author: WEIER, Judge.

text:
    John Hillary DURHAM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39228.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 1, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Nov. 6,1978.
    Kevin O’Keefe, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Katherine Marie Krause, John M. Morris III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John Gillespie, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

Movant appeals from the denial of his Rule 27.26 motion to set aside a 1965 conviction and 35 year sentence for statutory rape. The grounds for relief asserted in movant’s first amended motion and carried forward in his brief on appeal center around the allegedly illegal and unconstitutional use at movant’s trial of the record of seven previous convictions for which mov-ant had received pardons from the Governor of Missouri in 1963. These pardoned convictions were used to invoke the provisions of the Habitual Criminal Act, § 556.-280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1, and to impeach the credibility of movant when he took the stand to testify in his own defense. We affirm.

In October 1939 movant pleaded guilty to four counts of robbery in the first degree and two counts of using a motor vehicle to escape the scene of a robbery. He was sentenced to twelve years imprisonment on each count, the sentences to run concurrently. In 1956 movant pleaded guilty to one count of manslaughter. His sentence on this charge was two years. Movant was pardoned for these seven felony convictions by the Governor of Missouri on October 8, 1963. The pardon in pertinent part, states:

“That, by virtue of authority in me vested by law, and for good and sufficient reasons appearing, I, JOHN M. DALTON, Governor of the State of Missouri, do hereby pardon, release, discharge and forever set free JOHN HILARY DURHAM . . . and I do hereby restore to him all the rights of citizenship and entitle the said JOHN HILARY DURHAM to all the rights, privileges and immunities which by law attach to and result from the operation of these presents . . . ”

On cross-examination at the 27.26 hearing movant testified about the basis for his application for the pardon as follows: “The main reason I applied was I had been in prison, and I was working at, you know, it’s a state law that prisoners cannot have liquor and the Liquor Control told my employer that they would not issue him a liquor license until he fired me, and my employer didn’t want to fire me so he told me I should try to do something about it.” Movant said the reason he gave the governor why he should be pardoned was “[bjecause I felt I have a right to make and earn my living. Here a man’s going to lose his liquor license because he wanted to employ me, and I thought it was wrong, and that’s the main reason I felt the Governor would understand that.”

In December 1965 movant was convicted of statutory rape of an eleven year old girl. The indictment, filed January 23, 1964, listed the seven pardoned convictions to bring the charge under the Habitual Criminal Act, § 556.280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1. Movant testified at that trial. He denied committing the crime and said he was elsewhere when the crime occurred. On cross-examination the prosecutor used the seven pardoned convictions to impeach his credibility. Defense attorney’s objection on the ground that movant’s pardon precluded the use of the former convictions for impeachment was overruled. The prosecutor also brought out the fact that movant had served time in federal prisons for a conviction of perjury. On redirect examination movant admitted he was guilty of the six offenses to which he had pleaded guilty in 1939 but he said he was not guilty of the manslaughter charge. He wasn’t allowed to discuss the federal charge. Movant put on evidence that he had been pardoned for the seven Missouri convictions. One of the instructions given the jury at the close of all the evidence stated: “The Court instructs the jury that any testimony in this case relative to any prior conviction of the defendant is admissible for the purpose of affecting the credibility of this defendant as a witness and the weight to be given to his testimony, and then only if you find it does affect the credibility and weight of such testimony, and is to be considered by you for no other purpose.” Both sides referred to the convictions as well as the pardon in closing argument. The jury found movant guilty. Movant’s motion for new trial raised the issue of using pardoned convictions to invoke the Habitual Criminal Act but it did not mention the issue of impeachment on the basis of the pardoned convictions. The trial court sentenced movant, under the provisions of the Habitual Criminal Act, § 556.280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1, to 35 years imprisonment. This was affirmed on appeal, State v. Durham, 418 S.W.2d 23, 26-27[2-5] (Mo. 1967). The Missouri Supreme Court in that opinion ruled that use of the pardoned convictions to invoke the provisions of the Habitual Criminal Act was constitutional and proper. The issue of impeachment by showing the pardoned convictions was not raised.

Movant later filed a Rule 27.26 motion which was denied by the trial court. On appeal the supreme court remanded the case for further proceedings. Durham v. State, 473 S.W.2d 397 (Mo.1971). After remand the trial court again denied the motion and this action was affirmed by this court. Durham v. State, 538 S.W.2d 881 (Mo.App.1975). Movant next filed a petition for a writ of habeas corpus in the federal district court. The district court’s denial of his petition was affirmed on appeal. Durham v. Wyrick, 545 F.2d 41 (8th Cir. 1976). Several months before the Eighth Circuit Court of Appeals’ decision was handed down movant filed this Rule 27.26 motion. As stated in this last opinion, movant had been paroled in 1974 but his parole was revoked in January 1976.

Then in Guastello v. Department of Liquor Control, 536 S.W.2d 21 (Mo.1976), the Missouri Supreme Court held that the Supervisor of Liquor Control for the State of Missouri could not deny a person a liquor license on the grounds that the applicant had been convicted of violating a law relating to intoxicating liquor if the applicant had received a gubernatorial pardon for all such convictions. The court adopted the view that a pardon obliterated the fact of conviction but the guilt remained. Near the end of the opinion, Guastello, supra at 25, the court discussed three related cases as follows:

“It is suggested that some comment should be made as to the effect of today’s decision on the holdings in State v. Asher, 246 S.W. 911 (Mo.1922); State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716 (banc 1947); and State v. Durham, 418 S.W.2d 23 (Mo.1967). They stand for the proposition that if a defendant is pardoned after conviction, he remains subject to the Habitual Criminal Act if he later commits a criminal offense. It would seem apparent that if a defendant is pardoned after conviction and, as decided today, that conviction is thereby obliterated, such ‘obliterated conviction’ could not be used as the basis for subjecting defendant to the Habitual Criminal Act if he later committed a criminal offense. Accordingly, from this time forward, the holdings in Asher, Blair and Durham, to the extent they conflict with this opinion, should no longer be followed.”

The trial court here concluded that the ruling in Guastello was to be applied prospectively only. Movant contends this conclusion is clearly erroneous, Rule 27.26(j), and that Guastello should apply retroactively so that movant should be retried and, if found guilty, have punishment fixed by the jury. If Guastello should have retroactive effect, then the use of movant’s pardoned convictions to invoke the Habitual Criminal Act would be improper and movant would be entitled to a new trial on all issues. See, State v. Harris, 547 S.W.2d 473, 476[3] (Mo. banc 1977).

Movant and the State agree in their briefs that the Missouri Supreme Court in Guastello did not decide the specific issue of retroactivity as it relates to the Habitual Criminal Act. An analysis of the phrases used in that opinion would not seem to be dispositive of the question. This is especially true when the phrasing there used is contrasted with the wording of some other Supreme Court cases which have overruled previous decisions and have indicated that the ruling would be prospective only. Nevertheless it could very well be that prospective application was intended. The words “from this day forward,” Guastello, supra at 25, would not preclude such an interpretation.

Movant argues that when we analyze the issue of whether the pronouncement in Guastello should be given retroactive effect, we must use the criteria utilized by the United States Supreme Court in such decisions as Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The main criteria used in those cases is stated in Johnson v. New Jersey, supra at 384 U.S. 272, 86 S.Ct. 1777, as follows: “We must look to the purpose of our new standards . . ., the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application . . . ” See also, Daniel v. Louisiana, 420 U.S. 31, 32, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). The U. S. Supreme Court has also considered as a factor whether the new rule affected “the very integrity of the fact-finding process” and averted “the clear danger of convicting the innocent.” Johnson v. New Jersey, supra at 384 U.S. 727-28, 86 S.Ct. 1778. See, State v. Morgan, 539 S.W.2d 660, 666-67[6] (Mo. App.1976).

These cases deal with the question of retroactive application of new federal constitutional rules. But the new superseding rule announced in Guastello is not based on any right guaranteed movant by the U. S. Constitution. Guastello did not change the long-standing rule that having punishment fixed by the trial court instead of a jury does not violate a criminal defendant’s constitutional rights, including the right to trial by jury under Article I, Section 18(a) and Section 22(a), Constitution of Missouri and the Sixth Amendment to the Constitution of the United States. State v. Daugherty, 484 S.W.2d 236, 238-39[3, 4] (Mo.1972); State v. Maxwell, supra, 411 S.W.2d 237, 239-40[1, 2] (Mo.1967). As noted in State v. Daugherty, supra, at common law and in the federal system, the court, and not the jury, fixes punishment. Although the reasoning and analysis used by the United States Supreme Court in the opinions cited by movant could be helpful if constitutional rights were involved, they are not applicable here.

Generally when a decision overruling previous decisions deals with a rule of procedure, “. . then the effect of the subsequent overruling decision is prospective only; but if the overruled decision is one dealing with substantive law, then the effect of the subsequent overruling decision is retroactive.” Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377[10] (1937), quoted with approval in Dietz v. Humphreys, 507 S.W.2d 389, 392 (Mo.1974).

