author: GUNN, Presiding Judge.

text:
    B. G. DeMARANVILLE et al., Plaintiffs-Appellants, v. FEE FEE TRUNK SEWER, INC., Defendant-Respondent.
    No. 39841.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Bild & Patton, Brian A. Bild, St. Louis, for plaintiffs-appellants.
    David L. Welsch, Maryland Heights, for defendant-respondent.
   GUNN, Presiding Judge.

Plaintiffs, the individually named members of the Board of Managers for Sakura Gardens condominiums, sue for themselves and on behalf of similarly situated owners of condominiums serviced by defendant Fee Fee Trunk Sewer, Inc. for damages resulting from the collection of allegedly excessive and discriminatory tariffs. Upon the motion of Fee Fee, the trial court dismissed the petition for failure to state a cause of action. We reverse and remand.

Fee Fee Sewer, Inc. provides private and public sewer service to a large number of property owners in St. Louis County. On May 13, 1974, Fee Fee filed a request with the Missouri Public Service Commission for approval of a revised tariff schedule designed to increase its gross annual revenue. In case No. 18,131, the Commission approved the net increase but determined that Fee Fee’s plan to allocate the cost equally between single-family and multi-family dwellings was unfair and unreasonable. Evidence presented at the hearing demonstrated that multi-family units used less water than single-family units. Consequently, the Commission disapproved Fee Fee’s submitted schedule and authorized a differentiated annual tariff rate of $51.00 and $58.00 respectively for multi-family and single-family units. On December 20, 1974, Fee Fee submitted a new schedule which provided the following classifications for residential sewer service customers:

“(1) Residential Service other than apartments (each dwelling unit) $29.00 Semiannually (2) Apartment Service (each dwelling unit) $25.50 Semi-annually”

This schedule was approved by the Commission and became effective on January 1, 1975.

The Board of Managers of Carroll Wood condominium and the Board of Managers of Sakura Gardens condominium filed a complaint with the Public Service Commission on March 11, 1976, alleging that Fee Fee had wrongfully classified them as a “single family dwelling other than apartments.” The complainants sought an order requiring Fee Fee to reclassify condominiums as mul-ti-family dwellings. The Commission concluded that condominiums should be classified with apartment projects in determining the applicable tariff rate and therefore found that Fee Fee’s rate schedule which classified them in the single-family category was unjust, unreasonable and unduly discriminatory. Fee Fee revised the schedule so that condominiums were charged $25.50 semi-annually; the new schedule became effective on July 1, 1977. Plaintiffs in a multi-count petition now seek recovery of the amount overcharged between January 1, 1975 and June 30, 1977. (Plaintiffs assert in every count that the disputed amount is $4.50 per customer semi-annually, but, obviously, that is in error; the difference between $29.00 and $25.50 is $3.50). Plaintiffs have styled their cause in seven somewhat desultory counts: discriminatory, unjust and unreasonable rate charges in violation of § 393.130, RSMo 1969; conversion; willful, reckless and wanton attempts to collect excessive rates; unjust enrichment; a prayer for restitution; fraudulent misrepresentation; and a nubilous count which appears to embrace all other counts and seeks something in excess of $1,010,000 in actual and punitive damages.

Our duty, on review of the trial court’s dismissal of the petition, is to determine if the facts pleaded and reasonable inferences to be drawn therefrom, when viewed in the light most favorable to plaintiff, demonstrate any ground for relief. Sutton v. Sutton, 567 S.W.2d 147 (Mo.App.1978); Burckhardt v. General American Life Insurance Co., 543 S.W.2d 57 (Mo.App.1975); Laclede Gas Co. v. Hampton Speed way Co., 520 S.W.2d 625 (Mo.App.1975). If the petitioners’ allegations invoke substantive principles of law which may entitle them to relief, the petition should not be dismissed even though the cause is imperfectly stated. Butler v. Circulus, 557 S.W.2d 469 (Mo.App.1977). Although plaintiffs’ theory is ill-defined, we believe that the facts have been pleaded sufficiently to support a cause of action at least as to Count I which seeks recovery of charges paid in excess of the lawful tariff.

When a utility has two approved rates of service and renders service to a consumer charging the higher rate, the consumer may file a complaint before the Public Service Commission to determine the proper classification. State ex rel. Kansas City Power & Light Co. v. Buzard, 350 Mo. 763, 168 S.W.2d 1044 (banc 1943). A circuit court has no jurisdiction to consider the plaintiff’s action for recovery until the Commission makes its decision regarding the rates and classification. Matters within the jurisdiction of the Public Service Commission must first be determined by it in every instance before the courts have jurisdiction to make judgments in the controversy. State ex rel. Hoffman v. Public Serv. Com’n, 530 S.W.2d 434 (Mo.App.1975); Katz Drug v. Kansas City Power and Light Co., 303 S.W.2d 672, 679 (Mo.App.1957). In the present case, plaintiffs filed the proper complaint to the Commission pursuant to the provisions of § 386.390, RSMo Supp., 1977, and the Commission concluded that Fee Fee’s tariff classification of condominium service was unjust, unreasonable and unduly discriminatory. Yet, only the courts can enforce a Public Service Commission decision. The Commission has no jurisdiction to promulgate an order requiring a pecuniary reparation or refund. Wilshire Const. Co. v. Union Elec. Co., 463 S.W.2d 903 (Mo.1971); State v. Buzard, supra; State ex rel. Laundry, Inc. v. Public Service Commission, 327 Mo. 93, 34 S.W.2d 37 (1931). And in order to recover by appropriate action in the circuit court, the plaintiffs must plead and prove facts which demonstrate: (1) the lawfully established rate applicable to their classification of service; and (2) that more than the lawful rate has been collected. May Department Stores Co. v. Union Electric L. & P. Co., 341 Mo. 299, 107 S.W.2d 41 (1937).

Utilities under regulation of the Public Service Commission are obligated to provide their customers with adequate service at only the proper rate and no more. DePaul Hospital v. Southwestern Bell Telephone Co., 539 S.W.2d 542 (Mo.App.1976). The fact that the initial tariff schedule was approved by the Commission should not support a dismissal when the Commission ultimately decided that the rates were discriminatory. Plaintiffs have minimally stated the prerequisites to recover the overcharges of the lawful tariff rate and to that extent Count I of their petition states a cause of action, although there are obvious errors in the calculations as to damages. Other counts as pleaded are not so clear as to give ready answer whether or not they state a basis for recovery but, better defied, it is possible they might. Certainly, Count I states a cause of action but must be amended to correct errors in calculation. We therefore reverse the trial court’s action in dismissing plaintiffs’ petition and remand the cause with instructions to grant leave to plaintiffs to amend their petition, thereby granting them opportunity to more clearly define their theories of action. See Butíer v. Cireulus, Inc., supra.

Reversed and remanded.

WEIER, C. J., and KELLY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Dewey BARKS, Respondent-Contestant, v. Natholene TURNBEAU, County Clerk of Madison County, Missouri, Appellant-Contestee, and Marquand-Zion R-VI School District, Appellant-Intervenor.
    Nos. 40661, 40662.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Stephen N. Limbaugh, Jr., Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondent-contestant.
    Robert J. Blackwell, Farmington, for appellant-contestee and appellant-intervenor.
   GUNN, Presiding Judge.

