author: ROBERT R. WELBORN, Special Judge.

text:
    Larry Douglas REYNOLDS, Appellant, v. Russell Earl JOBES, Jr., Respondent.
    No. KCD 28935.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Kranitz & Kranitz, Theodore M. Kranitz, St. Joesph, for appellant.
    Robert B. Randolph, St. Joseph, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages for alienation of affections of plaintiff’s wife and for criminal conversation with plaintiff’s wife. Jury trial resulted in verdict for defendant on both counts. Plaintiff appeals.

Larry Douglas Reynolds, plaintiff-appellant, married Sharon Ann Pinson September 30, 1967. Two children were born to the marriage. In 1972, Sharon filed suit for divorce, but the action was dropped. On September 5,1974, she filed a petition seeking dissolution of the marriage. On March 14, 1975, the marriage was dissolved by decree of the Buchanan County Circuit Court. The award of custody of the children to the husband was the subject of an appeal to this court which affirmed the judgment of the circuit court awarding custody to the husband. In re Marriage of Reynolds, 537 S.W.2d 864 (Mo.App.1976). On April 7,1975, Sharon married Russell E. Jobes, Jr., the defendant in this action.

According to plaintiff, he and Sharon had been happily married until Jobes appeared on the scene around 1970. Plaintiff and Jobes had worked together as electricians before Larry and Sharon were married. Jobes and his then wife and the Reynoldses visited back and forth and around Decoration Day, 1970, the four of them took a trip to Wyoming. Larry stated that Sharon’s attitude toward him began to change shortly afterwards. In July, 1970, Larry confronted Jobes about having an affair with Sharon. According to Larry, Jobes acknowledged that he was. Larry told Jobes to stay away from Sharon. After learning that Jobes was not doing so, Larry again encountered Jobes and struck him in the mouth. Larry again warned Jobes to stay away from his wife.

Plaintiff produced evidence that Sharon and Jobes met from time to time at various places, including at the Reynolds house and an apartment of an acquaintance. According to Larry, he didn’t become aware “for sure” that Jobes and Sharon “were running together” until after he and Sharon separated on September 4, 1974.

As summarized by appellant, defendant’s evidence “went to a denial of any misconduct prior to December, 1974, and a denial by Sharon that her marriage to Reynolds was a happy one.” By answer to interrogatories, Jobes admitted: “From and after December 11, 1974, Russell Jobes and Sharon Jobes (sic) were associating with each other and had sexual intercourse together.”

The defendant’s answer asserted that it was not the actions and conduct of the defendant which drove Sharon from plaintiff but that plaintiff by his mistreatment of Sharon made life with plaintiff intolerable for her and caused ultimately the dissolution of the marriage. On behalf of defendant, there was evidence that plaintiff had abused Sharon physically and by name calling, commencing in 1970 and until the action for divorce filed in 1972. Defendant also presented evidence that plaintiff had struck and kicked Sharon in the parking lot at the Kansas City baseball stadium in the summer of 1974. Three couples had driven together to the game and when Sharon and Larry got into an argument about her not going to the game, Larry knocked Sharon down and kicked her. According to Larry, Sharon fell when she struck at him and he did not strike her. He had the same explanation for an altercation which occurred the night before the two separated in September, 1974. According to Sharon, she came home from class at about 10:30 P.M. Larry called her a “dirty bitch,” choked and hit her, knocking her head against a cabinet, causing a “big cut.” He knocked her to the floor and kicked her in the breast.

The defendant also alleged that plaintiff “actively and passively” consented to defendant’s intercourse with Sharon after the separation of plaintiff and his wife. “With the knowledge that Defendant was associating himself with Plaintiff’s wife, Plaintiff told his wife that she could associate with the Defendant and do as she pleased. At said time and up to the time of the dissolution of the marriage between Plaintiff and his wife, Plaintiff had no concern for the relationship between Defendant and his wife because Plaintiff was dating and associating himself with another woman.”

According to Sharon, in the latter part of November or the first part of December, 1974, she had a conversation with plaintiff and plaintiff told her she could date anyone she wanted “and he could date anyone he wanted to because of the new divorce laws.” Plaintiff told Sharon he had been dating his lawyer’s secretary. A St. Joseph school teacher had dates with plaintiff on October 19, 25, 27 and November 1, 1974.

Sharon testified that she had no sexual intercourse with defendant from the date of her marriage to plaintiff until December, 1974.

On this appeal, appellant has placed his contention of error in five categories:

1. Errors in taking evidence. 2. Errors in trial procedure. 3. Errors in jury instructions. 4. Errors in hearing argument. 5. General error. These contentions will be considered in order.

1. Errors in taking evidence.

A. Upon objection by defendant’s counsel, plaintiff’s counsel was prevented from inquiring of plaintiff’s witnesses concerning defendant’s reputation in the community “for associating with other women” and “for running around with other men’s wives.” There was no offer of proof as to what the witnesses would have answered. Therefore the trial court cannot be convicted of error. Thayer v. Sommer, 356 S.W.2d 72, 80-81[ll, 12] (Mo.1962); Stringer v. Reed, 544 S.W.2d 69, 78[19] (Mo. App.1976). In any event, the law is well established that the character of a party to a civil action cannot be inquired into if not put in issue by the nature of the proceedings, such as in libel, slander, malicious prosecution, etc., where evidence of good character is relevant on the issue of damages. Browning v. Browning, 226 Mo.App. 322, 41 S.W.2d 860, 866-868[l-3] (1931).

Cases relied upon by appellant allowing evidence of character of complainant in rape cases do not provide a rule applicable to civil proceedings. 1 Wigmore on Evidence, § 64, p. 472 (3rd ed., 1940).

B. Upon rebuttal, plaintiff offered the testimony of plaintiff’s mother that, when the parties to the marriage separated in 1972, Sharon came to her and begged her to intervene with Larry to take her back. When the defendant objected to the testimony as improper rebuttal, plaintiff offered the evidence to rebut Sharon’s testimony that Larry begged her to come back. As defendant pointed out, that was not Sharon’s testimony. She testified merely that “Larry called me and we got together and we started talking and we decided that we wanted to make our marriage last and we was going to forget about all the other stuff and he was going to quit drinking and calling me names and quit being mean and stay home and be a father and better all over. We tried. We went back together.” Therefore, the testimony was not proper rebuttal on that matter. Plaintiff’s counsel then enlarged upon his offer of proof and included the tender of the testimony to rebut Sharon’s testimony that Larry initiated the reconciliation and, further, as evidence that Larry was not, as Sharon testified, “a violent and dangerous man from whom she was trying to get away.” The offered rebuttal testimony was not contradictory of testimony by Sharon. As above noted, she testified that Larry called her but she did not say that he suggested the reconciliation. The proffered testimony did not contradict testimony of physical mistreatment of Sharon by Larry. Such occurrences were not totally inconsistent with her seeking the reconciliation, as the mother would have testified. No error on the part of the trial court has been demonstrated.

C. Sharon testified that she was four months pregnant at the time of her marriage to Larry and that Larry did not want to marry her but finally decided he would, “though he didn’t love me.” A former coworker of Larry testified that Larry told him that he “had to get married.” “I don’t want to, but I will have to marry her.” Appellant describes such testimony as “unique in the annals of actions for alienation of affections, going as it does to a period before the plaintiff and his wife were even married.” Such assertion may or may not be accurate but it does not suffice to carry appellant’s burden of showing error on the part of the trial court. No authority is cited in support of appellant’s proposition.

Appellant argues alternatively that the trial court erred in excluding in rebuttal an excerpt from Sharon’s “Wedding Book,” identified by Larry as being in Sharon’s handwriting, describing their “romance” in which she stated that she and Larry “hit it off real good” from their meeting in December, 1966, that after two months of dating Larry proposed marriage and she accepted. “By then I had decided he was the guy for me.” A wedding date was set for September 30, 1967.

Appellant argues that this evidence rebutted Sharon’s testimony to the circumstances of their marriage.

The trial court did not err in this regard. The less than romantic aspects of the marriage would hardly have been recorded in the “Wedding Book.” Larry acknowledged that Sharon was pregnant at the time of their marriage, although he placed its onset subsequent to the engagement. The trial court’s refusal of the offered evidence was not erroneous.

