which the court ruled in dismissing plaintiff’s petition had been submitted to the court priqr to plaintiff’s application and that the Application for Change of Judge was untimely under authority of Jenkins v. Andrews, 526 S.W.2d 369 (Mo.App.1975). The well reasoned opinion of Welborn, S. J., is readily distinguished from the case at hand.

In that case the parties had filed a motion for summary judgment and a motion to dismiss. All of the evidence necessary for the disposition of the case had been presented to the court, the motions had been fully argued and the issues submitted. The court had made a tentative expression of opinion on the merits of the cause. Plaintiff, in that case, at the suggestion of the court that an amendment to the petition was required, obtained 30 days in which to file an amendment to his petition. Within the 30 day period plaintiff filed an application for change of judge. After argument on the application, the court dismissed plaintiff’s petition and then granted the request for change of judge.

The Kansas City Court of Appeals affirmed the action of the trial court. It held that the right to disqualify a judge may not be employed to produce absurd results. Jenkins, supra, at 372. The court also said, 1. c. 373:

“To permit appellants to disqualify the judge, rather than to file their amended petition, would nullify the hearing which had been held, result in a duplication of the proceeding already undertaken and permit appellants to take advantage of a tentative expression of opinion by the trial judge on the matter submitted to avoid his action upon it. Such result is not required by Rule 51.05. . . .the action of the trial court in ruling on the motion previously submitted before acting on the disqualification was not error.”

Defendant argues that “[ajppellant herein, as in Jenkins, permitted a hearing to be called, listened to Respondent’s arguments, listened to the court’s comments, and was given a full opportunity to respond.” Defendant makes no reference to the transcript with respect to these assertions. In the record before us there is no evidence that a hearing was held on August 25. The record entry of the trial court quoted verbatim above reveals that the cause was called and continued by consent. The court had nothing under submission at the time plaintiff filed his Application for Change- of Judge. In this essential regard this case is clearly distinguished from Jenkins.

The extent of the rule announced in Jenkins is that the timely filing of an application for change of judge cannot deprive the court of jurisdiction to rule upon those matters which are then under submission to the court for a ruling. The court may rule upon those matters then under submission and the only power it has thereafter is to “ . . promptly sustain the application . . . ” Rule 51.05(e).

At the time the Application for Change of Judge was filed there was no matter under submission to the court, whether or not the show cause hearing was a trial, the application was filed two days after the setting was made. The application was timely filed. Plaintiff was entitled to a change of judge upon the filing of the application. 51.05(a). Upon presentation of the application the court was required to promptly grant the request for change of judge. 51.05(e). The court was without jurisdiction to take any further action in the cause. Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625, 628[5] (Mo.App.1972). The court had no power to enter its order dismissing plaintiff’s petition.

The cause is remanded to the trial court with directions to set aside the judgment dismissing plaintiff’s petition and to grant plaintiff’s Application for Change of Judge.

REINHARD and STEPHAN, JJ„ concur.

      . Committee note—1973.


author: SMITH, Judge.

text:
    Elmer Carl BURTSCHER, Petitioner-Respondent, v. Edna A. BURTSCHER, Respondent-Appellant.
    No. 38656.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.

      E. D. Lofftus, Fenton, for respondent-appellant.
    Joseph P. Cunningham, Hillsboro, for petitioner-respondent.
   SMITH, Judge.

Appellant-wife appeals from a judgment dissolving the marriage of the parties. She attacks only the division of the marital property and the amount of maintenance awarded to her.

The thrust of the wife’s attack on the division of marital property is that the court failed to give proper consideration to the conduct of the parties during the marriage and particularly the claimed misconduct of the husband. Specifically, the wife points to the evidence adduced that the husband near or after the time the parties separated undertook an adulterous relationship with another woman. The husband denied any misconduct, although admitting he did move into a mobile home owned and occupied by the other woman and her mother. He and the other woman stated he was only a boarder. The wife produced evidence of her good conduct throughout the marriage. She did admit to playing bingo four evenings a week from 6:00 to 11:30 while her husband was at home and over his protests.

