author: DOWD, Judge.

text:
    L. F. H., Petitioner-Respondent, v. R. L. H., Respondent-Appellant.
    No. 37481.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 5, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.

      Gordon F. Webb, Clayton, for respondent-appellant.
    Earl L. Davis, St. Ann, for petitioner-respondent.
   DOWD, Judge.

Appellant challenges the decree of the trial court, dissolving the marriage of respondent and appellant, insofar as that decree awarded custody of the parties’ minor daughter to respondent and failed to divide the marital real property between the parties.

Respondent-L.H. and appellant-R.H. were married on October 22, 1965. The parties’ daughter was born on January 24, 1970. The parties separated on April 17, 1975 after respondent and a co-worker decided to leave their respective spouses and live together. Respondent took her daughter and moved into an apartment with Mr. W. Respondent testified that her marriage to appellant began to deteriorate several years before she became acquainted with Mr. W. but that she and Mr. W. planned to marry after they had secured dissolutions. Respondent, her daughter, and Mr. W. have lived as a family unit throughout the period of separation. However, appellant has had custody of his daughter on alternate weekends, except for a one month period following appellant’s answer to respondent’s divorce petition.

Both appellant and respondent are employed. Respondent earns approximately $9,000 a year, and appellant earns approximately $16,000 a year. The parties attempted to divide their personal property in half when they separated. At the time of their separation, the parties did not attempt to divide their real property which they owned as tenants by the entirety. The appellant continued to live on this property.

The decree of dissolution awarded primary custody of the parties’ daughter to respondent and granted appellant reasonable rights of visitation and temporary custody. The decree denied respondent’s request for maintenance and confirmed the parties’ division of personal property. Appellant was ordered to pay $30.00 per week for support of his daughter and was ordered to pay the costs of the proceedings. The decree omitted any reference to the marital real property.

Since the trial court’s decree of dissolution did not divide the real property of the marriage, the decree is not a final order and is not appealable. Pendleton v. Pendleton, 532 S.W.2d 905 (Mo.App.1976). While neither of the parties question our jurisdiction to consider this appeal, we have a duty to examine our jurisdiction sua sponte. Huffman v. Department of Revenue, 523 S.W.2d 107, 108 (Mo.App.1975).

If the trial court fails to divide the marital property between parties to a dissolution of marriage decree under Missouri’s Divorce Reform Act, §§ 452.300 et seq. RSMo Supp. 1973, the trial court has not exhausted its jurisdiction. While the decree is not a final decree, upon proper notice, the trial court can vacate, modify, or correct any part of the decree entered. And, until the trial court exhausts its jurisdiction, the appellate court is precluded from exercising its jurisdiction. Pendleton v. Pendleton, supra at 906. The trial court can not “abdicate its jurisdiction to decide the parties’ property rights.” Pendleton v. Pendleton, supra.

Section 452.330(1), RSMo Supp. 1973, provides that the trial court “shall divide the marital property in such proportions as the court deems just” (emphasis added) after considering the factors enumerated in Section 452.330(1). Other factors which indicate a proper accommodation of the needs of the parties should also be considered. In re Marriage of Heddy, 535 S.W.2d 276, 281 (Mo.App.1976). By using the word “shall”, the legislature has indicated that the trial court must specifically decree a division of the marital property upon dissolution of the marriage. See Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351, 358 (Mo.App.1975); State ex rel. McTague v. McClellan, 532 S.W.2d 870, 872 (Mo.App.1976).

The conclusion that the legislature intended to require dissolution decrees to specifically dispose of the marital property is bolstered by the enumeration, in the same statutory section, of the factors which should be considered in reaching the determination. As a whole, Section 452.330 evinces an intent that the trial court’s division of marital property is a mandatory duty, and the legislature’s use of the word “shall” is consistent with that purpose. State ex rel. McTague v. McClellan, supra.

The trial record presented to this court does not indicate that the trial judge gave any consideration to the division of the parties’ real property in formulating the decree of dissolution. The decree makes no mention of the real property even though the decree divides the parties’ personal property. According to the facts contained in the transcript, the parties’ real property was the major asset of the marriage and subject to the parties’ major obligation. Appellant and respondent owned their home as tenants by the entirety. The property was worth, according to the respondent’s estimate, $30,000.00 and was subject to an $18,-000.00 mortgage. The trial court must make some disposition of this property and its encumbrance in the dissolution decree before the decree becomes final.

Because the trial court made no disposition of the realty, this court is deprived of its jurisdiction to consider appellant’s challenge to the trial court’s custody order granting custody of the parties’ minor daughter to respondent. Pendleton v. Pendleton, supra.

In his brief, appellant strenuously contested the custody order of the trial court. Appellant argues that because respondent is living in open adultery with a married man and because the child is living in that environment, the best interest of the child requires that he be given custody of his daughter. Should the appellant again appeal the trial court’s custody order after the trial court makes a division of the realty, we would be faced with the task of reviewing the trial court’s order upon both the law and the evidence. Rule 73.01. The evidence relevant to custody contained in the present transcript does not afford the type of record necessary for the appellate court to “function with a ‘degree of confidence in the accuracy of our final judgment.’ ” V. M. v. L. M., 526 S.W.2d 947, 949 (Mo.App.1975). This is especially true when the custody of a minor child is involved. We would be forced to remand the case to the trial court for further hearing on the custody issue. To forestall such an appeal, we therefore suggest that a more extensive hearing on the custody issue be conducted by the trial court before the trial judge enters his final decree.

As a guide to the trial court, we set forth our reasons for finding the present transcript an unsatisfactory record for appeal. On examination of the transcript, we observe that there is a dearth of testimony and evidence pertaining to the question of custody and the best interest of the child. The transcript of testimony is 50 pages long; and only 15 pages of this testimony, consisting solely of the parties’ testimony, relate to the custody issue. No other evidence, such as the daughter’s records from childcare centers, which she attended, was produced, nor was there inquiry into the child’s physical condition. Almost no evidence was presented concerning the daughter’s welfare should she be placed with her father. Most of the testimony given concerned the disadvantages of giving respondent custody of her daughter, and consisted of evidence that respondent was engaged in an ongoing, open adulterous relationship to which the daughter would be exposed as a member of respondent’s household.

It is true that a mother’s adulterous conduct does not automatically mark her as unfit to have custody of her child. In re Marriage of Cook, 532 S.W.2d 833, 837 (Mo.App.1975). However, moral lapses of the parents should be considered by the trial court as this conduct bears upon the custodial welfare of the child. L. H. Y. v. J. M. Y., 535 S.W.2d 304 (Mo.App.1976). We believe that respondent’s conduct is an appropriate consideration in this case because the daughter will be exposed to respondent’s conduct. The determination of what is in the daughter’s best interest must include a consideration of the effect of respondent’s ongoing adulterous conduct upon the child’s values and character formation. In her testimony, respondent asserted that she did not believe that her relationship with Mr. W. would harm her daughter “because [she didn’t] feel that she [was] of the age she would understand what is right and what is wrong.” However, a child’s first impression of right and wrong is acquired in the home. This court has recently recognized the potential impact on the child of the moral environment created by the custodial parent, observing that:

“Certain conduct once looked upon by society with opprobrium does not carry the social or private stigma it once did a few short years ago. Such conduct may even be socially ‘approved’. But private personal conduct by a parent which could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by the courts. Private conduct by a parent in the presence of a child . . . may well influence his or her young, impressionable life.” L. H. Y. v. J. M. Y., supra at 308.

A more extensive hearing on the custody issue would help clarify whether respondent’s or appellant’s custody is in the daughter’s best interest. Inquiry should be made into appellant’s ability to care for his daughter and his conduct as it would affect the child’s welfare. The trial court could order an investigation and report concerning custodial arrangements under Section 452.390, RSMo Supp. 1973. Since the parties’ daughter has attended childcare centers since the age of 3, such childcare centers could also be a source of information concerning the welfare of the child.

We have discussed what we believe to be the paucity of evidence upon which the trial court’s custody order is based as a guide to the trial court to hold a more detailed hearing. As said, we lack jurisdiction to consider this appeal because the trial court has not yet divided the parties’ marital real property. Pendleton v. Pendleton, supra.

Appeal is dismissed.

WEIER, P. J., and STEWART, J., concur.


source: Caselaw Access Project

author: McMILLIAN, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Louis GREENLAW, Defendant-Appellant.
    No. 37299.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 26, 1976.