On April 4, 1978, the annual school election of the Marquand-Zion R-VI School District was conducted in conjunction with a county-wide election for Madison County, Missouri. A proposition to increase the school tax levy by $1.00 for every $100.00 of assessed property value was presented to the voters and passed by a margin of 350 to 166 — a mere 6 votes more than the two-thirds majority required for approval. Included among the ballots counted were 70 absentee votes, 66 of which favored the proposition. Respondent-contestant Dewey Barks contested the election pursuant to § 115.553.2, RSMo Supp.1977 by citing numerous statutory violations in the absentee voting procedure. The Circuit Court found irregularities of sufficient magnitude to cast doubt upon the validity of the initial election and ordered a new polling on August 8, 1978. From that order, appellants Natholene Turnbeau, Clerk of Madison County,. Missouri, and the Marquand-Zion R-VI School District appeal. They cite as error several trial court determinations: that Barks was entitled to contest the election; that the school district was not a necessary and indispensible party; that the contest was not barred by the statute of limitations. Appellants also complain that the trial court failed to properly apply the applicable case law to its interpretation of Chapter 115, RSMo Supp.1977, the Comprehensive Election Act of 1977. Our review of this court-tried case is limited by the precept that the judgment of the trial court will be sustained 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.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We affirm.

Section 115.553.2 provides that “(t)he result of any election on any question may be contested by one or more registered voters from the area in which the election was held.” (emphasis added) Appellants argue that § 115.553.2 is modified by § 115.165.5, which states:

Any registered voter who changes his place of residence within a jurisdiction at or before 5:00 p. m. on the fourth Wednesday prior to an election and does not transfer his registration at or before 5:00 p. m. on the fourth Wednesday prior to the election shall not be entitled to vote in the election.

They contend that Dewey Barks changed his place of residence without transferring his registration and therefore lost his status as a registered voter for the purposes of an election contest. The facts adduced at trial are as follows:

The Marquand-Zion R-VI School District encompasses wards 1 and 2 of the City of Marquand and a third ward, Marquand-Marquand, which consists of the outlying area both north and south of the city limits. Barks testified that he has owned a home in ward 2 for at least 25 years and that he had paid his 1977 real estate tax on the property. The home is fully furnished, has a water well and septic tank, but neither utilities nor telephone are presently connected. Approximately 25 feet from the house is a feed store, also the property of Barks. Electricity is available for use in his home via an extension cord attached to the feed store. Barks claims that the home in the City of Marquand is his permanent residence and the voter registration records held by Natholene Turnbeau reflect the same.

It was established at trial that Barks also owns a farm and mobile home located in the outlying ward, Marquand-Marquand. He and his wife have lived in the mobile home for the greater part of the last two years preceding the election. In fact, Barks estimated that he stayed overnight in the house in the city no more than 2 or 3 times a month. However, Barks stated that during the spring and summer, he and his wife spend an hour or two at the house every few days in order to cultivate their vegetable garden. Although mail is delivered to the farm, Barks asserted that he had no intention of making the mobile home his permanent residence, but he could not say with any degree of certainty when he would spend more time in town.

The first issue confronting us is whether Barks is a legitimate registered voter within the election area and eligible to contest the election. The trial court found that Barks was still a resident of ward 2 for voter registration purposes, and we cannot conclude that such finding was erroneous. In order to reject an old residence and acquire a new one, more than mere bodily presence in the new place is required. Equally essential is “a presently exercised intention to abandon the old and establish the new.” State ex rel. King v. Walsh, 484 S.W.2d 641, 645 n.4 (Mo. bane 1972). Accord: Gaffney v. Gaffney, 528 S.W.2d 738 (Mo.1975); In re Toler's Estate, 325 S.W.2d 755 (Mo.1959); Bridges v. Bridges, 559 S.W.2d 753 (Mo.App.1977); In re Estate of Ritter v. Hoffman, 518 S.W.2d 453 (Mo.App.1975). A determination of true intention is largely a question of fact. It must be gleaned from both the utterances of the person whose residence is at issue and from his acts in light of all the circumstances of the case. Fowler v. Clayton School District, 528 S.W.2d 955 (Mo.App. 1975). “. . . (W)here the facts are conflicting, the presumption is strongly in favor of an original or former domicile as against an acquired one.” State ex rel. Walsh v. King, supra at 645. Even absence from an individual’s residence for relatively long periods of time does not mean an abandonment of that residence where the intent to return exists. State ex rel. King v. Walsh, supra; In re Estate Ritter v. Hoffman, supra; Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997 (1934). Considering the facts of this case, we cannot say that the trial court’s judgment finding in favor of Barks’ residence for purposes of contesting the election was against the weight of the evidence. As we have affirmed the trial court’s determination of Barks’ residency, we need not consider any allegation that § 115.553.2 violates the equal protection clauses of the Missouri and United States Constitutions.

The Marquand-Zion R-VI School District, appellant-intervenor in this case, complains that the lower court erred by not declaring it an indispensible party for the purpose of this election contest. Relying on Supreme Court Rule 52.04, the school district contends that its interest in the outcome of the action is so great that without compulsory joinder, complete relief could not be accorded. The full ramifications of this argument are not apparent until we consider appellants’ third citation of error, however. If the school district was indeed an indispensible party, then Barks could be barred from suit for failure to serve the district with a timely petition to contest an election. §§ 115.577 and 115.579.

The right to contest an election exists only as granted by constitutional or statutory provisions. State ex rel. Conaway v. Consolidated School District No. 4 of Iron County, 417 S.W.2d 657 (Mo.1967). “. . . (S)tatutory procedure in an election contest is a code unto itself, and is governed by the rules of civil procedure only to the extent expressly provided or required by implication.” State ex rel. Camillo v. Hess, 458 S.W.2d 721, 722 (Mo. App.1970). Accord: Gannon v. Cloyd, 514 S.W.2d 649 (Mo.App.1974); State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357 (Mo. App.1974).

The success of appellants’ claim rests, therefore, upon the proper interpretation of the school board’s status as implied in § 115.553.2:

The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. The petitioning voter or voters shall be considered the contestant and the officer or election authority responsible for issuing the statement setting forth the result of the election shall be considered the contestee. In any such contest, the proponents and opponents of the ballot question shall have the right to engage counsel to represent and act for them in all matters involved in and pertaining to the contest.

Clearly, the statute designates the appropriate election authority, in this case Natho-lene Turnbeau, as the only indispensible contestee. This selection is consistent with the typical format of an election contest — a challenge to election procedure. Persons interested in the substance of a given ballot proposition may participate in the contest as intervenors or amicus curiae. Appellant school district's motion to be considered a necessary and indispensible party was properly denied. As a result, it was unnecessary for Barks to serve the district with a petition to contest the election as provided for in § 115.577.

Having determined that Barks was entitled to contest the election, we now review the substance of his complaint. Barks charges and the trial court found the following irregularities in the absentee ballot procedures:

(1) Each absentee voter failed to apply in writing for a ballot, in violation of § 115.-279. Only four of the voters made an oral application to the election authority. Consequently, sixty-six of the absentee voters made no application whatsoever, in derogation of §§ 115.279 and 115.289.