One of the four non-exclusive relevant statutory factors in the division of marital property is the “conduct of the parties during the marriage.” Sec. 452.330.1(4).

We have found no case which precisely delineates what this factor encompasses. Clearly, marital misconduct should not serve as a basis for ordering excessive maintenance against, or inadequate marital property to, the offending spouse. In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975) [13, 14 (ftnt. 6)]. The conduct referred to is not limited to conduct relating to financial misdeeds. Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975) [6]. Conduct encompasses both good conduct and misconduct, and is modified by the phrase “during the marriage”. As pointed out in Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977) [6] “during” means “throughout the course or continuance of”. It does not warrant an inordinate focus upon a particular incident of misconduct or even a series of incidents, particularly in a marriage of long duration. Marriage of Schulte, supra. It is unnecessary and probably impossible to lay down any precise guidelines for the weight to be given to the conduct factor. We believe the conduct factor becomes important when the conduct of one party to the marriage is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship. The thrust of the dissolution law is to treat the marriage as a partnership’to which each spouse presumably contributes equally. When the misconduct of one party changes that balance so that the other party must assume more than his or her share of the partnership load it is appropriate that such misconduct should affect the distribution of the property of that partnership. It is logical that if one party to the partnership has, because of the other’s misconduct, contributed more to the partnership, he or she should receive a greater portion of the partnership assets.

We find nothing in the record here which demonstrates an abuse of discretion in the court’s award of marital property. The husband’s misconduct, if any, occurred near or after the parties’ separation. It occurred during only a small portion of a 24 year marriage, and there is no indication it imposed any particular burdens upon the wife. The wife’s bingo obsession, continued over the admitted objections of her husband, was also detrimental to the marital relationship and the partnership stability. The marital assets received by the wife although somewhat less than those received by the husband, were of more fixed value than those of the husband, who received the business assets, some of which were of dubious value. The trial court could properly find that the continued, albeit decreasing, success of the business required that it be awarded to the husband. The trial court to balance the award of the business assets to the husband, and in acknowledgment of the wife’s contribution to those assets, awarded the wife a $20,000 cash judgment to be satisfied over a five year period. We find no abuse of discretion in the award of marital property.

We also find the court’s maintenance award to be within its discretionary power. The wife’s evidence established her reasonable needs to be in the range of $450 per month. Part of the marital property awarded to her was the family home free from debt. The court’s award of maintenance was $50 per week. The husband’s most recent annual net salary was slightly less than $20,000. The maintenance awarded plus the $4,000 per year marital property payment reduced this amount to $13,500. There was evidence that the husband’s business is declining and will continue to do so.

Under Sec. 452.335.1 the court must determine the reasonable needs of the wife, that she has insufficient property to meet those needs, and that she is unable to support herself through appropriate employment. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App. banc 1977). The wife is 49 years old, in reasonably good health, and has no children. While she has no formal employment training, she worked throughout the marriage as a bookkeeper and office helper in her husband’s business. Between the date of separation and the date of trial, approximately 15 months, she made only two perfunctory efforts to obtain employment. This does not establish her inability to support herself through appropriate employment. Almost any employment in addition to the maintenance provided would be sufficient to meet the reasonable needs to which she testified. Her standard of living, both during the marriage and now, is modest. Although the maintenance awarded is not generous, we do not find it inadequate.

Judgment affirmed.

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


text:
    In re the MARRIAGE OF Sara Jane BEQUETTE and James Glennon Bequette. Sara Jane BEQUETTE, Respondent, v. James Glennon BEQUETTE, Appellant.
    No. 38476.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.

      Anderson, Brooking, Hammon & Dieffen-bach, Larry W. Mohl, Hillsboro, for appellant.

      Jeremiah Nixon, Hillsboro, for respondent.
   SMITH, Judge.