The Habitual Criminal Act, as amended and now generally known as the Second Offender Act, has consistently been held to be procedural in nature, State v. Donnell, 351 S.W.2d 775, 779[4] (Mo.1961); State v. Williams, 343 S.W.2d 58, 61[4] (Mo. 1961); State v. Morton, 338 S.W.2d 858, 863[7] (Mo.1960); State v. Bevelle, 527 S.W.2d 657, 662[8] (Mo.App.1975). For this reason we hold the effect of the Guastello ruling would be prospective only. Additionally, it appears that applying Guastello prospectively only is reasonable and proper. Following the mandate of the Habitual Criminal Act, as amended, the original trial court heard evidence concerning movant’s prior convictions outside the hearing of the jury. The rule announced in Guastello thus does not affect “the very integrity of the fact-finding process” nor does it avert “the clear danger of convicting the innocent.” The purpose of the new Guastello standard appears to be simply to announce that pardoned convictions should no longer be used to invoke the Habitual Criminal Act because of the view the court adopted as to the legal effect of a pardon. This purpose is satisfied by prospective application. It is very difficult to gauge both the degree of reliance which may have been placed on the prior rule as well as the effect on the administration of justice of a retroactive application of the Guastello decision. In any event, in view of the procedural nature of the new ruling, and the lack of any danger of convicting an innocent person when the old rule (cf. State v. Durham, supra, 418 S.W.2d 23 (Mo.1967)) was followed, it appears that justice would be better served if we were to hold, and we do so hold, that the ruling in Guastello concerning the Habitual Criminal Act does not have retroactive effect. See generally, Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 1414-15 § 10.

We turn to the other ground asserted by movant in his first amended motion and carried forward in his brief on appeal. This ground concerns the use of movant’s pardoned convictions to impeach his credibility when he testified in his own defense in the 1965 trial. On this issue movant first contends the trial court’s conclusions that this issue had been raised and decided adversely to movant in his direct appeal and that this precluded movant from raising the issue in a Rule 27.26 motion was prejudicially erroneous requiring reversal for further findings and conclusions. See Rule 27.26(i). Contrary to the trial court’s conclusions, the issue of the propriety of being impeached by showing convictions for which movant had been pardoned was not raised in mov-ant’s direct appeal, State v. Durham, supra, 418 S.W.2d 23. But the trial court went on in its conclusions to say that “an intervening change in state law allows the filing of successive motions for post-conviction relief under Rule 27.26(d). Meeks v. State, 512 S.W.2d 215 (Mo.App. Springfield D. 1974)”; that Guastello changed the law “concerning the legal effect of a gubernatorial pardon”; and “[tjherefore, Movant’s allegations concerning the use of his prior pardoned convictions at his trial in 1965 are cognizable in this 27.26 proceeding.” The court then noted that Guastello had said that an “obliterated conviction” cannot be used to subject a criminal defendant to the Habitual Criminal Act if he later commits a criminal offense but that the ruling in Guastello was to be applied prospective only so that Guastello “affords no relief to Movant.”

Although the trial court’s conclusions on this issue may be somewhat imprecise, remand for further conclusions would serve no useful purpose. The trial court reached the correct result in denying this point and it is immaterial that the court may have assigned an erroneous reason for its ruling, Tollison v. State, 556 S.W.2d 455, 457[3] (Mo.App.1977); Umfress v. State, 512 S.W.2d 178, 179[2] (Mo.App.1974), particularly when we consider that this court has all the information it needs to decide the issue and there are no disputes of fact requiring the trial court to decide if one or more witnesses are credible. This is unlike a situation such' as that presented in State v. Bratton, 547 S.W.2d 205 (Mo.App.1977) where the credibility of the witness at the 27.26 hearing is a crucial part of the case. The point is denied.

Movant’s second contention on this issue is that the trial court was clearly erroneous in concluding that the Guastello ruling (with respect to the legal effect of a pardon) should not be given retroactive effect. Movant reasons that the Guastello interpretation of the legal consequences of a pardon would prohibit admission of pardoned convictions for impeachment of a criminal defendant, that the use of the pardoned convictions for impeachment at movant’s trial rendered the trial “fundamentally unfair” and that the purpose of “such a rule” affects the very integrity of the fact finding process and averts the clear danger of convicting the innocent so that this “rule” should have retroactive effect entitling movant to a new trial.

Even if we assume: (1) that Guas-tello makes new law on this subject such that movant is not precluded by Rule 27.-26(d) from raising this issue, see, Meeks v. State, 512 S.W.2d 215, 216[1] (Mo.App. 1974); (2) that this error, if any, was not mere trial error, Rule 27.26(b)(3); (3) that there has not been a deliberate by-pass of orderly state procedure, see, McCrary v. State, 529 S.W.2d 467 (Mo.App.1975); cf. Gamache v. State, 548 S.W.2d 594 (Mo.App. 1977); and (4) that this aspect of Guastello would have retroactive effect because it affects the integrity of the fact finding process, still we do not believe movant is entitled to relief. This is because we believe it is permissible, and certainly not fundamentally unfair, even after Guastello, to impeach the credibility of a witness by showing pardoned convictions.

“The prosecutor has a statutory right to attack a criminal defendant’s credibility by inquiring about his prior convictions when the latter testifies in his own behalf. § 491.050 RSMo. 1969; State v. Lee, 492 S.W.2d 28[13] (Mo.App.1973). This form of impeachment, however, is limited to matters concerning the nature and number of the prior offenses; the prosecutor may not go into the details of the prior offenses. State v. Scott, 459 S.W.2d 321 (Mo.1970).” State v. Williams, 532 S.W.2d 826, 828[7, 8] (Mo.App.1975). See also, State v. Sullivan, 553 S.W.2d 510, 514-15[6-8] (Mo.App.1977); State v. Williams, 492 S.W.2d 1 (Mo.App. 1973). The statutory authority for this type of cross-examination, § 491.050 RSMo. 1969, provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” This statute evidences a legislative determination that a conviction for a criminal offense does diminish a witness’ credibility, “the quality or power of inspiring belief,” Webster’s Third New International Dictionary (1961), and as such is admissible to impeach the credibility of witnesses. We note that the jury was properly instructed in this case that mov-ant’s prior convictions could be considered only for the purpose of affecting his credibility as a witness.

In Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277 (1942), a physician’s license was revoked on the ground that he was an individual of bad moral character. A conviction for a crime involving a moral turpitude (using the mails in furtherance of a scheme to defraud) was there held to constitute evidence of bad moral character sufficient to sustain the action of the board in revoking his license. The court went on to say that “[t]he fact that respondent received a presidential pardon, full and unconditional, in no way affects the situation before us. It cannot be construed as restoring good character.” The Guastello opinion discussed Hughes and stated at 24-25 that its new ruling was consistent with Hughes, “to the extent the instant question was considered in the latter case.” As noted earlier, the court in Guastello adopted the view that a pardon obliterates the fact of conviction but the guilt remains.

Just as bad moral character is not restored by a pardon, Hughes, supra, and innocence is not restored thereby, Guastello, supra, neither does a pardon restore diminished credibility. And just as a pardoned conviction can constitute evidence of bad moral character, Hughes, supra, and can constitute evidence of guilt, see Guastello, so too can a pardoned conviction constitute evidence of diminished credibility. Whether a pardoned conviction can be used to impeach a witness’s credibility was considered in the recent case of State v. Zinn, 562 S.W.2d 784, 788-89[7-9] (Mo.App.1978). That case did not involve the Guastello rule but the court at 788 stated: “Generally, in the absence of statute, a pardon does not preclude the use of the conviction for the purpose of impeaching the credibility of a witness. Gurleski v. United States, 405 F.2d 253,266[25,26] (5th Cir. 1968); U. S. v. Denton, 307 F.2d 336, 339[4] (6th Cir. 1962); 81 Am.Jur.2d 584 Witnesses § 579.” The view that pardoned convictions can be used to impeach a witness’s credibility is supported by authority from other jurisdictions including Rule 609(c) of the Federal Rules of Evidence (28 U.S.C.A.). This rule provides that pardoned convictions can be used to impeach the credibility of a witness unless the pardon was based on a finding of rehabilitation or innocence. (The pardon here was not based on either finding.) For other authority allowing impeachment by showing pardoned convictions, see cases cited in 98 C.J.S. Witnesses § 508, pp. 414-15 and 30 A.L.R.2d 893.

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . Now generally called the “Second Offender Act.” Under the provisions of the amended statute the punishment is not enhanced by reason of a prior conviction nor is it a separatej offense. State v. Maxwell, 411 S.W.2d 237 239[1] (Mo. 1967).

      . Jones v. State Highway Commission, 557 S.W.2d 225, 231 [11] (Mo. banc 1977) (“In order that an orderly transition be made, that adequate financial planning take place, that governmental units have time to adjust their practices and that the legislature be afforded an opportunity to consider the subject in general, the doctrine [of sovereign immunity] is abrogated prospectively as to all claims arising on or after August 15, 1978, except for the cases decided today as to which abrogation applies here and now.”); Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599, 606[4] (Mo. banc 1969) (“We are cognizant of the fact that retrospective application of our decision could result in great hardship to those institutions which have relied on our prior decisions upholding the doctrine of charitable immunity. Therefore, feeling that justice will best be served by prospective application of the decision announced today, we hold that the new rule shall apply to this case and to all future causes of action arising after November 10, 1969, the date of the filing of this opinion.”) See, State v. Harrington, 534 S.W.2d 44, 48[2] (Mo. banc 1976) (“We believe, and hold, that the practice of allowing private prosecutors, employed by private persons, to participate in the prosecution of criminal defendants, is inherently and fundamentally unfair, and that it should not be permitted on retrial of this case or in any case tried after publication of this opinion in the Southwestern Reporter.”); State v. Williams, 554 S.W.2d 524, 527[1] (Mo.App. 1977) (rule in State v. Harrington, supra, not applicable to case tried before that opinion was published in Southwestern Reporter).