(2) As applications for absentee ballots are received, the election authority is to compile a list of the names and addresses of the applicants pursuant to § 115.289. Mrs. Turnbeau recorded only four of the seventy absentee voters.

(3) In violation of a related provision, § 115.295.1, receipt of only four of the seventy absentee ballots was marked on the list required by § 115.289.

(4) The printed affidavits for the use of absentees did not conform with the requirements of § 115.283. A voter was not obligated, as stated by the statute, to declare under penalty of perjury the reason why he or she would be prevented from going to the polls on election day.

(5) Most of the absentee voters failed to personally fill out the affidavit on the ballot envelope, and 48 of the 70 failed to specify a reason for voting absentee in violation of §§ 115.283.2 and 115.291.

(6) The ballots of two voters, Daisy and Harold Staley, were included in one absentee ballot envelope. Only one affidavit was filed for both voters and was signed by both. Natholene Turnbeau purportedly witnessed the signing, but stated later that she did not actually see Harold Staley ascribe his name. These actions violate § 115.291.

(7) Sixty-six of the seventy absentee voters did not return their ballots by a method authorized in § 115.291.2. The election authority failed to reject the absentee ballots which contained faulty affidavits in violation of § 115.295. Further, all seventy of the ballots should have been received by the election authority and kept together pursuant to § 115.295. Instead, school board officials received many of the ballots.

(8) Four individuals who were neither employed nor deputized were allowed by the election authority to possess and handle the absentee ballots in violation of §§ 115.-051 and 115.637.10.

(9) The election authority failed to convene a verification board to corroborate the final tally and to certify the results of the election in violation of §§ 115.497 and 115.-499. Appellants do not deny any of these allegations but argue instead that the violations were almost solely attributable to oversights of the election authority and had no effect on the actual tally. Relying on the language in Kasten v. Guth, 395 S.W.2d 433 (Mo.1965), appellants assert that absent voters fraud, an election should not be annulled even if certain provisions of the election law have not been strictly enforced. Quoting Bowers v. Smith, 111 Mo. 45, 20 S.W. 101 (1892), the Kasten court stated, l.c. 435:

If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement. Ledbetter v. Hall (1876), 62 Mo. 422. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise it is considered immaterial.

We agree that the decision to overturn an election and thereby disenfranchise the voters should not be taken lightly. However, the opportunity to vote by absentee ballot is clearly a privilege and not a right. Compliance with the statutory requirements is mandatory. Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159 (1916); Elliott v. Hogan, 315 S.W.2d 840 (Mo.App. 1958). The special privilege is limited to five statutory grounds: absence on election day from the jurisdiction where registered; illness or physical disability; religious belief or practice; employment as or by an election authority at a location other than the registered polling place; or incarceration. § 115.279. The legislature has provided safeguards to prevent abuse of the privilege, including a lengthy procedure of application and registration. Most importantly, the General Assembly has mandated that the effect of a faulty affidavit shall be the rejection of the ballot. § 115.295. It is the duty of the election authority to examine the affidavit and determine whether the applicant is lawfully entitled to vote. Lacking indication of one of the five statutory grounds, the official must discount the ballot as illegally and improperly cast.

Appellant argues that the violations were solely procedural and did not demonstrate actual voter fraud or conspiracy to defraud for the purpose of obtaining an advantage for one side over the other. However, the Supreme Court has made clear that Barks’ allegations of specific violations of the absentee voting laws constituted a pleading of legal fraud. Gantt v. Brown, 238 Mo. 560, 142 S.W. 422 (1911). “. . . (W)hether the fraud alleged in an election contest be actual or legal is immaterial and the consequence is the same.” Elliott v. Hogan, supra, at 849. This conclusion is not inconsistent with the decision in Hasten v. Guth, supra, cited by appellant. The Supreme Court’s discussion of fraud in that case referred to imprudent actions and practices of conducting elections which were not made fatal by statute. We must conclude from a review of statutory safeguards in this case, however, that the absentee voting irregularities were “of sufficient magnitude to cast doubt on the validity of the initial election.” § 115.549. The irregularities here were more than petty procedural infirmities but abuses of the election law which cannot be ignored. Well intended citizens — anxious for their school district — conducted an apparent door-to-door campaign for absentee votes fully equipped with absentee ballots and accompanied by notaries public. In many instances, the completed ballots — already defective for the reasons noted — were placed in the safekeeping of one or more of the school board candidates who also appeared on the ballot with the school tax levy proposition. In this case there are just too many instances of actions dissonant with the directives of the “Comprehensive Election Act” to be disregarded or considered immaterial to the fundamental purposes of the Act. Consequently, the trial court properly ordered the new election.

Judgment affirmed.

KELLY, J., concurs in result.

REINHARD, J., concurs.

      . Statutory references are to RSMo Supp.1977.


author: ALDEN A. STOCKARD, Special Judge.

text:
    James V. WHITE, Respondent, v. Osee E. GALLION, Appellant.
    No. 38987.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 19, 1978.
    Motion for Rehearing or Transfer Denied Nov. 15, 1978.

      Armstrong, Teasdale, Kramer & Vaughan, Frank N. Gundlach, Richard B. Scherrer, St. Louis, for appellant.
    Murry A. Marks, Clayton, William R. Kirby, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Defendant has appealed from the judgment entered after a jury verdict in favor of plaintiff in his action for personal injuries sustained as the result of being struck by defendant’s automobile. For the report of a previous appeal in this case see White v. Gallion, 532 S.W.2d 769 (Mo.App.1975).

Plaintiff’s submission to the jury was on humanitarian negligence in failing to slacken speed. In two points in his brief defendant asserts that the evidence was insufficient to support that submission.

In determining whether a submissi-ble case was made, the evidence is considered in the light most favorable to plaintiff, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws, and giving to plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. Houghton v. Atchison, Topeka & Santa Fe Railroad Co., 446 S.W.2d 406 (Mo. banc 1969).

Plaintiff was struck by defendant’s south bound automobile when he was crossing Newstead Avenue from east to west at the intersection with Lexington Street. There were stationary stop signs for traffic on Lexington but none on Newstead for north-south traffic. At the time of the accident, approximately 3:30 o’clock in the afternoon of March 31, 1972, plaintiff was wearing dark clothing, and because it was misting rain the visibility was poor. When plaintiff started to cross Newstead he looked to his right and left for traffic. He saw automobiles going north, but none going to the south, and according to him there were no automobiles parked or stopped on the east side of Newstead. He then started to cross Newstead, which was approximately 36 feet in width. The traffic was “pretty slow” and when he reached the middle of the street he again looked to the north but saw no automobile although he could see about half a block. When he was “a few feet from the [west] curb” he looked again to the north and saw defendant’s automobile “close” to him and he “tried to run it” but was able to take “just a few steps” when he was struck by the “front end” of defendant’s automobile. The movement of the automobile and location of plaintiff after the collision indicates that plaintiff was struck by the right front fender.

