text:
    Worden P. PENN, Plaintiff-Respondent, v. Tanya K. HARTMAN, a minor, Defendant-Appellant.
    No. 35266.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 3, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Kortenhof & Ely, Ben Ely, Jr., Frank E. Strzelec, St. Louis, for defendant-appellant.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Plaintiff Worden P. Penn, a pedestrian, was struck by an automobile driven by defendant Tanya K. Hartman. After a jury verdict for defendant, the trial court granted a new trial to plaintiff on the ground that “The Court erred in permitting defendant ... to argue contributory negligence when plaintiff’s case was submitted under the humanitarian doctrine . . . ” Defendant appeals from that order. Plaintiff contends that the order of the court granting a new trial can also be sustained on two other grounds raised in his motion for new trial. He alleges that the court erred when it permitted one of defendant’s witnesses to testify after making an affirmation because the witness did not raise his hand, and because there was no evidence that the witness understood the nature of the affirmance or that he considered himself bound by its obligation. He also contends that the court erred in permitting a police officer to testify with respect to certain specific items contained in the police report which had been prepared by an officer who was deceased at the time of trial. We affirm the order of the trial court for the reasons hereafter set forth.

Defendant does not question the sufficiency of the evidence to warrant the humanitarian submission. Thus only the facts necessary to the determination of the issues presented will be set out.

The accident giving rise to this action occurred on St. Louis Avenue near its intersection with 68th Street in the City of Hills-dale in St. Louis County. St. Louis Avenue runs east and west; the curb lanes are devoted to parking and 2 lanes are used by moving traffic. 68th Street dead ends into St. Louis Avenue from the north. An alley dead ends into St. Louis Avenue from the south. The east curb line of the alley is a few feet west of the west curb line of 68th Street.

In mid afternoon on a clear dry day plaintiff who had walked northwardly in the alley to St. Louis Avenue was crossing that street when he was struck by an automobile being driven eastwardly in the east bound lane of traffic by the defendant.

The primary contested issue was the location at which plaintiff stepped into St. Louis Avenue. There were no cars parked at the south curb of St. Louis Avenue to the west of the alley. To the east of the alley there were a number of parked vehicles. The first vehicle parked at the south curb, east of the alley, was a 1966 Ford van. The van was about three or four feet east of the alley. There was another car parked directly east of the van. Evidence on behalf of the plaintiff was to the effect that he was going to get a pack of soda at the tavern on the northeast corner of the intersection; that he had walked up the alley to St. Louis Avenue, looked to the west and saw no vehicles approaching from that direction, looked to the east and proceeded north-wardly into St. Louis Avenue. The evidence on behalf of defendant was that plaintiff stepped out into the path of defendant’s car from between the van and the car parked to the east of the van.

We first consider defendant’s contention that the trial court erred in granting the new trial on the ground that defendant’s argument injected the question of plaintiff’s contributory negligence into a case submitted to the jury on the theory of humanitarian negligence.

The trial court granted a new trial. Thus our review differs from those cases in which appellant seeks a new trial in the appellate court after the trial court has considered, and in its discretion has denied the motion for a new trial. Here we must indulge every reasonable inference favorable to the trial court’s ruling, and we may not reverse unless there has been a clear abuse of discretion. Daniels v. Dillinger, 445 S.W.2d 410 (Mo.App.1969); Crocker v. McCartney, 24 S.W.2d 649 (Mo.App.1930).

With these principles in mind we shall review pertinent portions of the argument. At about the midpoint of defendant’s closing argument the following occurred:

“There is some other reference here that I believe that I want to touch on, as to the believability of the testimony that’s been brought to you from the other side of the case. Mr. Penn, of course, now says that he was walking from the alley, that he stopped, that he looked, that he could see all the way up to the cemetery on the west end of St. Louis and saw nothing coming.
Mr. Cox: I object to the reference, to what Mr. Penn saw.
Mr. Ely: I have a right to review the evidence and I am talking about the creditability and believability of it.
The Court: The objection is overruled.
Mr. Ely: Now, Ladies and Gentlemen of the jury, you have seen our exhibits B and C that look to the west. Is it believable anybody that looked to the west wouldn’t see a car coming?
Mr. Cox: I object to this argument. It is improper. The plaintiff’s negligence is not an issue in this case. Instruction No. 2 says whether or not plaintiff is negligent.
Mr. Ely: I am talking about the believability of his testimony as to how this happened.
The Court: Overruled.
Mr. Ely: Now, I want to make it clear, I am not accusing anybody here of any falsehood. When you are in these accidents and time goes by your memory will make you try to remember the things most favorable to yourself and that’s why we have juries to look back and see what the facts really are. Obviously, Tanya’s car didn’t drop out of the sky. It was there and travelled all the way from Lucas and Hunt to the point of the accident. If he had looked, he would have seen it. There is no curb here, no hill, nothing to block his view of her approaching car and when he says that he didn’t see her I think that simply means that he didn’t look because there was nothing else to prevent him—
Mr. Cox: I object, your Honor, to the argument of counsel and at this time I move for mistrial.
The Court: The objection and motion are overruled.
Mr. Ely: As I said, there is nothing there that would possibly or could possibly prevent him from seeing her car had he looked.”

Subsequently an objection was sustained and the jury was ordered to disregard the following portion of the argument:

“It is ironic here, the instruction number that I am sure you will hear from Mr. Cox later, the Judge read to you Instruction No. 2, and it says, your verdict must be for the plaintiff Worden Penn whether or not plaintiff Worden Penn was negligent if you believe, and it lists some things there. It is ironic for me to say, but I want to put the blame on someone else.” Plaintiff’s request for a mistrial was overruled. The last paragraph of defendant’s argument reads as follows:
“Now, I have just a few other things to say to you and that is, I ask you to return a verdict for the defendant. You will be given two verdict forms that the Judge and the bailiff will give you. One says we find in favor of the plaintiff and assess his damages at blank dollars and the other says, we find in favor of the defendant. I ask you to return the verdict in favor of the defendant Tanya because whe was not the cause of this accident. The accident happened because without looking Mr. Penn stepped out from those cars. On her behalf, Tanya’s behalf, I thank you for the attention you gave to our case in this matter. Thank you very much.”

Before we analyze the argument we take note of the defendant’s contention that no objection was made to. the latter portion of the argument. Plaintiff did make known to the court that he was objecting to any reference to contributory negligence on the part of plaintiff. The assignment in the motion for new trial was sufficiently broad to cover the entire scope of the argument. The trial court has the authority to correct errors which are brought to its attention in a motion for new trial even though no previous objection has been made. Johnson v. Kansas City Public Service Co., 360 Mo. 429, 228 S.W.2d 796 (1950).

While great latitude is permitted in argument, counsel may not go beyond the issues and urge a theory of claim or defense which is not within the scope of the court’s instructions. Carrel v. Wilkerson, 507 S.W.2d 82, 85 (Mo.App.1974); Jones v. Gooch, 453 S.W.2d 653 (Mo.App.1970).

Plaintiff submitted his case solely on the theory of humanitarian negligence. “It has been said that one thing lawyers confidently know is that in a humanitarian case it is improper to argue that a plaintiff was negligent. Fisher v. Williams, 327 S.W.2d 256[3] (Mo.1959)”; Schrum v. Ciscell, 403 S.W.2d 657 (Mo.App.1966). In determining whether the trial court abused its discretion in holding that defendant improperly argued that plaintiff was negligent we view the argument as a whole.

Early in his closing defendant argued that plaintiff could see a considerable distance to the west (his left); that plaintiff testified he looked and saw nothing; that defendant’s car did not drop from the sky but travelled all the way from Lucas Hunt Road to the point of the accident. There were no obstructions to vision and if defendant looked he would have seen it, thus when plaintiff “says he didn’t see her it means that he did not look.”

It has been long and often held that the failure of a pedestrian to see what is plainly visible or not to look when entering the travelled roadway is negligence. Woods v. Moore, 48 S.W.2d 202 (Mo.App.1932); Lee v. Zumbehl, 410 S.W.2d 79 (Mo. banc 1967). The very essence of this argument is that plaintiff was negligent. Having laid the groundwork defendant subsequently discussed that part of the humanitarian doctrine which tells the jury that upon a finding of humanitarian negligence they will find for plaintiff whether or not plaintiff was negligent. Defendant then, in effect, argues that rather than blame defendant “. . .1 want to blame someone else.” There is no one else to blame but plaintiff. The court did sustain the plaintiff’s objection at this point but did not déclare a mistrial.

All of the above argument was tied together in defendant’s parting remark:

“The accident happened because without looking Mr. Penn stepped out from those parked cars.”

From an over view of the argument it is apparent that the thrust of defendant’s argument was that the accident occurred because of the negligence of plaintiff.