Appellant husband appeals from a judgment entered in a dissolution of marriage case. Both parties agreed the marriage was irretrievably broken and agreed that the wife should have custody of the children of the marriage. The husband raises three issues on appeal: (1) the trial court erred in amending its original order dividing the marital property, (2) the trial court erred in refusing to enforce a separation agreement and (3) the court erred in making its maintenance award.

The record discloses an extremely confusing financial picture, both as to marital property and the husband’s income. The husband is in the real estate and insurance business and apparently does substantial speculating in real estate. This, plus an absence of reliable and definitive record keeping, placed a substantial burden upon the trial court in attempting to frame proper relief.

In its original decree the court awarded the wife two deposits in savings institutions totaling $3,400.44. The wife’s evidence at trial reflects that those deposits were in existence on or near the date the parties separated. The wife withdrew both deposits and used the money for her purposes, apparently to purchase a car. The husband’s sworn financial statement filed the day before trial listed both accounts as in existence although the husband testified the statement was based upon conditions at or near the time of separation. Following trial and the court’s original order, the wife filed an affidavit and motion stating that the accounts did not exist and that she therefore had received less than the sum actually awarded by the court. With considerably less candor than the trial court was entitled to expect, the affidavit omitted the fact that the deposits were no longer in existence because the wife had already reduced them to her sole possession and spent them. The trial court amended its order by deleting the deposits from the list of marital property to be awarded to the wife and granting instead a personal money judgment against the husband in favor of the wife for $3,400. In amending the order the trial court stated that the affidavit was “not challenged by affidavit or sworn testimony.” The husband filed an unverified motion in opposition to the affidavit.

We view it as properly within the trial court’s discretion to have made an award of $3,400 in addition to the deposits reduced to possession by the wife. It was also within the court’s discretion to have refused to make such an award. We are unable to tell, however, whether the amended award was based upon a knowing exercise of discretion or because of respondent’s misleading affidavit. The court’s order would indicate the latter. We therefore, reverse that portion of the decree awarding respondent $3,400 in a personal money judgment against appellant and remand for reconsideration in light of the actual facts.

An agreement was executed six months prior to the separation of the parties, purporting to divide some but not all of the marital property of the parties. It also provided for child custody and support and for maintenance. The trial court found that the agreement was not executed in contemplation of dissolution, that appellant withheld information on his assets and that it would be unconscionable to enforce the agreement.

Sec. 452.325.1 RSMo 1969, provides that the parties “attendant upon their separation or the dissolution of their marriage” may enter into a settlement agreement which unless found to be unconscionable shall be enforced by the court in the decree of dissolution. There was substantial evidence here that the separation agreement was not entered into as a preliminary to separation or dissolution of the marriage. In fact the marital relationship continued for six months after the execution of the document under conditions described by the wife as much improved over the prior relationship. “Attendant” is defined as “accompanying, connected with, or immediately following”. Websters Third New International Dictionary, p. 140. The evidence was sufficient to support the trial court finding that the agreement did not accompany, follow nor was connected with the subsequent separation. It is the intent and purpose of the statute that agreements shall be enforced by the court where they represent arms length negotiations intended to settle the respective rights of two people committed to an imminent separation or dissolution. “Attendant” does not carry the connotation that an agreement is covered which is made simply because of the possibility of future separation or dissolution.

We have carefully reviewed the husband’s third point and find adequate evidence to support the trial court’s award of $200 per month maintenance for sixteen months. While the husband’s evidence and tax returns indicate an earning level which would not support such an award, there was other evidence properly considered by the court. The amount of marital property, the nature and scope of the husband’s business, his past earnings, his profitable real estate speculations, and his lack of candor concerning many of his financial transactions warrant a conclusion that his earnings are sufficient to provide the maintenance decreed in addition to his $300 per month child support obligation.

Judgment affirmed except as to money judgment of $3,400, and cause is remanded for further proceedings in accordance with this opinion.

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


author: McMILLIAN, Judge.

text:
    Elmer GHERTNER, Appellant, v. Donn H. LIPTON, Irving Lipton, Marilyn G. Lipton, and Lipton Realty Company, Grado, Inc., Oreon E. and R. G. Scott, Inc., Respondents.
    No. 39162.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Feb. 28, 1978.

