author: DIXON, Judge.

text:
    Ray SMITH, Plaintiff-Respondent-Appellant, v. Larry P. COURTER, Arthur B. Smith, and John W. Walker, d/b/a Lockwood Radiological Group, Defendants-Appellants-Respondents.
    Nos. KCD 29107, KCD 29115.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied Jan. 29, 1979.

      See also, Mo., 531 S.W.2d 743.

      Dean F. Arnold, Donald E. Raymond, Kansas City, for appellants Arthur B. Smith and John W. Walker.
    Lantz Welch, Welch & Austin, Kansas City, for respondent Ray Smith.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

This is the second appeal arising from a claim for damages for malpractice by a medical partnership. Upon the first appeal, a judgment for $105,000 actual damages was reversed because plaintiff’s argument to the jury was held to inject the issue of punitive damages. Smith v. Courter, 531 S.W.2d 743 (Mo. banc 1976).

In the instant appeal, the cause was submitted to the jury for findings on actual and punitive damages. The jury awarded actual damages of $50,000 and punitive damages of $150,000. The trial court ordered a remittitur of $50,000 from the award of punitive damages which the plaintiff accepted under protest. Plaintiff filed a notice of appeal (KCD29115), but has not briefed the appeal, and it is abandoned.

The defendants’ appeal, in eight separate points, raises issues of submissibility, instructional error, the submission of punitive damages, as well as questioning the trial court’s amendment of the verdict and judgment to name the partnership properly.

The posture of the present case, from an evidentiary standpoint, differs from the pri- or trial. Because submissibility is argued, a statement of facts must be made in this case rather than referring to the facts as developed in the original trial. This is particularly true since in the instant case the plaintiff dismissed as to defendant Courier, and the trial judge, at the instance of the remaining defendants, withdrew from the consideration of the jury the deposition evidence of Dr. Courier.

In accordance with the well-settled rule that on the issue of submissibility, this court considers the evidence in the light most favorable to the plaintiff, together with all reasonable inferences, and disregards evidence and inferences adverse to the plaintiff (Steele v. Woods, 327 S.W.2d 187 (Mo.1959)), the following factual statement is supported by the record.

In 1967, the plaintiff consulted his family physician complaining of soreness in the rib area. The doctor noticed tenderness at about the level of the 10th rib and decided X-rays were necessary. The plaintiff was referred to the Lockwood Radiological Group which was a general partnership consisting of the defendants, Dr. Smith and Dr. Walker. Dr. Courter, then a resident, was an employee of the partnership, and his agency for the partnership is not an issue in this case. Pursuant to that reference, the plaintiff was X-rayed; and Dr. Courter dictated a report of his findings. The report stated that there was a lytic lesion in the anterior end of the 11th rib and indicated that the lesion was probably a metastatic disease suggestive of a malignant tumor which had spread from its original site to a new location. The report recommended a biopsy. Dr. Smith signed this report dictated by Dr. Courter, but there is no evidence that he himself reviewed the X-rays. 'Not all X-rays were reviewed when they were interpreted by Dr. Courter.

Upon receipt of the report, the family physician, upon the basis of the plaintiffs complaints and the possibility of the cancerous lesion, decided that the rib lesion should be removed for biopsy and referred the plaintiff to a thoracic surgeon. The thoracic surgeon, one Dr. Benoit, operated and removed a portion of the 11th rib which was submitted to the pathologist. The pathologist found no pathological implication in the biopsy submitted. Further X-rays disclosed that the lesion was still present, and it is admitted that the lesion was, in fact, in the 10th rib and not in the 11th, a portion of which had been removed. The family physician conferred with the plaintiff and indicated that because the doctors were concerned about the nature of the lesion which was still present that further surgery was indicated. The same surgeon removed a portion of the 10th rib; and, upon pathological examination, it was determined that the plaintiff did not have any rib cancer. The abnormality was diagnosed as a benign non-malignant tumor which ordinarily would not prove to be either troublesome or life endangering.

The evidence further disclosed that in 1965 Lockwood Radiological had X-rayed the plaintiff in connection with abdominal complaints, and those X-rays indicated the presence of the rib lesion ultimately removed. The 1965 X-rays clearly revealed the existence of the abnormality of the rib 32 months prior to the two rib operations. The procedures of Lockwood Radiological were such that all X-rays on a specific patient would be kept in the same file and have the same identification number as any prior or subsequent X-rays.

At trial, a comparison of the 1965 X-rays and the 1967 X-rays indicated that the lesion was relatively unchanged in size and shape. Dr. Smith, one of the partners in Lockwood Radiological, testified on cross-examination that if Dr. Courter had taken a few seconds to examine the 1965 X-rays, he would have seen little or no change in the lesion, that this would have almost ruled out metastatic cancer, and that the longer such a lesion showed no growth without change in other symptoms, the more inclined a doctor would be to avoid surgery. The surgeon, Dr. Benoit, testified that had he known before surgery that the abnormality had not grown in 32 months, he would not have operated.

There was a great deal of evidence concerning the condition of the plaintiff before and after the surgery and evidence of permanent disability. The actual damages of $50,000 are not questioned on this appeal, so a detailed recital of the physical condition of the plaintiff is unnecessary.

The first claim of error is that the record contains no evidence to support a finding that the defendants failed to exercise the proper degree of skill and learning ordinarily used under the same or similar circumstances by members of their profession. The thrust of this argument is based upon Haase v. Garfinkel, 418 S.W.2d 108 (Mo.1967), that in the great majority of malpractice cases, a submissible case can only be made by expert medical testimony. Haase affirmed defendant’s motion for a directed verdict on the ground there was no evidence of negligence on that issue. There was no medical testimony in Haase in behalf of the plaintiff’s case. That is not true in this case. The record here contains the admissions of Dr. Smith, one of the defendants, that the failure of Dr. Courter to examine the 1965 X-ray was not good medical practice and that the failure of Dr. Courter to correctly identify the 10th rib, rather than the 11th, was not good medical practice. In view of these admissions, the plaintiff was entitled to go to the jury on the submitted issues of whether the failure of the employee of the defendant partnership to correctly identify the rib or to check the earlier X-rays was negligence.

Defendants’ second claim of error is that the defendants were entitled to a directed verdict because there was no evidence of damage, either by reason of the failure to properly identify the rib prior to the first surgery, or from the failure of the defendants to check the prior X-rays. The defendants’ argument under this point is based on the view the defendants take of the evidence presented to the jury and ignores entirely the evidence favorable to the plaintiff. The evidence would support a finding by the jury that if the defendants had not misidentified the ribs in question, only one operation would have been necessary and, further, that if the prior X-rays had been examined, an operation might have been unnecessary. It is difficult to conceive of more direct evidence of causation and damage than appears in this case. The argument is without merit. This is not a case where there was no evidence of the causation of the injury. It is a question of which evidence the jury chose to believe. The defendants’ evidence and some of the other evidence in the case did indicate, as the defendants argue, that there might have been a decision made to operate even with the knowledge of the prior X-rays and that Dr. Benoit might have made a different decision with respect to the removal of the 10th rib while the first operation was in progress; but that evidence does not stand alone, and the jury was entitled to draw the inferences from the evidence in support of the plaintiff’s verdict.

In Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600 (1937), the evidence presented showed the injury could have resulted from causes other than defendants’ acts. In Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958), there was no medical evidence whatever that the injection was inadequate under the circumstances. Regarding plaintiff’s claim that defendant was negligent in failing to remove a broken needle fragment lodged in plaintiff’s back for 27 days, the Williams court stated such negligence must be established by expert testimony, and the court found none. The absence of expert testimony was also dispositive of plaintiff’s claim of negligence in defendant’s failure to hospitalize plaintiff. In Bertram v. Wunning, 385 S.W.2d 803 (Mo.App.1965), defendant admitted liability for the accident. The sole issue was the nature and extent of plaintiff’s resulting injuries. The question was whether plaintiff presented sufficient evidence to establish a causal connection between the accident and a hernia, which was first discovered some three months after the accident. While the plaintiff’s doctor testified that the hernia could have resulted from the accident, other possible causes were not negated. Such expert testimony, standing alone and without other facts, is not substantial evidence from which a jury composed of laymen would be justified in finding cause and effect. In Odum v. Cejas, 510 S.W.2d 218 (Mo.App.1974), plaintiff relied solely upon depositional testimony of a single doctor whose answers were “uncertain opinions” based upon a hypothetical factual situation which was substantially and materially incomplete and inadequate.