Defendant urges that he was arguing credibility not negligence. We feel this can be viewed in much the same light as Anthony’s assurance that he came to “bury Caesar not to praise him”. Whether Plaintiff looked and negligently failed to see or whether he negligently failed to look was not relevant to the issues to be determined by the jury. We hold that the trial court is vested with the same discretionary power to exclude argument on collateral matters which bring controversial matters into the case which cause prejudice wholly disproportionate to the value and usefulness of the proffered argument, as it does to evidence of such nature. Daniels v. Dillinger, supra. The trial court did not abuse its discretion in determining that the overriding effect of this argument was to urge a defense which was not within the scope of the court’s instructions and was prejudicial. Carrel v. Wilkerson, supra.

Defendant urges that Eddings v. Keller, 400 S.W.2d 164 (Mo.1966) is controlling here. In Eddings there had been a collision between two cars and a tractor trailer on a bridge over the highway at 1:00 a. m. A short time later plaintiff’s decedent, Ed-dings, who was going south, collided with the tractor trailer which was blocking part of the highway. Some time later defendant, driving a tractor trailer south toward the bridge collided with Eddings. The cause was submitted on defendant’s humanitarian negligence in failing to stop after he saw or could have seen Eddings in a position of imminent peril. Defendant argued the question of visibility of both plaintiff and defendant saying there was one thing about the case, though his client did not see Eddings, “Eddings didn’t see it [the truck] either.” The court there emphasized the fact that the question of what defendant saw or could have seen was the principle issue in the case. The trial court there in its discretion determined that the argument had great relevancy to the issues upon which the case was submitted. The trial court in denying the request for a new trial, of necessity, determined that the argument was not prejudicial. The Supreme Court in affirming the action of the trial court ruled that “the trial court did not abuse its discretion in making its determination that the argument was within proper limits . .”

In this case the court did not abuse its discretion in ruling that the argument injected a defense into the case which was not within the scope of the court’s instructions and was prejudicial.

In view of the fact that this case must be retried we shall discuss briefly the other matters which were raised by plaintiff to sustain the order of the trial court.

In the trial below the defendant called Reverend Ulysses Simmons as a witness. As Reverend Simmons approached the court room clerk he said “I do not swear”. He took the prescribed form of affirmation. Plaintiff’s counsel testified that he was not aware that the witness had affirmed.

V.A.M.S. 492.030 reads, in part, as follows:

“Every person who shall declare that he has conscientious scruples against taking an oath or swearing in any form shall be permitted to make his solemn declaration or affirmation . . .”

The clear language of the statute requires that the witness have conscientious scruples against taking the oath and that he make this fact known to the court before he be permitted to affirm.

In the retrial plaintiff will be aware of the fact that the witness does not desire to swear and if there is any question as to whether the witness should be permitted to make a solemn affirmation the trial court will be in position to make a proper determination before the testimony of the witness is taken.

Plaintiff next raises the question of the admissibility of the testimony of Officer Dan E. Menke of the Police Department of Hillsdale, Mo. Officer Menke produced the police accident report which was marked defendant’s Exhibit “G”. The exhibit was not formally introduced into evidence. Officer Griffin who was assigned to investigate the accident and who signed the report was deceased at the time of trial. That portion of the report containing a diagram purporting to show the scene and the positions of objects and persons at the scene was put into evidence by defendant through the oral testimony of Officer Menke. Bolhofner v. Jones, 482 S.W.2d 80, 84 (Mo.App.1972). The diagram was not shown to the jury.

While “the Uniform Business Records Act eliminates the hearsay objection when such a record is properly qualified thereunder, ... it does not make admissible any evidence which would be incompetent if offered in person.” Ryan v. Campbell “66” Express, 304 S.W.2d 825 (Mo. banc 1957). The testimony of Officer Menke could therefore encompass no more than that of the deceased officer had he been present and testified. A police officer who is not an eyewitness may not give his opinion or his conclusion based upon the results of his investigation as to the point of impact. Chester v. Shockley, 304 S.W.2d 831 (Mo.1957).

Officer Menke testified that it was a rule of his department that a diagram be made of the scene, as it exists at the time of the officer’s arrival. We have examined the diagram from which the officer testified. It is not completely accurate in that there is no indication of the alley which comes into St. Louis Avenue from the south. There are two parked ears indicated as being at the south curb one to the west of the extended west line of 68th Street, which might create some confusion as to its location with respect to the alley. The second car is shown as parked immediately east of the first car. There is a pathway indicated by arrows from the south curb, between the two parked cars to a circle with an “X” in the center about midway of the travelled portion of the south side of St. Louis Avenue. The police report designates defendant’s car as vehicle # 1. The front portion of that vehicle is at about the center of the circled “X” and parallel with the first mentioned parked ear. Also in the circled “X” and to the east of vehicle # 1 there is a marking which represents a pedestrian. The vehicle and the pedestrian are apparently in contact. When it is also considered that the accident report form instructs the officer to “Show [among other things] point of impact . and measurement of tire marks . . .”

and that defendant testified that she moved “five or ten feet after the impact,” the diagram could represent the path of the plaintiff and the point of impact determined by Officer Griffin as a result of his investigation. On retrial the court can make a determination as to whether the diagram depicts the scene of the accident as Officer Griffin found it. In the event that Officer Menke is permitted to testify with respect to the position of the cars and the pedestrian the location of the alley should also be determined. It would further appear that Officer Menke could properly testify as to the measurement of the tire marks.

The order of the trial court is affirmed and the case is remanded for a new trial.

CLEMENS, P. J., and KELLY, J., concur.

      . Instruction 2 was the humanitarian submission based on MAI 17.14 & 17.15 modified.

      . William Shakespeare, Julius Caesar, Act III, scene ii.

      . §§ 490.660-490.690 R.S.Mo.1969, V.A.M.S.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    STATE ex rel. Ben F. CALOIA et al., Relators, v. Hon. Noah WEINSTEIN, Judge, etc., Respondent.
    No. 36642.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 3, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Leonard D. Vines, Clayton, for relators.
    Bernard A. Reinert, St. Louis, for respondent.
   WEIER, Presiding Judge.

Our preliminary writ of prohibition was issued to respondent circuit judge to show cause why he should not be prohibited from compelling production of the tax returns or copies thereof of Ben F. Caloia and Mabel C. Caloia, his wife. Upon the basis of the plea of relators that the production of these documents might tend to incriminate them, our preliminary rule is made absolute.

Relators Ben F. Caloia and Mabel C. Cal-oia individually and as statutory trustees of two defunct corporations were sued to set aside the transfer of certain real property as being in fraud of plaintiff Commercial Union Insurance Company of America, judgment creditor on an unpaid and unsatisfied judgment in the amount of $156,-974.28 against Ben F. Caloia and one of the defunct corporations. Plaintiff in this suit instituted discovery proceedings by seeking among other things the production of federal and state income tax returns or copies thereof made on behalf of the defunct corporations or the individual defendants for the years 1969, 1970, 1971, 1972 and 1973. Relators refused to produce these tax returns by invoking the privileges of the Fifth Amendment of the United States Constitution and Article I, § 19 of the Missouri Constitution, V.A.M.S., on the grounds that the documents might tend to incriminate them. On October 24,1974 respondent judge entered an order sustaining the motion for production of the tax returns and ordered the defendants to produce them by November 14,1974 or grant plaintiff authorization to obtain said returns or copies thereof from the Internal Revenue Service and the Missouri Department of Revenue. A petition for writ of prohibition was filed in this court and we issued our preliminary writ prohibiting respondent solely from compelling production of the tax returns of the individuals Ben F. Caloia and Mabel C. Caloia.

Generally, there is no absolute privilege with respect to copies of income tax returns in favor of the taxpayer against the valid process of a court engaged in a proper inquiry within its jurisdiction. State v. Curtis, 334 S.W.2d 757, 762[16] (Mo.App.1960). But no case has been called to our attention which has ruled on the question whether the constitutional privilege against self-incrimination is available at the discovery stage to prevent the production of copies of income tax returns in a civil case. It has long been the rule that if an answer to a question propounded to a witness may disclose a fact which forms a necessary and essential link in a chain of testimony which would convict the witness of any crime, then he is not bound to answer it. The witness knows what the court cannot know and the witness must himself judge what the effect of his answer will be. So, if he says under oath that he cannot answer without incriminating himself, then the case is not one where the court can say as a matter of law that it would be impossible for him to incriminate himself by answering the question one way or another. He cannot be compelled to answer and will be protected by law in his refusal to do so. State ex rel. Howard v. Allison, 431 S.W.2d 233, 236[5], 237[6] (Mo.App.1968); Presta v. Owsley, 345 S.W.2d 649, 652[1] (Mo.App.1961); Brady v. Brady, 71 S.W.2d 42, 46[3, 4] (Mo.App.1934).