      Thomas R. Motley, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a jury conviction for Robbery First Degree by means of a dangerous and deadly weapon, and a sentence of twenty-five (25) years imprisonment. We affirm.

Prior to trial, defendant’s motion to suppress identification testimony was overruled.

The state’s principal witness, Ms. Parthe-nia Roundtree stated that she was a manager at a Velvet Freeze Store and that she and a co-worker were in the store at the time of the robbery. At about 3:30 P.M., a man entered the store and ordered a sandwich from Ms. Roundtree. Her co-worker finished the sale; however, the man remained at the counter. Ms. Roundtree asked if he wanted anything else. The man replied yes, then pulled a gun, and jumped over the counter. He ordered her to open the cash register and thereafter took the money contained therein. Afterwards he went through the pockets of both Ms. Roundtree and her co-worker. At this point a customer came into the store, and the robber jumped back over the counter and fled. Ms. Roundtree watched the direction he took while her co-worker phoned the police. Within a few minutes the police arrived and Ms. Roundtree gave a description of the robber. Soon afterward, the police returned with the defendant whom Ms. Roundtree identified as the person who had robbed her. About an hour later Ms. Roundtree again identified the defendant in a lineup consisting of from one to three individuals.

Ms. Roundtree further testified that the robber wore sunglasses when he came in, but later took them off. The entire event lasted about fifteen or twenty minutes.

On the day of the trial the prosecutor showed Ms. Roundtree a photograph of the defendant and asked her if they had the right man. She replied that they did.

During the trial Ms. Roundtree testified, without objection, that the defendant was indeed the individual who had robbed her. Defense counsel again challenged the validity of Ms. Roundtree’s identification in his motion for a new trial.

Defendant argues that the identification procedure denied him constitutional due process because: (1) the confrontation between Ms. Roundtree and himself at the store immediately after his arrest; and (2) Ms. Roundtree’s viewing of his photograph on the day of the trial — both were “suggestive and conducive to irreparable mistaken identification. . . . ”

The state argues that (1) “Miss Round-tree’s identification was based on an independent source; and (2) the appellant’s contentions have not been properly preserved for review.”

Defendant made a pretrial motion to suppress the identification testimony and made a motion for a new trial on the same grounds, yet at the time of the introduction of Ms. Roundtree’s identification testimony no objection was made. This court recently reiterated the well-established rule in Missouri that even where a pretrial motion to suppress and a motion for a new trial are made, nothing is preserved for review in the absence of a timely objection during the trial. State v. Johnson, 536 S.W.2d 851, 854 (Mo.App.1976). See also State v. Brownridge, 459 S.W.2d 317, 320 (Mo.1970) and State v. Johnson, 533 S.W.2d 629, 631 (Mo.App.1976).

Defendant does not ask that we review this case under Rule 27.20(c), nevertheless we find the plain error rule to be inapposite under the circumstances shown herein. In our view the trial court applied well-established principles of law as interpreted by our courts with regard to tainted identification. Although the procedures used in this ease, especially Ms. Roundtree’s viewing of defendant’s photograph, were arguably suggestive, looking to the “totality of the circumstances,” it cannot be said that her identification of the defendant was so tainted as to be constitutionally impermissible. State v. Parker, 458 S.W.2d 241, 243 (Mo.1970). The court looks to the “presence of an independent basis for identification, the absence of any suggestive influence and the positive in-court identification . State v. Johnson, 536 S.W.2d 851, 855 (Mo.App.1976).

In this case, Ms. Roundtree had an opportunity to view the defendant for about fifteen minutes in a well-lighted area. Her attention was focused on him during the actual commission of the robbery, and the description she gave immediately after-wards fit the defendant. Her in-court identification was positive. Ms. Roundtree stated that her in-court identification was based upon what she remembered from the happening of the crime rather than the subsequent events.

Accordingly, the judgment of the trial court is affirmed.

STEWART and RENDLEN, JJ., concur.


author: WEIER, Presiding Judge.

text:
    Henry R. HENNECKE, Employee, Respondent, v. WASHINGTON UNIVERSITY, Employer, and Hartford Accident & Indemnity Co., Insurer, Appellants.
    No. 37711.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 26, 1976.

      Evans & Dixon, Edward M. Vokoun, St. Louis, for appellants.
    Frank J. Lahey, Jr., St. Louis, for respondent.
   WEIER, Presiding Judge.

The employer and insurer (hereinafter employer) appeal from an order of the circuit court affirming an award of compensation to the employee by the Industrial and Labor Relations Commission (hereinafter Commission). The sole issue on appeal is whether or not there was competent and substantial evidence to support a finding that the employee suffered injury as a result of an accident.

Viewed in the light most favorable to the findings and award of the Commission, Lindquist v. Container Corp. of America, 537 S.W.2d 676, 677[1] (Mo.App.1976); Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810, 812[3] (Mo.App.1974), the evidence reveals that employee Henry R. Hennecke was working with another employee to install insulation on water lines in an underground tunnel containing layers of steam lines, electrical conduits, water lines and sewer pipes. The water lines were located between the sewer pipe and various steam lines. In the insulation procedure, Mr. Hen-necke would lift the line filled with water momentarily, while the second employee slipped on the insulation. To lift the pipe, Mr. Hennecke had to bend at the waist, slightly to the left, lower his head beneath steam lines, and twist to reach the water lines with both hands. At the time of the injury, Mr. Hennecke had held the water line approximately two minutes, which was longer than usual. At that time he experienced severe back pain which radiated down his legs.

The evidence set out above clearly indicates there was competent and substantial evidence on the whole record to support the finding of the Commission that the employee Mr. Hennecke exerted more strength over a greater period of time than he could have anticipated, and suffered an accident by abnormal strain. It is now well-settled that an abnormal strain causing injury may be classified as an accident, even though not preceded or accompanied by a slip or a fall. Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401, 405[1] (Mo. banc 1957). An abnormal strain occurs when the force exerted by the employee produced more strain than he anticipated. Furthermore, an abnormal strain can occur from lifting heavy objects while in an awkward or unbalanced position, even though lifting is a part of an employee’s routine duties. Wilson v. Kansas City, 479 S.W.2d 135, 139-141[5-7] (Mo.App.1972).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: FLANIGAN, Judge.

text:
    William A. WILDER and Cornelia Wilder, Plaintiffs-Appellants, v. CHASE RESORTS, INC., a corporation, d/b/a Lodge of the Four Seasons, Defendant-Respondent.
    No. 9954.
    Missouri Court of Appeals, Springfield District.
    Oct. 28, 1976.
    Morgan M. Moulder, Camdenton, for plaintiffs-appellants.
    Charles E. McElyea, Ronald K. Carpenter, Phillips & McElyea Corp., Camdenton, for defendant-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

On June 2, 1972, plaintiff William A. Wilder fell on a stairway leading into the ballroom of the Lodge of the Four Seasons, a hotel operated by defendant. From May 31, 1972, to June 4, 1972, William was a registered and paying guest of the hotel.

In Count I of the petition William sought damages for personal injuries he allegedly sustained in the incident. In Count II his wife Cornelia asserted her claim for loss of his services. The jury returned a verdict in favor of defendant on both counts. Plaintiffs appeal.

Plaintiffs’ contention is that the trial court erred in refusing to give Instruction A offered by William. The pattern for Instruction A was MAI 22.05 (“Verdict Directing-Tenant Injured on Premises Reserved for Common Use”) and was a verdict-directing instruction for William. The verdict-directing instruction actually given by the court, and tendered by defendant, was Instruction 3, which conformed to MAI 22.03 (“Verdict Directing-Invitee Injured”). Plaintiffs also contend that the giving of Instruction 3 was error.

Paragraph First of Instruction 3 hypothesized the conditions which made the stairs not reasonably safe. Paragraph Second of Instruction 3 reads: “Second, Plaintiff did not know and by using ordinary care could not have known of this condition, and”. The Third, Fourth and Fifth paragraphs of Instruction 3 followed MAI 22.03.

The vital difference between given Instruction 3 and refused Instruction A is that the latter did not contain the language found in Paragraph Second of Instruction 3. Put otherwise, the refused instruction did not require the jury to find that William “did not know and by using ordinary care could not have known of” the condition described in Paragraph First.

William argues that the relationship of innkeeper-paying guest, which defendant bore to William, is not “a normal invitor-in-vitee case” and that MAI 22.03, prescribed for use in the invitor-invitee situation, was inapplicable. He asserts that he was entitled to use MAI 22.05 which does not contain a requirement that the jury find that the injured person lacked actual and constructive knowledge of the dangerous condition.