      Norbert M. Reker, St. Louis, for appellant.
    Susman, Stern, Heifetz, Lurie, Sheehan, Popkin & Chervitz, Richard J. Sheehan, Pat L. Simons, St. Louis, for respondents.
   McMILLIAN, Judge.

Appellant Elmer Ghertner appeals from a judgment entered in the circuit court of the City of St. Louis granting respondents’ motion to dismiss for failure to state a claim upon which relief could be granted and because the action was barred by the statute of limitations. For reversal appellant argues that the trial court erred in granting the motion to dismiss because (1) the petition set forth sufficient facts to invoke substantive principles of law which may entitle him to relief and (2) the statute of limitations is inapplicable because the partnership is still in existence. We do not agree and, accordingly, affirm the judgment.

The basic facts, according to the petition, are that sometime prior to November 3, 1969, appellant discovered that the Kings-bury Apartments were available for purchase. Appellant believed this property constituted a profitable investment opportunity but was unable.to arrange adequate financing on his own. Appellant then contacted respondent Donn Lipton, who had contacts with a church organization that could finance the purchase of the property, and proposed that they combine their various skills and resources to take advantage of this investment opportunity. Lipton agreed. Appellant obtained two option contracts but purchase of the property was never completed due to lack of adequate financial arrangements. The second option contract expired June 15, 1970.

Sometime after June 15,1970, respondent Donn Lipton entered into negotiations with the managing agents of the apartments on his own behalf. The apartments were subsequently purchased by a Lipton corporation, respondent Grado, Inc., on or about October 2, 1970, and leased to the St. Louis Housing Authority for a ten-year term, at $46,200.00 per year. The negotiation, purchase and lease were not disclosed to appellant. Appellant filed this action for damages on March 1,1976, more than five years after the attempted purchase in June, 1970. Respondents’ motion to dismiss was granted on March 23, 1977, and the dismissal is the basis of this appeal.

Appellant first argues that the trial court should not have granted respondents’ motion to dismiss because his petition alleges facts which invoke principles of substantive law which may entitle it to relief, e. g., Brolinson v. Brolinson, 564 S.W.2d 911 (Mo.App.1978); Watson v. Franklin Finance, 540 S.W.2d 186, 188 (Mo.App.1976). Appellant contends that the petition sets forth a series of transactions between himself and respondent Donn Lipton which indicate the formation of a partnership or a joint venture to accomplish a particular real estate transaction. Appellant basically alleges that respondent Donn Lipton has committed a breach of fiduciary duty by using partnership information for his own benefit and excluding appellant from sharing any of the profits thus realized, § 358.-210 RSMo 1969; e. g., DeFabio v. Mackey, 493 S.W.2d 355, 359 (Mo.App.1973).

Although under modern pleading principles a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts which would entitle him to relief, e. g., Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630 (Mo.App.1975), we do not reach the question of the appropriateness of the trial court’s dismissal of the petition for failure to state a claim in this ease because the petition is barred by the applicable statute of limitations, § 516.-120(1) RSMo 1969. See Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819, 821 (Mo.App.1975); Household Finance Co. v. Avery, 476 S.W.2d 165, 168 (Mo.App.1972). We do not agree with appellant’s argument that the claim is not barred because the partnership has neither been terminated by dissolution nor any winding up of partnership business and respondents continue to transact business within the scope of the partnership agreement (collect rent from the apartments).

Regardless of the possible merit of the allegations stated in appellant’s petition, appellant has simply delayed too long and is time-barred. The second option contract expired in June, 1970, and respondent Donn Lipton caused the property to be purchased in October, 1970. Whatever the exact theory of appellant’s action, whether for damages for breach of a partnership agreement or for breach of a contract to form a partnership or a joint venture or for an accounting, appellant did not bring this action until March, 1976, more than five years later. Section 516.120(1) RSMo 1969 requires the bringing of “all actions upon contracts, obligations or liabilities, express or implied,” within five years. Therefore, the petition is barred.