Defendants rely heavily on Kinealy v. Southwestern Bell Telephone Company, 368 S.W.2d 400 (Mo.1963). But Kinealy is merely a combination of Pedigo and Bertram, supra. In Kinealy, the court held plaintiffs failed to prove by substantial evidence that the ditchings caused the landfalls. The basis for its ruling was that other possible causes for which the company would not be liable were not excluded as causative factors. Further, plaintiffs’ expert witness testified in generalities and refused to give his opinion that the ditch-ings caused, or probably caused, the landfalls. A finding that plaintiffs’ losses were caused by the ditching could not have been made without surmise, speculation, and conjecture.

Defendants claim that Welch v. Frisbie Memorial Hospital, 90 N.H. 337, 9 A.2d 761 (1939), is identical and controlling. Defendants here argue that the entire responsibility for the decision to operate should be borne by Dr. Benoit. Welch is not convincing on this point. In Welch, plaintiff alleged that the failure of defendant’s servant, a laboratory technician employed by defendant, to make an X-ray study of plaintiff’s right leg, including the ankle joint, resulted in personal injuries to plaintiff. The plate taken by the technician included the knee and upper three-fifths of the leg, but did not show the ankle joint. An oral report was made to Dr. Grigg that the X-ray was negative, and Dr. Grigg treated plaintiff for a sprained ankle. Three months later, a subsequent X-ray examination disclosed that plaintiff had a fracture of both bones of the ankle. Plaintiff’s theory of the case rested upon the contention that Dr. Grigg’s improper treatment was induced by his justifiable belief that an X-ray of plaintiff’s ankle had been taken. If it was established that Dr. Grigg examined the X-ray and thus learned that the ankle was not included before he treated plaintiff, the foundation of plaintiff’s case would be destroyed. Under such circumstances, where there was evidence tending to establish that Dr. Grigg knowingly undertook to diagnose and treat the ankle injury without an X-ray of the joint, it was his responsibility, not that of the hospital. The Welch court concluded that the failure of the trial court to instruct the jury on this matter was error. Unlike the evidence in the Welch case, which could support a jury finding that Dr. Grigg knew the X-ray did not show the ankle before he treated it, there is no evidence in the present case that Dr. Benoit knew of the existence of the ’65 X-ray before he performed either of the operations on Smith. Nor did Dr. Benoit know before the operation that the rib containing the lesion was in fact in the 10th rib and not in the 11th rib as reported by Lockwood Radiological.

Defendants also complain of error in the giving of plaintiff’s instruction No. 5, a modification of MAI 4.01, by the addition of the addendum required by MAI 7.01, contending that the modification created an improper comment on the evidence and permitted the jury to assume the negligence of the defendants. The specific complaints of modification are that the plaintiff improperly modified the language, “award the plaintiff,” by inserting the word “determine” and that the substitution of “defendant Lockwood Radiological negligent acts” as a substitution for the “occurrences mentioned in evidence” were both improper.

The argument entirely ignores the factual and procedural posture of this case at the time it was submitted to the jury. Dr. Benoit, the surgeon, was originally a defendant in the case upon allegations that he was negligent in the performance of the surgery upon the plaintiff. A settlement was reached with Dr. Benoit during the first trial, and he was not in the case during the second trial. Thus, MAI 7.01 mandated the addendum referring to the necessity for the jury to reduce the damages by the amount paid on behalf of Dr. Benoit.

Since MAI 7.01 mandated the addition of the addendum, the Notes on Use of MAI 7.01 are controlling on the first modification, the insertion of the word “determine.” The language of the Notes on Use, MAI 7.01, is: “Delete from the appropriate measure of the damage instruction the phrase ‘award the plaintiff’ and substitute therefor the word ‘determine.’ ”

The modification by insertion of “determine” was specifically and directly authorized in the posture of this case.

The word, “occurrence,” has been held to refer to the defendant’s wrongful act. Nel son v. R. H. Macy & Co., 434 S.W.2d 767 (Mo.App.1968), but it has likewise been held that where the plaintiff’s theories of recovery were submitted disjunctively in a malpractice action, it was error to use the word “occurrence,” without modification since the jury could have found the plaintiff entitled to recovery on only one of the two grounds submitted and yet have awarded damages for all injuries received when the instruction used the word “occurrence" without modification. Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971). The Vest case involved an injury and subsequent treatment by doctors with a variety of allegations of malpractice, and it was submitted on alternative theories of negligent treatment or abandonment of the patient. The court pointed out that the plaintiff in that case might have been entitled to recover for all the injuries sustained, including those suffered in the fall or only a portion of them, depending upon which theory of liability the jury accepted, and that, therefore, an instruction which did not limit them to the particular acts of negligence they found would be erroneous.

In the instant case, the facts are peculiar, but they are analogous to the facts in Vest. The plaintiff here suffered two operations. The submission was on alternative disjunctive theories of liability. On the submission with respect to the failure to examine the early X-rays, it was the plaintiff’s theory, and there was evidence to support it, that if the defendants’ agent had examined the early X-rays, no operations would have occurred. On the alternative submission, the failure to properly identify the rib to be removed, a finding by the jury on that ground would have necessarily required the jury to consider only the damages flowing from the second operation. Thus, the measure of damages in this case would depend upon the jury’s findings with respect to the negligence of the defendants, and the use of the simple word, occurrence, in the instruction would have misled the jury and been confusing since they might not have been certain of whether it referred to the first operation or the second operation or both. In the circumstances of this case, some modification of MAI 4.01 was required. The defendants’ reliance upon Murphy v. Land, 420 S.W.2d 505 (Mo.1967) is misplaced. Defendants cite Murphy v. Land for the proposition that any deviation from the MAI will be presumed prejudicially erroneous, but the later case, Brown v. St. Louis Public Service Company, 421 S.W.2d 255 (Mo. banc 1967), makes it clear that the word deviation refers to a change in MAI not based on a necessary modification under the facts in the particular ease. Every modification of MAI required by the facts, as in this case, is not presumptively prejudicial because it does not literally follow MAI. Where a modification is required under the Notes on Use or the existing case law, the question becomes one of the propriety of the modification. The issue then becomes one of whether the particular modification made was prejudicial to any right of the defendants. In that connection, the instructions must be read as a whole. Jefferson v. Biggar, 416 S.W.2d 933 (Mo.1967). The standard assumption of facts instruction was given, and the verdict-directing instruction referred to the negligence of the defendant partnership. The argument of plaintiff is contained in the transcript; and, in that argument, the plaintiff advised the jury of the alternative theories upon which the plaintiff was proceeding and pointed out the difference between the theory predicated upon the misinformation as to the correct rib and the theory relating to the earlier X-rays. Looking to the entire record and all the instructions, the trial court’s comment in its memorandum that no prejudice occurred to the defendants because the jury could only have understood the modification as referring to the negligent acts described in the verdict director seems particularly appropriate. There is no prejudice shown to the rights of the defendants in the instant case. It is to be noted that the defendants offered no evidence of a difference in the damage to the plaintiff arising from the first or the second operation, the defendants’ theory with respect to the damages being that the plaintiff suffered no permanent damage, a fact which the jury obviously found against them. The modification under the peculiar facts of this case and the evidence presented is not prejudicial. However, this holding is not to be considered as approbation of the particular language used in the instant case, and the finding of no prejudice in this case rests upon the peculiar fact situation existent.

In a separate point, the defendants complain of instruction No. 5, the damage instruction, contending that it conflicts with instruction No. 3, the verdict director, is confusing and misleading, and authorizes the award of damages for which no recovery could be had.

Neither the claim that the instruction authorized the award of damages improperly, nor the claim that the instruction was confusing and misleading, was raised in the motion for a new trial. Rule 78.07 precludes review of allegations of error not contained in the motion for a new trial. The question of conflict with the verdict director was preserved. The trial court in its memorandum filed with the order overruling the motion for a new trial agreed that the form of the damage instruction was improper. Obviously, it would have been preferable to use a phrase referring to the verdict director. A prerequisite to setting aside the judgment for the giving of an erroneous instruction is that it constitutes prejudicial error “materially affecting the merits of the action.” Rule 84.13(b); Collier v. Roth, 515 S.W.2d 829 (Mo.App.1974). The trial court stated that it did not believe the error was prejudicial. The trial judge cited two reasons for his finding that no prejudice occurred. First, the trial court pointed out that the language in the instruction “Lockwood Radiological’s negligent acts” could have only been understood by the jury as a means of identification of the elements set out in the verdict-director instruction where the defendants were so described. The trial court also characterized the negligence as being admitted by the defendants and “proven” by plaintiff.