      . At the 27.26 hearing movant proved by the testimony of the chief deputy clerk that a transcript of his 1965 trial had been made but could not be found. Movant then testified from memory that at his 1965 trial he had been cross-examined about his prior convictions for which he had received pardons when he had taken the stand in his own defense. This court has located a copy of the previously unavailable transcript and it shows that movant had indeed been questioned about these convictions.


source: Caselaw Access Project

author: STEWART, Presiding Judge.

license: Public Domain

text:
    PENTAGON FEDERAL CREDIT UNION, Plaintiff-Respondent, v. James EDWARDS, Jr., Defendant-Appellant.
    No. 38812.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 1, 1978.

      E. A. Walton, Jr., Freeman, Whitfield, Montgomery & Walton, Michael B. Calvin, St. Louis, for defendant-appellant.
    James E. Hawk, Jr., Clayton, for plaintiff-respondent.
   STEWART, Presiding Judge.

Action by plaintiff, credit union, against defendant, one of its members, for return of promissory note and security agreement mistakenly marked paid and sent to defendant; for an equitable lien upon defendant’s automobile; for money judgment and for an order of foreclosure of lien and sale of automobile and application of proceeds to the delinquency on the note.

In this court tried case plaintiff had judgment including interest and attorney fees in the sum of $3,832.96; defendant was ordered to deliver note, security agreement and certificate of title on the automobile to plaintiff. The court established an equitable lien upon the automobile and ordered foreclosure with proceeds to be applied against the money judgment and for execution against defendant for any unpaid balance. On this appeal we affirm.

Preliminarily defendant contends the court erred in denying his request for jury trial asserting that the action was one at law and not in equity. In this one count action plaintiff, in addition to a money judgment, sought the return of documents mistakenly delivered to defendant and an equitable lien all of which was granted. A petition may partake of the attributes of both legal and equitable actions. The petition here sought both legal and equitable relief. To have entered a judgment for only the balance due on the note would not have given plaintiff complete and adequate relief. Under the petition in this case the court properly undertook to try the case in equity without a jury “subject to proof of the equitable features necessary to authorize a final disposition of the case as one in equity.” “Upon the proof of the plaintiff’s right to an equitable lien [and here return of the documents], jurisdiction of the court to dispose of the case as one in equity was fully established.” Goldman v. Ashbrook, 262 S.W.2d 165, 168[5] (Mo.App.1953). Equitable jurisdiction having attached, the court was then authorized to dispose of all of the issues and do complete justice in the case. Goldman v. Ashbrook, supra. The trial court did not err in denying defendant’s request for a jury trial.

This litigation had its genesis on April 20, 1978 when defendant, as a member of plaintiff credit union, made a loan of $3,600.00 for the purpose of purchasing an automobile. He executed a promissory note and security agreement on the automobile. The note provided for monthly payments of $114.45. This loan was given account number 217524-10-7. The records of plaintiff show that 11 payments were made on the loan. The last payment was March 18, 1974. The plaintiff allots one basic account number to each member of the credit union with a suffix indicating the various transactions such as his savings accounts and loan accounts. In March of 1974 plaintiff discovered that because of a merger with Okinawa Credit Union defendant had two account numbers. By letter dated April 1, 1974 defendant was notified that the loan account for the April 1973 loan had been transferred to number 249133, his other loan account. An entry was made in the computer closing out account number 217524-10-7. This entry was forwarded to the file room. The file room, noting that account 217524-10-7 was closed, marked the note and security agreement paid and sent those documents along with the title to defendant. Plaintiff’s records show the last payment made by defendant to have been March 18, 1974. The principal balance on the note at that time was $2,629.57. In May of 1974 a form letter was sent to defendant advising that they had not heard from him and asking that he contact plaintiff. Another letter was sent in July. Plaintiff received no response to the letters and on July 22 a call was made to defendant’s home and a message was left for defendant to call plaintiff’s office. On July 24 another letter was sent advising defendant that plaintiff had not received payment on the note. On August 9 a letter was sent advising that suit would be filed if payment was not received. On September 25 a wire was sent requesting that defendant make payment of $501.05 to bring his loan current or that plaintiff would proceed with repossession. Defendant made no response to these communications. On May 16, 1975 defendant received a letter from plaintiff’s counsel. Defendant did not respond to that letter. Suit was filed in July of 1975.

Defendant answered by way of general denial and affirmatively, defendant’s defense seems to be that if plaintiff made a mistake it must bear the loss. At the trial defendant testified that the balance on the note had been paid in full by his stepfather in March of 1974. His stepfather who lived in St. Louis died in June of 1975. He testified that his stepfather showed him a receipt for the payment. He did not get the receipt from his stepfather and had no evidence of any payments made except the note that was marked paid. He “threw away all that stuff” after he received his title.

In this court tried case the judgment of the trial court will not be reversed if there is substantial evidence to support the judgment and it is not against the weight of the evidence and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 80, 32 (Mo. banc 1976). As directed in Rule 73.01 we give due regard to the “opportunity of the trial court to have judged the credibility of witnesses.”

The next two issues raised by defendant are directed to the question of the burden of proof with respect to the alleged mistaken cancellation of the note and the sufficiency of the evidence to make such a finding. These points can be consolidated into one issue. In the court tried case we determine whether upon a view of all of the evidence there was sufficient substantial evidence to support the judgment of the trial court. See Miller v. Gayman, 482 S.W.2d 414, 418 (Mo.1972). We review a few general principles applicable to this case. Essential to plaintiff’s cause to obtain restoration of the note and security agreement is the non-payment of the note. Where non-payment is an essential element of plaintiff’s case payment is an affirmative defense and should be pleaded. Household Finance Co. v. Watson, 522 S.W.2d 111, 114 (Mo.App.1975); Rule 55.08. In this case, though not pleaded, the issue of payment was tried by the implied consent of the parties and will be treated as raised by the pleadings. Household Finance Co. v. Watson, 522 S.W.2d at 114.

It has long been the rule that possession by the maker of a note, past due, is strongly corroborative of the defense of payment. Stephenson v. Richards, 45 Mo. App. 544, 550 (1891). Such possession is not conclusive. The cancellation of evidence of debt which is made unintentionally, or under mistake or without the authority of the holder does not discharge the debtor. Household Finance Co. v. Watson, 522 S.W.2d at 116.

The plaintiff in this case presented evidence that its records revealed a balance of $2,629.57 due on the note made by defendant; that upon consolidation of the account number originally given the transaction and the closing of that account the documents related to the transaction were mistakenly marked paid and mailed to defendant. Defendant testified that his stepfather had paid the note. The primary issue was one of fact and its determination was one of credibility. It is apparent that the trial court chose to believe plaintiff’s evidence that the note was unpaid and that the note was marked paid and sent to defendant by mistake. Defendant produced no tangible evidence of payment except the note. He had known for better than a year before his stepfather’s death that plaintiff was making claim for a substantial balance on the note but did not obtain the receipt he claimed his stepfather had in his possession. Giving due deference to the trial court’s ability to determine the question of credibility we cannot say that there is no substantial evidence to support the judgment or that the judgment is against the weight of the evidence. Lewis v. Home Land & Loan Co., 173 S.W.2d 53 (Mo.1943).

Defendant, in his fourth point, attempts to bring this case within the law with respect to the reformation of instruments contending that equity will not correct a unilateral mistake. The court was not asked and it did not reform the contract between the parties. As said above when an instrument evidencing a debt is marked paid and placed in the hands of the debtor by mistake it does not operate to discharge the debtor. Household Finance Co. v. Watson, supra. The court did not reform but enforced the contract between the parties. The principles relied upon by defendant are not applicable to this case.

Defendant’s fifth point reads:

“That the trial court erred in ordering that the lien of the plaintiff-respondent be foreclosed and the said automobile be taken and sold, when the purpose of reformation is to restore the contract to the original intent of the parties, before the mistake and default, and not after said default, which results in foreclosure.”

He again mistakes the nature of the action brought by plaintiff. What we have said with respect to defendant’s fourth point relied on is equally applicable here.

The judgment of the trial court is not against the weight of the evidence but is supported by substantial evidence; it does not misinterpret or misapply the law of the case. The judgment of the trial court is affirmed.

REINHARD and STEPHAN, JJ., concur.

      . Pertinent portions of the answer read as follows:
      “2. Any alleged mistakes made by plaintiff were purely unilateral in nature and equitable relief is not afforded thereto;
      3. Said unilateral mistakes as are alleged in plaintiffs petition were due to plaintiffs gross and culpable negligence and equitable relief is barred thereby;
      4. Plaintiff had within his reach the means of ascertaining the true state of facts, and without inducement by defendant, neglected to avail itself of his opportunity for information— information which was solely within plaintiffs control and management — and any such unilateral mistakes by plaintiff as alleged in its petition are thus not afforded equitable relief;
      5. The true state of facts is determined by the instruments surrounding the transactions as alleged in plaintiffs petition and the court of equity is not empowered to go beyond those instruments in ascertaining the facts; and such facts as alleged by petitioner afford plaintiff no relief as a matter of law;

      8. The mistake alleged in plaintiff’s petition is not capable of remedy by the court in equity as it constitutes an alleged past wrong;
      9. Plaintiff is barred by laches in that he neglected for an unreasonable and unexplainable length of time to seek relief from its alleged unilateral mistake;”

      12. Plaintiff does not seek to do equity by returning the parties to the alleged status existing prior to plaintiff’s alleged mistake, but rather seeks to place defendant in the position of a debtor in default at law.”