The action of the trial court in refusing to give Instruction A and in giving, in its stead, Instruction 3, was tantamount to a holding that a hotel guest, injured by reason of a defective condition on a portion of the hotel premises properly accessible to him, must prove, as an element of his cause of action, that he lacked actual and constructive knowledge of the existence of the defective condition. This holding is contrary to language in the following cases: Burnison v. Souders, 225 Mo.App. 1159, 35 S.W.2d 619 (1931); Cumming v. Allied Hotel Corporation, 144 S.W.2d 177 (Mo.App.1940); Shute v. Prom Motor Hotel, Inc., 446 S.W.2d 137 (Mo.App.1969). Burnison and Shute are decisions of the Kansas City Court of Appeals and Cumming is a decision of the St. Louis Court of Appeals.

In Burnison the plaintiff sued the hotel operators for injuries she sustained when descending a stairway leading into the lobby. The defendants claimed that plaintiff failed to make a submissible case because she knew of the defect which caused her fall. The court considered the relationship between defendants and plaintiff to be that of innkeeper-guest. It drew a distinction between the liability of an innkeeper to his guest and the liability of an owner or occupier of land to his business invitee. It held that the relationship of innkeeper-guest was “something more” than that existing between owner-business invitee.

At 35 S.W.2d p. 623 the court said:

“There is quite a difference between the situation existing between a merchant and his customer and an innkeeper and his guest. In the former case the invitee comes upon and uses the merchant’s premises for a purpose mutually advantageous to each and no consideration is paid by the invitee for the use of the premises as in an innkeeper’s case. When one goes to a hotel the very thing he bargains for is the use of safe premises. While the landlord is not an insurer, under such circumstances, the law protects the guest from the carelessness of his landlord even where the defect in the premises is known, or is obvious to the guest so long as the guest uses ordinary care.” (Emphasis added)

On the same page the court said:

“The difference between the innkeeper cases and those relied upon by the defendant is this: In the case of an innkeeper, if the defect is known or is an obvious one, then it is a question of contributory negligence on the part of the guest, whereas, in the cases relied upon by the defendants, if the defect is known or is an obvious one, the proprietor is not liable, regardless of whether or not the invitee is negligent. In other words, if the proprietor has no superi- or knowledge of the defect but the same is known or is obvious to the invitee, then the proprietor owes the invitee no duty in reference to the matter.”

The court, in Burnison, treated plaintiff as a hotel guest, and not as a tenant, although plaintiff had been staying there nine months.

The Martin case, cited in Footnote 1, holds that the legal position of a hotel guest is superior to that of a tenant with respect to injuries caused by a defective condition in the portion of the premises rented. Would it not be anomalous if the law accorded the hotel guest a legal position inferior to that of a tenant with respect to injuries caused by a defective condition on the portion reserved for common use?

In Cumming the plaintiff, a paying guest, sustained injuries by reason of a defective condition in a hotel room. The court said that the relationship between defendant and plaintiff was that of innkeeper-guest. The court drew a distinction between the basis of an innkeeper’s liability for injuries to his guest and the basis of a merchant’s liability for injuries to his customer. The court said at 144 S.W.2d p. 181:

“There are many reasons for applying the rule of ordinary care in a different manner and with a different meaning in such cases, one of the main reasons being that in the case of the landowner or merchant nothing is paid by the invitee for the privilege of entering the premises, and he may as freely leave as he came and carry with him his belongings, but not so with the guest at the hotel, who has paid the price demanded for the very purpose of securing proper accommodations in the way of food or lodging, and for safety, comfort and repose. If that price is not paid in advance the hotel has a lien on the guest’s belongings for its pay. The public inn or hotel might well be termed a quasi-public institution. Not only must it procure a license from the State to operate, but the conduct of its business is strictly regulated by statutory law, with a view that the traveler who becomes its guest shall have comfort, sanitation and safety.

“And so while the basis of liability of the innkeeper for injuries to the guest may be on the same general principle that creates liability on the part of the merchant for injuries received by an invited customer, yet, the merchant eases and other cases involving the principle of invitation and license are not parallel with a case of innkeeper and guest.

“The general rule is that the owner of property is liable for injuries resulting from defects or conditions known to the owner and not known to the invitee or licensee, but that rule should not be applied in strictness where the relationship of innkeeper and guest exists, . . . We are wholeheartedly in accord with the reasoning of the Kansas City Court of Appeals in [Burni-son ] and with the conclusion therein drawn that when one goes to a hotel the very thing he bargains for is the use of safe premises, and while the landlord is not an insurer, under such circumstances, the law protects the guest from carelessness of his landlord even where the defect in the premises is known, or is obvious to the guest, so long as the guest uses ordinary care.” (Emphasis added)

In Shute the plaintiff, a paying guest, sustained injuries by reason of a defective condition (improper lighting) of a stairway leading to the lobby of the defendant hotel. After mentioning § 315.120 V.A.M.S., and citing Burnison and Cumming, with approval, the court, at 446 S.W.2d p. 140, in a rather clear reference to the innkeeper-guest situation, said:

“While the landlord is not an insurer, the law protects the guest from the carelessness of his landlord even where the defect in the premises is known or is obvious to the guest, so long as the latter uses ordinary care for his own safety.” (Emphasis added)

Defendant’s contention is that William, although a registered and paying guest, was merely its invitee and that MAI 22.03 was the appropriate verdict director. Defendant, however, cites no authority for its contention. Tending to support defendant’s position is Milliken v. Trianon Hotel Company, 364 S.W.2d 71, Mo.App., a decision of the Kansas City Court of Appeals in 1962.

In Milliken the plaintiff, a social guest of a paying guest, sued the hotel operators for injuries she sustained when descending a stairway leading into the lobby. Plaintiff obtained a verdict but the trial court granted a new trial on the ground of defects in plaintiff’s verdict directing instruction, Instruction Number One.

The appellate court, in agreeing with the trial court, referred to the plaintiff as an “invitee” and relied upon authorities dealing with the liability of a merchant to his customer. At 364 S.W.2d p. 74 the court said:

“Plaintiff in Instruction Number One overstated and incorrectly stated the extent of defendant’s duty by failing to note it required defendant, as to unsafe premises and conditions actually or constructively known to defendant, to warn plaintiff only of those dangers that are not known and would not be known to one exercising ordinary care — for example, of dangers that are not open and obvious to an invitee using the premises. The partial and incorrect statement of the duty in the instruction is of such a nature as to mislead a jury and to cause it to believe defendant’s duty is greater than it is.” (Emphasis added)

“Lack of actual or constructive notice of the dangerous condition is an essential element of a business invitee’s right to recover

The court also pointed out that the error in the instruction was not cured by reference to another instruction on contributory negligence. On p. 75 it stated:

“[A] fact necessary to plaintiff’s case is one on which plaintiff has the burden of proof, and plaintiff must carry and satisfy that burden. The omissions in the verdict finding instruction do not go merely to the defense of contributory negligence. They are essential elements of plaintiff’s case. To say a fact essential tó a plaintiff’s cause but omitted from his verdict directing instruction is supplied by reference to a contributory negligence instruction would have the unsound effect of shifting the burden of proof as to that fact.”

Thus Milliken is support for the proposition that the difference between given Instruction 3 and refused Instruction A, described in the fifth paragraph of this opinion, is significant and that error arising from the giving of the wrong instruction or the refusing of the right instruction is prejudicial. See also Gorman v. St. Louis-San Francisco Railroad Company, 427 S.W.2d 390, 394 (Mo.1968).

In Milliken the court made no reference to the decisions in Burnison or Camming. Shute, of course, was decided after Milliken by the same court, but Shute made no reference to Milliken.

It is true that in Milliken the plaintiff herself was not a paying guest but was the social guest of the paying guest. However, that factual distinction is of doubtful legal significance. In 58 A.L.R.2d 1201 (“Duty and liability of an innkeeper to visitor or caller of registered guest”) at p. 1203 are cited decisions of seven other jurisdictions to the effect that “the same standard of care which is owed to the registered guest” is owed to the social guest of the latter. Similarly, in Missouri, the social guest of a tenant enjoys the same legal status as is accorded his host in establishing tort liability on the part of the landlord for a defective condition in the premises. Burks v. Buckmiller, 349 S.W.2d 409, 411[3] (Mo.App.1961); Darlington v. Railway Exchange Building, 353 Mo. 569, 183 S.W.2d 101, 105[2] (1944).