D. Appellant states in Point IV of his brief that the trial court erred in refusing, on the basis of defendant’s judicial admission of sexual intercourse with plaintiff’s wife, to permit plaintiff to adduce evidence on the manner and places of such activity, “although the same were relevant and material to an evaluation by the jury of defendant and such propensity for misconduct of the matter in issue in this cause, and his credibility.” Appellant cites no offer of proof for such purpose and does not advance any argument in support of the point stated. Therefore, no basis for finding of error has been demonstrated.

2. Errors in trial procedure.

A. Appellant asserts that the trial court erred in overruling his motion for summary judgment on Count Two of his petition for criminal conversation. Appellant’s motion was based upon respondent’s answers to interrogatories and deposition testimony wherein he acknowledged sexual intercourse with Sharon in either November or December, 1974, knowing that she was then still married to appellant. The motion included the following questions and answers from respondent’s deposition:

“Q And Mr. Reynolds wasn’t putting
you up to this, was he?
“A (sic) To having relations with her?
“A (sic) No, sir.
“Q He didn’t connive with you to take
her to bed, did he?
“A No, sir.
“Q He never talked to you about it?
“A Huh-uh.
“Q And you never talked to him about it either?
“A About seeing her?
“Q Yes.
“A No. .
“Q And, so far as you know, he wasn’t setting you up with Sharon, was he?
“A Not that I know of.”

Appellant asserts that respondent’s own answers admitted the act charged and excluded any defense based on connivance by appellant in the conduct.

Respondent’s reply points to his answer in which he asserted the defense of active and passive “consent to defendant’s intercourse with plaintiff’s wife * * *.” Respondent has ignored the requirement of sub-paragraph (e) of Rule 74.04, as follows:

“ * * * When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

However, in view of the requirement of sub-paragraph (h) that the party seeking summary judgment on an issue triable by a jury or the court demonstrate his right thereby by “unassailable proof * * as a matter of law” the trial court will not now be held to have erred in sustaining appellant’s motion. The admissions of respondent went to the defense of connivance, but the defense asserted was consent. The terms are sometimes used interchangeably in cases such as this. However, they are not synonymous and there having been no affidavit or other proof, negativing consent rather than connivance, the trial court was justified in refusing the drastic remedy of summary judgment.

B. Appellant contends that the trial court erred in overruling his motion for mistrial on the grounds that in his opening statement, counsel for defendant had asserted as statements of intended proof “facts” which could not be admitted at the trial. Appellant’s motion was directed at statements of respondent’s counsel concerning mistreatment of Sharon by appellant, etc. The only objection voiced during the presentation of the statement was that respondent’s counsel was “arguing.” A second general objection was withdrawn.

The opening statements were the last action taken on the first day of the trial. Appellant’s motion for a mistrial was filed the next day. The trial court did not err in overruling the motion. It was incumbent upon appellant to make a timely objection to the portion of the statement he deemed objectionable. A timely objection would have been one made in the course of the statement, thereby affording the court an opportunity to correct any error which might have occurred. Brown v. Thomas, 316 S.W.2d 234, 237[8] (Mo.App.1958). Absent such objection, the trial court is not to be held to have abused its discretion in overruling the subsequent motion for a mistrial. State ex rel. State Highway Comm, v. Drisko, 537 S.W.2d 645, 648[2-6] (Mo. App.1976).

C. At the conclusion of the presentation of his rebuttal evidence, appellant filed a motion for mistrial “or other relief.” The motion was based upon the trial court’s sustaining respondent’s objection to a question put to Sharon by appellant’s counsel in which he referred to the divorce proceedings and asked Sharon to “tell us where you ever told any other judge in any other proceeding about all these terrible things [Larry had done].” An objection was sustained, the trial court noting that such matters would not have been taken up in the dissolution proceedings. Appellant’s counsel suggested they would have been relevant in the child custody matter, but the trial court sustained the objection. Appellant’s motion asserted simply that he should have been permitted to inquire into these matters and asked alternatively for a mistrial or for the recall of Sharon for cross-examination on such matters. (In this court appellant has added the trial court’s refusal, on the basis of defendant’s admission re sexual intercourse with Sharon, to permit cross-examination as to the date of such occurrences. His motion in the trial court contains no reference to a ruling in this regard so that complaint will not be considered here.)

Appellant’s motion sought relief entrusted to the discretion of the trial court, i. e., a mistrial (Golian v. Stanley, 334 S.W.2d 88, 91[1 — 3] (Mo.1960) or recall of a witness. Bailey v. Chapman, 41 Mo. 536 (1867). Having based his claim of error upon refusal of such relief, the burden is upon appellant to demonstrate clear abuse of discretion.

The failure of a witness to mention upon a previous judicial proceeding matters which might ordinarily have been expected to be referred to may have some value for impeachment purposes when the witness testifies to such matters at a subsequent trial. 3A Wigmore on Evidence § 1042, p. 1056 (Chadbourn Rev., 1970). As suggested by appellant’s counsel the conduct of appellant might have been relevant on the child custody aspect of the dissolution proceedings. However, any error on the part of the trial court was harmless. The transcript of the dissolution proceedings has been filed as an exhibit in this court. Examination reveals that Sharon did testify then to appellant’s beating her the night before the separation in September, 1976, and also to the incident at the ball game in Kansas City. No good purpose would have been served by having the witness, as requested by the question, search the transcript and point out such testimony.

3. Errors in Jury Instructions.

Numerous objections are raised involving instructions. Instruction No. 2 was the burden of proof instruction. Instructions Nos. 3, 4 and 5 dealt with the alienation of affections count. They read as follows:

“INSTRUCTION NO. 2
“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support his claims against defendant. The burden is upon the defendant to cause you to believe the propositions necessary to support his defenses that plaintiff caused his wife to leave him or that she voluntarily bestowed her affections upon defendant who did nothing wrong to gain such affections, as submitted in Instruction No. 5, and that plaintiff consented to his wife associating with defendant or that defendant did not have illicit sexual intercourse with plaintiff’s wife, as submitted in Instruction No. 11. If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.”
“INSTRUCTION NO. 3
“Your verdict must be for plaintiff on Count One of his petition if you believe:
“First, a marriage relationship existed between plaintiff and Sharon Ann Reynolds which defendant induced and influenced plaintiff’s wife to leave and abandon, and
“Second, defendant caused Sharon Ann Reynolds to leave and abandon her marriage with plaintiff, and
“Third, defendant did so intentionally and without justification or excuse, and
“Fourth, plaintiff was thereby damaged, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.”
“INSTRUCTION NO. 4
“Your verdict must be for the Defendant on Count I of Plaintiff’s Petition if you do not believe that Defendant intentionally and without justification or excuse induced and influenced Plaintiff’s wife to leave and abandon her marriage with Plaintiff and Plaintiff sustained damage as a direct result thereof.”
“INSTRUCTION NO. 5
“Your verdict must be for the Defendant on Count I of Plaintiff’s Petition if you believe either Plaintiff caused his wife to leave him or Plaintiff’s wife voluntarily bestowed her affections upon the Defendant who did nothing wrong to gain such affections.”

To begin with Instruction No. 5, appellant contends that the instruction “is not in the form or language approved by the authorities cited in support of it nor supported by said authorities.” That is not a statement which provides a basis for error on the part of the trial court. Whether or not the respondent cited proper authorities in support of the instruction which he tendered, the question is whether or not the instruction correctly states the law. The point stated by appellant, taken verbatim from his motion for new trial, does not raise that issue and presents nothing for appellate review.

Appellant also contends that Instruction No. 5 is not a proper converse instruction. However, this is obviously not a converse but a submission by the respondent of his affirmative defenses to appellant’s alienation of affections claim.

Appellant attacks Instruction No. 4 on the grounds that it did not properly converse Instruction No. 3. The instruction follows the First Method of conversing appellant’s verdict-directing instruction. It converses elements of the verdict-directing instruction in the language there employed. No authority is cited in support of the error complained of and there has been no demonstration that the instruction given was erroneous.

Appellant complains that in Instructions Nos. 4 and 5, respondent gave two converse instructions. As above pointed out, Instruction No. 5 was not a converse, so this complaint is without merit.

Appellant complains that the reference in Instruction No. 2 to the defense submitted in Instruction No. 5, i. e., “plaintiff caused his wife to leave him or that she voluntarily bestowed her affections upon defendant who did nothing wrong to gain such affections” was “an excessive restatement” of such defenses, “not in accord with the proper reference required in notes to MAI 3.01.” He complains particularly that the words “who did nothing wrong to gain such affections” are argumentative. Perhaps some more abbreviated version of the defenses offered by the defendant would have been possible. However, they do not admit of a well-known brief descriptive terminology, as, for example, contributory negligence does. Reference to the defenses was required and the trial court is not to be faulted for employing the language of the defensive instruction. Appellant has also attacked the validity of the defense, but his assignment of error was based upon the form, not the substantive content of the reference language.