The question of prejudice resulting from error in instructions requires a consideration of the entire record. When this record is considered as a whole, it must be judicially determined that the characterization of Lockwood Radiological’s negligent acts was not prejudicial. The acts submitted, the failure of Dr. Courier to properly locate the rib and view the early X-rays were admitted and further were admitted to be mistakes and not good medical practice. The thrust of the attempted defense to the misidentification of the rib was that the identification of the rib was the primary responsibility of Dr. Benoit. Thus, the fact of misidentification was not disputed. The defense to the failure to view the early X-rays was that it would still have been necessary to operate since its benign nature could not have been determined from the X-rays, again not directly a challenge to the fact that the early X-rays were not viewed.

In this posture of the case, the use of the questioned modification is not prejudicial on the issue of the conflict with the verdict director, but, again, it must be said that this ruling depends upon the record here and not the language utilized.

Defendants vigorously urge that the court erred in submitting the issue of punitive damages to the jury on the grounds that there was no evidence in the case sufficient to support such a submission. As a predicate to the discussion of this point, some comment on the existing state of the law with respect to the submission of punitive damages is necessary. First, it must be noted that the plaintiff in this case submitted the issue of punitive damages by the use of MAI 10.02. The defendants have cited a great many cases in which the phrases, “reckless,” “wanton,” “wilful,” “malicious,” and “utter disregard,” have been used interchangeably and without much analysis. Defendants assert that, “It is well established in Missouri that punitive damages may not be awarded where the defendant’s conduct amounts only to a failure to exercise the care due under the circumstances. Evidence of mere negligence will not justify an award of punitive damages.” The defendants’ position is overstated. The last controlling decision of the Supreme Court of Missouri en banc with respect to the submission of punitive damages concurrently with a negligence submission is Sharp v. Robberson, 495 S.W.2d 394 (Mo. banc 1973). In Robberson, plaintiff submitted a negligence theory against the defendants and also submitted MAI 10.02. The trial court ordered remittitur of the punitive damages assessed by the jury, believing it had erred in submitting the issue to the jury. The plaintiff refused remitti-tur and appealed to the Springfield Court of Appeals. Both the Springfield court and the trial court relied upon Ervin v. Coleman, 454 S.W.2d 289 (Mo.App.1970), while the plaintiff relied upon Reel v. Consolidated Inv. Co., Mo., 236 S.W. 43 (1921). Sufficiency of the evidence and the form of the instruction were not involved in Robberson, but the court recognized the issue as being one of whether or not, assuming there was sufficient evidence, the plaintiff could submit under a negligence theory and also under a theory permitting recovery of punitive damages upon the test of MAI 10.02 that such conduct “showed complete indifference to or conscious disregard for the safety of others.” The Supreme Court in Robberson extensively reviewed both the Ervin and the Reel cases. To the extent that Ervin denied as a matter of law a recovery for actual damages predicated on ordinary negligence and punitive damages predicated upon the defendant’s complete indifference to or conscious disregard for the safety of others, it was overruled by Robberson, and Robberson heavily relies upon Reel and the later case of Eoff v. Senter, 317 S.W.2d 666 (Mo.App.1958). Thus, the submission in this case is clearly authorized insofar as the instructions correctly state the- law concerning the submission of both punitive and actual damages predicated upon a negligent act. The Supreme Court, in Robberson, indicated that the evidentiary support for the instruction must be sufficient and to that extent, the discussion above does not rule the question presented by the defendants in this case but does focus upon the real issue to be decided. That issue is whether there was evidence sufficient to support the submission under the rule of law announced in Robberson, and not upon the assertion by the defendants that a lack of due care cannot also afford a basis for a finding of punitive damages.

In determining the issue of sufficiency of the evidence to support the submission of punitive damages, the evidence most favorable to the plaintiff’s submission and all the inferences favorable to that submission are to be considered. The test for this court to apply in determining whether there is a sufficient quantum of evidence to justify the submission of punitive damages is whether reasonable men could have found that the acts of negligence proven in this case had the quality of conscious disregard or exhibited a complete indifference to the safety of this plaintiff. Eoff, supra, at 672, states it another way by saying that the essential element may be defined as “knowledge on the part of defendant that his conduct created an unreasonable risk of bodily harm to the plaintiff, and knowledge on the part of defendant that there was a high degree of probability that substantial harm would result to plaintiff.” In the very early case of Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, 573 (1948), the rule was stated as follows: “The actor’s (defendant’s) conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.” This language, which is a citation with approval of 2 Restatement, Torts, p. 1294, again postulates the basis for a submission under MAI 10.02.

Looking now to the evidence itself and without detailing again the factual basis in its entirety, the evidence in this case favorable to the plaintiff shows that Dr. Courter, the employee of the defendants, failed to properly identify the plaintiff’s rib, mistakenly saying it was the 11th and not the 10th rib. The evidence proves without question that the early X-rays of the plaintiff were in the hands of Dr. Courter at the time he made his diagnosis of the plaintiff’s condition. This is proven not only directly by the evidence of Dr. Smith as to the practice followed, but inferentially, since the X-rays all bore the same patient number, were all contained in the same X-ray folder, and the X-ray folder indicated that the characterization of the X-rays was made in each instance on the outside of the same folder. The X-rays also show by Dr. Smith’s testimony that the earlier X-rays as noted on the outside of the envelope were X-rays that any doctor would have known contained an X-ray of the patient’s stomach and the rib area. Thus, only two inferences are possible with respect to the conduct of Dr. Courter in failing to note the earlier X-rays in his report. One inference is that he did not look at the X-rays at all which Dr. Smith said would require only a few seconds. The other inference is that in looking at those X-rays he failed to see the lesion in the earlier X-rays. It is apparent from the fact that plaintiff’s lawyer discovered the earlier lesion in examining the X-rays at the first trial that the discovery of the lesion required no extraordinary medical skill. As has been earlier noted, the failure on the part of Dr. Courter to accomplish these acts resulted in the plaintiff having two operations where perhaps none would have been required, and it is clear from the evidence that the plaintiff has sustained physical damage as a result of the operations. It was for the jury to weigh those facts and determine whether they constituted a conscious disregard for the safety of the plaintiff or complete indifference to his safety.

Referring again to the quotation from Bresnahan and the Committee’s Comment under MAI 10.02 reciting that quotation, the evidence demonstrates that Dr. Courter either did an act or failed to do an act which it was his duty to the plaintiff to do. From the medical evidence in this case that Dr. Courter knew or had reason to know of facts that would lead him to realize that his conduct created an unreasonable risk of bodily harm to this plaintiff, the surgery unquestionably being bodily harm in and of itself, and that his actions also involved a high degree of probability that harm would result, it is difficult to see how it could be argued that reasonable men could not have found those facts upon this present record. It must be concluded that evidentiary support exists in this case for the award of punitive damages against the defendant partnership.

The defendants question in a separate point the form of instruction No. 6, which was MAI 10.02. The ground of the objection is twofold. The defendants first contend that it permits a recovery against a non-existent entity and premised upon that that it fails to advise the jury to determine punitive damages separately against the two defendant partners. The defendants’ argument is that the inclusion of the phrase “defendant Lockwood Radiological” in the punitive damage instruction submitted to the jury an instruction to find against a non-existent entity, the defendants properly contending and citing cases for the proposition that an action cannot be maintained against a partnership and that a judgment against a partnership is absolutely void. The difficulty with the first portion of defendants’ argument is that the suit was properly filed against the partners, and the judgment as finally rendered was against both of the partners. It should be noted in this connection that pursuant to a stipulation of the parties in chambers before the trial commenced the parties agreed to refer to the partnership as Lockwood Radiological. All of the instructions in the case refer to the defendants as Lockwood Radiological pursuant to that stipulation, and no issue was raised by the defendants at the time the case was submitted to the jury as to the designation of the defendants nor, for that matter, do the defendants now claim that any of the other instructions so referring to the defendants are erroneous in form except the form of verdict. After the jury returned its verdict, the trial court amended the verdict by entering judgment against the individual partners as the pleadings would require. The verdict, of course, because of its form, being a single submission in favor of the plaintiff or in favor of the defendants, did not name the party against whom the verdict was rendered, simply being a recitation that the jury found the issues for the plaintiff and against the defendants and assessed the damages.