      . Defendant testified:
      “Q. Did your stepfather provide you with a document showing you whether or not he did pay that particular account?
      MR. HAWK: Object to the question.
      THE COURT: Overruled.
      A. Yes, my stepfather had a document, showed me the account was paid. He called me and told me I could pick it up or he would put it in the mail. I told him, just hold it, when I come home on the weekend, I’d pick it up.”


author: GUNN, Presiding Judge.

text:
    David CRYTS, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Robert Uttendorfer, Defendants-Appellants.
    Nos. 39158, 39159.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 8, 1978.
    Motion for Rehearing and/or Transfer Docket #39159 Denied Sept. 15, 1978.
    Application To Transfer Docket # 39159 Denied Nov. 6, 1978.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Mark T. Stoll, R. A. Wegmann, Hillsboro, for defendants-appellants.
    Ely & Wieland, Robert C. Ely, St. Louis, for Ford Motor Co.
    Schurr, Inman & Graziani, Robert L. In-man, Clayton, for plaintiff-respondent.
   GUNN, Presiding Judge.

This appeal arises from a civil action in tort based on a two car collision in which plaintiff, David Cryts, suffered paraplegia. The jury returned a verdict in the amount of $150,000, and the judgment was entered against defendants Ford Motor Company (Ford), the manufacturer of the car plaintiff was driving, and Robert Uttendorfer, the driver of the car with which he collided. Uttendorfer’s liability is premised on negligence in the operation of his vehicle, while Ford’s liability is premised on strict liability for a defectively designed armrest which caused plaintiff’s back to be broken when he was thrown against his door in the collision. Each defendant has appealed. Ford argues that the armrest in question was not defective as a matter of law; that regardless of any alleged defect it cannot be held liable for injuries sustained in a collision when the cause of the collision is unrelated to the injury producing defect. Further, Ford and Uttendorfer argue that the verdict directing instructions were improper. Uttendorfer also urges that the trial court erred in refusing to permit the jury to view a film of the scene of the accident. We find no error and affirm the judgment.

The accident occurred in Jefferson County on June 3, 1967 at approximately 2:00 P.M. The weather was warm and clear. Uttendorfer was northbound on the two lane access road adjacent to Interstate 55 near his home on Maple Lane. Plaintiff, who was nineteen at the time, was southbound on the same road driving a 1957 Ford Thunderbird which he was taking to his home for repair. Immediately south of Maple Lane the access road is straight and flat. To the north the road is also straight, but there is a dip about 640 feet from Maple Lane which impairs the ability of northbound drivers to see oncoming traffic. Plaintiff first saw Uttendorfer’s vehicle when it was approximately one quarter mile away. When both cars were about 150 feet from Maple Lane, plaintiff noticed Ut-tendorfer’s ear edging into the wrong lane. Plaintiff took his foot off of the accelerator but did not begin to brake until he saw that Uttendorfer had moved completely into the southbound lane of traffic. At that time he applied his brakes hard, causing his car to skid, and he steered left into Uttendorfer’s lane of traffic. At the same time Utten-dorfer saw plaintiff and swerved back into his proper lane. The two cars collided at the intersection of Maple Lane in Uttendor-fer’s lane of traffic. On impact, plaintiff was first pitched forward and right, then back into the armrest. He felt an excruciating pain in his back and was unable to move his legs to apply his brakes. Plaintiff went crashing into a chain link fence to halt the movement of his car.

A state trooper who arrived at the scene shortly after the accident occurred measured plaintiff’s skid marks and estimated his speed to have been 50-60 m. p. h. Ut-tendorfer’s car left no skid marks, but his speed was estimated to have been 5-15 m. p. h. Uttendorfer told the trooper that he was preparing to turn left into Maple Lane when plaintiff’s car suddenly appeared, prompting him to swerve left. At trial he denied ever crossing into the wrong lane of traffic.

Plaintiff was taken to a hospital after the accident. He was found to have suffered a broken back resulting in permanent paraplegia. An orthopedic surgeon who treated plaintiff testified that the trauma to the spine was caused by an object striking him in his back. He was unable to state unequivocally that the armrest in the 1957 Thunderbird was the crippling object.

Plaintiff relied on the testimony of Wallace Diboll, associate professor of mechanized engineering at Washington University, to establish the defective condition and design of the Thunderbird’s armrest. Di-boll testified regarding his studies of methods of energy absorption to lessen the effect of second collisions — the first collision being between the automobile and another object and the second collision being between the automobile’s occupant and a part within the automobile. Diboll concluded that there are two basic methods of energy absorption. The first requires the use of padded materials within the vehicle’s interi- or to absorb energy by distributing the force of impact over an area rather than a concentration at one point. The second method would be to remove any protruding or sharp objects, thereby avoiding concentration of high stress energy at a narrow point. Mr. Diboll testified that his examination of the Thunderbird armrest revealed that it was manufactured from hard plastic with minimal energy absorption capacity and that the thickness of the prophylactic padding over the plastic was only .11 of an inch. He found further that the armrest’s pointed shape did not provide a good distribution of force but concentrated energy absorbed by the body. Mr. Diboll stated that there were current designs which would be more effective in lessening the potential for second collision injuries.

Ford presented evidence concerning the safety of the design and condition of its 1957 Thunderbird. Ford’s witness testified that the purpose of the Thunderbird armrest was to provide a handle to close the door, to serve as an armrest and, in a collision, to prevent the driver from making contact with the car door hardware. The Ford expert testified that the alternative armrest suggested by Mr. Diboll would not provide these functions nor conform with federal regulations in effect at the time of trial. The federal regulations did not exist at the time the 1957 Thunderbird was manufactured and were not introduced into evidence.

Plaintiff predicates his theory of recovery on the principle of strict liability in tort for the defective design and condition of the 1957 Thunderbird armrest as applied in the so-called “second collision” or “injury enhancement” doctrine. See generally: Annot. 42 A.L.R.3d 560 (1972). While the second collision doctrine is a new concept to Missouri state law, there is ample precedent for its application found elsewhere. And for the reasons which follow, we believe that its application should receive our cachet of acceptance here.

In Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969), the rule of strict liability in tort embodied by Restatement (Second) of Torts § 402A (1965) was adopted by the Missouri Supreme Court and is the matrix shaping the second collision doctrine. The second collision doctrine merely extends the scope of liability of a manufacturer to the situations in which the construction or design of its product has caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause. Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. banc 1976); Dreisonstak v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974). In this case, the second collision was plaintiff’s body striking the armrest after the first collision between the Thunderbird and the Uttendorfer vehicle. The second collision doctrine differs from the typical § 402A case, in that the defect would not have produced any injury in the absence of an intervening cause which sets the injury producing cycle into action. The source of the original or intervening cause is irrelevant so long as the plaintiffs particular use of the product is reasonably foreseeable. Nanda v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974). The Eighth Circuit, in applying Missouri law and in adopting the second collision doctrine, specifically held that a manufacturer could be held liable for injuries shown to have been caused or enhanced by the defective condition of its product which was being used in a manner reasonably anticipated in the course of an accident brought about by an independent cause. Polk v. Ford Motor Co., supra.

The policy considerations supporting the application of § 402A strict liability to the second collision doctrine are congruent and compelling. The doctrine is based on the public policy that the costs of injuries from defective products are to be borne as a cost of business by the manufacturer who placed the product in the stream of commerce and not by the injured parties who are unable to protect themselves. Keener v. Dayton Electric Manufacturing Co., supra; Polk v. Ford Motor Co., supra; Restatement (Second) of Torts § 402A, comment (c) (1965).

“[T]he rule of strict liability is an economic theory applicable to persons engaged in the business of selling products for use or consumption, where the concepts of care, wrong, fault, and negligence in general, are no longer the determinants of liability; and a case has been said to be one of strict liability in tort, when neither care nor negligence, neither good nor bad faith, and neither knowledge nor ignorance will save a defendant.” 72 C.J.S. Supplement Products Liability § 7.

The seminal case in the second collision area is Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). The court recognized that while a manufacturer’s duty could rest upon general negligence principles, each state should feel free to supplement the common law with a doctrine of strict liability in tort as a matter of social policy. Id. at 502, n.5. Missouri has adopted the strict liability formulation. Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977); Keener v. Dayton Electric Manufacturing Co., supra. Although application of either approach will frequently produce the same result — and there is a logical melding of the two — there are important distinctions between the two concepts. The strict liability plaintiff need not prove that the manufacturer has violated the standard of reasonable care with respect to the adoption of a particular product design; he need only prove that the design was so defective as to make the product unreasonably dangerous for its anticipated use. Negligence, knowledge or fault of a manufacturer are irrelevant where recovery is sought under strict liability. Smith v. Old Warson Development Co., 479 S.W.2d 795 (Mo. banc 1972). In a strict liability case, the focus is upon the dangerous condition of a product designed in a particular way. In a negligence case, the concern is with the reasonableness of the manufacturer’s actions in designing the article. As such, a product may be dangerous to a degree which the law of strict liability will not tolerate, even though the actions of the designer were entirely reasonable in light of what was known at the time the product was planned and sold.

