author:
RENDLEN, Judge.
      DONNELLY, Judge, SEILER, Judge,

text:
    STATE of Missouri, Respondent, v. David VALENTINE, Appellant.
    No. 60349.
    Supreme Court of Missouri, En Banc.
    July 17, 1979.

      Norman A. Seiner, Clayton, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Eric M. Martin, Asst. Atty. Gen., St. Louis, for respondent.

      . Section 559.225 was reclassified in the new criminal code as § 571.016, RSMo 1978. It reads in relevant part: “[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action . . .”

   RENDLEN, Judge.

David Valentine appeals his convictions of robbery in the first degree, § 560.120, RSMo 1969, and armed criminal action, § 559.225, RSMo Supp.1976, contending: (1) the armed criminal action charge under § 559.225 violates the constitutional protection against being twice put in jeopardy for the same offense, the statute is invalid under art. Ill, §§ 23 and 28, Mo.Const., and finally it is impermissibly vague and indefinite; (2) the court erred in permitting an eyewitness’ in-court identification and testimony as to her out-of-court identification; and (3) the court improperly admitted certain evidence seized in violation of appellant’s state and federal constitutional rights. The action was brought and appeal taken prior to the effective date of the newly adopted judicial article of the Missouri Constitution (January 2, 1979) and because it arguably could be said to involve certain issues requiring construction of constitutional provisions, we will entertain the cause under our appellate jurisdiction established in Mo.Const. art. V, § 3 (as amended 1970). We affirm.

On December 17, 1976, about six o’clock in the evening, a black male 25-30 years in age, approximately six feet two inches in height with a thin build and short Afro-style haircut entered the Tip Top Cleaners on Clayton Road in Richmond Heights, Missouri. Showing the clerk, Patricia Edwards, a pair of tan slacks he asked whether they could be cleaned the following day and when told they could, he produced a pistol and demanded the cash in the register. As soon as Miss Edwards complied, he ran from the front door with the money. At the time of this incident it was dark outside and the interior of the establishment was lighted. No other individuals were present in that part of the building and a fellow employee in the rear was unaware of the robbery at the time. Patricia Edwards notified the police of the robbery and provided them the gunman’s description.

Approximately one month later, on January 14, 1977, Detective Gerald Mueller of the University City Police was on a stakeout in an unmarked car about 5:30 p. m. in the 7500 block of Delmar Blvd. Several other officers were in the vicinity in unmarked cars near cleaning establishments in an effort to find the person or persons responsible for ten or eleven armed robberies in the preceding three to four weeks. Most of these robberies had occurred between five and six in the evening. The police thought two persons might be involved. Four composite pictures of holdup suspects had been prepared, and Detective Mueller was familiar with all of them. One of these pictures was prepared from Miss Edwards’ description.

During the stakeout Detective Mueller heard another detective say in a radio transmission that he had observed a white Mustang make several passes in front of one cleaning establishment near Mueller’s location. The detective stated it was suspicious and he was going to follow the auto; Detective Mueller moved in to help. A police captain patrolling in an unmarked car pulled behind the Mustang and stated in a radio transmission he intended to stop it and Mueller reached the location in time to assist. Detective Mueller observed no traffic violations or other infraction by the driver of the Mustang before it was stopped.

Appellant Valentine was driving the auto. The officers approached him with guns drawn and ordered him to the back of the car, where they patted him down for weapons. Shortly after he was stopped and before Detective Mueller searched the auto, appellant was advised he was under arrest. Observing appellant as he alighted from the car, Detective Mueller noted his resemblance to one of the composite photos. Also, appellant stated he was going to the Inner Belt (west of the arrest scene), but when arrested he was traveling eastward. One of the descriptions of suspects had mentioned a flat top hat, and when stopped, appellant was wearing a hat of that type.

Upon appellant’s arrest, his car was to be towed and pursuant to the standard procedure of the University City Police, Detective Mueller searched the interior of the vehicle finding a .25-caliber automatic pistol hidden near the firewall just above the transmission hump where part of the heater was missing. Appellant was conveyed to the St. Louis County jail following booking at University City police headquarters. After having been given his “Miranda ” warning and having signed a waiver form, appellant admitted that he participated in the robbery of the Tip Top Cleaners, but stated he merely drove the getaway car and that a friend, known to him only as Leroy, was his accomplice.

At the hearing on appellant’s motion to suppress identification testimony and physical evidence, Patrica Edwards testified that about 10:00 p. m. on the night of appellant’s arrest, Detective Ronald Pfeiffer of the Richmond Heights police stopped at Miss Edwards’ residence and asked her to accompany him to a lineup. There she looked at each of the men and identified appellant as the man who had robbed her that day. Miss Edwards testified appellant was the only man in the lineup who fit her description of the robber.

At trial, witness Edwards identified appellant to the jury as the armed robber without objection and testified without objection to her previous identification of him at the lineup. In addition, the State introduced, over appellant’s objection, the pistol found in defendant’s automobile, and Patricia Edwards was quite positive in her identification of the pistol as that used in the robbery.

I.

Appellant’s multi-faceted attack on the armed criminal action statute, § 559.225, RSMo Supp.1976, begins with the novel argument that the statute violates art. Ill, § 23 of the Missouri Constitution by addressing more than one subject, arguing that it does so by purporting to embrace every felony in which a weapon may be used and that these felonies comprise the numerous “subjects” of the armed criminal action law. Appellant’s semantical argument is without merit. The armed criminal action statute no more addresses many subjects than does the conspiracy statute (§ 564.016, RSMo 1978), the aiding and abetting statute (§ 562.041, RSMo 1978), or the felony murder statute (§ 565.-003, RSMo 1978). These and similar statutes make criminal and proscribe certain behavior done in connection with other crimes. Specifically, armed criminal action focuses on the use of dangerous or deadly weapons in felonies. This complies with the purpose of art. Ill, § 23, to limit a bill to one general subject and to afford reasonably definite information to legislators and the public concerning the subject matter of a legislative act. Accordingly, appellant’s argument fails. State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179 (banc 1950); Graff v. Priest, 356 Mo. 401, 201 S.W.2d 945 (1947). Appellant further contends the title of the bill enacting the armed criminal action statute violates the mandate of art. Ill, § 23, that “no bill shall contain more than one subject which shall be clearly expressed in its title . . . .” The argument is premised on his prior contention that the bill attempts to amend other statutes by indirect reference. For the reasons discussed above, appellant’s argument as to the bill’s title must also fail.

Appellant also claims that the statute, in violation of art. Ill, § 28 of the Missouri Constitution, invalidly attempts to amend many other statutes without setting forth in full the statutes so amended. This argument, as novel as the first, is similarly meritless. This Court in State v. Treadway, 558 S.W.2d 646, 652 (Mo. banc 1977), held that armed criminal action constitutes an offense separate and distinct from other offenses. Hence, the statute neither amends other felony statutes nor offends art. III, § 28.

It is next urged that charges of armed criminal action and armed robbery arising from the same incident put him twice in jeopardy for the same offense in violation of the fifth amendment to the United States Constitution and art. I, § 19 of the Missouri Constitution. Because the crime of robbery was committed only through the use of a deadly weapon — that is, the “putting in fear” element of the crime of robbery was accomplished only by brandishing a pistol — appellant argues the crime of armed criminal action does not comprise a distinct, separate offense in this case. In Treadway, this Court rejected an identical argument and in so doing compared the elements of first degree robbery (§ 560.120, RSMo 1969) (of which appellant here has been convicted) and armed criminal action, concluding that each crime contained elements not found in the other. 558 S.W.2d at 651-52. However, appellant claims that Treadway ignored the language of the penalty statute for first degree robbery, § 560.-135, RSMo 1969. That statute singled out robberies committed by means of dangerous or deadly weapons and explicitly set the same punishment for those robberies as well as for robberies committed “by any other means.” Treadway in appellant’s view ignores the legislative intent evidenced in § 560.135 that the punishment for robbery not be enhanced when a gun is used.

The principal flaw in appellant’s attack on Treadway is that it does not advance his double jeopardy claim. Whatever the legislative intent as to punishment for first degree robbery, the legislative result of the armed criminal action statute has been (as held in Treadway) to create a separate and distinct crime. Therefore appellant Valentine was not twice put in jeopardy for the same offense.

Finally, appellant presses the argument that § 559.225 is void for vagueness. From the brief we glean that appellant refers to the sentencing provisions applicable to second and third offenders under subsections 2 and 3 of the statute and to eligibility for parole under subsection 1. But appellant does not relate these provisions to his conviction, nor do we perceive from the record how they apply to the rights of appellant in this case. Such questions, if they have value, must await consideration in a proper case. One “to whom application of a statute is constitutional” cannot ordinarily raise the claims of others against whom “its application might be unconstitutional.” United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). The contention is denied.

II.

Appellant’s second attack on his conviction involves Patricia Edwards’ trial identification testimony. Although appellant’s brief concentrates on the allegedly suspect quality of the lineup about which Miss Edwards testified, appellant’s contention that the lineup was unduly suggestive has not been preserved for appeal as counsel did not object to such testimony at trial. State v. Holt, 465 S.W.2d 602, 604 (Mo. 1971). Nor did counsel object to the in-court identification. Further, in his opening statement and final argument to the jury, defense counsel referred to the alleged lineup deficiencies urging that Edwards had unwittingly been led to select appellant as the robber and asked the jury to conclude her identification was erroneous. Since counsel chose not to object but instead to exploit the alleged deficiencies at trial, appellant may not now be heard to complain of a chosen trial strategy. If it were otherwise the accused could trap the trial court with “error” of the accused’s own making or in which he joined or acquiesced.