Defendant testified that as he drove south on Newstead at about 20 miles an hour he observed north bound traffic on Newstead backed up from Natural Bridge to Lexington, and that there were parked cars on the east side of Newstead. As he approached the intersection with Lexington he took his foot off the accelerator, and when he first saw plaintiff he was traveling 15 to 17 miles an hour and plaintiff was about the center of the north bound automobiles stopped for the traffic light at Natural Bridge. According to defendant, plaintiff darted out taking long steps, almost running, and looking southward, and he did not turn and look toward defendant. Plaintiff cleared the front of his car, and when he was almost to the curb he fell backwards into the right front fender of defendant’s automobile. He brought his automobile to a stop within the length of the automobile, seventeen feet, or as he stated another time, in ten feet.

In this humanitarian case the burden was on plaintiff to establish every essential element of his theory of submission by substantial evidence or by inferences reasonably deducible therefrom. Yarrington v. Lininger, 327 S.W.2d 104, 109 (Mo. 1959). As stated in Epple v. Western Auto Supply Co., 548 S.W.2d 535, 540 (Mo. banc 1977), “the plaintiff must establish the following five elements: 1) the plaintiff was in a position of immediate danger; 2) the defendant was aware or should have been aware of the plaintiff’s position of peril; 3) after receiving such notice, the defendant had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; 4) the defendant failed to exercise the requisite care to avert such impending injury; and 5) by reason thereof, the plaintiff was injured.”

Defendant contends there was “no evidence from which the jury could find that plaintiff was in a position of immediate danger for a sufficient time * * * for the defendant [thereafter] to have acted * * * [and] to have avoided striking and injuring the plaintiff by slackening his speed * * *

A determination of when a plaintiff has entered a position of immediate danger must be made in light of the facts and circumstances of each case. Hood v. Heppler, 503 S.W.2d 452, 457 (Mo.App.1973). When and where a plaintiff enters into a position of immediate danger is a question for the jury, Yarrington v. Lininger, supra, but there must be substantial evidence from which the jury can make that determination, Clifton v. Crider, 486 S.W.2d 274, 278 (Mo. banc 1972), and “the evidence must [show] the relative positions when, and relative movements after, plaintiff came into a position of immediate danger.” Corbett v. Snitzer, 558 S.W.2d 392, 394 (Mo.App.1977).

It is clear that when plaintiff stepped off the curb of Newstead Avenue and started walking he was not then in the path of defendant’s automobile. However he was walking in a direction and at a speed that placed him on a collision course with defendant’s automobile unless plaintiff or defendant changed speed or direction. Plaintiff said he looked to the north but did not see defendant’s automobile. Defendant testified that as plaintiff walked westward across Newstead he was looking to the south, which was away from defendant’s automobile, and that he did not look toward defendant. In either event plaintiff was negligent, but negligence on his part in getting into a position of immediate danger is immaterial. Also, in either event, plaintiff was oblivious to the approach of defendant’s automobile, but defendant was aware of his presence and that he was oblivious to the impending danger. Plaintiff’s obliviousness widened the zone of immediate danger beyond the immediate path of defendant’s automobile. McDonough v. St. Louis Public Service Company, 350 S.W.2d 739 (Mo.1961), and imposed on defendant the duty to act in avoidance when he saw, or by the exercise of the highest degree of care could have seen, plaintiff approaching the path of his automobile oblivious to the danger and intent upon continuing into its path. Gottlieb v. Szajnfeld, 550 S.W.2d 936 (Mo.App.1977); Williams v. Funke, 428 S.W.2d 11 (Mo.App.1968). From the facts and circumstances in this case we conclude that there was substantial evidence from which the jury could determine that plaintiff entered into a position of immediate danger.

We next must determine whether there was sufficient evidence to authorize a finding that once plaintiff was in a position of immediate danger, defendant had the present ability to have averted the impending injury to plaintiff by slackening speed. Plaintiff moved across the front of defendant’s automobile and was struck by the right front fender. Defendant testified that he made it across to safety and then fell back, but plaintiff is entitled to rely on his version of the occurrence, and the facts of his version make this what is called an “almost escaping” case which is defined as a situation where plaintiff needed only a fraction of a second to emerge from a position of immediate danger to a place of safety, and if defendant had taken the slightest action to avoid the collision no injury would have occurred. See Epple v. Western Auto Supply Co., supra at p. 542; Burns v. Maxwell, 418 S.W.2d 138 (Mo. 1967); Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918 (Mo.1959). In establishing an “almost escaping” case in which plaintiff submitted as humanitarian negligence the failure to slacken speed, there must be evidence, direct or circumstantial, that in the space and time available, defendant’s speed could have been slackened sufficiently to enable plaintiff to escape injury, Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 698 (1952), and in an appropriate case plaintiff can meet his burden by presenting the factual situation and let the facts speak for themselves. Woods v. Kurn, 183 S.W.2d 852 (Mo.App.1944).

Defendant testified that he first saw plaintiff when he was about the middle of the northbound automobiles, and that he was then walking rapidly toward the path of his automobile oblivious to its approach. This would mean that at that time plaintiff was approximately 21 feet from the point of impact. While walking at a normal speed of 2.9 to 4.4 feet per second, Miller v. St. Louis Public Service Co., 389 S.W.2d 769 (Mo.1965), it would have taken plaintiff approximately 7.2 to 4.7 seconds to reach the point of impact. Assuming that his walk was rapid, as defendant testified, and was as much as 5 miles an hour, or approximately 7.5 feet per second, it would have taken him 2.8 seconds to reach the point of impact. Defendant was traveling 15 to 18 miles an hour, or approximately 22.5 to 27 feet per second. This would place him from at least 63 feet and not more than 194 feet from the point of impact when defendant first saw plaintiff. It is true that defendant testified that plaintiff was “approximately one-half the length” of his automobile away when he first saw him but as above demonstrated this estimate of distance is not consistent with the physical facts the jury was entitled to accept.

The evidence that defendant was able to stop his automobile after he applied the brakes in either 17 or 10 feet, while hardly consistent with accepted stopping distances for defendant’s speed, does establish that his automobile was equipped with brakes in working order.

Accepting defendant’s estimates of his speed and stopping distance, and defendant’s testimony of plaintiff’s location and conduct when defendant first observed him, and discounting as inconsistent defendant’s estimate of the distance between plaintiff and defendant when defendant first saw plaintiff, which a jury was authorized to do, it is evident that a jury reasonably could have found that when the duty first arose for defendant to take affirmative action he could have, by only a slight slackening of speed, avoided injury to plaintiff. We find no merit to defendant’s contentions that the evidence was not sufficient to submit humanitarian negligence in failing to slacken speed.

Defendant’s remaining contention is that the trial court abused its discretion in denying his motion to strike venireman Sam Ballard for cause for the reason that “the answers he gave as to prior personal injury claims, his experience in that regard and the various accidents he had been involved in showed that he could not be a fair, impartial and competent juror and enter the jury box with an open mind * * * This is not the reason submitted to the trial court or assigned in the motion for new trial.