The briefs of the parties do not cite any opinion of our supreme court on the point under discussion and the research of this court has not led to such. Some foreign authorities hold that the degree of care to which a hotel guest is entitled is the same as that due business invitees. Phillips Petroleum Company of Bartlesville, Okl. v. Dorn, 292 So.2d 429 (Fla.App.1974); Buck v. Del City Apartments, Inc., 431 P.2d 360 (Okl.1967); Rocoff v. Lancella, 145 Ind.App. 440, 251 N.E.2d 582 (1969); Goldman v. Hollywood Beach Hotel Company, 244 F.2d 413 (C.A.Fla.1957). On the other hand the rationale of Burnison, Cumming and Shute, all supra, by which a hotel guest is accorded a higher status than that of the business invitee finds support in Dunlap v. Executive Inn Motor Hotel Corp., 404 S.W.2d 842 (Tex.Civ.App.1966).

The author of an annotation in 32 A.L. R.3d 508, 514 (Premises Liability — Claimant’s Status) refers to a trend of recent cases toward rejection of the traditional rules as to the variant degrees of care owed invitees, licensees and trespassers, and accordingly of the necessity for such a classification, and adoption of a general rule that the land owner must exercise reasonable care under all the circumstances, the status of the injured person possibly having some bearing, in the light of the facts giving rise to such status, on the land owner’s liability, but not being determinative.

The cases evincing such a trend might find substance in the argument that a hotel guest should be treated as a business invitee and not as a member of an additional classification. Even with respect to business invitees, there is a movement to eliminate, as an element of plaintiff’s cause of action, his lack of actual or constructive knowledge of the dangerous condition which caused his injuries.

In Missouri, an injured person’s status as a tenant, rather than as a business invitee, remains significant as evidenced by the committee’s comment under MAI 22.05 to this effect: “Landlord’s liability is distinguished from that existing in a normal invitor-invitee case in that landlord is subject to liability, ‘irrespective of whether the lessee or those upon the land in his right know or do not know of the dangerous condition.’ Restatement, Torts § 360, comment a.” MAI p. 199.

This court believes that the holdings of Burnison, Cumming, and Shute remain sound. Missouri law relieves a tenant, entitled to submit his claim under MAI 22.05, from the burden of proving, as an element of his cause of action, that he lacked actual and constructive knowledge of the dangerous condition. No valid reason appears for not relieving a hotel guest from the same burden.

Defendant does not contend that the other portions of refused Instruction A contained any imperfection which justified the refusal. Whether they did contain any imperfection need not be considered because the action of the court in giving Instruction 3, at the request of the defendant, constituted reversible error. Defendant does not question the submissibility of plaintiff’s case.

The briefs of the parties which exchange views pertinent to other instruction errors, or claimed errors, should be taken into consideration by them in the event of retrial. They receive no discussion here because they may not arise again in view of the disposition of plaintiff’s principal contention. Counsel will of course keep in mind that deviating from MAI, even slightly, is fraught with peril.

The judgment is reversed and the cause remanded.

All concur.

      . Under modem practice a tenant, injured on a portion of the premises reserved to the landlord, would be entitled to use MAI 22.05, a result consistent with Bumison had the plaintiff there been a tenant. MAI 22.05 applies only to injuries occurring on the portion reserved by the landlord for common use.
      See Martin v. Shryock Realty Co., 236 Mo.App. 1265, 163 S.W.2d 804 (1942) discussing the distinction between the duty owed by a landlord to his tenant and the duty owed by an innkeeper to his guest with respect to injuries caused by defective condition in the portion of the premises rented. See also Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947 (1935).
      “Whatever else may be involved in the status of a ‘guest’, the term contemplates a transient whose stay is temporary.” Jackson v. Engert, 453 S.W.2d 615, 618 (Mo.App.1970). “The relationship of an innkeeper and guest terminates where a guest ceases to be, or abandons his status as a transient, and this may be effected by taking up a permanent abode in the inn.” 40 Am.Jur.2d 918, Hotels, Motels, Etc., § 26.

      . Section 315.120 reads in part: “Every hotel in this state shall be properly plumbed, lighted, and ventilated, and shall be conducted in every department with strict regard to health, comfort and safety of the guests . . . .”

      . For language minimizing the significance of the fact of registration as bearing upon status as a hotel guest see 40 Am.Jur.2d Hotels, Motels, Etc. § 20, p. 914.

      . Stafford v. Fred Wolferman, 307 S.W.2d 468 (Mo.1957); Wattels v. Marre, 303 S.W.2d 9 (Mo.1957); Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623 (Mo.1958) and others.

      . In Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47 (Mo.1969) plaintiff, a paying guest of a hotel, fell on the steps leading from the lobby to the dining room. The plaintiff’s verdict director included the language contained in Paragraph Second of Instruction 3 given in the case at bar and quoted in the fourth paragraph of this opinion. In Burrell, p. 53, the court referred to the verdict director and said “It probably comes closer to MAI 22.03 than to any other,” but did not discuss the point under consideration here.

      . “Thus, while the traditional rule, as stated in Restatement, Torts (1943) § 340, absolves a possessor of land of liability to his licensees, whether business visitors or gratuitous licensees, for harm caused by dangerous conditions thereon of which the injured person knew and realized the risk, the modern rule, as stated in the Restatement, Torts 2d § 343A(1), and followed by some of the courts, qualifies the traditional rule by making the possessor liable to his invitees where he should anticipate the harm despite the invitee’s knowledge or the obviousness of the danger.” 32 A.L.R.3d 508, 514.
      See Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107, 110 (Mo.1974), a business invitee case, where § 343A(1) is set out and said to contain, with § 343 of the Restatement of the Law of Torts 2d, “the applicable rules governing this case.” But Stafford and Wilkins, cited in Footnote 4, are also cited there.


author: PER CURIAM:

text:
    CITIZENS INSURANCE COMPANY OF NEW JERSEY, a corporation, Plaintiff-Appellant, v. KANSAS CITY COMMERCIAL CARTAGE, INC., a corporation, Defendant-Respondent, and Third-Party Plaintiff, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, a corporation, Third-Party Defendant.
    No. KCD 27598.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      William J. Lasley, James, Odegard & Mil-lert, Kansas City, for plaintiff-appellant.
    Steven H. Osman, James H. Ensz, Rope, Shanberg & Rope, Kansas City, for defendant-respondent and third-party plaintiff.
    Clem W. Fairchild, Kansas City, for third-party defendant.
    Before DIXON, P. J., and BRUCE NOR-MILE, FRANK CONLEY and RONALD M. BELT, Special Judges.
   PER CURIAM:

The trial court entered summary judgment against plaintiff in an action on an insurance policy. In the procedural setting of this appeal, the threshold issue to be determined is the finality of the judgment. A short statement of the procedural and factual background will demonstrate the necessity for the initial determination of this court’s jurisdiction of the appeal.

Plaintiff insurance company brought an action against defendant Kansas City Commercial Cartage, Inc., based upon a claim by plaintiff that it was entitled to the return of funds paid under an insurance policy. The payment by plaintiff was made under a loss payment agreement which reserved to the plaintiff insurance company the right to contest the validity of the payment. The basic policy of insurance under which the loss was paid was a cargo coverage policy. Excluded from coverage of the policy was loss “caused by or resulting from infidelity of the insured’s employees or persons to whom the property may be entrusted . and for loss or damage caused by the dishonesty of any attendant or attendants.” The goods in question were stolen from a shipment and one LaCore, who was a part-time employee before and after the time of the loss, confessed to the theft of the goods.

The dispute between Citizens Insurance as a plaintiff and Commercial Cartage as defendant centers upon the meaning to be ascribed to the quoted policy language. Before trial, Commercial Cartage, with leave of court, brought a third-party action against Commercial Union Insurance Company of New York. The third-party petition was an action upon a fidelity bond coverage issued by Commercial Union covering the employees of Commercial Cartage. Commercial Union filed an answer denying liability upon grounds that Commercial Cartage had failed to comply with the terms and conditions of the insuring agreement, that the loss was not within the insuring agreement, and that no act was committed by any person whose acts could have caused a loss under the insuring agreement.