On the other hand, counsel vigorously objected to the prosecution’s attempt to bolster Patricia Edwards’ identifications and now argues the court erred by allowing it. The challenged sequence of questions and answers was as follows:

Q. (Mr. Adler) Pat, in the month immediately preceeding [sic] December 17, 1976, right before, how many times were you robbed?
A. Twice.
Q. Now this Defendant is not the person that committed either of those robberies, is that correct?
A. Right.
Q. When those robberies were committed, did the police come and take reports?
A. Yes.
Q. And did they ask you certain questions?
A. Yes.
Q. They asked you to describe the person?
A. Yes.
Q. Did they ask you to tell them his height?
A. Yes.
Q. His weight? and his build?
A. (Nods.)
Q. Did they ask you about guns?
A. Yes.
******
Q. Did you remember the questions the police asked you when you were looking at the person who was robbing you December 17, 1976?
A. Yes.

Appellant contends that this line of inquiry introduced evidence of prior crimes and (1) “implied the highly questionable and prejudicial proposition that the identification witness was a cool and experienced observer in the face of a gun, simply because she had been robbed before and knew what to look for,” (2) “got across the highly inflammatory but non-probative information that the 17 year old female victim had been held up three times in one month,” and (3) “implied, although the prosecutor professed ardently that this was not his purpose, intent, or effect, that appellant was possibly implicated in all of the mentioned robberies.”

The rule against introducing evidence of other crimes (except for certain limited purposes) is designed to protect defendants from convictions founded on acts for which they are not on trial. The second question and answer, quoted above, obviated the danger that appellant would be connected with the prior robberies; the witness bluntly stated he was not.

Further the principle that irrelevant acts of third persons should be excluded from the trial (res inter alios acta) has no application here. While it has been said that proof of such collateral matters normally does not have relevance sufficient to outweigh its prejudicial effect, State v. Lamb, 468 S.W.2d 209, 211 (Mo.1971); State v. Cox, 360 S.W.2d 668, 671 (Mo.1962), in this case the focus of the line of questioning was Miss Edwards’ increased awareness of what to note about a suspect’s appearance, gained from prior experience and contact with police. This represented highly relevant information in view of defense counsel’s attack on her ability to remember the robber in his opening statement and on cross-examination. It was for the jury to decide whether it was “highly questionable” that Miss Edwards “was a cool and experienced observer in the face of a gun”; the testimony about her prior experience bore directly on that fact issue. And the witness’ identity as a 17 year old female might have engendered sympathy, but it was also exploited by defense counsel in his attempt to undermine her identification testimony in the minds of the jury.

From this we find no error in the admission of the above testimony as the prior actions were expressly dissociated from appellant and the testimony was relevant to the central issue of the identification of appellant. The contention is denied.

III.

For his third main point appellant decries the introduction of the gun in evidence claiming it was seized in violation of his rights under the fourth amendment to the U. S. Constitution and art. I, §§ 15 and 19 of the Missouri Constitution. He would invoke the exclusionary rule made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1960). It first should be noted that warrantless searches and seizures are presumptively invalid and that the State must justify such action on the basis of one of the “exceptions” to the requirement of a warrant. However, one such specific exception is controlling here. In South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 375, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000 (1976), the United States Supreme Court held that warrantless “police inventories of automobiles lawfully within governmental custody” are reasonable under the fourth amendment. The Court cited the authorities’ needs to safeguard an owner’s property while the auto remains in police custody, to protect against claims or disputes over lost or stolen property, and to guard against potential danger. Id. at 369, 96 S.Ct. 3092.

Fitting Opperman to our case requires that the lawfulness of police custody of the vehicle be demonstrated, which in turn begins with the legality of the stop and arrest. The information on which the University City police initially stopped Valentine’s car was a detective’s observation that the car had passed by, turned and again passed the same cleaning establishment several times at the same time of evening several earlier robberies had occurred, and it was because of the robbery problem in the neighborhood that several police cars were on “stake out.” Under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), this information was enough for an investigative stop. Once Valentine was stopped, the police needed no more than to see him as he alighted from his vehicle to establish probable cause for his arrest, because as Detective Mueller testified, he immediately noticed the resemblance of Valentine to one of the composite photos of wanted robbery suspects. Valentine’s obviously fabricated story of where he was going buttressed the cause to arrest him. When they had validly arrested Valentine, the police reasonably acted to secure his car by making the decision to tow it from the street, and only after that decision was made did Mueller search it. Mueller testified at the suppression hearing that when a car is to be towed a search like this is standard police procedure in University City. These circumstances place this case within the holding in Opperman, and appellant’s challenge under the United States and Missouri Constitutions must be rejected.

The judgment of the circuit court of St. Louis County is affirmed.

BARDGETT, C. J., MORGAN, J., and FINCH, Senior Judge, concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents in separate dissenting opinion filed.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

DONNELLY, Judge,

dissenting.

The principal opinion relies on South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), to support its conclusion that the search of appellant’s auto and seizure of the gun found hidden in the auto were not in violation of the Fourth Amendment to the United States Constitution. This reliance is misplaced.

A reading of Opperman and of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) indicates to me that the inventory search exception to the Fourth Amendment warrant requirement created by five members of the Court in Opperman is limited to searches and seizures made in a “non-criminal context.” See Opperman, 428 U.S. supra at 370, n.n. 5, 6, 96 S.Ct. 3097 at n.n. 5, 6 (opinion of Burger, C. J.), and at 382-383; 96 S.Ct. at 3103-3104 (Powell, J. concurring); Chadwick, 433 U.S. supra at 10, n. 5, 97 S.Ct. at 2483, n. 5. The search and seizure in the present case, by contrast, cannot be said to have occurred in a non-criminal context. Opperman, therefore, does not exempt the search and seizure which occurred in the present case from the warrant requirement of the Fourth Amendment.

We need not speculate whether the U. S. Supreme Court would exempt an inventory search in a criminal context from the warrant requirement of the Fourth Amendment. Appellant also challenges the search under Art. I, § 15 of the Missouri Constitution. This section provides:

“That the people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”

As Justices Marshall, Brennan, Stewart, and White pointed out, in dissent in Opperman, “this Court’s holding does not preclude a contrary resolution of this case or others involving the same issues under any applicable state law,” Opperman, 428 U.S. supra at 396, 96 S.Ct. at 3110; see also North Carolina v. Butler,-U.S.-, 99 S.Ct. 1755, 1759 n. 7, 60 L.Ed.2d 286 (1979). I would resolve the issue of “inventory searches” under Mo.Const. Art. I, § 15, in accordance with the views expressed by the dissenting opinion in Opperman. I would hold that no objects or information discovered in the course of a warrantless inventory search may be subsequently used in criminal proceedings unless the searchers had probable cause to believe that the vehicle or its contents represented a threat of physical harm.

The remedy in Missouri for illegal searches and seizures has long been exclusion of the evidence seized, State v. Owens, 302 Mo. 348, 357, 259 S.W. 100 (banc, 1924) (interpreting Art. II, § 11 Mo.Const. 1875; now Mo.Const. Art., I, § 15). The admission of the gun over defendant’s objection was, therefore, error requiring reversal.

Accordingly, I respectfully dissent.

SEILER, Judge,

dissenting.

I concur in the dissenting opinion of Judge Donnelly.

In addition, even if the interpretation given the Opperman case by the principal opinion is correct, the facts here do not fit. Opperman mentions three police needs that justify making an inventory of the contents of an automobile: the protection of the owner’s property; the protection of the police from potential danger; and the protection of the police against claims or disputes that property has been lost or stolen while in police custody. Thus, in Opperman, the Supreme Court found that on the record before it, which showed that the search was indisputably conducted as a caretaking search of a car lawfully impounded for multiple parking violations, the owner was not present to make arrangements for its safety, the inventory was prompted by the presence of a number of valuables in plain view, and there was no claim that the inventory was a pretext covering an investigatory police motive, the search was reasonable. Id., 428 U.S. at 375-76, 96 S.Ct. 3092.

In the case at bar, the police made no claim that the search was conducted for the safety of the officers. In fact, the transcript of the suppression hearing shows that the officer specifically disclaimed any fear for his safety, and that the defendant was safely in the custody of another officer at the time of the search. Thus, the search, to be valid, must have been conducted to protect the owner’s property or to inventory it to protect the police from a claim that items were lost or stolen.

In this case, the officer testified that he simply searched the car prior to towing it because it was standard police procedure to do so. When asked by the prosecution: “Did you make an inventory of that car when you searched it of the things you found?”, the officer answered “Not a written inventory, no”, but that he had made “a report” about it. There is no evidence as to what was in the report.

An “inventory” is “a detailed list of articles of property; a list or schedule of property, containing a designation or description of each specific article; . . Black’s Law Dictionary 959 (4th rev. ed. 1968). Nothing of this sort occurred here. Rummaging through the car of another cannot be justified simply on the basis that it is standard police procedure to do so. There is no showing that what the officer did was in an effort to protect the owner’s property or to protect the police against false claims of loss. Therefore, we are upholding this warrantless search without requiring the state to justify its action as being within the exception relied on, even if there should be such an exception. If all it takes to support a search is a leading question from the prosecutor suggesting that the officer was making an inventory, the way is open for complete disregard of the Fourth Amendment with respect to automobile searches.

      . Article III, § 23 reads in part: “No bill shall contain more than one subject which shall be clearly expressed in its title . .