On voir dire examination venireman Ballard stated that ten or twelve years previously he made a claim against an insurance company for a broken finger. Also, he had sustained head injuries requiring hospitalization in an automobile accident about three years previously but “they never caught up with the fellow.” He also stated that about fifteen years previously his sister was in a streetcar accident. After this information was brought out defendant made no challenge to this prospective juror. Subsequently, venireman Ballard stated that he had been involved in an automobile accident the previous Saturday and had sustained some injuries, but that he felt “okay” although he had some chest pains occasionally. He was asked by defendant if he thought that “because of your situation you’d rather not serve on the jury, or you are not able to serve on the jury.” He replied, “I am able to serve. I am willing to serve on it. I’d rather not serve on it.” Defendant then asked that “the juror be stricken for cause; not able to sit through this.” The court then inquired concerning the nature and extent of the injuries he had sustained, and the treatment received. Mr. Ballard assured the court that he felt that he could serve on the jury. The court stated that it would “take whatever word you say.” No further request or challenge was made by defendant.

Defendant never challenged the juror for cause at the time of the voir dire examination for the reason now asserted, and in the motion for new trial the assignment was that the juror “had been in the hospital for personal injuries twice within the 48 hour period immediately preceding the voir dire examination, and, therefore, could not sit as a fair and impartial juror.” The issue presented by defendant’s brief has not been preserved for appellate review.

We comment gratuitously that if this contention had been preserved for appellate review, it would be without merit. Defendant has not demonstrated any prejudice to him. We do not know whether venireman Ballard served on the jury, and so far as is shown by the record he may have been peremptorily challenged by plaintiff. In the absence of demonstrated prejudice defendant is not entitled to a reversal of the judgment and a new trial. Moss v. Mindlin’s, Incorporated, 301 S.W.2d 761 (Mo.1957). Finally, the trial court is vested with broad discretion in determining the qualifications of veniremen to sit as jurors, and its decision on such matters is not to be disturbed unless clearly erroneous constituting an abuse of that discretion. Eickmann v. St. Louis Public Service Company, 323 S.W.2d 802 (Mo.1959). That clearly did not occur in this case.

The judgment is affirmed.

DOWD, P. J. and SNYDER, J., concur.


author: SMITH, Judge.

text:
    Katherine COFFEY, etc., Respondents, v. Stephen Arthur HENSON, et al., Appellants.
    No. 38727.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Lawrence 0. Willbrand, St. Louis, for (plaintiff) respondent Katherine Coffey.
    Richeson, Roberts, Wegmann, Gasa way, Stewart & Schneider, R. A. Wegmann, Hillsboro, for defendant Stephen Arthur Henson.
    Godfrey, Vandover & Burns, Inc., James E. Godfrey and Denis C. Burns, St. Louis, for (defendant) appellant Michael Raymond Peters.
   SMITH, Judge.

Defendant Peters appeals from a judgment against him for $15,000 in accordance with the verdict of a jury in an automobile accident case. Plaintiff was a passenger in Peters’ car when it was struck by an automobile driven by defendant Henson. At the time of the collision, the Peters’ vehicle was negotiating a 180 degree turn on a county road and was in a stopped position perpendicular to the road and encroaching upon the roadway. Henson, traveling at a speed of at least sixty miles per hour, crested a hill some one hundred and fifty feet from where the Peters’ vehicle was stopped. Henson applied his brakes but was unable to stop and struck the Peters’ vehicle. The jury found in favor of Henson.

On appeal, Peters raises only the action of the trial court in sustaining an objection by Henson to the final argument of Peters. Plaintiff’s theory of liability as to Henson was excessive speed and failure to swerve. The speed limit at the time of the accident was sixty miles per hour if the jury believed it was dusk, and sixty-five miles per hour if they believed it was daylight. There was evidence to support either lighting situation. Henson testified he was driving at sixty miles per hour. The state patrolman who investigated the accident estimated Henson’s speed at sixty five to seventy miles per hour based upon skid marks, point of impact, and distance covered by Henson after impact.

During plaintiff’s opening argument to the jury, she referred twice to the estimate made by the patrolman. During Peters’ final argument the following occurred:

“I submit that Mr. Peters didn’t cause the accident, and rather, the accident was caused by the speed of the other car as testified to by this trooper who said that that car was going 65-70 m.p.h.
MR. WEGMANN: (Henson’s counsel) If the court please, that is not what the trooper said, as I recall it. That was his estimate, to which I objected, and I believe its outside the scope of the evidence.
THE COURT: Sustained.”

Peters’ counsel made no further effort to correct the statement. Peters now contends the court’s action denied him the right to argue that Henson’s conduct was the sole cause of the accident. Defendant Peters was, of course, entitled to argue sole cause. Hoehn v. Hampton, 483 S.W.2d 403 (Mo.App.1972). He was not, however, entitled to misstate the evidence in doing so. The statement made was inaccurate in the particular raised by Henson in his objection. The trooper had not stated that Henson was driving sixty-five to seventy miles per hour; the trooper simply estimated that to be the speed. Plaintiff had properly argued the testimony given by the trooper; Peters did not do so. The court committed no error in sustaining the objection.

Judgment affirmed.

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


author: DOWD, Presiding Judge.

text:
    In re the MARRIAGE OF E. A. W. (Plaintiff and Cross Respondent), Appellant, and C. M. W. (Defendant and Cross Petitioner), Respondent.
    No. 39098.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Braun, Newman & Stewart, Allan F. Stewart, Clayton, for appellant.
    John D. Connaghan, St. Louis, for respondent.
   DOWD, Presiding Judge.

Plaintiff wife appeals from the judgment of the Circuit Court of the County of St. Louis which modified a separate maintenance decree and then granted a dissolution of marriage.

This complex appeal is the latest episode in seven years of litigation between plaintiff and defendant husband. Since the marriage of these parties in 1934 the plaintiff’s principal occupation has been that of housewife and mother, while defendant has been engaged in the practice of law. In November of 1968 defendant left the family home. Over a year later he instituted a divorce proceeding in Kansas City. Plaintiff then filed a Petition for Separate Maintenance in St. Louis, and defendant dropped his Kansas City action and filed a cross claim for divorce in St. Louis. Defendant withdrew his cross claim on June 5, 1970 and filed for a divorce in Mexico on June 8. On June 18, 1970 a restraining order was issued by the Circuit Court enjoining defendant from proceeding with the divorce action in Mexico. The divorce was granted however, and after marrying another woman, defendant moved to Kansas City. A contempt citation was issued against defendant on October 1, 1970.

The Circuit Court entered a default judgment against defendant on January 12, 1971 in the maintenance action and granted plaintiff $600 per month plus attorney fees. Defendant fell behind in these payments. On November 18, 1974 plaintiff filed a motion to require defendant to make these payments to the Circuit Clerk. Defendant’s response involved three counts: (1) a motion to quash plaintiff’s above motion and vacate the separate maintenance decree (2) a motion to modify the judgment and decree of separate maintenance of $600 per month, and (3) a cross bill for dissolution of marriage. The court denied Count I.

Plaintiff sought a Writ of Prohibition to prevent the Circuit Court from hearing the cross bill for dissolution of marriage. This court denied the writ. Plaintiff then filed a motion to dismiss or stay the cross bill. On April 26, 1976 the Circuit Court denied the motion. In addition, it granted defendant’s motion to modify the decree of separate maintenance by reducing the payments to $300 per month. On August 31, 1976 the cross bill for dissolution of marriage was transferred to another division. A Decree of Dissolution of Marriage was granted on March 1, 1977 and provided maintenance to plaintiff of $300 per month.