The objection that the reference to Instruction No. 5 was erroneous because that instruction was erroneous is without merit, there having been no showing that Instruction No. 5 was erroneous. The same conclusion applies to the objection that the reference to Instruction No. 5, inserted by the court in the tail of Instruction No. 3, was to an erroneous instruction.

Appellant complains of error in Instruction No. 8, offered by respondent and dealing with mitigation of damages. Inasmuch as the jury found for the respondent on the issue of liability on the alienation of affections count, any error in instructions dealing with damages was harmless. Killian v. Wheeloc Engineering Company, 376 S.W.2d 147, 149—150[4] (Mo.1964); Take v. Orth, 395 S.W.2d 270, 276[8, 9] (Mo.App.1965).

Appellant complains of the order in which the court placed Instruction No. 16 offered by appellant. It instructed the jury, in effect, that the jury could find for plaintiff on the alienation of affections count on circumstantial evidence. Instructions Nos. 3 through 8 dealt with Count I, alienation of affections. Instructions Nos. 9 through 15 dealt with Count II. Instruction No. 15 was similar to No. 16 except that it dealt with Count II. The placing of Instruction No. 16 in sequence with other instructions on Count I may well have been a more logical choice. However, the trial court may give instructions in such order as deemed “advisable,” absent direction in MAI. Rule 70.01(d). No abuse of discretion here has been demonstrated that would produce reversible error.

Questioned Instructions Nos. 9,10 and 11, dealing with the criminal conversation count were as follows:

“INSTRUCTION NO. 9
“Your verdict must be for plaintiff on Count Two of his petition if you believe:
“First, a marriage existed between plaintiff and Sharon Ann Reynolds, and
“Second, while plaintiff and his wife were married to each other, defendant had illicit sexual intercourse with plaintiff’s said wife, and
“Third, such sexual intercourse was without the connivance of or consent of plaintiff, and
“Fourth, plaintiff was thereby damaged, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 11.”
“INSTRUCTION NO. 10
“Your verdict must be for the Defendant on Count II of Plaintiff’s Petition if you do not believe, that while Plaintiff and his wife were married Defendant had illicit sexual intercourse with Plaintiff’s wife and such intercourse was without the consent of Plaintiff and Plaintiff was thereby damaged.”
“INSTRUCTION NO. 11
“Your verdict must be for the Defendant on Count II of Plaintiff’s Petition if you believe either Plaintiff expressly or impliedly consented to his wife associating with the Defendant, or Defendant did not have illicit sexual intercourse with Plaintiff’s wife.”

The problems with these instructions arise, in part, from the form of appellant’s verdict-directing instruction on this issue.

He submitted Instruction No. 9, to which the court added the tail. Appellant patterned the instruction upon one quoted in Lewellen v. Haynie, 287 S.W. 634, 642-643[8] (Mo.1926). The instruction as originally quoted required the jury to find that the defendant did “hold sexual intercourse with plaintiff’s said wife,” subsequently referring to “said act of illicit intercourse.” In what purports to be a second quotation of part of the same instruction by the court, the word “illicit” appears between the words “hold” and “sexual.” This is the form of the instruction given upon retrial of the same case. Lewellen v. Haynie, 25 S.W.2d 499, 504-505[14-16] (Mo.App.1930). The instruction in both cases required the jury, in order to find for plaintiff, to find that the act of the defendant was “without his consent or connivance.” No point was made in this latter regard, but consent is generally considered a matter of defense (41 Am.Jur.2d Husband and Wife, § 479, pp. 404-405 (1968)), and absence of consent is not generally regarded as an element of the wrong. Id., § 476, pp. 402-403.

In this court, appellant complains of respondent’s submission which would have permitted the jury to find that defendant did not have illicit sexual intercourse with plaintiff’s wife (Instructions Nos. 10 and 11). Appellant asserts that such denial is in the face of respondent’s judicial admission that, after December 11,1974, he and Sharon “were associating with each other and had sexual intercourse together.” Appellant also complains of the insertion by the court of the words “that defendant did not have illicit sexual intercourse with plaintiff’s wife, as submitted in Instruction No. 11” on the same grounds. Respondent’s response is that he did not admit “illicit” sexual intercourse, the ultimate issue in the case.

The problem arises because appellant used the superfluous (for purposes, of his submission) term “illicit” in his verdict-directing instruction. In fact, had appellant offered a proper instruction, the court would have been obliged to eliminate the issue of occurrence of sexual intercourse between respondent and Sharon while the latter was married to appellant, all of which was not disputed. That would have left for jury consideration only the issue of consent (properly as a matter of defense) and damages.

Appellant, however, chose the form of submission and thereby opened the door for respondent to converse the submitted “illicit” sexual intercourse, which respondent did not admit. Appellant contends that the converse of the damage issue was erroneous because he was entitled to damages if the jury found defendant had criminal conversation with his wife. See Scheffler v. Robinson, 159 Mo.App. 527, 141 S.W. 485, 487[4] (1911). Appellant’s verdict-directing instruction proposed the finding of damages. Therefore, respondent was permitted to converse the required finding.

Appellant attacks the submission of the defense of consent on the grounds that it was not supported by evidence. The basis of the defense was Sharon’s testimony that appellant told her: “I could date anyone I wanted and he could date anyone he wanted to because of the new divorce laws * * * H

The Restatement of Torts (2d) (1977) speaks of consent barring an aggrieved spouse from recovery for adulterous relations in terms of “actual” and “apparent,” the latter consisting of “a manifestation to the actor that leads to the reasonable belief that the aggrieved spouse is willing for the marital interests to be invaded.” Vol. 3, § 687, comment b, p. 489. Such consent need not be communicated to the actor. “The aggrieved spouse’s willingness may be manifested to the other spouse * * *.” Id., comment c.

Appellant, on the basis of Comte v. Blessing, 381 S.W .2d 780, 788[12, 13] (Mo.1964), argues that Missouri does not recognize express or implied consent as a defense, apparently contending that the only defense is “active or passive connivance.” However, in that case, the court recognized that “implied or express consent or connivance” as a defense and respondent’s choice of the language “expressly or impliedly consented” were not erroneous.

The implied consent, so recognized, is the equivalent of “apparent” consent of the Restatement, supra. It was for the jury to determine whether or not, on the basis of Sharon’s testimony and the attending circumstances, appellant had consented to invasion of his “marital interests” and the issue was therefore properly submitted.

Appellant’s submission of lack of consent in his verdict-directing instruction has resulted in objections that respondent submitted the issue of consent twice in Instructions Nos. 10 and 11. Instruction No.

10 was respondent’s converse and properly conversed the matters submitted in appellant’s verdict-directing instruction, including the element of consent. Instruction No.

11 was intended as an affirmative defense instruction. The burden properly was upon the respondent to establish that defense and he had the right to submit that defense.

Instruction No. 11 submitted not only consent but also authorized a verdict for defendant if the jury believed that “defendant did not have illicit sexual intercourse with plaintiff’s wife.” This submission was somewhat in the form of a third method converse under MAI 33.01. However, Instruction No. 3 placed upon respondent the burden of proof on this score. Defendant thereby assumed a burden greater than that required of him. At the most, the inclusion of this phrase in Instruction No. 11 was harmless error.

No error warranting reversal of the judgment has been demonstrated. However, such conclusion does not mean that for future guidance the instructions given are models in either substance or form.

4. Errors in Argument.

Appellant objects to the trial court’s rulings sustaining objections to his attorney’s argument. The appellant points to three instances in which the trial court sustained respondent’s objection that appellant’s argument was beyond the evidence. There is no need to detail the argument and the state of the evidence. In at least two of the instances, the trial court’s conclusion was demonstrably correct. In the third in which counsel argued that defendant’s former wife who testified for defendant had divorced him, the witness’s testimony is susceptible of construction according to the statement to which objection was made, but it related to a remote, collateral matter which would not afford a basis for reversible error.