The burden of proof rests on the witness claiming the protection of the constitutional privilege to show that the question asked or the document requested calls for an answer which may incriminate him. He must show that an answer may incriminate him if a particular question appears on its face to be innocuous. But constitutional rights are not to be denied through the exercise of an impractical judgment as to whether the question calls for an answer that may tend to incriminate the witness. The court in appraising the claim must be sensitive to the circumstances existing and perceptive in viewing the possibilities of incrimination. Presta v. Owsley, supra at 655[2, 3]. Thus, in State ex rel. Howard v. Allison, supra at 237, although no evidence was offered to indicate how answers to questions under consideration might have tended to incriminate the relator, the sensitivity of the court to the circumstances existing and its perceptiveness in viewing the possibilities of incrimination were enlisted and relied upon to sustain a determination that questions asked relators as to whether they owned an interest in an eighty-acre tract sought answers which might tend to incriminate them by disclosing a fact or facts constituting a link in a chain of evidence sufficient to convict.

The suggestion has been made by respondent that when tax returns are filed they become public documents and hence are subject to public scrutiny. Under such circumstances, respondent contends that an individual waives his right to assert the privilege against self-incrimination. It has been held that the privilege against self-incrimination does not apply to the production of returns and records when they are sought by an investigative agency of the government for the purpose of determining whether or not a person required to file these returns and keep records has violated a statute under which these returns are to be made and records kept. In Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1947) the petitioner was charged with the violation of the emergency price control act and was ordered to produce all of his books and records relating to commodity sales. These records were required to be kept by law and hence the court classified them as “public documents”. It refused to allow the petitioner to invoke the privileges against self-incrimination as to these records. But this information was to be used by the government for determining whether or not there had been a violation of the emergency price control act, the law which required them to be kept.

The production of income tax returns filed by the taxpayer may be compelled in a prosecution for a violation of the tax laws by that taxpayer, but under § 143.-976 RSMo 1969, V.A.M.S., the director of revenue, employees of the department and any other persons having permission to inspect any return are not allowed to divulge or make known in any manner any of the particulars set forth in the return except where required to produce the return or evidence of anything contained in it in any action or proceeding arising out of the income tax laws. Violation of this section is a felony. It is obvious that although such returns may be considered “public documents” so far as the revenue laws are concerned, their use for any other purpose than to enforce the collection of income tax with certain minimal exceptions set forth in the statute is barred. Section 7213 of the Internal Revenue Code likewise prohibits the dilvulgence of matters contained in income tax returns under penalty of a misdemean- or not only as to federal employees but also state employees. Section 6103(b)(2) allows inspection of returns by any official, body, or commission lawfully charged with the administration of any state tax law if it is for the purpose of administration of those laws. 26 U.S.C.A. §§ 6103 and 7213.

The suggestion is also made by respondent that since relators have argued that the tax returns might tend to incriminate them under § 561.550 RSMo 1969, V.A. M.S., providing that fraudulent conveyances are misdemeanors, the prosecution is barred by the one year period of limitation provided in § 541.210 RSMo 1969, V.A.M.S., and hence the privilege against self-incrimination cannot be invoked. This may be true if the only incriminating evidence produced in the tax returns would pertain to fraudulent conveyances. A somewhat similar contention was advanced in State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. banc 1959). There the respondent judge contended that the relator should answer a question propounded in his examination as a judgment debtor (§ 513.380, RSMo 1969, V.A.M.S.) with regard to whether he owned certain property. Respondent urged that § 491.080 RSMo 1969) V.A.M.S., afforded the relator immunity from prosecution for fraudulent conveyance of property. In prohibiting respondent, the court pointed out that this section was a special immunity statute which by its terms prevented the use of the testimony of any witness as evidence to prove any fact in a suit or prosecution against such person, or any penalty for violation of any law only in relation to fraudulent conveyance of property. The court concluded that the section was inadequate in that it did not afford protection against compulsory self-incrimination contemplated by Article I, § 19 of the Missouri Constitution as to other crimes, and, therefore, a judgment debtor could not be required to forego his reliance upon the constitutional guarantee.

In the case before us, it is likewise true that even though the statute of limitations may bar any prosecution for fraudulent conveyance of the real property which is the subject of litigation in the lower court, the copies of the income tax returns sought to be produced and ordered by the court to be submitted to the respondent could possibly provide evidence, or a link in a chain of evidence, to incriminate the relators because of some other illegal activity. It is well known that income tax returns may disclose sources of income from illegal means for which the taxpayer may be held to account for tax on gains in those endeavors. Such activities may be disassociated from any conveyance of property and yet compelling their disclosure may subject the taxpayer to prosecution under the criminal laws in an entirely different area than fraudulent conveyance. This is the kind of evidence which a witness is not compelled to give under Article I, § 19 of the Missouri Constitution and the assertion of the privilege granted under that section by relators herein must be sustained.

Application has been made here of prior interpretations of the effect of Article I, § 19 of the Missouri Constitution under Missouri law. Since this disposes of the matter before us, we do not consider the effect of the privilege claimed by relators under Amendment V of the United States Constitution.

The provisional writ heretofore issued is made absolute.

DOWD and RENDLEN, JJ., concur.


author: HOGAN, Judge.

text:
    Otis KERR, Plaintiff-Appellant, v. GRAND FOUNDRIES, INC., Defendant-Respondent.
    No. 9431.
    Missouri Court of Appeals, Springfield District.
    June 12, 1975.
    Motions for Rehearing or Transfer Denied July 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.
    Ivella Elsey, Springfield, Charles C. Shafer, Jr., Howard Chamberlin, Kansas City, for plaintiff-appellant.
    B. H. Clampett, Ransom A. Ellis, Jr., J. Miles Sweeney, Daniel, Clampett, Ellis, Rit-tershouse & Dalton, William P. Sanford, James P. Ferguson, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendant-respondent.
   HOGAN, Judge.

In this case plaintiff Otis Kerr seeks to recover actual and punitive damages under our Service Letter statute, § 290.140, RSMo 1969, V.A.M.S., and in a second count claims actual and punitive damages for personal injuries as a result of an assault made by one Blumer, alias McLaughlin, on the theory that the defendant induced McLaughlin to assault the plaintiff. Various aspects of the controversy — in defendant’s view the whole controversy — have been litigated before. See N. L. R. B. v. Grand Foundries, Inc., 362 F.2d 702 (8th Cir. 1966); Kerr v. Grand Foundries, Inc., 451 S.W.2d 26 (Mo.1970). The parties have stipulated that the “official files” of the court in both cases be filed here. That has been done; we have accordingly taken judicial notice of the decree of the United States Court of Appeals for the Eighth Circuit and the mandate of our Supreme Court. Reference may be had to the opinion filed and reported in N. L. R. B. v. Grand Foundries, Ine., supra, 362 F.2d 702, for the general factual background of the case.

Following issuance of the Supreme Court’s mandate in Kerr v. Grand Foundries, Inc., supra, 451 S.W.2d 26, apparently with leave of court, plaintiff filed a slightly amended petition. Responsive pleadings were filed, the cause was put in issue, and the defendant moved for summary judgment on both counts. The trial court granted the motion and entered judgment for the defendant. Plaintiff appealed to the Supreme Court. On motion, that court transferred the appeal here. The trial court’s action was in effect a determination that as a matter of law there was no issue of fact to be tried, and our duty is to review that determination as we would any other bench-tried case. Swink v. Swink, 367 S.W.2d 575, 577 — 578[1—3] (Mo.1963).

The general subjects involved on this appeal — federal preemption of all jurisdiction in certain fields, and the extent to which a judgment in one case acts as an estoppel in subsequent litigation — are rather complex and the decisions relevant to the merits of this appeal are themselves somewhat difficult to follow. To illustrate, the trial court’s reason for granting the motion for summary judgment on Count One of plaintiff’s petition was that plaintiff’s cause of action had been preempted by federal statute, specifically § 8(a)(3) of the National Labor Management Relations Act, as amended, 29 U.S.C.A. § 158(a)(3), which prohibits discriminatory discharge of employees for union activity. The United States Court of Appeals held in its decree that the plaintiff was not discriminatorily discharged in violation of 29 U.S.C.A. § 158(a)(3). Having concluded that the cause of action asserted by plaintiff in Count One had been preempted by federal statute, the trial court held that Count One presented no issue for adjudication in a state court, and even if there were no preemption, the doctrine of collateral estoppel barred plaintiff’s relitigation of the issues tendered therein. As for Count Two, the trial court reasoned that the factual issues pleaded had already been litigated in the federal proceeding, and the plaintiff was estopped from relitigating those issues by the federal decree.

Determination of the issue of federal preemption in this particular case would require careful factual distinction between the conduct asserted as a basis for recovery and similar activity redressed by the National Labor Management Relations Act, and probably an assessment of the General Assembly’s purpose in enacting present § 290.140. Motor Coach Employees v. Lockridge, 403 U.S. 274, 297-298, 91 S.Ct. 1909, 1923-1924, 29 L.Ed.2d 473, 489[11] (1971); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243-244, 79 S.Ct. 773, 778-779, 3 L.Ed.2d 775, 782 (1959). Likewise, appellate review of the trial court’s ruling that Count Two cannot be relitigated because the doctrine called “collateral estoppel” precludes relitigation would depend finally upon a careful analysis of the facts to distinguish the ultimate issues in the federal case from those which were merely eviden-tiary or inferentially involved. Drennen v. Wren, 416 S.W.2d 229, 233-234[7, 8] (Mo.App.1967); Polasky, Collateral Estoppel-Effects of Prior Litigation, 39 Iowa L.Rev. 217, 237-239 (1954).