A stipulation of facts was filed by the parties, and the plaintiff Citizens Insurance and the defendant Commercial Cartage both filed motions for summary judgment. The third-party defendant, Commercial Union, likewise moved for summary judgment against the defendant Commercial Cartage. In that posture of the case, the trial court sustained the defendant Commercial Cartage’s motion for summary judgment and denied the motion of plaintiff Citizens Insurance. No ruling was made on the motion of Commercial Union for summary judgment against defendant Commercial Cartage.

In this posture of the case, the face of the record demonstrates that the issues between Commercial Cartage and Commercial Union on Commercial Cartage’s third-party claim on the fidelity bond coverage have not been resolved. Finality of judgment is a jurisdictional prerequisite, and it is the duty of this court to look to our jurisdiction sua sponte, and if the judgment is not final to dismiss the appeal. Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976).

During the oral argument, counsel were advised of the court’s concern as to the possibility that the appeal was premature and were requested to file supplemental briefing on the issue. All of the parties joined in a single letter brief urging the court to consider the trial court’s order as a final appealable order. In support of that position, they cited Hupp v. Murphy Finance Company, 502 S.W.2d 345 (Mo.1973); Capitol Stores, Inc. v. Storms-Green Construction Company, 346 S.W.2d 549 (Mo.App.1961); and Skatoff v. Alfend, 411 S.W.2d 169 (Mo.1966).

The thrust of their argument based upon that authority is that the trial court found by implication against the contention of the defendant Commercial Cartage on its claim against Commercial Union on the fidelity bond, the reason advanced being that if LaCore was not an employee for the purposes of the cargo insurance, he could not be an employee for the purposes of the fidelity coverage. The cases cited by the parties indeed hold that in some circumstances such an implication of finality will arise. Thus, in Hupp, where Count I involved setting aside a judgment and Count II was entirely derivative being an action for wrongful execution, the court held that a determination against the plaintiff on the wrongful execution issue concluded the entire litigation. Likewise, in Capitol Stores, a counterclaim was involved, and the trial court’s finding for the plaintiff necessarily implied a finding against the defendant upon the counterclaim. Skatoff was a dismissal based on the jurisdictional issue of venue and, of course, would apply to all defendants in the case.

The difficulty which the parties have not addressed is that the implication of a finding on a third-party claim may have different results than a situation where the claims are entirely interdependent. In the instant case, if a finding is implied on the third-party claim against the defendant Commercial Cartage and the determination in this court reversed the trial court, a vexing issue would arise as to whether any right of appeal by Commercial Cartage existed with respect to its claim against Commercial Union. If that matter was concluded by implication from the trial court’s order on the principal claim, the time has long since passed for the defendant Commercial Cartage to appeal from that implied judgment. This would follow if the reversal was based upon the procedural ground that an issue of fact existed for determination by the trier of fact and that summary judgment was therefore improper, or if the reversal turned on the issue of the matters of law urged on this abortive appeal.

There is sound authority that in the procedural setting of this case where there are unrelated defendants and where questions of liability arise out of the same facts, the typical third-party situation, the failure to enter a judgment which disposes of all the issues between all the parties denied finality for the purposes of appeal.

In New Age Federal Savings and Loan Association v. Miller, 461 S.W.2d 876 (Mo.1970), a somewhat similar situation arose. The savings association brought suit against Fireman’s Insurance on a fire policy and joined it with a claim to quiet title against other defendants. These other defendants filed a third-party action against their own insurance company. Thereafter, a motion for summary judgment was entered on the third-party claim, but no disposition was made of the initial claims. The appeal from the motion for summary judgment was dismissed as premature because of the failure to dispose of all the issues and all the parties.

In State ex rel. Fletcher v. New Amsterdam Casualty Company, 430 S.W.2d 642 (Mo.App.1968), plaintiff’s appeal on the principal claim was held to be premature where a third-party claim still pended. The court pointed out the plaintiff’s claim, if sustained, would have a different effect on the third-party claim than if it were denied, which is exactly the situation which exists here.

In the instant case, a variety of results are possible under the appeal with respect to a motion for summary judgment by Commercial Cartage. It may be affirmed, in which case, the position of the parties might be sound with respect to the finality of the claim against Commercial Union on the indemnity policy, or the order granting summary judgment against Citizens Insurance might be found to be improper because a factual issue existed between the parties, in which case, the claim against the indemnity company could not be resolved until that factual determination had been made in the trial court. A third result is possible, that this court might find against Commercial Cartage on the issues of law involved in this appeal, in which case, Commercial Cartage might well wish to pursue its claim against the indemnity company. This same situation was specifically recognized in State ex rel. Fletcher v. New Amsterdam, supra. As noted, this last result would present the troublesome question of Commercial Cartage’s status as a third party plaintiff if this court adopted the position urged by the parties. Under all the circumstances of this case and as noted in New Amsterdam, the circumstances of each case must be considered in determining the finality of the judgment entered below.

This court has concluded that the appeal must be dismissed.

One other procedural matter needs to be mentioned.

The transcript in this case reveals that subsequent to the entry of judgment for Commercial Cartage on its motion for summary judgment, Citizens Insurance as plaintiff filed a motion for rehearing within a few days after the order sustaining the motion was entered. This motion has never been ruled upon by the trial court so far as the transcript filed here discloses. Since the order sustaining the motion for summary judgment in favor of Commercial Cartage has been determined to be without finality and thus interlocutory in nature, the motion for rehearing still pends for determination by the trial court. Under Rule 81.05(b), as construed in Otto v. Kansas City Star Co., 368 S.W.2d 494 (Mo.1963), the motion for rehearing would have been considered as overruled upon the filing of a notice of appeal and the passage of time, but Otto is not here involved since no final judgment has been entered in this cause. The trial court should dispose of the pending motion or the parties may desire to refile the same upon a final determination of the entire case.

Appeal dismissed.


author: SHANGLER, Presiding Judge.

text:
    Charles D. BEAUCHAMP and Lena Beauchamp, Plaintiffs-Appellants, v. NORTH AMERICAN SAVINGS ASSOCIATION, a corporation, Defendant-Respondent.
    No. KCD 27664.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Dale, Flynn, Bauman & Liles, Martin M. Bauman, St. Joseph, for plaintiff s-appellants.
    Slagle & Bernard, Warren E. Slagle, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiffs Beauchamp sued to recover a $4500 savings account pledged as security for a loan to the Zieglers for the purchase of the Beauchamp premises. Thereafter, the Zieglers conveyed to the Costners who assumed the mortgage indebtedness. The plaintiffs Beauchamp now claim that the assumption by the Costners of the Ziegler mortgage indebtedness materially alters their undertaking as pro tanto guarantor of the loan, and by operation of principles of guaranty law, releases them from their guaranty obligation.

The cause was presented to the trial court for decision on stipulated facts. The issues were determined adversely to the plaintiffs Beauchamp and this appeal follows.

The defendant complains, at the outset, that points attempted by plaintiffs in their brief do not conform to the requirements of Rule 84.04(d) for concise statement of the claims of judicial error. It is indeed plain that the abstract statement of legal principles the plaintiffs offer resembles more a didactic exercise than a request for review. This deficiency, however, does not pervade the rest of the appellate preparation and will not deprive the appellant of our review on the merits.

The facts essential for decision of this dispute were stipulated to the trial court:

The plaintiffs Beauchamp listed their two lots for sale. Thereafter, the Zieglers applied to Peoples Home and Savings Association [predecessor of defendant North American Savings Association] for a loan of $14,-400 — the full purchase price — to be secured by a deed of trust on the lots and by $4500 deposited by plaintiffs Beauchamp from the proceeds of the Ziegler loan into a savings account with the defendant Association pledged as security for repayment. The lots were conveyed by the plaintiffs Beau-champ to the Zieglers.

Two years later, the Zieglers conveyed the lots to Costner, subject to the indebtedness of deed of trust to the Association, which Costner assumed and agreed to pay. The Association did not exercise its option to declare the Ziegler debt immediately due and payable by reason of the conveyance to Costner. At that date, the principal balance of the Ziegler loan was about $9900.

Some months later, the Ziegler loan came into default and the successor Association proceeded with foreclosure. The lots were bid in by the Association for $7001 so that the principal amount of $6484.41 remained unpaid on the debt. The plaintiffs Beau-champ thereupon made demand on the successor Association for restitution of the $4500 savings account deposit, but the Association claims that sum under the guaranty agreement and has refused the demand.