It is also true that the defendants, Drs. Walker and Smith, admitted the agency of Dr. Courter and the existence of a partnership. The entire suit was tried upon the tacit understanding that Drs. Smith and Walker were, in fact, liable, if at all, only vicariously, and the defendants do not now question the basis of that liability upon any claim that agency was an issue or that the jury was misled in its determination of liability on the part of the co-partners because of the acts of their admitted employee. Further arguing this point, defendants urge that State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. banc 1966) requires that when a partnership is sued for punitive damages for tort, the liability is individual and not joint and that, therefore, there should have been separate submissions as to the partners. Defendants buttress this argument by claiming that the defendant, Dr. Walker, did not participate in any of the acts that gave rise to the plaintiff’s claim, but that Dr. Smith actively participated with Dr. Courter in the acts about which the plaintiff complains. Dr; Benoit testified that Dr. Smith looked at the X-rays with him prior to surgery, but Dr. Smith, at least by implication, denied this since Dr. Smith asserted that if he had looked at the X-rays he would have corrected Dr. Courier’s mistake with respect to the identification of the rib. There was some testimony by Dr. Smith that he did not supervise Dr. Courier’s work, but this, he said, was the proper medical training technique for a resident, to permit the resident to make independent judgments in the performance of his duties.

Be that as it may, the entire premise of defendants’ point in this regard is at war with the allegation of error they asserted in their motion for new trial. The defendants’ motion for a new trial asserted error in the giving of MAI 10.02 instruction on the ground that it was error to allow punitive damages against Smith and Walker based on the acts of Dr. Courter, and that there was no evidence of the culpability of either the defendant Smith or Walker. The same paragraph of the motion for new trial asserted that the instruction was error because it did not provide for “separate verdicts” for punitive damages against the defendants Walker and Smith. The question of whether a partner actively participating in a tort in which an employee of a partnership also participates which results in a punitive damage award is liable for separate punitive damages individually need not be reached or decided in this case. The trial court correctly analyzed the question presented by the instruction and the defendants’ claim of error when the court asserted that the evidence in the case showed no difference in the degree of culpability between the two defendants since they were responsible, if at all, vicariously, and their responsibility was the same and equal. The trial court considered that this was a case in which the plaintiff would not have been allowed to prove the net worth of the individual defendants, a proof which the plaintiff did not attempt. The trial court cited in its memorandum State ex rel. Kubatzky v. Holt, 483 S.W.2d 799 (Mo.App.1972), and State ex rel. Hall, supra. Kubatzky, supra, extensively reviews the issue of whether the wealth of the defendant is admissible in a punitive damages case and, relying upon State ex rel. Hall, ruled that where the evidence supported separate submissions, the individual wealth may be shown. As indicated, there was no submission against the individual defendants, the submission being entirely based upon the acts of Dr. Courter. The evidence discloses such a submission against either of the defendant doctors would have been highly questionable and certainly inappropriate under the verdict director given. The jury was confined to the issues presented by the verdict director which revolved entirely around the action of Dr. Courter and in no way was the punitive damage submission proper against the individual defendants. It was, therefore, not necessary to submit the issue of punitive damages separately against the individual doctors comprising the partnership.

The defendants repeat the argument with respect to instruction No. 6 in attacking the form of instruction No. 9 which was taken from MAI 36.11 and is the form of verdict for submission of actual and punitive damages against a single defendant. The defendants assert that the plaintiff should have submitted MAI 36.12, the form of verdict for submission against multiple defendants. What has been said with respect to instruction No. 6 above is equally applicable and dispositive of this point. There was no necessity or basis for a submission of the punitive damages claim against the partners separately, and the verdict based on vicarious liability was a single verdict.

In a final point, the defendants question the propriety of the trial court’s action in entering judgment against the defendants, Arthur B. Smith and John W. Walker, for punitive damages. Defendants repeat the argument that the jury verdict was returned against a non-existent entity, failed to make separate assessment of punitive damages, and was not in conformity with the verdict. The forms of verdict given to the jury insofar as they referred to verdicts in favor of the plaintiff did not refer to the defendants in any fashion, the form being as set out in MAI 36.11. The verdict, therefore, did not indicate against whom the judgment should be entered, and the defendants are correct in their assertion that First National Bank of Collinsville v. Goldfarb, 527 S.W.2d 427 (Mo.App.1975), provides that when the verdict does not indicate against whom it is returned, the record is to be examined to determine the appropriate judgment. Also, Rule 74.31 permits correction of defects in a judgment which do not affect the right or justice of the matter.

The defendants do not question the action of the trial court in entering judgment against the partners for the actual damages in the case, the defendants admitting that the partners would be jointly and severally liable for those damages. Defendants insist, however, that under the authority of State ex rel. Hall v. Cook, supra, the judgment against these partners should have been separately assessed; and, if they are jointly and mutually obligated, the burden would fall upon the one from whom the plaintiff could collect his judgment. What has been said heretofore with respect to the fact that this record does not support a submission of punitive damages against the partners separately is a sufficient answer to this question. This partnership was liable for punitive damages by reason of the acts of Dr. Courier, the agent of the partners. In Johnson v. Allen, 448 S.W.2d 265 (Mo.App.1969), the court held that the form in which the employer did business should not govern the question of whether there was a right to recover punitive damages. If the position of the defendants were sustained in this case, an anomaly would be created; corporate and individual defendants could be held to respond for the acts of their agent justifying the imposition of punitive damages, but partnerships could not unless there was evidence to justify a separate submission against the defendant partners in accordance with the rule of State ex rel. Hall v. Cook, supra. This case does not require a determination of the obligations of the individual partners with respect , to the judgment for punitive damages, it being sufficient for the issues here presented to hold that the judgment was properly entered against the defendant partnership.

The judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: CLEMENS, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Thomas GREEN, Appellant.
    No. 39682.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 3, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Robert C. Babione, Public. Defender, James B. Ashwell and Sara T. Harmon, Asst. Public Defenders, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto and Kathryn Marie Krause, Asst. At-tys. Gen., Jefferson City, for respondent.
   CLEMENS, Judge.

Defendant appeals his conviction and seven-year sentence for burglary under the Second Offender Act. He complains of (1) insufficient evidence of burglary, (2) erroneous admission of hearsay evidence, (3) insufficient identity as a second offender and (4) failure to take' judicial notice of a telephone book listing other persons of the same name. We affirm.

The state’s evidence: Police officers Ray and Wondracheek received a “burglary call” for an old building. There they found a door broken into on the side of the building; inside they found a disheveled interior. Defendant and his companion were running down the steps from the second floor. The building superintendent and a co-owner testified neither knew defendant nor his companion, nor had they given permission to be in the building. They further testified water fountains had been torn from the walls and supplies stored in the building had been moved toward the elevator. Defendant offered no evidence.

In determining evidentiary sufficiency we construe it in a light favorable to the state. We decide only whether the credible evidence was sufficient to support the verdict. State v. Achter, 514 S.W.2d 825 (Mo.App.1974). So considered, the evidence showed defendant was engaged in the burglary. We cannot say as a matter of law the jury could not reasonably have so found, so we deny defendant’s first point.

Defendant next contends he was prejudiced by a hearsay statement by Officer Ray that by radio he “got a call for burglars in the building.” Generally, the hearsay rule excludes ^extrajudicial statements offered to prove the truth of the statement asserted. The rule is subject to an exception when the statement is offered not to prove its truth but merely to explain subsequent conduct of the person who made it. State v. Trotter, 536 S.W.2d 877[3] (Mo.App.1976). The officer’s statement was within this exception, since it was offered not to prove there were burglars in the building but only to explain why he went there. Compare State v. McRoberts, 485 S.W.2d 70[4] (Mo.1972).

Defendant challenges the trial court’s finding that it was he who had a prior conviction under the Second Offender Act, § 556.280, RSMo 1969. Out of the jury’s presence evidence was received concerning the allegation of defendant’s prior felony conviction. A deputy circuit clerk read minute entries of the prior case from the court’s record book. One entry showed that a Thomas Green had pleaded guilty to second degree burglary and had been sentenced to three years’ imprisonment. Also received in evidence was a certified transcript of prison records showing Thomas Green’s physical description. The court found that defendant was the same Thomas Green.

Not only is the identity of names sufficient prima facie evidence to prove identity (State v. Cook, 463 S.W.2d 863[6-8] (Mo.Sup.1971)), but the trial court had before it for comparison Thomas Green’s physical characteristics described in the penitentiary records. And, we may consider defendant’s failure at trial to refute the alleged identity. State v. Davis, 367 S.W.2d 517[11] (Mo.1963). The court did not err in applying the Second Offender Act.

Finally, defendant claims error in the trial court’s refusal, on his cross examination of the deputy circuit clerk, to admit into evidence a St. Louis telephone directory, contending the trial court erred in refusing to take judicial notice of the directory. Still challenging proof of his identity as a prior felon, defendant now contends he could have shown there were eleven “Thomas Greens” listed there, but at trial defendant made no offer of proof as to the apparent relevancy of the telephone directory. Failure at trial to make an offer of proof on a collateral issue defeats a claim of error, since without the offer of proof the issue’s relevancy is not ascertainable by the trial court. State v. Whiteaker, 499 S.W.2d 412[4] (Mo.1973).