Appellant also objects to the trial court’s sustaining objection to argument that defendant kept plaintiff and Sharon from “mending” their marriage. Defendant objected to the argument on the grounds that there was no evidence of any attempt on the part of plaintiff to mend the marriage after October, 1974 and the objection was sustained. Appellant contends that regardless of evidence on the subject, respondent had no' “right to interfere” or cut off any chance of affection springing up in the future. De Ford v. Johnson, 152 Mo.App. 209, 133 S.W. 393, 395 (1911).

Although defendant had no right to interfere and cut off a chance of reconciliation, argument that he did in fact so interfere would still require a factual basis. The appellant does not point to any evidence of attempted reconciliation. Therefore, the trial court’s ruling was not error.

5. General Error.

Appellant contends that the verdict in favor of defendant on Count II is against the evidence in view of the admission of defendant to sexual intercourse with plaintiff’s wife while she was married to plaintiff. As above pointed out, the defense of consent was involved and made an issue for the jury.

No error in overruling appellant’s motion for new trial on the grounds which have been discussed has been demonstrated.

Judgment affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    ANNBAR ASSOCIATES, a partnership, Respondents, v. AMERICAN EXPRESS COMPANY and American Express Reservations, Inc., Appellants.
    No. KCD 28792.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Rehearing Denied May 1, 1978.

      Dick H. Woods, George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellants.
    David Skeer, David W. Howard, Kansas City, for respondents.
    Before WELBORN, Special Judge Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge Presiding.

Action for damages by hotel owners against operators of reservations service for misrepresentation as to the availability of rooms at plaintiffs’ hotel. Upon trial to jury, verdict was for plaintiffs for $25,000 actual damages and for punitive damages of $100,000 against each of the two defendants. Defendants have appealed.

Annbar Associates is a partnership whose members were Mrs. Ann Goldstein and Mrs. Barbara Goldsmith. From 1962 to 1974 the partnership owned the Muehlebach Hotel in Kansas City. Alfred Goldstein, a resident of New York and husband of Ann, managed the partnership affairs. Day to day operation of the hotel was in the hands of a resident manager, Ralph Hitz, Jr., from 1971 through 1973. An assistant manager, Ken Vincent, was in charge of the Muehle-bach’s reservations department.

American Express Company is a corporation engaged in various activities, including a credit card business. American Express Reservations, Inc., is a wholly owned subsidiary of American Express. It provided a computerized reservation system for member hotels and motels, involving the employment of a telephone reservations service for use by members of the public by means of a toll-free call in making reservations for accommodations at member hotels and motels.

Prior to 1972, the Muehlebach had not honored national credit cards. Mr. Gold-stein did not favor their use by the hotel, although Mr. Hitz and Mr. Vincent believed that the hotel should honor them and on several occasions they made such recommendation to Mr. Goldstein. In 1972, Gold-stein acceded to Hitz’s “pestering” and authorized Hitz to contract for acceptance of American Express credit cards and membership in Reservations Space Bank system.

On May 9, 1972, the Muehlebach entered into separate agreements with American Express and Reservations. The agreement with the former called for the hotel to permit holders of American Express credit cards to charge purchases at the hotel by use of that card. Such charges were to be sold to American Express at a 3½% discount.

The agreement with Reservations set both the terms and conditions of the hotel’s membership and use of the Reservations system. Reservations was to be paid a $50 monthly fee plus 5% of the rental for accommodations reserved through the system, subject to a minimum charge of $1.50 for each rental unit.

The Muehlebach began operating under the agreements. In January, 1973, Gold-stein, upon reviewing the hotel’s monthly operating statement for December, 1972, directed Hitz to cancel both agreements because they were costing too much. Hitz unsuccessfully tried to talk Goldstein out of the action. Hitz then notified the American Express Regional Hotel Sales Manager that the agreements were being cancelled. A written notice to that effect was made by Hitz on February 1, 1973.

The Muehlebach immediately began refusing to accept American Express credit cards. However, Muehlebach reservations personnel were not told of cancellation of the reservations agreement and they continued to receive and accept reservations under the system. The hotel, which experienced a serious “cash crunch” from February to September, 1973, paid none of Reservations’ monthly invoices from February to June 8, 1973. As of April 30, 1973, $699.99 was owed on the account. The agreement between Reservations and Muehlebach called for payment of invoices within ten days of receipt. On May 30, 1973, Reservations notified the Muehlebach that because of its delinquency, its Space Bank service had been terminated, effective May 21, 1973. On June 8 and 13, Muehlebach paid the $699.99 owed as of April 30. Charges continued to be made on the basis of reservations made before May 8. As of August 31, 1973, Muehlebach owed $141.73 on the account.

In accordance with Reservations’ May 30 notice, the Muehlebach was placed “offline” and was ineligible to receive reservations through Space Bank. In August, 1973, a reservations clerk at the hotel told Vincent that there had been some confusion about a guest who attempted to obtain a reservation through Space Bank and was told the Muehlebach was filled. The guest then called the hotel directly. Vincent did nothing about the incident. He couldn’t imagine that Space Bank would try to turn a person away from the hotel and concluded it was a misunderstanding.

Around the middle of September, the executive assistant in charge of reservations told Vincent that other reservations clerks had found a “very common problem” in this regard. She, Vincent and Hitz discussed the matter, talked to Muehlebach’s attorney and decided to make some test calls to Reservations.

Between September 29 and October 22, seventeen calls were made to Space Bank by Muehlebach employees, requesting rooms there on nights when rooms were available. In seven instances, the operator responded that the Muehlebach was “sold out” on the night desired. In two instances, the response was that the Muehlebach was “booked.” In six instances, the response was Muehlebach “not available.” On the final call on October 22, the response was “Muehlebach not serviced by American Express.” In one instance, the reservation was “confirmed.”

On October 10, 1973, suit was filed by Muehlebach against American Express, charging that plaintiffs had been deprived of substantial business because defendants had misrepresented to plaintiffs’ customers that plaintiffs could not accommodate such customers, when in fact it could have accommodated such customers. The petition stated that damages could not be determined until plaintiffs obtained the records from defendants of the number of such calls, but alleged that damages were at least $1,000.00. The petition also charged that the false advice to customers was deliberate, intentional and malicious and sought punitive damages of $2,500,000.00.

By an amended petition, Reservations was named a party defendant. The amended petition charged that Reservations had given false information to potential Muehlebach customers as “the result of an agreement between it and [American Express], both defendants having conspired together against plaintiff immediately after they were notified on January 30,1973 that plaintiff was cancelling the agreements previously entered into by plaintiff * *.”

Again the petition prayed for $1,000 actual and $2,500,000 punitive damages. Both defendants filed what were essentially general denials and the case was tried on such pleadings.

A further understanding as to the basis of plaintiffs’ claim as well as to the defense offered requires some detail as to the operation of the Space Bank Reservation Service.

The basic instrument of the system was a computer, located in Phoenix, Arizona, in which was stored data concerning all hotels and motels which belonged to the Space Bank system. Telephone calls from persons seeking reservations for accommodations were received by operators, employed by Reservations, located at Memphis, Tennessee. Each of some 200 to 250 operators had a telephone, a computer terminal and a manually operated “microfiche” viewer which displayed microfilmed information covering addresses, rates, types of rooms, etc., of member hotels. Upon receipt of a request for information or for a reservation, the operator would type the request, which would then appear on a cathode ray tube. The operator sends the message to the computer by depressing the “send” key. The computer responds and its response is displayed on the screen.

Operators were instructed to respond to callers in the language in which the reply appeared on the screen.

When the system was originally set up in 1968 it operated on what was known as a “single threading” computer program concept known as Space Bank System I. Under such program, only one message could be handled by the computer at a single time. In 1970, steps were begun to convert to a “multiple threading” system (SBS II), in which a large number of messages could be handled simultaneously by the computer. Design and implementation of the new program took some 2½ years. The new system was considerably more complicated than the old, evidenced by the fact that the program for SBS I required six volumes whereas that for SBS II required 15 to 18 volumes.

One response programmed into SBS I was “Location Not Open.” This response indicated that the hotel was not “presently on the Space Bank System.” By directive dated April 13, 1972, Harvey Dice, Director of Reservation Services, advised Reservation Managers: “When this response is received, please advise your Reservation Agents to advise guests that ‘The Hotel is not being served by Space Bank at the present time.’

“Agents should not try to guess why the hotel is not being serviced by Space Bank, just state it isn’t being serviced.”

When SBS II went into operation in February, 1973, the “Location Not Open” response no longer appeared.