The trial court rejected the postulate of the plaintiffs Beauchamp that they were discharged from their pledge obligation because the Association, by accession to the assumption by Costner of the Ziegler indebtedness, materially changed the nature of the Beauchamp pledge obligation to the Association. As a result, they contend, they are now free of liability under that agreement and are entitled to return of the $4500 pledge.

A transaction of guaranty is a species of contract with at least three parties: a promisor, a creditor [to whom the promise is made] and a debtor. The guaranty arises when the promisor makes a promise to the creditor either as to the solvency of the debtor or as to the payment of the debt. Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470 (Mo.1946); 38 Am.Jur.2d, Guaranty, § 1. A guaranty is a collateral agreement for performance of the undertaking of another, and so imports two different obligations: that of the principal debtor and that of the guarantor. Four-Three-O-Six Duncan Corp. v. Security Trust Co., 372 S.W.2d 16, 23[6] (Mo.1963); Kelly-Springfield Tire Co. v. Hamilton, 230 Mo.App. 430, 91 S.W.2d 193, 195[1] (1936). The liability of the guarantor, therefore, does not arise in the absence of a liability on the principal undertaking to which it is collateral. 38 C.J.S., Guaranty § 2. The obligations of the guarantor are construed stric-tissimi juris and will not extend beyond what he is fairly bound to by the precise terms of his contract. This favoritism flows from the assumption of public policy [Citizens Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025, l. c. 1029 (banc 1917)] that

[i]n the complicated transactions of civil life, the aid of one friend to another, in the character of surety or bail becomes requisite at every step. Without these constant acts of mutual kindness and assistance, the course of business and commerce would be prodigiously impeded and disturbed.

This leads to the principle, stated generally in 38 Am.Jur.2d, Guaranty, § 81, that

[A] material alteration in the principal contract, when that alteration is made after the execution of the guaranty contract and without the consent of the guarantor, discharges the guarantor if the material alteration injures the interest of the guarantor.

One Missouri court adds this stricture: “The general rule is that any alteration in the contract by the principals thereto releases the surety, unless the surety consents to it. And the rule is so strict that the courts will not opt to inquire whether the alteration was injurious or beneficial to the surety. The reason is that contracts of suretyship are strictly construed in favor of the surety, and he has a right to stand upon the exact contract he made; and no one, not even a court, can change it in any respect.” Missouri Finance Corporation v. Roos, 226 Mo.App. 869, 47 S.W.2d 142, 146 (1932). Consonant with this general rule, it was held in Higgins v. Deering Harvester Co., 181 Mo. 300, 79 S.W. 959, 960 (1904) that where a wife had given a deed of trust to secure a note given by her husband, and the payee creditor procured a third person to sign the note without the knowledge or consent of the wife, such an alteration discharged her guaranty and deed of trust from obligation.

These statements of general principles give no support to the contention of plaintiffs Beauchamp that the conveyance from the Zieglers to Costner and his agreement to assume the mortgage indebtedness altered the principal liability and thus served to discharge their guaranty. The stipulations do not suggest that the Association released the Zieglers of their obligation to pay the debt, and certainly the assumption of the indebtedness by Costner did not accomplish such a result. “As between the grantor of the mortgaged premises and the grantee who assumed the mortgage, personal liability for the mortgaged debt is transferred from the former to the latter. But this is not so as to the mortgagee; the assumption of the mortgage does not deprive him of any rights or remedies he possessed against the mortgagor, or relieve the latter from liability for the debt secured, unless the mortgagee has expressly agreed to relieve him and to accept the purchaser as his debtor in place of the mortgagor.” Haley v. Branham, 192 Mo.App. 125, 180 S.W. 423, 424 (1915); 55 Am.Jur.2d, Mortgages, § 1045.

It is plain then that the conveyance by the Zieglers to Costner and his assumption of indebtedness did not affect the liability of the Zieglers for the mortgaged debt, nor does the stipulated evidence suggest that the Association otherwise relieved Zieglers of their personal promise to the Association. The primary contractual obligation between the Zieglers and the Association remained constant and unaltered by the subsequent transactions. Hence, the dependent collateral Beauchamp guaranty, remains intact.

The judgment is affirmed.

All concur.

      . The decisions use the terms guarantor and surety as equivalents notwithstanding the conceptual and juristic distinctions which separate them. They are similar in that both guarantor and surety promise to answer for the debt or default of a third person, but are different in that the contract of guaranty is collateral or secondary to the undertaking of the principal debtor while the engagement of suretyship is original and unconditional. In other words, the contract of the guarantor is his own undertaking while contract of suretyship gives rise to a joint and several obligation of the principal and surety. 38 Am.Jur.2d, Guaranty, § 15; 38 C.J.S. Guaranty § 6.


author: PRITCHARD, Chief Judge.

text:
    Clem ALEXANDER, Jr., Respondent, v. JOHNSON FURNACE COMPANY, Appellant.
    No. KCD 27725.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Alvin D. Shapiro, Kansas City (Stinson, Mag, Thomson, MeEvers & Fizzell, Walter K. Disney, Kansas City, of counsel), for appellant.
    Charles C. Shafer, Jr., Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

According to respondent Alexander’s motion to amend his pleadings to conform to the evidence, made at the close thereof, this is an action for damages for alleged fraudulent misrepresentation made in connection with a settlement agreement of all disputes between the parties. The judgment, entered upon a jury’s verdict, was for $17,-000.00 in favor of Alexander. There was also a judgment entered against appellant, Johnson Furnace Company (Johnson), on two counts of its counterclaim which are not here in issue. The dispositive issue is whether Alexander proved a case of fraud.

Alexander had been associated with Johnson in various capacities prior to 1960 in which year he became its president. He resigned that position on July 6, 1965. Thereafter, there were attempts to resolve disputes between the parties which culminated in the execution of a “Settlement Agreement and Release” on January 15, 1968. It is not precisely clear in the transcript, which contains a great deal of irrelevant testimony concerning extramarital affairs and marital discord, just what was the nature of the disputes prior to the agreement. It seems, though, that Alexander’s position was that Johnson owed him commissions after his resignation, and that he did not owe personally certain expenditures which he had caused Johnson to make while he was its president — that these expenditures were made for company purposes. It seems that Johnson’s position was that Alexander had improperly charged it for his personal expenses. At any rate, the settlement agreement, January 15, 1968, first recited that “Alexander is indebted to the company, and the aggregated amount of his indebtedness has been in dispute, and whereas Alexander has made claims against the Company, which the Company has disputed, and whereas the parties hereto have agreed to settle their disputes in the manner hereinafter provided, * * Alexander assigned to Johnson a $3,333.33 note of Apartment Builders, Inc., and “2. The Company does hereby release and forever discharge Alexander from all claims of every kind whatsoever which the Company has against Alexander on this date, whether for money owed to the Company by Alexander or otherwise.”, and “3. Alexander does hereby release and forever discharge the company from all claims of every kind whatsoever which Alexander has against the Company on this date, whether for money owed to Alexander by the Company or otherwise.”

Paragraph 3 of the amended petition pleads, “ * * * that defendant made representations to the Plaintiff that all of its claim of every kind whatsoever were being released by the agreement of January 15, 1968, full well knowing the income tax examination of Defendant’s returns would cause claims to be made against the Plaintiff; that Defendant intended Plaintiff to rely upon such representations; that such representations were false and Defendant knew them to be false; that such representations were material to the execution of the release by the Plaintiff; that Plaintiff relied upon such representations in executing the release agreement and was damaged as a direct result, the foregoing amendments in this paragraph being in addition to the allegations initially set forth in paragraphs 9 and 10 of the petition, * Paragraph 9 of the initial petition pleaded that the business expenses involved had been deducted in the corporate returns filed by Johnson which “purposefully and willfully breached its release agreement with said Plaintiff by encouraging the Internal Revenue Service to include such business expense items in Plaintiff’s personal income tax calculations.” Paragraph 10 of the initial petition pleads that the purpose and intent of the release was to settle all controversy and claims, but Johnson “did willfully adopt a course of conduct purposefully designed and calculated to financially injure the Plaintiff and which resulted in his payment of approximately $12,000.00 in interest, tax and penalties (amended to $9,000.00), as heretofore set out and further resulted in requiring Plaintiff to employ legal counsel in order to defend himself from further charges by the Internal Revenue Service and for the prosecution of this action. * *

On June 25, 1968, IRS wrote Alexander and provided him with a list of items which Johnson had paid on behalf of Alexander and his wife. The list included various car, travel and country club expenses, as well as checks for cash and life insurance policies. The IRS letter indicated that the expenses had been disallowed by it as expense deductions of the company (Johnson) and would therefore be chargeable as income to Alexander. Alexander testified that at the time he signed the settlement agreement he had no knowledge of an audit of Johnson by IRS, and no knowledge of any disallowance of any expense deductions of the corporation. He first learned of the disallowances on June 25, 1968. He had a conference with IRS after which it included the disallowed corporate expenses in his income, and taxes were assessed on the amount. Upon the advice of an attorney and because he could not afford to, Alexander did not file a claim for tax refund in federal court. To pay the tax deficiency he mortgaged the home, which was given by agreement to his wife in a 1971 divorce proceeding. She thereafter made payments on the mortgage. She testified that she was the one who obtained the loan to pay the tax deficiency, which she delivered, after IRS informed her that the home would be sold to pay the deficiency.