      . The title of Conference Committee Substitute for H.B. 1231, 997, 1024, 1116, 1332, 1346 (78th General Assembly) is as follows:
      “An Act to repeal section 556.140, RSMo 1969, relating to the commission of certain crimes with certain weapons, and to enact in lieu thereof one new section relating to the same subject, with penalty provisions.” Laws of 1976, p. 780.
      The title conforms to the Missouri Constitution, 1945, and applicable rules of the General Assembly. See Rule 110, 78th General Assembly and 7 Cannon, Rules and Practice of the House of Representatives of the United States, 87th Congress, §§ 1035, 1254, 1489. In State ex rel. Toedebusch v. Public Service Commission, 520 S.W.2d 38, 43 (Mo. Banc 1975), citing 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823 (Mo. 1965), the court held:

        “ ‘The object of the requirement is that “the title, like a guideboard, indicate the general contents of the bill, ánd contain but one general subject, which might be expressed in a few or a greater number of words.” ’ ”

      . Section 560.135 read in relevant part: “Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment . . . Chapter 558, RSMo 1978, now prescribes the terms of imprisonments.


source: Caselaw Access Project

author: DOWD, Presiding Judge.

license: Public Domain

text:
    Howard M. ACKERMAN and Barbara F. Ackerman, his wife, et al., Plaintiffs-Appellants, v. Arthur I. ROUFA et al., Defendants-Respondents.
    No. 38318.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 23, 1979.

      James P. Finnegan, Jr., St. Louis, for plaintiffs-appellants.
    Shulamith Simon, St. Louis, J. Leonard Walther, Clayton, Merle Silverstein, St. Louis, for defendants-respondents.
   DOWD, Presiding Judge.

Dedication of a street case.

Appellant residents of the Runnymede Subdivision appeal from the decision of the Circuit Court of the County of St. Louis in favor of respondents City of Creve Coeur, Royalway Development Company and Trustees of the Runnymede Subdivision.

The gist of this lawsuit is the status of the streets shown on plat 1 of the Runnymede Subdivision in Creve Coeur, Missouri. A trustee of the subdivision, named herein as a respondent, obtained the signatures of a majority of landowners in plat 1 to an instrument which proposed the dedication of the streets therein to public use.

In a two count petition, the appellants sought injunctive relief to have the dedication to public use and the resulting amendment to the subdivision indenture set aside. Appellants also prayed for a declaration that a particular street, Magna Carta Drive, was a private street. Appellants’ request for relief stemmed from the allegation that the instrument of dedication and the amendment to the indenture did not comply with the requirements of the subdivision restriction or § 445.030 RSMo 1969.

The judgment rendered by the court, sitting without a jury, was that Magna Carta Drive within Runnymede Subdivision Plat I, was a public street. The court denied appellants’ prayer for injunctive relief, and dismissed Count II as moot.

Appellants challenge the court’s determination regarding the composition of the subdivision, as well as the court’s judgment that the dedication to public use amounted to a valid offer which was accepted by public user. Appellants further contend that the court’s denial of their motion to amend petition by interlineation constituted an abuse of discretion.

At the outset, it must be noted that the judgment rendered in a court tried case will be sustained on appellate review “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. en banc 1976).

In their first point, appellants allege that the trial court misconstrued the makeup of the subdivision in its appraisal of their interests as plaintiffs. The trial court’s reference to the interest of the parties joined as plaintiffs related to the nature of their interests as representatives of the class of owners, and was not a ruling on the composition of the subdivision.

In deciding the issue of whether the plaintiffs below could sue as a class, the trial court opined that two plaintiffs who were residents of plat 1 had a “direct interest in the proceedings,” whereas other plaintiffs, who were residents of other plats in the subdivision had an “indirect interest.” The court continued saying, “but even that indirect interest does not put them in any different position to sue for the class of all owners in Runnymede than the position occupied by the Tofles.” The To-fles are the plaintiff residents of plat 1.

This last sentence indicates that if the Court did misconceive the makeup of the subdivision, it did not affect its ruling on the maintenance of the class action. Appellants’ right to bring a class action was denied because appellants did not introduce any evidence which demonstrated that the other residents of plat 1 were aligned with the Tofles on the issue of the private status of Magna Carta Drive. As the trial court reached the correct result on the issue of class action status, the conception of the subdivision format is of no consequence. State ex rel. Sagester v. W. D. Ledbetter, 559 S.W.2d 230 (Mo.App.1977). We rule this point against the appellants.

Appellants’ second and third points challenge the propriety of the alleged dedication and the adequacy of proof of offer and acceptance.

It is well established that private land may be dedicated to public use pursuant to principles of common law or statute. 23 Am.Jur.2d, § 3. A common law dedication may be established by a showing that (1) the owner manifested the intent to dedicate to public use by positive act; (2) the public accepts the dedicated land; and (3) the public uses the dedicated land. Common law dedication is characterized by principles of estoppel rather than grant. Connel v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49, 53 (Mo.1944). The application of estoppel principles is highlighted in the context of revocation of an offer to dedicate. The owner may revoke the offer until the rights of others have intervened. Ginter v. City of Webster Groves, 349 S.W.2d 895 (Mo.1961), citing 16 Am.Jur., Dedication § 29, p. 375.

Our review of the record indicates that the trial court’s judgment is supported by substantial evidence and is a proper declaration and application of the law. The following evidence of common law dedication was adduced at trial: nearly all the lot owners of plat 1 in the Runnymede Subdivision dedicated all the subdivision streets shown on plat 1 “to public use forever”, constituting an offer; and since the execution of the instrument of dedication, the public has used the street for travel, constituting an acceptance.

The language of the instrument signed by most of the plat 1 residents manifested the requisite intent to dedicate land to public use. In addition, the public’s use of the road rendered the city’s acceptance of the dedication unnecessary. Hoechst v. Bangert, 440 S.W.2d 476 (Mo.1969).

In their fourth point, appellants allege that the trial court abused its discretion in denying their motion to amend the petition. The proposed amendment contained the allegation that Trustee Arthur Roufa solicited signatures to the instrument of dedication in a fraudulent and deceptive manner. At the heart of this allegation is the contention that Roufa failed to disclose that Tri Co., a business of which he was an officer and stockholder, was negotiating for the sale of a tract of land adjacent to the subdivision. Apparently, the contract for the sale of the Tri Co. property contained the contingency that Magna Carta Drive become a public street.

We find no abuse of discretion in the trial court’s denial of appellants’ motion to amend. The lawsuit was filed in 1973, and was placed on the dismissal docket in October, 1975. The motion to amend was raised by the appellants on the fourth day of trial. Although a trial court is to be liberal in regard to permitting the amendment of pleadings, it must be remembered that the purpose of this policy is to furnish a party an opportunity to include points unperceived or unexamined at the time the original pleadings were filed. Brassfield v. Allwood, 557 S.W.2d 674 (Mo.App.1976). There was no showing that the substance of the proposed amendment was unknown at the time the pleadings were framed. Accordingly, we rule this point against the appellants.

Judgment affirmed.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concurs.

      . The public’s use of the dedicated land need not satisfy a prescribed time period. Hoechst v. Bangert, 440 S.W.2d 476 (Mo.1969).


author: GUNN, Judge.

text:
    In re Morris Edward REED, Appellant.
    No. 39678.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 6, 1979.
    David B. Tobben, Union, for appellant.
   GUNN, Judge.

The appellant, a 27 year old man, filed a change of name petition pursuant to § 527.-270, RSMo 1969. His petition fully complied with the provisions of the statute by concisely stating the reasons for his desire to change his name from Morris Edward Reed to Sunshine Morris Edward Reed: that he is known by his friends and acquaintances as Sunshine; that he uses Sunshine in the conduct of his daily affairs; that he prefers the name Sunshine over his given name. At the subsequent hearing, he stated that he had borne the sobriquet “Sunshine” for at least 10 years which was adopted because of his spirit of jocundity, refulgent personality coruscating on those with whom he associated and by reason of his sanguinary outlook on life. He also testified that he was an employee of the Chrysler Truck Plant in Fenton; that he had been so employed for eight years; that he had never been married and had no outstanding debts. The trial court denied his petition, and Mr. Reed has appealed.

We reverse and order the name change.

Section 527.270 authorizes a circuit judge to order a change of name if “. satisfied that the desired change would be proper and not detrimental to the interests of any other person.” Matter of Natale, 527 S.W.2d 402 (Mo.App.1975), is the paradigm to be followed regarding name change. In Natale, Judge Dowd has painstakingly and thoroughly traced the entire history of the law relating to name change and concludes in a remarkably interesting opinion that the discretion of the trial judge in denying a petition is tightly circumscribed: “The scope of discretion to deny a petition for change of name is narrow.” Id. at 405. Mr. Reed’s requested name is not particularly bizarre, obscene or offensive, and no prima facie evidence of harm to a third party was presented at the hearing. The lower court’s general concern for the possible detriment to society occasioned by petitioner and others who seek to use the law to add a cognomen to their legal name is simply not a sufficient reason to deny the petition, particularly in light of the obvious legislative intent that such a procedure be available and by reason of the precept of Natale. Mr. Reed evinces sincerity and has certainly expended substantial effort to comply with the requirements of § 527.270. Under the circumstances, we believe the trial court abused its discretion in denying Mr. Reed’s petition. The change of name should have been granted. Matter of Natale, supra.

Judgment reversed and trial court directed to issue its order changing petitioner’s name as prayed.

' REINHARD, P. J., and CRIST, J., concur.


author: CRIST, Judge.

text:
    Gail DUNLAP, Appellant, v. MISSOURI DIVISION OF FAMILY SERVICES, Respondent.
    No. 40473.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 6, 1979.

      The Legal Aid Society of the City & County of St. Louis, Kim C. Brown, St. Louis, for appellant.
    Paul T. Keller, Senior Counsel, Div. of Family Services, Jefferson City, for respondent.
   CRIST, Judge.

Administrative proceeding. Aid to Families with Dependent Children case (hereinafter, A.F.D.C.). The Director of the Missouri Division of Family Services found plaintiff ineligible for A.F.D.C. because she possessed property valued in excess of the $10,500.00 statutory maximum established by § 208.010-2(4) RSMo.Supp.1975. The Circuit Court of St. Louis County affirmed the Director and plaintiff appeals. We affirm.