We discuss the appeal in these general terms simply to show that rather complex issues are involved. The state of the record is similar to that presented in In re Estate of James, 459 S.W.2d 536 (Mo.App.1970). We have both the relevant and wholly irrelevant parts of the record in three cases, without collation and without specification of the particular evidence which proves the trial court erred. In addition, the appellant’s abstract “points relied on” are in no way correlated with the facts or to the trial court’s ruling. As we have said before, technical perfection in the presentation of an appeal is not required, but in this case, as in State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 476[7-10] (Mo.App.1972), the appellant’s brief is wholly inadequate to advise us of the legal principles he conceives to be controlling, or of the manner in which he believes the trial court erred in applying the law to the facts. It is not our duty, and in fairness, we cannot become advocates for the appellant. Schlanger v. Simon, 339 S.W.2d 825, 828[1-3] (Mo.1960). The judgment is therefore affirmed.

All concur except FLANIGAN, J., not participating because not a member of the court when the cause was submitted.


author: RENDLEN, Judge.

text:
    John MORANZ, Plaintiff-Appellant, v. Jon F. SCHILLER, Defendant-Respondent.
    No. 36098.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 24, 1975.
    Motion for Rehearing to Court en Banc or to Transfer to Supreme Court Denied July 15, 1975.

      Shaw & Howlett, William H. Jennings, II, Clayton, for plaintiff-appellant.
    Susman, Stern, Agatstein, Heifetz & Gallop, Richard J. Sheehan, Mark E. Goodman, Charles G. Misko, St. Louis, for defendant-respondent.
   RENDLEN, Judge.

Plaintiff filed his two-count petition in the Circuit Court of St. Louis County charging defendant in Count I with alienation of affections and in Count II with criminal conversation. At the close of plaintiff’s evidence the trial court dismissed Count II for a variance between the evidence and pleadings and on submission of Count I the jury found for defendant. Plaintiff appeals.

We see no occasion to detail the evidence of plaintiff as to the alleged wrongful conduct of defendant nor to set out the denials or other evidence of defendant from which the jury could find the loss of affection for plaintiff by his wife did not result from defendant’s conduct. The evidence, if the trial court had properly granted plaintiff leave to amend, was sufficient to justify jury submission of both counts.

Plaintiff and Eloise Moranz were married in 1956. Although the evidence is vague as to the precise date, it is apparent they were separated by March, 1971, divorced in September, 1972, and shortly thereafter Eloise and defendant married. Plaintiff and his wife became estranged and defendant’s evidence was in part calculated to demonstrate this estrangement resulted from plaintiff’s conduct. Eloise Moranz was employed by defendant in late 1970 and there is evidence the business relationship led to one somewhat more social.

The issue of alienation of affections was submitted to the jury by instructions, including defendant’s converse framed in the “third method” provided for converse instructions. See MAI No. 33.01, Third Method, p. 351 et seq. Defendant, not required by this “third” form converse to directly negate the elements of plaintiff’s theory set forth in the main verdict director, Bollman v. Kark Rendering Plant, 418 S.W.2d 39,. 49[18] (Mo.1967), attempted, albeit erroneously, to submit his own theory of the case to defeat plaintiff’s claim.

The complained of converse, Instruction No. 3, is as follows:

“Your verdict must be for defendant if you believe that the plaintiff’s conduct toward his wife was such as to render her life with him intolerable and that because of such conduct on his part she withdrew her affections from him, and that such withdrawal of affections was not caused by any act of the defendant.”

The effect of this instruction is to allow as a defense to an action for alienation of affections the fact that the affections of the spouse had already been withdrawn from the plaintiff before any alleged wrongdoing of defendant. The instruction is prejudicially erroneous since it is no defense to an action for alienation of affections that the spouse of plaintiff had little or no affection for plaintiff at the time of the alleged wrongful acts by the defendant, Comte v. Blessing, 381 S.W.2d 780, 784[8, 9] (Mo.1964); Reynolds v. Reynolds, 143 S.W.2d 347, 348[3] (Mo.App.1940), although such matters may be relevant to the issue of damages. Comte v. Blessing, supra at 784[8, 9]. The governing law in this situation found clear expression in DeFord v. Johnson, 152 Mo.App. 209,133 S.W. 393, 395 (1911):

“The law very jealously guards the marital relation, and looks with extreme disfavor on the intermeddler. An injured spouse may have a just cause for separation, but may elect to condone the offense and abide by the situation. If he chooses to do so, a stranger has no right to in-termeddle or to seek an advantage to himself on account of the delinquency . It is not necessary for the plaintiff to show that there was affection and that defendant had completely alienated it; for, although plaintiff’s wife has no affection for the plaintiff, a third party has no right to interfere or cut off any chance of affection springing up in the future. Evidence offered by the defendant for the purpose of proving that there had existed no affection between the husband and wife will not be heard as a bar Such evidence is admissible only in mitigation of damages . . . ” (Emphasis added.)

Defendant’s converse, Instruction No. 3, was improper and the cause is reversed and remanded as to Count I.

Count II of the petition charged acts of carnal knowledge between defendant and plaintiff’s wife during November and December of 1970. The principal body of plaintiff’s evidence on this issue was directed to the year 1971 and at the close of his case in chief, plaintiff sought leave to amend the petition to read 1971 instead of 1970. Such leave was denied and defendant’s motion for directed verdict as to Count II sustained. Considering the evidence most favorable to plaintiff and the reasonable inferences in support of his theory, there was proof sufficient to permit the jury’s consideration of whether plaintiff’s wife had sexual intercourse with defendant while Eloise and plaintiff were lawfully married. There was litle or no evidence that such wrongdoing occurred as alleged in the months of November or December, 1970; instead, the evidence tended to show that acts of intercourse took place, if at all, at a later time, with the strongest evidence pointing to November and December, 1971.

In prescribed situations, amendments to the pleadings are governed by Rule 55.33(a), VAMR, which provides, inter alia, that after answer is filed a petition may be amended “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” (Emphasis added.) In cases controlled by this provision “permission to amend is wholly discretionary with the trial judge and is not to be questioned on appeal unless there is a clear abuse of discretion.” Kallenbach v. Varner, 502 S.W.2d 446, 448[2] (Mo.App.1973), cited by defendant. But when the proposed amendment is for the purpose of conforming pleadings to the proof, Rule 55.33(b), VAMR, becomes applicable, which is in part as follows:

“Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues . . .” (Emphasis added.)

It has been said that absent a claim of surprise by the opposing party, one is “entitled” to amend his pleadings to conform to the evidence. Biehle v. Frazier, 360 Mo. 1068, 232 S.W.2d 465, 467[l-4] (1950); Solomon v. Moberly Light and Power Co., 303 Mo. 622, 262 S.W. 367, 370[1] (banc 1924). Where as here evidence inconsistent with pleadings was admitted without objection at trial, we shall consider on appeal that the pleadings were amended to conform with plaintiff’s evidence. Lock v. Bennartz, 470 S.W.2d 801, 802[1] (Mo.1971).

For plaintiff to avail himself of the provisions of Rule 55.33(b), VAMR, defendant must first have consented or failed to object to submission of evidence of the issue regarding criminal conversation between defendant and Eloise in November or December of 1971. No objection was raised to the evidence on grounds that it was beyond the scope of the pleadings. We hold it was an abuse of discretion to refuse leave to amend at the close of plaintiff’s evidence. The question of the relationship between Eloise and defendant in November and December of 1971 had been at issue throughout the trial. Defendant did not, and in our opinion could not at that stage of the proceedings, claim surprise when plaintiff sought to conform his petition to the proof. We see no valid reason for denying the request to amend and hold that it was error so to do. It is unnecessary for the purposes of this appeal to rule plaintiff’s other contentions of error.

The judgment is reversed and the cause is remanded. The trial court is directed to permit amendment to Count II of plaintiff’s petition and the cause is remanded for further proceedings on Counts I and II not inconsistent with this opinion.

WEIER, P. J., and DOWD, J., concur.

      . Defendant also cites Kopff v. Miller, 501 S.W.2d 532 (Mo.App.1973), and Parsons Const. Co. v. Mo. Public Service Co., 425 S.W.2d 166 (Mo.1968). Both cases involve requests by parties to amend their pleadings during trial to permit introduction of evidence beyond the scope of pleaded issues. The evidence was subject to present objection by the opposite party. Such is not the case at bar.


author: FLANIGAN, Judge.

text:
    Robert R. CLAUNCH, Plaintiff-Appellant, v. Laura B. CLAUNCH, Defendant-Respondent.
    No. 9721.
    Missouri Court of Appeals, Springfield District.
    June 27, 1975.

      Ted M. Henson, Jr., Poplar Bluff, for plaintiff-appellant.
    No appearance for defendant-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This action for dissolution of marriage was instituted by plaintiff-appellant Robert R. Claunch against his wife Laura B. Claunch, defendant-respondent.