According to Robert Vanderven, an employee of American Express who directed the development and maintenance of computer “software,” was in charge of the programming for SBS I, and who worked on SBS II, the response “Location Not Open” was not programmed into SBS II. The response “Not Available” was programmed into SBS I to be used whenever a hotel closed out to the system for any reason. The “Location Not Open” applied when the hotel had been “taken off-line.” In the SBS II programming, the response “Not Available” was applied in both situations.According to Vanderven, there was no intentional change and if any came about it was “due to an oversight.”

On November 16, 1973, following the filing of this action, Dice notified Reservation Managers that on November 24, a new computer response “Not available on system” would be “loaded on our system.” One of the situations to which the response applied was when the hotel destination is “closed” because it has voluntarily removed itself from the system or because it had been removed involuntarily. Operators were directed that when such response appeared, they should inform the caller: “The hotel is not available on our system.”

Miss Jane Carlson, who was employed by Reservations as an agent in February, 1972, became a lead agent in July, 1972, and an instructor in April, 1973, testified that reservation agents were instructed to give only the response which appeared on the tube. As lead agent, she monitored responses given by other agents and corrected them when they failed to follow instructions. When the response “Not available” appeared, the agent was directed to say, “I’m sorry that hotel is not available.” The agent was directed to offer accommodations at other hotels in the vicinity. According to Miss Carlson, the response “Not available” * * * “meant that I couldn’t sell a room.” She conceded that a caller might take the response to mean that the hotel had no rooms to sell.

A printout of computer transactions relative to the Muehlebach revealed that between May 23 and October 21, 1973, the computer was accessed for availability checks 487 room nights and attempted sale on 336 room nights.

According to both Vanderven and Miss Carlson, the “not available” response was not applied exclusively to the Muehlebach but was applied equally to any hotel placed “off-line.”

Plaintiffs’ claim was submitted by the following verdict-directing instruction:

“Your verdict must be for plaintiffs and against both defendants if you believe:
“ ‘First, employees in charge of the computer installation of the Space Bank were employees of defendant, American Express Company, and
“ ‘Second, said computer installation in Phoenix, Arizona forwarded the “not available” response to defendant Reservations in Memphis, Tennessee, and
“ ‘Third, defendant Reservations gave prospective customers of Hotel Muehlebach said “not available” response on dates when rooms in said hotel were available, and
“ ‘Fourth, said response deprived plaintiffs of business from prospective customers, and
“ ‘Fifth, as a result of such response, plaintiffs were damaged.’”

In this court, appellants first complain that the theory of recovery pleaded by plaintiffs was that of conspiracy and that there was no evidence of any agreement or conspiracy between appellants to injure respondents.

Respondents do not rely upon evidence of conspiracy but assert that they were entitled to ignore the conspiracy allegation and proceed against the appellants as joint tort feasors, relying upon such a rule stated in Gruenewaelder v. Wintermann, 360 S.W.2d 678, 688[3] (Mo.1962). As appellants’ reply brief points out, Gruenewaelder did not involve a petition which alleged conspiracy (360 S.W.2d at 687[2]), so that the statement of the rule relied upon by respondents was purely dictum. Gruenewaelder quoted the rule relied upon from Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998, 1001[3, 4] (1934). In that case there was also evidence to support the conspiracy but the petition also charged wrongful acts to each of the defendants. In this case, the wrongful act charged was misrepresentation by Reservations as to availability of accommodations at the Muehlebach. The only wrong charged against American Express is by way of the conspiracy allegation.

In their brief, respondents assert that the appellants are jointly liable because American Express loaded the false “Not Available” response into the computer and Reservations is liable because it disseminated the false information. Thus, although the rule relied upon by respondents would permit proof of the charge against Reservations without regard to the conspiracy allegation, the same situation does not exist with respect to American Express. However, the only argument advanced here is in favor of a directed verdict as to both appellants. In such circumstances this court would treat the pleading as amended to conform with the proof and deny this allegation of error.

Appellants also argue that a verdict for defendants should have been directed because the evidence showed that the proximate cause of any loss to plaintiffs was their failure to pay their bill. Although the plaintiffs’ default may have given rise to a right to cancel the Muehlebach’s membership in the system, it did not give defendants a right to provide false information calculated to discourage future transactions between the hotel and its potential customers. That is the essence of the plaintiffs’ complaint.

Appellants’ second point is directed at the sufficiency of the plaintiffs’ verdict-directing instruction, quoted above. Appellants contend that the instruction did not submit elements of an intentional tort and failed to submit essential elements for a claim of tortious interference.

The parties here have not undertaken to categorize the plaintiffs’ claim. The respondents describe this action as one charging “a willful tort.” However, their verdict-directing instruction makes no reference to any state of mind on the part of the defendants’ officers or agents which might be characterized as “willful.”

A distinguished writer has stated: “There is no necessity whatever that a tort must have a name.” Prosser on Torts (4th ed.) § 1, p. 3 (1971). However, he has provided a fairly extensive categorization of the situations in which the law affords relief for injurious conduct. One of such categories is “Injurious Falsehood.” Id., § 128, pp. 915-926. The Restatement recognizes such category of conduct as affording a basis for liability in tort. 3 Restatement of Torts, Second, Ch. 28, §§ 623A-652, pp. 332-403 (1977). The Restatement states the general principle of liability in this area as follows, Id., § 623A, p. 334:

“One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if
“(a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
“(b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.”

Prosser describes the wrong of “injurious falsehood” as consisting of “the publication of matter derogatory to the plaintiff’s * * business in general, * * * of a 'kind calculated to prevent others from dealing with him, * * Op. cit., § 128, pp. 919-920.

That this is the essential basis of plaintiffs’ complaint is clear from the following allegation in their petition:

“By reason of defendant Reservations so misrepresenting to plaintiff’s customers that plaintiff could not accommodate such customers, when in fact plaintiff could have accommodated such customers, plaintiff has been deprived of substantial business and has suffered substantial damage, * *

In this case, plaintiffs’ submission was upon what was, in effect, a strict liability theory for publication of the false information. The Restatément originally adopted this theory of liability. Restatement of Torts § 625 (1938). However, the Restatement Second has rejected the strict liability in favor of the view expressed in § 623A, quoted above. Prosser likewise rejects the strict liability theory, Op. cit., § 128, pp. 921-922.

Restatement of Torts Second, § 651, pp. 371-372, states in part:

“§ 651. Burden of Proof
“(1) In an action for injurious falsehood the plaintiff has the burden of proving, when the issue is properly raised,
“(a) the existence and extent of the legally protected interest of the plaintiff affected by the falsehood;
“(b) the injurious character of the falsehood;
“(c) the falsity of the statement;
“(d) publication of the falsehood;
“(e) that the circumstances under which the publication was made were such as to make reliance on it by a third person reasonably foreseeable;
“(f) the recipient’s understanding of the communication in its injurious sense;
“(g) the recipient’s understanding of the communication as applicable to the plaintiff’s interests;
“(h) the pecuniary loss resulting from the publication;
“(i) the defendant’s knowledge of the falsity of the statement or his reckless disregard as to its truth or falsity; * * *.”
§ 652 states in part (p. 375):
“§ 652. Function of Court and Jury
“(2) Subject to the control of the court, when the issue arises, the jury determines whether,
“(a) the statement complained of was understood by the recipient as disparaging or otherwise injurious;
“(b) the statement was understood to be published of and concerning the plaintiff’s interest;
“(c) the statement was false;
“(d) the circumstances were such as to make reliance on the publication by a third person reasonably foreseeable;
“(e) the publication caused pecuniary loss to the plaintiff, and if so, its extent;
“(f) the defendant had knowledge of the falsity of the statement or acted in reckless disregard of its truth or falsity; * *

Appellants’ complaint that the verdict-directing instruction given in this case failed to require findings upon essential elements of the plaintiffs’ ease is valid. The tort of injurious falsehood involves, at least, legal malice. Shapiro v. La Morta, 40 The Times L.R. 201 (Ct.App.1923). As Prosser expresses it (op. cit. pp. 921-922):

“ * * * There is liability when the defendant acts for a spite motive, and out of a desire to do harm for its own sake; and equally so when he acts for the purpose of doing harm to the interests of the plaintiff in a manner in which he is not privileged so to interfere. There is also liability when the defendant knows that what he says is false, regardless of whether he has an ill motive or intends to affect the plaintiff at all. The deliberate liar must take the risk that his statement will prove to be economically damaging to others; and there is something like the ‘scienter’ found in an action of deceit. Any of these three is sufficient to constitute ‘malice’ and support the action. But in the absence of any of the three there is no liability, where the defendant has made his utterance in good faith, even though he may have been negligent in failing to ascertain the facts before he made it.”