Judgment affirmed.

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


author: CRIST, Judge.

text:
    Irven J. MEINHARDT and Mabel M. Meinhardt, his wife, and Carl Fisk, Sr., and Betty J. Fisk, his wife, Plaintiffs-Appellants, v. Robert LUADERS and Mrs. Robert Luaders, Defendants-Respondents.
    No. 38319.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 24, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.

      Lawrence J. Fleming, St. Louis, for plaintiffs-appellants.
    David P. Senkel, James E. Bowles, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for defendants-respondents.
   CRIST, Judge.

Easement case. This litigation involves plaintiffs Meinhardts’ and Fisks’ right to travel over a 30 foot section of a private driveway extending over defendants’ land in order to reach a public roadway. The trial court heard the evidence and denied plaintiffs’ request to enjoin defendants’ interference with such use and sustained defendants’ counterclaim for quiet title. The court’s judgment specifically found that “no easement by prescription or implication exists on behalf of these plaintiffs in said driveway.” We affirm.

The property in question was owned as an entirety by the Weicherts prior to 1958. They had one entrance leading onto the adjoining county highway which was connected to their farmhouse by a dirt road. In that year they conveyed 6 of their 60 acres to the Meinhardts. The Meinhardts conveyed part of their property to the Fisks in 1961. Plaintiffs and their tenants use the Weicherts’ highway entrance and a section of dirt road (about 30 feet altogether) to reach an adjoining road leading across their own property. In 1968 the Weicherts conveyed the remainder of their farm (54 acres), including their house and the section of dirt road which plaintiffs had been using, to the defendants. The defendants subsequently took steps to block plaintiffs’ use of the entrance and road on their property.

To obtain an easement by prescription, plaintiffs had the burden to establish an adverse use for ten years under a claim of right with notice to the owner of the character of the claim. George v. Dickinson, 504 S.W.2d 658, 662-663 (Mo.App.1974). On the facts of this case we need only discuss the element of adversity. ,

An adverse use of another’s land has been defined as a use not made in subordination to the owner. Dalton v. Johnson, 320 S.W.2d 569, 573 (Mo.1959). An adverse user does not recognize in the owner of the servient estate an authority either to permit or prevent the continued exercise of the use. A key factor in determining adversity is the nature of the use at its inception. “[A] use which is permissive in its origin remains permissive until a ‘distinct and positive assertion of a right hostile to the owner’ is ‘brought home to him.’ ” Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572 (1942); see also McIlroy v. Hamilton, 539 S.W.2d 669, 674 (Mo.App.1976); McDougall v. Castelli, 501 S.W.2d 855, 858 (Mo.App.1973).

On the record presented here we conclude there is sufficient evidence to support a finding that plaintiffs’ use of the driveway was permissive and not adverse. In a court-tried case we will uphold the judgment unless it is not supported by substantial evidence, or is against the clear weight of the evidence, or erroneously declares or applies the law. With regard to issues turning on the credibility of a witness, an appellate court defers to the superior position of the trial court to make such judgment. Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).

The issue of the Meinhardts’ understanding as to the nature of their use of the driveway at the time they purchased the property from the Weicherts reduces to an issue of credibility. Plaintiff, Irven Mein-hardt, testified that, while nothing was said about an easement, “[i]t was just an established road and it was used by all of us.” He stated that the only discussion he had with Mr. Weichert (deceased at time of trial) was on widening the entrance to the drive and installing a culvert. Mrs. Weic-hert testified to the contrary. She stated that when she and her husband sold Mein-hardts the property the understanding was they they did have an easement to permanently use the road, and that the reason they let them continue to use the driveway was “because he always said he was going to build his own driveway [on his own property].” At one time she heard plaintiff, Irven Meinhardt, tell her husband that he intended to put in his own road. A use which was permissive as to the Meinhardts could also be found to be permissive as to the Fisks. The evidence was sufficient to support the denial of a prescriptive easement.

Plaintiffs seek to establish an easement by implication on the basis of pre-ex-isting use arising from the severance of adjoining properties by a common owner. The significant factor in determining whether such an easement by implication exists is the “intention of the parties as shown by the deeds of conveyance and the general circumstances and situation with reference to the acquisition of the properties from the owner of the unity of title.” Causey v. Williams, 398 S.W.2d 190, 197-198 (Mo.App.1965). The record must be such that the court may presume a clear intent of the parties to create an easement. The time at which the intention of the parties is relevant is the time of conveyance from the common owner to the party asserting the easement.

There was sufficient evidence from which the court could conclude that the Weicherts and Meinhardts did not intend to create a permanent easement over what is now defendants’ property. At the time of the conveyance in 1958 the Weicherts sold to Meinhardts only 6 acres of their 60 acre farm. The 6 acres, however, has almost 700 feet of frontage on the county road while the frontage on the remaining 54 acres is less than 50 feet. The parties concede that it would be possible to construct an entrance onto the county road from the Mein-hardts’ property. The court could further find that a 6 acre tract was unimproved at the time of the conveyance and that it was contemplated that Meinhardts would initiate some residential development on the new tract. It would be reasonable to believe that this development would include construction of a separate entrance onto the county road. The Meinhardts knew at the time of purchase that the entrance onto the county road was on land they did not own, and that the deed to their property did not mention the grant of any right on the Weic-hert property. Mrs. Wiechert testified that the farm had always had a “dirt road” that extended from her property into the area the plaintiffs now own. Accordingly, it could be concluded that this road had not been in regular use as a driveway for vehicles entering and leaving the county road, but rather was used as an occasional means of access to a remote part of the farm. All of this supports the testimony of Mrs. Weie-hert that at the time of the sale the understanding was that Meinhardt could use the driveway entrance “until he would build his own road.”

The law does not favor the implication of easements in view of the restriction it places on the free use of land. Such an easement must be established by clear, cogent and convincing evidence. We conclude that the evidence presented supports the judgment of the trial court. See Pendleton v. Gundaker, 381 S.W.2d 849, 851-852 (Mo.1964).

The judgment is affirmed.

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

      . The Meinhardts did purchase and, with Mr. Weichert, install a culvert at the entrance to the drive. They cite this to establish that “the use was intended to be of a permanent nature.” That act is not conclusive on the nature of the plaintiffs’ use of the property, nor does it contradict other testimony that this use of the property was permissive. Mrs. Weichert’s testimony indicated that the culvert helped to prevent the county road from washing out, and thus would have been beneficial to plaintiffs even had they subsequently built their own driveway.

      . The parties agreed that the elements of such an easement are (1) unity and subsequent separation of title; (2) obvious benefit to the dominant estate and burden to the servient estate existing at the time of conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance and under such circumstances as to show the change was intended to be permanent; and (4) reasonable necessity for the easement. Dickey v. Leach, 481 S.W.2d 524, 526 (Mo.App.1972).


author: SMITH, Judge.

text:
    Josephine BREWER, Appellant, v. Robert BREWER, Respondent.
    No. 40078.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 24, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.

      Edward J. Delworth, Overland, Joseph J. Schmidt, Jr., Kirkland, for appellant.
    Albert George Beyer, St. Louis, for respondent.
   SMITH, Judge.

Plaintiff appeals from the order of the trial court dismissing her amended petition for declaratory judgment. We reverse and remand.

In 1969 the parties, then married, entered into a stipulation agreement which provided that if plaintiff was granted a divorce from defendant she would receive, as and for statutory alimony, $300 per month for so long as plaintiff should live and not remarry but in no event longer than July 31,1981. In 1970 the Circuit Court granted a divorce to defendant on his cross-bill after plaintiff dismissed her petition. That decree provided that “plaintiff have and recover of the defendant, as and for her alimony, the sum of $300 per month, ... so long as plaintiff shall live and not remarry and so long as defendant shall live, but in no event shall said payments last longer than July 31st, 1981 . . . . Stipulation refiled.”

In 1975 plaintiff instituted a garnishment proceeding to recover past due monies from defendant pursuant to the divorce decree. Upon defendant’s motion to quash the execution and garnishment because the award was contractual and not decretal, the court ordered the execution and garnishment quashed. Plaintiff then filed her petition in this case to enforce the contractual obligations of defendant. The petition was subsequently amended to seek a declaratory judgment declaring the rights of the parties under the stipulation agreement, and praying a judgment for the amount found due to plaintiff pursuant to the agreement. Upon motion of defendant, the trial court dismissed the amended petition “for failure to state a claim showing plaintiff entitled to relief.” It is from this order that plaintiff appeals.