More specifically, Alexander’s testimony was: “Q At the time you executed that agreement did you know the income tax returns were being audited? A No, sir. Q Did you know that any amounts had been disallowed by the Internal Revenue Service for the years 1961, 1962, 1963, 1964, 1965, involving expenditures by you on behalf of the company? A No, sir. I wouldn’t have signed it if I had known it.” And, “Q How do you figure you were damaged by the company’s alleged breach of your settlement agreement? A Well, in the first place, all they had to do was pick up the phone when this audit started back in September of 1965 and call me, this was the gentlemanly thing to do, but what they were trying to do was be vindictive and to nail me to the cross.” Other than the allusion by Alexander to the September, 1965 date, there is no testimony as to the time of the IRS audit. That there was, in fact, an audit at some time is established by the testimony of Guy W. Johnson: “Q Did you invite Mr. Alexander to sit in on any of these conferences with the Internal Revenue agents with regard to the disallowance of these company expenses? A I would probably have to say no.”

The settlement agreement speaks only of the release of claims which Johnson had against Alexander. It does not purport to save Alexander harmless from, or even mention, claims which might have been asserted against him by third parties, such as IRS, which arose out of corporate transactions when he was associated with Johnson prior to July 6, 1965. Ordinarily, disallow-ances of deductions by a corporation after audit by IRS will result in more tax liability to the corporation. If that had happened, the settlement agreement would have barred any claim against Alexander resulting from more tax paid by Johnson on the theory that corporate expenses were incurred for the personal benefit of Alexander. The gist of Alexander’s claim against Johnson is that it fraudulently concealed from him the existence of an IRS claim for additional taxes against Alexander, which had been shifted from the corporation to him personally, “well knowing the income tax examination of defendant’s returns would cause claims to be made against the plaintiff.” (The evidence does not show that there was a tax liability shifting.)

What the allegations amount to, then, is a fraudulent concealment brought about by Johnson’s silence as to the tax claim. The question is whether there was a duty resting upon Johnson to speak and inform Alexander of the audit and any resultant action by IRS in shifting the tax liability to Alexander. Had he known this, Alexander says, he would not have signed the settlement agreement, and thus the concealment of the facts was material to his executing the agreement. It is a fair conclusion, under the allegations and proof thus far presented, that Alexander’s damage was the deprivation of his ability to negotiate the tax liability in the terms of the settlement agreement because he was not aware of the facts.

It has long been the settled law of this state that in certain circumstances fraud may be committed by concealment of facts. In Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562 (1931), a case of fraudulent concealment was made by one Wolcott, where true facts of profits in a horse and mule buying adventure were withheld from him resulting in his selling his joint adventure interest for much less than it was worth. The court said, loc. cit. 40 S.W.2d 590, “Deceit may be negative as well as affirmative. It may consist in the repression of that which it is one’s duty to declare as well as by the declaration of that which is false.” In Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 193 (1949), it was said, “While silence or concealment becomes fraudulent only where there is a duty to speak and disclose, a legal duty to disclose may exist where there is no existing fiduciary relationship between the parties and where no special confidence is expressly reposed. The duty to disclose may arise from the circumstances of the case, including inequality of condition and the superior knowledge of one party, which knowledge is not within the fair and reasonable reach of the other party. (Italics added.) (Citing numerous cases and authorities.) Whether or not a duty to disclose exists and whether or not the circumstances amount to fraud must be determined on the facts of the particular case.” See also Miller v. Higgins, 452 S.W.2d 121, 124[3-5] (Mo.1970), where actual rental overcharges were not divulged, and a purchaser was required by P.H.A. to refinance or rebate overcharges, a case of fraudulent concealment being made; Parker v. Green, 340 S.W.2d 435 (Mo.App.1960); and Hanson v. Acceptance Finance Co., 270 S.W.2d 143 (Mo.App.1954).

In this case, from the evidence presented, Johnson had knowledge that an IRS audit of its corporate records had been conducted. There is no evidence, however, that at the crucial time of the settlement agreement, January 15, 1968, Johnson, through its officers and directors, had knowledge that IRS had disallowed or would disallow corporate deductions on its returns; or that Johnson knew that any such audit would or might result in additional taxable income to Alexander personally. If that knowledge exists, Johnson, through its officers and directors, being in charge of its operations after July 6, 1965 (and Alexander not being with the company) would have been in a superior position of knowledge to Alexander. There is also no evidence that Johnson in any way encouraged IRS to include the corporate business expenses in Alexander’s personal income tax calculations, as pleaded in paragraph 9 of the initial petition. Knowledge of the existence of the fact or facts allegedly wrongfully not divulged is an essential ingredient of the claim to relief for fraudulent concealment. Dudley v. Dumont, 526 S.W.2d 839, 847 (Mo.App.1975), “It is well established in our law that there must be scienter, either actual or constructive, to support an action at law for fraud and deceit. Scienter implies guilty knowledge by the tort feasor or a guilty lack of knowledge; the former is charged here. MacKinnon v. Weber, 109 S.W.2d 692, 694[3] (Mo.App.1937). The misrepresentation must be made with intent to deceive, ‘or with what is recognized as the legal equivalent to a deliberately fraudulent intent to deceive.’ Cohen v. Metropolitan Life Ins. Co., 444 S.W.2d 498, 505[5] (Mo.App.1969).” See also Wilson v. N. W. Electric Power Cooperative, Inc., 301 S.W.2d 882 (Mo.App.1957). Because of lack of evidence of Johnson’s knowledge, its “scienter” of the existence of facts resulting from the IRS audit, Alexander has failed to make a submissible case of fraudulent concealment. It does not appear, however, that the evidence would not be available on new trial, and the case should be remanded to give plaintiff the opportunity to develop same. Swope v. Printz, 468 S.W.2d 34 (Mo.1971); Household Finance Company, Inc. v. Watson, 522 S.W.2d 111 (Mo.App.1975); Searcy v. Neal, 509 S.W.2d 755 (Mo.App.1974).

The judgment is reversed and the case is remanded for new trial.

All concur.


text:
    Clyde J. LINDE et al., Plaintiffs-Respondents, v. Joy L. KILBOURNE, Defendant-Appellant.
    No. KCD 27821.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      James S. Bolán, Legal Aid & Defender Society, of Greater Kansas City, Inc., Kansas City, for defendant-appellant.
    Robert B. Langworthy, J. Michael Vaughan, Linde, Thomson, Fairchild, Lang-worthy & Kohn, Kansas City, for plaintiffs-respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiffs are copartners in the practice of law. In the course of several years they first represented defendant Joy Kil-bourne in a spate of litigation, and her son, Kelly, in a criminal prosecution. These services went unpaid and the partnership brought an action in two counts to recover $5540.62 from the mother and $226.50 from the son. The petition went by default and the court entered judgment for the demands. This judgment was then set aside at the request of defendant Joy Kilbourne.

The plaintiffs then submitted interrogatories and request for admissions to the defendants on the reinstated cause, but these, too, went by default. Summary judgment followed on the motion of the plaintiffs on the premise that failure to deny the request for admissions by the Kilbournes had conclusively established them by the operation of Rule 59.01(a). Only defendant Joy Kilbourne appeals. She contends that the request for admissions was beyond the proper scope of the rule, so that even though the requests were neither answered nor denied, they may not be taken as admitted.