Under § 208.100-5 RSMo.1969, our determination is limited to whether or not a fair hearing has been granted and whether the Director’s decision is supported by competent and substantial evidence on the whole record. See Hill v. State Dept. of Public Health & Welfare, 503 S.W.2d 6, 11 (Mo. banc 1973). The Director’s decision is supported by competent and substantial evidence upon the whole record if he could reasonably have reached the challenged decision. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975).

Plaintiff claims that the decision of the Director finding the value of her property interest to be in excess of $10,500.00 was not supported by competent and substantial evidence. She says this is so because the real estate in question was valued as a whole at $30,000.00 when it was jointly held by her and her mother. Accordingly, there was no proof of the market value of her interest. She relies on Brumit v. State Dept. of Public Health & Welfare, 521 S.W.2d 445 (Mo.1975). Plaintiff would be correct in her contention if the only evidence adduced was that she had jointly held real estate worth $30,000.00.

What was the other evidence on which the Director could have found that plaintiff’s property exceeded $10,500.00 in value? She paid $15,081.22 of the purchase price of the property. Her mother paid the balance, $13,029.48. The purchase price was fully paid. The Director could reasonably have found that she was buying the property for herself and owed part of the purchase price to her mother. She was living with her children in the real estate — and not with her mother. When she made application for A.F.D.C. she showed an equity in the real estate of $15,000.00 and an amount owed of $15,000.00. She explained in the application statement that “her mother had paid for half of the house and that she was paying her mother back.” She was making the payments.

The Director had the obligation to determine the value of such property “of which [claimant] is the record or beneficial owner.” § 208.010-2(4) RSMo.Supp.1975. See Powers v. State Dept. of Public Health & Welfare, 359 S.W.2d 23, 28 (Mo.App.1962). He could reasonably have found that the mother’s name was on the deed only to protect her security of the money so paid to enable plaintiff to purchase the property. We find that the Director’s decision was supported by competent and substantial evidence on the whole record. Garrard v. State Dept. of Public Health & Welfare, 375 S.W.2d 582 (Mo.App.1964); Cummins v. State Dept. of Public Health & Welfare, 481 S.W.2d 639 (Mo.App.1972); Missouri Church of Scientology v. State Tax Comm., 560 S.W.2d 837 (Mo.banc 1977).

The judgment is affirmed.

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


author: ALDEN A. STOCKARD, Special Judge.

text:
    Carolyn Joyce BIERMANN, Respondent, v. William Raymond BIERMANN, Appellant.
    No. 39850.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 6, 1979.
    David R. Spitznagel, Clayton, for appellant.
    Thomas M. Lang, Thomas K. Edelmann, Love, Lacks, McMahon & Schwarz, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal by William Raymond Biermann from the refusal of the trial court to quash a writ of execution whereby Carolyn Joyce Biermann, his former wife, sought to collect child support awarded to her in a divorce proceeding in 1971. We affirm.

The judgment awarding child support did not state for how long the payments were to be made. Therefore, they were to be made until the child reached majority or was emancipated. Appellant discontinued payments of child support for each child when that child reached the age of eighteen years on the theory that the child reached majority at that age.

The issues on this appeal are:
(1) Does a child reach majority for the purpose of terminating the obligation of a parent to pay child support pursuant to a divorce or dissolution of marriage decree at age eighteen or at age twenty-one?
(2) If the obligation to pay child support did not terminate at age eighteen, was Carolyn Ann Biermann, the oldest child of the parties, emancipated at anytime before reaching twenty-one years of age.

Appellant admits that under the common law an infant person attained majority at the age of twenty-one years, see 42 Am. Jur.2d Infants § 3, and that until changed by legislative action the common law shall be the rule of action and decision in this State. § 1.010 RSMo 1969; Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278 (1940). Appellant contends, however, that the legislature has changed the age of majority to eighteen years of age.

Appellant first refers to the fact that in 1974 the legislature passed Senate Bill 438, which provided, among other things, that “The age of majority in this state is eighteen years, and all persons having attained that age are entitled to all the privileges, rights and immunities, and subject to all the obligations and responsibilities of adulthood and are not subject to any of the disabilities of infancy.” An exception was provided as to laws “pertaining to alcoholic beverages.” However, in State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974), the Supreme Court of this State declared the above legislative act to be unconstitutional in its entirety. Nevertheless, appellant argues that the passage of this unconstitutional act “clearly indicates the intention of the legislature * * * to change the age of majority to eighteen,

The legislature may have intended to change the age of majority to eighteen years, but it did not do so by the passage of an unconstitutional act. The courts are bound by what the legislature, in fact did; not by what was its ineffective intention.

Appellant points to other acts of the legislature which have changed the age from twenty-one to eighteen years for specified purposes. For example, § 451.090(2) now provides that a male eighteen years of age may obtain a license to marry without parental consent. Also, § 507.115 authorizes a person who is eighteen years of age to prosecute or defend a lawsuit in his own name as the real party in interest, and § 431.055 authorizes a person eighteen years of age to enter into a legally binding contract. Unquestionably, these statutes evidence the intention of the legislature that for the stated purposes the age of eighteen years is sufficient. However, appellant points to no statute, and we find none, which purports to change the common law obligation of a parent to support a minor child until he reaches the age of twenty-one years, or to abrogate the authority of the court in a dissolution of marriage proceeding to award child support to the custodial spouse until the child reaches the age of twenty-one years.

Absent a showing of emancipation, the obligation of appellant under the decree of divorce for child support did not terminate as to each child until that child reached the age of twenty-one years. See Block v. Lieberman, 506 S.W.2d 485 (Mo.App.1974).

Appellant next contends that Carolyn Ann was emancipated prior to reaching her twenty-first birthday, and that the trial court erred in failing to so find.

Carolyn Ann was eighteen years of age on February 1, 1974 and graduated from High School that spring. In the fall she attended the University of Missouri at Columbia. For that year appellant paid her tuition and other expenses. In the summer of 1975 she returned to her mother’s home and obtained employment, but in the fall she returned to the University. From that time and as long as she was at the University she obtained some financial aid in the form of grants or scholarships, and she worked at part-time jobs. In this way she paid her tuition and expenses. Her mother, as custodial parent, filled out a personal financial statement in order to qualify Carolyn Ann for the aid. Carolyn Ann did not return home the following summer, but obtained employment in Columbia. She did return home for major holidays, such as Christmas and Thanksgiving Day and frequently returned home on weekends. When she was at home her mother provided her with food and a place to sleep. She received no financial support while at school from her mother on a regular basis, but her mother occasionally gave her some money to pay transportation costs to and from Columbia.

The emancipation of a minor child is never presumed, Brosius v. Barker, 154 Mo.App. 657, 136 S.W. 19 (1911), and the express or implied consent of the parents, or of the one having custody, is required. Specking v. Specking, 528 S.W.2d 448 (Mo. App.1975). The burden of proving emancipation is on the party asserting it. Wurth v. Wurth, 322 S.W.2d 745 (Mo. banc 1959).

In Brosius v. Barker, supra at p. 19, it was stated that “There are two kinds of emancipation, express and implied. Express emancipation takes place when the parent agrees with his child, who is old enough to take care and provide for himself, that he may go away from home and earn his own living, and do as he pleases with the fruits of his labor. Implied emancipation is where the parent, without any express agreement by his acts or conduct, impliedly consents that his infant child may leave home and shift for himself.”

In this case there was no express emancipation of Carolyn Ann by her mother, and the evidence does not establish an emancipation by implication. Carolyn Ann did what is a commendable practice of many students; she substantially worked her way through college with part-time employment and financial aid obtained through scholarship funds. Her mother, as the head of her home, made the necessary financial statements to establish Carolyn Ann’s qualification for financial assistance. She never abandoned her home with her mother but returned to it for holidays and occasional weekends. A parent having custody may give a minor child a license to work and retain its earnings, which is what occurred in this case. We see no particular significance to the fact that the mother did not contribute regularly to Carolyn Ann’s maintenance while she was in college. If we are to speculate as to the reason it may have been that during that period the mother received no child support from appellant for Carolyn Ann. There was no breaking of the parent-minor child relationship in this case which would permit a finding of emancipation by implication.

Appellant has not met his burden of proof to establish emancipation, and the trial court correctly refused to quash the writ of execution.

The judgment is affirmed.

DOWD, P. J., and CRIST, J., concur.


text:
    Tony PRINCE, d/b/a/ Tony Prince Carpet Co., Appellant, v. SPIRE CORPORATION, Respondent.
    No. 39303.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 29, 1979.

      Lawrence O. Willbrand, St. Louis, for appellant.
    Daniel Hapke, Jr., St. Lou.s, for respondent.
   ALDEN A. STOCKARD, Special Judge.

In plaintiff’s suit for damages for an alleged breach of an oral contract, the trial court entered summary judgment for defendant and plaintiff has appealed. We reverse and remand.

Plaintiff alleged that it is engaged in the business of installing carpeting, and that on or about the 14th day of July 1976, the “defendant informed [plaintiff] orally that plaintiff’s written bid in response to defendant’s written specifications had been accepted and that a contract was in existence wherein defendant agreed to pay plaintiff the sum of $112,649.55 for the work and labor required for the installation of carpeting in the Sheraton St. Louis Hotel,” but that “thereafter the defendant attempted to change certain provisions of said contract to which plaintiff refused and defendant then manifested an intention to contract with another for the aforementioned and indicated that defendant now takes the position that there never was a contract,” and plaintiff was thereby damaged in the amount of $16,897.42.