In this case, respondents produced no evidence of a spite motive, made clear by the abandonment of a conspiracy theory. They produced no evidence of purposeful harm to respondents by appellants. Therefore, the respondents were entitled to succeed in this case only if appellants knew that the “not available” response was false or if appellants acted in “reckless disregard” of the truth or falsity of the “not available” response.

Respondents’ verdict-directing instruction failed to submit any such issue to the jury. The instruction assumes that the response was false. That was also a matter which the jury should have been called upon to decide.

Absent proof of responsibility of one defendant for acts of the other, any verdict-directing instruction must require a finding against each defendant of the requisite elements of the offense, if both are to be held liable.

For error in the verdict-directing instruction, the judgment must be reversed.

Appellants contend that their motion for judgment should have been sustained because plaintiffs failed to prove the fact and amount of damages.

Proof of pecuniary loss is an element of a claim for damages for injurious falsehood. Restatement, § 651(h), supra.

“(2) This pecuniary loss may be established by
“(a) proof of the conduct of specific persons, or
“(b) proof that the loss has resulted from the conduct of a number of. persons whom it is impossible to identify.” Restatement 2d, § 633, p. 355.

Comment (h) to this section states (p. 357):

“h. Widely disseminated injurious falsehood may, however, cause serious and genuine pecuniary loss by affecting the conduct of a number of persons whom the plaintiff is unable to identify and so depriving him of a market that he would otherwise have found. When this can be shown with reasonable certainty, the rule requiring the identification of specific purchasers is relaxed and recovery is permitted for the loss of the market. As in analogous cases involving the loss of profits of an established business, as the result of other torts or of breach of contract, this may be proved by circumstantial evidence showing that the loss has in fact occurred, and eliminating other causes.”

In this ease, Mr. Hitz testified to two theories of damage. One attributed the decrease of 12,830 room nights for the period in question below that for the comparable period for the preceding year and computed the loss of profits on that basis at some $200,000.00. Rather obviously, the jury rejected that theory. Evidence of damage on this theory is clearly too speculative to admit of a calculation on this ground. Upon proper objection, evidence in support of this theory should not be received on a new trial.

Hitz’s second theory was based upon the assumption that the Muehlebach lost 823 room nights, the total nights shown by the computer printout for which reservations had been requested or inquiries made of Space Bank between June 1 and October 31, 1973. He computed a loss of profits for room rental of $16,297, being 90% of the anticipated room rental. He stated that because the hotel staff was already in place, no additional help would have been required, thus justifying his high rate of profit estimate. He also figured what the profit would have been on food and beverage sales to the lost customers, based upon the percentage which such sales bore to room rentals for the year 1973 and the rate of profit shown for such operations. These computations produced a loss of $8,039 profit on food sales and $3,039 on beverages.

This evidence sufficed to meet plaintiffs’ burden in this case. The circumstances here were such as to permit a method of proof of lost profits analogous to that in breach of contract cases. Prosser, op. cit., § 128, p. 923. See Plas-Chem Corporation v. Solmica, Inc., 434 S.W.2d 522, 526 (Mo. 1968).

Defendants did offer an alternative computation, based upon the assumption that the Muehlebach lost 653 room nights during the period it was “off-line.” Defendants’ computation of profit from such loss of room sales was $11,372.05. No computation was made of loss from food and beverage sales. Defendants also offered evidence concerning changes in the hotel situation in Kansas City which might have affected the Muehlebach operation during the period in question. However, the evidence was not of such a nature as to require a finding as a matter of law that plaintiffs had failed to relate their loss to the actions of defendants complained of.

Appellants contend that the damage instruction was erroneous because of the alteration of MAI 4.01 to permit recovery for damages “sustained as a direct result of the occurrences mentioned in the evidence.” Appellants contend that the use of the plural rather than the singular “occurrence,” as in MAI 4.01 resulted in error because there was evidence of loss of business by the Muehlebach for which the defendants could not have been liable. Specifically, appellants refer to the evidence of increased competition and other factors, alluded to above.

Appellants rely on the Notes on Use to MAI 4.01 which call for a “descriptive term” to be applied to the word “occurrence” when there is evidence that there were more than one occurrence resulting in damage but the defendants were responsible for only one. They state:

“A properly modified MAI 4.01 would have made it clear to the jury that plaintiffs could not be awarded damages for the Muehlebach’s entire loss of business as contemplated by Plaintiffs’ Exhibit 38.”

As above noted, it is abundantly clear that the jury rejected the theory of damages based upon Exhibit 38, in which plaintiffs calculated their loss at in excess of $200,000.00. In this case, the failure to modify MAI 4.01 to direct the jury’s attention to the “occurrence” for which the defendants might have been liable may have been at the most harmless error. Crawford v. Smith, 470 S.W.2d 529, 534 (Mo.banc 1971). However, upon a retrial the admonition of the Notes on Use to MAI 4.01 should be heeded.

Appellants attack the submission of the issue of punitive damages, both for lack of evidence to support the submission and for defects in the instruction submitting the issue.

The claimed lack of evidence is directed primarily to the absence of evidence of actual malice. However, the plaintiffs relied upon legal malice in their submission. Missouri, of course, recognizes legal malice as sufficient to support a claim for punitive damages. Beggs v. Universal C. I. T. Credit Corporation, 409 S.W.2d 719, 722-723[2-4] (Mo.1966). Appellants offer no authority supporting the disallowance of punitive damages on such basis in an action such as this. See Foster v. Chicago, B. & Q. R. Co., 321 Mo. 1202, 14 S.W.2d 561, 572[7-9] (1928).

Appellants assert that the evidence showed at most only negligence on their part, insufficient to support a claim for punitive damages. That conclusion is premised primarily upon the defendants’ evidence. The jury was not obliged to accept defendants’ evidence and this court looks, on this argument, only at the evidence favorable to the jury’s action.

The complaint against the form of the plaintiffs’ instruction on this issue is meritorious. The instruction given was as follows:

“INSTRUCTION NO. 6
“If you find the issues in favor of plaintiffs, and if you believe that the conduct of the defendants as submitted in Instruction No. 3 showed complete indifference to or conscious disregard for the consequences to others, you may assess punitive damages in addition to any damages assessed under Instruction No. 5.
“If punitive damages are assessed against more than one defendant, the amounts assessed against such defendants may be the same or they may be different. The amount of punitive damages assessed against any defendant may be such sum as you believe will serve to punish that defendant and to deter him and others from like conduct.”

This is MAI 10.03 modified by substitution of “conduct of the defendants” for the language “conduct of one or more of the defendants” in the first paragraph. MAI 10.03 is designed for use when two or more defendants are involved. The defendants had the right to have their conduct considered separately for the purpose of determining whether or not punitive damages should be awarded. Fordyce v. Montgomery, 424 S.W.2d 746, 751[6-8] (Mo.App. 1968). The second paragraph of the instruction as given does accord defendants this right but the alteration of the first paragraph was unauthorized and is a deviation from MAI which is error.

Appellants also contend that the applicable MAI was 10.03, using the language “was willful, wanton or malicious” (MAI 10.01), accompanied by the definition of “malice” in MAI 16.01, rather than the language “showed complete indifference to or conscious disregard for the [consequences to] others” (MAI 10.02). Having concluded that the instruction given was erroneous, this claim of error need not be pursued. However, New Notes on Use to MAI 10.01 and MAI 10.02 (33 Jour.Mo.Bar, p. 453 (1977)), effective January 1, 1978, clearly infer that 10.01 and the alternative language thereof in 10.03 are to be used in cases of “intentional tort,” with MAI 10.02 being the appropriate form for submission of punitive damages when the claim for actual damages is submitted on ordinary negligence. See Sharp v. Robberson, 495 S.W.2d 394 (Mo.banc 1973). That directive would, of course, be applicable upon a new trial of this cause.