The discovery by the plaintiffs was preceded by pleadings which alleged — without answer or denial — their employment by the Kilbournes for legal services, performance, and the reasonable value of work done. The request for admissions iterated these declarations more specifically and presented them to defendant Joy Kilbourne for concession of their truthfulness. They requested her to admit nine matters: The employment relationship between them, the nature of their consultations, the duration of employment of legal services, discontinuance of the employment relationship, that advices and statements for legal services rendered were received by her without protest as to the charges shown, payment without protest of charges for previous legal services rendered her, that the charges shown in the advices and statements were reasonable for the services given, that defendant had made no payment on the balance shown due, and that the accrued interest on the account was as computed by the plaintiffs and stated. There requests went by default of objection or denial.

Thereafter, plaintiffs propounded interrogatories to defendant Joy Kilbourne calculated to determine her address and that of her son. These, too, went by default.

A request for continuance by the defendant on the premise that she had only lately employed counsel followed these defaults, but was not allowed. The motion for summary judgment ensued. The defendant Joy Kilbourne then moved, for the first time, for leave to file answer to the petition and to make objections to the request for admissions. These were denied and summary judgment issued for the plaintiffs.

The contention on appeal is that the request for admission procedure of Rule 59.01 does not intend to remove from the case proof of the constitutive elements of the ultimate issue, but only those facts which are not crucial to the litigation. Thus, she contends, requests 1, 3, 5 and 7 — which call for the admissions that defendant Joy Kil-bourne retained plaintiffs for legal services, that the services were rendered, that they were properly charged, and that the charges were reasonable — seek concession of the cause of action pleaded and so exceed the scope of the rule. The appellant assumes that no Missouri authority has spoken on the question, and so bases her argument on federal decisions which have construed Rule 36 of that practice, from which our request for admissions Rule 59.01 derives.

The proceedings before the trial court were conducted under Rule 59.01 as it stood before the 1975 revision. To the extent relevant to this discussion, that rule then provided:

(a) Request for Admissions. After commencement of an action a party may serve upon any other party a written request for the admission by the latter of . any relevant, and material matters of fact set forth in the request . Each of the matters of which an admission is requested shall be deemed admitted unless . . . the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons which he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper .

The request for admissions is a procedure whereby a party requires his adversary in the litigation to admit the truth of a proposition pertinent to the controversy. The intention of the practice is to facilitate proof as to those issues that cannot be eliminated from the case, and to narrow the issues by elimination of those that can be. Moore’s Federal Practice (Second Edition ¶ 36.01[7]); History of the Rule, Committee Notes. The clear purpose of the rule [the prototype from which our own derives] became entangled in a doctrinal dichotomy in the federal decisions as to the proper scope of the language “the admission ... of the truth of any relevant matters of fact”. One view concluded that a party could not demand admissions of disputed contentions or elements of his burden of proof. California v. The S. S. Jules Fribourg, 19 F.R.D., 432, 436 (N.D.Cal.1955). The other considers that the pleadings define the disputes only tentatively, and allows the admission procedure to determine whether these contentions — whether of evidential or ultimate matters — are genuinely controverted.

Jones v. Boyd Truck Lines, 11 F.R.D. 67 (W.D.Mo.1951). [For other cases on each view, see Finman, The Request for Admissions in Federal Civil Procedure (1962), 71 Yale LJ 371, 394 et seq.]

This division of judicial opinion expressed an even more fundamental disagreement: whether the matters of fact subject to admission under the federal rule then in effect were of opinion and mixed questions, as well as of evidentiary fact, and thus reached ultimate issues of proof. [See the discussion and cases cited in Finman, op. cit., supra, l. c. 409], This posed the recurrent vexation of legal writers: whether questions of law and of fact are merely verbal definitions or functions of the litigation. [Morris, Law and Fact, 55 Harvard LR 1303, 1306 (1942)]. The conundrum was resolved when Federal Rule 36 was amended in 1970 to allow admissions of opinions of fact or of the application of law to fact. This accommodation not only recognized the practical difficulty in separating fact from law and fact from opinion, but also that admission of a matter which involves the application of law to fact may serve to clear the issues.

Our appellate decisions on admissions Rule 59.01 have not been embarrassed by a comparable fraction of opinion. Although the scope of the language matters of fact has not been specifically litigated, these opinions rest on the tacit acceptance that Rule 59.01 intends to allow admissions of all disputed issues, whether evidentiary or elements of the burden of proof; that all propositions not in genuine dispute — whether a matter of application of fact to law or opinion — should be admitted. If an admission of a proposition removes an issue from the trial or facilitates proof, the purpose of the rule is served.

In Hudson v. General Mutual Insurance Company, 480 S.W.2d 755 (Mo.App.1968), the plaintiff sued to collect a judgment. The plaintiff requested the defendant insurer to admit or deny: that the policy issued to plaintiff was in full force and effect on the day of the event, that the insured gave timely and due notice of claim, that the policy provided for the insurer to pay on behalf of the insured all sums for which the insured became legally obligated as damages for bodily injury or property damage, and that the insurer had become legally obligated under the policy to pay certain damages. These requests, all elements of the burden of proof on the petition, and matters of application of the facts to the law, in effect sought concession by the defendant insurer of the cause of action pleaded. The appeals court determined that failure of the insurer to deny or otherwise object to the requests admitted their truth.

In Kraehe v. Dorsey, 432 S,W.2d 367 (Mo.App.1968), the plaintiff brought an action to recover for services for appraisal of real estate. The plaintiff served requests for admissions which were neither objected to nor denied nor reason given why they could not be answered. The subject matter of the requests for admissions was that defendants were involved in a contract as either principals or agents, that they made a contract, approved the employment of plaintiff and paid him. These requests again of elements of the cause of action and of facts mixed with law were held to be admitted in default of denial or objection.

In another decision, more nearly akin to the claim presented on this appeal, the failure to deny or object to the requests admitted that parties were corporations organized and existing by virtue of law, that the defendant was indebted to plaintiff for the sum shown by invoices exhibited with the requests, that demand had been made but payment refused by the defendant. Manpower, Inc. v. Area Development Corporation, 440 S.W.2d 515 (Mo.App.1969). Summary judgment was sustained on the premise that the admission of these propositions by default proved the cause of action.

In still another case, the request of plaintiff to admit that the defendant corporations were the alter egos of the individual defendant went by default and were deemed by the trial court to have proved that issue. On appeal the defendants sought to avoid the effect of the alter ego admission on the argument that the admission was a conclusion. The court responded that by the terms of Rule 59.01 each matter requested was deemed admitted in the absence of denial or objection. [Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643, 656 (Mo.1973)].

Accordingly, the contention of defendant Kilbourne on this appeal that Rule 59.01 does not intend to reach elements of the burden of proof or matters in dispute is overborne by the effect given this procedure by our decisions.

The very purpose of the rule is to remove from the trial issues not in legitimate dispute. As any practitioner knows, not every controversy raised by the pleadings is real; allegations are often only formal and defenses fictitious. The request for admissions procedure is to determine which pleaded matters present genuine issues for trial. (See, generally, Finman, op. cit., l. c. 374 and Moore’s Federal Practice, ¶36.01[7]).

It is also the sense of our decisions that an element of the burden of proof — or even the ultimate issue — may be required for admission under the rule. And the admission of these matters may not be avoided because the request calls for application of the facts to the law [Hudson and Kraehe, supra], or the truth of the ultimate issue [Manpower, supra], or opinion or conclusion [Zyken, supra], so long as the opinion called for is not on abstract propositions of law. [J. R. Meade Co. v. Forward Construction Company, 526 S.W.2d 21 (Mo.App.1975)]. It is the concession of the issue — otherwise determinable by the trier of fact — which comes into evidence, not the assumptions of the party who makes the admission.

The trial court properly accepted the default of defendant Kilbourne as admissions of the matters requested. That proof left no material issue of fact to be tried. Summary judgment was a proper disposition of the cause. Rule 74.04.

The judgment is affirmed.

All concur.

      . As, for instance, an admission that an employee acted in the scope of his employment served to remove a major issue from the trial. McSparran v. Hanigan, 225 F.Supp. 628 (E.D.Pa.1963); see, also, Jones v. Piper Aircraft Corp., 18 F.R.D. 181 (M.D.Pa.1955); and Moore’s Federal Practice, Advisory Committee Note of 1970 to Amended Rule 36, (136.01 [7] and ¶ 36.04(4) (2d ed.).

      . Meade concluded that an admission to a request for the identity of the owner of real estate within the purposes of the mechanic’s lien statute called for a conclusion of law, a matter not within the purposes of Rule 59.01.

      . Rule 59.01 was amended in 1975 in particulars not relevant to the issue presented on this appeal.