On appeal defendant has argued the merits of the claim made by plaintiff under the stipulation. That is not a matter for our consideration. Rule 87.02 provides that “Any person interested under a . written contract or other writings constituting a contract . . . may have determined any question of construction or validity arising under the . . . contract . ' . and obtain a declaration of rights, status or other legal relations thereunder.”

On a motion to dismiss the petition for declaratory judgment, the question to be decided is not whether plaintiff is entitled to the particular declaration and relief she seeks, but whether the petition sets forth averments entitling her to a declaration of rights at all. City of Creve Coeur v. Creve Coeur Fire Pro. Dist., 355 S.W.2d 857 (Mo.1962) [2-6]. If the averments are sufficient to show the propriety of declaratory relief, it is improper to dismiss the petition. Mercantile Trust Co. v. Chase Hotel, Inc., 510 S.W.2d 807 (Mo.App.1974).

Here plaintiff has alleged a stipulation agreement, the entry of a decree of divorce, the order of the court directing payment of alimony in accord with the stipulation, the existence of a dispute between the parties concerning their rights under the stipulation agreement, and as a result of that disagreement that defendant has failed to make payments pursuant to the agreement. Upon these averments, plaintiff is entitled to a declaration of her rights under the stipulation agreement. Such a declaration might, of course, include a finding that she has no rights under the agreement.

Order of dismissal reversed and cause remanded for further proceedings.

CLEMENS, P. J., and CRIST, J., concur.


author: STEWART, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James V. CHEESEBREW, Defendant-Appellant.
    No. 39149.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec, 15, 1978.

      David A. Lang and Thomas E. Shipp, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel P. Lyman, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   STEWART, Presiding Judge.

Defendant was convicted of possession of marijuana, a Schedule I controlled substance, in excess of 35 grams in violation of § 195.020 and sentenced to a term of five years in the custody of the Missouri Department of Corrections to run consecutively with a sentence of five years for sale of a controlled substance.

For reversal defendant contends that the court erred in: (1) overruling a challenge for cause to three veniremen who indicated they would feel defendant was hiding something if he did not testify; (2) admitting testimony that marijuana had been seen in defendant’s trailer one week before the raid; (3) admitting testimony that the defendant had told an undercover policeman one week before the raid that he would be in possession of more marijuana in the future; (4) admitting rebuttal testimony that the defendant had sold marijuana to an undercover policeman one week before the raid; (5) admitting a kitchen scale into evidence; (6) denying defendant’s motion for a continuance; and (7) overruling defendant’s motion to amend the record by changing defendant’s sentences from two five-year terms to be served consecutively to two five-year terms to be served concurrently. We affirm.

Defendant, age 31, had been living in a two bedroom trailer located about three miles west of Malden, Missouri. Defendant’s girl friend and Homer Carrington, age 19, were also living in the trailer in February and March of 1976.

On the evening of February 25, 1976, Trooper Moses of the Missouri State Highway Patrol, acting undercover, was admitted into defendant’s trailer. There were six persons including Moses and defendant in the trailer. Most of them were smoking marijuana. Moses saw a bag of marijuana and was told by defendant that he was going to get a large quantity of marijuana in the near future.

On March 5, 1976, members of the Missouri Highway Patrol and the Dunklin County Sheriff’s Department were admitted into defendant’s trailer by Carrington pursuant to a search warrant. Approximately 17 lbs. of marijuana were discovered hidden throughout the trailer in the bedrooms, stereo speaker cabinets, a trash can, beer box and briefcase. Marijuana seeds were found in a prescription medicine bottle with Cheesebrew’s name on it. A scale and some hashish pipes were also seized.

Cheesebrew was arrested when he returned to the trailer while the search was in progress. An information filed on March 23,1976 charged defendant and Homer Car-rington with possession of a Schedule I controlled substance in excess of 35 grams.

Defendant does not question the sufficiency of the evidence to sustain the conviction. Further facts necessary to the disposition of the issues raised will be discussed as the issues arise.

Defendant complains that he was deprived of an impartial panel of veniremen because the court failed to sustain his challenges for cause to three members of the panel who responded by raising their hands to the following question:

“Is there anyone who, as you sit here now, being honest with yourself, when you get back in the jury room, if the defendant did not testify in this case, is there anyone who at least on a subconscious level or perhaps more openly would be thinking, well, why didn’t the defendant take the stand; why didn’t he testify; is he hiding something? Is there anyone who would be inclined to feel that way if the defendant did hot testify in this case?”

He contends that the three jurors “indicated that they would be biased against the defendant if he did not testify.”

It is well settled that defendant was entitled to a full panel of qualified veniremen before he made his peremptory challenges. State v. Ransburg, 540 S.W.2d 172 (Mo.App.1976). The determination as to whether a venireman is qualified rests in the discretion of the trial court and will not be disturbed except for an abuse of discretion. It must clearly appear from the evidence that the challenged venireman was in fact prejudiced. State v. Johnson, 534 S.W.2d 844, 846 (Mo.App.1976).

To place the issue in context we set out the paragraph that forms the basis of defendant’s complaint and the paragraph immediately preceding:

“MR. SHIPP: After the Prosecution has given you their version of what happened, is there anyone who doesn’t think they will be willing to hear the defense side of the story? As fair-minded citizens, is there anyone who wouldn’t want to hear what my client had to say about the charges that are leveled against him?
“Is there anyone who, as you sit here now, being honest with yourself, when you get back in the jury room, if the defendant did not testify in this case, is there anyone who at least on a subconscious level or perhaps more openly would be thinking, well, why didn’t the defendant take the stand; why didn’t he testify; is he hiding something? Is there anyone who would be inclined to feel that way if the defendant did not testify in this case?
“[Hands were raised by Mrs. Farmer, Mrs. Newcomer and Mr. Masterson.]”

At this point defendant abandoned this line of questioning.

The paragraph which forms the basis for defendant’s complaint contains a dissertation and three separate questions. Three jurors responded by raising their hands. We do not believe that the trial court was required to take this as an indication of bias and prejudice on the part of these jurors. We are unable to determine whether the jurors were responding to one or all of the questions in the affirmative or whether they were seeking further information as to the meaning of defendant’s inquiries.

The trial court, as it should, permitted counsel wide latitude to pursue all avenues of inquiry that might establish bias or prejudice on the part of the panel. The obligation is upon defendant to directly and plainly examine the veniremen so as to discover any disqualifying factors. State v. Gaitan, 442 S.W.2d 530 (Mo.1969). If counsel felt that the response of the three veniremen was indicative of bias and prejudice it was his obligation to require specific answers to clear unequivocal questions. See Lemonds v. Holmes, 241 Mo.App. 463, 236 S.W.2d 56, 62 (1951). This, defendant did not do in this case. Defendant committed the venire to the proposition that defendant did not have to prove his innocence; and that they would find him not guilty if there was a reasonable doubt. We cannot say that the court abused its discretion in denying defendant’s challenge of the three members of the panel.

If we were to assume that the gesture made by the three members of the panel was an affirmative response to the questions asked they would merely be indicating their “desire to have as much evidence and testimony as possible as an aid to arriving at a verdict” not that they had a closed mind and not that the “failure to testify is an admission of guilt.” State v. Ransburg, 540 S.W.2d at page 174.

The case before us is distinguishable from State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974) and State v. Scott, 482 S.W.2d 727 (Mo. banc 1972) relied upon by defendant. Lovell stands only for the proposition that the court must make its own determination of the qualification of a challenged venireman based on the facts elicited during the voir dire and that it may not defer to the venireman’s judgment of his qualifications. In Scott one of the members of the panel said she would hold it against defendant if he did not testify. Another stated that in his opinion if the defendant were innocent he would be glad to testify. The voir dire in the case before us did not develop any disqualification of the challenged veniremen.

Defendant next contends that the court erred in permitting Trooper Moses to testify that he saw marijuana in defendant’s trailer on February 25, 1976, because it was evidence of the commission of a crime different from that with which the defendant was charged; prior possession was not an issue and the incident was too remote in time; the evidence was so inflammatory and prejudicial as to require its exclusion.

Proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant’s guilt of the crime of which he is charged. Such evidence is logically relevant when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) the identity of the person charged with the commission of the crime on trial. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Mo. banc 1954).

In order to convict one for possession of a controlled substance under § 195.-020 RSMo. 1969, it is necessary for the state to prove that the defendant knowingly and intentionally had in his possession the prohibited substance. It must be shown that the defendant was aware of the presence and character of the substance and was intentionally and consciously in possession of it. State v. Polk, 529 S.W.2d 490 (Mo.App.1975).