Although the action was commenced pri- or to January 1, 1974, it is governed by §§ 452.300 to 452.415, the date of the judgment being March 12, 1974. Section 452.-415 (par. 2) provides, in part, “Sections 452.-300 to 452.415 apply to all pending actions and proceedings commenced prior to January 1,1974 with respect to issues on which a judgment has not been entered. . . . ” Appellant presents two points, both of which pertain to that portion of the decree which deals with “marital property.”

The parties were married on March 1, 1956. In 1970 they entered into a contract to purchase nine acres of land situated in Ripley County, Missouri. The contract required them to pay the purchase price in monthly installments and required the sellers to convey clear title thereto upon completion of the payments. Their rights, as buyers, were expressly assignable.

Although each party was the recipient of pensions, the only assets of the couple were the contractual interest in the real estate, two mortgaged motor vehicles, some household goods, and some farm equipment. Both parties testified at the hearing. It was the testimony of appellant, not denied by respondent, that he had no bank account or any property “other than what has been mentioned.”

The attacked portion of the decree required respondent to convey to appellant all of her interest in the land, required the appellant to pay respondent $4,750, and further provided that “upon said payment and conveyance said property shall be the sole property” of appellant.

Appellant’s first assertion is “that the trial court did not have authority or jurisdiction to make such an order.” The second assertion is that even if such authority or jurisdiction existed, there was not sufficient evidence to support its exercise. Neither point is valid and the judgment of the trial court is affirmed.

With five exceptions, none here applicable, § 452.330 (par. 2) defines “marital property” as “all property acquired by either ■spouse subsequent to the marriage.” Section 452.330 (par. 3) provides, in pertinent part, “All property acquired by either spouse subsequent to the marriage and pri- or to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. . . .”

Sections 452.300 to 452.415 were enacted in 1973 and became effective on January 1, 1974. The act does not contain any provision by which it accords itself a name. In the Nov.-Dee. 1973 Journal of the Missouri Bar, where it is the subject of several articles, the act is referred to as the “Divorce Reform Act” (p. 495) and “Modified No-Fault Divorce Reform” (p. 501). In this opinion it will be referred to as “the act.”

Although, as indicated, the act defines “marital property,” it does not define “property.” But § 1.020 provides, in pertinent part, “As used in the statutory laws of this state, unless otherwise specially provided or unless plainly repugnant to the intent of the legislature or to the context thereof:

(8) ‘Personal property’ includes money, goods, chattels, things in action and evidence of debt; .

(11) ‘Property’ includes real and personal property;

(12) ‘Real property’ or ‘premises’ or ‘real estate’ or ‘lands’ is coextensive with lands, tenements and hereditaments; . . .”

In 63 Am.Jur.2d 291 Property § 4, it is said: “Thus, the term ‘property’ is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such, upon which it is practicable to place a money value. As applied to lands, the term comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract — those which are executory as well as those which are executed.”

“The relation of vendor and purchaser exists as soon as a contract for the sale and purchase of land is entered into. Equity regards the purchaser as the owner and the vendor as holding the legal title in trust for him.” Hernandez v. Prieto, 349 Mo. 658, 162 S.W.2d 829, 831[2] (1942).

Accordingly the rights of appellant and respondent under the land contract constitute “property.” The brief of appellant assumes, validly, that those rights are “marital property” because they were acquired subsequent to the marriage and none of the five exceptions, contained in § 452.-330 (par. 2), to the definition of “marital property” is factually applicable.

Section 452.330 (par. 1) provides, in pertinent part: “In a proceeding for . dissolution of the marriage . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including . . . ” The statute then sets forth four factors.

It is the position of appellant that the court lacked jurisdiction to enter the attacked portion of the decree. In effect, his claim is that the decree transcended the admitted authority of the court to “divide the marital property” in such proportions as the court deems just. In making this contention appellant does not rely upon the fact that he and respondent are merely holders of contract rights as distinguished from legal title holders to the land. Appellant’s evidence was to the effect that at the time of the trial (the decree was entered one week later) the land had a value of $12,000 and that the balance due the sellers under the contract was “just less than $3,000 so that the equity is approximately $9,000.” Appellant’s brief deals with the situation as if he and respondent were the legal title holders and the land was subject to a mortgage in the amount of the unpaid purchase price.

Appellant states that the trial court “undoubtedly had the right to divide the property of the parties including the nine acres of land,” and states further that the trial court could have awarded the land solely to the wife or solely to the husband or could have divided it in kind. Apparently it is the opinion of appellant that because the marital property does not include money in the amount of $4,750, such a non-existent asset could not be the subject of division within the meaning of § 452.330 (par. 1).

Appellant’s construction of the statute is too narrow. In view of the recent vintage of the statute, no Missouri decision has been found, by appellant or by this court, which construes the pertinent language of § 452.-330 (par. 1). The statute is somewhat modeled after § 307 of the “Uniform Marriage and Divorce Act.” Section 307, in part, provides “(t)he court shall assign each spouse’s property to him. It also shall divide the marital property, without regard to marital misconduct, in just proportions considering all relevant factors including .” Section 307 appears at p. 490 of Uniform Laws Annotated, Vol. 9, Master Edition. The Commissioners’ note under § 307 sheds no light on the issue.

“If the divorce court is authorized or required to make a division of property or to recognize one spouse’s title or equitable rights in property held by the other, the court need not actually divide the property between the parties but may award the property to one spouse and order that that spouse pay the other a sum in cash, espe-daily where a division and transfer in kind is impracticable or does not bring about a fair and equitable result.” 24 Am.Jur.2d 1068 Divorce and Separation § 934.

. “A divorce court has authority to enter a judgment for money as a part of a settlement of property rights, and may set aside all the property to one party and require such party to pay a proper sum of money to the other . . . .” 27B C.J.S. Divorce § 292(1), p. 268.

Foreign authorities support the proposition that a divorce court, acting under the authority of the statute authorizing it to divide community property, may order either party to pay a cash sum to the other even if there be no cash to be divided.

It is to be noted that the instant decree does not contain language by which the decree itself purports to effectuate the transfer to the husband of the wife’s interest in the land. Instead it orders the wife to convey to appellant her interest in the land and orders appellant to pay her $4,750.

This court holds that the power given the trial court by § 452.330 (par. 1) to “divide the marital property” includes the powers necessary to render effective the power to divide. Here the appellant and respondent were personally subject to the jurisdiction of the trial court, and the land was similarly subject. No doubt, in other cases, involving land not subject to the jurisdiction of the trial court, the technique which was resorted to here may be the only method of implementing the division of the marital property. The division of some categories of personal property may require the court to order one or both of the parties to perform certain acts necessary to effect a transfer.

This court concludes that the trial court did have jurisdiction, under § 452.330 (par. 2), to enter that portion of the decree which is under attack.

In considering appellant’s second contention that there was not sufficient evidence to support the entry of the attacked portion, this court reviews the case upon both “the law and the evidence as in suits of an equitable nature,” giving due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01 (par. 3).

In dividing the marital property “in such proportions as the court deems just,” § 452.-330 (par. 1), the trial court must consider “all relevant factors including:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;
(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;- and
(4)The conduct of the parties during the marriage.”

It was the testimony of appellant that the personal property of the parties had an aggregate value of approximately $500. The decree permitted each of the parties to retain that portion of the personal property then in their respective possessions. The maintenance order, entered pursuant to § 452.335 and concerning which there is no complaint, required appellant to pay respondent $50 per month for her support.

At the time of the trial appellant was 54 and respondent was 57. They separated on January 1, 1973, at which time they had been married almost 17 years. By reason of physical disabilities, neither is able to work. Appellant receives monthly a veteran’s pension of $476 and a social security pension of $146. Respondent receives monthly a social security pension of $118.80. Prior to the dissolution she received a veterans’ administration payment of $50 per month but that ended on dissolution. Respondent testified that she needed $150 per month for her support but, as indicated, the court awarded her only $50 for that purpose. Appellant testified that 50% to 60% of the payments applied to the land contract had been made by him, and respondent made the other payments. There was no testimony concerning the conduct of the parties during the marriage.

The application of the factors mentioned in § 452.330 (par. 3) cannot be accomplished by the utilization of a mathematical formula. Respondent made a substantial contribution to the acquisition of the- marital property. Although the economic circumstances of appellant are not affluent, those of respondent are even less desirable. Appellant does not contend that the division of the marital property, in the manner ordered, may not be accomplished by reason of the marketability or loan value of the land. If subject to any valid criticism, the decree may not have been generous enough to respondent. Certainly it is not vulnerable to appellant’s complaint that the evidence is insufficient to support the mode of division.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, references to statutes are to RSMo 1969, Y.A.M.S., and reference to rules are to Missouri Rules of Civil Procedure, V.A.M.R.