Defendant filed a motion for summary judgment on the theories that (1) plaintiff alleged the existence of an oral contract, but “any and all contact which Plaintiff has had with Defendant in connection with the facts alleged in Plaintiff’s Petition has been with Marvin L. Sokolik,” who, defendant alleged, was “an employee of Sverdrup & Parcel and Associates, Inc.,” and who is “neither an employee nor an officer” of defendant “and has no authority, real or apparent, to enter into a subcontract on behalf of [defendant],” and (2) the action is barred by the Statute of Frauds.

In support of its motion for summary judgment defendant filed affidavits of Marvin L. Sokolik, Shelby Pruett, Jr. and Clarence Deal. In the affidavit of Sokolik he stated, primarily in the form of legal conclusions, that he was not and never had been an employee of defendant but was an employee of Sverdrup & Parcel and Associates, Inc. He also stated that the value of the carpet padding alone was $25,000 and that the completion of the laying of the carpet and padding could not be completed prior to September 15, 1977. In the affidavit of Pruett, defendant’s vice-president, he stated that none of defendant’s employees had any contact with plaintiff and that Sokolik had never been an officer or employee of defendant and was not authorized to enter into a subcontract on behalf of defendant. In his affidavit Mr. Deal stated that the building would not be available for the laying of carpet before June 1, 1977, and the carpet-laying operation would require three to three and one-half months.

In opposition to defendant’s motion for summary judgment plaintiff filed an affidavit in which he stated by way of conclusion that he negotiated a contract with Sok-olik who was acting as agent for defendant, and that the contract was for services only; that defendant authorized and ratified such negotiations; that the contract was in writing and the only element not in writing was defendant’s signature; and that the contract could well have been completed within one year.

Defendant then filed an affidavit to which there was attached the invitation to bid and plaintiff’s written bid.

The trial court sustained defendant’s motion for summary judgment. No findings of fact or conclusions of law were made and none was requested.

Summary judgment is authorized where, but only where, the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Rule 74.04(c). In addition, it is provided in Rule 74.04(h) that “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” As stated in Cooper v. Finke, 376 S.W.2d 225, 299 (Mo.1964), “a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure.” In addition, an appellate court must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167 (Mo.1967).

In this case it is asserted in defendant’s affidavits that Sokolik was not and never had been an officer or employee of defendant, and that he was not authorized to enter into a subcontract with plaintiff on behalf of defendant. These assertions are in the form of conclusions of law, and do not constitute a statement of “such facts as would be admissible in evidence * * *.” Rule 74.04(e). We recognize that it frequently is difficult to state facts to establish a negative, but it is the rule that “conclusions of law in affidavits are of no effect and are not sufficient to sustain a motion for summary judgment.” Stoffel v. Mayfair-Lennox Hotels, Inc., 387 S.W.2d 188, 192 (Mo.App.1965).

When we turn to the items attached to plaintiff’s affidavit in opposition to the motion for summary judgment we find in letter form an “Invitation to Bid” covering “Carpet Padding & Installation” sent to plaintiff and signed “Spire Corporation by Marvin L. Sokolik.” There also is a letter to plaintiff transmitting copies of the proposed “Subcontractor’s Agreement between Spire Corporation and Tony Prince Carpet. Co.” which is signed “Spire Corporation Marvin Sokolik.” We also find that “Addendum No. 1,” to the specifications pertaining to “Carpet Padding & Installation” was signed by Sokolik on behalf of defendant. We express no opinion as to whether Sokolik was authorized to enter, and if so whether he did enter, into a contract with plaintiff on behalf of defendant. But in view of these documents he did act as defendant’s agent for at least some purposes, and it cannot be said from what is before us in this proceeding that, as a matter of law, the affidavits and the supporting material submitted by defendant constitute “unassailable proof” that Sokolik was not authorized to and did not enter into an oral contract with plaintiff as alleged in the petition.

In reference to defendant’s contention that this action is barred by the Statute of Frauds, plaintiff alleges that his “written bid” was orally accepted by Soko-lik as agent for defendant. A copy of that written bid was attached to an affidavit by defendant and among other items it contains the following:

“We propose to furnish all labor and materials necessary to install carpet and pad in above mentioned project. Carpet, pad and tackless strip to be installed in guest rooms, corridors and all public areas as per plans and manufacturers specifications.
20,932 sq. yds. carpet in guest rooms:
unit price $2.35 sq. yd.
Total $49,109.20
11,327 sq. yds. carpet in corridors and public areas: unit price $3.50 sq. yd.
Total $39,644.50

We propose to furnish pad as specified: ⅝" Bonded Urethane Foam Cushion. Class One F.H.A.

30,490 sq. yds. unit price 76.5
Total $23,324.85”

Defendant argues that this constituted a provision for the sale of $23,814.85 worth of carpet padding and therefore plaintiff’s action is based on an oral contract for the sale of goods for the price of more than $500 and therefore is barred by § 400.2-201, RSMo 1969. Plaintiff asserts that the subject matter of the agreement was the installation of carpeting, and it was incidental to the contract that he was to furnish the padding and other necessary items.

In Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764, 766 (1973), a suit was brought for damage for the loss of profits resulting from the breach of an oral contract pertaining to the laying of tile. The cost of the materials plaintiff was to furnish exceeded $15,000, and the defendant contended the agreement was unenforceable under a provision of the statutes comparable to our § 400.2-201. The court held: “Even though it be said that the material [plaintiff] was to purchase and furnish constitutes goods within the definition of [our § 400.2 — 201] and part of [plaintiff’s] profit is to be gained on cost plus 15% on the material, nevertheless, the essence of the agreement is a service contract for [plaintiff] to install tile in [defendant’s] home. Unless the principal object of the agreement is for sale of goods, then [our § 400.2-201] is inapplicable.” We cannot say from the record before us that as a matter of law the essence of the oral contract in this case was not, a service contract. That must be determined from a consideration of all material and relevant factors including the precise work to be done and the customs and usages in the industry. It is an issue of fact not subject to being resolved on the record before us by use of the summary judgment procedure.

Defendant next asserts that this action on the oral contract is barred because the “agreement contained a one year service period commencing after completion of installation,” and therefore the contract could not be performed in one year.

If we have correctly determined the terms of the alleged oral agreement, it has no provision that makes performance in one year impossible. We cannot determine with certainty when the alleged oral contract was made, but plaintiff alleged that an oral acceptance of his written bid was made on or about July 14,1976. Defendant attached to an affidavit a statement by the construction contractor to the effect that the building would not be available for carpeting before June 1,1977 and that the installation would require 3½ months. This, of course, is only an estimate, and does not constitute “unassailable proof” of the fact.

Defendant relies primarily on what it asserts is a “one year service” period. We do not agree with that classification. The provision referred to provides that plaintiff “guarantees and warrants” “all labor, material and/or equipment” for a period of one year after the work is completed to be free of any and all defects, but it is only “upon notice of any defect” that any work or labor is required on the part of plaintiff. Therefore, if no defect develops within the specified time after completion of the work under the contract, nothing is required on the part of plaintiff.

It has long been the rule that “ ‘An agreement which may, perchance, be performed within a year from its date, consistently with its terms and not in violation of them, is not within the statute [of frauds] although the performance is liable to occupy more than a year; such as a contract to support one for life, or during an indefinite period, or to work for another for life or for an indefinite period, or to do any other thing possible to be done within a year although the doing of it may continue, and may be expected to continue longer.’ ” Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46, 48 (1929). See also Roman v. Morrissey, 517 S.W.2d 929 (Mo.1974); McGuire v. Hutchison, 240 Mo.App. 504, 210 S.W.2d 521 (1948); Fein v. Schwartz, 404 S.W.2d 210 (Mo.App.1966); Want v. Century Supply Company, 508 S.W.2d 515 (Mo.App.1974).

We conclude that there do exist genuine issues of material fact and that summary judgment was improperly entered in this case.

The judgment is reversed and the cause remanded.

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


text:
    Gloria Lavonda BREWINGTON and Bobby Gene Brewington, Appellants, v. Dr. Vinal RAKSAKULTHI, M.D., and Dr. C. Sermchief, M.D., Respondents.
    No. 40627.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 12, 1979.

      Charles S. Clayton, St. Louis, for appellants.
    Manuel Drumm, Sikeston, Maurice B. Graham, Fredericktown, for respondents.
   CRIST, Judge.

Plaintiffs Gloria Brewington and her husband Bobby brought suit on October 28, 1976, praying damages of $200,000 and $35,-000, respectively, against Doctors Vinai Raksakulthi, M.D., and C. Sermchief, M.D., for medical malpractice and loss of consortium. Defendants’ motion for summary judgment was granted on the grounds that the action is barred by the applicable two year statute of limitations, § 516.140, RSMo 1969, and judgment was rendered for defendants. On appeal, plaintiffs contend that defendants fraudulently concealed plaintiffs’ causes of action thereby tolling the running of the limitation period under § 516.280, RSMo 1969. The facts upon which we must rely in deciding this issue are set forth in the petition, defendants’ motion to dismiss, plaintiffs’ memorandum in opposition to said motion, defendants’ answer, defendants’ motion for summary judgment, Gloria Brewington’s affidavit in opposition to defendants’ motion for summary judgment, and plaintiffs’ answer to defendants’ interrogatories. We reverse.