It was necessary in this case for the state to show that the defendant knew of the character of the substance, and that he was intentionally in possession of it. The fact that there was a quantity of marijuana in defendant’s trailer and that it was being used by defendant and others in this trailer on February 25 had a legitimate tendency to prove that he knew of the character of the substance and that his possession on March 5 was intended.

If, as we hold, the testimony was logically relevant the lapse of eight days did not alter the character of the evidence. See State v. Hudson, 521 S.W.2d 41 (Mo.App.1975).

As to the argument that the evidence was repetitious and so inflammatory and prejudicial as to require its exclusion, defendant refers us to the evidence that marijuana was found concealed in the back of stereo speaker cabinets and other places in the trailer as sufficient proof of defendant’s knowledge of the nature and character of the substance. Where the evidence of other crimes is logically relevant the court must also consider the degree to which it may prejudice the jury against defendant. This calls for the exercise of discretion on the part of the trial court. State v. Burr, 542 S.W.2d 527, 531 (Mo.App.1976). In the exercise of its discretion the court may also consider the heavy burden of proof placed upon the state in the presentation of evidence. State v. Harris, 534 S.W.2d 516, 522 (Mo.App.1976). With these principals in mind and considering the fact that defendant denied any knowledge that marijuana was concealed in his trailer we cannot say that the court abused its discretion in admitting the questioned evidence.

The defendant next urges that the court erred in admitting into evidence the testimony of Trooper Moses that defendant told him that defendant would have a large quantity of marijuana in the near future. This issue is not preserved for our review because defendant made no objection to the introduction of this evidence at trial. State v. Peterson, 546 S.W.2d 175 (Mo.App.1975).

Defendant contends that the court erred in permitting Trooper Moses to testify on rebuttal that he had purchased marijuana from defendant on February 25 at defendant’s trailer. Defendant urges that the testimony was not proper rebuttal because the matter was not first introduced into evidence by defendant. He also argues that this testimony was inadmissible because it was evidence of the commission of another crime which had no logical relevance to the crime alleged in the present case.

Defendant on his own behalf testified on direct examination that “There was some marijuana present” in his home on February 25 but that he did not own any marijuana on that date; that none of the marijuana found in his trailer on March 5 belonged to him; that he was unaware of its presence on the latter date. On cross examination he testified that the bag of marijuana in his trailer on February 25 had been there for about four days. It belonged to Victor McCurter and he told McCurter to get it out of his house. McCurter and Trooper Moses came and got it on February 25.

Trooper Moses testified over objection of the defendant that defendant gave him a bag containing just under a pound of marijuana for $160.00.

It is the rule in Missouri that when a defendant in a criminal trial is cross examined with respect to a collateral matter for purposes of impeachment “his answers . . . are conclusive and . may not be the subject of rebuttal testimony”. State v. Panter, 536 S.W.2d 481, 485 (Mo.App.1976). When a collateral issue is first tendered by the defense in direct examination or is volunteered on cross examination it becomes a proper subject for rebuttal. State v. King, 342 Mo. 975, 119 S.W.2d 277 (1938); State v. Panter, supra.

In the State’s case the evidence with respect to February 25 was confined to the presence and use of marijuana in defendant’s trailer. Ownership of the marijuana was not an issue. Ownership of the marijuana first became an issue during the direct examination of defendant and thus became a proper subject for rebuttal. The sale of the marijuana to Trooper Moses was evidence of defendant’s ownership.

Because we hold that the testimony of Trooper Moses is proper rebuttal extended discussion of other objections to the testimony is unnecessary. What we have said with respect to defendant’s objections to references to the evidence of the presence of marijuana in the trailer on February 25 is also applicable here. We make the further observation that evidence of sales of narcotics by defendant would have been admissible in the State’s case as having a legitimate tendency to show that defendant knew of the character of the substance found in the trailer on March 5 and that he intentionally and knowingly had it in his possession. State v. Tygart, 531 S.W.2d 47, 51 (Mo.App.1975).

Defendant argues that it was error for the court to admit into evidence a kitchen scale found on a table in defendant’s trailer at the time of the execution of the search warrant on March 5, 1976.

Both defendant and the State concede that the scale readily leads to the conclusion that defendant was a seller of marijuana. The gravamen of the crime is intentional and conscious possession of the controlled substance with awareness of its presence and character. Whether the possession is for personal or commercial purposes is not significant. State v. Tygart, supra.

The presence of the scale in the place where marijuana was found packaged in roughly uniform weights had a tendency to prove the necessary elements of the crime. What we have said with respect to the other points raised with respect to the admission of evidence in this case is equally applicable here. See also U. S. v. Jones, 543 F.2d 627, [3-4] (C.C.A. 8th 1976), cert. den. 429 U.S. 1051, 97 S.Ct. 763, 50 L.Ed.2d 767 (1977).

Defendant next claims that the court erred in refusing to grant a continuance because time for preparation for trial was “wholly inadequate.”

We review the evidence which was before the trial court when it ruled defendant’s motions for continuance. The charge upon which defendant was convicted was made by way of information on March 23, 1976. He appeared with counsel on March 24 and entered a plea of not guilty and the cause was set for trial on May 10, 1976. Defendant, upon application, was granted a change of judge on April 28, 1976 and on June 24, 1976 he was granted a change of venue from Dunklin County to Cape Girardeau County. The case was set for trial for March 17, 1977.

The lawyers representing defendant at that time also represented him in a case in which defendant was charged with the sale of a controlled substance. That case was tried on February 1,1977 resulting in a jury verdict of guilty. On February 5, 1977 he had a conference with attorneys then representing him concerning disposition of the two cases. According to defendant the conversation terminated with defendant saying “you can consider you no longer represent me.” There was evidence to the effect that former counsel were unaware that defendant did not desire them to represent him until they were contacted by present counsel who had been advised by defendant that they had withdrawn from the case.

Defendant contacted present counsel on March 1, 1977 and left the transcript of the former trial with him on that date. .On March 3, 1977 counsel was retained to represent defendant on appeal in an earlier case and for trial of the present case. On March 4 counsel called the court and was granted an additional ten days in which to file the motion for new trial in the case on appeal. At the same time counsel asked the court if it would continue the trial from March 17. The court told counsel that it was an old case and would not be continued. On March 10 defendant filed a motion for continuance. On Saturday, March 12, counsel called the court to ask that it rule on the motion for continuance and was advised that the motion would be denied on Monday. The entry denying the motion was made on Monday, March 14.

On the date of trial defendant filed another motion for a continuance. After an evidentiary hearing and argument the motion was denied.

The granting of a continuance is within the discretion of the trial court and when the denial of a continuance is challenged we indulge every intendment in favor of the trial court’s action. Ramsey v. Grayland, 567 S.W.2d 682 (Mo.App.1978).

The trial court here could have believed that defendant had discharged counsel about six weeks before the trial knowing that it was set on March 17 and retained counsel about two weeks before trial which would place the responsibility for any time restrictions upon defendant. State v. Ross, 375 S.W.2d 182, 185 (Mo.1964). Nor would we find that the court had abused its discretion based solely on the fact that counsel was retained two weeks before trial. The court made it clear to the defense on the day that counsel was retained that it was not disposed to grant a continuance. In the last analysis our review of the transcript leads us to concur with the trial court’s conclusion that defendant was well represented by counsel who was acutely aware of the facts and circumstances of the case and the applicable law. State v. McCreary, 504 S.W.2d 132, 135 (Mo.App.1973). The court did not err in failing to continue the trial in this case.

The final issue concerns the court’s refusal to grant to defendant relief from the sentence imposed by the court. On July 28, 1977, more than three and a half months after the motion for new trial had been overruled and judgment entered, defendant filed “Defendant’s Motion To Amend Record” with the trial court.

By the judgment entered in this case the sentence of five years is to run consecutively with a sentence of five years imposed upon his conviction for sale of a controlled substance. Defendant sought to have the court “amend the record” in this case so that the sentences would run concurrently. The court indicated that it might be disposed to consider some relief but denied the motion on the ground that it had no jurisdiction to entertain the motion. Defendant argues that the court had the power to grant the relief request under rule 26.05 which reads as follows:

“Upon the trial of any indictment or information the court may at any stage of the proceeding, in furtherance of justice, amend or supply any pleading, writ, process, entry, return or other proceedings; and the court in which the indictment was found, or the information filed, or in which the trial is had, may at any time before final disposition of the case, either in such court or the court to which the same may have been appealed, and whether at the same or different term of court, amend or supply any record in accordance with the fact. If the same be pending on appeal at the time any such record is amended or supplied, the part thereof so amended or supplied shall be immediately certified to the appellate court by the clerk of such trial court.”