To recover under the second collision doctrine, the plaintiff has the burden of proving that the product was defective in condition or design when it left the hands of the manufacturer. Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977); Restatement (Second) of Torts § 402A, comment (g) (1965). To establish that the product was defective, plaintiff must show that he was injured while using the product in its intended manner. Keener v. Dayton Electric Manufacturing Co., supra. Further, the plaintiff has the burden of proving that the product was unreasonably dangerous; i. e., the product must be dangerous to an extent beyond that which would be contemplated by the user with ordinary knowledge common to the community as to its characteristics. Restatement (Second) of Torts § 402A, comment (i) (1965). If there is evidence from which a jury could find that an unreasonably dangerous condition existed and that the defect caused the injury, the evidence is sufficient to support a jury verdict against the manufacturer. Nanda v. Ford Motor Co., supra.

In this case, plaintiff produced evidence from his expert witness that the 1957 Thunderbird armrest was defective, in that it was constructed of hard plastic with minimal energy-absorbing capacity; that it was lightly padded; and that its pointed shape was such as to concentrate the force of energy absorbed by the body. In light of this evidence the jury could have reasonably found that the armrest was defective and that it was unreasonably dangerous for its anticipated use.

Ford’s other arguments that a collision with another vehicle was not an anticipated use, that the armrest was not defectively designed in light of the state of the art of armrest design when the 1957 model was produced, and that the armrest meets present day federal standards under the regulations promulgated under 15 U.S.C. § 1392 (1970), are not persuasive to the outcome of this case. It has been held that even misuse of a product may be reasonably foreseeable. Rogers v. Toro Mfg. Co., 522 S.W.2d 632 (Mo.App.1975); Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App. 1970). Further, it has been specifically held that a collision is a foreseeable incident of normal use of a motor vehicle. Huff v. White Motor Gorp., supra; Polk v. Ford Motor Co., supra; Larsen v. General Motors Corp., supra. Ford argues that it built the safest armrest possible under the technology existing in 1957. Such a contention has no bearing on the outcome of a strict liability claim, where the sole subject of inquiry is the defective condition of the product and not the manufacturer’s knowledge, negligence or fault. Even if the argument was relevant, it is not supported by the evidence. Plaintiff’s expert witness stated that the principles of energy absorption, including the use of padded materials and the elimination of sharp objects, have been known for 300 years. These principles could have been applied in the 1957 design, even though it may not have been a federal regulation violation to fail to do so. Finally, the present day federal standards for armrest design were not introduced into evidence and are not before us. Moreover, compliance with the minimum federal standards does not mitigate a manufacturer’s responsibility under the theory of strict liability any more than does compliance with the state of the art unless such standards require the defective condition to exist.

Ford never concedes that the armrest was defective and also contends that it should not be held responsible for the injury caused by an article manufactured as long ago as 1957. A reasonable response to this contention is found in Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), where, in a 1962 collision, the plaintiff was impaled on a 1949 Ford gearshift lever, leaving her a paraplegic. In rejecting the mere passage of time as an immunity factor, the South Carolina Supreme Court stated, 1.c. 186:

We readily concede that the passage of thirteen years between the marketing of a product and its injury-producing failure is a formidable obstacle to fastening liability upon the manufacturer. However, it may reasonably be inferred in this case that the advanced age of the ball was coincidental with its failure rather than the cause of it, and that the knob would have shattered upon a comparable impact had it occurred much earlier in the life of the car. The important inquiry is not how long the knob lasted but what caused its failure. Mere passage of time should not excuse Ford if its negligence was the cause. Since this conclusion finds support in the evidence, the issue was for the jury.

So, here too, do we believe that the time factor is not relevant to Ford’s contention of immunity, for, as mentioned, there was evidence from which the jury could find that the design was unreasonably dangerous.

Ford argues that the trial court erred in submitting plaintiff’s products liability verdict directing instruction as it deviated substantially from M.A.I. 25.04. Modification is proper where the M.A.I. does not squarely fit the plaintiff’s theory of the case. Erny v. Revlon, 459 S.W.2d 261 (Mo.1970). M.A.I. 25.04 was not tailored precisely for use in a second collision case. Hence, some modification was necessary here, and we find no prejudieal error as a result.

Paragraph first of the challenged instruction increases the plaintiff’s burden of proof by requiring the jury to find that Ford could have foreseen both the collision and the likelihood of injury proceeding from a defectively designed armrest. This added burden is consistent with the Eighth Circuit’s interpretation of Missouri law in Polk v. Ford Motor Co., supra, 1.c. 269:

In a second collision case under Missouri law, the element of a foreseeability (reasonable anticipation) of misuse, becomes more significant. The manufacturer is entitled to have a jury consider whether or not the factors which precipitated the accident and injuries were of such nature that the manufacturer should reasonably have anticipated, at least in general terms, such use of the automobile under such circumstances. While a Missouri court has held that a manufacturer may be held in strict liability for the foreseeable consequence of misuse, we find no support for the proposition that any collision is foreseeable or that any misuse will automatically be covered without reference to its foreseeability.

In any event, plaintiff’s addition to his own evidentiary burden was not prejudicial to the defendant. Joly v. Wippler, 449 S.W.2d 565 (Mo.1970); Walkley v. Sears Roebuck and Co., 536 S.W.2d 169 (Mo.App.1976); Griggs v. Riley, 489 S.W.2d 469 (Mo.App. 1972). While this court hesitates to approve any deviation from an M.A.I. instruction, the true test for proper submission is whether the instruction is substantially correct. Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47 (Mo.1969); Jackson v. Cherokee Drug Co., 434 S.W.2d 257 (Mo. App.1968).

A similar analysis requires our dismissal of Ford’s other complaints. The fact that paragraph two focuses upon the defective design of the armrests as manufactured, rather than the defective nature of the automobile as a whole, does not prejudice the defendant. (Compare: Williams v. Ford Motor Company, 411 S.W.2d 443 (Mo. App.1966), where the defective article was described as a “steering gear” rather than a “Thunderbird.”) The use of the phrase “defectively designed” rather than “defective” is also cited as error by defendant, but any difference in meaning is insignificant. “Defective” includes the notion of excessive preventable danger. Self v. General Motors Corp., 42 Cal.App.3d 1, 116 Cal.Rptr. 575 (1974). In Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970), another products liability case, this court refused to rule that as a matter of law, a “defective condition” did not exist where a hydraulic system did not “disintegrate, break down, crack, or fail.” Rather, this court recognized that a dump truck hoist designed to drop the truck bed when only slight pressure was applied to an exposed control rod created a dangerous condition. “ . [T]he ‘dangerous condition’ is the failure of the design to include a safety factor.” Id. at 947.

Ford also argues that plaintiff should have concluded the verdict directing instruction with M.A.I. 19.01, the verdict director for joint tortfeasors. As this specific contention of error was not raised either at the time of trial, or in Ford’s motion for a new trial, it will not be considered on appeal. Rule 78.07; Chambers v. Kansas City, 446 S.W.2d 833 (Mo.1969); Hughes v. Dwyer, 546 S.W.2d 733 (Mo.App.1977); Robinson v. St. John’s Medical Center, 508 S.W.2d 7 (Mo.App.1974).

Defendant Uttendorfer alleges further error in the instructions, particularly the first paragraph of plaintiff’s Instruction No. 2:

Your verdict must be for plaintiff and against defendant Robert J. Uttendorfer if you believe:
First, defendant Robert J. Uttendorfer either: failed to keep a careful lookout, or drove on the wrong side of the road, . (emphasis added)

Uttendorfer submits that the emphasized portion of the instruction constituted a misdirection to the jury, amounted to a misstatement of the law and gave the jury a roving commission to return a verdict in favor of the plaintiff. We find these arguments without merit.

From the evidence presented by the plaintiff, a jury could fairly infer that Ut-tendorfer, ostensibly turning left, did drive on the wrong side of the road. In Moore v. Eden, 405 S.W.2d 910 (Mo.1966), it was held that a similar instruction was proper where the plaintiff’s allegation was that the defendant motorist had made a negligent left turn. There was testimony to the effect that the defendant had driven in the wrong lane as much as forty feet before the collision. In the instant situation, Uttendorfer was alleged to have traveled in the wrong lane at least that far. Consequently, the jury was not granted a “roving commission” to find Uttendorfer guilty if he crossed into plaintiff’s lane. Of course, a driver must necessarily cross into the line of oncoming traffic to make a left turn. Such a maneuver, if properly executed, does not constitute driving on the wrong side of the road. Ellison v. Simmons, 447 S.W.2d 66 (Mo.1969). But before the jury could find for the plaintiff on Instruction No. 2, they had to determine also that defendant was negligent by driving on the wrong side of the road in a manner different from the usual left turn, and that as a direct result of such negligence plaintiff was injured. Such a finding could be reasonably inferred from plaintiff’s evidence. Thus, the instruction was proper.