In the property settlement the court ordered defendant to convey his interest in the family home to plaintiff. In return, plaintiff was ordered to enter satisfaction of judgment for $26,000 for past due maintenance under the decree of separate maintenance. The court also divided other marital property, including a ½ interest in a 160 acre tract of land acquired during the marriage. The parties referred to the title to this land as being jointly owned by plaintiff and her sister. The court awarded this property interest to plaintiff.

Plaintiff appealed the dissolution decree and parts of the property settlement. While the appeal was pending before this court, plaintiff and her sister sold two tracts of their 160 acre property. While the record is not clear as to the exact size of each tract, the briefs of the parties indicate the two tracts were approximately 10 acres each.

Before we can reach the merits of this appeal, we must first address defendant’s point that plaintiff is precluded from appealing the judgment because she sold the above tracts of land granted her in the property settlement. The general rule is that when a litigant voluntarily accepts the benefits of an order or judgment, she cannot take an appeal to reverse the judgment. This is because the right to proceed on a judgment and enjoy its fruits, and to attack it on appeal, are totally inconsistent positions. Knebel v. Knebel, 189 S.W.2d 464, 466[3] (Mo.App.1945). There are however, many exceptions to this rule. One exception is that a party will not be precluded from bringing an appeal where that party is so “entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his right to it . . . .” Fear v. Ebony Paint Mfg. Co., 238 Mo.App. 560, 181 S.W.2d 559, 562[3, 4] (1944); 4 Am. Jur.2d, Appeal and Error, § 253 (1962).

Thus, plaintiff may still appeal the decree, even though she sold property granted her in the property settlement, if she would have had the right to dispose of the property before the settlement was made. Both plaintiff and defendant agree that title to the property was in the name of plaintiff and her sister before the dissolution decree. Plaintiff would therefore have had the right to dispose of the property before the decree was entered provided the conveyance was not in fraud of defendant’s marital rights. § 474.150(1) RSMo 1969. Reinheimer v. Rhedans, 327 S.W.2d 823, 828[3-5] (Mo.1959); Caplinger v. Caplinger, 438 S.W.2d 284, 286 (Mo.1969).

We note that defendant himself has sold property throughout this litigation, including a leasehold interest in real property worth approximately $1000. Whether the actions of these parties constitute a fraud upon the other spouse’s marital rights is not a matter for determination here. The presumption of fraud in § 474.150(2) is not activated until the court attempts to make such a determination. We need only conclude that plaintiff had a right, absent fraud on the other spouse’s rights, to sell the property both before and after the dissolution decree. Since plaintiff had such a right, her actions in selling the property do not preclude her from appealing the dissolution decree.

Turning to the merits of the appeal, plaintiff first contends that the Circuit Court erred in overruling her Motion to Dismiss or Stay the Cross Bill for Dissolution of Marriage. She suggests that a court retains jurisdiction over separate maintenance decrees only for purposes of modification of maintenance and support, and does not retain jurisdiction to hear a separate dissolution action.

Although a court does not completely exhaust its jurisdiction by entering the original decree in a dissolution or maintenance action, it retains only a limited jurisdiction to subsequently modify the decree. See Schumacher v. Schumacher, 223 S.W.2d 841, 844[1-3] (Mo.App.1949). The authority to modify or amend the judgment awarding maintenance must be found in the statute or it does not exist. Hughes v. Wagner, 303 S.W.2d 181, 184[3] (Mo.App.1957); Abright v. Abright, 454 S.W.2d 957, 958[1] (Mo.App.1970). In the case at bar the trial court was authorized by statute to modify the amount of maintenance granted to plaintiff. § 452.370 RSMo 1974. However, the court was not authorized to grant the dissolution of marriage in the same action in which it rendered a decree of separate maintenance.

We cannot infer, as defendant requests, that the legislature intended a separate maintenance decree to be treated as a decree of legal separation since both are only partial remedies. Prough v. Prough, 308 S.W.2d 294, 299[5] (Mo.App.1957). Separate maintenance is not identical to legal separation, and the two actions cannot be used interchangeably. Nichols v. Nichols, 538 S.W.2d 727, 731[5, 6] (Mo.App.1976). Thus, even though the statutes do permit a legal separation to be converted into dissolution upon motion of either party, a separate maintenance decree cannot be so converted. § 452.360 RSMo 1974.

Likewise, we do not agree with defendant’s suggestion that the cross bill, as a responsible pleading, was a full petition for dissolution in itself. While defendant could have cross claimed for dissolution in his answer to the petition for separate maintenance, he cannot now present a new theory of relief following entry of the decree. Nichols v. Nichols, 538 S.W.2d 727, 731[5, 6] (Mo.App.1976). Separate maintenance and dissolution actions are distinct and separate actions since the former preserves the marital status and the latter terminates it. Prough v. Prough, 308 S.W.2d 294, 297[3] (Mo.App.1957). Once a decree of separate maintenance is entered, a party cannot then request a dissolution decree in a modification action.

Another point plaintiff raises is that the trial court erred in modifying the separate maintenance decree from $600 to $300 per month maintenance, and in awarding $300 per month maintenance in its decree of dissolution of marriage. Her notice of appeal, however, states that the appeal is from the Decree of Dissolution of Marriage entered on March 1, 1977 and orders pertaining to the distribution of marital property. This decree disposed of Count III of defendant’s motion. The notice of appeal makes no reference to modification of the maintenance decree as requested in Count II of the defendant’s motion.

Rule 81.08(a) states the notice of appeal must specify the judgment or order appealed from. Since the notice of appeal is from the Count III dissolution proceeding and does not specify it is also from the Count II modification proceeding on April 26, 1976 we are limited on appeal to a review of the dissolution action only. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 224[1] (Mo. App.1972).

Even if we could however, find that the appeal from the Decree of Dissolution would permit an appeal from the modification order, we would still conclude that the modification is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo.banc 1976); Hutcherson v. Hutcherson, 553 S.W.2d 487, 488 (Mo.App.1977). The record indicates that defendant sustained a drop in income between 1970 and 1975 due to his health problems and age. This is sufficient evidence for the court to conclude the changed circumstances were so substantial and continuing as to make the terms unreasonable. § 452.370 RSMo 1974.

Given these conclusions, it is unnecessary to rule on plaintiff’s other points concerning the decree of dissolution and property settlement.

We affirm the judgment reducing the maintenance payments from $600 to $300, and reverse the judgment granting the dissolution of marriage and property settlement.

SNYDER, J., and ALDEN A. STOCKARD, Special Judge, concur.

      . See Ruhland, “Dissolution of Marriage,” Missouri Family Law, § 12.10 (2d Ed. 1976).


text:
    Mary E. SPERRER, Plaintiff-Respondent, v. Edward A. SPERRER, guardian of the Person and Estate of Joseph Sperrer, III, Defendant-Appellant.
    No. 39110.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.
    Anton, Raleigh & Wynne, James E. Wynne, St. Louis, for defendant-appellant.
    Flynn & Parker, Mark M. Wenner, St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

Plaintiff Mary E. Sperrer, wife of decedent Joseph Sperrer, Jr., filed suit seeking declaration of a resulting trust or other equitable relief in her favor for proceeds from the sale of a house which both she and her husband had occupied. The trial court, in granting plaintiff the requested relief, based its decision on two alternative theories: (1) either plaintiff’s name as a tenant by the entirety was mistakenly omitted on the warranty deed to the house by the scrivener, or (2) decedent’s failure to have title transferred to his wife constituted a constructive fraud requiring imposition of a constructive trust of the property or its proceeds in his wife’s favor. Defendant Edward Sperrer, legal guardian of decedent’s son from a previous marriage appeals on behalf of his ward.