This rule is intended to correct the record so as to reflect the facts, it does not empower the trial court to enter a new and different judgment. It can only “amend or supply and record in accordance with the fact.” There is no evidence of record that the judgment entered was not in fact the judgment of the court. At the hearing on the motion the court stated for the record, that at the time the judgment was entered it was its “intention to sentence [defendant] to five years plus five years, consecutively.” The judgment was in accordance with the fact and the court had no jurisdiction to grant the relief requested. See State v. Summers, 501 S.W.2d 548 (Mo.App.1973).

We find no prejudicial error; the judgment is affirmed.

REINHARD and STEPHAN, JJ., concur.

      . The cases were severed before the trial began. Carrington entered a plea of guilty after the severance.

      . “If the defendant shows you a number of areas where you can find a reasonable doubt that is justified by the evidence, I would like for you all to say outloud, if you will, what your verdict will be if you find that the State has not proven its case beyond a reasonable doubt. [There was a collective response of ‘Not guilty.’]”

      . At one time defendant testified that he met with his attorneys Mr. Cable and Mr. Seabaugh on February 3 or 5 at which time the conversation occurred. At another time he testified that Mr. Seabaugh was not present at the February meeting; that he had a meeting with Mr. Sea-baugh on March 3 and was told by Mr. Sea-baugh that if defendant did not follow his advice he would no longer represent him. He said he contacted his present counsel the next day or two. “. .1 had to check out to see who to hire.”


author: KELLY, Judge.

text:
    Irene DANIEL, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Defendant-Appellant.
    No. 38893.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Paul B. Hunker, Jr., Morris E. Stokes, Silver & Suffian, Marvin Q. Silver, St. Louis, for defendant-appellant.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Laclede Gas Company, the defendant in the trial court, appeals from the order of the trial court sustaining the motion for new trial filed by the plaintiff, Irene Daniel, following an adverse jury verdict. In sustaining the plaintiff’s motion for new trial, the trial court did so on four stated grounds; however, inasmuch as one of the grounds for granting the new trial was the trial court’s failure to grant plaintiff’s motion for a voluntary non-suit, made during her case and prior to the submission of the cause to the jury, we find it unnecessary to consider whether there was any error in sustaining the motion on those other grounds, and we affirm.

This case is a suit for damages against the Laclede Gas Company arising out of a fire which damaged the plaintiff’s mobile home in which the defendant converted a water heater from propane to natural gas and in so doing redrilled the orifice on the water heater to enlarge it so that a greater flow of gas would result. On the same day this was accomplished, December 4, 1974, a fire occurred destroying the mobile home and all of the plaintiff’s possessions.

During the trial, and during cross-examination of plaintiff’s expert witness, John Edward Stuerwald, plaintiff’s counsel requested that plaintiff be allowed to take a voluntary non-suit prior to closing plaintiff’s case. The trial court, after some discussion, denied plaintiff’s motion for a voluntary non-suit.

Rule 67.01 provides that .after the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party. Although this right is not absolute, it should be freely granted and not lightly abridged. Stubblefield v. Seals, 485 S.W.2d 126, 130[6] (Mo.App.1972); Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 743[1, 2] (Mo.App.1975). “The right to voluntarily dismiss without prejudice before submission should be qualified to the extent that if there be a finding that the defendant will lose some right of defense, or the plaintiff will gain some undue advantage, leave to dismiss should not be granted.” Kerr v. Grand Foundries, Inc., 451 S.W.2d 26, 29[3] (Mo.1970). “. . [T]hat plaintiff would bring another action against defendant is not such an injury as would justify the court in denying plaintiff’s request to take a voluntary dismissal.” Stubblefield v. Seals, supra, 485 S.W.2d 126, l.c. 130; Smith v. Taylor, 289 S.W.2d 134, 140[8] (Mo.App.1956). Defendant has not demonstrated, either here or in the trial court, that plaintiff would enjoy any undue advantage had the trial court granted plaintiff’s motion for a voluntary non-suit, nor has it shown that under such circumstances it would lose some right of defense that it had.

We hold that the trial court erred in refusing plaintiff’s request for a voluntary non-suit, that it properly took cognizance of this error when it employed it as a ground for granting plaintiff’s motion for a new trial, and we affirm the trial court’s ruling granting plaintiff a new trial on that ground.

GUNN, P. J., and WEIER, J., concur.

      . The parties shall continue to be identified by the titles assigned to them in the trial court.

      . Prior to trial the defendant Laclede Gas Company, with leave of court, filed a third-party petition bringing in Schwaig Enterprises, d/b/a Great Midwest Mobile Homes, the business enterprise which sold the trailer to the plaintiff under the provisions of Rule 52.11(a) on the ground that it was the negligence of the third party defendant which was the direct and proximate cause of fire and damages sustained by the plaintiff. At the close of all of the evidence the trial court sustained the motion to dismiss filed by the third party defendant on the grounds that there was no evidence offered or received which raised a jury issue on the allegations of negligence contained in the third party plaintiff’s petition, nor to prove the third party defendant guilty of any negligence, and that the proximate cause of the occurrence in question was not any negligence of the third party defendant. The propriety of this ruling was not raised by either of the parties to this appeal and we have not considered it nor the effect our holding will have on the third party claim, if any.


text:
    Georgianne MAZUREK, Plaintiff-Appellant, v. Theodore John MAZUREK, Defendant-Respondent.
    No. 39251.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.

      Anna C. Forder, St. Louis, for plaintiff-appellant.
    Michael W. Dunlop, Clayton, Edward P. McSweeney, and Lawrence E. Mooney, St. Louis, for defendant-respondent.
   CRIST, Judge.

Marriage dissolved and wife appeals contending that she should have been awarded custody of the two minor children of the parties.

Wife filed a Petition for Divorce on February 21, 1973. On May 8, 1973, husband was, by consent of the parties, awarded temporary custody of their two daughters, Monica, then four years of age, and Carolyn, then two years of age. Monica would now be almost ten years of age and Carolyn would be eight years of age. The parties were married on August 26,1967. Husband had two children by a previous marriage and wife had two children by a previous marriage.

On March 3,1977, the trial court awarded custody of the two daughters of the parties to husband. We affirm.

Wife complains that the court abused its discretion in awarding custody of the minor female children to the father in that it failed to properly consider the statutory guidelines of § 452.375 RSMo. 1973 Supp., V.A.M.S. This section provides:

“The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to his custody;
(2) The wishes of the child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.”

First, there was testimony that each of the parties desired to have custody of the children. Second, the children were eight and six years old at the time of trial and probably too young to have a rational preference. Third, there was evidence that the children were well cared for by a housekeeper while the father was at work. There was evidence as to the good relationship of the father and the children. Fourth, there was evidence that the children were doing well in their home and school and had adjusted well to their community life. Custody had been with the father for almost four years prior to trial. Fifth, there was evidence as to the good mental and physical health of all individuals involved. We believe there was sufficient evidence for the court to award custody of the minor daughters to the father. Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975).

Section 452.375 requires that “[t]he court shall determine custody in accordance with the best interests of the child.” Wife correctly contends there is a presumption that a mother is a better custodian of a child of tender years, particularly when the children are girls. Accordingly, there must be evidentiary support for the court to find that the two daughters should be placed with the father. In re Marriage of Carmack, 550 S.W.2d 815, 818 (Mo.App.1977).

The scope of our review is limited. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). We must defer to the trial court’s opportunity to judge the parties’ credibility. As stated in L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976), “[o]n appeal of a court tried case, the appellate court does not function as a judicial second guesser. . the trial court is ‘in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.’ ”

We believe there was evidentiary support for the court to find the children’s best interests were served by placement with the father. There was testimony whereby the court could have found husband had satisfactorily taken care of the children for about four years. Wife had exposed the children to an unsuitable incident by herself and a male friend. Wife had broken most of the windows on the first floor of the home by throwing bricks through them while the children were inside. Wife was often away from the home and thereby neglected the children. Wife proposed an open marriage whereby the parties could date other people. Based upon such evidence, the court could reasonably have found that husband was better able to take care of the children.

All other points relied on by appellant are stricken for failure to comply with Rule 84.04(d) which provides that “[t]he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . .” (Emphasis added). Thummel v. King, 570 S.W.2d 679 (Mo.banc 1978); Martin v. Circuit Court, No. 37269 (Mo.App., filed October 17, 1978); and Powers v. Powers, 544 S.W.2d 339, 340[3] (Mo.App.1976). In any event, we have reviewed the record, and find no merit in any of these points.

Accordingly, the judgment is affirmed.

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