Judgment affirmed.

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

      . Assuming the existence of a partnership, dissolution of the partnership occurred either in June, 1970, when the second option expired or in October, 1970, when respondent Donn Lipton arranged the acquisition of the property. See §§ 358.290, 358.310 RSMo 1969.

      . If appellant argues that although there was no actual partnership but instead an oral agreement to form a partnership to take advantage of this particular real estate opportunity, see, e. g., Kolb v. Dietz, 454 S.W.2d 632 (Mo.App.1970); Goodwin v. Winston, 241 Mo.App. 357, 230 S.W.2d 793 (1950), appellant’s claim for damages for breach of this agreement is barred by the statute of limitations.

      .Appellant’s right to an accounting of his interest in the partnership, assuming the existence of a partnership and breach of the partnership agreement, accrued at the time of breach upon dissolution in June or October of 1970. § 358.430 RSMo 1969.


author: BILLINGS, Chief Judge.

text:
    James E. SUTTER and Charlotte Sutter, his wife, Plaintiffs-Appellants, v. Bobby C. SIMS and Billie J. Sims and Ruth M. Sims, his wife, Defendants-Respondents.
    No. 10414.
    Missouri Court of Appeals, Springfield District.
    March 6, 1978.

      C. R. Rhoades, Robert W. Evenson, Pine-ville, for plaintiffs-appellants. ’
    Abe R. Paul, Paul & Paul, Pineville, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

The trial court denied plaintiffs’ petition for a private way of necessity across defendants’ property under § 228.340, RSMo 1969. We reverse and remand with directions to enter judgment for plaintiffs.

Initially, we note that our review of this court tried case is governed by Rule 73.01, V.A.M.R., as interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). That decision tells us we are to sustain the judgment of the lower court “. unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” 536 S.W.2d at 32.

Plaintiffs filed their suit under § 228.340, RSMo 1969, seeking a private road from their tract of land across lands owned by defendants. In compliance with the statute, plaintiffs’ verified petition alleged they were the owners of a tract of land and that no public road passed through or alongside their land; that they sought a private road over defendants’ land so as to connect their land with a public road; and that the private road petitioned for is a way of strict necessity. The petition described the proposed private road and requested the court to appoint commissioners to view the premises, mark out the road, and assess damages to defendants.

The proposed road would connect plaintiffs’ lands and McDonald County Highway E. The road would be fifteen feet in width and be approximately ⅜⅛ of a mile in length across defendants’ property. Defendants’ answer, in addition to denying averments of plaintiffs’ petition, further alleged plaintiffs were “foreclosed from establishing an additional access across the property of the defendants and that two accesses to [plaintiffs] property already exists.”

The law applicable to the establishment of a private road was reviewed by our Supreme Court in Hill v. Kennoy, Inc., 522 S.W.2d 775 (Mo. banc 1975). There, in reversing a denial of a private way of necessity, the court said at 777:

“The right of a private road over the land of another exists only by way of necessity, and not convenience, Cox v. Tipton, 18 Mo.App. 450 (1885); Evans v. Mansfield, 364 S.W.2d 548 (Mo.1963). One cannot have a way of necessity because it is more convenient than the way one has, Vossen v. Dautel, 116 Mo. 379, 22 S.W. 734 (1893); 72 C.J.S. Private Roads § 5, pp. 923-4. It has also been said that if the party seeking a private road has no ‘legally enforceable right’ to use an alternative route, he is entitled to a way of necessity, Cox v. Tipton, supra.

In the HUI case the defendant suggested plaintiffs had at least two alternative routes over the property of other landowners by which plaintiffs could gain access from their property to a public road. However, the court found, as we do here, that plaintiffs did not have a legally enforceable right to use the other roads or routes and reversed the judgment of the trial court and remanded the case for the appointment of commissioners to mark out the road and assess damages as provided by § 228.340.