In this court tried case we must sustain the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976). We will affirm the judgment if there is any reasonable theory on which to sustain it. McHenry v. Claspill, 545 S.W.2d 690, 693[7] (Mo.App. 1976). In the case sub judice, we conclude the judgment should be affirmed on the basis of scrivener error.

The record indicates that plaintiff and Joseph Sperrer, Jr. were married in September 1953 and lived as husband and wife until Mr. Sperrer died in January, 1967. Upon their marriage, plaintiff changed her individual bank account, which contained proceeds from $15,000 she received as property settlement in a previous divorce, into a joint account with her husband. Both plaintiff and her husband wrote checks against this account. Decedent’s son by a prior marriage lived with the couple until 1962 when he was placed in Bethesda-Lutheran Home.

In the Fall of 1954 the couple decided to purchase a new home. Changes were made to the design of the house in accordance with plaintiff’s wishes. Three witnesses at trial testified that Mr. Sperrer referred to the house in discussions with them as belonging to both him and his wife. Both plaintiff and her husband signed the building contract in October, 1954. The full amount due under this contract was paid in the next six months, and during this period the joint bank account containing plaintiff’s money was substantially reduced.

The warranty deed to the property was executed and recorded in February and March, 1955. The deed conveyed the house and lot solely to decedent. Plaintiff did not see this deed until after her husband’s death. In March 1955 the couple executed a $25,000 note, secured by a Deed of Trust on their home, which served as collateral for a $5,000 demand note. A new demand note was executed in 1956 in the sum of $4000. This note was renewed in 1958 for $3500, and in 1960 in the sum of $3000. Until the death of Mr. Sperrer, the interest payments on the demand note were taken from the joint bank account containing plaintiff’s funds. Two months after her husband’s death, when plaintiff paid the $3000 balance remaining unpaid on the note, plaintiff first realized her name was not on the title to the house. An employee of the bank, however, told her that it was not necessary to do anything concerning the title.

After her husband’s death plaintiff paid the real property taxes and insurance premiums on the home and made repairs and improvements. In April 1974 plaintiff contracted to sell the home, but on the date of closing found herself unable to sell it since the title was in her husband’s name. Plaintiff petitioned the court for appointment of guardian for Joseph Sperrer III, her stepson, and a determination of her husband’s heirs since he died intestate. On January 3, 1975 the Probate Court determined that plaintiff and her stepson were the only heirs at law of Mr. Sperrer, and that each succeeded to an undivided ½ interest in the premises. In March 1975 the house was sold by plaintiff and the proceeds were placed in escrow.

Plaintiff instituted the present action in August, 1975 requesting equitable relief which would give her all the proceeds from the sale. The trial court granted judgment to plaintiff. Defendant appeals, and first points out that the trial court erred in concluding that the scrivener mistakenly omitted plaintiff’s name as a grantee in the deed because there is no substantial evidence in the record showing the existence of a mutual mistake in omitting the name or mutual agreement that the property be jointly held.

Equity will reform an instrument which, due to mutual mistake of the parties, does not accurately set forth the terms of the agreement actually made or which does not incorporate the true prior intentions of the parties. King v. Riley, 498 S.W.2d 564, 566[4] (Mo.1973); Edwards v. Zahner, 395 S.W.2d 185 (Mo.1965). There must be clear and convincing evidence that a mutual mistake has occurred to qualify a court to reform a written instrument. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 268[14] (Mo. banc 1973); Niemeyer v. Stephens, 515 S.W.2d 65, 66[2] (Mo.App.1974). However, it is not necessary to show the parties agreed on any particular language to be used in the instrument; it is sufficient to show they agreed to accomplish a particular goal and the instrument as executed is insufficient to effectuate their intentions. Bollinger v. Sigman, 520 S.W.2d 710, 712[3] (Mo.App.1975).

We believe there is substantial evidence in this case to justify the conclusion that plaintiff’s name was left off the deed because of scrivener error. While there is no direct evidence of an express agreement, the intent of the parties is sufficiently clear to indicate an implied agreement existed between the parties that the property would be jointly owned. Where husband and wife together sign the purchase contract, execute a note secured by a deed of trust on the property, and make payments on the property from a joint checking account, and where the husband makes statements to third parties that the house belongs to both him and his wife while the wife assumes she is listed as a joint owner on the deed of the property, there is substantial evidence on which to find a mutual mistake of fact in favor of the wife. Shaffer v. Dalrymple, 507 S.W.2d 65, 71[6] (Mo. App.1974). Here, in addition to the above facts, the record shows that decedent directed changes in the building plans according to plaintiff’s specifications, and plaintiff invested sizeable sums of money for real estate taxes, insurance, and repairs and improvements during the seven years in which she lived in the house after her husband’s death. Based upon this evidence, we find no error in the trial court’s judgment.

Defendant also challenges the alternative theory used to support the trial court’s judgment regarding the imposition of a constructive trust in favor of plaintiff. It is unnecessary to consider this point since we conclude that the trial court’s judgment can be affirmed on the first theory. In re M. K., 493 S.W.2d 686, 688 (Mo.App.1973).

The judgment is affirmed.

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


text:
    In re MARRIAGE OF Louis C. FEHR, Respondent, Karen Lynn Fehr, Appellant.
    No. 39253.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 26, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Shaw, Howlett & Schwartz, Robert W. Meyers, Clayton, for appellant.
    John D. Flynn, St. Louis, for respondent.
   GUNN, Presiding Judge.

Appellant-respondent, Karen Fehr seeks review of the property division ordered by the Circuit Court subsequent to her divorce from respondent-petitioner, Louis Fehr. Mrs. Fehr claims that the trial court’s allocation of certain marital property to Mr. Fehr was excessive and unjust in light of the statutory criteria provided by § 452.330, RSMo Supp.1975. Finding no error in the trial court’s order, we affirm.

Division of marital property pursuant to a dissolution proceeding is a matter within the confines of trial court discretion. Eden v. Eden, 558 S.W.2d 394 (Mo. App.1977); Klinge v. Klinge, 554 S.W.2d 474 (Mo.App.1977). Our review of the record will be limited to a determination of whether that discretion was abused. He-bron v. Hebron, 566 S.W.2d 829 (Mo.App.1978); In re Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App.1978); Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976). The testimony indicates that both appellant and respondent had been continuously employed throughout their 3½ year marriage. At the time of the dissolution proceeding, Louis Fehr estimated his net salary at $8300-8600 per year. His wife testified that her net take-home pay was $257 every two weeks. During the first 2½ years, both parties contributed their earnings toward living expenses. Mr. Fehr paid approximately $1200 to satisfy Mrs. Fehr’s car loan and also purchased most of the household furniture and furnishings. All of Mrs. Fehr’s salary was placed in a joint checking account, and Mr. Fehr testified that he deposited approximately $1500 in that account over the period of their marriage. The remainder of his salary was held in a personal checking account. During their final year of marriage, Mrs. Fehr stated that she paid for all of the living expenses, except utilities and credit card installments, out of the joint account. Mr. Fehr contributed $100 to $150 a month to cover the latter expenses. At the time of their separation, the couple divided the $2600 deposited in their joint savings account.