Appellants finally contend that the trial court erred in admitting the taped recording of the calls made by Muehlebach personnel to Reservations, requesting reservations at the Muehlebach. When the matter of the tapes was presented prior to the opening statements, counsel for appellants objected to their use in evidence on two grounds: 1. Entrapment. 2. Invasion of privacy. That was stated as a continuing objection and no further objection was voiced when the tape was played to the jury. Appellants are limited to those grounds of objection so that there is no need to consider the claim now voiced of lack of adequate foundation to show that similar response was made when calls were made by others. Appellants have presented no authority in support of their entrapment objection. They admit that a party to a conversation is privileged to record it. Smith v. Cincinnati Post & Times-Star, 475 F.2d 740, 741 (6th Cir. 1973). As there stated: “Each party to a conversation, telephonic or otherwise, takes the risk that the other party may divulge the contents of that conversation, and should that happen, there has been no violation of the right of privacy.” See United States v. Phillips, 540 F.2d 319, 327, fn. 5 (8th Cir. 1976). No error has been shown in this regard.

The judgment of the trial court is reversed and the cause is remanded for a new trial on all issues.

Reversed and remanded.

All concur.


author: TURNAGE, Judge.

text:
    MIDWEST MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. THE AETNA CASUALTY & SURETY COMPANY, Defendant-Respondent.
    No. KCD 29454.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Rehearing Denied May 1, 1978.
    Robert G. Oberlander, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for plaintiff-appellant.
    John R. Gibson, John R. Sims, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

This case presents the question of the individual liability of insurance carriers when there are multiple policies affording uninsured motorist coverage to an insured.

Midwest Mutual issued a policy of insurance covering Phil R. Banks in the operation of a motorcycle. This policy contained $10,000 coverage for uninsured motorist damages. Banks was also covered as an insured under an automobile policy issued to his stepfather in whose home he resided. This policy was issued by Aetna and likewise afforded $10,000 uninsured motorist coverage.

After suffering injuries in a collision with an uninsured motorist, Banks effected a settlement of $4,500 with Midwest. On the failure of Aetna to contribute one-half of this amount, Midwest filed suit. Both Midwest and Aetna moved for summary judgment. The court granted the motion of Aetna and Midwest appeals.

On this appeal both parties argue the effect of the “other insurance” clause in the Aetna policy and meet on the battleground of whether Aetna’s policy provided only “excess” coverage or “pro rata” coverage with Midwest. Reversed.

The cause was submitted on a stipulation of facts. Aetna’s policy with reference to uninsured motorist coverage contained an “other insurance” clause identical to that set out in Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463, 466[1] (Mo.App.1973). In that case the court held such clause was void because it was against the public policy as declared in § 379.203, RSMo 1975 Supp. No question is raised as to the coverage of Banks under the Aetna policy except the policy question discussed.

In fact all limitations on the $10,000 uninsured motorist coverage mandated by § 379.203 have been struck down in this State. Steinhaeufel, supra; Galloway v. Farmers Insurance Company Inc., 523 S.W.2d 339 (Mo.App.1975); Cameron Mutual Insurance Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976); Douthet v. State Farm Mutual Auto Insurance Co., 546 S.W.2d 156 (Mo. banc 1977); Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148 (Mo.App.1972). Thus the battleground the parties have chosen does not exist in Missouri because the provisions in Aetna’s policy which purport to limit its obligation to Banks for uninsured motorist coverage do not exist. In short, Aetna’s policy afforded a full $10,000 uninsured motorist coverage to Banks the same as the Midwest policy. Thus, the question is not whether Midwest is a primary carrier or whether Aetna is an excess carrier or whether Aetna’s coverage is only pro rata with Midwest. By reason of the removal of all restrictions on uninsured motorist coverage, each policy involved here afforded Banks $10,000 in uninsured motorist coverage.

The only comparable cases this court has located are Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966) and Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972). In Sellers the Florida Supreme Court indicated that under Paragraph 4 of that State’s uninsured motorist statute, which is almost identical to Paragraph 4 of § 379.203, multiple insurers were required to prorate among themselves any payment made. The court there stated at 185 So.2d 692 “if there exists more than one automobile liability insurance policy protecting the same insured, then in case of loss each of the insurers would, under general law relating to insurance and paragraph number 4 of the statute, prorate the amount paid to cover the loss of the insured.” The court pointed out an insured should not be delayed or frustrated in having his claim settled by reason of having multiple coverage. The court stated the insured could pursue any one or more of the policies which covered his claim, of course limiting the coverage under any one policy to its limits. The court also stated each insurer could properly insist that it be informed of the total amount of the loss suffered by the insured and whether or not the insured had other coverage for such loss. The court further stated that as a practical matter when settlement or recovery of a loss between an insured and an insurer had taken place it would then be in order for the insurers to make proration inter se.

In Allstate the insured party was covered by a $10,000 uninsured motorist policy issued by Allstate on the automobile she occupied. She and her husband were likewise covered for uninsured motorist injuries by a policy on their own automobile issued by Dairyland in the amount of $15,000. The insured made settlement with Allstate in the amount of $3,750. Although Allstate demanded Dairyland participate it declined to do so. The court held that under Sellers Dairyland was required to pay 60% of the amount paid the insured since Dairyland provided 60% of the total coverage available to the insured.

A similar case is Public Service Mutual Insurance Company v. Katcher, 36 N.Y.2d 295, 367 N.Y.S.2d 752, 327 N.E.2d 799 (1975). There the court held two insurers with policies which afforded uninsured motorist coverage in equal amounts were obligated to contribute equally to the payment of a claim.

This court finds the Sellers and Allstate cases to be persuasive and to lead to the result which will produce the least confusion and bring about a speedy and just result in cases involving multiple coverage of uninsured motorist claims.

Aetna placed most of its reliance in the trial court on Commercial Union Ins. Co. v. Farmers Mut. Fire Ins. Co., 457 S.W.2d 224 (Mo.App.1970). That case involved a fire insurance policy with a pro rata clause. The court held contribution was not available because neither company was obligated to pay the whole loss. The policies only obligated each company to pay a specific amount depending upon the loss and the proration and they were not under a common burden or liability to pay the whole.

In contrast to Commercial Union, the obligation of each policy in the case of multiple policies affording uninsured motorist coverage is to pay the full limit of its liability. The proration of liability under Sellers and Allstate, adopted by this court herein, should not be confused with the pro rata fire policy involved in Commercial Union. The pro rata fire policy limited the liability of the company to a certain percent of the loss. The company was not liable for the full amount of loss under any circumstance. On the contrary in this case both Midwest and Aetna are liable up to the full amount of their policies. However, under the subrogation provision of Paragraph 4 of § 379.203, the company which pays is entitled to recover the pro rata part of the loss from every other company which has a policy covering the loss. The pro rata in this instance simply means the proportion of the total policy coverage represented by the policy limit of each company. Thus the proration in this case applies only to determine the contribution to be paid by each insurer to the carrier who pays the loss.

The policies in this case are not pro rata as the policies were in Commercial Union. Here, by reason of all exclusionary clauses having been eliminated, both Midwest and Aetna afforded a full $10,000 uninsured motorist coverage to Banks. Here both insurers were under a common burden or obligation. The equities of the insurers in this case are equal. In that situation contribution applies. Commercial Union, supra, at 457 S.W.2d 227[5, 6].

Another argument advanced by Aet-na is that Midwest was a volunteer when it paid Banks. However, Midwest could not be a volunteer when it was under a legal obligation to pay Banks. Yore v. Yore, 240 Mo. 451, 144 S.W. 847, 850[3-5] (1912).

For the reasons heretofore stated, the court erred in granting summary judgment to Aetna. Summary judgment should be granted to Midwest. The judgment is reversed and the court is instructed to sustain the motion of Midwest praying for summary judgment and to enter judgment thereon in the amount of $2,250 together with costs and to deny the motion for summary judgment filed by Aetna.

All concur.

      . In the event of payment to any person under the coverage required by' this section, and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer; provided, however, with respect to payments made by reason of the coverage described in subsections 2 and 3 above, the insurer making such payment shall not be entitled to any right of recovery against such tortfeasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tortfeasor.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Virgil F. COLLEY and Imogene W. Colley, Plaintiffs-Appellants, v. COMMERCIAL CREDIT EQUIPMENT CORPORATION, Defendant-Respondent.
    No. KCD 27658.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      Howard D. Lay, Donaldson & Lay, Kansas City, for plaintiffs-appellants.
    James W. Benjamin, John C. Cozad, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for defendant-respondent.
    Before WELBORN, Special Judge, Presiding, SHANGLER, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by Virgil F. Colley, Count I, and by Imogene W. Colley, Count II, for actual and punitive damages for wrongful execution on judgment subsequently declared void. Appeal from summary judgment of dismissal. The question is whether this action for damages has been extinguished by restitution in the course of other litigation between the parties. Affirmed.