Finally, Uttendorfer urges that the trial court erred in refusing to permit the jury to view a film of the location of the accident offered to demonstrate whether Uttendorfer could have lost sight of plaintiff’s car prior to the collision. The film, admittedly nubilous, was taken by a photographer traveling in a morthbound vehicle along the access road adjacent to Interstate 55. After a viewing in camera, plaintiff objected to the admissibility of the motion picture and was sustained. The same principles which govern the admission of still photographs apply to the admission of motion pictures. Morris v. E. I. Dupont De Nemours & Co., 346 Mo. 126, 139 S.W.2d 984 (1940).

. Perhaps a greater degree of caution is required in admitting the motion picture because, while the danger of false perspective or of intentional fabrication exists as to both, these dangers are greater in the motion picture. Considerable discretion must be vested in the trial court as to the accuracy of the picture. * * * Considerable discretion must also be left in the trial court as to the relevancy of the picture and as to whether it will tend to aid or confuse the jury. Id. at 987.

Photographic evidence must be practical, instructive, and calculated to assist the jury and the court in understanding the case. Gignoux v. St. Louis Public Service Co., 180 S.W.2d 784 (Mo.App.1944). The ruling of the trial judge on the question of admissibility must be accorded great weight and will not be disturbed on appeal unless shown to be in abuse of discretion. State v. Eilers, 406 S.W.2d 567 (Mo.1966); Fox v. City of Kansas City, 343 S.W.2d 200 (Mo. App.1960). We have viewed the film. As the threshold question to admissibility is whether or not the offered evidence will aid the jury, we cannot say that the trial court abused its discretion by rejecting the motion pictures of admittedly poor quality. Judgment affirmed.

SMITH and KELLY, JJ., concur.

      . Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977), and Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. banc 1976), each contains a thorough treatment of the law regarding application of the second collision doctrine, including a listing of the jurisdictions accepting or rejecting the doctrine’s application. With the Huff decision, 31 jurisdictions had accepted the concept, and only two had spurned it.

      . § 402A as adopted in Keener, provides:
      “(1) One who sells any product in a defective condition reasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . Plaintiffs’ verdict director read:
      “Your verdict must be for plaintiff and against defendant Ford Motor Company if you believe:
      First, that the defendant Ford Motor Company could reasonably have foreseen that the Thunderbird could be involved in a collision and the occupants injured by an armrest that was defectively designed, and
      Second, that the armrests in the Thunderbird, as manufactured, were defectively designed and therefore dangerous when put to a use reasonably anticipated, and
      Third, when plaintiff, David A. Cryts, used the Thunderbird the armrests were in substantially the same condition as when the Thunderbird was manufactured by defendant Ford Motor Company, and
      Fourth, that plaintiff, David A. Cryts, used the Thunderbird in a manner reasonably anticipated and the defectively designed armrest directly caused or contributed to cause damage to plaintiff, David A. Cryts. (M.A.I. 25.04 modified by V.A.M.R. 70.01(e))”


text:
    Russell JOHNSTON, Plaintiff-Appellant, v. SEL-MOR GARMENT COMPANY, Defendant-Respondent.
    No. 38931.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 8, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Mogab & Hughes, Larry W. Glenn, St. Louis, for plaintiff-appellant.
    Ralph C. Kleinschmidt, Evans & Dixon, St. Louis, for defendant-respondent.
   WEIER, Judge.

This is a common law action for personal injury brought by Russell Johnston against his employer, Sel-Mor Garment Co. Plaintiff’s injury to his back was alleged to have occurred during the course of his employment. A jury awarded the plaintiff $50,000 but the trial court set aside the judgment thereon and sustained the defendant’s motion for a judgment notwithstanding the verdict. Plaintiff filed an appeal and we now affirm the trial court’s disposition.

Russell Johnston was hired on December 27, 1973, as a material handler in the shipping department of Sel-Mor Garment Co. His duties included moving boxed rolls of cloth from stacks in the shipping department on the second floor to a conveyor belt. More specifically, after an order is made for a roll of the piece goods, the handlers were to pull the appropriate box off the stack, let it drop to the floor, lift up one end of the box so that it is in a vertical position, place a “two-wheeler” (from the photographic exhibits, this is a “hand truck”) underneath it, and push it over to the conveyor belt. This was the method of work used to move the boxes. As plaintiff stated in his testimony on direct examination: “That’s the way it was shown. That is the way they always did it.”

On September 25, 1974, plaintiff was instructed to deliver a certain box which weighed approximately 250 pounds. Without seeking help, he pulled the box of piece goods off the pile in which it was stacked and it fell to the floor. Squatting down, the plaintiff picked up one edge of the oblong box to lift it up on its end, positioning it to be moved on the “two-wheeler.” After elevating the end of the box about three feet off the ground, plaintiff felt a sharp pain in his back. After complaining to his foreman, the plaintiff was sent to a clinic where he was examined by a doctor. He continued to experience sharp pain in his back, thighs and legs.

Plaintiff’s injury was described by his neurologist as a herniation of the lumbar intervertebral disc. He had a congenital abnormality of four lumbar vertebrae instead of the usual five. This condition was aggravated by his injury and caused pain because of nerve root compression. The plaintiff after the injury would not be able to engage in heavy lifting.

The trial court sustained the defendant’s motion for a judgment notwithstanding the verdict on three grounds: (1) the plaintiff failed to prove actionable negligence by the employer; (2) under the evidence submitted the plaintiff implicitly assumed, as a matter of law, the risk of an injury such as he sustained; and (3) the plaintiff failed to prove any facts which would entitle him to a recovery against the employer. On appeal the plaintiff-appellant contends the trial court erred in entering a judgment for defendant because evidence was produced at trial showing that there was negligence by the employer in either failing to provide adequate help, i. e., more workers to transport the box from the floor to a position where it could be moved, or in failing to provide the mechanical means to safely move the box from the stack to the “two-wheeler.”

On appeal from the trial court’s action sustaining a defendant’s motion to set aside a judgment for plaintiff and to enter judgment for defendant notwithstanding the verdict, the evidence must be viewed in a light favorable to plaintiff and the verdict should not be set aside unless there is no room for reasonable minds to differ on the issues, in the exercise of a fair and impartial judgment. Gregory v. Robinson, 338 S.W.2d 88, 91[1] (Mo.banc 1960). The defendant s evidence is disregarded except as it may aid plaintiff’s case and plaintiff is afforded all reasonable inferences to be drawn from the evidence not in conflict with plaintiff’s case. Russell v. Russell, 540 S.W.2d 626, 631[3] (Mo.App.1976). To make his case, however, plaintiff must remove it from the field of conjecture and doubt and establish it by substantial evidence of probative value. Kaelin v. Nuelle, 537 S.W.2d 226, 233[7] (Mo.App.1976).

In order for an employee to recover in Missouri under common law negligence, more than mere injury must be shown. In innumerable cases, appellate courts of this state have detailed the duty owed by an employer to an employee. The test is relevant and here its delineation by the Supreme Court of Missouri bears repeating.

“[A]n employer is not liable to his employee for injuries sustained in the course of his employment unless the employer was negligent, and that such negligence was the direct and proximate cause of the injury. To establish negligence, as such, it must be shown that the employer has breached some duty which he owed the employee. That duty demands the use of all ordinary care: ‘To see that the place of work is reasonably safe; to see that suitable instrumentalities are provided; and to see that those instrumentalities are safely used.’ ”

Hightower v. Edwards, 445 S.W.2d 273, 275[1] (Mo.banc 1969), quoting in part, Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439, 442[3] (1934).

The plaintiff must present evidence not merely of an injury but of a wrong suffered resulting from an employer’s breach of the duty detailed in Hightower. Examining the facts of the instant case we are unconvinced that Sel-Mor’s failure to provide additional men or machinery to aid plaintiff-appellant in positioning the box of dry goods was a breach of any duty.

It is important to focus attention only upon the specific tasks which the employee was required to undertake. The employee was hired specifically for this job of transporting boxes in the shipping department of Sel-Mor, and had successfully performed the task for nine months without incident. There is no evidence that the employer ever used any other method nor was there any evidence that a different method was used in the industry in which the employer engaged. Plaintiff did not ask for help that was refused. He had engaged in the same work during the course of his employment without any prior known injury. The injury to his back occurred when he was lifting without any unusual circumstances, such as slipping or falling, and without any unusual change in the environment in which he worked.

The employee testified that he was to lift one end of the box so that the length of the roll of dry goods would lay on its edge, standing upright, upon a vertical axis. A mechanical engineer testified that the employee could not have lifted more than one-half of the total box’s weight. Therefore, the employee was required to lift off of the ground 125 pounds, a weight which steadily decreased as it approached a vertical position. Testimony was adduced which noted that at the time the employee felt a pain in his back the end of the box was approximately 32 inches off the floor. At that point, he would be lifting a weight equivalent to 70 pounds.

Plaintiff’s work and movement in lifting the box was not under any special compulsion and was under conditions known to him. He had prior experience in pulling the boxes and loading them on the conveyor. His injury was not due to any unusual happening or emergency circumstance requiring him to exert beyond his strength. “Under such circumstances, the employee is the judge of his own strength, and not being under any necessity to exert himself beyond it, he cannot recover damages for injuries arising merely through lifting or overexertion.” Housden v. E. I. Du Pont de Nemours & Co., 321 S.W.2d 430, 435 (Mo. 1959). See also, McCormick v. W. L. Hutchison Electric Co., 326 Mo. 380, 31 S.W.2d 971, 973 (1930); Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800 (1925); 36 A.L.R.2d anno., Sec. 26(b) 8, 108.