In 1973 plaintiffs and the Brandts purchased 640 acres of land in Sections 14 and 15 in McDonald County. In 1974 the parties divided the land. Plaintiffs’ lands were located in Section 15 and the portion received by the Brandts was located in the southern part of Section 15 and in Section 14. At the time of the division plaintiffs reserved an easement across the Brandt property to “such access road as may be now in existence and such other access roads suitable for passable car traffic at such points as may be agreed upon by the parties but to be no worse than the present existing roadway.”

The “present existing roadway” had its beginning at Highway E at what is called the Whittenburg Church, some distance south of plaintiffs’ property. It passed through the church property, northeasterly over lands owned by Bill Staton [owned by Jesse Chapman and under contract of sale to Mr. Cousins at time of trial in 1976], then easterly some distance over the property owned by the Brandts, then north to plaintiffs’ land. The distance from the church property to the Brandt property, through the Staton land, was approximately ⅜⅛ of a mile. At the Staton property there was a locked gate across the roadway and the realtor showing the property to plaintiffs had a key to the lock and Staton’s permission to use the roadway to show the property to prospective purchasers.

After plaintiffs purchased their tract of land, they put their own lock on the gate across the roadway and used this roadway as a means of getting to their property until sometime in July of 1974. At that time plaintiffs were informed by Mr. Staton he owned that part of the roadway and re-chained the gate. Plaintiffs were unsuccessful in attempting to purchase an easement over the roadway from Mr. Staton and while negotiations for permissive use of the roadway by plaintiffs were taking place, plaintiffs obtained permission from Joe Wilson to cross his land to get to their property. The Wilson property adjoins a county road and is located east of the northeast part of plaintiffs’ lands. There was no road through the Wilson property and the terrain was such that plaintiffs often walked across the Wilson land to get to their property. Thereafter, plaintiffs obtained the express permission of Mr. Sta-ton to use the roadway across his land and later received similar permission from Mr. Chapman.

Defendants’ lands border plaintiffs’ property along the west side and adjoins Highway E. By permission of defendants, plaintiffs had traveled across an existing roadway over the defendants’ land on several occasions to reach their land. The distance from Highway E to plaintiffs’ property, via defendants’ land, was approximately ⅜⅛ of a mile. A gate is located on this roadway at Highway E.

We will not set forth the trial court’s findings and conclusions. It is sufficient to note they are nearly a verbatim extract of the St. Louis District’s opinion in Curtman v. Piezuch, 494 S.W.2d 668 (Mo.App.1973), beginning at 671, which was expressly overruled by Hill v. Kennoy, Inc., supra.

Our review of the evidence forces the conclusion that the proposed road is one of necessity and that plaintiffs do not have a legally enforceable right to use the Whit-tenburg roadway. Plaintiffs are landlocked. Only by express permission of Staton and Chapman, Wilson and defendants, have they been able to get to and from their land from a public road. Plaintiffs’ reservation of an easement over the Brandt property to get to the Whittenburg road adds nothing to their legal plight. Without a legally enforceable right to use the Whittenburg roadway from Highway E, through the church property and Staton-Chapman land, plaintiffs are legally landlocked and entitled to the benefit of § 228.340.

Defendants, in an effort to support the judgment of the lower court, suggest that the evidence demonstrated a prescriptive easement in plaintiffs to use the Whit-tenburg road. The record does not support such a prescriptive easement in plaintiffs. In order to establish such an easement, over lands of another, the evidence must establish the following: “First, used for the prescribed period; Second, that use was open, adverse, continuous and under a claim of right; Third, notice to the owner of the land of the use and the claim of right.” Moravek v. Ocsody, 456 S.W.2d 619, 625 (Mo.App.1970) (our emphasis).

The fact that members of the public or landowners of the area had been seen using the road on occasions in the past does not alter the situation. This does not satisfy the elements necessary to give rise to a prescriptive easement. The evidence is clear that since 1966 a locked gate barred travel along the road at the Staton property line and only by permission could entry be effected.