On October 7, 1963, and on May 8, 1964, Virgil F. and Imogene W. Colley executed documents for the lease from Commercial Credit Equipment Corporation of specified items of machinery and equipment to be used and installed on their farm in Clinton County. In 1966, in Clinton County Circuit Court Number C4936, CCEC sued Mr. and Mrs. Colley to recover balances due on the leases; Mr. and Mrs. Colley answered and counterclaimed for damages for fraud and misrepresentation in creation of the leases.

On May 8, 1969, cause C4936 came on for hearing on motion of CCEC for. summary judgment. Mr. and Mrs. Colley, asserting knowledge and information of prejudice obtained May 8, 1969, moved for disqualification of the judge, the Honorable John M. Yeaman. The court denied the application for change of judge; sustained the motion for summary judgment in favor of CCEC, and then disqualified himself. Defendants, without benefit of supersedeas bond, took an appeal which was dismissed by the Supreme Court April 13, 1970, for failure to file a transcript.

On May 8, 1970, CCEC caused execution to issue on the summary judgment of May 8, 1969, in C4936. On June 17, 1970, Mr. and Mrs. Colley moved to quash or stay the execution on the ground the court, Judge Yeaman, was without jurisdiction to enter the summary judgment of May 8, 1969. The motion to quash came on for hearing September 25, 1970, and was overruled by the court, the Honorable Frank D. Connett, Jr. Defendants, again without filing super-sedeas bond, appealed to the Missouri Court of Appeals, Kansas City District.

On November 19, 1970, execution was accomplished, and Mr. and Mrs. Colley were caused to, and did on January 5, 1971, pay the judgment in C4936, together with interest, costs and commission.

On October 2, 1972, the court of appeals held the trial court, Judge Yeaman, was without jurisdiction to enter the summary judgment of May 8, 1969, and that the motion to quash or stay execution on the judgment thus void should have been sustained by Judge Connett. Accordingly, the cause, C4936, was “remanded to the trial court with directions to set aside the order and judgment [of May 8,1969] granting the plaintiff summary judgment and reinstate the cause on the trial docket.” Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625, 628 (Mo.App.1972). (CCEC v. Colley I.)

On October 19, 1972, Mr. and Mrs. Colley filed, in C4936, their Motion to Follow Court of Appeals Opinion, For Restitution and to Recover Costs of Successful Appeal. The motion came on for hearing December 8, 1972. The court, the Honorable William H. Kimberlin, sustained the motion and ordered CCEC to make restitution of all monies received by it by reason of execution and levy enforcing the previous void judgment with interest since January 5, 1972, together with refund of court costs incurred by defendants on their successful appeal. Mr. and Mrs. Colley acknowledged restitution in full December 21, 1972.

On January 23, 1973, CCEC obtained a change of venue of cause C4936 from Clinton County to Buchanan County.

On October 23 and February 7, 1974, Mr. and Mrs. Colley filed first and second amended answers and counterclaims in which they denied plaintiff’s right to recover on the leases and asserted fraud and misrepresentation in the procurement of the leases.

On February 13, 1974, the cause came on for retrial. Counts I and II of plaintiff’s petition and Counts I and II and defendants’ answer and counterclaim raised the question whether the agreements in issue were leases as contended by CCEC or conditional sales as contended by Mr. and Mrs. Colley. The court found them to be conditional sales and directed a verdict for Mr. & Mrs. Colley on Counts I and II of plaintiff’s petition and Counts I and II of their counterclaim. Mr. and Mrs. Colley had jury verdict for $16,000 on Count III of their counterclaim for actual and punitive damages for fraud. Judgment was entered pursuant to the directed and jury verdicts and CCEC appealed. On August 30, 1976 (rehearing denied October 12, 1976), the court of appeals held that the instruments in question were leases as contended by CCEC and not subject to provisions of the Conditional Sales Act; and that CCEC did not preserve any error with respect to the judgment for Mr. and Mrs. Colley on their counterclaim for damages. Accordingly, the judgment for Mr. and Mrs. Colley on their counterclaim was affirmed; the judgment against plaintiff for recovery of balances due on the leases was reversed, and the cause was remanded. Commercial Credit Equipment Corp. v. Colley, 542 S.W.2d 329 (Mo.App.1976). (CCEC v. Col-ley II.)

On February 21, 1974, Mr. and Mrs. Col-ley filed this present separate action against CCEC in the Circuit Court of Jackson County alleging actual damages by way of attorney’s fees in attempting to quash the execution, prosecuting appeals and obtaining restitution, and punitive damages for physical and mental anguish, loss of standing and humiliation as a result of the execution on the void judgment.

On June 15, 1974, Mr. and Mrs. Colley moved for summary judgment on the issue of liability; and on July 29, 1974, CCEC moved for summary judgment and dismissal on various theories upon which defendant would have no further liability to plaintiffs for damages as a result of the prior void judgment.

The trial court gave no reasons in support of its summary judgment for defendant and dismissal of plaintiffs’ action.

Appellants contend the court erred asserting their action for damages is separate and not part of nor affected by the prior proceedings for restitution following the void judgment. They argue that their restitution flowed from the mandate of the Court of Appeals in CCEC v. Colley I, and their right to restitution did not provide a forum or remedy to recover for their collection of an illegal summary judgment.

The foregoing places this case in posture with Pankey v. Welker, 238 S.W.2d 915 (Mo.App.1951). Mr. and Mrs. Welker had a money judgment against Mrs. Pankey. Mrs. Pankey, without supersedeas, appealed; the Welkers caused execution to issue, and real estate belonging to Mrs. Pankey was sold to satisfy the execution. Subsequently, in Welker v. Pankey, 225 S.W.2d 505 (Mo.App.1949), the Welkers’ judgment against Mrs. Pankey was reversed and the cause was remanded by mandate which, among other things, directed that Mrs. Pan-key “ ‘be restored to all things she has lost by reason of the said judgment.’ ” 238 S.W.2d l.c. 916. Thereafter, Mrs. Pankey filed a motion for restitution to restore her to her pretrial status in accordance with the mandate of the court of appeals. The court sustained her motion and ordered restitution in sum $1,250.71. The Welkers did not comply with the order of restitution; Mrs. Pankey then sued them in a separate action for damages in sum $2,000 occasioned by their sale of her real estate pending her appeal of their judgment against her. The Welkers successfully moved to dismiss this separate suit filed by Mrs. Pankey on the theory that the order of' restitution was a bar to the present independent action for damages. The dismissal was affirmed because “ ‘[t]he decision of the motion for restitution is in the nature of a judgment, * * * it could have been enforced by execution: * * * There is no doubt that the result of a litigation which takes the form of a motion may constitute a bar to another action involving the same question. * * * That in the first instance the plaintiff had a right of either form of action [motion or independent action] cannot be doubted * * * but, having elected to resort to its motion, it is bound by the decision thereon.’ ” 238 S.W.2d l.c. 917-918.

Appellants cite authorities, e. g., 5 Am. Jur.2d Appeal and Error, § 1003 et seq.; Lucas v. Lamb, 348 Mo. 900,156 S.W.2d 634 (1941); De Mayo v. Lyons, 360 Mo. 512, 228 S.W.2d 691 (1950); Brown v. Curtiss, 155 Mo.App. 376, 137 S.W. 24 (1911), to effect that damages resulting from harm to reputation and occupation, on execution process, and those of a similar nature, are generally outside the scope of recovery in an action for restitution, to support their contention that their right to restitution did not provide a forum or remedy to recovery for their attorney’s fees and for their vexation.

Mr. and Mrs. Colley elected to seek restitution in the original action in redress of a wrongful execution as opposed to an action for damages for redress of a wrongful execution, and any such action for damages was thus barred. Pankey v. Welker, supra. They could have elected to make the broader claim now asserted in which case it would have been a compulsory counterclaim under Rule 55.32. Cantrell v. City of Ca-ruthersville, 359 Mo. 282, 221 S.W.2d 471 (1949). To permit the Colleys to assert the subsequent Jackson County claim in this context would be to permit “piecemeal submission” of the Colleys’ claims and “defeat the purpose” of the rule. Shepherd v. Wommack, 251 S.W.2d 172, 175 (Mo.App. 1953).

Judgment affirmed. All concur.