Prior to July 16, 1974, Gloria Brewington, being pregnant, sought the care and treatment of defendants, physicians and surgeons duly licensed to practice in Missouri, during her pregnancy, delivery, and postnatal care. Plaintiffs alleged that during the delivery of their child on July 16, 1974, defendant Raksakulthi made several incisions in the area of Mrs. Brewington’s vagina, birth canal, rectum, colon, peritoneum, and lower intestinal tract and failed to properly close those incisions. They further contend that the sutures which Dr. Raksa-kulthi did make dissolved several days after the delivery. On or about July 23, 1974, Mrs. Brewington visited defendants’ office and complained of severe pain in her lower tract, stool leakage into her vagina, and inability to control her bowel movements. Dr. Sermchief allegedly did nothing to help her and advised her that her problem was no cause for alarm, that she would get better with time, that she could be sewn up again in about six weeks, and that she should return in about three weeks for another examination. Upon her return three weeks later, Mrs. Brewington complained that her condition had not improved. Plaintiffs contend Dr. Sermchief again assured her that her condition was not serious and that a few sutures were all she required. Mrs. Brewington visited Dr. Serm-chief for the last time shortly after Labor Day of 1974. At this time, he told her that she could enter the hospital at any time and that for a further fee of about $300 she could be sewn up. He assured her that her condition was no cause for alarm and was not permanent and that rectification would be routine and minor.

After an unsuccessful attempt to raise the $300 for her operation, Mrs. Brewington consulted Dr. Jerry F. McClain on November 4, 1974. Until that date, she had been under the exclusive care and treatment of Doctors Raksakulthi and Sermchief. Dr. McClain informed Mrs. Brewington, allegedly for the first time, of the true severity of her injuries. As a result of the incisions and failure to properly suture them, feces and urine were allowed to intermix with the organs and muscle tissue in the general vicinity of Mrs. Brewington’s vagina and rectum for such a long time that said tissue and organs became “atrophied, degenerated, fouled and decayed” to such an extent as to preclude totally successful surgical corrections. Mrs. Brewington’s condition will require numerous surgical procedures and a great deal of time spent in the hospital. Furthermore, she allegedly can never again have sexual relations or bear children.

Plaintiffs’ petition further alleged that defendants’ were at all times aware of the negligent manner of their delivery and post-natal care of Mrs. Brewington. Furthermore, by assuring Mrs. Brewington that her condition was not serious and urgent, representations defendants knew to be false, they fraudulently concealed from plaintiff the extent of her injuries and caused her further injury by causing her to delay the needed surgical repairs.

Defendants contend that the two year statute of limitations provided in § 516.140, RSMo 1969, began running on July 16,1974, making the October 28, 1976, filing of this suit untimely. In contrast, plaintiffs contend that defendants fraudulently concealed plaintiff’s cause of action until the November 4, 1974, examination by Dr. McClain, when Mrs. Brewington discovered the true nature and cause of her injuries. Plaintiffs argue that, by virtue of defendants’ fraudulent concealment, the commencement of the running of the limitation was tolled until November 4, 1974. If this is so, plaintiffs’ suit is timely.

Under Missouri law, it is clear that a defendant’s fraudulent concealment of a medical malpractice cause of action against him acts to toll the running of the statute of limitations by virtue of § 516.280, RSMo 1969. Swope v. Printz, 468 S.W.2d 34, 36 (Mo.1971); Kauchick v. Williams, 435 S.W.2d 342, 345—47 (Mo.banc 1968); Smile v. Lawson, 435 S.W.2d 325, 327-28 (Mo.banc 1968); Martin v. Barbour, 558 S.W.2d 200, 209 (Mo.App.1977). In order to prevail on a § 516.280 fraudulent concealment claim, plaintiffs must prove the following things:

(1) that in performing the surgery defendant[s] did or failed to do something which caused the [injury]; (2) that defendant[s’] conduct failed to meet the required standards of professional competence and therefore constituted negligence; (3) that defendant^] had actual knowledge that [they] caused the [injury]; (4) that with that knowledge defendants] intended by [their] postoperative conduct and statements to conceal from plaintiffs the fact that they had a claim against [defendant(s)] for malpractice by reason thereof; (5) that defendants’] acts were fraudulent, and (6) that plaintiffs were not guilty of lack of diligence in not sooner ascertaining the truth with respect to the situation.

Swope v. Printz, supra at 38-39; accord, Martin v. Barbour, supra at 209; see Kauchick v. Williams, supra, at 349 (burden is on plaintiff to prove facts of fraudulent concealment); Smile v. Lawson, supra at 328 (burden is on plaintiffs to prove facts of fraudulent concealment).

Supreme Court Rule 74.04(h), V.A.M.R. requires that “[i]n no case shall summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Smile v. Lawson, supra at 328. “[T]he appellate court, as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment [was] rendered.” Smile v. Lawson, supra at 328; accord, E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167, 169 (Mo. 1967).

Viewing the record in this light, it presents issues of fact which require that the case be brought to trial. Plaintiffs have clearly alleged sufficient facts to bring elements (1), (2), and (3) of the Swope test into contention. Defendants do not claim otherwise. Instead, defendants assert that plaintiffs have failed to place elements (4), (5), and (6) in issue. They argue, and the trial court agreed, that because Mrs. Brew-ington knew before October 28, 1974, that she had experienced seven or eight weeks of stool leakage, that her condition was not improving, and that she required further in-hospital surgery, defendants concealed nothing from plaintiffs. This theory, however, is far from the unassailable proof required for summary judgment by Rule 74.-04(h), supra.

Viewing the record in a light most favorable to plaintiffs, as we must, an inference could be drawn that defendants knew that their negligence had caused Mrs. Brewing-ton severe injury to her lower tract, that any delay in suturing Mrs. Brewington’s incision would cause further damage by reason of atrophy, decay, and infection caused by the intermixing of organs, urine, and feces, and that defendants concealed both the cause and extent of Mrs. Brewing-ton’s injuries. Based on defendants’ postoperative conduct, Mrs. Brewington could reasonably have concluded that her injuries were not caused by defendants’ neglect, but were part of the normal risks of going through a procedure necessary for delivery of her child. Thus, as to element (4) of the Swope test the record establishes a reasonable possibility that defendants concealed the facts underlying their claim from plaintiffs.

Furthermore, a reasonable inference can be drawn from the record that defendants’ post-natal representations to plaintiffs were fraudulent within the meaning of element (5) of the Swope test.

The elements of fraud are a representation; its falsity; its materiality; the speaker’s knowledge of the falsity or his ignorance of its truth; the speaker’s intent that his statement should be acted upon by the person and in [a] manner reasonably contemplated; the bearer’s [sic] ignorance of the falsity of the statement; his reliance on its truth; his right to rely thereon; and his consequent and proximately caused injury.

Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483, 488 (Mo. banc 1966). In a fraudulent concealment case, the “injury,” of course, is plaintiff’s inability to bring his cause of action within the applicable statute of limitations. In this case, defendants consistently told Mrs. Brewington that her condition was not unusual and did not recommend immediate surgical repair but did eventually suggest the condition could be cured with a few sutures at a cost of about $300. Viewing the record most favorably to plaintiffs’ theory, these statements were false, defendants knew they were false, and defendants made them with the intent to conceal plaintiffs’ cause of action for medical malpractice. Furthermore, plaintiffs were ignorant of the falsity of these representations. Because of the fiduciary relationship between doctor and patient, Smile v. Lawson, supra at 328; Martin v. Barbour, supra at 210, plaintiffs did rely and had a right to rely upon defendants’ representations.

As to element (6) of the Swope test, the question of plaintiffs’ lack of diligence in not sooner ascertaining the truth is certainly a question for the jury. Indeed, the issue is the crux of the parties’ dispute. Thus, plaintiffs’ allegations, if true, make a case for fraudulent concealment of their cause of action. The summary judgment record, therefore, does not rise to the requisite level of unassailable proof that defendants are entitled to judgment as a matter of law. Smile v. Lawson, supra at 328. On the record the trial court erred in sustaining the motion for summary judgment.

Accordingly, the judgment is reversed and the cause remanded.

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


author: REINHARD, Presiding Judge.

text:
    John H. BERRA, Respondent, v. BIEG PLUMBING CO., INC., Appellant.
    No. 39956.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 19, 1979.

      Eli C. Seigel, Rosenberg, Weiss, Goff-stein, Kraus & Seigel, Don R. Sherman, St. Louis, for appellant.
    David L. Welsh, Bridgeton, for respondent.
   REINHARD, Presiding Judge.

Defendant Bieg Plumbing Company, Inc. appeals from a judgment in favor of plaintiff, J. H. Berra, operating as Berra Construction Company, in the amount of $2,542.33.

In April of 1973, defendant Bieg Plumbing Company was awarded the contract for the construction of the plumbing and sewer work connected with the construction of the St. John Bosco Church, the owner of said church being the Archdiocese of St. Louis. Defendant in turn sought bids from other contractors for the construction of the sewers for the church. In seeking those bids, defendant contacted plaintiff who operated as Berra Construction Company and asked plaintiff to submit a bid on the sewer work. Defendant presented testimony that it provided plaintiff with a complete set of plans and specifications to aid the latter in the preparation of his bid. Plaintiff’s witness denied that Berra Construction ever received a copy of the specifications, presenting testimony that Berra Construction used only the plans or blueprints in preparing and submitting its proposal.

In the proposal submitted to defendant, plaintiff listed Alternate Plans Numbers 1 and 2 and enumerated the various projected costs of the work and materials needed for the construction of both the interior and the storm sewers. Also included in plaintiff’s proposal was the following sentence: “Granular backfill under pavements, estimated to require 470 tons, will be charged for at $3.05 per ton.”

Upon receipt of this proposal, Mr. Bieg conferred with Mr. Maritz who informed Bieg that the granular backfill would be unnecessary. Accordingly, Mr. Bieg drew a line through the above-quoted sentence concerning granular backfill, and having already stricken Alternate Plan Number 2, accepted plaintiff’s proposal by signing it. The accepted proposal was then returned to plaintiff and eventually work began on the project.