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . The Missouri Workman’s Compensation Act, ch. 287 RSMo. 1969, is not applicable here. The Missouri Supreme Court has set out the parameters of the scope of recovery under this statute. Specifically, the Act has been interpreted to govern only the rights and remedies arising out of an “accident.” Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193, 196[1] (Mo.banc 1968). The statute goes on to define “accident” as “an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” Section 287.020(2) RSMo. 1965. Therefore, in the instant case the plaintiff-appellant is precluded from recovery under the Act, and any action must be pursued in tort.


author: CLEMENS, Presiding Judge.

text:
    Gerald PITEZEL and Jerry Lee Pitezel, a minor, by Gerald Pitezel, parent and next friend, Appellants, v. Roberta C. DANIELSON, a minor, by Betty Danielson, Guardian ad litem, Respondents.
    No. 39369.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 8, 1978.

      Klutho, Cody & Kilo Attorneys, Inc., St. Louis, for appellants.
    Kortenhof & Ely, Frank E. Strzelec, St. Louis, for respondents.
   CLEMENS, Presiding Judge.

Collision case brought by plaintiff-motorcyclist when he collided with the defendant’s preceding automobile. The jury found for defendant and plaintiff has appealed defendant’s judgment.

Plaintiff submitted on defendant’s failure to yield the right-of-way by entering the highway from a private driveway. Defendant submitted plaintiff’s contributory negligence by a three-pronged instruction — driving into the rear of her car, failing to keep a careful lookout and following too closely. Plaintiff contends each submission lacked evidentiary support. This requires a statement of the disparate evidence.

The head-to-tail collision occurred on four-laned Manchester Road in St. Louis County, just short of Manchester’s intersection with Schall Avenue. Both plaintiff’s motorcycle and defendant’s car were then in the Manchester’s inner, westbound lane. Visibility was unobstructed for 500 feet leading to the point of impact.

Plaintiff was the sole witness to his version of defendant’s liability. He testified he was driving 45 miles an hour when he saw defendant’s car, then only 20 to 30 feet away, angling northwest across Manchester’s centerline into his path in the westbound lane; defendant was coming from the direction of the Derby gas station located on the south side of Manchester, only a short distance back from the point of collision; plaintiff braked his motorcycle, but hit the right rear corner of defendant’s car while it was still turning. He was thrown from his motorcycle and was momentarily unconscious. Plaintiff’s father testified, and a photograph showed, the only damage to defendant’s car was at the back side of its right rear fender.

Defendant’s and her passenger’s version of the collision contrasted starkly. Defendant had driven out into Manchester’s inner westbound lane from a restaurant on its southside, some 500 feet back from the point of collision. By then they had sig-nalled a left turn, had come to a momentary stop preparing to turn left into Schall when they “felt the impact from behind” which pushed her car straight forward. Defendant testified that after the collision she found a strand of plaintiff’s blue jeans stuck to the bumper or rear signal light. Employees at the Derby gas station — from which plaintiff inferred defendant had driven across Manchester-testified: Defendant had not been there before the collision; damage to defendant’s car was to the rear quarter panel and tail pipe, and the rear bumper had been replaced during repairs.

We look to defendant’s evidence to assess plaintiff’s contention her three-pronged contributory negligence instruction lacked evidentiary support. The instruction, a modified MAI 32.01, submitted in paragraph First that plaintiff “either permitted his motorcycle to come into collision with the rear of defendant’s automobile, or failed to keep a careful lookout, or was following defendant’s car too closely.”

Rear-end submission. Plaintiff cites Niel v. Mayer, 426 S.W.2d 711 [3-6] (Mo. App. 1968), holding the evidence there did not warrant a rear-end submission. That evidence was only that collision damage was to “the left-side, near the rear” and plaintiff’s self-serving statement that he believed his cab had been struck from the rear. In contrast, the several specific items of defendant’s evidence detailed above sufficed to warrant the jury in finding plaintiff “permitted his motorcycle to come into collision with the rear of defendant’s automobile.” We deny plaintiff’s first contention.

Lookout submission. Plaintiff’s contention there was no evidence he failed to keep a careful lookout is based on his — not defendant’s — version of the facts. We consider defendant’s evidence that plaintiff had an unobstructed view of her car for a driving distance of 500 feet from the time she pulled out onto the highway, and also consider plaintiff’s own testimony that he did not see defendant’s car until it was 20 feet in front of him. Defendant’s lookout submission did not lack evidentiary support.

Following too closely submission. Plaintiff contends there was no evidence he was following defendant’s car too closely. To show this submission was speculative he relies on Ryan v. Manheimer, 435 S.W.2d 366 [4] (Mo. 1968), holding that although contributory negligence may be shown circumstantially, “for the inference to be legitimate, the circumstances must of course point to the desired conclusion [here, following too closely] with reasonable certainty;

Section 304.017, RSMo. 1969, required that plaintiff “shall not follow another vehicle more closely than is reasonably safe and prudent . . . .” From the evidence the jury could reasonably find: Plaintiff was driving 45 miles an hour; within his full view the defendant’s car had come to a stop ahead of him; just before the collision plaintiff braked and laid down 15 feet of skid marks. Although there was no direct evidence of the distance at which plaintiff was following defendant’s car, the stated circumstances could warrant the jury in finding that plaintiff, in the exercise of the highest degree of care, was following defendant too closely for his own safety. The jury could have reasonably concluded that had plaintiff been following defendant’s car at greater distance he could, in the exercise of the highest degree of care, have avoided the collision. And, our conclusion is fortified by plaintiff’s own evidence of the investigating police officer that plaintiff’s following too closely was a contributing factor to the collision. We hold the trial court did not err in submitting the challenged issue.

In sum, we hold the trial court did not err in submitting plaintiff’s contributory negligence by Instruction No. 6.

Plaintiff raises two other points we find are without merit. He contends he was surprised by testimony of unendorsed witness Dennis Saltzman. The witness testified, cumulatively, about damage to defendant’s car and plaintiff did not object. No error was preserved. Keyte v. Parish, 399 S.W.2d 601 [8, 9] (Mo.App. 1966). Plaintiff also contends the verdict was against the weight of the evidence on the ground there was no evidence of his contributory negligence. Our approval of defendant’s contributory negligence instruction refutes that contention.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Both drivers were minors. Plaintiff Jerry Pi-tezel sues by his father, Gerald Pitezel, as next friend, and the father joins as co-plaintiff. Defendant Roberta Danielson is defended by her guardian ad litem, Betty Danielson. We refer to each of the drivers in the singular, as plaintiff and defendant.


author: DOWD, Presiding Judge.

text:
    Eric STEGEMANN, Appellant-Respondent, v. William FAUK et al., Respondents-Appellants.
    Nos. 38522, 38543.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 8, 1978.

      London & Greenberg, Burton M..Green-berg, St. Louis, Paul B. Rava, Richard D. Watters, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, for appellant-respondent.
    Thomas W. Wehrle, County Counselor, Vernon Kelly, Clayton, William O’Herin, St. Louis, for respondents-appellants.
   DOWD, Presiding Judge.

A ease of expungement of marriage records.

Plaintiff Eric Stegemann, and defendant Christl Kubitschek Stegemann (hereinafter referred to as Eric and Christl) both have appealed from the judgment rendered by the Circuit Court of the County of St. Louis.

The suit was initiated in equity by Eric to expunge particular marriage records which were in the custody of the St. Louis Recorder of Deeds. These records contained the representation that Eric and Christl were married on August 11, 1969. Eric has denied his participation in this marriage ceremony. Eric married a woman in October, 1970.

Named as defendants in the lawsuit were William Fauk, the Recorder of Deeds of St. Louis County, and Christl, the alleged supplier of the information which Eric claims to be false.

Christl, a resident of West Germany, responded to the suit by filing a two count counterclaim. Count I alleged that she married Eric on August 11, 1969, that a child was born on November 16, 1969 as a result of their pre-marital union, and that the marriage was irretrievably broken. The prayer sought dissolution, maintenance, child custody, child support, and attorneys fees. Count II of the counterclaim asserted that if the court did not find a marriage to exist, Eric should be directed to pay for past and future support of the issue of the union. In addition, the prayer sought a declaration of paternity, together with an order that Eric provide the requested support, and attorneys fees.

Two juries consisting of 8 members each were empaneled to serve the court in an advisory capacity. The issues were framed by the court in the following terms: was there a marriage, and was there a child born of the union of these two people.

On the issue of the existence of a marriage, Eric offered the testimony of Donald and Carol George, who were witnesses at the wedding on August 11, 1969. Donald George admitted that he vaguely recalled the groom’s appearance, and that recollection did not coincide with Eric’s traits. George further testified that he would not be able to identify the groom of August 11, 1969 in a lineup. Carol George, who was acquainted with Christl before the alleged wedding, agreed with her husband that Eric looked different from the man who married Christl six years before, but acknowledged that her memory was not vivid.

The judge who performed the ceremony testified that his records indicated that Christl had married Eric, but that identification was not required of the parties. Due to lapse of time and the quantity of couples for whom the judge had performed ceremonies, he was unable to recognize either Eric or Christl. Eric testified that he met Christl in November of 1968, and that he became intimate with her in January of 1969. When she later informed him that she was pregnant, he advised her that he would not marry her because he did not love her. Although he suspected that Christl could have been impregnated by another man, he told her that if the child was his he would take care of it.