“While plaintiffs may have a choice between surrounding landowners against whom they might have proceeded for the establishment of a private road, neither Sec. 228.340 nor the case law indicates that one landowner can defeat a plaintiff’s right to a way of necessity simply by pointing to another against whom plaintiff might have sought relief.” Hill v. Kennoy, Inc., supra at 778.

We also observe, as did the Supreme Court in Hill, that defendants did not offer any evidence of hardship or injury should the private road over their property be granted, a consideration which may be taken into account. Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008 (1948).

The judgment of the trial court is reversed and the case is remanded for the appointment of commissioners to mark out the road and assess damages pursuant to § 228.340.

All concur.


author: PER CURIAM. FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kelly NETZER, Defendant-Appellant.
    No. 10874.
    Missouri Court of Appeals, Springfield District.
    March 6, 1978.
    John A. Watkins, Greenfield, for defendant-appellant.
   PER CURIAM.

Defendant Kelly Netzer was found guilty of cultivating and growing marijuana by a Dade County jury. The jury assessed punishment at six months confinement in the county jail and three years probation. Thereafter, a motion for new trial was filed and denied. Allocution was granted. Defendant was sentenced to six months in the Dade County jail. However, this appeal cannot presently be considered upon its merits because the transcript on appeal fails to demonstrate that a judgment has been entered.

The purported judgment states: “. . . Def’s motion for new trial is taken up and overruled. Allocution granted. Def. sentenced in accordance with verdict of jury to six months in the Dade County Jail. Def. announces purpose to appeal. Appeal bond set at $5000 and def. allowed to deposit $500 cash in security therefor. Def. files Notice of Appeal. DWK.”

Rule 27.11, V.A.M.R., requires that “[wjhenever a judgment upon a conviction shall be rendered . . ., the clerk . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had . . . The instant docket entry fails to constitute entry of judgment as contemplated by the aforementioned rule.

This court might assume that the judgment of the cause has been entered but that indicia of the clerk’s ministerial act was merely omitted from the record. However, it is not sufficient that the act has been performed. The record on appeal must demonstrate performance of the act. Therefore, the appeal shall be held in abeyance and the cause remanded for supplementation of the record. State v. Pogue, 552 S.W.2d 75 (Mo.App.1977).

It is so ordered.

All concur, except FLANIGAN, J., who dissents in separate opinion.

FLANIGAN, Judge.

I respectfully dissent for the reasons stated in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448 (Mo.App., 1978).


author: PER CURIAM: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeff NETZER, Defendant-Appellant.
    No. 10875.
    Missouri Court of Appeals, Springfield District.
    March 6, 1978.
    John A. Watkins, Greenfield, for defendant-appellant.
   PER CURIAM:

A Dade County jury declared defendant guilty of cultivating and growing marijuana. It assessed punishment at six months’ confinement in the county jail and one year’s probation. Defendant’s motion for a new trial was overruled, allocution was accorded, defendant was sentenced in keeping with the verdict and he appealed.

This is another cause we must place in limbo until we are provided with a supplemental transcript showing that a proper judgment has been entered in accordance with Rule 27.11, V.A.M.R. The transcript on appeal contains only a docket entry which reads: “Dec. 5,1977. Def. appears in person and with his atty and state appears by Pros. atty. Def’s motion for new trial is taken up and overruled. Allocution granted. Def. sentenced in accordance with verdict of jury to six months in the Dade County Jail. Def. announces purpose to appeal. Appeal bond set at $5000 and def. allowed to deposit $500 cash in security therefor. Def. files Notice of Appeal. DWK.” This does not purport to be, and cannot be, transformed by us into a judgment entry such as the clerk is required to make in accordance with Rule 27.11. Ergo, the cause is remanded for supplementation of the record as above noted. State v. Rideeoutte, 560 S.W.2d 70—71[1, 2] (Mo.App. 1977).

It is ordered so.

All concur, except FLANIGAN, J., dissents in separate opinion.

FLANIGAN, Judge.

I respectfully dissent for the reasons stated in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448 (Mo.App., Springfield District, No. 10762, 1978).