Criteria to be considered by the trial court when disposing of marital property includes the contribution of each spouse to the acquisition of the property, the value of property set aside for each, the economic circumstances of each spouse at the time of dissolution and the conduct of the parties during marriage. § 452.330.1, RSMo Supp. 1973. Mrs. Fehr styles the ultimate distribution as “at best” a 50-50 split and “at worst,” a split nearer to 60% in favor of Mr. Fehr. She complains of instances of misconduct on the part of her husband: breaking items in the apartment, putting holes in the walls and doors, throwing clothes, striking appellant and refusing to consent to adoption when it was determined that she could not have children. Mr. Fehr’s testimony was a general denial of such misconduct.

As Mrs. Fehr recognizes, the Dissolution of Marriage Act requires a just division of property, but not an equal one. Seiner v. Seiner, 552 S.W.2d 54 (Mo.App.1977); In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977). Conduct is certainly a relevant factor in the determination of the distribution but is not the sole criteria. In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977). See also In re Marriage of Schulte, 546 S.W.2d 41 (Mo. App.1977). The factor becomes important when the actions of one party to the marriage are such as to throw marital burdens upon the other party beyond those to be expected in the marital relationship. Burtscher v. Burtscher, 563 S.W.2d 526 (Mo.App.1978).

“The thrust of the dissolution law is to treat the marriage as a partnership to which each spouse presumably contributes equally. When the misconduct of one party changes that balance so that the other party must assume more than his or her share of the partnership load it is appropriate that such misconduct should affect the distribution of the property of that partnership. It is logical that if one party to the partnership has, because of the other’s misconduct, contributed more to the partnership, he or she should receive a greater portion of the partnership assets.” Id. at 527. Our consideration of the entire record fails to demonstrate any misconduct so burdensome as to require adjustment of the distribution of the marital property as determined by the trial court. The trial court did not abuse its discretion in ordering the division, conceded by Mrs. Fehr to be considered within the “50-50” range.

Affirmed.

KELLY and REINHARD, JJ., concur.


author: CRIST, Judge.

text:
    Edwin G. HUDSPETH, Plaintiff-Respondent, v. TREE MART, INC., etc., Defendant-Appellant.
    No. 39457.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Charles S. Clayton, Clayton & Karfeld, St. Louis, for defendant-appellant.
    Klamen, Summers & Compton, Clayton, for plaintiff-respondent.
   CRIST, Judge.

This is an appeal by defendant from a summary judgment entered on June 14, 1977, in favor of plaintiff in the total amount of $8,213.04 for unpaid interest and principal due on a promissory note. We affirm.

The petition alleged the corporate existence of the defendant, the execution by the defendant of the promissory note for valuable consideration, the terms of the note, the plaintiff’s status as holder of the note, and the amount due under the note.

Thereafter, defendant filed its answer admitting its corporate existence and denied the remaining allegations by stating “that it has insufficient knowledge to admit or deny and therefore denies same and requests that the Plaintiff be put upon strict proof thereof.”

Thereafter, plaintiff filed a motion for summary judgment together with an affidavit in support of the motion alleging that the defendant made and delivered the note and the amount of principal and interest due thereon.

An affidavit in opposition to plaintiff’s motion for summary judgment was then filed by M. D. Cohen, defendant’s president, essentially stating that James M. Lederer, the signer of the note, was the president of the defendant at the time of the execution of the note, but that Mr. Lederer died and had been dead for some time prior the filing of this lawsuit; that no person then connected with the defendant corporation had any knowledge of the note; and that there was no record nor reference to the note in any of defendant’s books and records, and that by reason thereof affiant was unable to admit or deny the execution of said note nor the balance due thereon.

Defendant concedes that summary judgment in this case would be proper under the case of Universal Printing Co. v. Sayre & Fisher Co., 501 S.W.2d 180 (Mo.App.1973), but for the death of the president of the defendant company subsequent to the execution of the note.

Defendant claims that Rule 55.23 which provides that “[wjhen any claim or defense is founded upon a written instrument and the same shall be set up at length in the pleading or a copy attached thereto as an exhibit, the execution of such instrument shall be deemed confessed unless the party charged to have executed the same shall specifically deny the execution thereof” is not controlling when the signer of the note is deceased by reason of § 400.3-307(l)(b), RSMo.1969. The defendant cites no cases in support of its contention.

We find no merit in defendant’s contention, for the reason that the defendant is a corporation and did not die. Additionally, § 400.3 — 307(l)(b) is no authority for the defendant for the reason that paragraph (1) thereof, provides: “Unless specifically denied in the pleadings each signature on an instrument is admitted. When the effectiveness of a signature is put in issue (a) the burden of establishing it is on the party claiming under the signature; but (b) the signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required.”

For the reason that defendant did not specifically deny in its pleadings the signature on the note, subsection (b) thereof would not have come into play even if the corporation were dead for the purposes of this section.

We therefore hold that the action of the trial court in granting summary judgment was proper.

The judgment is affirmed.

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


author: CLEMENS, Presiding Judge.

text:
    Margaret Mary PAYNE, Petitioner, v. Warren Russell PAYNE, Jr., Appellant.
    No. 39511.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.
    Grove G. Sweet, St. Louis, for appellant.
    Albert M. Schlueter, Clayton, for petitioner.
   CLEMENS, Presiding Judge.

The trial court dissolved the parties’ ten-year marriage and the husband has appealed from the portion of the decree awarding his wife monthly maintenance of $120.

By his first point the husband contends the trial court erred in allowing maintenance because she was “receiving more net spendable income from her employment than would be left to [him] from his income . .” Assuming — but without deciding this claimed disparity is a viable ground of error — we have scrutinized the parties’ complicated past and existing financial -affairs as shown by the transcript and their briefs. Pared of minutia, the comparison is this: The wife’s monthly net income is roughly equivalent to the husband’s after he pays monthly maintenance and child support. An itemization of the amounts would unduly burden our opinion and would be void of precedential value. We hold that in view of the husband’s greater income the trial court did not err in the maintenance allowance.

By his second point the husband claims error in the trial court’s “ignoring the provisions of a separation agreement.” This refers to a tentative, partial, oral agreement the parties reached before retaining counsel. The alleged agreement was pleaded by the husband’s answer and denied by the wife’s reply. The husband offered no evidence of the alleged agreement. On cross examination the wife acknowledged that before she retained counsel the husband had proposed a financial settlement and she had made counter proposals; that by agreement the husband had released to her the major share of a joint bank account.

In support of this point the husband cites only the case of LaFountain v. LaFountain, 523 S.W.2d 847 (Mo.App.1975), upholding a written contract that was before the trial court when it rendered its decree. The case is obviously distinguishable.

The husband’s citation of § 452.325, RSMo 1974, is of no help to him. That statute refers to written separation agreements submitted to the trial court. Here, the trial court did not err because the settlement was neither in writing, agreed to, nor presented to the court.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.