When congratulated on his marriage by members of the community Eric commenced a search of the records filed with the St. Louis Recorder of Deeds to discover the cause. His search produced a marriage license application which contained Christl’s signature as well as an alleged forgery of his signature. Upon this discovery Eric wrote to the Metternick, Germany, police to protest Christl’s use of his name, claiming no marriage had taken place.

Eric produced a handwriting expert who compared Eric’s signature on checks with the signature on the marriage license application. The expert testified that there were stylistic discrepancies which indicated that Eric’s signature had been imitated.

Christl testified that she and Eric were married for the sole purpose of legitimizing their unborn child. Neither cohabitation nor conjugal relations characterized the marriage. It was the intent of the parties that a divorce would be sought after three months.

On the paternity issue, Christl testified that she had ceased being intimate with one Newman, with whom she had previously resided, before she became sexually involved with Eric. She claimed that Eric alone had access to her within the critical stage in February when she became pregnant.

Blood tests were conducted and revealed that Christl had type B blood, Eric had type AB blood, and Antonia, the child, had type A blood. On the basis of the scientific tests which were conducted, Dr. Levy concluded that Eric could not be excluded from the realm of biologically possible fathers.

The transcript also indicated that Newman, a previous paramour of Christl, had type B blood. In the course of Dr. Levy’s explanation of the tests, he stated that on routine testing, a person having type B blood, uniting with another having type B blood, could not produce a child having type A blood.

The two advisory juries were submitted the following interrogatories: Do you believe that it is more probably true than not true that Eric did not marry Christl on August 11, 1969? Do you believe that it is more probably true than not true that Antonia is the natural born child of Eric Steg-emann? (If six or more were unable to agree in their answer to # 1, then: Do you believe it is more probably true than not true that Antonia is not the natural born child of Erie?)

Six of eight members of one advisory jury answered yes to the first interrogatory, and seven of those eight members answered yes to the second interrogatory. The other jury was evenly split on the first interrogatory, seven of those eight also answered yes to the second interrogatory, and lastly, seven answered no to the third interrogatory.

In a scholarly opinion, the trial judge held that neither Christl nor Eric had sustained their burden of proving the existence or nonexistence of a marriage. After balancing the equities, the court concluded that the marriage was not matrimonium verum, but void. The effect of such a conclusion is that the marriage records should be expunged, Antonia is the legitimate child of Christl and Eric, and that Eric’s later marriage was valid and not bigamous. Custody was awarded to Christl, and Eric was directed to pay a portion of Christl’s “lying-in expenses” at birth of child as well as $130 a month for child support. The court further ordered that Eric pay: $750 for attorney fees incurred by Christl in the prosecution of Count I of her counterclaim and $100 for litigation expenses, $850 for attorneys fees incurred by Christl in the prosecution of Count II of her counterclaim, in addition to $600 for her traveling expenses, and $800 for attorneys fees and $125 for litigation expenses incident to Christl’s defense of Eric’s expungement claim.

Eric’s appeal from this judgment is predicated on the contention that the trial court erred in the following respects: there was substantial evidence that Eric did not participate with Christl in a marriage ceremony; there was no substantial evidence to support a finding that Eric was the father of Christl’s child; it was an abuse of discretion to award attorneys fees, litigation expenses and travel expenses to Christl; and the denial of Eric’s motion for a continuance during the trial was arbitrary, capricious and an abuse of discretion.

Christl’s appeal from this judgment is predicated on the contention that the award of attorneys fees for Christl’s defense of the expungement claim was insufficient, and that failure to award Christl’s daughter attorneys fees in the paternity action was error.

In review of a court tried case, “we are required to affirm the judgment below 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. In re Marriage of Carmack, 550 S.W.2d 815, 817 (Mo.App. 1977), Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Such a review is not, however, a trial de novo in which we assess the evidence.” City of Perryville v. Brewer, 557 S.W.2d 457, 463 (Mo.App. 1977).

Eric contends that there was substantial evidence that the alleged marriage ceremony did not take place. The fact that there is evidence in the record which might have supported a different conclusion, however, does not demonstrate that the decree is contrary to the weight of the evidence. Roark v. Harvey, 544 S.W.2d 287, 291 (Mo. App. 1976).

Section 451.110 RSMo 1939 provides that a marriage license is prima facie evidence of the facts stated therein. The following review will demonstrate that neither party produced evidence sufficient to dispute the contents of the marriage license.

The transcript reveals that neither the judge who officiated at the ceremony nor the parties who witnessed the marriage, could clearly remember the groom’s appearance. Apparently, the handwriting expert’s testimony that Eric’s signature could have been either forged or disguised did not pose a formidable challenge to the validity of the signature. The trial court concluded that the evidence introduced to disprove the occurrence of the marriage was not “clear, cogent, or convincing”. These facts, coupled with the court’s observation that “Christl’s conduct is much more consistent and there is a certain ring of truth in much that she had to say”, have persuaded us that the judgment of the trial court is supported by substantial evidence. On the basis of the foregoing, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses appearing before it, we affirm the court’s finding as to the marriage issue. Rule 73.01(3).

We are also satisfied that the trial court’s finding regarding Eric’s paternity is supported by substantial evidence. The testimony disclosed that Eric had sexual relations with Christl during the months in which she conceived. Furthermore, the blood test results indicated that Eric was within the realm of biologically possible fathers. This latter fact, combined with the finding that Christl’s former paramour could be excluded from consideration due to his blood type, lends further support to the trial court’s judgment.

Eric next contends that it was necessary for Christl to present substantial evidence that no copulation occurred or was possible between her and anyone else during the conception period. However, “it is not ordinarily incumbent on the [prosecu-trix] to introduce affirmative evidence that no one else [is] the father [of her child.]” 10 C.J.S. Bastards § 81, p. 170.

Eric has invited this court to reexamine the burden of proof required in a paternity suit. At present, a prosecutrix, unaided by the presumption of legitimacy afforded by marriage, must prove paternity by a preponderance of the evidence. S.J.B. v. S.F.S., 504 S.W.2d 233, 234 (Mo.App. 1973). Christl’s burden, as defined by the court below, was to “induce belief in the court’s mind above and beyond evidence more worthy of belief than that offered in opposition thereto.” Eric has suggested that a clear and convincing standard, such as that required to rebut the presumption of legitimacy, should be applied in paternity actions. It is not for this court to amplify the burden of proof to the level of a presumption which has been described “as one of the strongest rebuttable presumptions known to the law”. 10 Am.Jur.2d, § 11, p. 852.

Eric’s third claim of error concerns the trial court’s award of attorneys fees, and litigation expenses on the dissolution action to Christl. Christl has cross appealed, contending that the trial court’s award did not sufficiently cover the fees incurred in defending against Eric’s expungement claim and litigating the paternity action.

Section 452.355, RSMo 1969 provides: “The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for attorney’s fees . . . .”

In a dissolution of marriage proceeding, the award of attorneys fees is in the discretion of the trial court and we review only for abuse of discretion. Seelig v. Seelig, 540 S.W.2d 142, 147 (Mo.App. 1976).

Prior to making the partial award, the trial court studied the financial situations of both parties, inter alia. The study revealed that Christl had a modest job and owned a small piece of rental property and that Eric’s earning potential was a present asset of substantial value. Accordingly, the award was supported by the evidence, and was well within the discretion of the trial court.

On the basis of the findings regarding the financial situation of both parties, Christl contends the failure to award her full attorneys fees was error. We affirm this award, for § 452.355, RSMo 1974 “by its terms . . . does not entitle a party to full costs and attorneys fees, but to reasonable amounts considering the relative financial condition of both parties.” (Emphasis added) Brueggemann v. Brueggemann, 551 S.W.2d 853, 859 (Mo.App. En Banc 1977).

Her second contention on appeal is that the court erred in not awarding full attorneys fees to Antonia for the litigation of the paternity claim. As noted in the trial court’s opinion, there is no statutory authority in Missouri for the allowance of attorney fees in paternity suits. A partial allowance was made herein under the auspice of the court’s power to exercise equitable jurisdiction to care and provide for the minor child. Urbaneck v. Urbaneck, 503 S.W.2d 434, 441 (Mo.App. 1973). As this jurisdiction was properly invoked and exercised, the award is affirmed.

As a final matter, Eric contends the court erred in denying his motion for a continuance. The transcript discloses that the motion was made during the trial in the hope of securing the testimony of additional witnesses. The motion was denied because the accompanying affidavit did not comply with Rule 65.04, and because the delay would work a serious inconvenience to Christl who was scheduled to return to Germany.

The granting of a continuance is largely within the discretion of the trial court and every intendment on appeal is in favor of the court’s ruling. Hammack v. White, 464 S.W.2d 520, 523 (Mo.App. 1971).

Considering the record before us, and the fact that the motion lacked the requisite allegations, the overruling of the application for a continuance cannot be considered an abuse of discretion. Matter of Estate of Anderson, 544 S.W.2d 35, 41 (Mo.App. 1976), Searles v. Searles, 495 S.W.2d 759, 766 (Mo. App. 1973).

After carefully reviewing the record, we are convinced that the trial judge had a most difficult case with many complicated issues which involved conflicting equitable interests. The resolution of these issues by the trial judge required Solomon-type wisdom. The issues were resolved on a just and legal basis.

The judgment is affirmed.

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