      . Carson v. Carson, 50 Haw. 182, 436 P.2d 7 (1967); Dallman v. Dallman, 164 Cal.App.2d 815, 331 P.2d 245 (1958); In Re Marriage of Jackson, 506 S.W.2d 261 (Tex.Civ.App.1974); Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601 (1958); Abrams v. Abrams, 124 Colo. 1, 232 P.2d 742 (1951); Johnston v. Johnston, 33 Cal.App.2d 90, 92, 91 P.2d 142 (1939); Hooker v. Hooker, 95 Idaho 518, 511 P.2d 800 (1972); Thompson v. Thompson, 82 Wash.2d 352, 510 P.2d 827 (1973).

      . Brunell v. Brunell, 494 S.W.2d 621 (Tex.Civ.App.1973); Weaks v. Weaks, 471 S.W.2d 454 (Tex.Civ.App.1971).

      . The following language appears in the Nov.-Dee. 1973 issue of the Journal of the Missouri Bar, Vol. 29, No. 8, p. 513: “Therefore, if the proceedings are properly conducted and the language of the decree is sufficient, the decree itself conveys title to real and personal property in Missouri.”

      . In State v. Donnell, 349 Mo. 975, 163 S.W.2d 940, 943[2] (banc 1942) it is said: “ ‘It is elementary that what is implied in a statute is as much a part of it as what is expressed. Wilson County v. [Third] National Bank, 103 U.S. 770-778, 26 L.Ed. 488; City of Little Rock v. United States [8 Cir.], 103 F. 418, 420, 43 C.C.A. 261. It is also elementary that, when a power is conferred by statute, everything necessary to carry out the power and make it effectual and complete will be implied.’
      “[2] To the same effect is the case of United States v. Kelly, 2 Cir., 55 F.2d 67, 83 A.L.R. 122, also relied upon by relator. We, also, have announced this rule of law. In the case of State ex rel. Wahl et al. v. Speer et al., 284 Mo. 45, 223 S.W. 655, loe. cit. 660, we said: ‘The rule for interpreting statutes, that a power given carries with it, incidentally or by implication, powers not expressed, but necessary to render effective the one that is expressed, * *
      “We have also held that which is implied in a statute is as much a part of it as what is expressed.”
      See also Smith v. Carnes, 478 S.W.2d 5, 7 (Mo.App.1972).

      . See 34 A.L.R.3d 962 “Power of Divorce Court to Deal With Real Property Located in Another State.” At p. 968 it is said: “It has been generally held that a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state.” At p. 975 it is said: “On the basis of the principle that a court of equity, acting pursuant to its personal jurisdiction over a party, may order the party to perform such acts as executing conveyances or releases with respect to out-of-state real property and may compel compliance with the order by such means as contempt proceedings or attachment, it has been generally held that a divorce court in one state has the power' indirectly to affect real property in another state by means of an in personam decree operating upon a party over whom the court has personal juridiction.”


author: BILLINGS, Chief Judge.

text:
    Margie GREGORY, Plaintiff-Appellant, v. Melvin GREGORY, Defendant-Respondent.
    No. 9899.
    Missouri Court of Appeals, Springfield District.
    June 30, 1975.
    Dean S. Johnston, Joplin, for plaintiff-appellant.
    Vernie R. Crandall, Frieze, Crandall & Crawford, Carthage, for defendant-respondent.
   BILLINGS, Chief Judge.

Plaintiff Margie Gregory, former wife of defendant Melvin Gregory, has perfected this appeal from an adverse judgment of the Circuit Court of Jasper County. Plaintiff sought to recover a sum claimed to be due from the defendant under an agreement entered into by the parties prior to their 1973 divorce. The trial court ruled the agreement was void and denied plaintiff’s claim. We reverse and remand.

Plaintiff’s amended petition was filed in July of 1974 and alleged:

“1. That Plaintiff and Defendant were husband and wife and in 1973 she filed an action for divorce against Melvin Gregory. That prior to the divorce hearing various discussions were had between Plaintiff and Defendant concerning terms of property settlement. That in consideration for obtaining said divorce Defendant agreed to pay Plaintiff $65.00 per month child support for their one child, the balance of a note secured by a deed of trust on Plaintiff’s residence . . . and to deed Plaintiff Plaintiff’s residence.

“2. That on July 12, 1973, Plaintiff obtained a divorce from Defendant in the Circuit Court of Jasper County, Missouri, at Joplin under Case No. 67155. That at that time Defendant deeded said property to Plaintiff and Defendant made payments on the mortgage until January, 1974, when he advised Plaintiff that he was not going to make further payments and he also advised Plaintiff’s attorney to the same effect. Defendant has made the agreed child support payments.

“3. That on January 1,1974, the balance due on said mortgage was $4,105.60.

“4. That Defendant’s refusal to make further payments and statements that he was not going to make further payments is anticipatory breach of his contract to pay.

“5. Plaintiff states that a bilateral contract existed between the parties and that she performed her part of the contract by obtaining the divorce from Defendant so that he might be free to remarry and that Defendant partially performed his part of said bilateral contract in making some payments on the mortgage, in deeding the property to Plaintiff and paying child support payments.”

The prayer of the petition was for judgment for the balance due on the mortgage and by subsequent amendment asked for interest on said sum from January 1, 1974.

The defendant’s answer denied the allegations in paragraphs 1, 2, 4 and 5 of the petition, disclaimed knowledge as to the amount due as stated in paragraph 3, and further plead as follows:

“Further answering, defendant states that assuming the allegations of the petition to be true relative to an agreement to make payments on real estate said alleged agreement was without consideration and thereby voidable, and that any such agreement if made would have been a collusive agreement in violation of plaintiff’s affidavit filed with her petition for divorce. Defendant further states that said agreement, if in fact such an agreement was made, would be void as against public policy.”

The transcript filed herein reflects the parties and their attorneys appeared for trial of the issues raised by the foregoing pleadings; but, contrary to the judgment recital that the court heard evidence, no evidence was offered by either party. Rather, in an obvious effort to delineate the issues, the trial judge inquired of counsel what matters could be stipulated by the parties. A colloquy between the attorneys, neither of whom represented the parties when the agreement was made and divorce obtained, and the court ensued.

From the seven and one-half pages of the transcript embracing the colloquy and the parties’ statements in their briefs, we are able to glean the following “facts”. The parties had been separated for approximately five years prior to July of 1973, and during this period the husband had been living with another woman. The husband, a nonresident, wanted a divorce in order to remarry and consulted a Neosho attorney.

Thereafter, both husband and wife went to this attorney’s office where there were discussions concerning child support payments, deeding the family residence to the wife, and the husband paying off the lien against the property. Because of the husband’s nonresidency he signed a written entry of appearance, and the divorce suit was initiated by the attorney with the wife as plaintiff. Default divorce proceedings followed the same day. The husband executed a deed to the wife and paid the attorney’s fee. Two days after the divorce the husband married the other woman. The husband paid the monthly installments on the mortgage until January 1, 1974, and he has made the child support payments since the divorce.

We have read and re-read the remarks, statements and conclusionary assumptions of the parties’ attorneys of what the alleged agreement was, what was intended, and the circumstances surrounding its making, and continue to be of the opinion there was simply no evidence before the trial court for a proper determination of the issues between the parties. Without some evidence, neither a judgment for the plaintiff on her claim nor for the defendant on his defense could stand.

In their briefs both parties refer to “stipulated facts”, and we can only assume they are treating, to some extent, the colloquy referred to as a stipulation of facts upon which a judgment could be based. The difficulty inherent in such an assumption is that, in their discussion of the alleged agreement and circumstances giving rise thereto, the attorneys for the parties continually qualified their respective positions by what they “thought”, “supposed”, or “assumed.” Examples: “I think that was it”; “I think that is the way it occurred”; “That is the way I understand it”; “I am assuming”.

We do not know from the record below what transpired between the parties insofar as any agreement is concerned. Neither do we know whether the alleged agreement was formalized in writing, mentioned in the divorce proceedings, or approved in any fashion by the divorce court. The preliminary discussions between the parties, if any, looking to a settlement of property rights, are unknown to us. In short, the transcript discloses a complete lack of evidence. The colloquy of counsel and court does not rise to the dignity of evidence, and the judgment is wholly without support.

It is evident that neither the plaintiff nor the defendant has presented all the available evidence to establish the claim or the defenses thereto. In the interests of justice we deem it necessary to reverse and remand this cause for a new trial. Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970) and cases cited therein at 815. In so doing, we repeat what we had occasion to say in Anderson v. Dyer, supra at 815: “[W]e sound this caveat for the-benefit of the trial judge and counsel: nothing we have said is to be considered as a suggestion as to how the issue and defenses should be decided — the determination of these matters is a task to be executed by the court nisi upon whatever the pleadings and evidence may be at the new trial.”

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

All concur.


author: McMILLIAN, Judge.

text:
    John DeARMON, Plaintiff-Appellant, v. CITY OF ST. LOUIS, a Municipal Corp., Defendant-Respondent. John DeARMON, Plaintiff-Respondent, v. Richard SMITH d/b/a Richard Smith Contracting Company, Defendant-Appellant.
    Nos. 36073 and 36074.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 1, 1975.