When the work on the sewers was approximately 90% complete, defendant received an invoice from plaintiff for the labor and materials utilized in constructing the sewers, with notations signifying payments already received from defendant. The invoice contained a charge of $2,542.33 for 833.55 tons of granular backfill at $3.05 per ton. The invoice, dated November 1, 1973, concluded with a total amount due of $26,385.38. In a letter dated February 13, 1974, defendant questioned Berra Construction concerning certain items in the invoice. No mention was made in the letter of the charge for granular backfill, but Mr. Bieg did testify that he spoke to someone at Berra Construction concerning that item. After an exchange between the two parties, it was determined that plaintiff had erroneously included $110 in the invoice while defendant conceded that certain other charges in the invoice were for authorized work. However, Bieg also testified that he understood that the granular backfill had been deleted and was not a problem. Plaintiff makes no such concession.

Defendant ultimately paid plaintiff $23,-733.05 on the account, which, after crediting the $110 charge, left unpaid an amount of $2,542.33, the amount charged for the granular backfill. After defendant’s continued failure to pay this amount, plaintiff filed a petition in the circuit court.

In his second amended petition, plaintiff alleged, inter alia, that Berra Construction had agreed to construct the sewers for defendant; that at the instance and request of defendant, Berra Construction had provided the labor and materials necessary to install 833.55 tons of granular backfill, having a reasonable value of $3.05 per ton; that there remains due and owing $2,542.33 for this material and labor; and that despite plaintiff’s demand that defendant pay this amount, defendant has refused to pay. The matter was tried to the court and on November 25, 1977, judgment was entered for plaintiff in the amount of $2,542.33. This appeal followed.

As its first point of error, defendant asserts that the trial court erred in failing to file its conclusions of laws as requested by defendant pursuant to Rule 73.01. Rule 73.01(l)(b) provides that in a court-tried case, upon request of counsel, a court “shall . include its findings of such controverted fact issues as have been specified by counsel.” Rule 73.01(2)(a) states that for appellate review, “No findings of fact, except such as shall have been requested, and no conclusions of law . . . are necessary.” (Emphasis added.) As requested; the trial court properly prepared and filed its findings on those controverted fact issues material to the case. We find no error in the court’s preparation of those findings. Moreover, although the court filed no conclusions of law denominated as such, and could have followed a better procedure in so doing, we point to Rule 73.-01(2)(a) which states that for appellate review “no conclusions of law . . . are necessary.” The failure to provide labeled conclusions of law in this case is not error. The only basis of plaintiff’s recovery being quantum meruit, the court’s findings and decision make evident the legal conclusions arrived at by the court. We find no merit in defendant’s first point.

As its second point of error, defendant essentially contends that plaintiff failed to make a submissible case, failed to present sufficient evidence to support a verdict in his favor and consequently that the court erred in failing to find for defendant. In our review, we apply the oft-quoted standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) in this court-tried case.

Plaintiff asserts that its cause of action has always been founded in quantum meruit. The basis of quantum meruit is a promise implied by the law that a person will pay a reasonable and just compensation for valuable services or materials provided at that person’s request or with his approval. Upshaw v. Latham, 486 S.W.2d 656, 658 (Mo.App.1972). To recover in quantum me-ruit, a plaintiff must plead and prove that it provided to defendant materials or services at the request or with the acquiescence of defendant, that those materials or services had a certain reasonable value, and that defendant, despite demands of plaintiff, has failed and refused to pay the reasonable value of those materials and labor. Laughlin v. Boatmen’s National Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978 (1945); State ex rel. Scott v. Sanders, 560 S.W.2d 899, 902 (Mo.App.1978). We believe that the plaintiff met his burden as to both pleading and proof.

The second amended petition, earlier referred to in this opinion, was sufficient to state a cause of action in quantum meruit. The pleading of a written contract as was done here, does not preclude recovery under quantum meruit. A reading of the pleadings clearly reveals that plaintiff’s theory of recovery was quantum meruit.

The parties have conceded that in accepting the proposal submitted to defendant by plaintiff, defendant crossed out the sentence relating to granular backfill. We interpret this action to reveal that the contract proposal as accepted did not include the use of granular backfill; consequently, the use of this backfill at additional cost constitutes an extra item not compensated by the conceded payments by defendant to plaintiff on the contract.

The transcript of the trial contains evidence to satisfy the necessary elements of quantum meruit. Although Mr. Butler of J. H. Berra Construction testified only that “someone” gave orders to use granular backfill, Joseph Tessmer, foreman of the plaintiff’s labor crew at the church job, testified that Mr. Bieg told him to fill with granular backfill. Plaintiff also introduced the invoices showing the amount of granular backfill delivered at the church, and Tessmer testified that the amounts on those invoices represented the amount of rock placed in the trenches, other than a small amount that was lost. Although Mr. Bieg denied.that he knew anything about the. use of the granular backfill until he received the general invoice from plaintiff, we note that the trial court may choose to believe or disbelieve the testimony of a witness. Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348 (Mo.App.1977). As a reviewing court, we are to give due deference to the trial court’s opportunity to have judged the credibility of the witnesses. Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).

Plaintiff also introduced the invoice sent to defendant to show that demand had been made for payment at a price of $3.05 per ton for the granular fill. An independent sewer and construction contractor further testified that in 1973, the time of the subject construction, $3.05 per ton would have been a reasonable price for granular back-fill.

The sum of this evidence meets all the requirements for an action in quantum meruit. Consequently, applying the appropriate standards of review we believe that the evidence adduced at trial adequately supports the judgment of the trial court. Murphy v. Carron, 536 S.W.2d at 32. Defendant’s second point on appeal also fails.

Affirmed.

GUNN and CRIST, JJ., concur.

      . The construction of the sewers was to be under the ultimate control of the Fee Fee Sewer District. Money placed in escrow with Fee Fee would be distributed to the contractors after the sewer district approved the work.

      . Mr. Maritz, the architect for the Archdiocese on the project, asked Robert Bieg of Bieg Plumbing to strike Alternate Plan Number 2 because it was included within Alternate Plan Number 1; Mr. Bieg did so.

      . A copy of the contract was attached to the petition. The petition alleged payments of all sums owed except for the granular backfill.


author: CLEMENS, Senior Judge.

text:
    John BOYLE, Appellant, v. Ross TRUMP et al., Respondents.
    No. 40880.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      Francis L. Ruppert, Thomas C. Conroy, Clayton, for appellant.
    Charles A. Werner, St. Louis, for respondents.
   CLEMENS, Senior Judge.

Plaintiff’s claim for disability benefits was denied by the defendant Police and Firemen’s Retirement Fund Board of University City. On plaintiff’s petition for review the circuit court, for want of an adequate record, remanded the case to defendant Board for reconsideration upon an appropriate record.

We hold the circuit court’s order on review was not an appealable order and dismiss plaintiff’s appeal.

Record of the Board’s meeting states nar-ratively: Plaintiff appeared with his counsel who stated plaintiff had developed a fear of fighting fires. A psychiatrist’s report was presented to that effect. The Board questioned plaintiff about his performance while in service and by a vote of 5 to 0 denied plaintiff’s claim.

Plaintiff filed a petition in the circuit court for review of the Board’s denial of his claim. Both parties moved for summary judgment, but the court denied both motions, ruling: “ . . . although discussion was had at the ‘hearing’ on May 26, 1976, neither the Petitioner nor the Respondent produced probative evidence (or competent and substantial evidence) on which to base a proper decision and that no detailed record was made . . . This cause is remanded back to the Board . for reconsideration and complete hearing of Petitioner’s claim upon appropriate record being made of same.”

This ruling was in accord with Sect. 536.-130, RSMo., requiring “a complete transcript of the entire record” of testimony before the Board. Further, the record failed to comply with Sect. 536.090, RSMo., requiring the Board to make findings of fact and conclusions of law. The trial court properly remanded the case for compliance with the statutory requirements.

That ruling was not an appealable order. As held in Iron County v. State Tax Commission, 480 S.W.2d 65[3], 71 (Mo.1972), it is the duty of an administrative agency “to resolve disputed questions of fact and set these resolutions forth as the agency’s findings in order that, upon review, the Circuit Court can perform its function of review as required by Chapter 536, VAMS. The appeal filed here is premature as the order of the Circuit Court does not constitute a final disposition of the case and is not a final appealable order.” So it is here.

Appeal dismissed.

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


text:
    Mitchell Dale DANE, a Minor, by and through his Next Friend, Gary Dane, Appellant, v. Hugo COZEAN, Administrator of the Estate of Richard M. Batten, Respondent.
    No. 40969.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      Philip T. Ayers, St. Ann, for appellant.
    Ben Ely, Jr., Kortenhof & Ely, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Plaintiff appeals from an order of the court dismissing his petition for personal injury. Plaintiff, a minor, filed suit by his next friend seeking damages for injuries he sustained on February 1, 1969, when struck by an automobile driven by Richard Batten. The suit was filed against defendant, the administrator of Batten’s estate, Batten having died several years after the accident in which plaintiff was injured.

Plaintiff’s lawsuit was originally filed on February 1, 1974. A notice of the suit was filed in the probate court on the same day as per § 473.360 RSMo 1969. The suit was voluntarily dismissed on March 10, 1976, and subsequently refiled on March 10,1977. Defendant moved to dismiss claiming that the suit was barred by § 516.230 RSMo 1969, and by § 473.360 RSMo 1969. The trial court sustained the motion stating in its order that plaintiff’s claim was barred by both statutes. We reverse.

As his first point of error, plaintiff contends that § 516.230 does not apply to him and that § 516.170 is the applicable statutory provision. Section 516.230 provides in part, “[i]f any action shall have been commenced within the time respectively prescribed in § 516.010 to § 516.370 and the plaintiff therein suffer a nonsuit such plaintiff may commence a new action from time to time within one year after such nonsuit suffered . . .” The purpose of § 516.230 is to extend the time for actions otherwise barred by the applicable statute of limitation. The statute operates “to extend, not to shorten the period of limitation.” Valley Farm Dairy Company, Inc. v. Horstmeier, 420 S.W.2d 314, 316 (Mo.1967).