      Sommers & Holloran, Inc., Michael D. Stokes, St. Louis, for plaintiff-appellant.
    Marvin S. Wood, St. Louis, for defendant-appellant.
    Jack L. Koehr, City Counselor, Judith Anne Ronzio, Asst. City Counselor, St. Louis, for defendant-respondent.
   McMILLIAN, Judge.

This is a suit filed by plaintiff for real property damages caused by defendant Smith, a wrecking contractor (Smith), while the said defendant’s employees were razing property adjacent to plaintiff’s building. Plaintiff named as a co-defendant the City of St. Louis (City) on the theory that Smith at the time he damaged plaintiff’s building was acting as an agent, servant, or employee of the City.

After the court sustained City’s motion for a directed verdict at the close of plaintiff’s case, subsequently the jury awarded plaintiff damages against Smith in the sum of $8500.00. From this award, Smith appeals. Plaintiff also appeals from the court’s order which sustained City’s motion for a directed verdict. We have consolidated the two appeals.

In Smith’s appeal, the issues are whether the court erroneously (1) directed a verdict against defendant Smith on the issue of liability; (2) instructed on the issue of damages; (3) refused to permit defendant to show the cost of repairs to the damaged building; and (4) permitted an excessive verdict to stand, or alternatively permitted a verdict to stand which was the result of jury bias and prejudice. We affirm the judgment in favor of plaintiff against defendant Smith.

Since Smith does not question the sufficiency of the evidence we shall set forth only those facts necessary for a disposition of this appeal.

On January 5, 1972, or December 28, 1971, employees of Smith’s, while razing an adjacent, condemned building under a contract with City knocked a hole in the east wall of plaintiff’s building. The hole extended from the foundation, either almost to the second floor, or covering both the first and second floors and the bottom of the third floor.

Plaintiff’s expert witness fixed the reasonable market value of plaintiff’s building before the accident between $8,000 and $10,000 — after the damage had occurred, he testified the building had no value. Smith’s expert testified that plaintiff’s building had no value either before or after the accident because “there are no sales of such houses, no loans made.”

Smith’s attorney, during the time allotted to him to make his opening statement as to Smith’s evidence, admitted not only that his employees damaged plaintiff’s building but also his responsibility to pay plaintiff a certain sum, which he suggested to be $1,000. The court construed these statements to be an admission of liability, and, accordingly, directed a verdict on this issue.

As a rule opening statements usually are not considered as judicial admission unless an attorney makes clear, unequivocal admission of fact, in which case they are binding on the party in whose interest they are made. McCarthy v. Wulff, 452 S.W.2d 164, 167 (Mo.1970). A mere statement or outline, however, of anticipated proof upon any one or more issues in the ease is not to be regarded as a binding admission so as to either bind the party whose counsel made the statement or to dispense with the necessity of proof on the issue on the part of his adversary. Bayer v. American Mut. Cas. Co., 359 S.W.2d 748, 753 (Mo.1962). Unlike an evidentiary admission, an admission in an opening statement is a judicial admission and is conclusive. So the question becomes, did Smith’s counsel make a clear, unequivocal admission in his opening statement that his client was liable for the damage caused to plaintiff’s building. We hold that Smith’s defense as outlined in his opening statement was a clear, unequivocal admission of liability that was directed to a lessening of damages, not to the issue of liability. Thus we find this issue against defendant.

Defendant argues that improper damage instructions were given. The court gave a modification of MAI 4.02, which required the jury to award the difference between the fair market value of the building before and after it was damaged. The court also gave MAI 16.02, the standard definition of fair market value. Defendant argues that MAI 4.01 (entitled “Measure of Damages — Personal and Property”) should have been given.

The titles of the respective MAI’s clearly state the kind of case to which each applies. MAI 4.02 is for “Property (damage) only.” Notes on Use of MAI 4.02 state that it “should be used in cases involving the property damage only.”

A recent Springfield case elaborates on the choice of MAI 4.02 over 4.01 when only property damage is involved. In State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147 (Mo.App.1974), the Highway Commission sought recovery for damages allegedly done to a bridge by defendant. On appeal from judgment for plaintiff, defendant argued that the trial court erroneously gave MAI 4.01 but should have given MAI 4.02, since the ease involved property damage only. The court agreed and reversed plaintiff’s judgment. The court recited the bold-face names of the two instructions and the Notes on Use which required strict compliance with all the requirements of MAI. State ex rel. State Highway Commission v. Beaty, supra. The court rejected plaintiff’s argument that if the more general MAI 4.01 is sufficiently clear to guide juries in cases involving both personal and property damage, it could not possibly mislead the jury when only property damage is involved. The court rebuffed plaintiff for implying that MAI 4.02 is not needed and should be ignored, after the Missouri Supreme Court, by promulgating a second edition of MAI (in 1969), determined that 4.02 was necessary and mandatory in property-damage-only cases. State ex rel. State Highway Commission v. Beaty, supra, at 154.

Rule 70.01(b), V.A.M.R. requires that an applicable MAI “be given to the exclusion of any other on the same subject.” There is no doubt that MAI 4.02 is an applicable MAI here. There was no error in giving it to the jury.

We note that defendant’s cases which seem to sanction use of MAI 4.01 in property-damage-only cases predate inclusion of MAI 4.02 (see page XIX of MAI 2d ed.). The only case not predating MAI 2d ed. involved personal injuries. Reynolds v. Arnold, 443 S.W.2d 793 (1969).

Defendant further argues that MAI 16.02 in defining “Fair Market Value” (a term used in MAI 4.02) handed the jurors “a roving commission to consider any ‘use’ of the property in bringing in their verdict.”

The clear words of MAI 16.02 rebut this argument by instructing the jury to consider, “all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future." (Emphasis added.) There was no instruction error.

The court refused to allow Smith to elicit testimony concerning the cost to repair the damage to the building because the court said, “. . . the damages were so extensive that the only question involved was the value of the property before and after the damage. . . . ”

Defendant argues that the trial court erroneously excluded evidence of the reasonable cost to repair plaintiff’s building.

The general rule is that the measure of damages for injury to real property is the difference in value immediately before and immediately after the event causing the injury (diminution-in-value test). Misch v. C. B. Contracting Co., 394 S.W.2d 98, 101 (Mo.App.1965). However, where damage to land or a building thereon can be restored to its former condition at a cost less than the diminution in value, cost of restoration becomes the measure. Baker Companies v. Pasley Mfg. & Distributing Co., 413 S.W.2d 268, 273-274 (Mo.1967); Beaty v. N.W. Elec. Power Co-op, Inc., 296 S.W.2d 921, 924 (Mo.App.1957).

Courts have said that the cost-of-repair test is an exception to be used only where the amount of damage is insignificant as compared to the value of the property as a whole and involves only a small part thereof. Gulf, M. & O. R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 104-105 (Mo.App. 1949). It has been suggested that “courts tend to use the diminution test without hesitation in circumstances that suggest a very high restoration cost.” Dobbs, Remedies, § 5.1, at 317 (1973). A court has held that it was improper to submit a case to the jury on the theory of cost of repairs because it was not shown that the damage was comparatively insignificant, considering the total value of the building. De Long v. Broadston, 272 S.W.2d 493, 497 (Mo.App.1954).

In the case of Curtis v. Fruin-Colnon Contracting Co., 336 Mo. 676, 253 S.W.2d 158, 164 (1952), Judge Hyde, after recognizing the general rule (diminution of value) said, “However, where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered.” He observed further that the restoration rule (cost-of-repairs) is applicable only to cases where the cost of restoration is less than the difference in value of the land before and after injury and can never be applied in any case where the cost of restoration is greater than the value of the building.

In our case Smith contends that the cost of repairs is the proper rule to be followed — because the damage was easily reparable, and that 11 rooms of the 13 rooms were intact. On the other hand, however, the testimony and the photographic evidence shows the damage to the building to be extensive, a large, gaping hole on the exterior wall that ran from the foundation to the bottom of the third floor. The hole exposed almost completely the two rooms involved.

For Smith to show that the cost of repair rule was the one to be followed he had to show that the damage to the building not only was insignificant compared to the value of the property as a whole, but also involved only a small part thereof. This he failed to do. Here the damage was significant and involved almost a third of the entire east wall from the foundation to the bottom of the third floor. In this posture while we believe the better practice would have been for the court to receive evidence as to the cost of repairs, for whatever light it may have shed on the diminution in value, we cannot condemn the trial court of error in following the diminution of value rule. First, because of the extensiveness of the damage; secondly, because of the permanent nature of the damages; and third, because as a matter of law the evidence showed the damage to the building to be significant.

Plaintiff’s “expert” testified that plaintiff’s property was worth $8,000 to $10,000 in an undamaged condition but had a “negative value” as damaged. Defendant’s “expert” testified that plaintiff’s property had no value even in its undamaged condition. The jury verdict was for $8,500, which defendant argues was either excessive or the result of the jury’s bias and prejudice against defendant.

In considering the adequacy, inadequacy or excessiveness of a jury verdict, appellate courts view the evidence in the light most favorable to the verdict and must remember that the trial court has wide discretion in ruling on a motion for new trial. The jury’s broad discretion in fixing the amount of award is conclusive on appeal unless the appellate court can say that the verdict is so shockingly and grossly excessive or inadequate that the amount of the verdict is due to passion and prejudice. Boehmer v. Boggiano, 412 S.W.2d 103 (Mo.1967).

The case at bar is analogous to a condemnation case in which two experts differ as to the fair market value of the property taken. As long as the verdict falls within the range of values testified to at trial, an appellate court will not weigh the evidence in a jury trial. See State ex rel. State Highway Commission v. Bopp, 516 S.W.2d 38 (Mo.App.1974).

In light of these principles, we cannot say that the verdict was excessive.

As to bias and prejudice of the jury, an appellate court may not infer bias and prejudice from the size of the verdict alone. Reynolds v. Arnold, 443 S.W.2d 793 (Mo.1969), and cases cited therein; Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974). In order to warrant reversal, there must have been some incident or occurrence at the trial, or some error committed, of such a nature as to engender bias, passion or prejudice. McConnell v. Pie-Walsh Freight Co., 432 S.W.2d 292 (Mo.1968).

Here defendant points to no specific incident causing bias, passion or prejudice. The court’s attitude toward defendant’s “expert” Bruñe, — “I wouldn’t believe him on a stack of bibles, but I am not saying that to the jury” — was aired out of the jury’s hearing and, therefore, can have no bearing on the jury’s verdict. The qualifications of plaintiff’s expert witness go to the weight of his testimony, not to its admissibility. Although it is true that property in the area of plaintiff’s has declined in value, that fact was before the jury.

The essence of defendant’s contention is that the jury should have believed his expert and disbelieved plaintiff’s expert. We have no power to reweigh such evidence, and rule this point against defendant Thomas.

Next we take up plaintiff’s appeal against City. The issues for our decision are whether the trial court erroneously (1) permitted City to file an amended answer; and (2) refused to permit plaintiff to read into evidence admission against interest contained in City’s abandoned pleadings. We affirm.

Plaintiff argues that the trial court abused its discretion in allowing the City to file an amended answer “three days before trial,” which denied “for the first time” the agency relationship plaintiff pleaded in its petition. Plaintiff also contends that the trial court erred in not allowing plaintiff to read the City’s original answer (now abandoned) as an “admission against interest.”

The City argues that there was no abuse of discretion in the court’s allowing the City to file an amended answer, especially since plaintiff refused to accept the court’s offer of a. continuance, thereby waiving any error with respect to the amendment. The City further argues that the trial court correctly prevented the reading of the City’s original answer because it was made inadvertently and because it amounted to a legal conclusion rather than an admission of facts.

Rule 55.33(a) allows a party to amend its pleading “only by leave of court or by written consent of the adverse party” after the time for amending as a matter of course has expired. Such leave “shall be freely given when justice so requires.” The function of such a rule is to enable matters to be presented that were overlooked or were unknown to party at the time he filed his original pleading. 6 Wright and Miller, Federal Practice and Procedure, § 1473 at 375 (1971).

The most frequent reason for denying leave to amend is that the opposing party will be prejudiced. Wright and Miller, supra, § 1487 at 428; see Siedler v. Tamar Realty Co., 491 S.W.2d 566 (Mo.App.1973). Factors which the trial court should consider are: hardship to the moving party if leave to amend is denied, the reasons for the moving party’s failure to include the new matter in its original pleading and the injustice resulting to the party opposing the motion should it be granted. Wright and Miller, supra, § 1487 at 428.

Permission to amend rests in the trial court’s discretion, which will not be disturbed on appeal unless there is a showing that such discretion has been palpably and obviously abused. S- v. W-, 514 S.W.2d 848 (Mo.App.1974); Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973).

Here there was no abuse of discretion. The City first admitted that Smith was its agent but then, three days prior to trial, obtained leave to amend in order to deny agency. In ruling on plaintiff’s motion to strike the City’s amended answer, the court accepted the City’s explanation that its counsel “simply missed” plaintiff’s allegation of agency. The court asked plaintiff how he would be prejudiced. Plaintiff contended that he now would have to take defendant Smith’s deposition “to see if any agency existed.” The court offered to continue the case, but plaintiff refused the offer. The court correctly observed that it would be unjust to the City to bar it from asserting the defense of independent contractor merely because it originally overlooked that defense.

Plaintiff’s claim of prejudice to this court is different from that in the trial court. Plaintiff tells us that, since the lawsuit was “over two years old at the time of trial” and since “plaintiff was an elderly man” (73 years old), the granting of a continuance— as offered by the court — “would have been unfair to plaintiff.”

Plaintiff cites two cases in which it was held that the trial court did not abuse its discretion in refusing to permit amended pleadings. Clearly these cases reinforce the wide discretion of the trial court to either allow or disallow amendments.

Plaintiff claims that the trial court erred in not allowing him to read into evidence City’s original “admission” that defendant Smith was its “agent, servant and employee.”

The general rules applicable to this question are easily stated but difficult to apply here. Abandoned or superseded pleadings may be admitted into evidence when they contain admissions against the pleader’s interest. Yeager v. Wittels, 517 S.W.2d 457 (Mo.App.1974); see Simeone, Admissions of a Party-Opponent, 5 St.L.U.L.J. 469 (1959); Annot. 52 A.L.R.2d 516, 524-25 (1957). An admission in an abandoned pleading is not conclusive; Bledsoe v. Northside Supply & Development Co., 429 S.W.2d 727 (Mo.1968), but is to be considered along with other facts and circumstances in the case, Hall v. Denver-Chicago International, Inc., 481 S.W.2d 622 (Mo.App.1972). The pleading may be used if it contains admissions or statements of fact against the party who filed the pleading. Hall v. Denver-Chicago International, Inc., supra. However, legal conclusions in an abandoned pleading are not admissible as admissions against the pleader’s interest. Kelso v. C. B. K. Agronomics, Inc., 510 S.W.2d 709 (Mo.App.1974); Macheca v. Fowler, 412 S.W.2d 462 (Mo.1967).

Is the statement that defendant Smith was “acting as agent, servant and employee of the defendant, City of St. Louis” an admission of fact or is it a legal conclusion?

In Wors v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583, 590 (Mo.1970), it was held that an allegation in a superseded pleading such as “ ‘[T]he explosion was a direct and proximate result of the negligence of the defendants in the manufacture, distribution and handling of the soda . ’ ” constituted a legal conclusion, not facts and therefore did not amount to admissions.

In Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 260 (Mo.1973), it was held that a statement (in an answer to an interrogatory) that one McClary was acting within the scope of his employment was admissible as an admission against interest, even though it was a statement of an “ultimate fact,” since the statement was:

“. . . based on facts of which the declarant could be expected to have had knowledge of or knowledge available to it

It has been held that extra judicial admissions are competent evidence even though in the form of conclusions as to the ultimate fact at issue. Howell v. Dowell, 419 S.W.2d 257 (Mo.App.1967) and authorities cited therein.

In light of the above, while we believe the admission of an agency relationship was a statement of an ultimate fact, which generally should have been admitted, we hold it is not determinative of the issue here involved.

Thus the question becomes, is an admission in an abandoned pleading made by mistake or accident admissible into evidence as an admission of a party proponent. Under the circumstances of this case, we think not. First, as was explained by counsel for City, the statement sought to be introduced in its original answer was made erroneously and inadvertently. Next, this assertion is supported by the balance of City’s original answer, in which liability is categorically denied. Our attention is specifically drawn to City’s denial of that allegation in paragraph number 5 in its original answer to plaintiff’s amended petition, wherein City denied that it had exclusive control or the right of control over the demolition. Logically, if City had the control contended for by plaintiff then conceivably Smith was its agent. Thus the admission of agency was inconsistent with its denial. Consequently, we hold that where an admission contained in an abandoned pleading is made inadvertently and is thereafter corrected by an amended answer, it rests within the sound discretion of the court as to whether or not the abandoned pleading may be read as an admission of a party proponent. Obviously, this responsibility carries with it the duty of the trial court to make a determination, as was done herein, as to the circumstances under which the alleged mistake was made. And we will only reverse where it can be demonstrated that the trial court abused its discretion. In conclusion, both judgments are affirmed.

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

      . See McCormick, Evidence § 265 at p. 633 (2d Ed. 1972).

      . Defendant elicited the comment from plaintiffs expert that “I suppose it (the area in question) was going down; I don’t think it was going up, in my opinion.”

      . Rule 55.33(a) is identical to prior Rule 55.53(a) and to Federal Rule 15(a) in those respects which are vital to this case.

      . Central and Southern Truck Lines, Inc. v. Westfall GMC Truck, Inc., 317 S.W.2d 841 (Mo.App.1958), and Parson Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166 (Mo.Sup.1968).