As plaintiff is a minor (Dane is presently fourteen) the applicable statute of limitation governing his action is tolled by the provisions of § 516.170 RSMo 1969. Section 516.230 then, has no relevance to this case, as the applicable statute of limitation to Dane’s case has not yet expired.

The final question presented for review is whether the trial court correctly concluded that § 473.360 barred plaintiff’s claim. Section 473.367 provides that “[a]ny action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor and the filing of a written notice in the probate court. . Subsection One of § 473.360 provides that “all claims against the estate of a deceased person . . . which are not filed in the probate court within six months after the first published notice of letters testamentary or of administration are forever barred against the estate, the executor or administrator . . . Subsection Two of § 473.360 provides that “[u]nless written notice of actions instituted or revived § 473.368 or § 473.367 is filed in the probate court within six months after the first published notice of letters, no recovery may be had in any action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court. . . . ”

Plaintiff argues that, in construing the six-month claim provision of § 473.360, we should consider such factors as the time limits allowed by the applicable statute of limitation, surprise or prejudice to the defendant, and actual notice of pending litigation to both the defendant and the probate court. Essentially, the gravamen of appellant’s argument is that his contemporaneous notice filed with his first suit satisfies the notice requirement of §§ 473.360 and 473.367 for his second suit.

We need not decide that question in this case. It was settled in both Vanderbeck v. Watkins, 421 S.W.2d 274 (Mo. banc 1967) and Nicholls v. Lowther, 491 S.W.2d 3, 6 (Mo.App.1973) that “failure to comply with the non-claim statute does not bar plaintiff from instituting his litigation in Circuit Court nor from obtaining a judgment against the administrator, although it may preclude plaintiff from any recovery on the judgment obtained out of assets being administered upon.” Thus, while plaintiff may hot have complied with the requirements of § 473.360, his failure to do so does not provide the basis for dismissing his lawsuit.

Accordingly, the judgment is reversed and the cause is remanded.

GUNN and CRIST, JJ., concur.

      . “If any person entitled to bring an action in Sections 516.100 to 516.370 specified, at the time the cause of action accrued be within the age of twenty-one years, . such person shall be at liberty to bring such action within the respective times in Sections 516.100 to 516.370 limited after such disability is removed.”


text:
    Frances Diane DUNBAR, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. 40477.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.
    Bernard W. Gerdelman, Cupples, Cooper & Haller, Inc., Clayton, for appellant.
    Samuel T. Vandover, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Plaintiff Frances Diane Dunbar sued defendant Allstate Insurance Company for personal injuries arising from an accident while driving her 1966 Mustang automobile. She alleged her damages were covered by defendant’s policy which had originally named her as an insured and her automobile as an insured vehicle. Defendant moved for summary judgment on the ground coverage of plaintiff and her automobile had been cancelled by her husband, defendant’s named insured. Each party filed an affidavit directed to the motion. Upon submission, the trial court granted defendant’s motion and entered judgment against plaintiff, from which she has now appealed. We reverse and remand the summary judgment.

The following salient facts appear by the pleadings and the parties’ affidavits: In September, 1969 defendant issued its policy naming plaintiff and her husband Robert E. Dunbar as insureds, but days later defendant, with no showing of an authority, issued a renewal policy naming plaintiff’s husband, as the sole insured. A year later plaintiff bought the Mustang automobile and it was added to the policy as an insured vehicle. A month later, November, 1970, according to defendant’s claim representative, plaintiff’s automobile was removed from policy coverage by her husband. In February of 1971 plaintiff was injured and her automobile was damaged.

Additional facts appear from the record that may be considered in determining whether defendant, as it must, has shown by unassailable proof that plaintiff has no coverage under the policy.

At all times plaintiff was employed and her husband was not; she paid defendant’s premiums from a joint bank account. There is no documentary evidence of changes in the policy coverage, either as to plaintiff or her car. There is no evidence from the insured husband concerning changes in the policy. And, there is no evidence plaintiff knew of or received notice of either the removal of her name as an insured under the policy or of the removal of her car as an insured vehicle.

Under Rule 74.04(c)(h), VAMR, summary judgment may be granted only when there is no genuine issue as to any material fact, and the burden here is on the defendant-insurer to so show. We review the record on appeal in the light most favorable to the appellant plaintiff-wife, and we may affirm the summary judgment against her only if the record shows there is no genuine issue of any material fact. A genuine issue of fact for the purpose of avoiding summary judgment exists whenever there is the slightest doubt as to the material facts. Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328[l-3] (Mo.App.1977). A fact is material if it is “of such legal probative force as would control or determine the litigation.” Ware v. St. Louis Car Company, 384 S.W.2d 287, 290[2] (Mo.App.1964).

In view of the facts recited above as to whether defendant rightfully changed its policy to exclude both plaintiff and her car from coverage, we believe the trial court erred in rendering summary judgment against her. By reversing that judgment we limit our decision to the issue of the summary judgment rendered, without reference to the merits of plaintiff’s claim, an issue to be determined by trial on remand.

Judgment reversed.

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


author: STEWART, Judge.

text:
    STATE of Missouri, ex rel. Maiy Kay STOCKSTROM, Herbert C. Schoenberg, Alice G. Reilly and Dorothy E. Brockmeier, Plaintiffs, v. The Honorable William H. CRANDALL, Jr., Judge of the Circuit Court of St. Louis County, Missouri, Division No. 1, Defendant.
    No. 40320.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 26, 1979.

      William J. Fletcher, Clayton, for plaintiffs.
    Maniscalco, Clancy, Pittman & Bagot, Cyril J. Clancy, Clayton, for defendant.
   STEWART, Judge.

Original proceeding in prohibition. Plaintiffs seek our writ to prohibit the defendant from enforcing his order compelling plaintiffs to answer certain interrogatories. We quash our provisional rule in prohibition.

The parties will be designated as plaintiff and defendant in accord with Rule 97.01. In the underlying action in injunction plaintiffs allege that Richard J. Schoenberg has threatened and harassed plaintiffs with respect to other litigation pending between plaintiff Herbert C. Schoenberg and Richard J. Schoenberg. The plaintiffs are asking the court to enjoin Richard J. Schoenberg from, among other things, entering or attempting to enter plaintiffs’ premises; from “harassing, threatening, annoying, intimidating and assaulting plaintiffs, or any of them, by any means, including but not limited to contacts in person, by telephone, or in writing.”

Richard J. Schoenberg has filed an answer denying the essential allegations of the plaintiffs’ petition for an injunction. He affirmatively states that any contact made with plaintiffs was of a peaceful nature for the purpose of discovery of personal property that was removed from his residence.

Richard J. Schoenberg submitted seven interrogatories, some with sub-questions, to be answered by plaintiffs. Plaintiffs objected to interrogatories 6 and 7 reading as follows:

“6. With respect to the list of defendant’s property which defendant has attached as Exhibit ‘A’ and captioned ‘Inventory of Personal Property’, state whether any plaintiff is in possession of any of the property listed in that Exhibit, and if so:
a) Name the piece of property.
b) When was it acquired, and for how much?
c) Who was it acquired from?
d) Was a bill of sale or title oi; document of any sort transferred at the time, and if so, to whom?
“7. Are the plaintiffs in possession of any property belonging to the defendant of whatever nature, and particularly any property of the defendant previously kept at his former residence of 9501 Spitz, Crestwood, Missouri 63126? If so:
a) Describe in detail the piece or pieces of property.
b) How was the property acquired?
c) From whom was the property acquired?
d) When was the property acquired?
e) What item or items of property was acquired?
f) Was any money paid for the property, and if so, how much?
g) Was any bill of sale, document of . title, or other paper transferred at the time, and if so, by whom and to whom?”

Plaintiffs contend that these interrogatories are beyond the scope of discovery permitted under Rules 56 and 57 because the information is not relevant “to the subject matter involved in the pending action, would not be admissible at the trial, is not reasonably calculated to lead to the discovery of admissible evidence and does not relate to the claim or defense of any party.”

There is no claim nor can there be that the interrogatories are oppressive. The issue presented is whether, on the record before us, the answers sought by the interrogatories could have appeared to the court to be relevant to the subject matter of the litigation or reasonably calculated to lead to the discovery of admissible evidence. State ex rel. Norfolk and Western Railway Company v. Dowd, 448 S.W.2d 1, 3 (Mo.1969).

Because the trial court is in much better position to handle the questions involved in the determination of the propriety of interrogatories the trial court properly has wide discretion in ruling on objections to interrogatories. State ex rel. Rowlett v. Wilson, 574 S.W.2d 376, 378 (Mo.1978).

From the arguments of the parties which we need not set out in detail, it appears that a reasonable argument can be advanced that the interrogatories may be relevant to the injunction action or may lead to relevant evidence. State ex rel. Norfolk and Western Railway Company v. Dowd, supra. Plaintiffs are contending that Richard J. Schoenberg made improper contacts with them. The information sought would tend to show that he had a proper reason for contacting them and that his contacts were made in a peaceful manner. The evidence sought would be relevant to the extent of the injunction as well as whether he should be enjoined at all. If Richard J. Schoenberg had reason to believe that plaintiffs were in possession of his property the court might find it unreasonable to enjoin him from writing letters or even telephoning plaintiffs.

We cannot say that defendant abused his judicial discretion in ordering plaintiffs to answer the interrogatories.

Our provisional writ is quashed.

STEPHAN, P. J., and KELLY, J., concur.